Brain Strain: Workplace Psychological Injury Compensation

Episode Notes

Transcript

Judson Pierce:

Workers Comp Matters, the podcast dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers compensation. Here are your hosts, Judd and and Alan Pierce. Hello and welcome to another edition of Workers Comp Matters. My name is Judson Pierce co-host of this program. Today we have a topic for our audience about mental injuries in the workers’ compensation world. Jurisdictions do these things differently. Some jurisdictions don’t recognize these injuries at the workplace that are due compensation. Others do and some have variations on that. Today as our guest we have, and we’re lucky to have Professor Michael Duff from the St. Louis University School of Law who is written on this topic, spoke about this topic as well as many others having to do with tort and workers’ compensation law. Professor Duff, thank you for joining us.

Michael Duff:

Thanks, Jud. Pleased to be here.

Judson Pierce:

I’d also like to introduce at this time our co-host and founder of the program, Alan Pierce.

Alan Pierce:

Hey, thank you Jud. Thank you Mike for joining us. We’re really looking forward to the show. We get a lot of cases here as do our colleagues, where potential clients come to us describing injuries to their mental health. So-called psychological or psychiatric injuries, and this whole category of injuries have a problematic and have been for many years. I know you recognize that probably 50 or more years ago, these types of claims were not recognized, or if they were recognized, they were in very limited fact patterns. So what we’d like to do is a sort of a broad overview of people who suffer stress or other traumas in the workplace that produce a psychological or a psychiatric response or diagnosis and or a disability, how they are covered and what the inherent difficulties are. So with that as a beginning, could you Mike, give us a broad overview of the types of claims that arise out of stresses or stressors in the workplace and how they categorized?

Michael Duff:

Let’s start out with the type of claim that I think is the least problematic in most states, and that is psychological, we’ll call it nervous injury. That’s the way it’s often described and classified that results from a physical trauma. And here we can think of an individual who suffers, let’s say a back injury and is in intense pain over several months. A long time becomes depressed. It’s clearly traceable to the physical injury. We call this, by the way, a physical mental injury as a shortcut, and that’s probably the least controversial type of claim. Oh, we could go back a hundred years and find claims like that being compensated under workers’ compensation, a little more controversial, but still having sort of a physical component. And one way to think about this is that to the extent physical injuries aren’t included in what we’re talking about, the claim becomes more controversial because workers’ comp has always been thought to cover physical injuries.

But these types of injuries we call mental physical injuries, and I’m sure you’ve seen the malon in your practice where you have somebody who becomes upset, emotionally upset, and that leads to physical symptoms, which are disabling person has a heart attack, A person develops some kind of condition. In fact, I use in my workers’ comp textbook, one of the famous Massachusetts cases, Egan’s case, where a cab driver witnesses a robbery late at night on a Massachusetts road and suffers an injury to his brain that is physical and that claim is compensable. So now you can have arguments over this, right? If somebody has a heart attack in the workplace because of an emotional disturbance, there could be arguments that they had a preexisting heart condition that this really is not work-related, that somehow there are other causes of the physical disability, but still these are claims that have been covered going back for decades.

The most controversial type of injury is when somebody suffers a nervous injury from mental stimulus, and we call these mental mental injuries. So there’s no physical component at all. Somebody is on the job and either from a single event or a series of events becomes disabled. And the disability that we’re speaking of is a nervous injury. The person is unable to work because of some psychological condition, and most people are familiar with these types of claims because of PTSD, post-traumatic Stress Disorder, which has become a matter of some controversy throughout not just workers’ compensation law, other types of injury law as well. But I think that’s a good introduction. Alan,

Alan Pierce:

Let’s look at first of all the mental cases. How long have they been recognized as compensable, and is it a universal recognition across the 50 states or the other programs such as federal workers’ comp, OWCP for federal workers, longshore for people who work on or about the waterfront?

Michael Duff:

I would say almost universally, these claims were not recognized if we go back to the early beginnings of workers’ compensation. And it makes sense when you think about what workers’ compensation is, which was an exchange, a grand bargain for a tort claim. And so the way to think about this is that what we think of as mental, mental, some harm that’s produced in the workplace from purely emotional stimulus, mental stimulus that wasn’t covered under tort. So if you think about the beginnings of workers’ compensation, which is a kind of exchange of tort rights for workers’ comp statutory rights, there was nothing to exchange because the kind of claim didn’t exist under torts law. So it’s not surprising that it wasn’t recognized under workers’ compensation law. And then what happens is over a long period of time, we have recognition of certain kinds of injuries under tort law. Not surprisingly, we have more interest in recognition of mental claims under workers’ compensation. The reason I say not surprisingly is that workers’ compensation in effect, among other things, insulates employers from tort liability. So it’s not surprising that some employers would not resist characterizing the mental condition as a workers’ comp condition, provided there was a connection to work because that simultaneously insulated them from the possibility of tort damages. Michael,

Judson Pierce:

What are the types of qualifying conditions to bring a work comp claim with this type of fact pattern? What are the types of mental health conditions? You mentioned PTSD is one of them. What are some other disorders that might qualify?

Michael Duff:

Well, I don’t think the laws are extremely specific. I think they’re general and they say things like mental injury, but when you get into the innards of some of these laws, you have some pretty tight restrictions in terms of what has to happen before you can make a claim. Most of us who have done workers’ compensation are familiar with the whole idea of an accident. You had to have an injury by accident. Not every state had that requirement, but most of them did. And the way you can think about these claims is that there’s some kind of unusual thing that happens in the workplace, an unusual stressor, an extreme stressor, right? And that’s the sequela, the aftermath of that stressor. There is some kind of often vaguely defined mental injury that develops something that’s diagnosed by whoever the designated specialist is in the statute. Somebody let’s say that certain maybe a psychologist has to designate the condition or a psychiatrist does, or whoever it is, and there’s a tight connection in that way. And then very often most of the statutes that I’ve looked at are not specific Judd about PTSD as opposed to other kinds of mental conditions.

Alan Pierce:

Let me give you, this is going to be fun because I get to give a hypothetical question to a law professor. This would be the type of question you might be asking your class. Let’s assume for the moment a particular job and let’s assume an air traffic controller, and let’s further assume it’s not an FA controller, because that would be under the federal. But let’s assume we have an air traffic controller who works in a jurisdiction that is state-based comp that allows for mental mental cases. And that is among the most highly stressful jobs. And let’s say one of those controllers comes to us and says, I’ve been doing this for 30 years. It’s the most high stress job, and I’ve just burnt out. I have been diagnosed with post-traumatic stress disorder, and my psychotherapist tells me it’s related to many years of working in a very stressful environment.

I want to contrast that. And that person’s eligibility for benefits with another air traffic controller who might have been in the same tenure of years and been coping with the stress, but was involved in witnessing or perhaps even being directly involved in a either substantial near miss or an actual, the worst thing you could see as an air traffic controller, a devastating accident and was affected, thereby two different scenarios. Tell us about your views on compensability of somebody who just kind of burned out of a high stressful job as opposed to somebody who was in the high stressful job but then had an extraordinary stress superimposed on that.

Michael Duff:

Well, as is so often the case workers’ compensation being a creature of state statutes, you can have very different statutes applicable to the topic of mental injury. And you do have very different statutes. And so doing what none of my students would do, I’m going to evade the question a little bit, and I’m going to say it would depend on the statute. I would say that the way these claims have evolved, the person who is subjected to something really unusual in the workplace would be more likely to prevail than the person who has had a job that’s stressful but hasn’t suffered anything new. And you notice that this dovetails with a discussion of cumulative as opposed to traumatic injuries, even though we’re talking about emotional injuries. So if we’re talking about a condition that evolves over time, we have this causation problem. Not to mix by metaphors, but the straw that broke the camel’s back was what if we think back historically why there was ever resistance to cover mental claims, the way we’ve developed the term, why there was resistance to cover it, it’s because there was trepidation by the judges that people could fake their diagnosis.

How do we know? I know a broken arm when I see one I know, but how do we know that somebody is actually suffering from this condition? People will cheat, people will lie, they’ll write, and even if we accept that it’s an authentic condition, how can we establish over a period of time that the work caused the condition to get to a certain point? And there wasn’t what we call the law an intervening cause. Yes, you had this stressful job that over time was causing you issues, but you went home and you were under stress there. That doesn’t happen to any of us. You experience stress other places. So how do you connect that adequately to the workplace? Right. And so I would say if I was pushed in terms of when the worker’s comp system would be more likely to cover a psychological injury, it would be when you had something that felt more for lack of a better term accident.

So if you have some extreme event that’s emotionally upsetting, then that’s what the system will cover. I also mentioned real quickly in passing for, I taught for 16 years in Wyoming. Wyoming doesn’t cover mental workers’ comp claims at all and never has. But we have a couple of cases, one which sticks in my mind where a father witnessed the death of his son in the workplace and the father filed a negligent infliction of emotional distress claim, a tort claim saying, Hey, I saw my son killed in the workplace. I’m really upset. And the employer argued exclusive remedy under workers’ compensation. And the Wyoming Supreme Court said, no, that it’s not covered under Wyoming workers’ compensation. Therefore the negligent infliction of emotion distress claim is viable. And it proceeded and the father prevailed.

Alan Pierce:

Good point to take a quick break, and we’ll be back after a short message with a further discussion of these fascinating area of workers’ comp. We’ll be right back,

Judson Pierce:

And we’re back with Professor Michael Duff. I’d like to ask you, Mike, about first responder cases. We’ve seen an uptick in these types of issues arising in different states. Certainly the tragedy of nine 11 and the many first responders who had their lives altered dramatically and their family’s lives altered dramatically and many of covid cases more recently. Can you tell us a little bit about these types of cases and to what extent some states draw a line?

Michael Duff:

Well, I have to tell you that in several areas of the law, we have social situations where a harm is not covered by the law. And this is true of several different areas of law. For a long time, for a century, a harm isn’t covered by the law, and then one day mysteriously it is. And why is it because there’s a policy decision made? It starts actually in almost, and I don’t want to sound too poetic, but in the hearts and minds of people, they start to think something like this, not right. Something is not right, and the law ought to do something about it. And so if you have a tragedy, a disaster like nine 11, and you have first responders who are in the middle of that horrible situation, and they develop psychological difficulties that are directly attributable to that event. And the response of the law is that, well, even though we can tie it to the workplace in terms of causation, you didn’t have a psychological problem before and you do now, what is the basis for not covering the nervous injury that ensues?

And of course, the answer to that is it’s not physical. Okay, it’s not physical. Well, why should that bar the awarding of benefits? Why should that bar a claim? And interestingly, when you go back and you look at the very beginning, why did we ever not award damages for a certain kind of problem that develops? Often it’s because it just didn’t occur to us. It was not part of what the law thought proper to compensate. Now of course, there are all the problems that I’ve already mentioned. How do we know that this is authentic? How do we know what’s going to happen if we start covering these kinds of disabilities? Is the system, whether you’re talking about a tort system or a workers’ comp system, is it going to go broke? Is there enough money to cover all of these kinds of things, right, these kinds of risk?

Where does it end? Where does it all end? So I think the movement of people in the last, and this of course was exacerbated if you will, by the pandemic, where you had people who were out exposed routinely to stressful situations, worried about whether they were going to contract the disease, and you had first responders that were exposed to this. It became more and more evident that that class of worker was experiencing emotional difficulties that were directly attributable to their work. And I think as this became clear and the uptick is almost undeniable, and I think as this became more obvious to people, the arguments against coverage diminished in force more in some places than others. So some states cover it, some states don’t cover it. And then there’s a variety of statutes, which is what makes it such a complicated conversation sometimes.

Alan Pierce:

Are we seeing jurisdictions give a presumption to public health or public sector employees, police, fire medics, paramedics, et cetera, to give them a little boost in being able to establish a claim when it is in response to a sudden emergency?

Michael Duff:

Yeah. There are about 14 states that cover mental mental injuries with a presumption. And what folks may not know about presumptions is that it simply makes it easier for a worker to establish that they’re eligible for benefits. And so once the worker says, Hey, look, I’ve got a good faith diagnosis of emotional difficulty by whoever is authorized by the law psychologist, whoever, and I can attribute it to the work adequately, that’s enough to establish causation. Now, most of the listeners may know that normally a person involved in any kind of legal matter has the burden they have to produce evidence in support of their claim. I think that’s a very common idea that people understand. Well, in some instances what we do is we say, look, it’s too hard to prove a particular kind of claim, but if you prove it just enough, then the burden shifts to the other side to disprove, for example, that the disability came from work.

And so that can make it easier to establish a claim. Now, it’s very important to remember that this is not the majority position in the United States. There have been, as I say, around 14 states where you have a presumption, and this is heavily the result of advocacy on the part of organized labor representing first responders, right? Why? Because in many, many instances under the standard rules that we used, the first responders were found not to be eligible for benefits. And back to the social sort of UpSpring of sympathy for this type of situation, in some states, that’s simply deemed not to be acceptable. It’s morally reprehensible as many people in some states think about it.

Alan Pierce:

Yeah, there’s an old axiom. For every harm, there must be a remedy. And we have found specifically in the field of workers’ comp, oftentimes that is more true than not. We’re going to take another quick break and we’re going to conclude our podcast by talking about some particular difficulties of bringing these claims, the confidentiality of the records, the preexisting conditions people bring into this, and the burden of proof on causations. So we’ll be right back to continue and finish our discussion with Mike Duff.

Judson Pierce:

And we’re back with Professor Duff. I wanted to ask you, professor, about the nature of how difficult these claims can be for practitioners in terms of the burden of proof things such as preexisting conditions of the claimant that might play a role. Can you get into that a little bit? Not to dissuade our practitioner audience from bringing these meritorious claims, but talk about what hurdles we folks have to overcome.

Michael Duff:

I hesitate to say too much about it since I’m in the presence of such August practitioners, but I think everybody can understand that if you have a claimant with psychological difficulties, that presents a number of just practical problems as to how you bring the case, how you make sure, for example, that the claimant is available at times when they have to be available. Are they doing the things they need to do? Are they testifying legally with respect to difficulties with preexisting conditions? Understand that that is why the presumption is so powerful. So the preexisting condition, ordinarily in a causation case, you have legal causation and medical causation issues, and preexisting conditions can impact medical or factual causation. So if somebody had a prior psychological disability, the problem is how do you show that their present disability results from the work-related incident, or it’s resulting from whatever the preexisting condition was, whether it was work-related or non-work-related, whatever it was.

And that is a problem with physical injury, obviously. So I think with psychological injury, if you’re not operating from a presumption, and what I would say to those who are quite frankly frightened by the advance of mental workers’ compensation claims is that these claims we said 14, operated under the presumption principle. The rest of them don’t. In fact, 36 states cover mental mental, and that means the balance do not right? And only 14 states have presumptions, and some of those pertain to first responders, some of them don’t. These can be very difficult claims to bring. If there’s not a presumption, all of these causation problems, you’re going to need the opinion of an expert who says that the current disability, psychological disability is resulting from the work-related incident in question. And don’t forget, Alan, you had the hypothetical, the cumulative stress versus the one big incident, the horrible incident. Depending on how a statute is crafted, you’re not even going to be able to bring the cumulative mental stress claim and you’re never going to get there. You can’t bring claims. Very often that result from personnel actions. My boss yells at me and I have some kind of an episode. Many statutes exclude those explicitly as consideration of the onset of psychological symptoms. So they can be very difficult.

Alan Pierce:

Yeah, lemme give you an example. First of all, I would say we get a lot more people coming to see us, to see if they have a mental, mental claim than we actually take as a client. Secondly, generally I can say, and Judd I think will back me up, that category of client is oftentimes more difficult to manage because they are psychologically to some degree. And third, a lot of them have baggage. I would think, well, more than half the country, probably a great majority of the country are taking some type of antidepressant medications, suffer some degree of depressive or anxiety, and are medicated, which leads to the question of the admissibility or the availability of their prior records. In Massachusetts, they have carved out a different definition of causation between physical injury cases and psych injury cases. And I’ll just read it in Massachusetts, it says, and this is common in many other states, personal injuries shall include mental or emotional disabilities, only with a predominant contributing cause of such disability is an event or series of events occurring within any employment.

So that gets us to the generalized stress versus the single episode. And then on causation, and this is something we deal with all the time. If a compensable injury or disease of the mental issue combines with a preexisting condition, then we have to show that the mental condition is a result, that the work injury is the predominant contributing cause. It’s not merely an aggravation. It has to be the predominant contributing cause. The first thing I tell a prospective client is once we bring the claim, your prior mental health history that you might believe have been protected by the patient’s psychotherapist privilege or HIPAA goes out the window that your employer, a judge, a claims adjuster, perhaps even your boss and coworkers may see your preexisting emotional or psychiatric history. And many of our clients tell us what the claim isn’t worth it. Give us your thoughts about both HIPAA and confidentiality in terms of evidence and bringing, once you bring into the public arena a claim for mental health injuries.

Michael Duff:

Well, all of those are obviously issues that would operate as a deterrent both on a claimant and on practitioners. And you can think about this in a broader sense that it begins to immerse us into the world of psychological infirmities. And just as an example, something I was thinking about as you were speaking is that suppose you have a client who is found to be covered, we haven’t really even talked about the medical support issues. So this person is entitled, let’s say, to an indemnity benefit,

Alan Pierce:

Which is a lost time, a disability check, right?

Michael Duff:

But then in addition to that, we have the issue of medical treatment. Now, one of the things that I’ve seen in some statutes in surprising places is the availability of certain drugs that are of questionable legality under the federal schedule. I’m not talking about marijuana. Marijuana is a whole separate discussion. I’m talking about drugs like ecstasy. I can’t say the full title of the drug. My daughter is a chemistry major. She could probably do it. And so now you have issues about, to what extent do you want to involve the workers’ compensation system in the treatment of a person who is deemed to have been psychologically injured as a result of work. When I saw some of these statutes being discussed in various summaries of legislative activity, I had to contact practitioners in those states and say, what is this? What is the drug that we’re talking about? And how is it that this is happening? And it’s beyond the scope of what we’re talking about. I just want to make the point that it’s a whole different world. And that’s part of what drives, I think, the concern that people have about these claims.

Judson Pierce:

And on the alternative side, you can say that it’s going to cost society, the workplace a whole lot more if we don’t find a way to compensate medically and get people back to work because the days out of work will, it’ll be like a snowball effect. Businesses will suffer if there are people who are having these psychological issues aren’t treated because it’s not deemed compensable. So it’s like an alternate version of what’s going to cost benefit analysis. I guess one question I had for you might, before we close our discussion today, is I guess the mental, physical type of question. So you’re in a high stress job, it hits you differently than it might hit your coworkers and you have to leave work, or you have, God forbid, even a further dramatic event like a stroke or a heart attack. How difficult or how might it be able to be proven that the job was of sufficient consequence to get to that physical trauma? All jobs are stressful. Some are more than others.

Michael Duff:

So New York has just passed the statute. It is very new. It has cleared both houses of their legislature, and it is on its way to the governor’s desk. And what that law says is that you cannot deny a claim simply because the work activity that the person was doing is their everyday work activity. So it’s kind of a flip of what you just said, right? It’s allowing the possibility for a person to prove that their psychological disability was work-related, even though they weren’t doing anything other than what their normal, their job activities would be. Now, I find that extraordinary. That’s an extraordinary development. And we always look at New York when things happen in New York or California or Texas, I mean, that has broad significance.

Judson Pierce:

Well, it’s a course and scope, right? They’re in the course and scope of their employment. It just happens to be their regular employment.

Michael Duff:

It’s like a positional risk development almost. I will tell you, look, and this might be a good way to leave it if you’re not going to cover it with workers’ comp. I want people to think about this. And there is some argument that the employer acted negligently Judd, you were talking about the cost benefit analysis generally, that folks are not going to be covered. They’re not going to be contributing to the economy one way or the other. Society’s going to have to figure out how to support these individuals. But we’re leaving out the whole problem of the tort suit, the expansion of the negligent infliction of emotional distress. Tort, I think is closely related to advance the advance of coverage of mental, mental under workers’ comp systems. Because I think employers realize, Hey, this person that you’re not going to cover with workers’ comp may be able to come along and file a tort suit. And you might think, well, we’ll just pass a law that says they can’t do that. And you may run into a problem with your state constitution.

Alan Pierce:

And in fact, if anybody wants to look at an old case in Massachusetts ages, A-E-G-I-S versus Howard Johnson’s, that’s exactly the situation. It was a suit against the employer for some fairly egregious behavior by her supervisor in the workplace. And that begged the question that if this isn’t covered by workers’ comp, which at that time it was not, is the employer then going to be exposed and tort? And it wasn’t long after the HS case that we saw the expansion of the workers’ comp remedy. So we could talk about this fascinating area of the law a long time, and we could give a lot of real life examples. So Mike, if there are any resources you might want to direct the listeners to, or if they want some further information, I would ask them to reach out to Jud or me, and we can put you in touch with Professor Duff or his particular writings on this. It’s [email protected] or [email protected]. Michael, I want to thank you so much for being here and just giving us a good overview of a very complex area that we all deal with. Thank you very much.

Michael Duff:

Thank you very much.

Judson Pierce:

Well, I’d like to thank Professor Duff for joining us today on a very interesting discussion, and I’d like to thank all of you, our listeners, for being such great listeners. Go out and make it another day that matters. We’ll talk soon.

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