Is The Commission Creating an Easier Path for the Finding of A “Sudden Shock or Fright” for Mental Health Claims?

In Virginia, to prevail on a mental injury with no physical impact requires that claimant establish a “sudden shock or fright.” Historically this has been a rather significant burden for a claimant to meet.

The recent split decision (2-1) by the Full Commission in Nha-Uyen Nguyen v. INOVA Health Systems, JCN No. VA00001870151 (December 21, 2023) may mark as a turning point where the path towards compensability may prove easier for claimants. The Deputy Commissioner had held that the claim was not compensable. The Deputy Commissioner found that the patient’s behavior was not “out of the ordinary in terms of the injured employee’s work duties, and was so dramatic or frightening as to shock the conscience.”

The claimant in Nha-Uyen Nguyen alleged that she sustained psychology injury (PTSD, anxiety and altered mental status) when a male patient intentionally exposed himself during a Venous Doppler test that she was performing as an ultrasound technician.

The common denominator in these cases is a review of the event to determine if something out of the ordinary in terms of the injured employee’s work duties has been established that is so dramatic or frightening as to shock the conscience.

The Majority of the Full Commission in this case found that “the claimant’s exposure in this instance was not in the expected course of her duties. Rather, the evidence persuasively establishes that the patient’s conduct was ill-intended and unnecessary.”

Commissioner Rappaport in his dissent noted: “[w]e must apply an objective standard in determining whether a situation was shocking or frightening. I do not find the claimant’s testimony sufficient for us to determine that this event rose to the level necessary for the establishment of a compensable psychological injury by accident. The record before us does not reflect that this particular event was so dramatic and unexpected so as to shock the conscience.”

Commissioner Rappaport also properly noted in his dissent that “the evidence shows the claimant had been exposed to male genitalia before, both intentionally and inadvertently.”

Only time will tell if this decision marks as turning point for an easier path moving forward for claimants to prevail on mental health claims with no physical injury alleged.


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