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Not Capable of Injury Notice
A worker gets sexually assaulted on the job. Does his post-traumatic stress disorder justify his failure to timely report it to his employer?
A worker was employed as a "psych tech" for his employer, which provided housing facilities and treatment centers for mentally and physically disabled people. The tech was assigned to work in a housing facility, where he supervised, cared for and assisted the residents. One of the residents included a convicted sex offender. As part of his job duties, the tech had to accompany the offender on an overnight visit and share a motel room with him. During the overnight visit, the offender sexually assaulted the tech. Afterward, the offender repeatedly threatened to hurt the tech if he told anyone about the incident. Given the threats and his shame and fear, the tech did not report the assault to his employer until 19 days later.
The employer referred the tech to a psychiatrist, who diagnosed him with post-traumatic stress disorder (PTSD). The tech's symptoms included anxiety, depression, panic attacks, an inability to eat or sleep, nausea, hypervigilance and flashbacks. The tech sought benefits. The workers' compensation judge found that the tech was prevented from providing notice within 15 days of the assault and therefore, his late notice was excused. The judge went on to award benefits to the tech. Was the judge correct in finding the tech gave proper notice to his employer? A. No. The tech's ability to work after the incident showed that he was able to report the incident. B. Yes. The tech's PTSD stemming from the assault prevented him from reporting the incident. C. No. The judge improperly relied on the psychiatrist's testimony because it was based exclusively on the subjective complaints and self reports of the tech. How the court ruled: B. The New Mexico Court of Appeals held that the tech was entitled to benefits because he provided timely notice of the assault to his employer. Baca v. Los Lunas Community Programs, No. 29,108 (N.M. Ct. App. 12/15/10). Although the tech did not notify his employer of the assault until 19 days after the incident, the court found that the notice was timely. The psychiatrist's testimony about the tech's mental state and his fear, shame and trauma provided a basis for finding that his PTSD prevented him from reporting the incident within the 15-day period. A is incorrect. The court noted that PTSD is a latent injury, which does not become manifest until sometime after the traumatic event. For a latent injury, the date of the injury, not the date of the accident, is used to start the clock ticking. The worker did not develop symptoms of PTSD until many days after the assault. The tech's ability to work after the incident showed that he did not develop PTSD until some time after the assault. C is incorrect. The court stated that there was no medical evidence to dispute the psychiatrist's expert opinion regarding the tech's mental condition. CHRISTINA DIFONTE is the legal editor of the WorkersComp Forum. This feature is not intended as instructional material or to replace legal advice. Read more at the WorkersComp Forum homepage. January 27, 2011 Copyright 2011© LRP Publications |
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