What Do Judges Look For In Emotional Distress and Mental Injury cases?
What do Judges look for in emotional distress and mental injury cases?
Because most Trial Judges and Worker’s Compensation Deputy Commissioners have not had extensive medical training, very few have a deep understanding of the psychological impact of an on-the-job injury from an attack. Judges are often leery of finding in favor of the injured victim unless they can “see” an injury.
Doug Landau has noted this common theme in conversations with experienced Trial Judges and Worker’s Compensation Hearing Officers. Purely psychological complaints are regarded by Judges with a great deal of skepticism.
However, when there is an objective physical injury to go with the psychological component, Judges are more likely to give credence to the injured victim’s testimony. The judge may give more weight to the “invisible injury” component of the case when there is a: broken bone, cracked skull, herniated disk, large laceration, dislocation, or other perceptible changes in the victim’s anatomy. This would create a firm foundation for the other aspects of the disability claim.
Filing a claim for emotional distress in the Commonwealth of Virginia is extremely challenging when it comes to seeking compensation for a purely psychological injury. When the injury is purely emotional, it is very hard to get absolute proof of injury. Judges are always worried about people who are faking injury, disability, or perpetrating insurance fraud.
Likewise, in the context of a workplace incident where there has been a battery (a physical attack), sexual assault, or other triggers for Post-Traumatic Stress Disorder (“PTSD”), the Judges seem to have a very hard time finding in favor of the injured worker when there is no physical evidence of an anatomical injury caused by the event. That was part of the problem with the law when rape cases were brought in the Workers Compensation Commission. With no “physical injury” or “Disability from work,” these innocent victims of workplace violence and sexual assault were left without a remedy. That “hole” in the Worker’s Compensation law has been changed to give the aggrieved worker the option to bring a lawsuit or go the Worker’s Compensation route.
Absent contemporaneous proof of objective physical injury, psychic injury, emotional distress, and even PTSD claims will be very difficult. If you were someone you know has questions about how to move forward in a case involving mental or psychological injury stemming from a physical injury, please do not hesitate to contact us at 703–796–9055, or email frontdesk@landaulawshop.com.