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January 25, 2001

NO's. 1-99-3877WC and 1-99-3898WC

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
INDUSTRIAL COMMISSION DIVISION

Claimant, Beverly Matlock, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS305/1 et seq. (West 1996)) for injuries sustained while in the employ of American Airlines, employer. The arbitrator awarded claimant temporary total disability benefits and medical expenses plus penaltiesand attorney fees. On review, a majority of the Industrial Commission (Commission) affirmed thefinding of compensability but modified the amount of temporary total disability benefits and reversed theaward of penalties and attorney fees. The concurring Commissioner would have also affirmed the awardof penalties, and the dissenting Commissioner would not have found the claim compensable. The circuitcourt of Cook County confirmed the decision of the Commission. Both claimant and employer appeal. Employer argues the finding that claimant sustained an accident arising out of her employment is againstthe manifest weight of the evidence. Claimant, in her appeal, contends the denial of penalties andattorney fees is against the manifest weight of the evidence.

At the time of the incident claimant was a flight attendant who had worked for employer some 27 years. On November 22, 1997, claimant was assigned to the business class cabin on American Airlines Flight66 bound from Chicago to London.

Claimant testified she initially noticed passenger Alva Kathleen Kelly during boarding. Ms. Kelly wasnoted as being troublesome, and the captain requested the security coordinator to speak with her andassess her "fitness" to travel on Flight 66. The security coordinator found Ms. Kelly to be a bit eccentricbut suitable to fly.

After the plane took off from Chicago, Ms. Kelly appeared numerous times in the cabin at the galleywhere claimant was stationed. She was repeatedly told to return to her seat as she was not supposed tobe in that area. Eventually the captain removed Ms. Kelly from the galley and informed her she was toreturn to her seat and put on her seatbelt. Ms. Kelly told a number of the flight attendants on board thatthe FBI was trying to kill her, that she was being forced to leave the country, and that she had threemillion dollars worth of chemicals in her possession. At one point, Ms. Kelly began making unusualrequests including asking for oxygen. When her requests for oxygen were denied, Ms. Kelly begancrying and claiming she could not breathe. Eventually one of the flight attendants gave Ms. Kelly anoxygen container to quiet her down but did not turn on the oxygen. Once given the container, Ms. Kellybegan flashing a cigarette lighter trying to ignite the oxygen. The lighter and container were then takenaway from Ms. Kelly and she was confined to her seat. Shortly thereafter, Ms. Kelly covered herselfwith a shroud and sprayed a chemical, later determined to be parachlorophenol, on herself. The chemicalis used mainly as a topical anesthetic by dentists, and can cause nausea, vomiting, pallor,hyperventilation, coma, low blood pressure, pulmonary edema, renal failure, shock and palpitations ifabsorbed through the skin into the bloodstream. The fumes of the chemical permeated into the galleywhere claimant was working and she began to feel nauseated and dizzy and experienced heartpalpitations. The flight attendant who was sitting with Ms. Kelly passed out. The captain diverted theplane and landed in Dublin, Ireland. Ms. Kelly was arrested, and claimant and six other flight attendantsand passengers were taken to a local hospital for observation. Claimant was released three hours laterand was told to rejoin the flight crew. Claimant resumed her regular duties and flew on to London andthen worked the flight back to Chicago in order to return home. She testified she could still smell theodor of the chemical on the plane and felt nauseated. Her heart continued to pound hard or irregularly. Claimant further stated she felt anxious and fearful, and on the return flight to Chicago, she felt asthough she was not part of the environment of the plane. When the flight landed in Chicago, claimantimmediately was debriefed by the FBI and employer. Employer apologized for the trouble on the flightand gave her a pamphlet entitled "Understanding Traumatic Stress Responses: A Handout for Victimsand/or Family Members." Claimant requested to see a counselor and was sent to Dr. George O'Shea. Claimant met with Dr. O'Shea three times and was told she should continue counseling. Employerrefused to pay for any more sessions with Dr. O'Shea, however. At this point, claimant testified, she feltabandoned by employer.

Approximately five days later, claimant sought treatment from psychologist, Dr. Sharon Lieteau. Claimant had previously treated with Dr. Lieteau in 1992 for depression and again in 1995 following thedeath of her mother and the burning of her brother in a fire. Dr. Lieteau diagnosed claimant with posttraumatic stress disorder stemming from the November 22 flight incident. Claimant complained ofrecurring nightmares in which the plane actually explodes and she awakes in the midst of a panic attack. Claimant told Dr. Lieteau she felt as though she had narrowly escaped death and lost her ability to feelsafe in her normal environment. She also felt a great deal of anger at employer for allowing Ms. Kelly toboard the plane and for abandoning claimant after the incident. Dr. Lieteau noted a significantdifference in claimant's behavior before and after the incident. Specifically she observed a deteriorationin claimant's physical appearance, forgetfulness, and a decreased activity and involvement in her life. Atthe time of arbitration claimant was still undergoing treatment and had not been released to return towork. Claimant testified she returned to the airport once in January 1998 to pick up a bid sheet to try andreturn to work. She testified she was very uncomfortable and was afraid that if anyone spoke to her shewould faint. She further testified she still experiences anxiety attacks in crowds, has periods offorgetfulness, often becomes disoriented when she attempts to go out by herself, and has difficultysleeping. Claimant admitted she has been able to keep up with her part-time studies at Chicago StateUniversity.

Employer's expert, Dr. Ronald Ganellen, a clinical psychologist, evaluated claimant in March 1998. Hedisagreed with the diagnosis of post traumatic stress disorder and concluded claimant's problemsstemmed more from her anger at employer. He did not release her to return to work, however, and foundher to still be in need of psychotherapy. He diagnosed claimant as suffering from adjustment disorderwith anxiety.

The arbitrator found claimant's claim compensable and further concluded claimant was entitled topenalties and attorney fees because employer's conduct was unreasonable and vexatious. Employer wasaware of all the events which took place on Flight 66 and sent her for counseling but did not attempt toobtain a medical evaluation to controvert the findings of the doctors until March 1998. The Commissionand the circuit court agreed claimant was entitled to benefits but did not find employer's conduct to be sounreasonable as to justify the imposition of penalties and attorney fees. The circuit court confirmed thedecision of the Commission.

In Illinois, psychological injuries are compensable under one of two theories, either physical-mental,when the injuries are related to and caused by a physical trauma or injury, or mental-mental, when theinjuries are caused by sudden severe emotional shock traceable to a definite time and place and causeeven though no physical trauma or injury was sustained. See City of Springfield v. Industrial Comm'n,291 Ill. App. 3d 734, 738, 685 N.E.2d 12, 14 (1997). Recovery for non-traumatically-induced mentaldisability is limited to those employees who can establish that: (1) the mental disorder arose in asituation of greater dimensions than the day-to-day emotional strain and tension which all employeesmust experience; (2) the conditions exist in reality, from an objective standpoint; and (3) the employmentconditions, when compared with the nonemployment conditions, were the major contributing cause ofmental disorder. Northwest Suburban Special Education Organization v. Industrial Comm'n, 312 Ill.App. 3d 783, 787, 728 N.E.2d 498, 501 (2000). Mental disorders which develop over time in the normalcourse of the employment relationship do not constitute compensable injuries. 312 Ill. App. 3d at 788,728 N.E.2d at 502. On the other hand, in dealing with the physical-mental category, even a minorphysical contact or injury may be sufficient to trigger compensability. See Chicago Park District v.Industrial Comm'n, 263 Ill. App. 3d 835, 842, 635 N.E.2d 770, 776 (1994). In this instance, theCommission concluded claimant could recover under either theory. We agree. We therefore concludethe Commission's determination is not against the manifest weight of the evidence.

While on Flight 66, claimant was exposed to both emotional and physical trauma at the hands of anunruly and, in fact, dangerous passenger. First, Ms. Kelly continually appeared in places she was notsupposed to be. She repeatedly made unusual requests and comments. At one point, she requestedoxygen and made such a commotion that she was given an oxygen container to keep her quiet. Ms.Kelly attempted to ignite the oxygen, but because of the foresight of one of the other flight attendantswho did not turn on the oxygen, was unsuccessful in her efforts. It is true, claimant did not witness thisparticular incident but she was informed of the problem by several other attendants. Shortly thereafter, claimant was exposed directly to the chemical parachlorophenal sprayed by Ms. Kelly, and sufferedimmediate physical consequences. She became nauseous and dizzy and experienced heart palpitations. Claimant had no idea at that time as to what the chemical was or to its long-term or short-term effects. Clearly claimant suffered a physical trauma while in the course of her employment. Once on the ground,claimant was observed at a hospital and released, but continued to have aftereffects from both thephysical and emotional trauma she had experienced. On the rest of the flight to London, she continuedto feel nauseous and suffered irregular heartbeats. On the return trip home she felt anxious, afraid andcrowded. Claimant sought counseling, but employer refused to pay for further treatment after threesessions even though employer's counselor felt claimant was in need of continued therapy. Added to heranxiety and fear, claimant now felt abandoned and mistreated by employer. Claimant's treating doctordiagnosed claimant as suffering from posttraumatic stress disorder causally related to the traumaticevents she experienced in the course of her employment as a flight attendant on American Airlines Flight66 on November 22, 1997. Clearly claimant's psychological disability arose from a situation of greaterdimensions than the day-to-day emotional strain and tension to which all employees, including flightattendants, are subjected in their employment. While flight attendants may be trained to handle andregularly face unruly passengers, they are not subjected normally to ones that attempt to blow up theplane or spray toxic chemicals in a confined cabin. It is reasonable to infer such events in fact would beterrifying to those responsible for keeping order in the cabin. The situation on Flight 66 on November22, 1997, was not one faced by all employees or even by most flight crews. As a consequence of herexperience, claimant has recurring nightmares in which the plane actually explodes and she awakes inthe midst of panic attacks. Claimant feared for her life and has lost the ability to feel safe in her normalenvironment after 27 years of service as a flight attendant. Even employer's expert could not state withcertainty that the events which took place on Flight 66 were not the triggering events for claimant'sinability to return to work. Rather, it is reasonable to infer claimant's illness was brought on by thesudden events and emotional shock she experienced on November 22, 1997, while on board Flight 66. Claimant was exposed both to a psychological and physical attack by an unstable passenger while in thecourse of her employment and should be compensated for her resulting injuries and disability. Anypsychiatric counseling in the past notwithstanding, the events of November 22, 1997, clearly were theprimary cause of claimant's current disability.

Turning to the issue of penalties, generally speaking, an employer's reasonable and good faith challengeto liability ordinarily will not subject it to penalties under the Act. Board of Education of City ofChicago v. Industrial Comm'n, 93 Ill. 2d 20, 25, 442 N.E.2d 883, 885 (1982); Complete VendingServices, Inc. v. Industrial Comm'n, 305 Ill. App.3d 1047, 1050, 714 N.E.2d 30, 32-33 (1999). Forinstance, when the employer acts in reliance upon responsible medical opinion or when there areconflicting medical opinions, penalties ordinarily are not imposed. Avon Products, Inc. v. IndustrialComm'n, 82 Ill. 2d 297, 302, 412 N.E.2d 468, 470 (1980). Whether an employer's conduct justifies theimposition of penalties is a factual question for the Commission, and the Commission's determination onthe matter will not be disturbed on review unless it is against the manifest weight of the evidence. Boardof Education, 93 Ill. 2d at 25, 442 N.E.2d at 885. In this instance, while the arbitrator concludedpenalties were appropriate, the majority of the Commission determined claimant was not entitled topenalties or attorney fees. According to the majority decision, employer had a reasonable basis fordisputing the claim because the burden of proof in psychological cases is difficult. It is true the burdenof proof in psychological cases is difficult. It is not true, however, that employer had a reasonable basisfor disputing the claim in this instance. In fact, employer had no basis for contesting the claim andunreasonably delayed payment of benefits. The evidence presented at arbitration clearly revealedclaimant suffered a psychological and physical injury while employed on November 22, 1997. Employerwas fully aware of the events that transpired on Flight 66 and acknowledged the traumatic nature of theevents when it gave claimant the "Understanding Traumatic Stress Responses" flyer and agreed to sendher to a counselor. That counselor, Dr. O'Shea, concluded claimant was still in need of treatment afterthree sessions, but employer refused to pay for further therapy. In fact employer did not even pay forclaimant's hospital stay in Dublin. As noted in McMahan v. Industrial Comm'n, 183 Ill. 2d 499, 702N.E.2d 545 (1998): "[t]he refusal of an employer to pay for an injured employee's medical expenses is ascontrary to the purposes of the Workers' Compensation Act as an employer's refusal to compensate theemployee for lost earnings." 183 Ill. 2d at 514, 702 N.E.2d at 552. Claimant's treating doctor, basedupon a reasonable degree of medical and psychiatric certainty, diagnosed claimant as suffering fromposttraumatic stress disorder causally related to the events that transpired on Flight 66. Employer had nobasis to dispute claimant's disability until sending her to Dr. Ganellen in March 1998, some four monthsafter the episode. Even Dr. Ganellen opined claimant was in need of further psychiatric treatment. Stillemployer refused to pay compensation. Given the totality of the circumstances, employer's conduct wasunreasonable. Merely because psychological injury cases are difficult to adjudicate does not mean thatthe award of penalties and attorney fees is unacceptable or inappropriate. Accordingly, we find theCommission's decision not to award penalties and attorney fees to be against the manifest weight of theevidence and therefore reinstate the arbitrator's award of penalties and fees pursuant to section 16, 19(k)and 19(l) of the Act.

For the aforementioned reasons, we affirm the judgment of the circuit court confirming the decision ofthe Commission with respect to the issue of compensability but reverse the decision to deny penaltiesand attorney fees and further reinstate the decision of the arbitrator granting such fees and penalties.

HOFFMAN, COLWELL and HOLDRIDGE, concur.

PRESIDING JUSTICE McCULLOUGH, concurring in part; dissenting in part:

I agree with the majority affirming on the basis of a physical-mental trauma. I dissent as to the award of penalties.

The commission decision suggests two partial concurrence-dissents. Commissioner Kinnaman concurs in grantingrecovery but would award penalties. Commissioner Gilgis would deny benefits and penalties.

This case does present facts concerning psychological injuries, an area even this court has struggled with in adopting aprecedent to be used by arbitrators and the Commission. The questions before the Commission concerned the facts beingof Pathfinder strength, mental-mental or whether there was a physical-mental trauma basis. This is not a Pathfinder case. Iagree there was sufficient evidence to find physical-mental basis for recovery. It was a complex case as to physical-mentaland penalties were properly denied by the Commission.

Additionally, we now find the facts of this case and its importance to be such to issue an opinion to provide bindingprecedent. As the Commission dissent points out, there was "a valid basis to dispute liability in this controversial, hotly-contested 'mental trauma' case." The prior cases and the facts presented here were not so clear as to justify an award ofpenalties.

I would affirm the award of benefits but deny penalties.