Is Post Traumatic Stress Disorder a Compensable Injury Claim?
The Financial Responsibility Act and the Uninsured Motorist Statute, are both intended to advance the interest of society in providing full compensation for accident victims. However, the Washington Supreme Court in the Daley vs. Allstate Insurance Company decision created a situation where the same person can recover compensation for PTSD-type injuries where there is liability insurance, but not when the at fault driver was uninsured or underinsured.
The plaintiff in Daley was one of two police officers struck by a driver who carried liability insurance but in an amount insufficient to cover the injuries caused. Officer Daley was slightly physically injured but seriously psychologically injured, largely from witnessing his fellow officer’s death in the accident. Officer Daley recovered the full policy limits of the at fault driver’s liability insurance and sought additional damages from his own insurance company under his underinsured motorist coverage. The UIM contract language in the policy restricted recovery to damages for “bodily injuries” defined as “bodily injury, sickness, disease or death.”
The court applied a contract oriented analysis using the language of the policy and the uninsured/underinsured motorist statute. Since the legislature had required the insurance companies to offer UIM/UM coverage the insurance companies were entitled to limit their exposure under that requirement. Prior out of state case law, and the dictionary definitions of “bodily” established that the phrase bodily injury required physical manifestations. They therefore added “physical”to Allstate policy’s definition such that in effect it read, “bodily injury, bodily sickness, bodily disease or bodily death”. Since Officer Daley had not alleged physical manifestations of injury in conjunction with his PTSD, there was no coverage.
The Daley result is inconsistent with a line of cases involving liability insurance allowing recovery for Post Traumatic Stress Disorder when the plaintiffs were not directly injured in the accident or incident. These cases go so far as to allow recovery for Post Traumatic Stress Disorder to one who came upon the scene of a traumatic event and observed the physically injured family member. In these cases one may recover damages for medically documented emotional and psychological injuries without physical manifestations of injury.
Adler Giersch, P.S. is representing a client with a claim that Allstate insurance company says is barred by the Daley case in an attempt to change the inconsistency in Washington law. In this case, the at fault driver crossed three lanes of travel, striking two vehicles and two close friends of the injured person helping change a flat tire. The injured person’s vehicle was well off the traveled portion of the road with a WSP vehicle behind it. The injured person manifested signs of injury at the scene which intensified physically and emotionally thereafter. Because the at fault driver had no insurance the injured party presented an uninsured motorist claim against her own policy with Allstate. The uninsured motorist policy is designed to protect an insured injured by a driver who has no insurance.
It is our position that the Daley court did not write black letter law saying no to all PTSD- uninsured-motorist claims. Further, that the Daley case was fact specific, and that the court left the door open for a different result where the injured person’s evidence included proof of physical manifestations of injury as well as emotional/psychological injury. The Supreme Court opinion in Daley included a footnote that stated:
…Daley did not argue that any of his emotional distress was a direct result of his physical injuries suffered in this case….We note that this is not a case where the parties have argued that the emotional distress has manifested physical symptoms, arguably becoming a “bodily” injury under the terms of the policy. Daley does not allege that his post-traumatic distress disorder and related depression resulted in physical symptoms.
In our case, the evidence from doctors and lay witnesses clearly documents the presence of internal and outward physical manifestations of Post Traumatic Stress Disorder. The lay witness testimony documents physical manifestations of injury including hair loss, fragile nails, severe and frequent headaches, constant muscle aching in her neck and shoulder, vomiting and weight loss.
Scientific evidence has established that Post Traumatic Stress Disorder is a debilitating condition of both the mind and body. As stated by the Surgeon General of the United States in his Report on Mental Health issued in 1999, the distinction between mental and physical is no longer tenable in this area:
One reason the public continues to this day to emphasize the difference between mental and physical health is embedded in language. Common parlance continues to use the term “physical” to distinguish some forms of health and illness from “mental” health and illness. People continue to see mental and physical as separate functions when, in fact, mental functions (e.g., memory) are physical as well (American Psychiatric Association, 1994). Mental functions are carried out by the brain. Likewise, mental disorders are reflected in physical changes in the brain (Kandel, 1998). Physical changes in the brain often trigger physical changes in other parts of the body too.
As the treating expert noted in his Declaration on behalf of our client:
Having previously found that …… experienced post-traumatic stress disorder, and having illustrated that PTSD leads to acute and chronic changes in the central nervous system, I therefor find that …. has experienced physiologic/neurobiologic changes or injuries as a direct result of her exposure to the motor vehicle accident of September 1996.
The facts under which coverage was denied in Daley v. Allstate appear distinguishable. We await a decision from the Washington Court of Appeals later this year. In the meantime, those patients presenting with psychological trauma should be encouraged to seek a legal consultation from experienced personal injury attorneys to review their rights and remedies.
1 Financial Responsibility Act RCW 46.30.010 et seq and the Underinsured Motorist Statute 48. 22.010 et seq.,Mendoza v. Rivera-Chavez, 140 Wn.2d 659, 999 P.2d 29 (2000).
2 Daley V. Allstate, 135 Wn.2d 777, 958 P. 2d 990 (July 1998)
3 Hegel V. McMahon, 136 Wn.2d 122 (1998)
4 Ch. 1 Introduction and Themes, The Mind and Body are Inseparable, U.S. Department of Health and Human Services. Mental Health: A Report of the Surgeon General–Executive Summary. Rockville, MD: U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services, National Institutes of Health, National Institute of Mental Health, 1999.
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