O'Gorman: PTSD Claim Fails Due to Treatment Delay
Tuesday, August 29, 2017 | 427 | 0 | min read
In RPRD Dykman Inc. v. Illinois Workers’ Compensation Commission, the claimant was an over-the-road truck driver who witnessed a horrific accident en route to making a delivery.
The claimant was driving truck north on Interstate 57 when a fellow truck driver (according to the police report) caused a crash that resulted in a fatality. The claimant continued to work and drive for six months after the accident but eventually sought treatment with a psychiatrist when he no longer felt able to continue driving due to post-traumatic stress disorder.
In claims such as this, we always point out there is no reason a truck driver couldn’t transition to logistics or desk work with his training and background as a trucker. There are literally thousands of such jobs in the Illinois labor market. Obviously, this claimant simply wanted to go on the dole, like most PTSD claimants.
The claimant testified that he felt “in shock,” “sick” and “horrified” from what he witnessed at the scene of the accident. Claimant did not treat with anyone until six months after the occurrence and failed to return to work as a truck driver after treatment. He began a failed job search, alleging he could not return to work in his pre-injury employment capacity.
After evidence was taken, the arbitrator found that the claimant did not meet the burden of proof required to establish a compensable psychological injury under Pathfinder v. Industrial Commission, relying mainly on a similar ruling in General Motors Parts Division v. Industrial Commission, which interpreted Pathfinder as being “limited to the narrow group of cases in which an employee suffers a sudden, severe emotional shock which results in immediately apparent psychic injury."
In Pathfinder, a supervisor was next to a worker whose hands were amputated. The supervisor suffered immediate psyche issues, as one might imagine. We have no idea why someone would fight work-related psyche care for that shocking event.
In this ruling, the arbitrator essentially created two elements necessary for proving a compensable injury in its review and application of General Motors: a sudden, severe emotional shock, and an immediately apparent and lasting psychic injury.
The arbitrator found that the claimant clearly may have suffered a sudden and severe emotional shock. However, the six-month delay in treatment failed to appropriately establish an “immediately apparent psychic injury,” as required by Illinois workers' compensation law.
A petition for review was timely filed along with a motion to cite authority asking the commission to take judicial notice of the appellate court’s decision in Chicago Transit Authority v. Workers’ Compensation Commission — an opinion rendered after the arbitrator’s decision but before the commission’s decision.
The appellate court, Workers' Compensation Division, in Chicago Transit Authority may have ended the absolute necessity that a “immediately apparent psychic injury” be proved. The claimant in Chicago Transit Authority was a bus driver who was involved in a fatal accident. He was able to easily establish a sudden, severe emotional shock but did not seek psychiatric treatment until two months after the incident.
In this claim, the appellate court distinguished Chicago Transit Authority from General Motors on the basis of a gradual development of psychic injury in the latter, rather than a single identifiable incident.
The appellate court in Chicago Transit Authority noted:
Under Pathfinder, the emotional shock needs to be “sudden,” not the ensuing psychological injury. Thus, if the claimant shows that she suffered a sudden, severe emotional shock which caused a psychological injury, her claim may be compensable even if the resulting psychological injury did not manifest itself until sometime after the shock. To the extent that General Motors holds otherwise, we reject that aspect of the court's holding and decline to follow it.
The commission then rendered a decision affirming and adopting the decision of the arbitrator. However, it provided no comment on the application of the decision in Chicago Transit Authority.
The case was appealed to the circuit court, which found the commission’s failure to address the apparent change in case law allowed for a de novo reviewing of the case and resulted in an incorrect application of case law to the facts.
The circuit court reversed the decision of the commission and directed the commission to award benefits. The commission awarded 5% of a person as a whole and 34-5/8 weeks of temporary total disability, refusing to award the claimant wage differential benefits. The claimant and respondent appealed, and the circuit court affirmed the decision of the commission, resulting in an appeal to the appellate court, WC Division.
The appellate court answered the question of whether benefits are owed in this instance by stating correctly, “We don’t know.” The appellate court pointed to the one judicial body to make the controlling ruling: the Illinois Workers’ Compensation Commission.
The appellate court found that the circuit court, in remanding the matter to the commission with directions to award benefits, improperly supplanted the function of the commission in finding certain facts to be true.
The appellate court agreed that the commission’s simple adoption of the arbitration decision was an improper application of law in failing to address Chicago Transit Authority. However, the appellate court felt that the remand should not have included directions to award benefits. Instead, the circuit court should have remanded the issue to the commission with instructions to simply address the new case law and come to a conclusion itself.
The question of whether benefits should be awarded to a truck driver who claims to have suffered an unexpected and severe shock but then waits six months to treat for a psychic injury is still unclear. The defense team here will be watching to see if six months is “immediately apparent” enough to warrant an award of benefits.
Timothy O’Gorman is an attorney at Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with permission from the firm's client newsletter.