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

2018 Risk All Stars

Stop Mitigating Risk. Start Conquering It Like These 2018 Risk All Stars

The concept of risk mastery and ownership, as displayed by the 2018 Risk All Stars, includes not simply seeking to control outcomes but taking full responsibility for them.
By: | September 14, 2018 • 3 min read

People talk a lot about how risk managers can get a seat at the table. The discussion implies that the risk manager is an outsider, striving to get the ear or the attention of an insider, the CEO or CFO.

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But there are risk managers who go about things in a different way. And the 2018 Risk All Stars are prime examples of that.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Goodyear’s Craig Melnick had only been with the global tire maker a few months when Hurricane Harvey dumped a record amount of rainfall on Houston.

Brilliant communication between Melnick and his new teammates gave him timely and valuable updates on the condition of manufacturing locations. Melnick remained in Akron, mastering the situation by moving inventory out of the storm’s path and making sure remediation crews were lined up ahead of time to give Goodyear its best leg up once the storm passed and the flood waters receded.

Goodyear’s resiliency in the face of the storm gave it credibility when it went to the insurance markets later that year for renewals. And here is where we hear a key phrase, produced by Kevin Garvey, one of Goodyear’s brokers at Aon.

“The markets always appreciate a risk manager who demonstrates ownership,” Garvey said, in what may be something of an understatement.

These risk managers put in gear their passion, creativity and perseverance to become masters of a situation, pushing aside any notion that they are anything other than key players.

Dianne Howard, a 2018 Risk All Star and the director of benefits and risk management for the Palm Beach County School District, achieved ownership of $50 million in property storm exposures for the district.

With FEMA saying it wouldn’t pay again for district storm losses it had already paid for, Howard went to the London markets and was successful in getting coverage. She also hammered out a deal in London that would partially reimburse the district if it suffered a mass shooting and needed to demolish a building, like what happened at Sandy Hook in Connecticut.

2018 Risk All Star Jim Cunningham was well-versed enough to know what traditional risk management theories would say when hospitality workers were suffering too many kitchen cuts. “Put a cut-prevention plan in place,” is the traditional wisdom.

But Cunningham, the vice president of risk management for the gaming company Pinnacle Entertainment, wasn’t satisfied with what looked to him like a Band-Aid approach.

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Instead, he used predictive analytics, depending on his own team to assemble company-specific data, to determine which safety measures should be used company wide. The result? Claims frequency at the company dropped 60 percent in the first year of his program.

Alumine Bellone, a 2018 Risk All Star and the vice president of risk management for Ardent Health Services, faced an overwhelming task: Create a uniform risk management program when her hospital group grew from 14 hospitals in three states to 31 hospitals in seven.

Bellone owned the situation by visiting each facility right before the acquisition and again right after, to make sure each caregiving population was ready to integrate into a standardized risk management system.

After consolidating insurance policies, Bellone achieved $893,000 in synergies.

In each of these cases, and in more on the following pages, we see examples of risk managers who weren’t just knocking on the door; they were owning the room. &

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Risk All Stars stand out from their peers by overcoming challenges through exceptional problem solving, creativity, clarity of vision and passion.

See the complete list of 2018 Risk All Stars.

Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]