Written By Joseph Smith, Esq.
Edited by Rachel Riordan, Esq.
Most workers’ compensation claims are claims that involve bodily injury. However, certain diseases can also be covered under workers’ compensation. These “occupational disease” claims are defined in Va. Code § 65.2-400 and require that a claimant prove the disease arose out of the employment based upon several factors that establish the employment caused the claimant to contract the disease, rather than an exposure where the general public was equally at risk. Occupational disease claims must be proven by a preponderance of the evidence. Additionally, certain “ordinary disease of life” claims, which includes exposure to diseases to which the public is exposed outside of the employment, can also be compensable occupational diseases pursuant to Va. Code § 65.2-401. However, ordinary disease of life claims have to be proven by clear and convincing evidence, which is a higher burden than the preponderance of the evidence required for occupational disease claims.
Claims for post-traumatic stress disorder (PTSD) have become commonplace and are difficult to defend, as the symptoms can be quite subjective in nature. PTSD can be covered as either an occupational disease or an ordinary disease of life and the Commission must determine whether the PTSD was caused by the employment or an outside exposure. In the context of occupational disease claims, the Commission has traditionally defined “the employment” not as an employer-employee relationship but instead as “work or process which the employee has been engaged.” Pocahontas Fuel Co. v. Godbey, 192 VA. 845, 852, 66 S.E.2d 859, 864 (1951).
The Court of Appeals recently addressed this issue in City of Norfolk v. Munker, No. 1058-17-1 (Va. Ct. App. Jan. 9, 2018). In Munker, the claimant was a firefighter paramedic, which required him to respond to a “lot of bad calls,” including many encounters with death and gore. The claimant had also twice used his training as a firefighter paramedic to volunteer with the Hurricane Katrina relief efforts, which he was allowed to do under his employment contract but not required to do. The claimant was working for and being paid by the federal government, not the employer, while participating in the Katrina relief efforts. During these trips, he witnessed disturbing scenes and was even threatened at gunpoint. Afterwards, the claimant began developing stress and anxiety when faced with returning to his firefighter paramedic position. He was diagnosed with PTSD and the diagnosing physician attributed both his work as a paramedic firefighter, as well as his Hurricane Katrina relief efforts, “cumulatively led” to his PTSD.
The claimant argued that his PTSD was an occupational disease arising out of his employment. Alternatively, he argued that his PTSD was a compensable ordinary disease of life pursuant to § 65.2-401. The Deputy Commissioner denied the claimant’s claim for benefits under both theories because his diagnosis was based upon exposures to traumatic events from his work for the Employer and his Hurricane Katrina relief efforts. Therefore, he failed to prove that his condition did not result from conditions outside of his employment. The Full Commission reversed the Deputy Commissioner, awarding benefits due to the fact that the claimant would not have been involved in the Hurricane Katrina relief but for his employment as a firefighter paramedic. The Court of Appeals reversed and remanded the Full Commission’s opinion, finding that the Full Commission did not clarify whether it applied the proper definition of “employment.” The Court noted that the Commission had found that the claimant’s post-Katrina relief was possibly due to his training as a firefighter paramedic, but it did not make a specific finding that the post-Katrina work was the “work or process” he was engaged to perform as a firefighter paramedic. The Court remanded the decision back to the Deputy Commissioner to resolve that issue.
The Commission has yet to publish its opinion on remand so we have not been provided an answer to how they will address this issue. It will be interesting to see how the Commission categorizes Munker’s substantial exposure during the Katrina relief on remand. The claimant was working directly for and being paid by the federal government while participating in the Katrina relief efforts. His employer allowed him to go on these trips, but did not require him to do so. Thus, it appears the Katrina relief was not the “work or process” he was hired to perform. Notably, his treating physicians opined that that the Katrina trips contributed to his PTSD so the only question is whether those trips are considered part of his “employment.” Based upon the evidence outlined in the opinion, it appears the Deputy Commissioner should find that the Claimant’s PTSD arose from both employment and non-employment exposures and deny the claim.
The case poses an important challenge to claimants seeking coverage for occupational diseases, especially in regards to mental conditions such as PTSD. For practical purposes, the context of the claimant’s “employment” should not be overlooked when an occupational disease is claimed. As the Court of Appeals explains, it is not enough for the claimant to show that his contract of employment exposed him to the disease. He must show that that he was engaged in the work he was hired to perform when he was exposed to the disease for it to be found compensable. If you have a claim where a claimant may have been exposed to an occupational disease performing duties he was not hired to perform, there is potential to defend it based upon the line of cases cited in Munker.
If you need help analyzing this complex issue for a particular claim, our team is happy to help.