Mental health-related workers compensation claims continue to rise, many fueled by the COVID-19 pandemic, relatively new presumption laws countrywide that broaden workers compensation eligibility for post-traumatic stress disorder and other mental injuries, and greater awareness of mental health issues, experts say.
Yet traditional mental injury claims can and are being defended, as legal experts report a rise in such claim activity among those who, unlike first responders in some states, are not provided a presumption.
Michael Gaston, associate at Cipolla, Calaba, Wolman and Bhatti in Long Beach, California, said “there are certain hurdles that the injured worker must get over to find it compensable.”
The first issue considered is predominant cause, or “when the doctor examines the applicant, he must take into consideration the alleged injury, and any other potential psychological contributors,” Mr. Gaston said.
This involves digging into the applicant’s past. “If the applicant was abused or killed someone or was divorced, anything that could cause psychological instability has to be considered,” he said.
The doctor then decides whether the cause of the psychological disability is due predominantly to the incident, or if the injured worker does not meet predominant cause. “If the applicant can’t meet predominant cause, there’s no psych claim,” Mr. Gaston said.
If predominant cause is met, he said, the employer still has several defenses that can be applied. One is the six months rule: “If the injured worker hasn’t worked for the company for at least six months, a psyche claim cannot be filed against the company,” he said.
There is also a post-termination defense. If the applicant files a claim after being fired, “There are rules about whether there was evidence before being fired, and whether they reported it,” he said. “It’s possible that the claim can be dismissed if it’s filed post-termination.”
Probably the most common defense is called the good faith personnel action, he said, which says that an employer or supervisor is allowed to do their job despite allegations that an adverse action caused a worker mental injury.
“Say I’m a supervisor. I tell you to do your job and work harder to improve,” Mr. Gaston said. “However, I’m such a jerk that you file a claim for psychological injury.” Assuming predominant cause is met, the question becomes whether the actions taken by the employer were personnel actions done in good faith, he said.
To determine this, the supervisor’s reasons for his or her actions must be known — such as whether the worker was underperforming. “If those two burdens are met, then regardless of whether the applicant suffered psychological disability, it would not be compensable,” he said.
However, “if I make fun of you because of your gender or ethnicity, those are not personnel actions,” he noted, adding that, “If the employer is hiding behind personnel actions to retaliate against the injured worker and the worker can show that, obviously it’s not done in good faith.”
This article was first published in Business Insurance.
