Author(s): Beth A. Andrews

PTSD WHICH IS OBJECTIVELY MANIFESTED IN PET SCAN MAY CONSTITUTE “BODILY INJURY” FOR PURPOSES OF AVOIDING GOVERNMENTAL IMMUNITY

Michigan’s motor vehicle and public building exceptions to governmental immunity render governmental entities liable only for certain types of injuries, namely “bodily injuries” and “property damage”. MCL 691.1405, 1406. In Wesche v Mecosta County Rd Comm, 480 Mich 75 (2008), the Michigan Supreme Court held that a claim for loss of consortium is not one for “bodily injury” and denied the plaintiff spouse’s claim under the motor vehicle exception.

But in the recently published opinion in Allen v Bloomfield Hills School Dist, ___ Mich App ___ (# 275797, 9/23/08), the Court of Appeals applied the holding in Wesche to a claim involving post-traumatic stress disorder (PTSD) and reached the opposite conclusion. The holding in this case is based solely on the fact that plaintiff Allen presented PET scan results which showed objective changes and abnormalities in the brain consistent with an injury to the brain, i.e., significant changes in brain chemistry, function and structure.

Plaintiff Allen was the operator of a train which struck a school bus as the bus was attempting to maneuver around the lowered railroad crossing gates. Plaintiff suffered no immediate physical injury (i.e., no blow to the

head), but later developed PTSD. He sued the school district under the motor vehicle exception to governmental immunity. Citing Wesche, the trial judge granted summary disposition in favor of the defendant, concluding that plaintiff had not suffered any “bodily injury”.

Plaintiff, however, distinguished his claim from that in Wesche, noting testimony from two doctors that his accident had, in fact, caused physical damage to his body in the form of an objectively manifested injury to his brain. Dr. Gerald A. Shiener opined that PTSD “causes significant changes in brain chemistry, brain function, and brain structure”. Dr. Joseph C. Wu testified that plaintiff’s positron emission tomography (PET) scan of his brain depicted “decreases in frontal and subcortical activity consistent with depression and post traumatic stress disorder”, that the abnormalities in Mr. Allen’s brain were quite pronounced and clearly different in brain pattern from any of the normal controls and consistent with an injury to plaintiff’s brain. Both doctors related the brain abnormalities to the accident.

In a 2 to 1 opinion, the Court of Appeals reversed, finding that plaintiff had met his burden and created a question of fact. The court cited dictionary definitions of the terms “bodily”, “injury” and “bodily injury”:

“Because the statute does not define the term ‘bodily injury,’ we resort to dictionary definitions and accord the term its plain and ordinary meaning. … Random House Webster’s College Dictionary (2001), defines ‘bodily’ as ‘of or pertaining to the body’ and ‘corporeal or material, as contrasted with spiritual or mental.’ It defines ‘injury’ as ‘harm or damage done or sustained, esp. bodily harm.’ Black’s Law Dictionary (7th ed) also defines ‘bodily injury’ as ‘[p]hysical damage to a person’s body.’ Our Supreme Court in Wesche, supra at 84-85, applied a similar analysis to the words ‘bodily injury’ in MCL 691.1405. The Court held that ‘”bodily injury” simply means a physical or corporeal injury to the body.’ Wesche, supra at 85. Consequently, the Court held that ‘because loss of consortium is a nonphysical injury, it does not fall within the categories of damage for which the motor-vehicle exception waives immunity.’” Id.

The court concluded that the brain is a part of the human body, so “harm or damage done or sustained” is injury to the brain and within the common meaning of “bodily injury” in MCL 691.1405. The court further found that “plaintiff presented objective medical evidence that a mental or emotional trauma can indeed result in physical changes to the brain”.

In his separate opinion, Judge Hoekstra agreed that plaintiff was required to prove a “bodily injury” but disagreed that PTSD satisfies that requirement. He argued that because all thoughts and emotions are connected to brain activity, accepting plaintiff’s injury as a “bodily injury” would require completely breaking down the barrier between emotional and physical harms.

Expect this decision to be appealed!

INTENTIONAL AND WILLFUL MISCONDUCT UNDER MCL 418.305 AS A BAR TO RECOVERYOF BENEFITS UNDER THE WORKERS’ DISABILITY COMPENSATION ACT

Brackett v Focus Hope, Inc

(Michigan Supreme Court, Opinion #135375, 7/30/08)

BACKGROUND

Plaintiff, Patricia Brackett was hired by Defendant Focus Hope, Inc. in January 2001. At the time of hire, the Defendants’ Chief Executive Officer explained to the claimant that the most important function of the year is the Martin Luther King, Jr. birthday celebration and that each employee was expected to attend the event. If, however, the employee had a legitimate excuse for not attending, the employee was to inform the Human Resources Department. Testimony showed that this mandatory requirement was stressed to all hirees through the interview process, as well as a subsequent orientation.

While the Martin Luther King, Jr. birthday celebration was ordinarily held in the City of Detroit, Defendants elected in 2002 to hold it in the City of Dearborn. Plaintiff advised her immediate supervisor that she would not attend the event in Dearborn as a result of prior bad experiences in the City of Dearborn and because she believed that the history of race relations in Dearborn was not in keeping with Dr. King’s legacy. While Plaintiff’s immediate supervisor advised her that she would be docked one day’s pay for refusing to attend, Plaintiff did not advise the CEO or the Human Resources Department of her decision not to attend as required.

Subsequently, Plaintiff was advised by the Chief Executive Officer that she would be docked for two day’s pay and some of her responsibilities were taken away. Plaintiff alleged that in two subsequent meetings, the Chief Executive Officer reiterated her disappointment and allegedly made comments which traumatized her. Ultimately, the Plaintiff left work and never returned alleging a psychiatric disability thereafter. While there was conflicting medical testimony with the Plaintiff’s psychologist testifying that the Plaintiff suffered a major depression precipitated by work events and was disabled and a defense psychiatrist finding no evidence of continuing mental disability, the workers’ compensation magistrate credited the testimony of Plaintiff and her psychologist finding that the Plaintiff’s mental disability arose from actual employment events and that the

Plaintiff’s perception of those events was reasonable. Workers’ Compensation benefits were awarded at the Trial level and affirmed at the Workers’ Compensation Appellate Commission and Michigan Court of Appeals.

MCL 418.305 provides:

“If the employee is injured by reason of his intentional and willful misconduct, he shall not receive compensation under the provisions of this Act.”

The Michigan Supreme Court indicated that the question in the present case was whether the claimant’s refusal to attend an employer mandated event constituted intentional and willful misconduct thereby barring recovery of workers’ compensation benefits. Finding that the Plaintiff’s refusal to attend the Martin Luther King, Jr. event constituted intentional and willful misconduct, the Michigan Supreme Court reversed the Trial Court, Workers’ Compensation Appellate Commission and Michigan Court of Appeal’s decisions ruling that the Plaintiff was barred from recovering workers’ compensation benefits.

ANALYSIS

In reviewing the magistrate’s decision, the Supreme Court noted that the magistrate found that the Plaintiff had willfully refused to attend the Martin Luther King, Jr. Day event and that her disability had resulted from that willful refusal, though he rejected the defense argument that Plaintiff’s misconduct barred recovery of benefits pursuant to MCL 418.305. In so doing, the magistrate, as well as the WCAC and Michigan Court of Appeals, referred to the prior Michigan Supreme Court case in Daniel v Dept of Corrections, 468 Mich 34 (2003), which involved a probation officer’s claim for mental disability as a result of alleged harassment by his supervisor and female attorneys upon returning to work after a suspension for sexually harassing female attorneys. The Court in Daniel concluded that the Plaintiff was injured by reason of his intentional and willful misconduct and, therefore, was barred from recovering workers’ compensation benefits pursuant to MCL 418.305. The lower Courts distinguished the level of misconduct in Brackett from that of the Daniel case based upon the level of moral turpitude indicating that Plaintiff’s conduct in Brackett was a “far cry” from the misconduct in Daniel.

The Michigan Supreme Court rejected this argument indicating that the text of Section 305 does not create a sliding scale of moral turpitude which Courts may assess in deciding whether a Plaintiff is barred from recovering workers’ compensation benefits. It is the Michigan Supreme Court’s decision that where a Plaintiff’s disability flows directly from his or her intentional and willful misconduct, Section 305 applies acting as a bar to recovery of workers’ compensation benefits.

The Michigan Supreme Court in Brackett went on to indicate that the magistrate specifically found that Plaintiff’s refusal to attend the mandated event was willful and that Plaintiff did not challenge this finding, nor did the Workers’ Compensation Appellate Commission alter this finding. As a result, the Michigan Supreme Court indicated that they must treat as conclusive the magistrate and Workers’ Compensation Appellate Commission’s finding that the Plaintiff’s refusal to attend the mandated event was willful. The Michigan Supreme Court went on to indicate further that in addition to the Plaintiff’s willful refusal to attend her employer’s most important function, that she did so in the face of an expressed requirement that she attend thereby constituting insubordination and an “obstinate or perverse opposition to the will of the employer” for which she was later disciplined. Noting that the claimant’s misconduct does not have to be equivalent to the misconduct that

occurred in Daniel in order to bar recovery of workers’ compensation benefits, the Court rejected the insertion of a “moral turpitude” requirement into the text of MCLA 418.305.

COMMENTARY

While the Michigan Supreme Court decision can be viewed as a strict statutory construction opinion from the standpoint that the law does not require that misconduct rise to a particular level of egregiousness for Section 305 to apply, there are certain parameters. In quoting the Michigan Supreme Court in Detwiler v Consumers Power Co, 252 Mich 79 (1930), the Court in Brackett noted that an employer’s work rule must be clearly established and consistently enforced in order for the employee to understand the mandatory nature of the rule and for its violation to constitute intentional and willful misconduct. It is clear that at least in Brackett, the Michigan Supreme Court was satisfied that not only was the employer’s work rule clearly established and consistently enforced but that the Plaintiff understood the mandatory nature of the rule and intentionally and willfully violated it resulting in the discipline from which her mental disability flowed directly.

All claims of mental/psychiatric disability which arise from disciplinary action for misconduct should be carefully scrutinized pursuant to the Michigan Supreme Court decision in Brackett. This is particularly so in situations where there is a violation of a clearly established work rule which is shown to be consistently enforced resulting in disciplinary action for which a Plaintiff later alleges a mental/psychiatric disability.