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WORKERS' COMPENSATION
CLAIMS
Work and stress are almost synonymous.
The very nature of work creates forces and pressures
on an individual, either from external events or internal
drive, that require adaptation. At the outset stress
comes from having to be at work at a particular time,
remaining there for a prescribed number of hours, accepting
the physical demands and requirements, meeting deadlines
or quotas, achieving a level of quality or accuracy,
and interacting with co-workers and superiors. In the
real world, it also includes tolerating personality
differences, facing one's own shortcomings, dealing
at times with unreasonable authority, facing overwhelming
tasks, and answering to the excessive demands of clients
or customers. These factors are inherent in work and
are not pathologic. Even the distress or discomfort
that flows from those obligations is not pathologic.
After all, few individuals are completely satisfied
with their work and most feel distress on a regular
basis. The issue then is not whether there was stress
or even distress, but how adaptive or maladaptive was
the individual in the face of it. More importantly,
did a maladaptive process lead to an actual stress related
illness and, as outlined earlier, how can it be defined
or measured? From its inception, workers' compensation
law recognized these difficult questions and has sought
objectivity, which in stress related illness may be
hard to find.
Before the industrial revolution
and the development of factories, mills, and plants
with their gigantic machinery, agriculture dominated
economic life. No doubt injuries occurred but they were
relatively few compared to when workers in large numbers
were placed in proximity with dangerous machinery and
implements of industrial production. If a worker on
a farm was hurt, the employer would routinely provide
medical help and some financial help through the period
of disability. Workers were closer to their employers
then and often lived on the farm. If their employer
did not help, the worker's only recourse was to sue
in common law court, a process that was time consuming
and not always successful. In the meantime public charity
would bear the burden of the injury.
The predominant claim in a common
law suit by a worker was that the employer was somehow
negligent, and therefore injury resulted. However, the
employer had several advantageous defenses: contributory
negligence, assumption of risk, and the fellow-servant
rule. In contributory negligence the employer would
claim that the worker was partly to blame or that the
injury occurred from the worker's own actions. Alternatively,
an employer could say that the worker knew the dangers
of that employment before coming to work and so there
was an assumption of risk that would bar liability.
Finally, a number of injuries were not by the employer's
actions or employment conditions at all, but due to
other fellow workers who may have caused the accident.
In these cases the fellow-servant rule prevented blame
from being attached to the employer.
These defenses were quite effective
for employers during the industrial age as well, so
that 80% or more of the cases brought against employers
were lost or uncompensated. Similar inequities were
seen in Europe where the industrial revolution was also
running at full steam. But there in 1884, Otto VonBismark,
the first chancellor of the German empire, championed
the idea of workmen's compensation legislation. For
the first time, injuries were not compensated on the
basis of the employer's negligence, but on their relationship
to the job. Within a short time England followed the
lead and abolished common law workers' suits, instead
establishing a formal workmen's compensation system.
Liability depended not on who was at fault for the accident
but, according to English legal scholars, whether the
personal injury by accident arose out of and in the
course of employment.
In the early years of the 20th
century American legislators also clamored for a similar
change of law. By 1911 Massachusetts, which debated
the question for nine years, finally passed a workers'
compensation law with ten other states changing to a
similar system at about the same time. The change was
not easily made and understandable opposition came from
employers as well as insurance companies who had made
large profits from common law coverage. But the Supreme
Court of the United States upheld these acts and they
gradually became established in every state and for
federal employees. Clearly, workers' compensation laws
were meant to be a humanitarian measure to create a
new type of liability - a liability without fault. Industry
was to be responsible but society as a whole, through
increased costs of production, would share the loss.
In reality, workers' compensation
laws are a compromise for both employee and employer.
The employee is denied the right to sue at common law
for indefinite damages, but instead receives a certain
percentage of wages during the period of disability,
and medical care at the employer's (insurer's) expense.
The employer, at least in theory, does not have to defend
against fault and is only liable for limited, statutorily
set damages. With the rise of workers' compensation
claims in the past fifty years, with employers feeling
more and more that they are being accused unfairly of
fault, and with alternative remedies now available in
addition to workers' compensation through federal laws,
the premise behind that initial compromise may need
to be re-examined.
Traditionally, most workers' compensation
acts have required as a part of their coverage formula
a personal injury by accident or accidental injury.
Emotional or stress related illness was viewed skeptically
because of its subjective nature. Objectivity was established
by requiring that stress related illness have a physical
connection. Two types of claims are found using that
connection: physical trauma leading to a mental disorder
and mental trauma leading to a physical disorder. These
are respectively known as physical-mental and mental-physical.
In the physical-mental cases there
is a clear precipitating injury with psychological consequences,
e.g. a laborer falls off of scaffolding injuring his
back, later develops a major depression, claiming it
is due to his newly acquired limitations. In the mental-physical
cases some emotional or stress circumstances lead to
an objectively measured physical disorder. Originally,
the circumstances needed to be clearly identified such
as from a nervous shock, e.g. witnessing a disaster
at work leads to a heart attack. However, the nature
of the emotional stress has expanded to included prolonged
or cumulative work stress, and there has been a trend
to compensate for many conditions including asthma,
peptic ulcer, etc. which are claimed to be a result
of that stress. Again, although the stress related illness
or the stress circumstances may be subjective, the physical
connection is thought to give these claims an objective
credibility.
The more controversial category
of stress claim is that of mental trauma leading to
a mental disorder, also known as the mental-mental claim.
The difficulty in evaluating these claims is to a great
extent due to the difficulty in defining a personal
injury when it consists primarily of an intangible force
producing a more intangible effect. Where the injury
represents a single or limited sequence of events, then
it may be easier to identify its traumatic potential,
e.g. a fire at a plant or a robbery in a bank, can be
described by the worker or other observers so that the
magnitude of the threat, the proximity to the worker,
and the likely alarm created can be independently scrutinized.
It is quite a different task to attempt the measure
the cumulative effects of exposure to some noxious (harmful)
aspect of the total work environment, where the perspective
of the individuals involved can widely differ. In spite
of their subjectivity, stress claims are expanding rapidly
and by one legal scholar are called "the most lively
development in compensation law in the last fifteen
years. " Adding to the problem, and taken from principles
of the eggshell skull rule in tort law, are stress related
claims that are based only on an aggravation of a pre-existing
condition. In effect, this opens the door to a multitude
of potential claims because someone with an emotional
disorder can invariably say that any work stress at
least made it worse.
Many jurisdictions have attempted
to limit these mental-mental claims by narrowing the
scope of allowable claims or by using more restrictive
language. In New Hampshire, where an employee has a
preexisting weakness, there is no recovery unless the
stress of the work place contributes something substantial,
and the employment-connected stress or strain must be
greater than is encountered in normal non-employment
life. In Oregon, the workers' claim must meet an objective
test and is not allowed if it is based on a misperception
or an over-reaction to a work environment. Arizona requires
that the claimant show that job stress is something
other than the ordinary stresses of employment to which
all workers are subjected. In yet other states the nature
of the stress must be either a sudden stimulus or an
unusual event. In California and Nevada the doctrine
of active vs. passive role of employment has been used
to shift claims from a subjective to more objective
test. Here the determination is whether the employment
itself was a positive factor influencing the course
of disease as distinguished from a mere stage for the
event, an after-the fact rationalization or a mere passive
element on which a non-industrial condition happened
to have focused. Often, employees who are suffering
from emotional disorders will have difficulty in performing
their job or relating to others at work. The inevitable
consequences of this at work can be a source of stress,
but the work situation is only a convenient focus or
a retrospective rationalization in which the work place
is now blamed for all the problems.
Some of the thornier issues in
workers' compensation stress claims have to do with
administrative or personnel actions by the employer.
For example, if an employee is given a warning or reprimand
for poor performance, it is understandable that this
would cause stress. Should that then be considered a
personal injury arising out of employment conditions?
What if the employee was engaged in deliberate misconduct
or criminal activity for which the employee was sanctioned
or even terminated by the employer? Surely, this would
be stressful too, but does it fall under workers' compensation
law? What of the stress of a layoff or termination with
or without cause? Are these properly considered employment
stressors? Courts and industrial boards have been divided
on these issues, but claims based on them are now an
everyday occurrence. The original compromise and safety
net that workers' compensation law intended to provide
never envisioned such claims which have been made possible
through the concept of stress related illness. Where
workers' compensation law has fallen short, new federal
laws have provided additional avenues for recovery.
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