This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
A worker employed as a psychiatric technician was sexually assaulted by a convicted sex offender under his care during a work-related trip. The worker developed post-traumatic stress disorder (PTSD) as a result of the assault, which caused significant psychological and physical symptoms, including fear, shame, and an inability to report the incident immediately. The worker eventually reported the assault 19 days later and sought workers’ compensation benefits for his PTSD and lost wages due to reduced overtime hours after being reassigned to a different facility (paras 2-6).
Procedural History
- Workers’ Compensation Administration, August 27, 2008: The Workers’ Compensation Judge (WCJ) awarded the worker compensation benefits for PTSD but excluded overtime pay from temporary total disability (TTD) benefits. The WCJ also denied the employer’s request for an independent medical examination (IME) on causation and found the worker’s late notice of the injury excusable (paras 1, 6, 13, 23, 30).
Parties' Submissions
- Employer/Insurer (Appellants/Cross-Appellees): Argued that the worker’s notice of injury was untimely and that the WCJ improperly relied on subjective medical evidence to excuse the delay. They also contended that the WCJ erred in denying their request for an IME on causation and in awarding compensation benefits without it. Additionally, they argued that overtime pay should not be included in TTD benefits (paras 1, 14-15, 24, 31).
- Worker (Appellee/Cross-Appellant): Claimed that his late notice was excusable due to his PTSD and that the WCJ correctly denied the IME request. He cross-appealed, arguing that the WCJ improperly excluded overtime pay from the calculation of his TTD benefits (paras 1, 13, 31).
Legal Issues
- Was the worker’s late notice of injury excusable under the Workers’ Compensation Act?
- Did the WCJ err in denying the employer’s request for an independent medical examination on causation?
- Should overtime pay have been included in the calculation of the worker’s temporary total disability benefits?
Disposition
- The worker’s notice of injury was deemed timely and excusable.
- The denial of the employer’s request for an IME on causation was upheld.
- The exclusion of overtime pay from the TTD benefits was reversed, and the case was remanded for recalculation of benefits (paras 1, 37-38).
Reasons
Per Robles J. (Bustamante and Vigil JJ. concurring):
Notice of Injury: The WCJ’s finding that the worker’s PTSD prevented him from reporting the assault within the statutory 15-day period was supported by substantial evidence, including expert testimony from the worker’s psychiatrist and the worker’s own account of his psychological state. The court also noted that PTSD is a latent injury, and the statutory clock begins when the worker knows or should have known of the injury, not the accident (paras 12-20).
Independent Medical Examination: The court upheld the WCJ’s denial of the employer’s request for an IME on causation, noting that the request was made only 20 days before trial and would have caused undue delay and prejudice to the worker. The court also emphasized that the employer had ample time to request an IME earlier but failed to do so (paras 21-28).
Overtime Pay in TTD Benefits: The court found that the WCJ erred in excluding overtime pay from the calculation of TTD benefits. Under the Workers’ Compensation Act, compensation benefits must include overtime pay as part of the worker’s average weekly wage. The court also held that the worker was entitled to reduced TTD benefits for lost overtime hours after returning to work, as the statute presumes that lost earning capacity is due to the work-related injury (paras 29-36).