Written by Francie Belton Georges, Esq.
Edited by Rachel A. Riordan, Esq.
In Virginia, post-traumatic stress disorder (“PTSD”) is considered a psychological injury that may be compensable as an injury by accident in two circumstances. The first is if the PTSD develops as a result of a compensable physical injury by accident; for example, when an employee is injured in an explosion at work and then develops PTSD as a result of the traumatic event. This can also occur in the reverse, wherein the claimant suffers a psychological injury that then serves to aggravate a physical condition or manifest itself in a physical condition. In instances like this where the employee has a physical injury along with the psychological injury, the Commission evaluates whether the psychological injury is causally related to the physical injury to determine if an award of benefits is appropriate. If so, the employee can receive benefits for the psychological injury. However, in instances where the injury is only psychological and there is no accompanying physical injury, the Commission evaluates whether the claimant’s psychological injury is causally related to an “obvious sudden shock or fright arising in the course of employment.” Chesterfield County v. Dunn, 9 Va. App. 475, 477 (1990).
In a recent opinion, the Full Commission evaluated a situation wherein a registered nurse, who provided at home care to her patients, was entitled to benefits for PTSD with no accompanying physical injury that occurred when a tornado touched down while the nurse was providing care at a patient’s home. Mayberry v. Gentiva Health Serv. USA, LLC, JCN VA00001211550 (June 6, 2017). The nurse arrived at the claimant’s home. An additional visitor was present in the home. The nurse heard a noise that sounded like a freight train. She looked outside and could see a tornado and realized that the patient’s home was inside the rotation of the tornado. The visitor ran out of the room and screamed “run to the basement.” The nurse’s patient, however, was disabled, on oxygen, used a walker and was unable to get to the basement. So, the nurse chose to remain with her patient and threw her body over that of the patient to protect her from the impact of the storm. As she did so, the windows of the house imploded, debris was thrown around inside the home, and the nurse thought she and the patient were going to die. Fortunately, the nurse did not suffer any physical injury, but she did develop PTSD that affected her ability to work.
The Commission agreed that the events qualified as a sudden shock or fright sufficient to constitute an injury by accident. However, the employer challenged the compensability of the claim based on the fact that the claimant’s PTSD was caused by “natural forces” or an Act of God – not something arising out of or incident to the claimant’s employment as a home health nurse. They further argued that the claimant’s injury did not arise out of the employment because her job duties as a home health nurse did not entail trying to protect a patient from the effects of a tornado. This was purely a voluntary act and therefore, did not qualify the claimant for worker’s compensation benefits.
In Virginia, an injury caused by natural forces (like a tornado) “without the intervention of any other agency or instrumentality” is not compensable. Lucas v. Federal Express Corp., 41 Va. App. 130 (2003). However, when the nature of the employment or some condition or environment therein puts the employee at greater exposure or a peculiar risk to the force of nature, then the injury may be compensable. The test is whether the employment can be said to have collaborated with the claimant’s injury. Id.
In the nurse’s case, the Commission held that her decision to stay with her patient and her attempt to protect the patient from the impact of the tornado was “reasonably incident” to her duty to the employer. The nurse’s decision to stay with the patient under these circumstances created an additional risk of employment that benefited and served the interests of the employer and the Commonwealth. As such, the nurse was entitled to benefits for her PTSD claim.