Workers’ Compensation – Mental Injury – By Accident – In the Course of Work – Restaurant – Phone Call – Prison Guard – Prisoners’ Plot – Shanking Threat

Rainey v. N.C. Department of Correction. (Lawyers Weekly No. 10-08-0923, 12 pp.) (Pamela T. Young, Chair) Appealed from Opinion & Award of Deputy Commissioner Philip A. Holmes. I.C. No. W06010.

Holding: Even though the plaintiff-correctional officer was at a restaurant watching football when a co-worker telephoned to tell him about an inmate plot to shank plaintiff, plaintiff suffered a mental injury by accident arising out of and in the course of his job as a correctional officer.

We affirm the deputy commissioner’s award of benefits.

After serving in the U.S. Army for 24 years, plaintiff worked as a correctional officer for 13 years (including a promotion to correction officer mentor).

Because of the threat to plaintiff on Dec. 7, 2008, a “shakedown” was ordered, and a shank constructed out of half a pair of scissors was found.

Plaintiff’s co-worker, Officer Norman Turner, testified that such a specific plan of attack on a particular person causes one to “watch his back more closely” as one cannot determine from whom or where the attack will come. He testified that this sort of planned attack was quite an unusual occurrence and that it had not happened to him in the 14 years he worked for defendant.

When plaintiff returned to work on Dec. 11, more shanks were found. Plaintiff was taken out of work after two days because of anxiety.

Although plaintiff was exposed to horrifying events during the first Gulf War, when he exited the military in 1995, the Department of Veterans Affairs determined that his diagnosed “anxiety disorder (claimed as depression/PTSD)” was 0 percent disabling.

Plaintiff testified that, since the work-related incident, he has noticed a decrease in his organizational skills, loss of memory, recurrent nightmares, and obsessive thoughts about his life being threatened. Plaintiff testified that he has anxiety when in public, becomes paranoid around people, experiences stress and nervous feelings, has experienced multiple panic attacks and spends most of the time isolated in a room. Plaintiff feels depressed, is easily startled and irritable and has obsessive activity with respect to keeping doors locked.

Plaintiff had none of these symptoms prior to Dec. 7, 2008.

Plaintiff testified that, for the past 12 years, he has also had a separate business maintaining vending machines. He once made $600 to $700 a month, but his profits have decreased due to obsessive thoughts about the work-related incident and the constant fear of violence against him. Plaintiff testified that he has lost bags of money as a result of his condition and related poor memory and has also lost some accounts.

Plaintiff was terminated on Oct. 15, 2009, due to his unavailability to work. Plaintiff received short-term disability benefits from defendant through Feb. 19, 2010.

Donna Bullard, M.A., L.P.C., L.P.A., treats plaintiff. She testified that the PTSD could have lain dormant, but she believes the discovered plot to harm him was a “traumatic trigger.” Bullard testified that, if plaintiff did have PTSD before, this incident aggravated the condition, affecting him right away and interfering with his ability to work.

Bullard testified to a reasonable degree of professional certainty that plaintiff’s PTSD was caused by his Dec. 7, 2008, discovery that a group of inmates planned to harm him. She also testified to a reasonable degree of professional certainty that she would characterize this as a mental injury and that plaintiff could not return to any position at a correctional facility.

The threat against plaintiff’s life was made against him based on his status as a correctional officer, and the threatened harm would have taken place at work while he was on duty, had it ever occurred. The threat of a planned attack on plaintiff involving an unknown number of inmates was an unexpected and unusual occurrence, even given the otherwise dangerous nature of plaintiff’s employment. This unusual, work-related threat of harm or death caused plaintiff to develop PTSD.

Due to his PTSD, plaintiff is unable to return to work in a correctional facility. Given his current symptoms of poor memory, lack of organizational skills and anxiety, which have also affected his concurrent self-employment maintaining vending machines, plaintiff is unable to earn wages at this time in any employment.

Plaintiff experienced a compensable mental injury by accident, resulting in PTSD, on Dec. 7, 2008. The fact that plaintiff was not at work when he was informed of the job-related plot to harm him is not salient. The injury nevertheless arose out of and in the course of plaintiff’s employment.

Plaintiff is entitled to temporary total disability benefits and related medical expenses. He shall cooperate with any reasonable request by defendant to engage in vocational rehabilitation.