Court Holds Psych Injury Need Not Be Immediately Apparent

Friday, March 22, 2013 | 0

In Chicago Transit Authority v. IWCC (2013 IL App.1st 120253 WC, opinion filed March 11, 2013), the Illinois Appellate Court, Workers’ Compensation Division upheld an Illinois Workers' Compensation Commission decision awarding workers’ compensation benefits for psychological injuries.

Petitioner was a bus driver, and on March 18, 2010, after she began driving following a traffic light turning green, she heard a passenger yell “somebody was chasing and hitting the bus and she thinks he was hit.” Petitioner exited the bus and saw a person lying near the curb almost in a fetal position, moving his mouth. An ambulance removed the pedestrian from the scene.
 
Subsequently the Petitioner went to a Transit Authority garage and prepared an accident report. She testified at this time she learned the pedestrian had died and recalled feeling “[s]haken and a little depressed.” After this incident Petitioner apparently had trouble sleeping, but initially attempted to cope with it on her own. Following a hearing that may have found the bus driver partially liable for the event, Petitioner was terminated on April 28, 2010. On May 28, 2010, Petitioner presented for treatment with a clinical psychologist noting she felt depressed because of the death of a person. A diagnosis was provided of adjustment disorder with mixed anxiety and depressed mood. The psychologist noted Petitioner was unable to work due to psychological trauma from the accident.
 
The matter proceeded to trial and the arbitrator held she drove the bus that struck and killed a person. The image of the victim lying curled up on the street, with his mouth silently moving, continued to come back into her mind. This certainly falls within the holding of the Illinois Supreme Court’s landmark holing on psych claims, Pathfinder Co. v. Industrial Comm'n. The arbitrator noted she suffered a sudden severe emotional shock traceable to a definite time and place and cause which caused psychological injury or harm within the meaning of the Illinois Workers' Compensation Act.
 
On administrative appeal of the arbitrator’s finding of compensability, a majority of commissioners affirmed the arbitration decision and the Transit Authority appealed to the Circuit Court which confirmed the commission’s decision. The Appellate Court decision begins with the general rules regarding psychological injuries in Illinois workers’ compensation cases.
 
In Illinois, psychological injuries are compensable under one of two theories, either "physical-mental," when the injuries are related to and caused by a physical trauma or injury (Matlock v. Industrial Comm'n), or "mental-mental," when the claimant suffers a "sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm though no physical trauma or injury was sustained." (Pathfinder).
 
The facts of this matter involved a mental-mental injury as there was no physical trauma or touching to this Petitioner. The Transit Authority posed the argument a claimant may recover workers' compensation benefits under Pathfinder only if she proves a sudden, severe emotional shock caused her to suffer a psychiatric injury that was "immediately apparent." This assertion was rejected by the appellate majority. The court noted Pathfinder did not require a petitioner to prove the emotional shock was “immediately apparent” as it is the emotional shock which needs to be sudden, not the ensuing psychological injury. Thus a claim may be compensable under this theory even if the psychological injury does not manifest itself until sometime after the shock.
 
The appellate court opinion does indicate evidence of a delay in seeking treatment for alleged psychological injuries may still be relevant and depending on the facts could “undermine the inference that the claimant suffered a severe emotional shock that caused a psychological injury.” Turning to the facts at hand, the court noted Petitioner drove a bus which struck and killed a pedestrian and she watched the pedestrian dying on the side of the road. According to the court, this is exactly the type of "exceptionally distressing" and "uncommon" work-related experience that may support an award under Pathfinder. As such, the evidence in the instant case was sufficient to support a reasonable inference Petitioner experienced a sudden, severe emotional shock traceable to a definite time, place, and cause, which caused psychological injury or harm. Accordingly, the commission's finding was not contrary to the manifest weight of the evidence.
 
One appellate justice dissented, indicating the claimant in Pathfinder had an immediate reaction of fainting when pulling her co-worker’s severed hand out of a punch press whereas the record here contained no evidence of any immediate mental or emotional disturbance when Petitioner witnessed the victim lying near the curb. We join with that dissent to confirm our concern is the timing of the onset of the claim—once claimant went to a hearing and lost her job, it then appeared clear the best path for a replacement “position” or income was this workers’ comp claim. To the extent there is no question a pedestrian passed from this event, should it be guaranteed the employee is entitled to workers' compensation benefits?
 
Workers’ compensation claims for psychological injuries are relatively uncommon, but it appears this court has possibly opened the door for certain situations being compensable as it has indicated such injuries need not be immediately apparent. Should a psych claim come across your desk, we would be happy to consult you in determining an effective plan of action to resolve it in your best interests taking this recent decision into account.

Dr. Robert L. Weinmann is a practicing neurologist in San Jose, Calif. This column was reprinted with his permission from his Politics of Health Care blog.