James Barnes, J.D.Carmine D’Alessandro, J.D.

Timothy Wahlin, J.D.Beth Giebel Mandel, J.D.

Psychiatric Claims – A State by State Comparison.

What are the trends?

Claims For Psychiatric Impairment

Ohio

James Barnes, J.D.

McCrone v. Bank One Corp. (2005), 107 Ohio St.3d 272

 

“Psychological or psychiatric conditions that do not arise from a compensable physical

injury or occupational disease are excluded from the definition of ‘injury’ ….”

R.C. 4123.01(C)

 ‘Injury’ includes any injury, whether caused by

external accidental means or accidental in character and result, received in the course of,

and arising out of, the injured employee’s employment.

‘Injury’ does not include:

(1) Psychiatric conditions except where the claimant’s psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant or where the claimant’s psychiatric conditions have arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate

Claims For Psychiatric ImpairmentMaryland

Carmine D’Alessandro, J.D.

For close to 80 years, “emotional” or “mental” injuries were not covered under Maryland’s Workers’ Compensation Act.

BUT: Act is completely silent as to these types of injuries.

With no legislative guidance, courts were free to develop a body of law on subject.

Three ScenariosPsychiatric Overlay (Physical-Mental)

Accidental Injuries

Occupational Diseases (Mental-Mental)

A. Psychiatric Overlay (physical-mental)

Claimant’s suffering significant physical injuries can recover for the “overlay” of emotional issues.

DepressionDecreased self worth

“Significant” physical injury?

B. Accidental InjuriesEmotional injuries without a physical

component.

Result from specific event

Accidental personal injury arising out of and in course of employment.

Can that mean non-physical injuries?

Belcher v. T. Rowe Price, 329 Md. 709, 621A2d872 (1993)Claimant was working in her officeConstruction taking place on surrounding

buildingThree ton beam crashed through ceiling,

landing five feet from claimant’s deskResulting “injury”: Nightmares, sleep

disturbances, anxiety…..

Question: Are these personal injuries?Court: These injuries are “as real as broken

bones” and capable of objective determination.

Test: “Zone of Danger” or “Unexpected Violent Event”

C. Occupational Disease (Mental - Mental)No guidance from Maryland’s Workers’

Compensation Act.Act discusses physical agents as cause of an

occupational disease: andIs disease due to nature of workFocus has moved to “work”

Can “disease” logically flow from the work

Move to compensability? Sometimes.

Davis

King

Means

Claims For Psychiatric ImpairmentNorth Dakota

Timothy Wahlin, J.D.

North Dakota’s Law regarding the coverage of mental or psychological conditions

10. "Compensable injury" means an injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical findings.A. The term includes:

(6) A mental or psychological condition caused by a physical injury, but only when the physical injury is determined with reasonable medical certainty to be at least fifty percent of the cause of the condition as compared with all other contributing causes combined, and only when the condition did not preexist the work injury.

North Dakota’s Law regarding the coverage of mental or psychological conditionsb. The term does not include:

(10) A mental injury arising from mental stimulus.

North Dakota’s Law regarding the coverage of mental or psychological conditionsBasically, ND covers but only those conditions

caused directly by the physical injury and only if there is no preexisting condition. ND’s position is this eliminates most depression, anxiety, and almost every PTSD claim.

Recent ND Newspaper articleLawyer says teller deserves workers comp

By DAVE KOLPACK Associated Press Writer | Posted: Friday, December 18, 2009 2:10 pm |

FARGO, N.D. (AP) — A bank teller from a small North Dakota town says she's scared and can no longer work after she was held up at gunpoint and left handcuffed on the floor. Now she's getting robbed by the state workers compensation agency, her lawyer says.

Workers Safety and Insurance denied the claim for Edith Johnson, 56, who was diagnosed with post-traumatic stress disorder after the May 26 robbery in Gilby, Bismarck attorney Tom Dickson said. It was the third time the bank had been robbed in Johnson's tenure and the second time while she was working.

"She is stressed out by all this. Those guys who robbed the bank were just horrible, horrible men,'' said Dickson, a Gilby native. "I'm just astonished that WSI would fight this, but they are.'‘

The letter of denial, which became public record after Dickson sued the agency to allow an appeal, said state law does not cover a"mental injury arising from a mental stimulus.'' Dickson said that exclusion is meant to apply to normal stress from performing everyday tasks at work.

"To say that being handcuffed, placed face down on the floor and have your life threatened by an armed robber is everyday stress at a bank ... that is absurd,'' he said.

Workers comp officials say state law prohibits them from discussing a specific claim without the applicant's approval. Asked to speak generally, WSI director Bryan Klipfel said the law provides benefits only as the result of a physical injury that occurred at work.

A post-traumatic stress disorder that is directly related to a physical workplace injury may be compensable if it can be shown that it was primarily caused by the physical work injury, as opposed to all other contributing causes,'' Klipfel said.

William Collins of Nashville, Tenn., and Clifton Patterson of Grand Forks have been charged in federal court with the bank robbery.

Authorities said one of the men held a sawed-off shotgun to Johnson while the other man took cash from the bank vault and teller drawer. The robbers then handcuffed her hands behind her back and left her face down on the floor.

"Because of the events of that day, it being my second and most awful bank robbery, I have been scared and extremely stressed to go to work,'' Johnson said in court documents.

Dickson sued the state agency after it said Johnson did not file an appeal within 30 days. Dickson said his client missed the deadline because she never received the letter of denial. Northeast Central District Judge Joel Medd ordered the agency to reconsider the claim. A hearing date has not been set.

Six years ago the Legislature debated changing the workers comp bill to cover mental health issues for first responders involved in so-called "critical incidents.'' The House defeated the measure 48-46.

Rep. Lois Delmore, D-Grand Forks, one of the sponsors of the 2003 bill, said the law should be changed to cover cases like Johnson's.

"Mental health is something that is hard to pin down sometimes, but it is a very important issue,'' Delmore said. "When you have depression or whatever that is documented medically by a physician, I think it should be covered. I certainly will look into this before next session.'‘

Recent ND Newspaper article

Claims For Psychiatric ImpairmentMinnesota

Beth Giebel Mandel, J.D.

Mental stimulus produces physical injury;

Physical stimulus produces mental injury;

Mental stimulus produces mental injury (MN among the minority of jurisdiction which does not allow).

Claims involving psychological injuries are divided into three categories:

In order to prove:

Medical causation – must have proof that the mental stress resulted in the employee’s physical condition; AND

Legal causation – must have proof that stress was extreme or at least “beyond the ordinary day-to-day to which all employee’s exposed.”Egeland v. City of Minneapolis, 36 W.C.D. 465

Mental produces physical injury

Aker v. Minnesota, 32 W.C.D. 50

Employee suffered a heart attack after removing two decomposing bodies from a remote campsite.

Egeland v. City of Minneapolis, 36 W.C.D. 465

The employee, a police officer, was subjected to beyond ordinary day-to-day stress over a long period of time.**Stress-induced ulcer was awarded.**Stress-induced depression was denied.

Mental/Physical Cases

Mitchell v. White Castle Systems, Inc., (32 W.C.D. 288)Employee developed traumatic neurosis a few

days after she was slapped in the face.(Does not have to be physical injury – can be physical stimulus.)

Dunn v. U.S. West, (W.C.C.A. March 21, 1995)The employee was a victim of attempted

robbery at the store where she worked. Employee’s hand held behind her back and a switch blade knife to her back. Claim denied because incident did not produce actual cuts, bruises, etc.

Physical/Mental Cases

Dodds v. Red Lake School District #38Use of brain imaging to prove physical injury

VA/Mayo using sophisticated brain imaging to prove existence of PTSD.

The Trend?

QUESTIONS??