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Larson’s Spotlight on Recent Cases: Psychic Injury Need Not Be Immediately Apparent

March 15, 2013 (5 min read)

Larson's Spotlight on Psychic Injury, Diversity Jurisdiction, Permanent Impairment, and Tort Action. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.


LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to


IL: While "Mental-Mental" Claim Must Be Traceable to "Definite Time, Place and Cause," the Psychic Injury Need Not Be "Immediately Apparent"


Under Illinois case law, a claimant may recover workers' compensation benefits for mental-mental injuries when he or she suffers a "sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological ... harm."  The psychic injury need not, however, be "immediately apparent," held a divided Illinois appellate court recently.  In the instant case, a city bus driver claimed she sustained a psychic injury following an incident in which her bus struck and killed a pedestrian.  The driver remained at the scene for approximately four hours and the employer contended her psychic injury, if it occurred at all, did not immediately manifest itself.  The court indicated there was no such requirement of immediacy. Justice Turner dissented, positing that under appropriate precedent, an award for a mental-mental injury could be allowed only where a sudden, severe emotional shock resulted "in immediately apparent psychic injury" and was precipitated "by an uncommon event of significantly greater proportion or dimension than that to which the employee would otherwise be subjected in the normal course of employment" [emphasis by Justice Turner]. 


See Chicago Transit Auth. v. Illinois Workers' Comp. Comm'n, 2013 Ill. App. LEXIS 125 (Mar. 11, 2013) [2013 Ill. App. LEXIS 125 (Mar. 11, 2013)].


See generally Larson's Workers' Compensation Law, § 56.04 [56.04].


US: Plaintiff's Attempt to Defeat Diversity Jurisdiction by Adding Non-Diverse Employer Fails Where Plaintiff Had Already Elected Workers' Comp Remedy Against That Employer


The 8th Circuit Court of Appeals recently reversed a finding by a U.S. District Court that had allowed a plaintiff to take a voluntarily dismissal under Fed. R. Civ. P. 41(a)(2) in order to add his non-diverse employer as a defendant in a new suit in state court, finding that the district court abused its discretion in granting the voluntary dismissal without addressing whether plaintiff's purported basis for adding the employer as a defendant had a reasonable basis in fact and law.  The court added that plaintiff's claim against the employer had no such reasonable basis in law because plaintiff had already chosen to pursue and receive workers' compensation benefits and was therefore barred by Missouri's election of remedies doctrine from maintaining a tort action against his employer.  Plaintiff had initially sued defendant manufacturer in Missouri state court for products liability claims. The manufacturer removed the action to federal court, based on diversity jurisdiction.


See Donner v. Alcoa, Inc., 2013 U.S. App. LEXIS 4552 (8th Cir., Mar. 6, 2013) [ 2013 U.S. App. LEXIS 4552 (8th Cir., Mar. 6, 2013)]


See generally Larson's Workers' Compensation Law, § 102.03 [102.03]


FL: Where Maintenance of Claimant's Psychiatric Injury Required Ongoing Medication, Finding of No Impairment Was Not Grounded in Relevant Law


Where the unrebutted medical testimony was that a worker would have been at severe risk of decompensating if she were to stop taking her psychiatric medication, the worker had a permanent impairment rating (PIR) of one percent under the 1996 Florida Uniform Permanent Impairment Rating Schedule and a finding of a zero percent PIR, based on the treating physician's opinion that the worker's use of medication had no effect on impairment was not grounded on a correct application of the relevant law, held a Florida appellate court recently.  Accordingly, no reasonable view supported a finding that the worker suffered no permanent impairment.  A finding by a Judge of Compensation Claims to the contrary could not stand.


See Sheaffer v. Publix Super Markets, 2013 Fla. App. LEXIS 3763 (Mar. 8, 2013) [ 2013 Fla. App. LEXIS 3763 (Mar. 8, 2013)].


See generally Larson's Workers' Compensation Law, § 128.01 [128.01].


GA: Employer May Intervene in Injured Worker's Tort Action in Spite of Statute of Limitations Issue


A self-insured employer who paid $26,000 in workers' compensation benefits was entitled to intervene in the timely-filed third-party tort action of an injured employee in spite of the fact that at the time such intervention was sought, the statute of limitations had run against the defendants, held a Georgia appellate court recently.  Observing that OCGA 34-9-11.1(c) grants an interested party an "unconditional right to intervene," the court held that the provision supplanted any less specific provision of the Civil Practice Act "for adding parties and claims."  Here the injured worker filed her civil action just prior to the running of the statute of limitations.  The employer sought to intervene less than three months later, but after the limitations date.  Citing prior precedent, the court said that a trial court is deprived of discretion to deny a motion to intervene under OCGA § 34-9-11.1, as long as "the employer or insurer has met the statutory prerequisites, e.g., fully or partially paid workers' compensation benefits because of an injury or death caused under circumstances which created the alleged legal liability for which the worker is suing."


See Kroger v. Taylor, 2013 Ga. App. LEXIS 170 (Mar. 12, 2013) [2013 Ga. App. LEXIS 170 (Mar. 12, 2013)].


See generally Larson's Workers' Compensation Law, § 116.05 [116.05].


Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.



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