Obtaining Virginia workers compensation benefits for a purely psychological injury is difficult. Usually an injured employee must have also suffered a physical injury by accident to have a decent chance of receiving benefits for a psychological condition. But a recent decision by the Virginia Workers’ Compensation Commission affirmed an award of benefits to a claimant who was not physically injured.

 

The claimant was a registered nurse who provided care at the patient’s home

 

On February 24, 2016 Rhonda Mayberry, a registered nurse, was providing care at a patient’s home. The patient used a walker and was unable to ambulate effectively.

 

While providing care Mayberry heard a noise that sounded like a freight train. She looked outside and noticed that her and the patient “were inside the rotation of the storm.” A tornado was touching down.

 

Because the patient could not make it to the basement due to a medical condition, Mayberry chose to stay with the patient and to protect her from the storm’s impact. Mayberry shielded the patient with her own body. The storm caused windows to implode and glass to fly throughout the room. Mayberry thought she was “going to die that day.”

 

Mayberry subsequently began to experience difficulty working. She was referred to her employer’s employee assistance program (“EAP”), which led to her diagnosis of post-traumatic stress disorder (PTSD). Her claim for workers compensation benefits followed.

 

The defendants argued that the claimant’s PTSD was caused by “natural forces” or an “Act of God” which did not arise out of the claimant’s employment. 

 

The Commission has held that to be covered under Virginia workers compensation, “a purely psychological injury must be causally related to … an obvious sudden shock or fright arising in the course of employment.” Chesterfield Cnty. v. Dunn, 9 Va. App. 475, 477 (1990). PTSD is a psychological injury that may be compensable under such circumstances. See Burlington Mills Corp. v. Hagood, 177 Va. 204, 211 (1941).

 

In Mayberry’s case the defendants conceded that the Mayberry’s ordeal qualified as a sudden shock or fright sufficient to constitute an accident causing her PTSD. They challenged, however, whether the PTSD was compensable because it was caused by natural forces. Further, they argued that Mayberry’s PTSD did not arise out of her employment because her job duties did not include protecting the patient from the effects of tornadoes.

 

The deputy commissioner awarded the case.

 

After an evidentiary hearing the deputy commissioner found that Mayberry sustained a sudden shock or fright arising in the course of her employment and developed PTSD as a result. She further stated that:

 

In the present case the patient’s inability to walk and the claimant’s responsibility for her patient prevented the claimant from proceeding to the safety of the basement of the house … the claimant’s job duties required the claimant to expose herself to the force of the storm, then the employment has increased the risk of injury and the injury should be compensable.

 

The defendants appealed, arguing that the tornado was not a risk of Mayberry’s employment, that her job duties did not require her to stay with the patient during the storm, and that the general public was exposed to similar risks as Mayberry.

 

The full Commission affirmed the award of benefits.

 

On appeal the full Commission outlined what an injured worker must prove for an injury caused by an act of God to be compensable.

 

An injury caused by a natural force “without the intervention of any other agency or instrumentality” is not covered under the Workers’ Compensation Act unless “the nature of the employment, or some condition, or environment therein, brings into existence a special or peculiar risk to the disastrous force of nature …” Lucas v. Federal Express Corporation, 41 Va. App. 130 (2003). In other words, the Commission will view whether the employment collaborated with the act of God to cause the injury or death.

 

In Mayberry’s case the Commission found that Mayberry’s attempt to protect her patient from the tornado’s impact was an employment-related component that satisfied that the arising out of element of compensability. Mayberry knew that her patient, who required not only a walker but also an oxygen tank, would not be able to make it to the basement. Mayberry therefore shielded her patient and, as a result, was exposed to the storm. Her decision to stay with the patient was incidental to her duty to the employer and benefited the employer.

 

Bottom Line

 

This is a good decision for injured workers in Virginia and we’ll let you know if the employer and its insurance carrier appeal this decision to the Court of Appeals of Virginia. Mayberry did what she thought was right for both her employer and her patient. As a result she was exposed to the terrifying storm directly and developed PTSD. The Commission made the right decision.

 

Have a question about your workers compensation case? Call, text, or email Corey Pollard for a free consultation. We’ll help you get the workers compensation benefits and lump sum VA workers comp settlement you deserve.

 

 

 

 

 

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