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Is Post Traumatic Stress Disorder a "Physical Injury?" (PA)

December 12, 2019

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<p style="text-align: justify;">Earlier this year, <a href="https://www.wcmlaw.com/2019/05/how-do-jurors-quantify-emotional-damage-at-trial-ny/">we reported on a New York verdict</a>, where a jury awarded eight figures to a plaintiff whose most significant injury was mental and emotional anguish.    And we noted in that post that "<span>Emotional trauma is considered an invisible injury because it is not something that can be seen on a scan or repaired with surgery, but can nevertheless lead to high, even exorbitant verdicts, if the “stars align” in plaintiff’s favor at trial."  Now, Pennsylvania finds itself examining whether a solely mental/emotional injury constitutes a physical injury, in the context of a first-party claim for medical benefits (also known as PIP or No Fault benefits, depending on the state.)</span></p>
<p style="text-align: justify;">According to the Pennsylvania Superior Court, the answer to whether Post Traumatic Stress Disorder is a physical injury is . . . <em>it depends</em>. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/12/Evans-v.-Travelers-1.pdf">Evans v. Travelers,</a> </em>the Pennsylvania Superior Court reversed the order of the Court of Common Pleas of Wayne County granting summary judgment in favor of Travelers.     Plaintiff Evans suffered a concussion, closed head injury, post-concussion syndrome, vertigo, post-traumatic vascular headaches, post traumatic vestibuloneuronitis, and PTSD after a tractor-trailer struck her car while she was driving on I-476. The collision pinned her car between the tractor-trailer and the road’s center median.  While Travelers paid Evans for her injuries sustained in the accident, it denied her claim for future coverage for her continued treatment of PTSD.  Travelers asserted that PTSD did not constitute a “bodily injury,” which would have given rise to future coverage under Evans’s policy.  The Travelers policy limited “bodily injury” to “accidental bodily harm to a person and that person’s resulting illness, disease, or death.”  That same—admittedly circular—definition of “bodily injury,” was relied on by the Pennsylvania Superior Court in <em>Zerr v. Erie Ins. Exchange</em>. The <em>Zerr</em> court found that the above definition of “bodily injury” did not include emotional or mental injuries unless they were caused by a physical injury.</p>
<p style="text-align: justify;">The lower court had found in Travelers’ favor because it reasoned that the plaintiff failed to show that her PTSD stemmed from her physical injuries, and thus, was not entitled to future coverage.  The PA Superior Court, however, reversed—finding that the definition of what is considered a bodily injury may not be so clear.   The Court distinguished <em>Zerr, since </em>the plaintiff’s claim in <em>Zerr</em> did not involve bodily injury because it was based solely on emotional injuries without any accompanying physical injuries. In contrast, Evans’s claim involved both physical injuries and emotional distress, including PTSD, which stemmed from her accident.</p>
<p style="text-align: justify;">Ultimately, the Evans found there was a genuine issue of material fact whether Evans continued to suffer from her physical injuries causing her PTSD. <em>Evans</em> presents a broader interpretation of “bodily injury” as used in most insurance policies.  Further, although the court did not state exactly what constituted “bodily injury” or whether PTSD constituted “bodily injury,” it did open up the door for more injuries to <em>become</em> a “bodily injury” as long as the claimant can show an injury is related to some physical harm.   A downside for insurers is that if emotional injuries like this one are presented to a jury, they can be very expensive to defend through expert testimony, and also, unpredictable in terms of verdict values.</p>
<p style="text-align: justify;">Thanks to John Lang for his contribution to this post.  Please email <a href="mailto:Bgibbons@wcmlaw.com">Brian Gibbons</a> with any questions.</p>

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