Virginia Court Reiterates Objective Standard For PTSD Claims

The Virginia Workers’ Compensation Commission did not err when it found that a state trooper’s PTSD did not arise out of and in the course of his employment [Hess v. Virginia State Police, 2017 Va. App. LEXIS 280 (Nov. 14, 2017)]. While the circumstances of the fatal accident in question were undoubtedly gruesome, the test of whether or not a stress or shock was unusual could not be based upon the trooper’s subjective reaction. A supervising officer, who also was present at the investigation of the fatal vehicle incident in question testified that the crash scene, while bad, was not one of the worst that he had seen.


The trooper responded to a fatal accident scene in which a vehicle had struck an embankment, overturning and ejecting the driver into the opposite lane. Shortly thereafter, the driver was hit by an oncoming vehicle that dragged him for approximately eight tenths of a mile. The trooper, attempted to identify the driver, but the violence of the wreck had mutilated the body beyond recognition. Hess had been a state trooper for ten years and had worked previous fatalities, but described this scene as unfamiliar to any in his experience. He began to feel disturbed at the scene, with psychological effects worsening following the end of his shift. Two weeks later, he sought psychological help. He then filed a claim seeking temporary total disability benefits.

Benefits Initially Awarded

One fellow officer testified that troopers spent some 37 percent of their time investigating traffic crashes and that it would be unexpected for a trooper to come across a mutilated human body. A supervising officer disagreed. A deputy commissioner awarded benefits and the Virginia State Police appealed.

“Arising Out of Employment” and “Course of Employment” Not Synonymous

The appellate court initially observed that a compensable injury is defined as “only injury by accident arising out of and in the course of the employment ….” [Va. Code § 65.2-101 (emphasis added by Court)]. The court allowed, however, that the two elements—(1) arising out of and (2) in the course of (employment) are separate; they are synonymous.

The court observed that in UPS v. Prince, 63 Va. App. 702, 762 S.E.2d 800 (2014), it had held that a claimant could recover workers’ compensation benefits for a purely psychological injury, provided the injury was causally related to a sudden shock or fright arising out of and in the course of the employment. According to the court, the “current” state of the law was that in order to be compensable, a psychological injury—as with a physical injury—must arise out of the employment, while the triggering event of a sudden shock or fright causing the injury must occur in the course of employment.

Proof that PTSD Arose From Employment Insufficient

The court disagreed with the trooper, who contended that the key question in the case was whether his PTSD arose out of his employment. Rather, the issue was whether the trooper’s injury was causally related to a “sudden shock or fright.” A key factor in the determination whether a sudden shock or fright occurred was whether the traffic fatality was an unexpected event for the trooper.

Extensive Training and Experience

The court noted that testimony before the Commission showed that traffic fatalities are an unfortunately frequent and expected occurrence in a trooper’s daily duties and that troopers are prepared to encounter these scenes in their training. The Commission was entitled to consider the evidence that the trooper was assigned to investigate an accident and that such accidents often involve fatalities, and to also consider the trooper’s training and experience in doing so as well as that of his fellow troopers and assign credibility and weight as it deemed proper. The court could not conclude as a matter of law that the Commission erred in finding that the trooper’s traumatic experience was not a sudden or unexpected shock or fright for a State Trooper who received fatal accident and crash scene reconstruction training and had a decade of professional experience doing so.

No Objective Standard for Judging Stress-Related Events

The court concluded that to adopt the subjective standard advanced by the trooper would effectively transfer that factual determination from the Commission to the claimant in clear frustration of the statutory framework created by the General Assembly.

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