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Albert M. Drukteinis, M.D., J.D.

part 2 of 5

Work and stress are almost synonymous. The very nature of work creates forces and pressures on an individual, either from external events or internal drive, that require adaptation. At the outset stress comes from having to be at work at a particular time, remaining there for a prescribed number of hours, accepting the physical demands and requirements, meeting deadlines or quotas, achieving a level of quality or accuracy, and interacting with co-workers and superiors. In the real world, it also includes tolerating personality differences, facing one's own shortcomings, dealing at times with unreasonable authority, facing overwhelming tasks, and answering to the excessive demands of clients or customers. These factors are inherent in work and are not pathologic. Even the distress or discomfort that flows from those obligations is not pathologic. After all, few individuals are completely satisfied with their work and most feel distress on a regular basis. The issue then is not whether there was stress or even distress, but how adaptive or maladaptive was the individual in the face of it. More importantly, did a maladaptive process lead to an actual stress related illness and, as outlined earlier, how can it be defined or measured? From its inception, workers' compensation law recognized these difficult questions and has sought objectivity, which in stress related illness may be hard to find.

Before the industrial revolution and the development of factories, mills, and plants with their gigantic machinery, agriculture dominated economic life. No doubt injuries occurred but they were relatively few compared to when workers in large numbers were placed in proximity with dangerous machinery and implements of industrial production. If a worker on a farm was hurt, the employer would routinely provide medical help and some financial help through the period of disability. Workers were closer to their employers then and often lived on the farm. If their employer did not help, the worker's only recourse was to sue in common law court, a process that was time consuming and not always successful. In the meantime public charity would bear the burden of the injury.

The predominant claim in a common law suit by a worker was that the employer was somehow negligent, and therefore injury resulted. However, the employer had several advantageous defenses: contributory negligence, assumption of risk, and the fellow-servant rule. In contributory negligence the employer would claim that the worker was partly to blame or that the injury occurred from the worker's own actions. Alternatively, an employer could say that the worker knew the dangers of that employment before coming to work and so there was an assumption of risk that would bar liability. Finally, a number of injuries were not by the employer's actions or employment conditions at all, but due to other fellow workers who may have caused the accident. In these cases the fellow-servant rule prevented blame from being attached to the employer.

These defenses were quite effective for employers during the industrial age as well, so that 80% or more of the cases brought against employers were lost or uncompensated. Similar inequities were seen in Europe where the industrial revolution was also running at full steam. But there in 1884, Otto VonBismark, the first chancellor of the German empire, championed the idea of workmen's compensation legislation. For the first time, injuries were not compensated on the basis of the employer's negligence, but on their relationship to the job. Within a short time England followed the lead and abolished common law workers' suits, instead establishing a formal workmen's compensation system. Liability depended not on who was at fault for the accident but, according to English legal scholars, whether the personal injury by accident arose out of and in the course of employment.

In the early years of the 20th century American legislators also clamored for a similar change of law. By 1911 Massachusetts, which debated the question for nine years, finally passed a workers' compensation law with ten other states changing to a similar system at about the same time. The change was not easily made and understandable opposition came from employers as well as insurance companies who had made large profits from common law coverage. But the Supreme Court of the United States upheld these acts and they gradually became established in every state and for federal employees. Clearly, workers' compensation laws were meant to be a humanitarian measure to create a new type of liability - a liability without fault. Industry was to be responsible but society as a whole, through increased costs of production, would share the loss.

In reality, workers' compensation laws are a compromise for both employee and employer. The employee is denied the right to sue at common law for indefinite damages, but instead receives a certain percentage of wages during the period of disability, and medical care at the employer's (insurer's) expense. The employer, at least in theory, does not have to defend against fault and is only liable for limited, statutorily set damages. With the rise of workers' compensation claims in the past fifty years, with employers feeling more and more that they are being accused unfairly of fault, and with alternative remedies now available in addition to workers' compensation through federal laws, the premise behind that initial compromise may need to be re-examined.

Traditionally, most workers' compensation acts have required as a part of their coverage formula a personal injury by accident or accidental injury. Emotional or stress related illness was viewed skeptically because of its subjective nature. Objectivity was established by requiring that stress related illness have a physical connection. Two types of claims are found using that connection: physical trauma leading to a mental disorder and mental trauma leading to a physical disorder. These are respectively known as physical-mental and mental-physical.

In the physical-mental cases there is a clear precipitating injury with psychological consequences, e.g. a laborer falls off of scaffolding injuring his back, later develops a major depression, claiming it is due to his newly acquired limitations. In the mental-physical cases some emotional or stress circumstances lead to an objectively measured physical disorder. Originally, the circumstances needed to be clearly identified such as from a nervous shock, e.g. witnessing a disaster at work leads to a heart attack. However, the nature of the emotional stress has expanded to included prolonged or cumulative work stress, and there has been a trend to compensate for many conditions including asthma, peptic ulcer, etc. which are claimed to be a result of that stress. Again, although the stress related illness or the stress circumstances may be subjective, the physical connection is thought to give these claims an objective credibility.

The more controversial category of stress claim is that of mental trauma leading to a mental disorder, also known as the mental-mental claim. The difficulty in evaluating these claims is to a great extent due to the difficulty in defining a personal injury when it consists primarily of an intangible force producing a more intangible effect. Where the injury represents a single or limited sequence of events, then it may be easier to identify its traumatic potential, e.g. a fire at a plant or a robbery in a bank, can be described by the worker or other observers so that the magnitude of the threat, the proximity to the worker, and the likely alarm created can be independently scrutinized. It is quite a different task to attempt the measure the cumulative effects of exposure to some noxious (harmful) aspect of the total work environment, where the perspective of the individuals involved can widely differ. In spite of their subjectivity, stress claims are expanding rapidly and by one legal scholar are called "the most lively development in compensation law in the last fifteen years. " Adding to the problem, and taken from principles of the eggshell skull rule in tort law, are stress related claims that are based only on an aggravation of a pre-existing condition. In effect, this opens the door to a multitude of potential claims because someone with an emotional disorder can invariably say that any work stress at least made it worse.

Many jurisdictions have attempted to limit these mental-mental claims by narrowing the scope of allowable claims or by using more restrictive language. In New Hampshire, where an employee has a preexisting weakness, there is no recovery unless the stress of the work place contributes something substantial, and the employment-connected stress or strain must be greater than is encountered in normal non-employment life. In Oregon, the workers' claim must meet an objective test and is not allowed if it is based on a misperception or an over-reaction to a work environment. Arizona requires that the claimant show that job stress is something other than the ordinary stresses of employment to which all workers are subjected. In yet other states the nature of the stress must be either a sudden stimulus or an unusual event. In California and Nevada the doctrine of active vs. passive role of employment has been used to shift claims from a subjective to more objective test. Here the determination is whether the employment itself was a positive factor influencing the course of disease as distinguished from a mere stage for the event, an after-the fact rationalization or a mere passive element on which a non-industrial condition happened to have focused. Often, employees who are suffering from emotional disorders will have difficulty in performing their job or relating to others at work. The inevitable consequences of this at work can be a source of stress, but the work situation is only a convenient focus or a retrospective rationalization in which the work place is now blamed for all the problems.

Some of the thornier issues in workers' compensation stress claims have to do with administrative or personnel actions by the employer. For example, if an employee is given a warning or reprimand for poor performance, it is understandable that this would cause stress. Should that then be considered a personal injury arising out of employment conditions? What if the employee was engaged in deliberate misconduct or criminal activity for which the employee was sanctioned or even terminated by the employer? Surely, this would be stressful too, but does it fall under workers' compensation law? What of the stress of a layoff or termination with or without cause? Are these properly considered employment stressors? Courts and industrial boards have been divided on these issues, but claims based on them are now an everyday occurrence. The original compromise and safety net that workers' compensation law intended to provide never envisioned such claims which have been made possible through the concept of stress related illness. Where workers' compensation law has fallen short, new federal laws have provided additional avenues for recovery.


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