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Special Report

by Staff Reporter


State Trooper Wins PTSD Lawsuit


           


An Arizona state trooper has won a precedent-setting court case that affects police officers, firefighters, and other emergency services workers throughout the United States.

On January 20, 2000, Department of Public Safety Officer David D. Mogel killed a shotgun-toting car thief wanted for bank robbery after the suspect attempted to shoot the officer.

Shooting Suspects Part of the Job?

Because of the trauma in taking a human life, Officer Mogel was diagnosed with Posttraumatic Stress Disorder (PTSD), and could no longer function as a police officer. When he applied for Workers' Compensation benefits, he was denied. The Arizona Department of Public Safety and Workers' Compensation (State of Arizona, DOA Risk Management) claimed that shooting suspects was part of the job, and not an "unexpected" event as required by Arizona law.
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Shootings Are Routine?

Officer Mogel's attorney, Robert E. Wisniewsky, says, "The state raised the defense that working in police work everyday was not a substantial contributing cause  of my client's post traumatic stress disorder because police are exposed to such hazards everyday so that is routine."

"Killing... An Extraordinary Stress," says Judge

In her Findings and Award of December 19, 2002, awarding Officer Mogel Workers' Compensation benefits, Administrative Law Judge Karen Calderon states, "I find that shootings and killing another human being in the line of duty is an extraordinary stress related to the employment."



PTSD Is Legitimate Claim

The implications of this decision are far-reaching. A police officer's claim of PTSD has not won a court case in Arizona before, and rarely succeeds in other jurisdictions. Mr. Wisniewski says, "This case made a great difference in establishing that post traumatic stress disorder is a cognizable claim for a police officer involved in such a life threatening event."

If Officer Mogel Had Lost

If Officer Mogel had lost his case, the decision may have prevented not only police officers, but also firefighters and other emergency workers from collecting Workers' Compensation benefits if injured psychologically on the job.
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Author of CopShock Testified

During the trial, Allen R. Kates, author of "CopShock: Second Edition, Surviving Posttraumatic Stress Disorder (PTSD)," a trauma/survival book, testified as an expert witness. Officer Mogel's attorney says that Kates's testimony, based on the research presented in CopShock, "was very important in helping the Judge sort out the real issue in this case."

In his testimony, Mr. Kates gave an overview of the effects of PTSD, and presented studies that show police shootings are rare events that no officer, no matter how well trained, can prepare for emotionally or psychologically.


Expert Witnesses

     
          Dr. Sarah Hallett

The expert witnesses included police psychologist Dr. Sarah Hallett, therapist Ellen Roy Day, and Mr. Kates. In awarding in favor of Officer Mogel, the Judge states that, "Conflicts in the evidence are resolved in favor of the opinions of Dr. Hallett, Ms. Day and Mr. Kates as being more probably correct and well founded."
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Case Sets Precedent

This case, called "David D. Mogel vs. Department of Public Safety and State of Arizona, DOA Risk Management," will likely be cited in future court proceedings as a precedent in support of police officers, firefighters, and EMS personnel who sustain PTSD injuries incurred in the line of duty.

CopShock Is Top PTSD Guide

   

The book CopShock is used in police academies, police department peer support units and law enforcement college courses around the country. It is considered the top guide on how to prevent or manage police stress and PTSD. In 2001, the A&E Television Network produced a documentary based on the book.

Author Allen R. Kates Comments On the Hearing

In the following commentary, the author of CopShock discloses what happened during his testimony. It gives a clear picture of what police officers must endure during a court case when they are not at their best, suffering with PTSD symptoms, not sleeping well and possibly having periods of depression.


    See Kates's comments below, left

                          Implications of the Mogel PTSD Lawsuit

                                                by Allen R. Kates, MFAW, BCECR


Winning a lawsuit based on a PTSD claim is indeed a major achievement. Too often police officers are ignored or denounced for saying they need help. Sometimes they get it, often they don't.

When they don't get help and are forced to sue their department, the city or Workers' Compensation, then
they must find strength within themselves to fight to the end.

Every few weeks I receive a phone call or email from a police officer who is engaged in a battle with the department or with Workers' Comp. They often don't know what to do. The Workers' Comp psychologists say the officers are faking PTSD symptoms, are malingerers, just want a free
ride. The officers' psychologists say they have PTSD and can no longer function as police officers, as in David Mogel's situation.

Be Prepared To Fight
The first piece of advice I give officers who contact me is to be prepared for a fight, at a time in your life when all you want is peace, kindness, caring and time to heal, not a battle. Nevertheless, a fight is what you will get.

Your Claim Will Be Denied
First off, if you apply to Workers' Compensation for benefits or attempt to acquire a disability pension based on a PTSD claim, you will likely be denied. You will be denied NOT because you do not have a legitimate claim. You will be denied NOT because you do not have PTSD. You will be denied because the whole issue, for the insurer, is money, money, money.

Nothing Personal, Just Business
For them, "It's nothing personal, just business." Isn't that what the Mafia says?

They Want To Wear You Down
They will deny you benefits because they want to wear you out and wear you down so you will give up the claim. I've never heard of anybody getting benefits the first time they make a claim. In many cases, you will be denied repeatedly until your only recourse is to file a lawsuit like David Mogel did.

Suing Takes Resources
Filing a lawsuit takes resources, financial and emotional, but many attorneys will figure out a way to help you. If you must sue or get representation, be sure to seek out an attorney who has experience dealing with Worker's Compensation. If he or she understands PTSD, all the better. Many attorneys have acquired my book, CopShock, to familiarize themselves with the concepts and solutions.

Do Not Give Up
Another important piece of advice I give officers seeking benefits or who are being forced to sue: DO NOT GIVE UP. That's what they want you to do. But chances are good that you will succeed. The past couple of years, I've heard from several officers who won their cases based on a PTSD disability claim.

Be Ready For Battle
Be ready for battle. Be aware that your life will be examined, that you will be vilified, chastised, criticized, denigrated, defamed, intimidated and belittled. Their purpose is to break you down so you will go away. Your purpose is to stand tall and know that you are right and will succeed.

Speaking of being denigrated and belittled, I'd  like to tell you about my experience with the Mogel lawsuit.

What It Was Like To Testify
I was asked to be an expert witness by David Mogel's attorney. My part of the trial was actually a telephone interview with the attorneys from both sides, the Judge and Officer Mogel. Not as dramatic as being in the courtroom and taking the stand, but, as it turned out, dramatic enough.

First, Officer Mogel's attorney asked me to give an overview of how PTSD affects police officers, the symptoms, and whether shooting somebody is part of the job and should not be "rewarded" with a disability pension, as the opposition declared.

I explained that based on my 6 years of research, PTSD is an on-the-job killer, and officers with severe PTSD need counseling. I had compiled an enormous amount of research for CopShock and had interviewed nearly 200 police officers diagnosed with PTSD.


As far as the assertion that shooting someone is part of the job, that is baloney.

Shooting Someone Not Part Of The Job
To prove my point, I quoted facts and figures available on the FBI website showing that a line of duty shooting is extremely rare. http://www.fbi.gov/about-us/cjis/ucr/ucr.


Normal Reactions
Furthermore, I provided evidence that nobody, no matter how well trained, is prepared emotionally for killing another person, no matter how justified the reason. Cops often think that violence is normal and reacting emotionally is abnormal. In fact, it's the other way round. Violence is abnormal. Feeling something is normal.

Anger, Helplessness, Flashbacks, Depression, Conflict, Alcohol Abuse, Reckless Behavior...
Our reactions to violence can take the form of unexplained anger, anxiety about future encounters, helplessness, hopelessness, intruding thoughts and flashbacks, sleep difficulties, depression, fear of losing control, nightmares, family conflict, alcohol and drug abuse, sexual difficulties, suicidal thinking, reckless behavior, mood swings, inability to concentrate, irritability and many other possible symptoms. We may also react to violence by not appearing to react at all, by being numb and unresponsive. That too is normal for our species.

Cross-Examination--Not A Pretty Sight
Following my testimony, the other side's attorney was then given an opportunity to take a whack at me, to cross-examine. And it wasn't pretty.
                                                                                                                 
Qualified To Speak
In a sarcastic and incredulous tone, she said I wasn't qualified to speak. I wasn't a doctor, I wasn't
this and I wasn't that. Not being a shrinking violet, I defended myself. I reminded her that having been an investigative journalist for more than 14 years, I was exceptionally qualified. In addition, as the author of a PTSD book that took 6 years of research, a book that is considered the ultimate guide on police PTSD, that is read around the world, that is used in law enforcement college courses and in peer support units throughout America, and was the basis for an A&E Television Network documentary, I was infinitely qualified to talk about my findings, research and experience.

Objective, No Axe To Grind
In addition, I said that not being a doctor was in my favor. When LAPD Detective Bill Martin asked me to write the book, he said that cops wanted to read a book written by someone objective, without an axe to grind, who didn't represent the establishment, who would not take sides and would just give the facts, ma'am, just the facts, like Sergeant Friday used to say on the old TV series, Dragnet.

Heated Exchanges
My explanations didn't seem to make much of an impact on the opposition's attorney, and she continued to attack my credibility. For each wild assertion she made, I went after her. At times the exchange became so heated the Judge had to break us up and tell us to move on.

The Attorney's Trump Card
At the end of her cross-examination, the attorney pulled out what I think she believed was her trump card. "You are being paid to say all this, aren't you?" she said in her characteristic condescending, arrogant, sarcastic tone.

My ex-wife, who is a terrific lawyer, once told me that in court a lawyer should never ask a question if they do not know the answer. Apparently, the attorney had made an assumption, a wrong one.

"Actually, no," I said. "I'm not being paid."


Digging A Hole
The other thing my ex-wife used to say is: If you are digging a hole and standing in it while wat
er pours in, you should stop digging and get yourself out of there. This attorney didn't know when to stop digging.

"Why aren't you being paid?" said the attorney.

I said that I was offered payment, but had turned it down.

"Why?" she asked. She didn't know when to quit or change the subject.

I said that I told Officer Mogel's attorney that I was going to tell the truth and that my testimony would not necessarily help Officer Mogel, and might even work against him. Hence, I could not accept payment, and saw myself more as a neutral party. I said that if I had accepted payment then my credibility could be called into question.

That should have ended the discussion. It didn't. The attorney representing Workers' Compensation continued, "When did you find out that you would not be paid?"

Laughing Hysterically
She kept up this line of questioning and dug her hole deeper and deeper until I heard somebody laughing hysterically on the other end of the phone. I don't know who it was. It could have been Officer Mogel's attorney. It could have been Officer Mogel. It could have been the Judge, but I doubt it.

Whoever was laughing must have talked to my ex-wife. Maybe it was my ex-wife, although I'm pretty sure a man was laughing. The laughter ended the cross-examination. Good thing, but too late for the defense.

I was not the only expert witness who testified. In her Findings, the Judge ruled in favor of Officer Mogel, finding the testimony of the three expert witnesses, mine included, to be more "correct" or credible (there's that word again) than what the Workers' Compensation attorney had elicited or presented.


Officer David Mogel won his case.
With perseverance and determination, hopefully you can, too.










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