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
Topics: Claims | Workers' Comp

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

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Risk Management

The Profession

Mohegan Gaming’s director of risk management recognizes the value of the people around her in creating success.  
By: | February 20, 2018 • 4 min read

R&I: What was your first job?

I was a margin clerk in financial futures at Kidder Peabody & Company.

R&I: How did you come to work in risk management?

While I was at General Dynamics working in HR, the opportunity to transition to risk management was afforded to me. I was very fortunate that the risk manager at the time took a chance on me and taught me so very much. Coming from a manufacturing facility with multiple unions helped prepare me for any situation.

R&I: How has your experience in human resources helped your career in risk management? What do the positions have in common?

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I believe my HR background has helped my risk management career immensely. Both areas are interrelated. People are fundamental to accomplishing goals and people can help or hinder those results. Human resources is tasked with bringing in and nurturing the right people, and risk management is tasked with keeping them safe.

R&I: What is the risk management community doing right?

Education, keeping up with industry trends and having resources available to better prepare organizations. There is always something new or a new way to view a situation.

Mary Lou Morrissette, corporate director of risk management, Mohegan Gaming & Entertainment

R&I: What kind of resources can risk managers bring to the table?

Data and analytics have come so far, and the systems out there are able to drill down into good quality information that can be used more effectively.

R&I: What could the risk management community be doing a better job of?

Within the community, we all understand the role of risk management, but getting organizations to understand the importance of considering risk during the strategic decision-making process as opposed to treating it like an after-thought can be a challenge. Risk should be involved in day-to-day operations — not just when a problem arises.

R&I: What was the best location for the RIMS conference and why?

San Diego. The proximity to the city, community and culture was great.

R&I: What’s been the biggest change in the risk management and insurance industry since you’ve been in it?

The emergence of cyber security.

R&I: What emerging commercial risk most concerns you?

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Catastrophic events, both natural and manmade, are becoming more of a norm of late. We need to look at analytics and the role they play in understanding these disasters and subsequent losses to help organizations prepare, manage and recover from these types of events.

R&I: What insurance carrier do you have the highest opinion of?

We have always valued relationships. We have a few long-standing partners that immediately come to mind. FM Global, Great American and Safety National have all been immensely important to our company and our growth.

R&I: How much business do you do direct versus going through a broker?

All through a broker.

R&I: Is the contingent commission controversy overblown?

If you have trust and faith in your broker and they have full disclosure, then yes, it is overblown. But I have seen the cost of hidden commissions and the effect on the bottom line.

R&I: Who is your mentor and why?

I had a mentor early on in my career in HR, Marie Haggerty. She instilled in me the mindset to speak up and be heard and not to shy away from an adverse opinion but to be strong in my convictions.

R&I: What have you accomplished that you are proudest of?

Being awarded FM Global’s Highly Protected Risk award in 2011. The award is granted when a location has no human element recommendations, no uncontrolled high-risk exposures and no other major loss exposures. Mohegan Sun has worked hand-in-hand with FM since 2000 on loss prevention recommendations and improvements. Our engineering team as well as our fire department have been instrumental in our ability to achieve this award. We have always tried to meet or exceed the advice we receive from FM’s engineers. This has made our property better protected as well as helped to keep our premium in line.

R&I: How many e-mails do you get in a day?

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Too many!

R&I: What is your favorite book or movie?

I only read nonfiction and personal development books. Katie Couric’s “The Best Advice I Ever Got: Lessons from Extraordinary Lives” is one of my favorites.

R&I: What is your favorite drink?

Coffee and water.

R&I: What is the most unusual/interesting place you have ever visited?

The Pearl Harbor memorial. I love history and to stand over the Arizona was humbling.

R&I: What is the riskiest activity you ever engaged in?

Parasailing.

R&I: What about this work do you find the most fulfilling or rewarding?

That I can make a difference in either a safer workplace or on the bottom line, and that every day is different. I love the diversity of what I do and the constant change and ability to continue to grow and learn.

R&I: What do your friends and family think you do?

I definitely get the deer in the headlights look when I tell people what I do — I don’t think any of my family or friends truly understand it.




Katie Dwyer is an associate editor at Risk & Insurance®. She can be reached at [email protected]