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Psychological injury compensable even without risk of harm

FA longshoreman who was traumatized when his forklift caused a grisly fatal injury to a co-worker is eligible for workers’ compensation benefits even though he was not himself at risk of harm in the accident, the Court of Appeals of Virginia ruled.

The court’s March 17 decision reverses findings by both a deputy commissioner and the full state Workers’ Compensation Commission. The court said the commission improperly added the risk element to the test for psychological injuries in the absence of physical harm.

Samuel P. Jackson was driving a forklift on the job for Ceres Marine Terminals on March 28, 2011, when he accidentally struck a co-worker.

Alerted to the accident, Jackson helped other workers as they lifted the forklift off of the victim, Paula Belamy. Her leg had become wrapped around the rear axle, according to the court opinion.

When other workers were able to drag the victim from under the forklift, Jackson could see she was “pretty mangled.” He watched as rescuers sought to help the victim before she was placed in an ambulance.

A superintendent described it as a “gruesome scene.” Belamy died from her injuries.

The next day, Jackson saw his primary care physician who recorded that he was “acutely extremely upset, stressed, calmer now.”

Jackson was treated by several providers. More than four months after the accident, a psychiatrist diagnosed Jackson with post-traumatic stress disorder and major depression.

Another psychiatrist – the third to examine Jackson – concluded Jackson did not suffer from PTSD because he was never in danger.

Jackson sought medical benefits, lost wages and compensation for permanent disability. The employer said Jackson did not suffer a compensable injury by accident, among other defenses.

At issue was the test for purely psychological injury as a result of a “sudden fright or shock.”

The deputy commissioner ruled the circumstances must place the claimant in “imminent physical danger” for such injuries to be compensable.

The full commission, in a 2-1 decision, decided the circumstances must place the claimant “at risk of harm.”

The three-judge Court of Appeals panel found no support for a “risk” element in the case law.

“Unlike the commission, we do not find this specific requirement for compensability in prior case law of the Supreme Court of Virginia or our Court,” wrote Judge Marla Graff Decker.

The court pointed to a 2014 decision by the Court of Appeals where a delivery truck driver found a dead body while delivering a package at a residence. The circumstances involved a “really really gruesome scene,” according to the driver’s description.

The Court of Appeals “found that the sudden shock or fright of the event in that case was sufficient for the claimant’s PTSD to be compensable,” Decker wrote.

“Although a risk of harm to a claimant may be a factor in cases where the compensability of psychological injuries is evaluated, our Court has never held that this factor is a requirement, and we decline to do so now,” the court said.

The case is Jackson v. Ceres Marine Terminals Inc.

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