Moran v. Illinois Workers' Compensation Comm'n ( 2016 )

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Appellate Court Date: 2016.09.27
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Moran v. Illinois Workers’ Compensation Comm’n, 2016 IL App (1st) 151366WC
Appellate Court SCOTT MORAN, Appellant, v. THE ILLINOIS WORKERS’
Caption COMPENSATION COMMISSION et al. (The Village of
Homewood, Appellee).
District & No. First District, Workers’ Compensation Commission Division
Docket No. 1-15-1366WC
Filed July 29, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 2014-L-050679;
Review the Hon. Robert Lopez Cepero, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Thomas W. Duda, of Palatine, for appellant.
Appeal
Rusin Maciorowski & Friedman, Ltd., of Chicago (Daniel W. Arkin
and Jeffrey N. Powell, of counsel), for appellee.
Panel JUSTICE STEWART delivered the judgment of the court, with
opinion.
Presiding Justice Holdridge and Justices Hoffman, Hudson, and
Harris concurred in the judgment and opinion.
OPINION
¶1 The claimant, Scott Moran, filed an application for adjustment of claim pursuant to the
Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)) against his employer,
the Village of Homewood, seeking workers’ compensation benefits for post-traumatic stress
disorder (PTSD) allegedly caused by a March 30, 2010, work-related accident. After an
arbitration hearing, the arbitrator found that the claimant did not sustain an accidental injury
that arose out of and in the course of his employment.
¶2 The claimant sought review of the arbitrator’s decision before the Illinois Workers’
Compensation Commission (Commission). The Commission struck one sentence from the
arbitrator’s decision and otherwise affirmed and adopted her decision.
¶3 The claimant filed a timely petition for judicial review in the circuit court of Cook County.
The circuit court confirmed the Commission’s decision, and the claimant appealed.
¶4 BACKGROUND
¶5 The following factual recitation is taken from the evidence presented at the arbitration
hearing on January 7, and September 13, 2013.
¶6 The claimant testified that he started working as a firefighter in 1986. On February 22,
1991, he went to work for the employer’s fire department as a firefighter/paramedic. In 2006,
he was promoted to lieutenant/paramedic.
¶7 The claimant testified that just before 9 p.m. on March 30, 2010, a call came into the fire
station, reporting a man trapped in a chair in a house fire. On the way to the fire, the dispatcher
told him that the police were on the scene and that they were unable to rescue the man. The
Hazel Crest fire department arrived on the scene minutes before the claimant arrived with his
fire engine and crew. He testified that, under the Incident Command System, a single person is
responsible for the overall operation of an incident. He was told by radio to take command of
the incident. He went to the front door and saw the Hazel Crest firefighters enter the house. He
determined the gauge of hose to use in extinguishing the fire. He instructed firefighter
Christopher Kieta to take the hose in the front of the house. He listened to the radio for another
chief to come on the radio so he could transfer command and go in with Kieta. As he was
putting on his mask and getting ready to go in, Brian Carey came up to him and stated, “we got
this Lieu. We got this.” “Lieu” was a reference to lieutenant. Carey and Kieta went inside. The
claimant testified that he looked around the house and that the fire in back was worse than he
had originally thought, and he noticed that no one was on the roof ventilating. A Flossmoor fire
department lieutenant arrived, and the claimant told him to vent the house. The claimant
escalated the alarm to a “full still” so that additional mutual aid companies would respond to
the scene.
¶8 The claimant testified that, as he walked back around to the front of the house, there was a
flash. He saw Kieta and firefighter Karra Kopas come out of the building, and Kopas started
screaming that Carey was still in the house. After what “seemed like hours,” the claimant saw
firefighters drag Carey out. He was not wearing his mask or helmet. The claimant looked down
and said “Oh, my god.” The ambulance at the scene had been driven by Carey and, therefore,
was not available to transport him to the hospital. The claimant escalated the alarm to a mayday
and called to secure an ambulance from a mutual aid department. The claimant continued to
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supervise the scene and obtain medical care for Carey. As Carey was being transported to the
ambulance, Chief Casper from Country Club Hills approached the claimant and relieved him
of his command. After Carey had been transported to the hospital, Chief Robert Grabowski
came up to the claimant and asked what happened. The claimant told him “Chief, it’s real bad.
[Carey’s] hurt. It’s bad. You got to go to the hospital.” Chief Grabowski left for the hospital.
¶9 Chief Grabowski testified that he had worked for the employer’s fire department as the
chief for 3½ years. Prior to that, he had worked for the Village of Hazel Crest for 23 years.
Chief Grabowski testified that shortly after he arrived at the fire on March 30, 2010, Chief
Dunn of the Tinley Park fire department approached him and told him that there was probably
a line-of-duty death. Chief Grabowski told the claimant to have the crew return to the station
along with all the other initial responders. From his training, and as fire chief, he knew that
after this type of accident it was important to get everyone into one area to begin the critical
incident stress debriefing. A little less than two weeks after the incident, there was another
debriefing at the village hall.
¶ 10 The claimant testified that he and the other first responders from the employer’s fire
department were transported by the police to the police training room where clergy and other
support staff interacted with them. Carey died as a result of his injuries caused by the fire. A
critical incident stress debriefing team was brought in to assist the first responders in coming to
grips with the loss of a colleague. For approximately 10 days after the March 30, 2010, fire, the
employer’s fire department ceased performing fire suppression and emergency medical service
operations, and all of its calls were referred to mutual aid companies.
¶ 11 Chief Grabowski testified that after the fire they implemented the emergency operation
plan where surrounding fire departments provided coverage for a period of about one week. It
had never been used before. He stated that because they are a small department and some of the
firefighters were very close to Carey, he had concerns about the responders involved in the fire.
He and Deputy Chief Clint Johnson spoke to psychologist Dr. Timothy McManus, and they
decided not to take calls to make sure all the employees were okay.
¶ 12 Deputy Chief Johnson testified that he had worked full-time for the employer’s fire
department since 1979 and had been deputy chief since 2008. He testified that after the March
30, 2010, fire, it was the first time in his career that the fire department had all their calls taken
by other fire departments.
¶ 13 Christopher Kieta testified that he worked as a firefighter/paramedic for the employer and
that he was part of the crew that responded to the March 30, 2010, fire. He stated that the
claimant ordered him to pull a 2½-inch line hose into the house through the front door. He
entered the house and made his way toward the kitchen. When he started extinguishing the
kitchen fire, a huge amount of steam conversion erupted, touching the exposed skin around his
face and pushing him to the ground. As he tried to pull his hood up, he bumped into Carey. He
asked Carey to take the hose while he fixed his hood. He backed up behind Carey and bumped
into Kopas. He asked Kopas to back Carey up so he could adjust his helmet and hood. He fixed
his hood and noticed that they were pulling on the line. He picked up the hose and started
maneuvering it forward. When he was in the front room about three feet from the front door, he
heard breaking glass, and there was a flashover.1 He heard someone on the radio ordering
1
A flashover is the sudden spread of flame over an area and the rapid transition to a fully developed
fire.
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everyone out of the house. The Hazel Crest firemen rushed out, and he got pushed out the door.
The Hazel Crest firefighters grabbed Kopas and pulled her out. He informed the Hazel Crest
crew that Carey was still in the building. He went to his engine to get another hose line. He
passed the second line to the Hazel Crest firefighters and followed them in the house. About 10
feet into the structure, they found Carey. Carey was carried into the yard, where emergency
personnel began administering aid. Kieta stated that he was transported to the fire station for a
traumatic debriefing session.
¶ 14 The claimant testified that he went to the fire station on April 9, 2010, to do work for his
position as pension board secretary. Chief Grabowski called him into his office and stated that
he could not return to work until he was cleared by a psychiatrist.
¶ 15 The employer selected Dr. McManus to treat some of the firefighters involved in the March
30, 2010, fire. An e-mail from the claimant to Chief Grabowski dated April 20, 2010, was
admitted into evidence. The claimant wrote that he had sent an e-mail to Deputy Chief Johnson
on April 12, 2010, requesting the name and number of the psychiatrist chosen to evaluate the
firefighters. He had requested an appointment with the doctor the next day and had been
denied. He wrote that he had e-mailed Deputy Chief Johnson again for the information about
the doctor and had received no response. He closed, “In the interest of preserving my mental
status and recognizing signs of PTSD I have arranged to begin seeing Dr. Slutsky.”
¶ 16 Chief Grabowski’s response e-mail dated April 20, 2010, was admitted into evidence. He
wrote that he received “word yesterday that [the claimant was] able to see Dr. McManus.” He
stated that it was important that the claimant seek help as needed and that he would be
scheduled with Dr. McManus as soon as possible.
¶ 17 The claimant testified that, on referral from his attorney, he made an appointment to see
psychiatrist Dr. Marc Slutsky, on May 5, 2010. He then received Dr. McManus’s contact
information and began treating with him on April 23, 2010. He stated that this was the first
time he had received mental health treatment. The claimant testified that he treated with Dr.
McManus to deal with his inability to get his mind off the fire, his difficulty sleeping, and his
interactions with other people including his family.
¶ 18 Licensed clinical psychologist Dr. McManus testified by evidence deposition. His records
were also admitted into evidence. He testified that he received a referral from Chief Deputy
Johnson to assess several firefighters, including the claimant, who were involved in the March
30, 2010, fire. He stated that he first saw the claimant for an assessment on April 23, 2010. In
his notes, Dr. McManus wrote that the claimant expressed significant frustration with the
referral process. The claimant reported a mixture of feelings of guilt about the fire, the burden
of his responsibility as supervisor for the death, feelings of abandonment by his supervisors,
sleep difficulties, and dreams about the event. Dr. McManus stated that the claimant was
guarded and that it was difficult to engage him in the therapeutic process. He diagnosed the
claimant with acute stress disorder.
¶ 19 On May 5, 2010, Dr. McManus diagnosed the claimant with PTSD. He wrote in his patient
notes that the claimant seemed “lost and tremendously burdened.” Dr. McManus testified that
the change from acute stress disorder to PTSD is a natural progression diagnostically and that
PTSD is not diagnosed within the first 30 days of when an individual experiences any kind of
trauma.
¶ 20 Dr. McManus testified that his fourth session with the claimant was a turning point in the
therapy. They worked together to facilitate a less guarded response to sessions and to begin to
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use the sessions in a way that would benefit the claimant. Dr. McManus explained that the
claimant was not the kind of person who spoke about his feelings and that getting him to
verbalize emotions showed a change in the trust level and a willingness to be more engaged in
the therapy process. He felt that the claimant was showing signs of subtle improvement
emotionally, in managing his stress, and in his sleep patterns.
¶ 21 On June 4, 2010, Dr. McManus administered a personality and assessment inventory called
the MMPI-RF to the claimant to determine the claimant’s progress. He testified that the test
results indicated that the claimant experienced a traumatic event; that there was mild distrust of
the process; that the claimant was showing good control over his anxiety, mood, and any
depressive affect; and that the claimant had made sufficient progress to consider returning to
work. Dr. McManus testified that he determined that effective June 14, 2010, the claimant
could return to work as long as he remained in therapy. He testified that the claimant’s PTSD
symptoms were stable, meaning that the claimant’s symptoms were not disrupting his
functioning or interfering with his relationships.
¶ 22 Dr. McManus testified that, at the August 26, 2010, session, he and the claimant discussed
a visual flashback the claimant had while driving with his son. Dr. McManus stated that the
event was psychologically significant because it showed that the fire was significantly or
powerfully coded within the claimant’s memory structures. He stated that the flashback
indicated that the fire had impact and power for the claimant and that a picture of the event
could surface under a very relaxed condition or a nonguarded condition. They discussed the
meaning of the flashback and its significance.
¶ 23 Dr. McManus continued to treat the claimant in September and October 2010. Dr.
McManus testified that the claimant formally returned to work between the October 25 and
November 9, 2010, sessions. During the November sessions, they discussed the claimant’s
condition after he returned to work, coping mechanisms, and sleep difficulties at the fire
station.
¶ 24 On December 21, 2010, Dr. McManus released the claimant from treatment. He felt that
the claimant had transitioned back to work successfully. Dr. McManus told the claimant that
he could return for treatment if he experienced any difficulties.
¶ 25 Dr. McManus testified that he treated the claimant again on January 11, 2011. The claimant
returned because there were things at the fire station that triggered memories of Carey and
caused him to think about Carey’s death. The claimant expressed difficulty shutting the
thoughts off and struggled with feelings of conflict and guilt about the accident. The claimant
testified that he asked Dr. McManus if the flashbacks were ever going to end and whether it
would get better or worse. Dr. McManus testified that he told the claimant that his responses to
the cues in the firehouse were normal, and they reviewed some thought-stopping exercises and
how to turn the cues from adverse to more positive. The claimant testified that he never had
comparable mental experiences prior to the March 30, 2010, fire.
¶ 26 Dr. McManus testified that it was not unusual that the claimant experienced symptoms
once he had returned to work because he was in a setting where he was reminded of the March
30, 2010, fire on a daily basis, nor was it unusual that the claimant continued to think about the
event over and over. Dr. McManus testified that the claimant would continue to have
ruminations, thoughts about the event, or flashbacks after therapy even though they did not
affect his ability to work.
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¶ 27 Psychiatrist Dr. Marc Slutsky testified by evidence deposition. He testified that the
claimant was referred by his attorney as a possible patient for psychotherapy. On May 4, 2010,
Dr. Slutsky conducted a psychiatric evaluation of the claimant. Dr. Slutsky testified that the
claimant told him about the March 30, 2010, fire and described his initial terror, his feelings of
responsibility, his guilt for the deployment of personnel within the fire, his guilt that in
commanding he was not in the fire himself, the shock of seeing one colleague killed and
another injured, his feelings of fear and anxiety, the terrifying thoughts that were dominating
his thinking, and the recurrent reliving of the fire. He discussed how this led him to be
withdrawn and more irritable and angry. He also expressed how frightened he was that he
would be locked in this state and wanted help.
¶ 28 The claimant did not become a patient, but Dr. Slutsky saw him again on February 8, and
November 2, 2012. He testified that, when he first met the claimant in 2010, “his almost
consummate focus was on the terror, the fear, the anxiety, the panicky state.” The claimant was
in a post acute stress situation and was very much all consumed by it. By 2012, his symptoms
of flashbacks, episodes of stimulation that brought the incident to mind, general irritability and
discomfort, and change in sleep patterns were more compatible with PTSD. He went from a
totally consuming state to where the episodes were triggered by specific people or things that
reminded him of the accident or spontaneous sporadic episodes. Dr. Slutsky stated that, in
February 2012, the claimant had significantly improved in his ability to function, even though
he had significant signs of PTSD, including tremendous elements of irritability, difficulty
relating, isolation, flashbacks, and other symptoms. The claimant had a somewhat improved
sense that he could use the tools of self-reflection, withdrawal, relaxation, and limitation of
interaction to lessen the intensity of his symptoms. Dr. Slutsky testified that, when he saw the
claimant in November 2012, the claimant’s symptoms were more encapsulated, meaning that
they were more specifically episodic, they had more definitive beginnings and ends, and they
were less severe and more easily controlled.
¶ 29 Dr. Slutsky testified that the event of March 30, 2010, caused the claimant to suffer an
overwhelmingly traumatic experience, in which he witnessed and was confronted with a
life-threatening experience, and he experienced overwhelming feelings of horror, helplessness,
fear, and guilt. Dr. Slutsky stated that the claimant suffers from a number of symptoms,
including recurrent intrusive recollections, images of experiences, flashbacks, dreams, and
insomnia. The claimant withdraws from social interactions; he does not feel comfortable being
relaxed at the fire station; he has a pessimism he did not have before, there are times he is
overly worried and irritable, and he has difficulty concentrating. Dr. Slutsky diagnosed the
claimant with chronic PTSD based on the fact that the claimant had an exposure to a sudden,
unusual, traumatic event, and the fact that, over a period of time, he developed symptoms in a
number of different patterns, including hypervigilance, withdrawal, insomnia, flashbacks,
horrible nightmares, and intrusive thoughts. Dr. Slutsky stated that PTSD is an evolving
response and that the diagnosis often does not manifest itself in any form for weeks, months, or
even years after the trauma. He stated that the claimant’s profession did not alter his diagnosis.
Dr. Slutsky testified that people like firefighters or paramedics develop coping methods to deal
with deaths in fires or automobile accidents, but when something happens that is of an
extraordinarily different nature, such as when a colleague dies in a fire, it presents a totally
different situation. He testified that, within a reasonable degree of medical and psychiatric
certainty, the claimant’s diagnosis of PTSD was caused by the March 30, 2010, events.
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¶ 30 The claimant described his flashbacks as recurring visions that popped into his head
throughout the day for no reason. He said he had six or seven different flashbacks but the most
prominent were visions of firefighters dragging Carey from the fire, emergency personnel
carrying Carey off on a stretcher, and Carey’s funeral. The claimant testified that he continues
to have multiple flashbacks each day; he is unable to sleep at the firehouse; and he does not
sleep well at home. Since being released by Dr. McManus, he has been able to go to fires and
on emergency medical calls and has been able to function as a lieutenant despite the flashbacks
and trouble sleeping.
¶ 31 The arbitrator found that the claimant did not prove that he sustained accidental injuries
that arose out of and in the course of his employment with the employer and, therefore,
awarded no benefits. She noted that the claimant had an adverse emotional reaction stemming
from the March 30, 2010, fire. She found that he had not experienced a sudden, severe
emotional shock because he did not sustain a physical injury, he did not witness Carey’s death,
and he was not involved in rescue efforts. She found that the proper interpretation and
evaluation was to compare the claimant with other firefighters, rather than with the public in
general. She found that this case was similar to cases that did not allow recovery for
nontraumatic psychic injury where the employee could identify a stressful work-related
episode, but his injury was dependent on his peculiar vicissitudes as he related to his work
environment. She awarded the employer a credit of $7477.30 for temporary total disability
benefits paid to the claimant. She found all other issues moot.
¶ 32 The claimant sought review of the arbitrator’s decision before the Commission. The
Commission affirmed and adopted the arbitrator’s decision, striking the following sentence:
“The Arbitrator also notes that the cases are employment specific and, in the context of
firefighters and police officers, establish a trend to deny recovery for post-traumatic stress
disorder to first responders.” The claimant sought judicial review of the Commission’s
decision in the circuit court. The circuit court confirmed the Commission’s decision, and the
claimant appealed.
¶ 33 ANALYSIS
¶ 34 The claimant argues that the Commission’s decision that he did not sustain an accident that
arose out of and in the course of his employment with the employer on March 30, 2010, is
contrary to law. The parties differ on the standard of review. The claimant argues that the only
question is the application of law to the undisputed facts, and therefore, the Commission’s
decision should be reviewed de novo and set aside. The employer argues, on the other hand,
that there are disputed facts or conflicting inferences that can be drawn from the facts and the
Commission’s decision should not be disturbed unless it is against the manifest weight of the
evidence. We agree with the employer.
¶ 35 The disputed issue presented in this case is whether the claimant suffered a sudden, severe
emotional shock during the March 30, 2010, fire that produced a psychological injury. The
employer argues that the claimant did not suffer a sudden, severe emotional shock because he
was not inside the house when the flashover occurred, he did not see Carey or Kopas sustain
their injuries, and he did not seek treatment on his own accord. The claimant argues that he did
suffer a sudden, severe emotional shock because he was at the scene of the fire in a position of
command and he did seek treatment on his own accord. When the facts are in dispute or
conflicting inferences may be drawn from the facts, this court will not disturb the
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Commission’s decision unless it is against the manifest weight of the evidence. Chicago
Transit Authority v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 120253WC,
¶ 24, 989 N.E.2d 608. A decision is against the manifest weight of the evidence only where an
opposite conclusion is clearly apparent. Id. “Although we are reluctant to conclude that a
factual determination of the Commission is against the manifest weight of the evidence, we
will not hesitate to do so when the clearly evident, plain, and undisputable weight of the
evidence compels an opposite conclusion.” Mlynarczyk v. Illinois Workers’ Compensation
Comm’n, 2013 IL App (3d) 120411WC, ¶ 17, 999 N.E.2d 711.
¶ 36 In Pathfinder v. Industrial Comm’n, 62 Ill. 2d 556, 562, 343 N.E.2d 913, 916 (1976), the
supreme court addressed the question of whether an employee can recover for psychological
disability when the accident caused no physical injury. The court held that an employee who
suffers a sudden, severe emotional shock traceable to a definite time, place, and cause, which
causes psychological injury or harm has suffered an accident within the meaning of the Act,
though no physical trauma or injury was sustained. Id. at 563, 343 N.E.2d at 917. This is
known as the mental-mental theory of recovery. Diaz v. Illinois Workers’ Compensation
Comm’n, 2013 IL App (2d) 120294WC, ¶ 23, 989 N.E.2d 233.
¶ 37 In the instant case, the Commission found that “the proper interpretation and evaluation is
to compare the petitioner in the present case with other firefighters, rather than the general
public.” The Commission found that the case was similar to General Motors Parts Division v.
Industrial Comm’n, 168 Ill. App. 3d 678, 522 N.E.2d 1260 (1988). In that case, the employer
appealed from the Commission’s order awarding benefits to the claimant for a psychological
injury suffered after his supervisor verbally assaulted him with profanity and racial slurs. Id. at
679, 522 N.E.2d at 1260. The appellate court found that Pathfinder does not “permit recovery
for every nontraumatic psychic injury from which an employee suffers merely because the
employee can identify some stressful work-related episode which contributes in part to the
employee’s depression or anxiety.” Id. at 687, 522 N.E.2d at 1266. The court held that
“Pathfinder is limited to the narrow group of cases in which an employee suffers a sudden,
severe emotional shock which results in immediately apparent psychic injury and is
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.” Id.
The court found that the claimant’s condition was not the immediately apparent severe reaction
to an exceptionally distressing stimulus which, pursuant to Pathfinder, constituted a
compensable injury. Id. The court found that the claimant failed to establish that the verbal
abuse he suffered, though unpleasant, was anything other than an ordinary incident of
employment that was not uncommon to and might well be encountered in a great many
occupations. Id. at 688, 522 N.E.2d at 1266. The court also found that the claimant failed to
establish that his disability flowed from the confrontation and that the evidence supported a
finding that his breakdown was caused by a gradual deterioration of his mental processes
brought on by a variety of factors, not a single work-related event or stimulus. Id., 522 N.E.2d
at 1266-67.
¶ 38 In Diaz, this court clarified the holding in General Motors. In Diaz, the claimant, a police
officer, responded to a disturbance call and was approached by an individual who pulled a gun
and pointed it at the claimant. Diaz, 2013 IL App (2d) 120294WC, ¶¶ 4-5, 989 N.E.2d 233.
The claimant did not realize until some later time that the gun was a toy gun. Id. ¶ 5. Backup
was called and the individual returned to his home, where an extended standoff occurred. Id.
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¶¶ 5-6. Until the individual was restrained, the almost 40 officers present at the standoff
considered him armed and dangerous. Id. ¶ 7. Three days later, the claimant had a panic attack,
and he was subsequently diagnosed with PTSD. Id. ¶¶ 8-9. The Commission applied the
narrow construction of Pathfinder as expressed in the General Motors decision. Id. ¶ 26. The
Commission acknowledged that the claimant’s encounter with an individual armed with a gun
presented a dangerous and precarious situation but denied compensation because the traumatic
event was not an uncommon event of significantly greater proportion than he would otherwise
have been subjected to in the normal course of his employment as a police officer. Id. ¶ 30.
¶ 39 The claimant appealed, and this court considered whether the Commission held the
claimant, a police officer, to a unique standard of “severe emotional shock” not otherwise
applicable to employees in other lines of work, rendering its decision contrary to law. Id. ¶ 22.
The court found that the claimant’s psychological harm was compensable under the Act. Id.
¶ 34. The court held that the phrase “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” was used in General Motors to distinguish compensable claims from a mental
disability that arises from the ordinary job-related stress common to all lines of employment.
(Internal quotation marks omitted.) Id. ¶ 31. The court noted that it is well established that
mental disorders not arising from a severe emotional shock must arise from a situation of
greater dimension than emotional strain and tension all employees experience from worry,
anxiety, pressure, and overwork. Id. The court found that the claimant did not develop a mental
disability attributable to factors such as worry, anxiety, tension, pressure, overwork, and the
emotional strain all employees experience but, instead, experienced a severe emotional shock
traceable to a specific time, place, and event that produced his disability. Id. The court held that
“whether a worker has suffered the type of emotional shock sufficient to warrant recovery
should be determined by an objective, reasonable-person standard, rather than a subjective
standard that takes into account the claimant’s occupation and training.” Id. ¶ 33.
¶ 40 In the present case, the employer argues that the claimant did not suffer a severe emotional
shock on March 30, 2010. The employer argues that the claimant was not involved in the
traumatic event because he was not inside the house, he was not involved in the flashover, he
did not sustain a physical injury, he was not involved in the rescue of Carey or Kopas, he was
not involved in the efforts to resuscitate Carey, and he did not witness the death of Carey or the
burns sustained by Kopas. The claimant’s presence outside the house does not preclude the
event from being traumatic. The claimant was in command of the fire. He instructed the crew
on where to enter the house and what gauge hose to use. He planned to go inside the house
when Carey told him “we got this,” and he opted to remain outside to command. He escalated
the fire alarm to a “full still.” He saw Carey dragged from the house. Because there was no
ambulance readily available, he secured an ambulance. He supervised the scene and obtained
medical care for Carey. When Chief Grabowski arrived at the scene, the claimant informed
him that Carey was badly injured and that he should go to the hospital. Carey died from injuries
sustained in the fire.
¶ 41 The death of a coworker had not previously occurred during the claimant’s career. Due to
the traumatic nature of the March 30, 2010, event, the first responders were taken from the fire
to the police station for critical incident stress debriefing. For approximately 10 days after the
fire, the employer’s fire department ceased performing fire suppression and emergency
medical service operations, and all of its calls were referred to mutual aid companies. Deputy
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Chief Johnson stated that he had worked for the employer’s fire department since 1979, and it
was the first time in his career that the fire department had its calls taken by mutual aid
companies. Chief Grabowski testified that this emergency operation plan had never been used
before and was instituted after he and Dr. McManus determined that it would be best to help
the firefighters deal with the trauma and come to grips with the fire and Carey’s death. None of
the firefighters involved in the March 30, 2010, fire were allowed to return to work until he or
she had been cleared by a mental health professional. Extraordinary steps were taken to help
the claimant and his fellow firefighters deal with the trauma of the March 30, 2010, events.
Additionally, Dr. Slutsky testified that although firefighters and paramedics develop coping
mechanisms to deal with deaths in fires and automobile accidents, the death of a colleague in a
fire is an event of an extraordinarily different nature. Clearly, this is not the kind of event that
an employee would be subject to during the normal course of employment.
¶ 42 The claimant’s condition was not a gradual deterioration of his mental processes brought
on by a variety of factors but a single, work-related event. Dr. McManus noted that the
claimant had feelings of guilt about the fire and felt the burden of responsibility for Carey’s
death because of his command role. Dr. McManus testified that he administered a personality
and assessment inventory test to the claimant, and it indicated that the claimant had
experienced a traumatic event. Dr. Slutsky testified that the claimant had feelings of
responsibility; guilt for the deployment of personnel within the fire; guilt that in commanding
he was not in the fire itself; and shock from seeing one colleague suffer fatal injuries and
another suffer serious burns. Dr. McManus diagnosed the claimant with PTSD caused by the
trauma of the March 30, 2010, event. He stated that the claimant’s August 26, 2010, flashback
showed that the fire was powerfully coded within the claimant’s memory structure. Dr. Slutsky
testified that, within a reasonable degree of medical and psychiatric certainty, the claimant’s
PTSD was caused by the March 30, 2010, events. No conflicting medical evidence was
presented. The claimant’s condition was a severe reaction to an exceptionally distressing
emotional shock.
¶ 43 The employer argues that the claimant’s delay in seeking psychological treatment calls into
question whether he sustained an accidental injury on March 30, 2010. In Chicago Transit
Authority v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 120253WC, ¶ 20,
989 N.E.2d 608, the court examined whether a claimant’s psychological injury must be
immediately apparent to recover for traumatically induced mental-mental injuries.
¶ 44 In Chicago Transit Authority, the claimant was driving a bus through an intersection when
a passenger from the back of the bus shouted that someone chasing the bus had been hit. Id. ¶ 6.
The claimant stopped the bus, exited, and saw a man lying near the curb. Id. The man was
removed from the scene by ambulance. Id. ¶ 7. While at the employer’s garage completing an
accident report, the claimant was informed that the accident victim had died. Id. ¶ 8. She was
shaken up and had flashbacks and trouble sleeping but did not seek professional help for two
months. Id. ¶¶ 8-11. She was diagnosed with an adjustment disorder with mixed anxiety and
depressed mood. Id. ¶ 11. The Commission found that the claimant proved she sustained
psychological injuries arising out of and in the course of her employment, and the employer
appealed. Id. ¶¶ 13-15. The employer argued that the claimant could not recover because her
psychological injury was not immediately apparent. Id. ¶ 18. The appellate court rejected the
assertion that to recover for traumatically induced mental-mental injuries the psychological
injury must be immediately apparent. Id. ¶ 20. The court held that “if the claimant shows that
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she suffered a sudden, severe emotional shock which caused a psychological injury, her claim
may be compensable even if the resulting psychological injury did not manifest itself until
some time after the shock.” Id.
¶ 45 In the instant case, the claimant suffered an accidental injury on March 30, 2010. On April
12, 2010, the claimant sought the name of a psychiatrist from Deputy Chief Johnson. In an
e-mail to Chief Grabowski dated April 20, 2010, he again sought help in obtaining
psychological treatment and indicated that he was having symptoms of PTSD. He began
treatment with Dr. McManus on April 23, 2010. The claimant sought help less than two weeks
after the accident and began treatment less than one month after the accident. In Chicago
Transit Authority, the claimant did not seek psychological treatment for two months. Id. ¶ 23.
Here, although the claimant’s psychological injury was not immediately apparent, he, like the
claimant in Chicago Transit Authority, suffered a sudden, severe emotional shock, which
caused a psychological injury that manifested itself some time after the shock.
¶ 46 The March 30, 2010, accident arose out of and in the course of the claimant’s employment,
and his condition of ill-being was causally related to the accident. He was responding to a fire
and was in command of the fire. He determined what gauge hose should be used and instructed
the firefighters where to go to fight the fire. After the house flashed, he witnessed Carey being
dragged from the house and assisted by locating an ambulance and obtaining medical care.
Carey died as a result of the fire. The claimant was treated by Dr. McManus and Dr. Slutsky,
who both diagnosed him with PTSD attributable to the March 30, 2010, events. No conflicting
medical evidence was presented.
¶ 47 The employer’s actions following the March 30, 2010, fire indicate that it believed the first
responders suffered a sudden, severe, emotional shock of greater dimension than emotional
strain and tension all employees experience from worry, anxiety, pressure, and overwork. Due
to the traumatic nature of the event, all first responders returned to the station for critical
incident debriefing. For the first time in the history of the fire department, the department
ceased performing fire suppression and emergency medical service operations and referred all
calls to mutual aid companies for a period of approximately 10 days. This decision was made
by Chief Grabowski and Deputy Chief Johnson after consultation with Dr. McManus. The
defendant was not permitted to return to work until cleared by Dr. McManus, who the
employer hired to treat firefighters involved in the March 30, 2010, fire.
¶ 48 The Commission’s decision that the claimant did not sustain accidental injuries that arose
out of and in the course of his employment with the employer is against the manifest weight of
the evidence. The claimant’s psychological injuries stemmed from a single, traumatic event on
March 30, 2010, and he is entitled to recover for his psychological disability.
¶ 49 The claimant also argues that the Commission’s determination that he failed to provide
proper notice was against the manifest weight of the evidence. The Commission did not make
such a finding. While notice was a disputed issue, the Commission did not address the issue,
finding that, because the claimant did not prove an accident, the remaining issues were moot.
Because the case must be remanded, the issues the Commission determined moot, including
notice, should be addressed at that time.
¶ 50 The claimant also argues that the Commission’s decision to award the employer credit for
temporary total disability benefits was against the manifest weight of the evidence. The
Commission did award the employer a credit of $7477.30 for temporary total disability
benefits paid to the claimant. The decision contains no analysis or reasoning for this award. As
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this matter must be remanded, the issue of the credit for temporary total disability benefits
should be addressed on remand.
¶ 51 The claimant also argues that the Commission’s decision not to admit his exhibit No. 4 into
evidence was error. The claimant’s exhibit No. 4 was a photograph taken of the resuscitation
efforts on Carey, with the claimant in the left-hand margin. The employer objected on the
ground that no foundation had been laid. The arbitrator rejected the exhibit. The evident
purpose for offering the photograph into evidence was to show that the claimant was present at
the scene of the traumatic event. Since we are reversing the Commission’s determination that
this claim is not compensable based on the other evidence in the case, we need not address this
issue.
¶ 52 CONCLUSION
¶ 53 For the foregoing reasons, the judgment of the circuit court of Cook County, confirming
the decision of the Commission, is reversed and the cause is remanded to the Commission.
¶ 54 Reversed and remanded.
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