The Post-Traumatic Stress Disorder Dilemma for Workers’ Compensation Claims

Doesn’t the Employer Take the Employee as It Finds Him or Her, Susceptible to PTSD or Not?

By Thomas A. Robinson, JD, the Feature National Columnist of the LexisNexis Workers'  Compensation eNewsletter, is a leading commentator and expert on the law of workers' compensation.

In 2010, reacting to what is generally recognized as a significant national issue, Congress designated June 27 each year as National Post-Traumatic Stress Disorder Awareness Day [see S.Res. 455]. Indeed, according to estimates published by The National Center for Post Traumatic Stress Disorder, some 7.8 percent of Americans will experience post-traumatic stress disorder (PTSD) at some point in their lives. Women appear twice as likely to suffer from the condition than men. Among our servicemen and servicewomen, the numbers are even more alarming. As many as 30 percent of the men and women who have spent time in war zones experience PTSD.

Because the employer generally takes the employee as it finds him or her, such that all the medical consequences and sequel that flow from the primary injury are compensable [see Larson’s Workers’ Compensation Law, § 10.01 et seq.], employers, claims administrators, and insurers have begun to view PTSD as an ongoing and difficult challenge to claims management and administration. A few are taking proactive roles in helping employees identify if and when they might be at risk of PTSD. They see the prevention and early identification of PTSD as an important part of their overall risk management.

Two Particularly Difficult Factors in PTSD

Although there are many factors within the workers’ compensation setting that make PTSD claims difficult to anticipate and manage, two immediately come to mind. First, unlike other co-morbid factors—e.g., obesity, diabetes, hypertension, and some cardiac conditions—that are relatively easy to identify through observation and medical testing, PTSD almost always lurks silently in the shadows, only to become manifested when the employee is confronted with a physical or psychic trauma. Second, PTSD, like other mental injury conditions, can have a significantly subjective component.

Recent Case Illustrates Both Points of Difficulty

A recent New Jersey case, Rizzo v. Kean University, 2014 N.J. Super. Unpub. LEXIS 1358 (June 11, 2014), in which a state appellate court affirmed a ruling by a workers’ compensation judge that the employee, a tenured professor and college administrator, had failed to establish that her PTDS condition was causally connected to the workplace, illustrates both these points of difficulty. While the court was sympathetic to the plight of the employee—she had suffered sexual abuse as a child and she claimed a stressful workplace incident resulted in PTSD and total and permanent disability—it agreed that under the New Jersey Workers’ Compensation Act the employee could not recover disability and/or medical benefits related to her claim. The opinion has not been designated for publication and, therefore, has limited precedential value, but the case’s factual background and the appellate court’s discussion of the contentions of the parties and applicable law are instructive for practitioners, claims administrators, insurers, and employers within and without the Garden State.

Background

At trial, the employee testified that on April 23, 2009, she was standing at her mailbox when a colleague asked her for computer help to register a student for classes. Unable to help solve the problem, the employee asked the director of the undergraduate program for assistance. Although the director was busy initially, she later went to the employee’s office. At that point the testimony of the employee and that of the director diverged. The employee contended the director closed the door behind her, kept her hand on the door knob and spoke harshly to employee, who was seated at her desk, facing the door.

The employee testified she started feeling sick and told the director several times to open the door and that she did not feel good, but that the director replied, “I’m not done with you yet.” The employee continued that she tried to open the door, but the director slammed it shut, unwilling to open it, even when the employee called out for help. The employee continued that she was eventually able to open the door and leave the room and that she perceived the director’s actions as a threat of physical violence directed at her.

At trial, the director related a different series of events. She said that after she walked into the employee’s office, the employee shut the door and sat down by her computer. The director stated she said to the employee, “Dorothy, you asked me to come in;” before she could finish speaking, the employee stood up from her chair and charged towards the door exclaiming, “Let me out of here!” According to the director, the employee then opened the door and ran out of the room; the director followed her, “puzzled” at what had happened.

The director further testified she merely had her fingers on the door handle but did not block the door and that the employee was able to stand up and exit without interference. The director described the incident as a thirty-second exchange, during which she spoke calmly. Additionally, the director stated she is only five feet four inches tall, 130 pounds, compared to the employee, who is of larger stature; thus, she could not have threatened to overpower the employee.

Sexual Abuse as a Child

Following the incident, which was the last day she ever worked for the university, the employee filed a workers’ compensation claim alleging that she suffered from post-traumatic stress disorder, anxiety, and other psychological injuries. During her testimony, the employee stated her brother had sexually abused her as a child. A medical expert supported the employee’s testimony and elaborated that her brother trapped her in a closet. The expert believed the employee felt trapped when the office door was closed, bringing back the memories of her abuse. According to the expert, this was a very typical example of what happened to an adult who had been physically or sexually abused as a child. She further opined the employee was suffering from PTSD, which was triggered by this traumatic event. In particular, she noted the director’s position of authority, not her size, recreated the trapped feeling, triggering the PTSD. In conclusion, the expert expressed that she did not believe the employee would have had the same response to the door shutting episode had she not been sexually abused as a child.

Trial Judge’s Decision

At the conclusion of the trial, the judge ruled appellant had failed to prove a compensable workplace incident. Relying on Goyden v. State of New Jersey, 256 N.J. Super. 438, 607 A.2d 651 (App. Div. 1991), aff’d, 128 N.J. 54, 607 A.2d 622 (1992), the judge found sexual abuse, not the office incident, was the source of the employee’s disability. Although the incident may have triggered the employee’s response, it was not objectively stressful, said the judge, and thus, the claim was not compensable.

Appellate Court’s Decision

The court noted that in Goyden, the court set forth five objective material elements that must be met for a worker’s mental condition to be compensable in New Jersey [Goyden, supra, 256 N.J. Super. at 445–46]. The first four elements require:

1. The working conditions were objectively stressful;

2. The believable evidence must support a finding that the worker reacted to them as stressful;

3. The objectively stressful working conditions must be "peculiar’’’ to the particular work place;

4. There must be objective evidence supporting a medical opinion of the resulting psychiatric disability in addition to the “bare statement of the patient.” (quoting Saunderlin v. E.I. Du Pont Co., 102 N.J. 402, 412, 508 A.2d 1095 (1986));

5. The workplace exposure must have been a “material” cause of the disability.

In Goyden, all parties had agreed that the employee was disabled from depression, but the court determined that both the stress and mental condition itself were caused by Goyden’s compulsive personality and childhood trauma, not his workplace experience. Because there were no “peculiar” conditions which would be stressful to those without such a predisposition, the court did not award workers’ compensation.

Turning to the instant case, the appellate court indicated the employee had challenged the judge’s finding that the incident was not “objectively stressful.” The judge found credible the director’s testimony that she was not actually blocking the door or threatening the employee. Furthermore, the judge found the size disparity between the employee and the director could not render the incident objectively stressful. The appellate court indicated such findings supported the judge’s determination that the incident was not objectively stressful.

As to the employee’s contention that the medical expert’s confirmation of a causal relationship between the stressful event and the PTSD supplied the “objectively stressful” requirement, the court disagreed, indicating the employee’s argument missed the point of Goyden; for compensability, there must be “peculiar” conditions that would be stressful to those without such a psychological predisposition. A brief meeting in an office with the door closed was a normal event in a work-place environment, indicated the appellate court. From an objective perspective, the court could find no basis for a reasonable belief of being threatened or trapped in such a situation.

The appellate court concluded that the workers’ compensation judge found the employee’s history of childhood sexual abuse was in fact the true source of her disability—a finding similar to that in Goyden, where the court found the appellant’s compulsive personality and childhood problems caused his unfortunate reactions to his work environment. The appellate court added that the testimony of the employee’s medical expert yielded a similar analysis. The expert clearly stated that without the childhood sexual abuse, the employee would not have had the disabling response to the incident. In short, even though the incident may have “triggered” the employee’s PTSD, it did not cause the disability, and thus there was no basis for compensation.

Doesn’t the Employer Take the Employee as It Finds Her, Susceptible to PTSD or Not?

The New Jersey decision in Rizzo—and the Goyden decision, upon which it is based, for that matter—does not appear to be consistent with the basic adage that the employer takes the employee as it finds her. After all, if the employee, Rizzo, was particularly susceptible to PTSD because of the sexual abuse to which she had been exposed as a child, how is that any different from the employee born with weak joints, the employee who is unusually susceptible to concussions, or to hernias, or who is allergic to certain chemicals or substances? In each of these other cases, the employer would not ordinarily be able to defend based upon a preexisting condition.

Michigan’s “Subjective Causal Nexus Test”

A relatively early line of Michigan cases recognized this inconsistency and, as explained in Deziel v. Difco Laboratories, 403 Mich. 1, 268 N.W.2d 1 (1978) and MacKenzie v. General Motors Corp., 394 Mich. 466, 232 N.W.2d 146 (1975), (3-to–2 decision) allowed recovery for these sorts of mental injury claims. The heart of the Michigan decisions was the principle that, if the claimant honestly, although mistakenly, believed he or she was disabled due to a work-related injury, that satisfied what the Court termed its “subjective causal nexus standard” [see the extended discussion in Larson, § 56.04[4]], and the resulting disability was compensable. The Deziel court began by noting that the core issue was whether “the employment aggravated, accelerated or combined with the disease or infirmity to produce … the disability.” The focal point of this standard, of course, was the plaintiff’s own perception of reality—a purely subjective standard.

The subjective causal nexus test was short-lived, being abolished by the Michigan legislature in 1982 [see Mich. Comp. Laws § 418.301(2)]. The amendment to the Michigan statute stated that stating “mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof” [emphasis added]. By the time of the Michigan amendment, or soon thereafter, courts in Alaska, Iowa, Oregon, Delaware, New Jersey [Williams v. Western Electric Co., 429 A.2d 1063, 178 N.J. Super. 571 (1981)], New Mexico, Tennessee, and Pennsylvania had strongly rejected the doctrine.

Current Status of States as to Mental Claims, Including PTSD

Currently, the states tend to treat mental claims unaccompanied by a physical stimulus in one of four ways [see the extended discussion in Larson, § 56.06]:

> Group One: A number of states, including Alabama, Arkansas, Connecticut, Florida, Georgia, Idaho, Kentucky, Minnesota, Montana, Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, and Wyoming, refuse to award compensation for so-called mental-mental claims, including PTSD, under any circumstances.

> Group Two: Mental-mental cases are compensable, but only if the stimulus is “unusual.” Colorado, Illinois, Iowa, Louisiana, Maine, Mississippi, Missouri, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina and Vermont fall within this group. In most of the decisions “unusual” means unusual for a typical person holding the claimant’s job. Thus, a police officer is expected to be handle to handle some sorts of stress within his or her ordinary duties that would be deemed “unusual” for someone else in the general public.

> Group Three: Mental-mental cases are compensable, but only if the mental stimulus is sudden. Colorado, Louisiana, Maryland, Tennessee and Virginia fall within this group. As you can see, there is some spill-over between Groups Two and Three. Courts in those states have sometimes spoken as if the terms “unusual” and “sudden” were synonymous.

> Group Four: Mental-mental cases are generally compensable, whether or not the mental stimulus is sudden or unusual. Alaska, California, and Hawaii are generally included in this group (if your state isn’t named in any of the groups, it is because it has decisions falling into more than one category).

Bona Fide Personnel Decisions or Actions

Notwithstanding the above-noted categorization, some states limit mental stress claims related to bona fide personnel decisions [see Larson, § 56.04[5]. Among them are California, New York, North Dakota, Massachusetts, Maine, Texas and Utah. California further limits mental claims, requiring the employee to have been an employee for at least six months before a claim can be considered valid.

Rationale for Limiting Compensability of Mental Claims for Those Predisposed to PTSD

With regard to the compensability of mental claims, such as PTSD, the states have followed a pattern not unlike that used to handle idiopathic fall injuries [see Larson, § 9.01, et seq.]. Drawing on the initial notion that idiopathic falls (as opposed to purely “unexplained” accident scenarios discussed in Larson, § 7.04] have a personal—not neutral—origin, courts have generally held that a fall, caused by an idiopathic condition, is compensable only if the employment places the employee in a position increasing the dangerous effects of such a fall, such as from a height, near machinery or sharp objects, or in a moving vehicle. A fall to the level ground or bare floor usually is not considered to have arisen from the employment, but rather from the idiopathic condition itself.

Similarly, where the level of stress faced by the employee is objectively quite ordinary, although subjectively quite the opposite, the bulk of the jurisdictions, as noted above, either through court decision or actual statute, deny compensability for mental injury claims, including those related to PTSD. The New Jersey Rizzo decision is, therefore, within the mainstream. Had the circumstances been different, had there been a robbery or some other unusually stressful situation, Rizzo could have recovered for her PTSD condition. As it was, however, a one-on-one meeting, even if somewhat confrontational, is part of the everyday workplace. Since the workers’ compensation judge determined that the incident was neither unusual nor objectively stressful, Rizzo could not prevail in her claim.

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