Occupational Diseases and Mental Health Claims – How Exposure Outside the Workplace Constitutes “Employment”

In 2005, Hurricane Katrina devastated the Gulf Coast with unprecedented flooding and damage. In its’ aftermath, individuals from across the country went to New Orleans to assist with relief efforts. Thirteen years later, Hurricane Katrina’s impact is now being felt in the Virginia Workers’ Compensation community.

The Virginia Workers’ Compensation Commission recently issued an Opinion that concerned a claimant firefighter paramedic who alleged post-traumatic stress disorder (PTSD) as an occupational disease in Munker v. City of Norfolk, JCN VA00001035404 (May 17, 2018).The claimant, while employed as a paramedic for the City of Norfolk, traveled to New Orleans to provide relief on his own accord. His travel to New Orleans was not done for his employer or under his employer’s direction. The claimant alleged that he had PTSD as an occupational disease from traumatic events he witnessed both as a paramedic for the employer and while in New Orleans.

The Commission previously held that the claimant proved his PTSD was an occupational disease and based that decision on the claimant’s traumatic experiences in New Orleans and while working for the employer.The employer appealed on the grounds that the PTSD was not an occupational disease because it was based, in part, on the claimant’s experiences in New Orleans.  On appeal, the Court of Appeals remanded the case back to the Commission to determine whether the trauma the claimant experienced during his post-Hurricane Katrina relief efforts in New Orleans was “exposure outside of the employment” under Virginia Code § 65.2-400(B), the relevant statute for occupational diseases. The Commission answered this question by finding that the claimant’s relief efforts did not constitute exposure outside of his employment.

Notably, the Commission found that the fact the claimant was not working for his employer while in New Orleans did not dictate whether the traumatic events occurred “outside of the employment.” The Commission relied on a definition of “employment” for purposes of Virginia Code § 65.2-400(B) defined in Pocahontas Fuel Co. v. Godbey,192 Va. 845, 66 S.E.2d 859 (1951), which defines employment as the work or process in which the employee has been engaged and not to his contract with an employer to engage in it.As such, the Commission noted the relevant test is what the claimant was engaged in and not for whom he was doing it.

Mental health claims, though not common, do arise in Virginia Workers’ Compensation.When handling a mental health claim, it is necessary to consider what traumatic experiences a claimant was exposed both in the course of his employment for the employer and outside of the workplace. If the claimant was engaged in the same activities he would be performing for his employer, then these traumatic experiences can help form the basis for establishing an occupational diseases such as PTSD.

It remains to be seen how Munker will impact occupational disease claims moving forward, but for the time being, it appears to be an anomaly. There still remains four paths that a mental health claim may arise in Virginia:

1. Injury by Accident –where the claimant sustains physical injury or sudden shock or fright arising in the course of employment. This follows a traditional analysis for compensability.
2. Occupational Disease –where the claimant’s mental health treatment arises out of the employment, did not arise from causes outside of the employment, characteristic of the employment, and caused by conditions peculiar to the employment. The burden of proof is clear and convincing evidence.
3. Ordinary Disease of Life –where the general public is exposed to the disease as well outside the employment, the claimant must establish the disease was caused by the employment and rule out non-work-related factors. The burden of proof is preponderance of the evidence.
4. Compensable Consequence –where the mental health condition is directly related to a compensable physical injury and flows from it as a natural consequence.

Moving forward, continue to analyze mental health claims under these four paths. Additionally, keep in mind the Commission’s analysis as to what a claimant was engaged in when experiencing traumatic events outside the workplace for occupational disease claims. If you have questions about a mental health claim don’t hesitate to contact the Workers’ Compensation team at Ford Richardson for further assistance.

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