April 02, 2013

Delayed Response Does Not Defeat Psych Claim

April 02, 2013

Chicago Transit Authority v. IWCC No. 2013 IL App. (1st) 120253 WC

Sylvia Timms drove a bus for the CTA which struck a pedestrian who later died.  Timms did not witness the accident but saw the man laying in “almost a fetal position” with his mouth moving.  When she learned of his death, she recalled feeling shaken and depressed; she had flashbacks of the accident victim laying in the street which caused difficulty sleeping.  Although her supervisor referred her for help, she did not seek treatment until two months later, after she had been terminated from her employment.  Her physician diagnosed an adjustment disorder with mixed anxiety and depressed mood and found her unable to work due to psychological trauma from the accident.

Relying on the foregoing facts, the Arbitrator found that Timms had sustained psychological injuries arising out of and in the course of her employment.  Although she did not obtain treatment for approximately two months, thinking she would be able to manage the tragedy ‘through her own strength,’ this did not defeat her claim.  The Arbitrator found that her flashbacks of the victim laying curled up in the street fell within the holding of Pathfinder Co. vs. Industrial Comm’n, 62 Ill.2d 556 (1976), in that she suffered a sudden, severe emotional shock traceable to a definite time and place and cause which caused psychological injury.

The Commission affirmed with a dissent which concluded that Timms failed to prove the immediate onset of an emotional injury as a result of the accident.  Upon appeal, the Appellate Court interpreted Pathfinder which authorizes recovery when a claimant suffers a “sudden, severe emotional shock traceable to a definite time, place, and cause which causes psychological harm.”  The CTA argued that Timms could recover only if she proved that a sudden, severe emotional shock caused a psychological injury that was “immediately apparent,” citing General Motors vs. Industrial Comm’n, 168 Ill.App 3d 678 (1988).  The court distinguished General Motors because the injuries in that case did not stem from a single traumatic work-related incident but rather a variety of factors, including non-traumatic and non-work-related events.

But the court went further, rejecting the argument that recovery can be had only when the resulting psychological injury is “immediately apparent.”  Under Pathfinder, theemotional shock needs to be “sudden” not the ensuing injury.  Thus, Timms could recover if she showed she suffered a sudden, severe emotional shock which caused a psychological injury even if this psychological injury did not manifest itself until some time after the shock.

The court also rejected the argument that its holding would “open the flood gates” to fraudulent or frivolous claims, expressing confidence that the Commission will continue to be vigilant in assessing psychological claims.  The court stressed that a claimant must present objective evidence supporting inferences of psychological injury, causation, and disability; although not dispositive as a matter of law, evidence that a claimant delays treatment for alleged psychological injuries may still be relevant in a given case.  In the present case, the court found it reasonable to infer that Timms suffered a sudden shock during the bus accident which caused a psychological injury even though she did not seek treatment for her problems for two months; it was also reasonable to infer she did not.

The court concluded that watching a pedestrian dying was the type of “exceptionally distressing” and “uncommon” work-related experience that can support an award under Pathfinder and from which one can infer that Timms suffered a “sudden, severe emotional shock” causing psychological injury.  She testified that she felt shaken and depressed after the accident and that her supervisor referred her to a “comp psych.”   Although she thought she could manage the tragedy, her symptoms worsened and she sought professional help.  Her doctor diagnosed an adjustment disorder which was unrebutted by the employer.  It was not apparent that the CTA produced witnesses to rebut petitioner’s testimony regarding her reactions to the accident.  Therefore, the Court concluded that the Commission decision was not against the manifest weight of the evidence.


Notwithstanding the Court’s protestations, the holding in Pathfinder has been expanded.  Pathfinder involved an immediate manifestation of psychological injury, whereas Timms did not.  A delay in the manifestation of symptoms, is common in post-traumatic stress cases, but here it is difficult to reconcile the delay in seeking treatment when it occurred only after Timms was terminated, a fact both the Commission and the court seemingly ignored.  One must concede that the bus-riding public may not be best served by drivers who are unaffected when their vehicle strikes and kills a pedestrian.  However, recovery should be limited to those cases where there is an obvious “sudden” emotional reaction, not one where the claimant walks away from work on the day of the accident and seeks treatment only after she is terminated.