W. Va Claimant’s PTSD Claim Fails in Spite of Her Use of Earlier Case as a “Template”

In a deeply divided (3-2) memorandum decision, the Supreme Court of Appeals of West Virginia affirmed a decision rejecting the claim of a cashier at a gaming parlor who contended that she had developed PTSD after being robbed at gunpoint [Black v. Same Old Place, Inc., 2021 W. Va. LEXIS 54 (Feb. 19, 2021)(memorandum decision)]. Construing W. Va. Code § 23-4-1f, which generally disqualifies claims in which an alleged mental injury is caused by nonphysical means, the court was unpersuaded by the cashier’s contention that her condition was manifested in demonstrable physical symptoms. The court acknowledged that the cashier, who initially was unrepresented by counsel, testified that she had used an earlier decision, UPS v. Hannah, 2013 W. Va. LEXIS 1165 (Oct. 25, 2013) (memorandum decision), as a "template" for her own claim, but found Hannah distinguishable.

Background

The claimant worked as a cashier at a gaming parlor. When a customer came to the parlor, she or another employee had to “buzz” them through a locked door. On the day in question, the claimant buzzed in a prospective customer wearing a hoodie. The person told the claimant that it was a robbery, but initially the claimant thought the man was joking. She later testified the “customer” then insisted he was not joking, and that he pointed a short shotgun at her. The claimant also testified that the robber grabbed her keys and stole her vehicle, as well as $623.

The claimant initially sought medical treatment, reporting that she had problems sleeping, eating, and leaving her house. The claimant was assessed with PTSD, unspecified, as a possible diagnosis. She was advised to get a further evaluation by a mental health professional.

Workers' Comp Claim

A claims administrator rejected the claim on the basis of W. Va. Code § 23-4-1f. The claimant, without the benefit of counsel, timely protested the claims administrator's decision. In her protest letter, the claimant indicated that her condition manifested by “demonstratable physical symptoms, including sleep disturbances, nightmares, flash backs, jumpiness, headaches, vomiting, irritability, anger, and fatigue.”

The claimant subsequently obtained legal counsel. Eventually, the claims administrator's Order was reversed by the Office of Judges (“OJ”), which found the claim compensable for PTSD. The OJ characterized the claimant's incident as “extreme” and concluded that her scenario fell within the same analysis as Hannah, cited above.

The Board of Review found that the OJ’s final analysis and conclusions of law were clearly wrong. The Board concluded that the facts in Hannah were very different from those in the instant claim. The Board found that the claimant had not established the physical component necessary in order to hold her claim compensable. For example, unlike the situation in Hannah, no shots were fired in the claimant’s presence. She was not abducted at gunpoint.

Supreme Court of Appeals Decision

The high court found the evidence presented in the case did not present the extreme events set forth in Hannah. The court indicated the facts in Hannah were unique, and that the compensability finding in that case rested on the assaultive force of the gunshot and the physical abduction of the driver. Here, the situation was quite different. The court found that the claimant never made any allegation of physical injury during the incident until her deposition (following her retention of legal counsel). The court concluded that because the facts of this case were easily distinguishable from Hannah, the Board did not err in concluding that the claimant failed to establish by a preponderance of the evidence that the claims administrator improperly rejected her claim.