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Compensability

States Split Over Mental Injury Claims

The difficulty in establishing objective medical opinion is an obstacle to handling workplace mental injury claims with any consistency.
By: | February 7, 2018 • 4 min read

The 1,800 miles separating Montana and Pennsylvania pale in comparison to the vastness separating their workers’ compensation laws on workplace mental injuries.

Recent court rulings, one from each jurisdiction, provide a reminder of how workers’ comp laws extensively differ from state to state and how those differences can complicate or ease a claim payer’s defense against claims alleging mental injuries.

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Both cases allege post-traumatic stress disorder (PTSD) among other psychological harms.

The Pennsylvania case of Vasser-Watts v. Workers’ Compensation Appeal Board involved two 1996 bomb threats and a customer service operator ordered to stay and answer calls while others evacuated a building.

In 1997 a workers’ comp judge ruled abnormal working conditions caused major depressive disorder and panic disorder along with PTSD. Pennsylvania’s Workers’ Compensation Appeal Board affirmed medical benefits for the three injuries.

But nearly 14 years later, when the employer in the case wanted to terminate those benefits, a years-long appeals battle ensued over whether the injured worker continued to suffer from the original conditions.

In addition to back-and-forth rulings between a workers’ comp judge and the appeal board, the case included dueling doctor opinions provided by a psychiatrist representing both sides.

The claims payer never argued that so-called “mental-mental” benefits are not compensable — because in Pennsylvania they clearly are. Instead, the employer argued that the claimant was no longer entitled, because she had recovered from those injuries.

Mental-mental refers to injuries having a mental stimulus and mental consequences. Mental stimulus can include stress, fear and anxiety.

On Jan. 24, 2018, the Commonwealth Court of Pennsylvania, an appeals-level body, affirmed the Board’s termination of medical benefits for PTSD and major depressive disorder. But it also reversed the Board’s termination of medical benefits for panic disorder.

“It’s about having the right evidence, having the right investigation and learning what is the mental history of the employee and having a qualified expert make a proper determination.” — Michael Stack, CEO, Amaxx Risk Solutions

The Montana case of TG v. Montana Schools Group Insurance Authority provides a contrasting example of how matters play out when state statutes prohibit workers’ comp benefits for mental-mental claims.

That situation involved a school aide hit, pinched and kicked by a special-needs high-school student who attacked her on two separate days. Three coworkers pulled her away from the second attack when the claimant couldn’t get the student off of her.

Michael Stack, CEO, Amaxx Risk Solutions

The attacks caused PTSD and aggravated the aide’s pre-existing anxiety, depression and “pseudoseizures,” court records show.

The claimant argued she suffered compensable physical injuries and physical-mental injuries.

But on Jan. 25.2018, a Montana workers’ compensation judge granted summary judgement to the Montana School Group Insurance Authority, which argued that the claimant’s injuries did not arise from physical stimulus.

The judge agreed the claimant did not suffer compensable physical injuries nor compensable psychological injuries. He ruled that her anxiety, depression and PTSD are mental-mental conditions while her pseudoseizures are a mental-physical condition. Neither type of claim is compensable under Montana law.

“The legislature recognizes that [emotional distress or mental-mental] claims are difficult to objectively verify and that the claims have a potential to place an economic burden on the workers’ compensation and occupational disease system,” the ruling states. “The legislature also recognizes that there are other states that do not provide compensation for various categories of stress claims … ”

Unlike the case of a physical injury that easily lends itself to objective medical findings, determining a level of anxiety or depression and whether pre-existing conditions or the workplace drive those conditions can be difficult, said Leslae Dalpiaz, a Montana workers’ comp attorney.

But fact patterns for some cases clearly show that mental stresses do harm workers and providing benefits is appropriate, said Dalpiaz, who represents injured employees. That is true for the case of TG v. Montana Schools Group Insurance Authority, she added.

“When you read the facts of this case it should be at least considered, and at the very least, a discussion about causation should occur,” Dalpiaz said.

Common sense tells us that certain events, like workplace shootings, can have enough impact to cause workers to suffer significant mental injuries that should be compensable, said Michael Stack, CEO, Amaxx Risk Solutions, which provides training in workers’ comp best practices.

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Although it is difficult for employers and other claims payers to establish a “clean line” determining what qualifies as a compensable mental injury, there are cases that deserve compensability, Stack agreed.

Eliminating compensation for all mental stimulus claims is irresponsible, Stack said. However, such claims will require digging deep to learn the facts for an appropriate decision on whether an ailment is work related, he added.

“It’s about having the right evidence, having the right investigation and learning what is the mental history of the employee and having a qualified expert make a proper determination,” he said.

But as the Montana ruling shows, some state legislatures decided efforts to reach determinations on individual mental claims places too great a burden on claims payers. &

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at [email protected] Read more of his columns and features.

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]