“Mental-Mental” Claims: Within Which Category Does West Virginia Fall?

As you may know, later this month (Nov. 20–22), attorneys, academics, claims managers, risk consultants, and others will gather at the 22nd Annual National Workers’ Compensation and Disability Conference & Expo, at Mandalay Bay in Las Vegas. I’m on two legal panels. The first, “How States Handle Post-Traumatic Stress Disorder and Mental Injuries,” will be held during the afternoon of November 20. On the panel with me will be my close friend and writing colleague, Lex Larson, California attorney, Bob Rassp, and our fine moderator, Chicago attorney, Matthew B. Schiff. We hope to sort out some of the issues at play in handling and adjusting mental injury claims.

As a result of one of our planning sessions, I endeavored this weekend to create a chart showing how the states handle mental injury claims, particularly those claims that fall within the so-called “Mental-Mental” category, a phrase seized upon by Arthur Larson some 50 years ago to describe those mental injuries, such as PTSD, that are the result of a mental, rather than a physical, stimulus [see Larson’s Workers’ Compensation Law, § 56.01 et seq.].

A recent memorandum decision from the Supreme Court of Appeals of West Virginia, United Parcel Serv., Inc. v. Hannah, 2013 W. Va. LEXIS 1165 (Oct. 25, 2013), shows just how difficult such a categorization project can be. On the surface of things, West Virginia seems to be one of a number of jurisdictions (Connecticut, Idaho, Kentucky, Montana, Ohio, Oklahoma, and Wyoming are among others) whose statute, W. Va. Code § 23–4–1, bars mental injury claims that lack a causative physical component. The last sentence of the statute is unusually explicit, stating:

… It is the purpose of this section to clarify that so-called mental-mental claims are not compensable under this chapter.

W. Va. Code § 23-4-1

The Hijacking

But aren’t they? On the day in question, a UPS driver, Hanna, was accosted and his truck was hijacked by a man with a rifle. The gunman first fired a shot in the air near Hannah’s driver side door. He then threatened Hannah’s life and forced Hannah to drive him towards the police station. Along the way, the gunman saw a police cruiser parked at a gas station and forced Hannah to pull over. The gunman then took the keys to the truck, stepped out of the passenger side door, and fired a shot at the ground. Apparently Hannah was able to escape and hide behind a nearby store. Police officers subsequently shot and killed the gunman.

The Claim

Sometime after the incident, medical personnel diagnosed Hannah with PTSD resulting from the hijacking. One doctor reported that Hannah was experiencing multiple symptoms of PTSD, including sleep disturbances, nightmares, hyper-vigilance, and depression. When Hannah sought workers’ compensation benefits, his claim was rejected by the claims administrator as a psychiatric injury barred by W. Va. Code § 23–4–1f. The Office of Judges affirmed the claims administrator’s decision, but the Board of Review reversed.

The Office of Judges found that Hannah had not sustained any physical injuries as a result of the hijacking and that PTSD was the only diagnosed condition resulting from the incident. While the Office of Judges recognized that Hannah was experiencing sleep disturbances and jumpiness, it indicated that the hijacking did not result in any physical injuries or trauma. The office also determined that Hannah’s condition was not caused by physical means but by the nonphysical, psychological trauma that he suffered during the hijacking.

The Board of Review adopted the findings of the Office of Judges, but reversed its Order. The Board of Review concluded that the claim was compensable and was not barred by § 23–4–1f. It pointed to the physical nature of the incident, noting that Hannah was physically detained, that he was assaulted by the sound of gunfire, and stripped of his keys. The Board of Review concluded that Hannah received a personal injury in the course of and resulting from his employment. UPS appealed.

The Memorandum Decision

The state high court agreed with the conclusion and reasoning of the Board of Review, finding that Hannah’s claim for PTSD was not barred by W. Va. Code § 23–4–1f because his condition was “manifested by demonstrable physical symptoms, including sleep disturbances and jumpiness” [citing Bias v. Eastern Associated Coal Corp., 220 W. Va. 190, 194, 640 S.E.2d 540, 544 (2006)].

The Takeaway

I’m certainly no medical expert; I have no supporting data. I wonder, however, what percentage of mental injury claimants exhibit sleep disturbances and jumpiness? I bet the percentage is high. Does Hanna mean that if a West Virginia claimant is debilitated by those or similar maladies, his or her claim for PTSD will be sustained? Without in any way trying to minimize the mental trauma that Hanna experienced when he was accosted by the gunman, isn’t the claim in Hanna exactly the sort of claim that is supposed to be barred by West Virginia’s statute?

How explicit could the legislature have been? Faced with the statute’s prohibition against recovery in mental-mental cases, the Board of Review, backed up by the West Virginia high court, apparently saw a “physical” injury in spite of the fact-finder’s determination to the contrary. As I try to put my chart together, showing where each of the state’s falls on the issue of mental-mental claim recovery, where do I put West Virginia? I’d love to hear from you.