Workers' compensation and psychiatric injury definition

International Journal of Law and Psychiatry

Volumn 22, Issue 5-6, 1999, Pages 603-616

  Adler, Stephen ^a   Schochet, Rivka ^b  

^a State of Israel ^*  (Israel)

^b School of Law ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

DISEASE CLASSIFICATION; EMPLOYMENT; HUMAN; LAW; MENTAL DISEASE; OCCUPATIONAL ACCIDENT; PERSONALITY DISORDER; REVIEW; STANDARD; WORKMAN COMPENSATION;

EID: 0033454004     PISSN: 01602527     EISSN: None     Source Type: Journal    
DOI: 10.1016/S0160-2527(99)00028-X     Document Type: Article

References (47)

1. Compensation is uniformly granted where a mental stimulus results in a physical injury (so-called mental-physical injury). See generally, A. Larson, WORKER'S COMPENSATION LAW (hereafter "Larson") (1992) at § 42.21, citing, Charon's Case, 321 Mass. 694, 75 N.E.2d 511 (1947) (fright resulted in paralysis); Harris v. Rainsoft of Allen County, Inc., 416 N.E. 2d 1320 (Ind. Ct. App. 1981) (heart attack occurred while watching business burn down); Ferguson v. HDE, Inc., 270 So. 2d 867 (La.1973) (stroke occurred while arguing about pay); Snyder v. San Francisco Fed & Grain, 748 P. 2d 924 (Mont. 1987) (ruptured aneurysm after unusual job stress), among other cases. Compensation is also uniformly granted where a physical event results in a mental injury (so-called physical-mental injury). See Larson at § 42.22, citing, Smith v. Industrial Comm'n, 161 Ill. App. 3d 383, 512 N.E. 2d 712 (1987) (sprain at work triggered a conversion reaction); Berger v. Hahner, Foreman & Cale, 211 Kan 541, 506 P. 2d 1175 (1973) (loss of eye followed by traumatic neurosis); Elliot v. Precision Castparts Corp., 30 Or. App. 399, 567 P.2d 566 (1977) (industrial back injury led to conversion reaction), and other cases.
2. See Larson at § 42.23: in the U.S., a "distinct majority" of states support compensability (cases granting compensation cited at fn. 29), while a "substantial" number would deny a so-called "mental-mental" claim (cases denying compensation at fn. 30).
3. WC cases involving mental disability are commonly referred to as mental-physical, physical-mental, and mental-mental cases. Larson at § 42.20. See also, A. Larson, Mental and Nervous Injury in Workmen's Compensation, 23 VAN. L. REV. 243 (1970) at 1243; 82 Am Jur 2d, Workers' Compensation at 366, § 339. These terms have unfortunately become distinct categories that seem to pose an obstacle to compensation for purely psychiatric injury, rather than merely functioning as terms of convenience. See, e.g., Gulick v. WCAB, 711 A.2d 585, 587 (Pa. Commw. 1998) (when "the relationship between an alleged psychiatric in jury and a claimant's employment is generally not obvious, a claimant must present unequivocal expert medical testimony to establish the causal connection," which is not otherwise required).
4. For example, "a person with a pre-existing personality disorder exposed to a sudden shock at work (e.g., an explosion) is more likely to develop a psychiatric disorder, or a more severe disorder, than another person exposed to the same conditions but without significant pre-existing dysfunction." Dr. David Rabinowitz, Director of Psychiatric Outpatient Services, Rambam Medical Center, Haifa, Israel, correspondence of May 31, 1999 (hereafter "Rabinowitz correspondence").
5. See, e.g., Hansen v. Von Duprin, Inc., 507 N.E.2d 573 (Ind. 1987) (claimant with previous emotional problems including fear of guns was subjected to workplace harassment by her supervisor intended to exacerbate this fear; preexisting condition did not bar recovery for diagnosed anxiety and depression triggered by workplace events).
6. See DSM-IV at xxi and Appendix H at 829, which presents the DSM-IV Classification and the corresponding ICD-10 Codes.
7. California and other states' WC statutes incorporate this requirement in the necessary elements of a compensable WC claim. See e.g., Cal Labor Code § 3208.3 (a), requiring that a psychiatric injury be diagnosed pursuant to statutory procedures or "using the terminology and criteria" of the DSM system, or other generally approved and nationally system of psychiatric diagnosis.
8. See, e.g., Ins. Co. of No. America v. WCAB (Kemp), 122 Cal.App.3d 905, 76 Cal.Rptr. 365 (1981) (conelusory psychiatric testimony without recitation of supporting facts deemed inadequate medical history, claim denied for insufficient expert testimony to support industrial causation).
9. Id. at xxi.
10. Id. at xxi.
11. Id. at xxi-xxii.
12. Id. at xxv.
13. As well stated by the New Jersey Appeals Court, "We are unable to separate a person's nerves and tensions from his body, " since "clearly, emotional trauma can be as disabling to the body as a visible physical wound." NPS Corp. v. Insurance Co. of No. America, 213 N.J. Super. 547, 517 A.2d 1211 (1986).
14. See Greenberg, Honorable Jules L., Causation and Threshold Determinations in Workers' Compensation Psychiatric Stress Claims: Back to the Future?, 20 W. ST. UNIV. L. REV. at 131 (1992) (DSM "assures the judge that there will be a uniformity in reporting psychiatric injuries, which previously did not exist").
15. DSM-IV at 25.
16. "Unexplained medical labels - schizophrenia, paranoia, psychosis, neurosis, psychopath - are not enough. Description and explanation of origin, development, and manifestations of the alleged disease are the chief functions of the expert witness." People v. Bassett, 69 Cal 2d 122, 141, 70 Cal Rptr 193, 205 (1968 CA).
17. Herbert Lasky, Psychiatry and California Workers' Compensation Laws: A Threat and a Challenge, 17 CAL. W. L. REV. 1, 21 (1980).
18. Similar categories of "Not Otherwise Specified" ("NOS") should be included in all the major diagnostic groups to permit atypical cases to be coded.
19. See DSM-IV at 629 et seq.
20. It is axiomatic that employers must take their employees as they are - with their physical and mental deficiencies. See Arthur Larson, The Law of Workmen's Compensation, § 12.20 (1982); see also, Lawrence Joseph, Causation in Workers' Compensation Mental Disability Cases: The Michigan Experience, 27 WAYNE L. REV. 1079 (hereafter "Joseph, Wayne"), 1089, fn. 40, citing Sheppard v. Michigan National Bank, 348 Mich. 577, 83 N.W.2d 614 (1957) ("Nothing is better settled in compensation law than that the act takes the workmen as they arrive at the plant gate. Some are weak and some are strong. Some particularly as age advances, have a preexisting 'disease or condition' and some have not. No matter. All must work. They share equally the hazards of the press and their families the stringencies of want, and they all, in our opinion, share equally in the protection of the act in event of accident, regardless of their prior condition of health").
21. It is axiomatic that employers must take their employees as they are - with their physical and mental deficiencies. See Arthur Larson, The Law of Workmen's Compensation, § 12.20 (1982); see also, Lawrence Joseph, Causation in Workers' Compensation Mental Disability Cases: The Michigan Experience, 27 WAYNE L. REV. 1079 (hereafter "Joseph, Wayne"), 1089, fn. 40, citing Sheppard v. Michigan National Bank, 348 Mich. 577, 83 N.W.2d 614 (1957) ("Nothing is better settled in compensation law than that the act takes the workmen as they arrive at the plant gate. Some are weak and some are strong. Some particularly as age advances, have a preexisting 'disease or condition' and some have not. No matter. All must work. They share equally the hazards of the press and their families the stringencies of want, and they all, in our opinion, share equally in the protection of the act in event of accident, regardless of their prior condition of health").
22. The general coverage language of "arising out of and in the course of" employment found in many WC statutes embodies the basic causation requirement of WC: injury resulting in disability must be work-related. These two phrases are not synonymous, but involve two different ideas and impose a double condition. Sweatt v. Rutherford County Bd. of Educ., 237 N.C. 653, 75 S.E.2d 738 (1953). An injury "arises out of" employment if it is the result of a risk inherent in the employment, such as the nature, conditions, obligations, or incidents of the particular employment. The "course of employment" test refers to the time, place, and circumstances of the injury in relation to the employment. "Course of employment" is often broadly defined to require only that the employee was performing an authorized task for the benefits of the employer's business. While these two phrases constitutes the general causation requirement found fairly uniformly in WC statutes, the very generality of these terms has proved too vague to provide a framework for a consistent approach to causation of purely psychiatric claims.
23. Whlie actual facts of the employment relation, time, and place of employment events may be established with certainty, "the existence of a factual casual connection between the employment and the disabling injury . . . can never be absolutely determined. It must be based entirely on probabilities." Joseph, Wayne at 1091.
24. See, e.g., Twentieth Century Fox Film Corp. v. WCAB (Conway), 141 Cal.App.3d 779, 190 Cal.Rptr. 560 (1981) (psychiatrist testimony stated non-work-related cause led to breakdown, employment stresses provided after-the-fact rationalization), discussed in Lasky, 1988 at 56-58; and see, Pacheco v. Bd. of Retirement of the County of Los Angeles Employees Retirement Ass'n, 188 Cal.App.3d 631, 233 Cal.Rptr. 41 (1986) (psychiatric testimony that claimant's psychological functioning was same as preemployment precluded award for psychiatric industrial injury), discussed in Lasky, 1988 at 76-77. Miller v. Akron General Medical Center, 1990 Ohio App. LEXIS 3074 (1990); Branscum v. RNR Construction Co., 60 Ark. App 116, 959 S.W. 2d 429 (1998).
25. See, e.g., Kroger Co. v. Industrial Comm'n of Ohio, 80 Ohio St 3d 483, 687b N.E.2d 446 (1997).
26. See footnote 2, supra.
27. Van. L. Rev. 263
28. Id. at 318.
29. See John F. Burton, Jr., Back Injuries: Should the Work-Related Tests be Abandoned?, MEDICAL-LEGAL ASPECTS OF WORK INJURIES (1994) at 118.
30. Lasky, 1993 at 72.
31. Id.
32. Joseph, Vanderbilt at 276, states "[t]he difficulty in establishing factual causation is epistemological: the trier of fact never absolutely can determine the 'fact' of causation." However, legal causation is all that is required.
33. WC boards and courts do not need medical certainty to establish that the worker's injury or disorder is work-related. At best, they need only a legal probability, that is, more than a fifty-fifty chance that the work caused or contributed to the disorder.
34. Joseph, Wayne at 1087.
35. Id. at 1148. See also Barth, Peter S. and Hunt, H. Allan, WORKERS' COMPENSATION AND WORK-RELATED ILLNESSES AND DISEASES at 118.
36. "Every significant deleterious physical alteration must have an emotional accompaniment or reaction. One does not usually sustain a physical injury or suffer a significant physical illness without some change from the preexisting emotional state. Similarly, emotional changes often produce a related psychological or metabolic alteration, albeit evanescent, reversible, or as yet undiscovered." Joseph, Wayne at 1138 and fn. 338, citing Selzer, Psychological Stress and Legal Concepts of Disease Causation, 56 CORNELL. L. REV. 951, 952 (1971).
37. North Carolina Gen. Stat, § 97-52 (1991), cited in The Reality of Work-Related Stress: An Analysis of How Mental Disability Claims Should Be Handled Under the North Carolina WC Act, 20 CAMPBELL L. REV. 321 (1998) at 326.
38. For example, the California Labor Code denies compensation for psychiatric injury to employees who have been employed less that 6 months. The provision does not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition. Cal. Labor Code § 3208.3(d).
39. For example, in California the statutory requirement that the injury be "proximately caused by the employment . . . has received a much broader construction in WC law than it has in tort law. All that is required is that the employment be one of the contributing causes without which the injury would not have occurred. . . . Nevertheless, the statutory requirement retains sufficient force that compensation may not be awarded where the nature of the employee's duties 'merely provided a stage for the event.'" Albertson's, Inc. v. WCAB, 131 Cal. App.3d 308, 316, 182 Cal.Rptr. 304, 308-09 (1982), citing Transactron, Inc. v. WCAB, 68 Cal.App.3d 233, 238, 137 Cal.Rptr. 142 (1977).
40. "It is well established that an employee's claim for psychiatric injury may be founded on honest subjective perception of job harassment which interacts with a preexisting condition so as to cause job stress, providing the employment is a positive factor in causing the injury." (Albertson's Inc. v. WCAB, 131 Cal. App.3d 308, 182 Cal.Rptr.304 (1982)]. The proper focus of inquiry is not how much stress should be felt by an employee in his work environment, based on a "normal" reaction to it, but how much stress is felt by the individual worker reacting uniquely to the work environment, the individual worker's perception of the circumstances being "what ultimately determines the amount of stress he feels." Id. at 314. Clay v. WCAB, 206 Cal.App.3d 1179, 254 Cal.Rptr. 144 (1988) (emphasis added).
41. Herbert Lasky, GUIDELINES FOR HANDLING PSYCHIATRIC ISSUES IN WORKERS' COMPENSATION CASES, 1988 at 57.
42. Id.
43. A purely subjective causation standard was recognized by the Michigan Supreme Court in Deziel v. Difco Laboratories, Inc., on remand, 403 Mich. 1, 268 N.W.2d 1 (1978), and later reversed by legislation providing a specific causation standard for mental disabilities. Mich Comp. Laws Ann. § 418.301 (1), (2), and .401 (c), effective January 1, 1982. The legislative reversal of this precedent is contained in the statutory statement: "Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof." § 301(2).
44. Lasky, 1988 at 51.
45. Each individual's preexisting condition or predisposing factors presents a unique constellation of facts. This necessarily subjective state "does not lessen the compensability of an injury which precipitates a disabling neurosis" or mental disorder. Larson at § 42.22 at 7-158.
46. See, e.g., Pate v. WCAB. 104 Pa. Commw. 481, 522 A.2d 166 (1987), cert denied,108 S. Ct. 1025 (1988) where an employee with a preexisting schizophrenic condition claimed an aggravation of her condition due to her supervisor's criticism of her work. Her claim was denied for a lack of evidence that she encountered anything unusual in her work environment. See also, Coleman v. Guide-Kalkoff-Burr, Inc., 10 N.Y.2d 857, 178 N.E.2d 912, 222 N.Y.S.2d 689 (1961) (stress from two brief arguments on employee with heart condition did not rise above stress level of ordinary daily work).
47. See, e.g., Ann. L. of Mass., Ch. 152, § 29, which states as follows: "No mental or emotional disability arising principally out of a bone fide personnel action including a transfer, promotion, demotion, or termination except such action which is the intention infliction of emotional harm shall be deemed to be a personal injury" (discussed in Larson, § 42.23(a) at 7-173). See also, e.g., Smith & Sanders, Inc. v. Peery, 473 So.2d 423 (Miss. 1985) (worker with preexisting psychiatric condition suffered nervous breakdown when laid off; compensation denied for lack of unusual or unexpected injury); In re Korsun's Case, 354 Mass. 124, 235 N.E.2d 814 (1968) (emotional stress and excitement from fear of job loss, preceding heart attack and death, do not arise out of employment; compensation denied).