Court says hospital technician suffered psych injury from sexual harassment

The Virginia Court of Appeals upheld a finding that an ultrasound technician suffered a compensable psychological injury from a patient’s unwanted sexual advances and his “salacious and exhibitionistic” exposure of his genitals.

As documented in No. 0906-24-1, filed Aug. 12, the technician worked for Inova Health Systems as an ultrasound technician. In July 2021, while she was alone with a male patient, the patient persistently made unwelcome romantic overtures, which she rebuffed. The patient then exposed himself to her.

The technician threw a towel to cover him up and completed the scan before leaving the room. She then reported the incident to her supervisor and the human resources department and sought treatment from her primary care doctor and a therapist.

She filed a workers compensation claim, seeking wage-replacement benefits for the period she did not work from July to September 2021.

A deputy commissioner denied the claim, finding that the incident with the patient was not sufficiently “shocking, frightening, traumatic, catastrophic and unexpected” to produce a compensable psychological injury.

A divided Workers’ Compensation Commission reversed, finding that the exposure “in the manner at issue was unexpected and shocking” — as the evidence “persuasively establishes that the patient’s conduct was ill-intended and unnecessary.”

On remand, the deputy found the ultrasound technician was incapacitated from work from July to September 2021 and that she was entitled to temporary total disability benefits for this period.

A majority of the commission affirmed the award.

The Virginia Court of Appeals explained that the state Supreme Court has held that a compensable psychological injury can arise even in the absence of any physical impact.

“Here, Inova simply failed to offer any legal authority or argument as to why this case is an exception to longstanding and binding Supreme Court precedent holding that a compensable psychological injury does not require a showing of any physical injury,” the Court of Appeals said.

Because of this, the court said Inova waived its argument that the technician’s psychological injury did not arise out of and in the course of her employment.

The court said that to be compensable, a psychological injury “must arise out of the employment, while the triggering event of a sudden shock or fright causing the injury must occur in the course of employment.”

The court noted that the commission recognized there are “myriad circumstances in life wherein consensual or inadvertent observation of the intimate parts of another’s anatomy will occur,” but the commission distinguished between the exposure of  genitalia in “the clinical realm” for medical purposes from the patient’s “brutish behavior at issue here,” where the man “exposed his genitalia suddenly, and after the claimant rebuffed his inappropriate comments” for his own “salacious and exhibitionistic motives.”

The court said there was credible evidence in the record to support the factual findings made by the commission, so it could not find that the agency was plainly wrong in finding that the ultrasound technician suffered a compensable psychological injury that was causally related to a sudden or unexpected “shock or fright” arising out of and in the course of her employment with Inova.

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