There are two ways a Nevada worker might receive treatment for a post-traumatic stress disorder under a Nevada workers’ compensation claim:
1) The claimant has an accepted claim for a physical injury and the PTSD is a compensable consequence of that injury and needs treatment. If so, the claimant might get some psychological counseling and medications, but would not be entitled to an impairment award for the PTSD. See, Roberts v. SIIS, 956 P.2d 790 (1998).
2) The claimant has a compensable stress claim accepted under NRS 616C.180. In addition to receiving medical care and compensation benefits if out of work, the claimant may be entitled to an impairment evaluation of the psychological disorder for a permanent partial disability award.
Nevada’s stress claim statute, NRS 616C.180, provides that stress shall be deemed to arise out of and in the course of employment only if the employee proves by clear and convincing medical or psychiatric evidence that a) the employee has a mental injury caused by extreme stress in time of danger; b) the primary cause of the injury was an event that arose out of and during the course of employment; and c) the stress was not caused by a job layoff, termination or any disciplinary action taken against the employee. This statute also specifically excludes any disorder caused by any gradual mental stimulus.
In 2007, the Nevada Supreme Court decided a case against a highway patrol woman who alleged that work stress as a police officer over time had built up and now required medical care. McGrath v. State Dep’t of Public Safety, 159 P. 3d 239. The Court stated that she had failed to identify a discrete, identifiable, traumatic occurrence in time of danger as the cause of her stress condition, The court did not want to expand benefits when the legislature had created a very limited set of circumstances for acceptance of a stress claim.
I have had post-traumatic stress disorder claims accepted for a grocery clerk and bank teller who were robbed at gunpoint at work, and an employee who was shot at work by a disgruntled bartender who worked next door to her employer’s business. I’ve also represented a power company employee who was attacked by a homeless person, a woman who was hit by a car that had crashed through the wall of her workplace, and a security officer who was badly injured when jumped by a drunk patron and hit in the face with a broken bottle. I have also represented a security guard who was hunted and shot several times.
I also represented a woman whose claim was denied because her life was not at peril when a drunk driver hit and killed a pedestrian in front of her. Her post-traumatic stress disorder resulted from seeing someone else killed. An appeals officer affirmed the denial of the claim, holding that the statute requirement of “in time of danger” means only danger to self and doesn’t encompass witnessing someone else threatened, harmed, or killed during the course of employment. The diagnostic criteria for Post-traumatic Stress Disorder set forth in the American Psychiatric Association’s DSM IV-R does not distinguish between experiencing actual or threatened death or serious injury to one’s self from witnessing a death or serious injury to someone else. This issue will have to be decided by the Nevada Supreme Court at some point, as the mainstream medical literature on PTSD supports that a person can develop PTSD from witnessing a violent injury or death to someone close by.
Current literature on the incidence of PTSD in police officers with cumulative exposures to trauma over their careers also supports that the law needs a broader criteria for claim acceptance as to police officers and fire fighters. (The majority of fire fighters’ work is responding to medical emergencies, including gruesome car accidents, than extinguishing fires.) Studies show that police officers who have multiple trauma exposures at work are more apt to become symptomatic with PTSD. However, given the Court’s decision in the McGrath case, police officers in Nevada will have to wait until the Nevada legislature amends 616C.180 in order to get gradual onset of PTSD accepted as an occupational illness. Or, a police officer must state on their C-4 Claim for Compensation form that a specific traumatic incident caused the officer to seek medical or psychological treatment for PTSD symptoms.
The reason an injured worker with PTSD would want their illness accepted under NRS 616C. 180 as opposed to getting treatment for PTSD as a part of their accepted physical injury, is that a statutory stress claim may be rated for impairment and gets a permanent partial disability award. Permanent partial disability evaluations for statutory stress claims are done by one of dozens of rating doctors qualified by DIR to rate psychological injuries. The criteria for determining the percentage of impairment is in a worksheet by DIR. The rating doctor reports the percentage to the insurer, who may then offer an award based on the percentage, the claimant’s average monthly wage, and the claimant’s age. As with other impairment evaluations, the insurer may also contest the percentage of impairment. This often results in the claimant having to undergo another, or even two more impairment evaluations if a lot of money is at stake.
The medical literature on PTSD states that the sooner someone gets treatment, the better the prognosis for recovery. Treatment usually consists of psychological therapy and medication. PTSD may require more treatment than the adjuster wants to authorize. The employer may not understand why the employee cannot return to work in the same work environment where the stressful traumatic event occurred. The employer may oppose giving the injured worker vocational retraining, and be angry about the employee getting a permanent partial disability award. People who suffer from PTSD need a strong, safe network to keep from isolating and experiencing even more stress with claims issues.
–Written by Virginia Hunt, Hunt Law Office