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Joseph v. Jefferson Parish Fire Department5/30/2000
AFFIRMED
Claimant, Kenneth M. Joseph, appeals a determination by the Office of Workers' Compensation that denied him benefits for an alleged mental injury caused by extraordinary mental stress related to his employment. Joseph, a Jefferson Parish Fire Department employee, claimed he suffered from post traumatic stress syndrome following the May 8, 1995 flood, when in the course and scope of his employment he was required to drive a fire truck through the flooded streets of Jefferson Parish while responding to rescue calls. Joseph claimed that this event, coupled with many past stressful events as a firefighter, triggered the onset of Post Traumatic Stress Disorder (PTSD).
The trial judge found that Joseph had experienced extraordinary stress while responding to the flood, but that he did not prove his entitlement to benefits. Joseph appeals, asking this court to award him benefits for a mental injury resulting from mental stress. The Jefferson Parish Fire Department answered the appeal, asking this court to reverse the trial court's factual finding that Joseph experienced extraordinary stress.
Analysis
To prove entitlement to benefits for a mental injury resulting from mental stress (the so-called "mental/mental" injury), a claimant must prove that the mental injury was caused by "sudden, unexpected, and extraordinary stress related to employment" and must prove it by clear and convincing evidence. Renter v. Willis-Knighton Medical Center, 28,589 (La. App. 2 Cir. 8/23/96), 679 So.2d 603; Cressoinnie v. Fisk Elec., 93-931 (La. App. 5 Cir. 2/14/96), 671 So.2d 3; Jeansonne v. Wick Publishing Co., 94-462 (La. App. 5 Cir. 11/29/94), 646 So.2d 1212.
LSA R.S. 23:1021 (7)(b) and (d) state, pertinently:
(7)(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.
Not only must the stress be extraordinary; it must be sudden and unexpected. Favorite v. Louisiana Health Care Authority, 98-721 (La. App. 5 Cir. 12/16/98), 725 So.2d 556; Bass v. Farmer & Cheatham, 94-1281 (La. App. 1 Cir. 6/30/95), 658 So.2d 324. Also, the statute requires that the extraordinary stress cause the mental injury.
Joseph testified, in deposition and at trial, that he had been employed by the Jefferson Parish Fire Department since August of 1979. At the time of the May 8, 1995 flood, he drove the fire truck, which transported equipment and 4 or 5 men to rescue calls and fires. Joseph said that after the flood he lost interest in his job and had an incredible fear that he was unfit to do his job. He had trouble with attendance and was accused of insubordination during the time period from January to April, 1996.
Mr. Joseph first sought counseling for his condition on April 17, 1996, almost one year after the flood. It was recommended that Joseph see the counselors at Ochsner as part of an employee assistance program in part because of insubordination charges against Joseph
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