WORKERS’ COMPENSATION COURT DECISION PROVIDES GUIDANCE FOR FIRST RESPONDER PSYCHOLOGICAL INJURY CLAIMS

The recent ruling by the Nebraska Workers’ Compensation Court in Gosch v. City of Papillion examined the extraordinary and unusual standard set forth in a statute governing psychological injury claims among first responders.  This marks the first time the court has addressed the issue since the statute’s implementation in 2010.

In Nebraska, workers’ compensation claims for mental injuries without an accompanying physical injury are generally not compensable.  However, in 2010 the Nebraska legislature enacted a statute that permits purely psychological claims (also called “mental-mental” claims) specifically for first responders when certain standards are met.  One of those standards is that the employment conditions causing the mental injury or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment.

In this matter, Plaintiff was a firefighter and paramedic.  In 2017, he responded to a call regarding a patient who suffered a gunshot wound to the head.  When Plaintiff arrived, the victim was combative, fighting against paramedics and screaming frantically, despite having a large open wound to the face.  Plaintiff reported having frequent flashbacks of the images he witnessed that day, exhibiting symptoms of PTSD.

He did not report this to his employer or seek any psychological treatment until five years later in 2022, after the employee alleges being similarly impacted by another incident while responding to a call involving a motor vehicle accident in which a passenger suffered severe injuries.  Until that time, Plaintiff’s co-workers and supervisor did not notice anything different about his outward demeanor at work.

The court tackled the question of whether the events and subsequent psychological harm experienced by the plaintiff were extraordinary and unusual, given his profession as a paramedic.

The question of whether employment conditions are extraordinary and unusual may be examined through either a subjective standard or an objective standard.  The standard that Nebraska courts adopt has far-reaching implications for the compensability of a mental-mental claim.  Until this decision from Gosch v. City of Papillion, it was unknown which standard Nebraska courts would follow.

Under a subjective standard, extraordinary and unusual is based on a person’s individual view of what is extraordinary and unusual, regardless of whether a typical individual in that field of work would share that view.

On the other hand, an objective standard is one that is based on conduct and perceptions external to a particular person, requiring the court to consider whether the same or similar actual work events would cause a reasonable employee engaged in the same occupation to experience extraordinary and unusual stress.  Under this standard, it is not sufficient to demonstrate merely that work events caused stress to a particular employee, but rather the events must be shown to have caused extraordinary and unusual stress to a reasonable employee engaged in the same occupation.

In holding an objective standard to be the appropriate measure, Judge Hoffert noted that the work of a firefighter/paramedic is inherently one that involves dealing with circumstances to which the general public is not routinely exposed.  Notwithstanding, he commented that within the occupation itself there exist degrees of normal duties and circumstances that can escalate or graduate to the “extraordinary.”

Judge Hoffert compared Plaintiff’s experiences to those of other employees in the department and determined that as to the 2017 gunshot victim incident, conditions were indeed extraordinary and unusual when compared to the normal conditions of the particular employment.  However, when it came to the 2022 motor vehicle accident, Judge Hoffert found that the motor vehicle accident would seemingly be expected of a firefighter/paramedic and would not be considered “extraordinary and unusual.”

Of additional note, the court considered the date of injury to be the date that Plaintiff resigned from his employment (2022), rather than the date of the 2017 incident itself, curing otherwise serious deficiencies regarding both the statute of limitations and timely notice to the employer.

Despite significant symptomology between 2017 and the time that Plaintiff resigned, the court reasoned that he did not know that he was “injured” at the time of the 2017 incident, until he was diagnosed with PTSD in 2022.  Rather than considering the psychological injury to be one of an acute nature or a latent and progressive condition, Judge Hoffert considered it more akin to the case law governing occupational diseases, in which the statute of limitations begins to toll only once the accumulated effects of the disease manifest themselves to the point that the injured worker is no longer able to render further service.

Therefore, Plaintiff’s “date of injury” was not the date of the 2017 incident, was not the time he began exhibiting symptoms of PTSD, was not the date that he began psychological treatment, was not even the date that he provided notice to his employer of his mental-mental injury.  Rather, the court considered the “date of injury” to be the date that Plaintiff resigned from his position.  Thus, the court did not consider this a failure on Plaintiff’s part to provide timely notice of his injury to his employer, effectively suspending the statute of limitations period.

The finding in Gosch v. City of Papillion is not binding on other cases, and represents Judge Hoffert’s findings regarding this case alone.  As of the time of this publishing, no appeal appears to have been filed.

This post was drafted by Adam Barrett, a future member of Baylor Evnen Wolfe & Tannehill’s workers’ compensation practice group.  If you have questions regarding psychological injury claims, or Nebraska workers’ compensation in general, please contact Tom Shires or Paul Barta at (402) 475-1075.