December 09, 2016
WC Appellate Division Decision issued on December 9, 2016 - Determination of Date of Injury for Gradual Mental Injury
Below is a summary of a decision of the Appellate Division of the Workers’ Compensation Board issued on December 9, 2016. Please contact any member of the Norman, Hanson & DeTroy workers’ compensation practice group if you have any questions concerning the implications of this decision.
Determination of Date of Injury for Gradual Mental Injury
Determination of the correct date of injury for a gradual injury claim is complex and fact-intensive. In Jensen v. S.D. Warren Co., 2009 ME 35, 968 A.2d 528 the Law Court determined that the date of injury in a gradual injury case is the date on which the injury manifests itself. Determining the time of manifestation in a gradual mental injury claim can be particularly challenging, due to “the indefinite nature of its starting point”.
In Marean v. City of Portland, App. Div. Dec. No. 16-47, the employee had worked as an EMT since 1992 and ultimately stopped working on September 13, 2012 due to a combination of physical and emotional problems. He had intermittently sought treatment for PTSD and depression for a number of years prior to leaving his position. Ultimately, the treating physician prepared a report on September 6, 2012 advising that the employee could no longer perform EMT work due to PTSD, anxiety, and depression. The employee ultimately filed a Petition for Award alleging a gradual mental injury.
The ALJ found that September 6, 2012 was the correct date of injury of the mental stress claim on the grounds that the injury did not become manifest until the employee’s treating physician determined that he was disabled. The Appellate Division affirmed the ALJ’s decision and found no error in the finding that the date of injury was the date on which disability became manifest. Although the employer argued that the date of manifestation can be completely different from the date of disability, the Division ruled that the ALJ’s determination of the date of injury was consistent with the legal principles of Jensen and was not legally erroneous.
Significantly, the Division did not rule that the date of disability must inevitably be the date of manifestation. The time of manifestation can be determined at an earlier point, such as the commencement of treatment for a condition diagnosed as work related, even though there may not yet be any concurrent lost time. Therefore, a gradual stress claim must be analyzed extremely closely for determination of when the psychological condition became manifest to the claimant, as this will establish the date of injury itself.