July 01, 2013

Court Relaxes Mental-Mental Standard

July 01, 2013

Ismael Diaz vs. Illinois Workers’ Compensation Commission, et al. No. 2013 IL App. 2(d) 120294WC

When we last commented on the subject of “mental-mental” injuries (CTA v. IWCC Alert), we opined that the court had eased the route to recovery for purely psychological injuries.  The CTA case seemed to eliminate the requirement that there be an immediate manifestation of severe emotional shock precipitated by an uncommon event of significantly greater proportion or dimension than that to which an employee would otherwise be subjected in the normal course of employment.  Now, with the case of Ismael Diaz, it is apparent that the latter part of the standard is no more.

Diaz, a police officer for the Village of Montgomery, answered a call about a disturbance between neighbors when another neighbor became upset because police squad cars blocked his driveway.  When his request was not immediately granted, he went into his house and returned, holding what appeared to be a handgun.  Diaz drew his weapon and ordered him to drop the weapon, but he did not comply.  Diaz took cover and noted that the object was not a real gun, but demanded the neighbor drop the item nonetheless.  Approximately 10-15 seconds elapsed from the time Diaz saw the object until he realized it was not a real weapon.  A call for backup was made, a special response team arrived and dealt with the suspect.  Deputy Chief Meyers arrived at the scene a half hour after the original call and noted that there were 10-15 officers present on the scene.  He testified that even though there was a belief the neighbor had a toy gun, all officers present were concerned that he was potentially armed and dangerous.

Diaz testified that he did not immediately experience anxiety after the incident.  He was “just wound up, you know, I guess like adrenaline.”  He worked the next day and experienced no symptoms.  Two days later, while responding to an accident, he felt anxious.  The following day, during roll call, he experienced blurred vision, became sweaty, and “just felt like nervous.”  He did not mention his symptoms to anyone and started his patrol.  When his condition did not improve, he returned to the station and spoke to Deputy Chief Meyers, who called an ambulance which transported him to a local hospital.  Several days later, he began treatment at Dreyer Clinic where he was diagnosed with post-traumatic stress disorder.  He was treated for panic attacks with medication and counseling.  He reported flashbacks from the incident, as well as troubling dreams about his work as a police officer.

Two months later, Diaz spoke with Chief Schmidt, telling him that he could not perform the job of a police officer because of anxiety.  He was then placed off work.  A fitness for duty evaluation found him unfit for duty because of post-traumatic stress.  During treatment following that evaluation, he described another incident which occurred more than three years earlier, when a suspect was shot by other officers.  Diaz described having anxiety following that incident, but did not seek treatment for it.

Diaz remained under the care and testified he would remain under care “indefinitely.”  He was taking medication for depression and anxiety.  He was found fit for duty several months later and was off work approximately three months.

The Arbitrator found Diaz’ condition causally connected to the incident.  The Commission reversed, finding that he failed to prove an accident arising out of his employment.  Citing General Motors vs. Ind. Comm’n, the Commission stated that compensation under Pathfinder is

“limited to the narrow group of cases in which an employee suffers a sudden, severe emotional shock which results in immediately apparent psychic injury and is precipitated by an uncommon event of significantly greater proportion or dimension than that to which the employee would otherwise be subjected in the normal course of employment.” 

The Commission admitted that it was adopting a narrow construction of Pathfinder: Diaz was a police officer, trained to handle encounters with armed and dangerous suspects; the encounter was not an uncommon event of significantly greater proportion than what he would otherwise be subjected to in the normal course of his employment.  The circuit court confirmed the Commission, holding that there was no showing of a sudden, severe emotional shock resulting in an immediate apparently psychic injury.

The Appellate Court reversed, finding the Commission’s reliance on the ‘an event of significantly greater proportion or dimension than that to which the employee would otherwise be subjected in the normal course of employment’ standard would make it virtually impossible for employees in inherently dangerous occupations to obtain compensation.  The court acknowledged that to allow compensation for a gradually developing mental disability without proof of a specific time, place and event, would “open a floodgate” for those who are unable to handle the everyday pressures of life.  But Diaz did not develop a mental disability attributable to factors such as worry, anxiety, or the pressure and overwork which all employees experience.  Rather, the incident in which he was involved was a severe emotional shock traceable to a specific time, place and event.

In sum, the majority of the court held that the Commission is not permitted to consider the context of an individual’s employment or the event itself, and cannot require that a claimant prove an event of significantly greater proportion or dimension than that to which he would otherwise be subjected in the normal course of his employment as was required by General Motors.  The court rejected the reasoning that the precipitating event must be viewed in the context of a claimant’s occupation and training.  The only requirement is that there be an “accident” from which a claimant develops post-traumatic stress disorder.

As he did in the CTA case, Justice Turner dissented.  Justice Turner would have relied on the concept of an “uncommon event of significantly greater proportion or dimension,” which he cited had been the law for approximately 25 years.  But Justice Turner would have gone further and rejected the case based on the undisputed facts which showed that Diaz did not suffer a sudden, severe emotional shock.  There was no evidence Diaz had any immediate mental or emotional disturbance after the occurrence.  He testified that he did not experience any immediate anxiety after the incident and was fine the next day as well.  It was not until two days later that he felt anxiety.  Justice Turner felt these facts sufficient to find that Diaz suffered no sudden or severe shock from the incident as contemplated under Pathfinder.  Justice Turner suggested that Diaz’ training and occupation perhaps made it less likely that he in fact suffered a severe and sudden shock.


As mentioned above, the court appears no longer to require a “sudden, severe emotional shock” resulting from an uncommon event of significantly greater proportion than what the claimant otherwise is subjected to in his work.  The majority of the court rejected this concept, rather taking the analysis from the results of the incident, namely, a post-traumatic stress disorder, and leaving it at that.  It would appear that a psychological injury need not result from a sudden, severe emotional shock, but rather stem only from the incident itself.  Granted that the incident was stressful — the individual could have possessed a weapon — but this begs the question.  ThePathfinder standard was intended to limit recoveries for purely psychological injuries.

With Diaz and the CTA case which preceded it, the concept of a sudden, severe emotional shock resulting from an uncommon event of greater dimensions than what one is normally subjected to in his employment is out the door.  Perhaps these rulings are more in tune with modern concepts of psychology, but without evidence that a broad range of what should be compensable claims being denied, your editor does not perceive the need to have abandoned the General Motors standard which was well-grounded in the policy enunciated in Pathfinder.

It appears the court now wishes it had merely decided General Motors on its facts and not provided what until now has been considered the definitive interpretation ofPathfinderCTA and Diaz may not produce a Johnstown flood of mental-mental claims, but it appears that one can recover compensation from post-traumatic stress which manifests itself within a reasonable period after an undisputed work-related event, but not one which need be disproportionate to what one encounters every day in one’s work.