Finding the Path after Pathfinder
Many are familiar with the way a workers’ compensation claim works in Illinois. If a person sustains an accidental injury that “arises out of” and “in the course of” the employment, that person may seek compensation for injuries by invoking the Illinois Workers’ Compensation Act, 820 ILCS 305/1. When thinking of workers’ compensation claims, purely physical injuries typically come to mind. For instance, one may think of a laborer falling off a ladder and breaking an arm, or an employee that works in a kitchen getting burned severely by hot food or liquids.
Far less intuitive, and often more difficult to evaluate for attorneys and those they represent alike, are “mental” or psychological injuries that are sustained while on the job. A person may suffer psychological problems as a result of a terrifying or traumatic experience, or may become overly anxious or depressed as a result of a physical injury at the workplace. What follows is an exploration of how such claims are treated so that businesses can anticipate potential liability for them as well as be proactive in preventing them.
“Mental-Mental” and “Physical-Mental” Theories of Recovery
Historically in Illinois, mental injury or disability was only compensable under the Act if it was precipitated by physical contact or injury. Diaz v. Illinois Workers Compensation Comm’n, 2013 IL App (2d) 120294WC. Such an injury has been deemed a “physical-mental” injury because a physical injury predates, and causes, the mental injury. This type of mental or psychological injury has traditionally been the easiest to prove, as compensability has been found if the mental injury can be traced to a physical trauma, and that physical trauma is a causative factor in the mental injury. 27 Bruce Bonds & Kevin Luther, Illinois Practice Series, § 8.21 (2018-2019 ed.) What this means is that, a claimant need not prove that the physical injury or trauma was the sole or major cause of the mental injury, only that it was acause.
Unlike “physical-mental” injuries, a “mental-mental” injury is one in which a psychological trauma occurs in the course of one’s employment that causes further mental or psychological illness. For example, a police officer can be involved in a particularly tense and stressful stand-off with a suspect and begin to exhibit signs of anxiety, blurred vision, and general nervousness. Diaz, 2013 IL App (2d) 120294WC, ¶¶ 8-9. Another example would be a firefighter who is in command at the scene of a fire witnessing the death of a firefighter under his command and developing symptoms such as insomnia, flashbacks, and horrible nightmares. Moran v. Illinois Workers’ Compensation Comm’n, 2016 IL App (1st) 151366WC, ¶¶ 28-29
Pathfinder Co. v. Industrial Commission
Before 1997, the only theory under which a claimant could recover for mental injuries was the “physical-mental” theory. City of Springfield v. Industrial Comm’n, 291 Ill. App. 3d 734, 738 (4th Dist. 1997). However, a new path to recovery was forged by the court’s decision in Pathfinder Co. v. Industrial Commission, 62 Ill. 2d 556, 559 (1976). There, a woman, Maria, worked as a packager and assembler for Pathfinder Company. One day she instructed another worker, Veronica, on how to operate a machine called a punch press. Pathfinder, 62 Ill. 2d at 559. After Veronica assured Maria that she understood how to use the press, Maria began to walk away. A short time passed when Maria heard screams coming from Veronica; she had gotten her hand stuck in the press. Maria rushed to Veronica’s aid, and tried to remove her hand from the machine, only to realize that it had been severed. At the sight of the severed hand, Maria fainted. Id. A short time later, Maria began experiencing numbness, headaches, blurred vision, nervousness, anxiety, and other largely non-verifiable complaints. Id. at 559-560.
Maria brought a workers’ compensation claim alleging that she had sustained an injury “arising out of” and “in the course of" her employment, as she had suffered a severe emotional shock which caused her ongoing psychological problems. Id. at 562-563. Maria’s employer argued that she was barred by section 8(b)(7) of the Act, which states that injuries must be “proven by competent evidence,” and that there must be “objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.” Id. at 566. The court disagreed, holding that the objective conditions or symptoms that needed to be proved were those of the injury itself, not of the resulting mental or psychological issues. There was clear evidence that Maria underwent a traumatic injury, namely, she witnessed a gruesome sight that caused her to faint. Id. at 567. This was enough proof for the court in Pathfinder to find the subsequent mental problems compensable. Id. at 567-568.
Aftermath of Pathfinder
After Pathfinder, courts have held that, to prevail on a mental-mental injury claim, one must present objective evidence supporting inferences of psychological injury, causation, and disability. Chicago Transit Authority v. Illinois Workers Compensation Comm’n, 2013 IL App (1st) 120253WC, ¶ 21. In addition, a claimant must prove that he or she suffered a “sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm.” Chicago Transit Authority, 2013 IL App (1st) 120253WC, ¶ 20, citing Pathfinder, 62 Ill 2d at 563. The employment condition(s) that bring on the psychological injury must be “the major contributing causes of the psychological injury”, not merely a cause as with physical-mental injuries. See Bonds & Luther, § 8.21. If a claimant can prove this, his claim may be found compensable, even if the resulting psychological injury does not manifest itself until sometime after the shock. Moran, 2016 IL App (1st) 151366WC, ¶ 44.
The distinction between the “cause” requirement for recovery under a “physical-mental” theory and the “major contributing cause” requirement for recovery under a “mental-mental” theory is not always clear. Indeed, the court’s decision in Matlock v. Industrial Commission, is a perfect example of how the Pathfinder decision not only forged this new path for recovery, but also blurred its lines with the traditional physical-mental theory. Matlock v. Industrial Commission, 321 Ill. App. 3d 167, 173-74 (1st Dist. 2001).
In Matlock, the claimant sought workers’ compensation benefits for injuries she sustained while employed by American Airlines as a flight attendant. Matlock, 321 Ill. App. 3d at 168. On the day of the incident, the claimant was acting in her capacity as a flight attendant, when an unruly passenger boarded the aircraft.Id. While in the air, this passenger made a number of outrageous comments, including the assertions that the FBI was trying to kill her, and that she had three million dollars’ worth of chemicals in her possession. Id. at 169. This passenger then claimed that she could not breathe and asked for oxygen. To appease her, another flight attendant gave this unruly passenger an oxygen tank, but did not turn on the oxygen. After receiving the oxygen tank, the passenger took out a lighter and attempted to ignite it. Id. The oxygen and lighter were taken away from the passenger, and the passenger was confined to her seat. Sometime thereafter, the passenger sprayed parachlorophenol (a chemical substance) into the cabin of the plane. As a result, the claimant flight attendant suffered the side effects of heart palpitations, nausea and dizziness. Id. at 169-70. The claimant was diagnosed with post-traumatic stress disorder and suffered recurring nightmares, as well as ongoing anxiety and depression.
Although recovery in this case could have been established using only the “physical-mental” theory, the court found that the claimant’s psychiatric injury was compensable under both the “mental-mental” and the “physical-mental” theories. With regard to the “mental-mental” theory, the court acknowledged that a claimant may recover if the claimant can prove: “(1) the mental disorder arose in a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience; (2) the conditions exist in reality, from an objective standpoint; and (3) the employment conditions, when compared with the non-employment conditions, were the major contributing cause of mental disorder.” Id. at 171. The Matlock court concluded that the claimant’s illness was brought on by the sudden events and emotional shock she experienced on the date of the incident, reasoning that “[w]hile flight attendants may be trained to handle and regularly face unruly passengers, they are not subjected normally to ones that attempt to blow up the plane or spray toxic chemicals in a confined cabin. It is reasonable to infer such events in fact would be terrifying to those responsible for keeping order in the cabin.” Id. at 172.
It is important to note that mental disorders which are common to all employees (e.g. normal levels of tension, anxiety, stress, etc.), or those that gradually develop, are not compensable. See Diaz, 2013 IL App (2d) 120294WC, ¶ 31. In evaluating whether a worker has sustained sufficient “emotional shock,” increased training (as in the case of a firefighter or police officer) is not taken into consideration, but an objective, “reasonable person standard” is used instead. Id, ¶¶ 22, 33. This means that, if a police officer endures an emotional shock that is traceable to a specific time, place, and cause that would be shocking to someone with no police training whatsoever, they can sustain a compensable claim for a mental-mental injury.
Physical Injuries Giving Rise to Mental Injuries
Although the “physical-mental” theory has historically been the easier theory of recovery for those seeking compensation for psychiatric injury, this theory is not devoid of complexity. Indeed, Pathfinder changed the landscape for claims seeking recovery for psychiatric injury under a “physical-mental” theory as well. Under the physical-mental theory, a work-related physical trauma need not be the sole causative factor of the mental injury, but need only be a causative factor of the subsequent mental condition. City of Springfield, 291 Ill. App. 3d at 738. An obvious example of this may be an employee falling down, breaking his arm, and being clinically depressed because he is unable to work. However, courts have also found less clear incidents as being physical causes under this theory.
One such incident occurred in the City of Springfield. In that case, a claimant, known only as B.K., filed a workers’ compensation claim due to repeated acts of sexual harassment from a supervisor. City of Springfield, 291 Ill. App. 3d at 736. Her supervisor had made verbal and sexual physical advances toward her, and had forced her to engage in sexual intercourse on at least five occasions. As a result, B.K. began to contemplate suicide, suffered from anxiety, and fell into depression. Id. at 736-737. The employer attempted to argue that the sexual encounters were consensual, but the supervisor himself did not testify at the arbitration hearing to refute the allegation that they were not. Id. at 737.
The court recognized that, after Pathfinder, the most minor of physical contact (even contact that leaves no objective manifestations such as bruises or broken bones) is sufficient to cause psychological injuries that follow to be compensable. Id. at 738. The court, in finding B.K.’s injuries to be compensable, noted that rape, sexual assault, and battery (crimes that embody the type of physical harm that B.K. complained of) are all physical bodily injury crimes in Illinois. Id. at 739. Additionally, the repetitive nature of this contact was an aggravating factor which fueled the court’s decision. Accordingly, the court rejected the employer’s attempts to categorize B.K.’s injuries as “mental-mental” injuries, instead calling them physical-mental injuries and finding them compensable. This distinction was significant to the court’s findings, as the causal connection required under a physical-mental theory is less than the causal-connection required to prevail under a mental-mental theory.
A claimant may attempt to prove his claim for recovery under the “physical-mental” theory using a “chain of events” analysis. Boyer v. Illinois Workers Compensation Comm’n, 2015 IL App (3d) 130184WC-U. A causal connection between a condition of ill-being and a work-related accident can be established by showing a chain of events wherein an employee has a history of prior good health, and, following a work-related accident, the employee is unable to carry out his duties because of a physical or mental condition. Boyer, 2015 IL App (3d) 130184WC-U, ¶ 39. This analysis lends a lot of variability to the outcome of a case, as it tends to turn on the Commission’s evaluation of the credibility of the claimant.
For example, in Boyer the claimant suffered a work injury to his upper extremity. Id. ¶ 5. After the injury, the claimant became infuriated by “the whole workers’ compensation process” and was unable to return to work. Id. ¶ 18. An expert psychiatrist opined that the claimant could not return to work, not because of the physical injury, but because of the claimant’s “propensity for disabling anger.” Id. ¶ 19. Using the “chain of events” analysis, the claimant argued “although he may have had a propensity for anger, it had in no way interfered with his work performance prior to the accident.” Id. ¶ 39. Therefore, his current condition of ill-being was caused, or aggravated, by the work accident.
In reviewing the Commission’s decision to deny the petitioner’s claim, the appellate court noted that while the Commission “could have inferred that the claimant’s anger was caused or aggravated by the June 2004 work accident based upon a, chain of events, analysis, it was not required to do so given the wealth of contrary evidence.” Id. ¶ 40. In other words, the Commission’s decision was not against the manifest weight of the evidence. As the Commission’s decision in this case was largely based on its evaluation of the credibility of the claimant, it could have decided either way. Accordingly, although the causation connection required in physical-mental injury cases is less burdensome than that required in mental-mental injury cases, the outcomes of these cases can be just as uncertain.
The Pathfinder decision greatly expanded the remedies available to claimants alleging psychiatric injury in the workplace. Indeed many decisions that followed these seminal cases have trended towards this expansion. That said, a claimant is unlikely to prevail under either the “physical-mental” theory of recovery, or the “mental-mental” theory of recovery, if the facts suggest that the claimant is not credible, or that the claimant’s mental health instability was prominent prior to the alleged work injury. Employers would be wise to offer resources which would support the mental health of its employees in order to proactively prevent, or defend against, these kinds of claims.