Wednesday, January 7, 2015

Bullying in the Workplace - A Workers' Comp Issue?

About a year ago, I posted Bullying is in the News, is it in the Workplace? A focus of that post is an unsuccessful Florida legislative effort to recognize workplace bullying, and to provide a remedy for it. The bill did not pass, though, and today Florida does not have a specific legal remedy for workplace bullying. 

In December, Tommy Wyher blogged on The Epoch Times about the effects of bullying. Mr. Wyher describes how bullying in the workplace can effect productivity, attendance, and "overall quality of life" similarly to a physical injury at work. His posting is not specific, but context supports that the marketplace he is addressing is Great Britain. 

He argues that "workplace bullying takes the form of verbal abuse, threatening behavior, sabotage, and gossip or rumor spreading, and it’s a serious problem." The article alleges a huge volume of workplace victims and witnesses of bullying, which the author estimates as about half of the workforce in the United Kingdom. 

He concludes that "bullying leads to 18.9 million lost workdays per year, which contributes to a loss of £18.9 (British Pounds) million annually or as much as 10 percent of overall profits for an individual company." A Pound is worth about $1.56 today, so that is equivalent to almost $30 million. There is no data cited in support of either the conclusions regarding the extent or the cost of bullying. 

These statistics are difficult to reconcile. If 18.9 million workdays are lost and this equates to a loss of £18.9 million annually, then each of those workdays was worth about £1. That seems curious, as does the lack of any documentation of data or sources to support the financial loss assertions. A day of work worth about $1.56? 

Mr. Wyher notes that workers' compensation claims in the United Kingdom (UK). are "rarely simple." He proceeds to describe the complexity of U.K. workers' compensation claims for workplace bullying. He says that in the U.K. bullying "claims often hinge upon an injured worker’s ability to prove that their employer could have prevented the injury. In the case of a bullying claim, the victim must prove that not only were they injured by bullying, but also that the employer didn’t prevent it."

In the United States, there are some states that allow claims for mental injuries without a physical injury, the so-called "mental mental claim." There have been a multitude of analyses addressing this. Some worth reading are by Arthur Larson and Eliashof and Streltzer. Other states only provide treatment and compensation for a mental injury if it results from some physical injury. It is interesting that in the U.K. there is compensability for workplace bullying in any circumstance. Does this extend workers' compensation even beyond the "mental-mental" claim? 

Mr. Wyher contends that business in the U.K.  invests significant time and effort on training to prevent bullying in the workplace. He notes that some employers broadcast their "zero tolerance" of bullying, but concedes that even in a "zero tolerance" environment these claims can still occur.

The article explains that to some degree compensability may depend in significant part on the way the employer responds to the allegations once they are made. He says that if "an employee makes a claim, but his or her employer can prove that it provided training, reprimanded the offender, and made steps to improve the environment, then a victim might not have a successful case." 

In this regard also, this paradigm is curious. In what other workers' compensation process do we see compensability dependent upon the actions and reactions of the employer? Imagine an orthopedic injury being deemed non-compensable because lifting training was provided and disregarded by some coworker involved in the accident. Then the co-worker is reprimanded afterwards for violation of the lifting instructions, and the claims is therefore not compensable? This paradigm seems more akin to American sexual harassment allegations than to workers' compensation. 

It is intriguing to explore how workers' compensation works in other states. The comparisons with other countries sometimes provides an even starker contrast. In what American workers' compensation claim is it relevant what actions the employer takes after the report of injury? Intriguing. 

How prevalent is bullying in the workplace, is workers' compensation the appropriate remedy, is post-accident remediation ever appropriately relevant in workers' compensation compensability determinations? As the 2015 legislative session approaches, it will be interesting to see if the subject arises again. 

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