Thursday, January 12, 2017

The Debate of Mental Mental and PTSD

There is a debate raging across America related to mental health. There are those who see disparity and injustice in the treatment of psychological illness in workers' compensation. It appears that state's treatment of mental illness falls into some reasonably defined categories. 

In some states, including Florida, mental injury alone is rarely compensable in workers' compensation. Florida follows the "impact rule" in both tort and workers' compensation settings. Essentially, mental injury is compensable only if that injury emanates from or is caused by some compensable physical injury. These are sometimes referred to as "physical/mental jurisdictions."

Florida even strives, in Section 440.02(1)(Italics are direct quote) to exclude certain such conditions from the definition of "accident:" 

Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual’s race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment.


Other states extend this theory, providing coverage if a mental injury results in or causes a physical injury or manifestation. These are sometimes referred to as the "mental/physical jurisdictions."

And, in still other states, a mental injury or condition can be compensable regardless of the existence of any physical symptom or injury. These are sometimes referred to as "mental/mental jurisdictions."

There have been efforts in recent months to compensate "first responders" regarding mental injury. In December, WorkCompCentral reported First Responders With PTSD May Have to Rely on Donations for Treatment. This detailed how "millions of dollars" donated for the "victims of the Sandy Hook Elementary School massacre have been spent on mental health services." The event was traumatic and horrific by all credible accounts. I am glad that I lack any first-hand knowledge of the event and aftermath. Most people acknowledge that witnessing certain things can have profound impacts upon us. 

Just this week, Workerscompensation.com reported that two Microsoft employees have sought compensation for their work watching Internet videos. There may be arguments in those cases about whether those employees are limited to workers' compensation as a recovery, that is "exclusive remedy." There may also be debate about the existence, extent, and cause of mental injury. The point is that Post Traumatic Stress is in the news periodically. Work place safety and workers' compensation will have concerns about it and other mental injury in years to come. 

This WorkCompCentral article notes that Sandy Hook first responders are struggling to gain treatment and compensability of "many mental health issues are not covered by workers’ compensation." Connecticut is a state that formerly compensated "mental/mental" injuries, but statutory amendments constrained that coverage. Since 2012, Connecticut covers post traumatic stress for police officers, "but only if they use deadly force or are subjected to deadly force. It covers firefighters for PTSD but only if they witness the death of another firefighter." And so, for most who responded to Sandy Hook, there is no PTSD coverage under workers' compensation. Recent legislative efforts in Connecticut, to change these coverage provisions, have not meet with success. 

The effects of workplace exposure to violence or other shocking events are not limited to first responders, as the Microsoft suit above illustrates. Business Insurance reported in December in Workplace Tragedies Create new Perspective on Comp. The focus is upon the coworkers of those injured or killed a year ago by two terrorists in San Bernardino, California. Two terrorists entered a government office during a holiday celebration in 2015 and killed multiple individuals. Survivors of the attack, who were not physically injured, have complained about the way workers' compensation has affected them. 

Business Insurance notes that these are employees "whose injuries are limited to the mind." Employees were present that day, and escaped physical injury, but "watched co-workers perish at the hands of" the two terrorists. These co-workers returned to work, but are faced with the reminders of the event and those who were injured or killed. There are issues with becoming "comfortable again with their surroundings." Anyone who has ever lost someone close to them knows the feelings that can erupt when even a small item, scent, location reminds us of that someone. These co-workers return each day to the same location, see the work stations or offices of the slain co-workers, perhaps have to enter and leave through the same doorway they saw the terrorists enter.

These obviously traumatic settings such as San Bernardino and Sandy Hook are part of the discussion. But, some contend that events with far less news coverage are similar regarding potential for effects on people. They cite examples such as "a store cashier getting robbed or a worker seeing a co-worker injured in an accident." Are these the manner of events that should be compensable in a "mental/mental" paradigm? Are job duties such as viewing scandalous and violent Internet videos?

On the other end of the spectrum are perhaps even less apparent examples. There is ample stress in many workplaces and occupations. Sometimes related to the work itself, and other times related to the co-workers, supervisors, facilities, customers, and more. Some perceive stress in the workplace as a somewhat common occurrence. 

I recall an occasion when I was in the restaurant business. The headwaiter was on vacation, and we were dealing with all those implications (less-experienced leadership on the floor, more questions for the manager). That morning, my preparation cook and my fry cook got into an altercation/argument about religion. One threw some equipment at the other and fortunately neither was injured, but one stormed out the back door while the other stomped out the front. Neither returned. Fortunately for me, I had a full thirty minutes of abject panic, before the lunch rush, during which to call our other stores to beg for personnel. Unfortunately, no help was offered or provided. For that lunch rush, I was without waitstaff leadership and alone in the kitchen. To this day, I do not know how we pulled through that lunchtime. However, It resides fresh in my memory as if it were yesterday, though it was about 30 years ago. 

I suspect that some would argue that this kind of stress should not be compensable, without something more. It is certainly the kind of stressful event that undoubtedly happens every day out there in the world of business? Until I penned this post, I never contemplated the potential for mental claims by the two cooks when they later returned to the shop and were fired for both their behavior (fighting) and abandonment. Did my termination of the two result in stress and shock? Should that sudden loss of employment be compensable? If a similarly situated manager finds such an event, or series of them, traumatic should she/he be entitled to mental health care under workers' compensation? The working world is full of stress sometimes.

Returning to the violent tragedy situations such as Sandy Hook and San Bernardino, these illustrate an interesting dichotomy that may be worthy of discussion. As various states discuss the compensability of stress or mental claims by first responders, will there be discussion of non-first responders who suffer similar stress from violence?

There were armed officers that responded to these events. They witnessed bloodshed and death, physical danger, and fear (at least I would). There were trained paramedics and firefighters that responded to these events. They may or may not, individually, have experienced the "active shooter" threat. However, they were at a minimum confronted with the aftermath, in an urgent or emergent setting. 

But, then came the coroners and similar. Tasked and trained for removing remains, even these professionals might find an extraordinary violent setting such as these unsettling or disturbing. 

Then came the professionals who had to dispose of the carpet, repair the walls, and rebuild facilities. What impact does the enormity of a terrorist attack have on them? 

Are the mental effects limited to those who respond to the scene of such an event? Might hospital employees find extraordinary stress or feel extraordinary impact from the sheer number of trauma patients coming in from such an event? How about the extraordinary volume of family, friends, and the curious in and around the hospital following such an event?

Might there be potential for mental effect or injury to victims, coworker witnesses, first responders, cleaners, rebuilders, caregivers, and more? Are some of these employees better than others? Is the pain or some of these worse than others? As there is discussion about whether first responders should be eligible for workers' compensation as a result of their exposure to such events, should there be discussion about these others that might suffer complaints and concerns as a result of their exposure to these events and their sequellae? If the stress in one occupation is to be the basis for workers' compensation, should it be uniform for other occupations? Should it depend on occupation, on severity of situation, on proximity to or involvement in events? There is much worthy of discussion. 

Business Insurance says that there is confusion about these issues, and one consultant suggested "there’s a lot of gray,” He continued that questions regarding work causation are difficult. He says that “The biggest thing we are seeing with mental injury claims in general is the ambiguity: What was the cause of the (mental) injury? Did it arise out of employment?” And, in that context, perhaps mental claims are no different than a fair volume of physical injuries around which the eddies of workers' compensation litigation flow daily? For instance, a clear traumatic physical injury is perhaps more readily accepted as compensable than a repetitive "trivial" trauma claim that eventually results in symptoms but for which causation is less readily apparent.? 

Others quoted by Business Insurance cautioned that there is potential for fraud in such claims. A Connecticut psychiatry professor cautioned that psychiatric diagnosis may be imperfect. He notes that there is already potential for "fraud in physical workers' comp claims," and seems to intimate that the potential exists for similar complications in mental injury claims. He expressed concern about symptom exaggeration on one hand, and the potential for PTSD focus to distract from other "debilitating conditions, such as depression" related to work. Some might argue that there is potential for symptom exageration in many types of injury, and they may question whether that potential is reasonable grounds for simply excluding those injuries from compensability?

There will be discussion of PTSD specifically and mental claims generally in 2017 across America. There will be various perspectives and there will be legislative bills. It is impractical to predict where the issues will be raised, where there will be bills, and what bills will pass. But, it is easy to predict that these will be passionate debates and will provide much about which to think. 

In December 2016, the Office of Judges of Compensation Claims researched Florida claims for "mental/mental" injuries. The research focused on claims for benefits related to "Post Traumatic Stress Disorder" ("PTSD"), and identified over 100 instances of that phrase in specific petitions for benefits. It appears that only ten of those seek mental benefits in the absence of a physical injury. 

Thus, the instances in which such "mental/mental" benefits are sought appear to be exceedingly rare in Florida. That conclusion, however, should not be interpreted as indicating that such complaints are necessarily rare. Because Florida follows the impact rule, it is likely that some volume of such claims are complained of, but never filed. That a handful are, suggests that there are imaginative lawyers (everyone always wants this quality in the lawyer they hire) who see an argument for compensability of "mental/mental" in Florida. It will be interesting to see how those arguments are constructed and how the judges rule. It will be as interesting to see how the debates about mental injuries proceed in various statehouses this year.



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