Workplace Stress in a Nutshell

By Donald T. DeCarlo, Esq.

Stress is commonly cited as the cause of an increasing number of workers compensation claims.  What is stress?  The word “stress” should be defined and the types of stress claims described before we focus on this workers compensation claims trend.

Stress means response behavior that is unique and personal, with a single stimulus being perceived by different individuals in different ways.  Dr. Hans Selye defines stress as the “non-specific” response of the body to any demand made upon it.  Stress can be negative or positive.  Stress can come from positive uplifting experiences, such as having a baby or getting a job promotion.  Stress can also come from negative life experiences such as death of a loved one or termination of employment.  When “stress” becomes “distress” then there is the potential for a work related disability or compensable workers compensation claim.

The types of workers compensation stress claims vary.  Claims involving either mental stress or mental disability are often divided into three categories:

• Mental-physical claims involve mental stress which results in a physical disability; for example, a stress-induced heart attack.

• Physical-mental claims involve a physical injury which leads to a mental disability; for example, a conversion neurosis following a traumatic injury.

• Mental-mental claims refer to mental stress which results in a mental disability; for example, a nervous breakdown brought on by job harassment or termination.  Characteristically, neither the stress nor the disability can be physically corroborated.

Most workers can identify with an employee experiencing emotional stress from such job pressures as a change in duties or conflict with supervisors. A recent Cigna survey regarding stress from work demonstrated the need for wellness programs; “More than 87% surveyed actually believed to be stressed. Many are unable to manage their stress levels successfully.”  A survey conducted by the Canadian Mental Health Association showed that approximately 60% of respondents reported experiencing “negative stress” on the job.  Frequently cited sources of stress included workload and time pressures, poor relationships with supervisors and co-workers, and contact with the public or customers.  Workers’ in blue-collar and farming occupations cited the threat of job loss or change due to economic conditions or technological innovations.  Mental-mental claims arise in all occupations, and are filed by secretaries to chief executive offices.

Legal Recognition of Mental Impairment

A major factor causing the increase in workers compensation mental stress claims may simply be the increasing legal recognition of compensation for mental injuries in other areas of the law.  This fact is clearly demonstrated by case law reflecting liability suites for mental injury.

Will the Increase Continue?

Whatever the cause, the increase in mental stress claims will continue.  A new generation of workers who are more prone to stress, or at least more willing to view their emotional problems as compensable injuries is maturing into the work force.  While our parents’ generation would have been reluctant to accept the social stigma of acknowledging a mental problem that may result from filing a mental stress claim, studies show no reluctance on the part of the new generation to file such claims.

More females than males file stress claims.  It has been suggested that many women may be prone to job dissatisfaction where unequal job opportunities confine them to jobs with lower pay or less responsibility and independence than similarly qualified male counterparts, or the additional burdens of running a household may be significant factor.

The New York Court of Appeals first recognized the compensability of mental-mentals in Wolfe (Wolfe v. Sibley, Lindsay & Curr Co., 369 NYS2d 637 (1975) holding that psychological or nervous injury precipitated by psychic trauma is compensable to the same extent as physical injury.  The Court did, however, indicate that claimant’s active role in the tragedy, i.e., counseling boss prior to suicide, and witnessing suicide scene, was a factor in the decision to find compensability.  New York’s intermediate appellate courts have construed Wolfe as, at the least, requiring stress greater than that of day-to-day employment. Add to the Wolfe Case, the more recent NY Wyman Case, NY in Wyman v. Maidas Floral Shop 1 A.D. 3d 728, expanded the Wolfe Case, sudden and shocking test for mental stress claims to be compensable, by specifically introducing the concept of an “active participant”. In Wyman, a woman delivery person who while driving her delivery truck witnessed her daughter being killed in an automobile accident and was determined to be entitled to benefits for mental stress.  (In New York a study conducted of 9/11 workers’ at Stony Brook University Hospital, concluded the two health problems of World Trade Center responders – posttraumatic stress disorder and respiratory symptoms are linked and one illness may be aggravating the effects of the other.)  Note, New York recognizes injuries and death resulting solely from mental claims caused by employment, however, it does not cover work related stress claims from lawful personnel actions.

Mental-mental claims.  States that recognize some form of mental-mental claims include:

Alaska, Arizona, Arkansas, California, Colorado, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, Wyoming and the District of Columbia.

Common concerns related to increases in workers compensation mental-mental claims, many times result from employers personnel practices such as demotions, harassment, discipline, termination etc., all of which may not be covered by workers compensation laws, and which are specifically excluded from coverage under the Standard Workers Compensation and Employers Liability Policy under Part Two Employers Liability Insurance. Many state laws have addressed mental-mental workers compensation claims issues by increasing the statutory threshold standards to file a successful claim, and a few sates specifically excluded such claims.

Conclusion         

The solution to mental-mental claims should importantly be focused on wellness programs.  The use of Employee Assistance Programs (EAP’s); support stress mitigation by providing reimbursement for health and fitness programs; or focus on employee work loads and the employment environment. Finally, laws or regulations focused on standard of proof such as use of work related predominant cause and exclusions of personnel practices stress claims, would go a long way in fairly addressing mental-mental stress claims in workers compensation systems.

 

Donald T. DeCarlo, Esq. is the principal of an independent law firm in Fresh Meadows, NY, which focuses on mediation/arbitration and regulatory and insurance counseling. Previously, he was Partner at Lord Bissell & Brook LLP and headed its New York office. He was Senior Vice President and General Counsel of The Travelers Insurance Companies, Deputy General Counsel for its parent corporation Travelers Group, Inc. and Executive Vice President and General Counsel for Gulf Insurance Group.

Mr. DeCarlo is a Certified ARIAS-US Arbitrator and Umpire, a Master Arbitrator for the NYS Insurance Department, and an Arbitrator for the American Arbitration Association and Center for Dispute Resolution. He is the Founder, Chairman and President of The American Society of Workers Comp Professionals, Inc. (AMCOMP). In addition, Mr. DeCarlo is a Director of 17 companies in the insurance industry.

Mr. DeCarlo has authored numerous scholarly articles in legal and trade journals and is a co-author of two books on workers compensation insurance, Workers Compensation Insurance & Law Practice – The Next Generation and Stress in the American Workplace – Alternatives for the Working Wounded.

Mr. DeCarlo Chairs an Advisory Committee of the World Trade Center Captive Insurance Company, and formerly served as Chairman and Commissioner of the New York State Insurance Fund (NYSIF) for 10 years. He also served as an Inspector for the NYS Athletic Commission.