Workplace Bullying – New Age Workers’ Comp Benefits

Workplace Bullying – New Age Workers’ Comp Benefits

By Donald T. DeCarlo, Esq.

It is not just your child being bullied at school that’s creating concern as described in the national press, concern also extends from the fact workers compensation benefits are now being awarded for mental stress in the workplace as a result of bullying.

In New York alone, there were two recent cases; a mental health therapist aide was ruled by the full New York Workers’ Compensation Board (WCB) as having sustained an accidental injury arising out of workplace harassment of coworkers and supervisors. The WCB stated, verbal abuse and threats of harassment by coworkers, coupled with the supervisor’s refusal to stop such behavior created a compensable stress claim, as it was greater than other similar situations found in the normal workplace. (Rockland Psychiatric Center, 113 NYWCLR 256, 2014).

In another case, the full WCB in 2013 awarded compensation benefits for a correction officer who allegedly suffered from panic disorder and stress disorder due to workplace harassment. Coworkers constantly teased and harassed him about preferential treatment he allegedly received from a sergeant at the facility. The harassment claimed was missing time cards, profane language written on his time card, being left a threatening message and being belittled by a supervisor for taking antidepressant medication. Once again the WCB took the position that the facts supported a workers compensation claim because a mental stress claim can be sustained where stress is greater than what occurs in the normal workplace.

The claimant in both cases above could have pursued Human Resources for help if he was not comfortable with the work environment, or find another job as so many people have done over the years. However, finding another job these days might be part of the problem. Now filing a mental stress claim for workers compensation is the new twist on dealing with the pressures of work life.

Some facts generally, on bullying: One report claims that one out of four workers in this country say they’ve been bullied on the job, according to the Workplace Bullying Institute (“WBI”). Yes, there is a Workplace Bullying Institute. While 60% of on-the-job bullies are men, according to the WBI, nurses are especially prone to the practice, and it affects those who watched others being bullied.

Bullying is not limited to the hospital setting, most notably the recent bullying case involving two Miami Dolphin football players and a coach. The bullying according to the NFL consisted of a pattern of racial and homophobic language and other abuse. It caused a player to leave the team, giving up his NFL career.

Bullying targets not only the rugged football players but also the weak, i.e. disabled, and elderly, or bullying can take a turn to ethnicity, sex, religion which also exposes an employer to claims of discrimination, and now workers’ compensation claims.

Are bullying claims contemplated by the state workers compensation systems?? (I doubt it) Where do we go from here in terms of cost and prevention? It appears from this writer’s perspective there is at least a need for new age prevention programs in the workplace related to bullying, which will serve the dual purpose of raising the awareness of the problem by employers. The prevention program might be merely the use of an employee assistance program (EAP). EAP services, which are generally reasonably priced, can provide counseling or referral to professionals to help stressed employees. In addition, HR personnel should be provided education or guidance on how to deal with employee bullying incidents.

It is a “slippery slope” when workers compensation administrators begin to recognize bullying claims as compensable. We are quickly arriving at the point where anyone will be able to qualify for compensation benefits simply by making the right allegations. (She doesn’t like me and I can’t work anymore). Employment law and not workers compensation should be the remedy for bullying.

Donald T. DeCarlo, Esq. is the principal of an independent law firm in Lake Success, NY, which focuses on mediation/ arbitration and regulatory and insurance counseling. Before establishing the firm in 2005, Mr. DeCarlo was a Partner at Lord Bissell & Brook LLP and headed its New York office. Formerly, 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•U.S. Arbitrator and Umpire, a Master Arbitrator for the NYS Insurance Department, and an Arbitrator for the American Arbitration Association and Center for Dispute Resolution. Mr. DeCarlo is also the Founder, Chairman and President of The American Society of Workers’ Comp Professionals, Inc. (AMCOMP). He Chairs an Advisory Committee of the World Trade Center Captive Insurance Company, and formerly served as Chair, Vice 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.

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.