By Jane Salem, staff attorney, Nashville
Last week, the Appeals Board ruled on an issue of first impression that the date of injury in mental injury claims for jurisdictional purposes is the date of the identifiable work-related event or events resulting in a sudden or unusual stimulus. The ruling rejected an injured worker’s contention that her date of injury should be considered the date she knows she suffered a mental injury.
In Nickerson v. Knox County Government, Angela Varner Nickerson worked for the County as a forensics technician for approximately eleven years. In that role, Nickerson viewed crime scenes that she alleged caused her mental injury, including scenes of injured, abused or dead children.
In 2011, Nickerson transferred to a different job. She wasn’t diagnosed with PTSD until May 2018. She reported the injury a month later, and on April 29, 2019, she filed a petition for benefit determination alleging a June 12, 2018 date of injury.
The County filed a motion for summary judgment based on the alleged late filing of her petition. Judge Thomas Wyatt, Chattanooga, denied the motion. The County appealed, and the Appeals Board vacated and remanded for the trial court to consider whether it had subject matter jurisdiction.
On remand, Judge Wyatt again denied the motion for summary judgment, concluding the last day worked rule and the discovery rule applied to determine the date of injury. Judge Wyatt further held that Nickerson alleged a cumulative mental injury, which didn’t become disabling until several years later, thereby creating disputed issues of material fact that precluded summary judgment.
The County appealed, and the Board reversed, dismissing the case.
At the outset, Presiding Judge Tim Conner emphasized that the issue was whether the Court of Workers’ Compensation Claims had subject matter jurisdiction over the claim, not the timeliness of filing. Jurisdiction is a “threshold issue,” he reminded, and the Court has jurisdiction over cases with a date of injury on or after July 1, 2014.
The statutory definitions of “injury” or “mental injury” don’t contain a method for identifying the date a mental injury occurs, so the Board was tasked with interpreting how to identify the date of injury in a mental injury claim for purposes of conferring subject matter jurisdiction.
The Board looked at various categories of cases in its analysis.
In cases where the alleged injury was “caused by a specific incident, or set of incidents, . . . identifiable by time and place of occurrence,” the Board observed that the date of injury has consistently been the date of the work incident resulting in injury, regardless of when the employee became aware of the injury.
As for cumulative trauma injuries, a court may determine the date of injury by considering the last day worked or the date the employee was last exposed to the work activity that caused the injury. However, the Board noted that traditionally, the Supreme Court has treated mental injury claims as “accidental injuries” and rejected those caused by gradual or cumulative work-related stress.
The final category was occupational disease claims. The Board explained that the analysis for determining the date a statute of limitations is triggered is not the same as the analysis for determining the date of injury and wrote, “We find no reason to depart from this rationale.”
Judge Conner wrote, “While the date Employee subjectively believed she suffered from a work-related mental disorder, or the date she was diagnosed with such a mental disorder, may be relevant for purposes of applying the discovery rule in addressing the statute of limitations, it does not control the determination of the date of injury.”
Ultimately, the Board held that the plain language of the statute and case law discussing mental injuries don’t support that a mental injury claim can be treated as a gradual or cumulative injury. Therefore, the “last day worked rule” doesn’t apply when identifying the date of injury in a mental injury claim. In addition, the date of injury in mental injury claims shouldn’t be treated in the same manner as in occupational disease cases, “given that the Workers’ Compensation Law contains a provision explaining how to identify the date of injury in occupational disease cases, but contains no similar language with respect to mental injury claims.”
The Board likewise concluded that the discovery rule didn’t apply to determining subject matter jurisdiction either. Judge Conner wrote, “In essence, Employee argues that an employee suffers a mental injury when the employee knows he or she has suffered a mental injury, and that it is this subjective conclusion that determines the date of the injury for jurisdictional purposes. However, Employee does not cite, and we cannot locate, any case supporting such a proposition.”
Because Nickerson viewed the crimes scenes involving children in 2011 and earlier, “well in advance of the effective date of the 2013 Reform Act,” her date of injury deprived the Court of Workers’ Compensation Claims of subject matter jurisdiction.