The Full Board, at its meeting held on February 28, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 16, 2011.
The issue presented for Full Board Review is whether this claim should be established for acute stress reaction and anxiety.
In a decision filed on November 9, 2009, the Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding that the stress experienced by the claimant was not over and above normal expected stresses of the position of a corrections officer.
In a Memorandum of Decision filed March 16, 2011, the Board Panel majority reversed the WCLJ's decision, established the claim for anxiety and acute stress reaction, and continued the case for further findings and awards consistent with its decision.
The dissenting Board Panel member would have affirmed the WCLJ and disallowed the claim.
In its application for Full Board Review filed on April 8, 2011, the carrier argues that the claim should be disallowed.
In a rebuttal filed with the Board on May 5, 2011, the attorneys for the claimant request that the majority decision be affirmed in its entirety.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On September 2, 2009, the claimant filed a C-3 form to report that he was injured on July 9, 2009, while he was working as a corrections officer for the employer. The claimant alleged that he has high blood pressure, stress, hypertension and anxiety as a result of lifting an inmate who was committing suicide by hanging.
The carrier controverted the claim.
Dr. Beach, the claimant's treating physician, submitted a C-4 report of an examination on July 9, 2009, and diagnosed the claimant with anxiety and acute stress reaction. Dr. Beach opined that the claimant's condition is causally related to the history he reported of "finding inmate."
In a decision filed on September 28, 2009, the WCLJ found prima facie medical evidence of an acute stress reaction per Dr. Beach's July 9, 2009 report, and continued the case to address the remaining issues.
At the hearing held on November 4, 2009, the claimant testified as follows: He has been employed as a corrections officer for over 19 years. Prior to July 2009, he has had suicide prevention training on a yearly basis. The training teaches prevention and signs of suicide and makes the corrections officers aware that suicides do occur in prisons. The training does not deal with any of the emotions of the corrections officer when there is a suicide. On July 9, 2009, the claimant was working from 6:00 a.m. to 2:00 p.m. His duties require him to make rounds and respond to emergencies in the block (housing unit). At some time during the morning, he was notified by a porter than an inmate was trying to hang himself. He and his partner went to the cell and when the claimant got to the cell, he saw the inmate with "his back to the bars slumped down with the string around his neck hanging there" (Hearing Transcript, 11/4/09, p. 7). The claimant "ran in there and picked him up because obviously you could see that he was hanging" (Hearing Transcript, 11/4/09, p. 8). The claimant did not know whether the inmate was still alive, but he sent his partner to get something to cut the inmate down. The partner came back with a can top and when the claimant was able to cut the inmate down, the claimant had him underneath his arm and fell over on top of him onto the bed. The claimant's left shin struck the bed rail. The claimant checked the inmate's breathing, and called for medical emergency on the radio. The claimant had the inmate on the bed but was unable to cut the noose off from his neck until another officer arrived with a knife. After the string was cut from the inmate's neck, he "gasped for his last breath [and then] foam came out of his mouth" (Hearing Transcript, 11/4/09, p. 11). The medical staff arrived at that time and started CPR. The claimant then left the cell so that the medical staff could do their work. The claimant then sought medical treatment and he also gave a statement to the Bureau of Criminal Investigation. The claimant was referred to his own doctor for follow-up because of his high blood pressure and his shin, and also his lower back was hurting. The claimant went to see Dr. Beach that day and complained of high blood pressure, stress and anxiety, and he also mentioned that his shin and lower back were hurting. Dr. Beach told him he could return to work on July 28, 2009. He tried to return to work that day but the employer told him he had to be seen by Employee Health Services, and the appointment was not scheduled for another 28 days. The claimant returned to work in late August or early September. Prior to July 2009, the claimant had never been involved in a similar situation that involved an inmate that was in the process of committing suicide or had already committed suicide. However, the claimant has been aware of other inmate suicides during his nearly 20 years of work as a corrections officer. It happens about once every two months. The claimant confirmed that the officers keep a "cut-down" knife locked on the first floor that is used to cut down inmates who are hanging, or for an officer who has been taken and tied up.
After the claimant's testimony, the WCLJ relied on a prior Board Panel decision in Matter of NYS Dept of Corrections, 2008 NY Wrk Comp 50701908, and found that, per that decision, the claim is disallowed. The WCLJ explained that the issue of the stress of dealing with inmate suicide was previously adjudicated and found to be part of a corrections officer's possible job experiences. Therefore, it was not over and above the normal expected stresses of any similarly situated corrections officer.
The WCLJ's findings were set forth a decision filed on November 9, 2009.
"It is well established that a mental injury precipitated solely by psychic trauma may be compensable in workers' compensation. To constitute an accidental injury within the meaning of [WCL] § 2(7), a claimant must demonstrate that the stress that caused the claimed mental injury 'was greater than that which other similarly situated workers experienced in the normal work environment.' The factual finding of the Board with respect to whether the stress actually experienced by claimant exceeded the normal levels of stress in the work environment will be upheld if supported by substantial evidence in the record [internal citations omitted]" (Matter of Guess v Finger Lakes Ambulance, 28 AD3d 996 ).
In the Guess case, the claimant was employed as a paramedic, and was called to the scene of a catastrophic accident where the victim had been run over by a bulldozer and was very seriously injured. Specifically, "[t]he victim's torso had been nearly severed, but despite awareness of his impending death, he conversed and joked with claimant. Claimant later learned details about the victim's life, and shortly after learning of his death, she began to experience unusual reactions when reminded of the incident [and] eventually became unable to continue working as a paramedic" (id. at 997). Despite the extreme circumstances which resulted in the claim for work related post-traumatic stress disorder, the Board's decision to disallow the claim was affirmed by the Appellate Division because the claimant was a paramedic, and similarly situated workers were routinely exposed to traumatic events (id.).
Here, the claimant testified that although he was never involved in any similar incidents prior to July 2009, he is aware that inmate suicides occur at his work. In fact, he confirmed that they occur about six times per year. He further testified that he attends training on an annual basis which is given to teach suicide prevention to the corrections officers and to make them aware that inmate suicides do occur.
As noted above, the claimant testified that after cutting the string from around the inmate's neck, the inmate "gasped for his last breath [and then] foam came out of his mouth" (Hearing Transcript, 11/4/09, p. 11). However, the claimant also stated that the medical staff arrived at that time and started CPR. During his testimony, the claimant confirmed that the medical staff was still working on the inmate when the claimant left the cell. It is noted that the claimant never actually testified that the medical staff's efforts were unsuccessful. Further, the record contains no other evidence that the inmate died while the claimant was with him. Therefore, there is insufficient evidence to find that the claimant actually witnessed the inmate's death.
Nevertheless, even assuming that the claimant did witness the inmate's death, the WCLJ properly relied on Matter of NYS Dept of Corrections, 2008 NY Wrk Comp 50701908 and found that this claim should be disallowed. Specifically, the claimant is a corrections officer, and the record reflects that similarly situated corrections officers were routinely exposed to inmate suicides. The fact that this particular claimant may have been present at the actual moment that the inmate died (although this is not clearly supported by the record) is irrelevant to the analysis (see Guess, 28 AD3d 996 ).
Therefore, the Full Board finds that the preponderance of evidence in the record supports a finding that claimant did not suffer an accidental injury within the meaning of the Workers' Compensation Law.
Accordingly, the WCLJ decision filed November 9, 2009, is AFFIRMED, and the decision subsequently filed on May 16, 2011, is REVERSED. The claim is disallowed.