Workers' compensation laws are based
on a no-fault concept in which liability depends on
whether the employee's injury arose out of and in the
course of employment. Tort liability, such as intentional
or negligent acts of the employer, does not have to
be proved. Common law defenses for the employer are
also not relevant. Since the inception of these laws,
however, there has been a gradual expansion of workers'
compensation liability, especially in the area of stress
claims. Broadening concepts of accidental injury and
occupational disease have increased the chance that
conditions unrelated to employment will be found compensable,
making the employer a general insurer of employee health
and employability. Personnel issues often form the background
of stress claims, or are said to be the stress itself
for which compensation is sought. Because they are ubiquitous,
however, a no-fault concept for recovery may not be
appropriate any longer.
Unlike other types of employment
stress which are a natural incident to the performance
of the work, i.e. flow from the type of work, the amount
of work, or circumstances that are a direct result of
work duties, personnel issues are a by-product of relationships.
They include the relationship between employee and employer,
as well as employee with other employees. Inevitably,
relationships create conflicts, and conflicts create
stress. Similarly, managerial decisions and actions
may be necessary to resolve conflicts or to advance
the needs of the organization, and these can create
stress. Since personnel issues are a part of all employment,
they need to be considered in every workers' compensation
stress claim. At times, claimants will point to them
directly as the source of their employment stress. At
other times, claimants will point to something else,
when covert personnel issues are the actual problem.
Five types of personnel issues are commonly seen:
Performance problems can
take many forms. Generally, they are due to inadequate
productivity or poor quality of performance. Often employees
will complain that they are overworked, unfairly criticized,
provided with inadequate resources, or have insurmountable
obstacles to the performance of their task. Where their
complaints are justified, their claim may be understandable.
However, in other instances, performance problems arise
from the employee's own poor performance. This could
be a result of inadequate training or skills, a bad
job-to employee match up, or just intangible behavioral
problems. It could also be from a mental disorder independent
of work stress, that affects performance. In any case,
a negative performance evaluation or criticism from
a supervisor is understandably stressful, but that stress
may arise more from the employee than the employment.
also lead to conflict within an organization. When those
differences are a result of personality disturbance
in the employee, manager, or co-employee, the conflict
can be extreme. For example, if an employee has maladaptive
ways of dealing with others because of paranoid or borderline
traits, this can be extremely disruptive to the other
employees and can also interfere with work performance.
Personality disturbance may represent occasional inappropriate
behavior or an actual disorder characterized by pervasive
interpersonal problems. Some employees because of their
personality disturbance have unusual perceptions by
which they misread how others interact with or feel
about them. They may, in fact, draw negative feedback
because of their own peculiarities, or may feel victimized
by co-employees and managers. Often, they receive unfavorable
appraisals and, if they are not able to recognize their
own contribution, they will undoubtedly feel distressed.
However, this distress, again, springs from the employee
and not the employment. Managers with personality disturbance
can, of course, make an employment setting intolerable
to all employees also, with understandable stressful
consequences. The relative contribution of each must
be weighed carefully.
Motivational issues are
a concern within any organization. Most people want
to work, not only for the money but also for what work
brings to their lives. But, where the employee is not
motivated for personal reasons, then the employee may
be bringing the problem to the employment. For example,
employees, by default, may have taken a job which they
knew or could have known was not satisfactory, or they
may be Unburned out" from their particular type of work.
In other cases, there may be non-work priorities and
interests which deflect from genuine investment in the
job. Job dissatisfaction and malcontent invariably lead
to negative feedback from the employer which then creates
stress. In these instances, the stress is also more
a product of the employee than the employment.
Employee misbehavior is
a more overt contribution to conflict within an organization.
This can be in the form of simple pranks, to more serious
harassment, to actual criminal behavior. An employer's
response to such actions should be an expected outcome
regardless of how stressful that response may be or
how much the employee disagrees with it. Here, it is
clearly not the employment but the employee who generated
Last, there are a host of problems
that stem from employment insecurity. These
include fear of layoffs or terminations, as well as
actual layoffs or terminations. They also include distress
over reprimands and warnings which jeopardize the employee's
job. They can result from a demotion, not receiving
a promotion, or other job threats. In some circumstances,
employment insecurity is a result of the employee's
own behavior from poor performance, maladaptive personality
traits, or lack of motivation. In others, it is simply
caused by the ordinary managerial decisions of any work
environment. While employment insecurity can obviously
be stressful, a continuing working relationship between
employer and employee can rarely be guaranteed. The
stress of losing that relationship arises not from employment
but from fear of unemployment.
Personnel issues have been addressed
legally, for the most part, using the general interpretation
for stress claims in the respective jurisdiction. Rulings
depend on how broad or narrow the jurisdiction has interpreted
compensability in these cases. Where they are allowed,
frequently they are limited, and require such things
as physical manifestations, an unusual stress, a sudden
stimulus, or an active versus passive role of the employment.
In jurisdictions which require only ordinary stress,
most personnel issues would be compensable if the stress
contributed at all to the emotional breakdown. Other
jurisdictions have looked at whether the employer's
conduct was reasonable and/or in good faith based on
all the circumstances. Those circumstances could include
the employee's contribution. It should be obvious, however,
that looking at the reasonableness of either employer
or employee behavior injects a tort liability concept
which is incompatible with a no-fault system. Yet, personnel
issues may be unavoidable. Employers must have sufficient
control over the productivity and quality of an employee's
performance and must respond when there are performance
failures or other behavioral problems. Employers must
also, at times, make economic decisions about the size
of the work force, salary levels, and an allocation
of personnel from unnecessary to necessary positions.
Without this, the employers' rights to manage the organization
would be severely impaired. Furthermore, if one of the
social aims of workers' compensation liability is to
encourage employers to eliminate unsafe conditions and
the risk of harm to employees, it may be in vain with
regard to personnel issues. They can never be eliminated.
It may be that public policy wishes
to make employers essentially general insurers of employee
health and employability, but that was certainly not
the intent of original workers' compensation legislation.
If that is not the direction to take, then in stress
claims where personnel issues are involved, there should
be a more open abandonment of the no-fault concept and
at least a partial return to tort liability principles
which consider the reasonableness of the employer's
conduct and the contribution of the employee.
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