Wins.

March 29, 2010

By Jacob Quinn Sanders.
Arkansas Democrat-Gazette

It has been more than a year since Jacksonville police officer John Forte strapped on his gun belt, pinned his badge on his uniform and went to work.

He is injured, though his body bears no marks.

Diagnosed with posttraumatic stress disorder by four doctors after a five-hour shootout Aug. 25, 2008, Forte watched as the city and the Arkansas Municipal League fought his workers’ compensation claim and cut off his medical benefits.

Their argument: Forte, 44, was not physically injured or the victim of a violent crime. Under state law in mental injury cases, at least one of those had to happen. As a police officer, the Municipal League argued, Forte was armed and trained in dealing with violence and arrived at the shootout that day knowing of the dangers. In the end, the suspect wounded one officer before being shot dead by a police sniper.

This month, however, an administrative law judge sided with Forte, marking what appears to be the first time an Arkansas law-enforcement officer has won an award of workers’ compensation benefits without suffering a physical injury. The Municipal League declined to appeal, fearing the ruling would be upheld and set a stronger precedent.

“It feels great for me, but what’s really important is that when people learn about my case, the police departments and insurance companies are not going to be able to treat people like this anymore,” Forte said in an interview last week.

The insurance section of the Municipal League covers more Arkansas police officers than any other insurer — 4,275 at 301 of the state’s 321 municipal police departments.

The Municipal League’s legal counsel, J. Chris Bradley, argued against Forte’s claim at a Dec. 9 hearing before administrative law judge Barbara Webb. He said in an interview last week that he did not appeal Webb’s ruling, dated March 9, because he believed the full Arkansas Workers’ Compensation Commission would uphold it, as would the Arkansas Court of Appeals after that. Losing at those levels would make the case a firm precedent and bring unwanted attention to it.

“That is something we did not want in this case,” Bradley said. “I’m not aware of another case exactly like this one, and I’d prefer not to see more of them.”

Little Rock attorney Neal Hart is chairman of the Arkansas Bar Association’s section on workers’ compensation law. He called Bradley a “very smart guy.”

“If you don’t want to create a precedent or draw attention in a case you’ve lost, don’t appeal it,” Hart said. “Not going to the appeals court especially, then there’s no precedent at that level and it’s a harder case for attorneys to find.”

Hart said lawyers were unlikely to hunt through old administrative law cases unless they knew specifically what to look for. And not many workers’ compensation attorneys take mental injury claims, he said.

Forte said he plans to direct as much attention as he can to the case.

“I’ll lobby the Legislature,” he said. “Whatever it takes. I’ll talk to the police unions. Anybody that can be helped by what happened to me, I want to help them.”

26 WEEKS OF DISABILITY

Webb awarded Forte 26 weeks of disability payments at $506 a week. The Municipal League paid it in a lump sum — $13,156 — with 12.5 percent of that going to Forte’s attorney, Scott Scholl, of the Jacksonville firm Rice & Adams. The Municipal League is responsible for paying Scholl another 12.5 percent of the total award.

“Basically I’m all caught up on my bills,” Forte said. “That’s all that money got me. I’m ruined financially.”

The 26 weeks is the longest Forte could have gotten disability benefits on a claim of mental injury under Arkansas Code Annotated 11-9-113. The statute was amended in 1993 to mandate that a person must suffer a physical injury or be the victim of a “crime of violence” in order to receive benefits. Under the law, a licensed psychologist must diagnose the mental illness or injury in accordance with the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.

The Municipal League contended in Forte’s case that police officers who go knowingly into danger and are not physically injured don’t count.

The manual’s diagnostic criteria for post-traumatic stress disorder include being a participant in or witness to “an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others” with a person’s response to the event including “intense fear, helplessness or horror.” The event must be “re-experienced,” according to the manual, which can mean dreams, flashbacks or hallucinations.

Symptoms including sleeplessness and the avoidance of anything having to do with the event must last more than one month, according to the manual.

The Workers’ Compensation Commission awarded benefits in a 1998 case to an El Dorado convenience-store clerk diagnosed with posttraumatic stress disorder after a robbery in which two men stole her keys and purse after she closed up for the night, one man pressing his body against hers and shoving a gun into her neck. Then the men stole her car. She was not hurt. The Arkansas Court of Appeals upheld the award in 2000 after the store’s owner challenged it.

“But make it police officer and that adds a different element to it,” Bradley said. “That’s when it gets a little complicated.”

A MATTER OF LAW

Police officers are armed and trained to identify and prepare for life-threatening situations, Bradley said — convenience-store clerks are not.

It is not a matter of compassion, but of law, he said. The Municipal League has granted workers’ compensation benefits to other law-enforcement officers with posttraumatic stress disorder and no physical injuries, Bradley said, but this is the first time the Municipal League denied benefits and a judge ordered otherwise.

Other officers have challenged the Municipal League’s denial of benefits on claims of post-traumatic stress disorder alone, though none were successful.

John Scarlett was a former assistant police chief in Pine Bluff when he argued in 2004 that a hostile and stressful work environment — made worse by a deteriorating relationship with the chief — forced him to retire in 2002. He felt suicidal and suffered from heart problems and anxiety, he told an administrative law judge after the Municipal League denied his disability claim.

“Whether claimant is claiming that he has suffered mental injury or illness due to the stress of his work or heart injury or illness as a result of the stress of his job, his claim is not compensable, either way,” administrative law judge Cynthia Estes Rogers wrote in her opinion.

SPOTLESS RECORD

Forte had been a police officer for three years on that August day when Steven Smith, 45, grabbed a highpowered rifle inside the house on Foxwood Drive where he lived with his parents.

All of 5-foot-9 in his black leather cowboy boots, Forte had already won his department’s “Life Saving Award of the Year.” His personnel file was spotless. He had earned several letters of commendation.

Forte had been a bouncer at the Electric Cowboy nightclub in Little Rock and spent 10 years as an Arkansas Crime Information Center agent before joining the Jacksonville Police Department.

That 85-degree day on Foxwood Drive, as Smith fired shot after shot and threatened to kill every officer there, Forte watched from behind a green Ford Explorer as officer John Alberson tried to hide behind a tree.

One of Smith’s shots hit Alberson’s left shoulder. Forte called out over the radio for permission to lay down suppressing fire with his tactical shotgun and got it. He was one of several officers who escorted Alberson to an ambulance.

Then he went back toward the gunshots.

“How can you say he wasn’t shooting at me when I saw a muzzle flash and looked the man in the eye?” Forte said. “Of course he was shooting at me. He was shooting at all of us.”

SAME CONCLUSION

After voluntarily turning in his gun last March, Forte saw four doctors — two the department selected and two he and Scholl chose — and each diagnosed him with post-traumatic stress disorder.

Chief Gary Sipes ordered Forte to see a fifth and threatened Forte with discipline for insubordination after he refused. That insubordination charge has not yet been resolved. Sipes was out of the country on vacation and could not be reached for comment. Capt. Kenny Boyd, acting chief in Sipes’ absence, said he did not know enough about Forte’s case to comment. Mayor Gary Fletcher did not reply to a request for comment.

The Municipal League cut off Forte’s health insurance in September, claiming the city fired Forte when it hadn’t.

Forte still takes medication but even then has nightmares — always, he said, about police work. The Invega and Seroquel cost $739 a month, which Webb ordered the Municipal League to cover.

“I have been surviving on physician’s samples,” Forte said. “This will make a tremendous difference.”

Because he is on unpaid medical leave, Forte is eligible to receive unemployment benefits. He gets about $1,600 a month, he said.

But Forte’s time as a police officer is almost at an end. Arkansas Local Police and Fire Retirement System Executive Director David Clark called Forte on Thursday to tell him his request for a disability retirement had been approved.

“Once he and the city set an end date, that’s all that’s left,” Clark said.

Forte said he wishes his law-enforcement career could have ended a different way.

“I’m sorry it came down like this,” he said. “It didn’t have to.”

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