Physical Stimulus resulting in Mental Injury

An injured employee may establish entitlement to workers' compensation total disability benefits where a physical stimulus (which is not disabling) results in a disabling mental condition.  The burden of proof in this Physical/Mental injury is unlike the Mental/Mental injury standard.

In a Mental/Mental claim, the injured employee must establish proof of "abnormal working conditions".  In a Physical/Mental injury claim, the employee must establish the psychological injury is the result of a triggering physical event. The injury must arise in the course of employment. If the causal relationship is not clear, the employee must provide unequivocal medical evidence to establish this relationship.

A recent case reported a claim where a truck driver, with no history of prior mental conditions, was involved in a motor vehicle accident while driving in the course of his employment. The pertinent facts are significant. An oncoming vehicle veered into Employee's lane and continued towards him, despite attempts to avoid a head-on collision. The trucker stated this driver was pressed against the windshield, looking at him. A police report noted the deceased driver was said to be on his way to the psych ward and he had texted suicidal messages that day.

Employee's truck was forced down an embankment, through some trees. He initially declined medical treatment. He was taken to the hospital several hours later and diagnosed with discomfort of the left chest wall, right wrist and left shoulder. He was evaluated and released.

This accident was on June 1, 2009. Employee continued to work, but did not drive for nearly 6 weeks as the truck was destroyed. He resumed regular driving until December 2, 2009, the date of his normal winter lay-off. In January 2010 he told his supervisor he did not want to drive any more. In March 2010 he began treatment for PTSD (post traumatic stress disorder). When he returned to work in April 2010, it was in a lower paying laborer position. Employee filed a claim petition, which was granted by the WCJ. Employee was awarded benefits for a work-related PTSD, a physical/mental injury resulting from the June 1, 2009 MVA.

SEE: New Enterprise Stone & Lime Co. Inc.and PMA Management Corporation v. WCAB (Kalmanowicz) No. 1492 C.D. 2012 filed December 6, 2012.

The Commonwealth Court decision, authored by Judge Anne E. Covey, recounted the employee's symptoms since the MVA, including difficulty sleeping, nightmares where he did not survive the MVA and symptoms of sweating and shaking when vehicles crossed the center line. He felt he could no longer drive.

Employee's medical expert Richard E. Fischbein M.D. testified that time-delay onset of sympyoms was not uncommon for this diagnosis. The WCJ found credible testimony that Employee was disabled from jobs that placed him in proximity to trucks and vehicular traffic. The WCJ found the MVA was a "triggering physical event"  of the mental injury and disability.  Appellate review found substantial evidence supported this finding.

The Commonwealth Court stated " it is clear that Claimant suffered a significant physical injury stimulus in the form of the head-on collision causing the death of the other driver before Claimant's eyes and disabling his loaded tractor-trailer causing it to descend an embankment. Claimant's intimate involvement in the fatal accident is sufficent to constitute a 'physical stimulus' to support a compensation award". (slip opinion p. 8).

 Employer's argument that a mental/mental standard should apply, was rejected. The Court noted several mental/mental cases and their absence of physical stimulus or triggering physical event.

PRACTICE POINTERS

#1. It is not necessary to have a "disabling" physical condition as a result of the physical stimulus or event. In a Physical/Mental claim, the disablility may be limited to the mental condition  alone.

#2. Where there is a time-delay in symptom onset (or more accurately a time delay in medical treatment of symptoms) and the absence of physical disability, there should be a reasonable basis (no attorney fee award) to contest the disability claim. In this case there was some conflicting medical evidence (DRs. Zurad & Andres) to establish there were no medical conditions that precluded a return to truck driving duties.

Retirement & TTD Suspension without Agreement or WCJ Order

An Employer successfully defended a Petition for Penalties, where Employee's total disability benefits were suspended upon acceptance of Employer's "Special Attrition Plan" retirement pension benefits.

Employee argued the Employer violated the work comp act by unilaterally suspending total disability benefits without a compensation agreement or WCJ order. In the Employee petition, the WCJ found the Employee was not credible regarding his intention to retire on July 1, 2006 when he signed the Special Attrition Plan documents, which included language that he was not under duress and acknowledged that he would not be entitled to "disability pay of benefits".
He was paid a lump sum of $35,000, in addition to the pension benefits.

WCJ found Employer's witnesses credible, in support of a finding that Employee voluntarily retired from the workforce. WCJ retroactively granted a suspension of work comp benefits as of July 1, 2006, the date of Employer's unilateral suspension. As no work comp benefits were due to Employee after July 1, 2006, WCJ did not assess a penalty for the violation of the act (finding Employee met his burden of proof in this regard).

Commonwealth Court affirmed the WCJ order. Primary reasoning, was that WCJ could take appropriate action based upon evidence presented, as strictness of pleadings is not required in work comp cases. (a tenet often cited to provide employee's relief).
An important consideration is whether Employee had notice of Employer's intention to request a suspension of benefits and the opinion recited the evidence in support of "notice" to Employee. In the absence of prejudice to Employee, there was notice and an opportunity to defend against the suspension request.

Judge Pellegrini filed a dissenting opinion, emphasizing that Employer violated the act and should be required to file a petition. He would award benefits and penalties during the illegal suspension.

#1. Better Practice would be to concurrently file a work comp suspension petition and coordinate the two programs.
#2 Best practice would be to file a petition to seek approval of a Compromise and Release to "close out" the work comp benefits.
#3. Another retirement/ withdraw from workforce case from the Commonwealth Court, following the "general rule" that one looks to the totality of circumstances surrounding the retirement and acceptance of a pension.

SEE: Krushauskas v. WCAB (General Motors)