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The worker's compensation system was developed as a way for workers who suffer on-the-job physical injuries to be compensated fairly and quickly for medical expenses and loss of income. In recent years, however, it has expanded into a new area fraught with vagueness: mental stress. Though the focus of this report is on Michigan, which has been in the forefront among states in mental stress claims, its searching analysis of the inherent difficulty in evaluating these claims will be useful for anyone interested in this growing area of workplace abuse. 36 pages.
While most people think of worker's compensation as the insurance program that provides financial support when a worker suffers a physical injury on the job, mental and emotional stress is also a covered "injury." Today, compensation for workplace stress is once again a hotly disputed topic in Michigan. Newspapers and magazines are suddenly aswirl with articles about the issue. Legislators and lobbyists are ardently debating the topic in Lansing. Administrators and adjudicators are once again focusing inordinate attention on the subject. Why this sudden new interest?
The simplest answer is that last year the Michigan Supreme Court issued its first major pronouncement on the topic in more than 15 years, at last providing a definitive interpretation of specific statutory language passed way back in 1980 to deal with worker's compensation stress claims. In Gardner v. Van Buren Public Schools1, the Supreme Court finally clarified what the new language means. Needless to say, as with every major court pronouncement, some people are happy with the result, some people are in various states of despair, while many more are scratching their heads, trying to figure out what it all means.
However, the simple answer is a bit misleading. In fact, the issue has been causing consternation and intense debate for more than 35 years. In this period, the broad question of employment stress and our society's inability to effectively deal with it has become a major source of discussion throughout the country, stimulating dramatic new developments in the psychiatric sciences, tremendous upheavals in the law, and significant changes in workplace organization and behavior. State after state has experienced legal inquiry and dispute on the question of whether victims of stress should be compensated, while an expansive new industry of psychologists, psychiatrists, counselors and clinics has sprung up to provide advice, assistance, treatment and opinion.
As the number of stress claims has been growing, so has the overall cost of worker's compensation. Leading national worker's compensation scholar John Burton, Jr. reports that nationwide employer expenditures for worker's compensation benefits alone rose from $2 billion in 1960 to $5 billion in 1970 to $21 billion in 1980 to an estimated $56 billion in 1990 to an estimated $62 billion in 1992.2 These statistics may be conservative. In California alone, compensation costs rose from $3.7 billion in 1981 to a projected $11 billion in 1991. Of this total, a significant part of the growth is attributable to mental claims. One estimate has California mental claims growing by 750% between 1981 and 1991, becoming 17% of all claims by 1991. Subsequent articles indicate an even more sudden growth in mental claims since 1991. In short, worker's compensation is becoming a growing cost concern for business, and mental stress claims are a very significant factor in such growth.
In this intense and growing storm of controversy, Michigan has been a leading player. It was in Michigan that claimants first received the right to be compensated for the experiencing of everyday common stress at work. It was the Michigan Supreme Court which, in a path-breaking exploration of the question of when work should be considered to have been a cause of mental disability, issued a 1978 decision which to this day is considered by most commentators to be the most liberal stress decision in American legal history. Few legal commentators engage in surveys of the law on stress without paying due respect to the critical role Michigan has played in shaping both the debate and the law on liability for stress claims.
Why is this issue so important and what is it really all about? To answer this question, it might make sense to begin with some examples of what the employment stress claim might consist of. Let's imagine the following five individuals:
Sam is an electrician working with electrical high wires. He has always been comfortable climbing up and down and working on top of high towers. He has no history of mental complaints. One day, while working on a tower, he witnesses his close friend and colleague improperly touch a wire and plunge to his death. The event is so traumatizing, that Sam is unable to continue working as an electrician.
Mildred is a shy and mild-mannered secretary. She has never been comfortable around large groups of people, but has managed to perform her work in a legal office without difficulty. One day, she is reassigned to a new boss who insists on engaging in daily sexual banter with Mildred at her desk and who constantly makes provocative comments about the state of her dress. Mildred begins to unravel, making numerous mistakes in her typing and filing. She becomes so embarrassed by her deteriorating performance that she feels compelled to leave her employment.
Juanita is a social service worker providing services to abused women. She has been experiencing problems with her own marriage. Her husband verbally abuses her and has driven one of her children into a drug addiction problem. As a result, Juanita has been depressed for quite some time and has even sought therapy to help her cope with her problems. One day a client unhappy with Juanita's work threatens to "get her" if she does not do a better job. Juanita rushes to her therapist, who urges her to cease working.
Mary is a policy analyst with a government agency. She has never been a particularly stellar performer at work, but has managed to get along with her various supervisors, comfortable in the knowledge that her civil service protections will keep her employed. One day she is assigned to a new supervisor determined to enhance the overall performance of the department. This supervisor institutes new performance evaluation procedures designed to measure accuracy and productivity for all members of the department. Mary does poorly in these evaluations. The supervisor tells her that she must improve her performance or risk demotion. Mary is distraught with her poor performance evaluations and claims disability.
John is an assembly line worker with a long history of hospitalizations for organically-induced neuroses. He has had many jobs and been repeatedly fired for losing his temper at work. One day, while entering the factory, a co-worker walks up to him and says, "Good morning, John." John, thinking he is going to be attacked by the co-worker, suffers a nervous breakdown.
Are these five individuals entitled to worker's compensation benefits because of the stress they have experienced at work? The short answer is that, based upon a more careful evaluation of the facts in each case and the opinions of medical experts, all five of them might well be entitled to such benefits under current Michigan law. However, based on the way the law has been interpreted, these five examples present a progression from the most likely to receive benefits to the least likely. Why this should be so will be explored at greater length in the course of this report. What is more important at this point is to recognize how common these five factual scenarios are and how expansive the field of benefit entitlement might become.
What concerns the business, legal and government communities of this state is that employment stress has the potential to overwhelm the worker's compensation system, imposing vast new costs on employers who are made to be universal insurers of the public's mental health. Whether using the worker's compensation system to provide such insurance is a worthy public policy objective is not the subject of this report. Such a decision belongs in the hands of the Legislature and the Governor. What is critical is that all of the players in the current debate understand what is at stake and the consequences of their policy choices.
It is not the author's goal to advocate any particular policy option or legislative change. Instead, the goal of this report is to provide interested individuals with insight into the issue of stress claims. To that end, the report will attempt to avoid too much legal terminology and technical jargon. Its purpose is to contribute to a basic layman's understanding of the choices that exist and the questions that remain outstanding in this extremely complicated area of law.
In the following pages, we will begin by briefly discussing the basic purposes and workings of the worker's compensation system in Michigan. We will then explore the nature of stress, the limits of our understanding in this area, and the basic choices presented to the law for compensating such stress. We will take a look at how other states deal with the issue of compensability and then take a careful look at the history of stress claims in Michigan, focusing on key decisions and statutory changes. In what hopefully will not be too dry an analysis, we will try to understand where Michigan is after the 1994 Gardner decision and where it might be going.
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1445 Mich 23, 517 NW 2d 1 (1994).
2"Workers' Compensation 1960-1990: The Increase, the Causes, and the Consequences," John Burton's Workers' Compensation Monitor, Mar./Apr. 1993, p. 1, cited in "Waste, Fraud, and Abuse in Workers' Compensation: The Recent California Experience," (Symposium: Future Prospects for Compensation Systems), by Gary T. Schwartz, Maryland Law Review, Vol. 52, Fall 1993, pp. 983-1015. The latter article provides the noted statistics from California.
Before we look more closely at the area of stress claims, a brief overview of the worker's compensation system might be in order.3 Worker's compensation is the method by which individuals are compensated for injuries sustained in the workplace. Michigan's system was established in 1912, with passage of a worker's compensation act. The current Worker's Disability Compensation Act was enacted in 1969.
Prior to passage of the first act, the only remedy employees had available to them for losses due to injury in the workplace was under the general common law (judge-created) rules of liability, known as "tort law." If an employee was hurt at work, he or she had to sue the employer in a court of law and prove that his or her injury was the result of the employer's negligence (failure to use reasonable care). Such suits were extremely difficult to sustain at the turn of the century because of the many defenses given to employers at the time. An employee had to overcome the test of "assumption of risk," which protected employers from liability for injuries incurred in the exercise of jobs containing readily identifiable risks inherent in those jobs. An employee could not collect any damages if his or her own negligent actions contributed in any way to the occurrence of the injury (the defense of "contributory negligence"). The employer was not liable for any injuries caused by another employee as long as the employer exercised reasonable care in the hiring of that other employee (the "fellow servant rule").
Consequently, prior to the enactment of the worker's compensation act, employees seldom had success in suing their employers. As one legal commentator has put it, "the employer's 'shield' was a concrete coat of armor and the employee's 'sword' was a broken toothpick."4 This was a system of law which became increasingly viewed as an unacceptable method for dealing with workplace injuries. Out of a combined sense of social justice and economic efficiency, the concept of worker's compensation was crafted as an alternative to the tort liability system, developed with the assistance and support of the business community.
Under worker's compensation, an employee injured at work is entitled to benefits as compensation for his or her injuries regardless of who may be at fault. The employer is liable for benefits whether or not he or she acted wrongfully or unsafely. The employee can collect benefits even if the injury is entirely his or her own fault. Benefits include all reasonable and necessary medical treatment, rehabilitation costs, and wage loss benefits for time lost from work. Michigan law also provides for the payment of death benefits when a worker's death has been caused or hastened by his or her employment. In exchange for such guaranteed benefits for all injuries (except for those intentionally inflicted or self-inflicted), the employer is given certain protections, such as maximum wage loss benefits, some control over medical treatment, and the avoidance of court-imposed liability for punitive or pain and suffering damages. Worker's compensation is the "exclusive remedy" for compensating workplace injuries.
All 50 states now have worker's compensation systems. The purposes of these laws include the efficient and dignified treatment of injured workers, rehabilitation of those workers so that they may return to their jobs as quickly and effectively as possible, and stability in the work force. Provision of benefits by the employer is viewed as offering a fair distribution of cost, with benefits paid by those best in a position to make the payments and pass on the costs, and with insurance offering the opportunity to have those costs shared by the entire business community (and thus, ultimately, the individual consumer). The calculation of benefits is based first and foremost on the individualized experiences and needs of each worker, with an underlying social goal of permitting the injured worker to overcome his or her temporary problem without risk of destitution.
Employers are required by state law to make payments to workers injured on the job, and to either purchase insurance or be certified as self-insured. However, this system of compensation is primarily run without state administrative intervention; employers or their insurers usually make direct payments to claimants without state oversight. A state administrative system does exist for basic enforcement purposes, including assurance that employers are adequately insured and that they meet their statutory obligations to pay benefits. This system also provides a means for resolving disputes between employers and their employees regarding entitlement to benefits, but state involvement is decidedly less intrusive than in many other areas of regulatory law. Michigan's law is administered by the Bureau of Workers' Disability Compensation.
As stated earlier, the injured employee is entitled to medical treatment (which includes everything from consultations with doctors to physical therapy, surgery, hospitalization, drug treatment, nursing care and more), as well as physical and vocational rehabilitation services. The injured employee is also entitled to partial replacement of his or her lost wages--80 percent of the after-tax value of his or her average weekly wage, up to a maximum which in Michigan is fairly generous (90 percent of the state average weekly wage, which for 1995 is $554.22, producing a maximum rate of $499.00 per week).5
The test for entitlement to wage loss benefits is "disability," defined by the Michigan act as "a limitation of an employee's wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease."6 Although the exact interpretation of this definition remains the source of extensive legal debate, the basic concept for entitlement to wage loss benefits is that an employee will receive weekly benefits when he or she is unable, due to a work-related injury, to perform the work within his or her experience. When an employee cannot work because of a work-related injury (an injury "arising out of and in the course of employment"7), he or she is entitled to benefits for the duration of the time that the inability to work persists.
An injured worker is entitled to benefits either when the work has caused the injury or when work contributes to (aggravates) a preexisting condition. In either case, the employment last contributing to the employee's disability is used to establish full liability for the disability. There is no longer a requirement that an "accident" have occurred. The consequences of constant physical activity and occupational disease are also compensable. In the typical workplace situation, an employee who suffers an injury reports that injury to the employer, the employer makes sure that the employee gets all the medical treatment he or she needs, and if the employee cannot work, makes direct payments to the employee, with a report of such payment made to the Bureau.
What happens when there is a dispute between the employee and the employer? Such dispute commonly occurs when the two parties disagree either about the existence of a disability, or the cause of that disability (that is, whether it is work-related). When a dispute arises between the parties, either may file an action with the Bureau, thereby commencing an often lengthy and legally-detailed process culminating in a hearing in front of a trial judge known as a Magistrate. There may be mediation, but in general, if the parties cannot reach agreement, their dispute goes to the Board of Magistrates, where one of thirty state-appointed statutory judges will hold an evidentiary hearing in order to determine the facts in the case. At such hearing, relevant witnesses (and almost always the claimant) will testify, and such hearing will usually be supplemented with the introduction of depositions (formal attorney examinations which are put into transcript form) taken of expert witnesses, such as doctors, vocational specialists, psychologists, chiropractors and therapists.
At hearing, the burden of proof rests with the claimant. He or she must show by a preponderance of the evidence (the prevailing weight of the evidence) that a work-related injury occurred and that such injury resulted in disability. In most cases, both the claimant and the defending party (which can consist of one or more employers and their respective insurance carriers) are represented by attorneys. After completion of the hearing, the magistrate is obligated to issue an opinion stating his or her findings of fact and applying the relevant law.
The decision of the magistrate may be appealed within thirty days as of right by any party to the hearing. Appeals go to the Appellate Commission, a seven-member body of state-appointed statutory appeals judges who decide cases as three-member panels. Review at the Appellate Commission is somewhat limited. The Commission reviews the record established at the trial level and must affirm the findings of fact made by the magistrate if they are supported by "competent, material and substantial evidence on the whole record." Substantial evidence is deemed to be "such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion."8 If a party remains unhappy after the Appellate Commission reaches its decision, it may seek review by the Michigan Court of Appeals and ultimately the Michigan Supreme Court, but such review is only granted on rare occasions when important issues of law appear to be at stake.
It is important to keep in mind that worker's compensation litigation is the exception, not the rule. Most estimates place the percentage of worker's compensation payments made voluntarily at well over 75 percent. Of those matters which do involve a dispute, roughly 90 percent of the cases are resolved or they settle before a hearing is necessary.9 Some of these settlements, known as "redemptions," involve a lump sum payment by the employer, after which all claims by the employee against that employer for workplace incidents occurring prior to the redemption are released. Consequently, the ratio of full-blown worker's compensation cases to overall incidents of worker's compensation payments is quite small. Naturally, it is this small number of cases which attracts the most attention. It is these cases, which often involve "close call" facts, which determine the detailed shape of the law, thereby establishing the worker's compensation "business climate" so often criticized by the employer community.
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3The most highly respected legal text dealing with worker's compensation law is authored by Duke University Law Professor Arthur Larson, Workmen's Compensation Law, published by Matthew Bender. This massive multi-volume treatise provides a comprehensive overview of worker's compensation law throughout the nation and provides an excellent history and analysis of this field of law. Professor Larson's treatise provides an important reference for this report. An outstanding text covering the Michigan act is Michigan State University School of Labor and Industrial Relations lecturer Edward M. Welch's Workers' Compensation in Michigan: Law & Practice, published by the Institute of Continuing Legal Education. This detailed single-volume work is a major source book for Michigan practitioners, administrators and adjudicators.
4"Can I Collect Worker's Compensation Benefits If My Job Drives Me Crazy?," by Derik R. Girdwood, Detroit College of Law Review, Summer 1992, p. 591 (1992).
5Benefit rates are published by the Michigan Bureau, which issues annual weekly benefit tables.
6Section 301(4) of the Worker's Disability Compensation Act of 1969, MCL 418.101 et seq.
7Section 301(1) of the Act.
8Section 861a(3) of the Act.
9Although basic annual statistics can be misleading--for example, they failing to take into account various nuances such as disputes involving injuries incurred in prior years and disputes not involving the basic question of entitlement to benefits--they are nevertheless helpful in indicating general patterns of behavior in the worker's compensation system. For example, according to the Michigan Bureau, in 1994 there were 88,804 reports of injury (a fairly typical number) and during the same year, the Bureau received 22,175 contested cases (again, a fairly typical number). These contested cases do not solely represent initial claims of entitlement, but are a fair indication of dispute activity in general. In the meantime, 24,533 cases were disposed of in 1994, including 16% by withdrawal or dismissal, 9% through voluntary pay agreements, 12% through mediation, and 54% through redemptions. Only 8% of the contested cases resolved in 1994 actually required a final decision after hearing by the magistrate, and of those cases, only three quarters (6%) involved the granting or denial of benefits. Roughly half of these final decisions are appealed to the Appellate Commission.
One of the first things that becomes readily apparent in any review of the nation's worker's compensation laws, Michigan's included, is that they are crafted for and anticipate compensation for physical injuries. The whole focus on "injury" or "accident" and "arising out of employment" and "limitation" reflects a system designed to respond to physical disability, and indeed, until recent decades, that is exactly what the worker's compensation system in each state did address. Mental claims were rare and, when redressed, were usually tied to a claimant's simultaneous physical problems.
This historical happenstance is important. There is a very significant difference between dealing with physical injuries and dealing with mental complaints. Physical problems are substantially more tangible than mental problems. Medical science is much better able to recognize physical problems, and so are lawyers and adjudicators. Objective tests can usually measure physical complaints and restrictions. Patient response to physical pain and physical limitations is much more readily identifiable by simple observation.
If a person is injured while lifting a heavy object, the consequences of such injury are usually quite quantifiable. X-rays, MRI's and other sophisticated medical tools can often show to the eye the consequences of the injury. Physicians have a battery of objective medical tests available to them for testing the practical impact of such injury upon a patient's ability to physically function. Doctors may debate the precise source of such injury, or the severity of the injury, or the proper mode of treatment, but such debate is engaged within fairly narrow confines. There is a common language among both medical experts and laymen in analyzing a back injury.
In sharp contrast, a mental problem is unquantifiable. It exists purely in the mind of the individual. It manifests itself entirely in modes of behavior. It is entirely dependent upon the subjective explanations of the patient. No tests exist which can provide any type of certainty for the measurement of the mental problem. Physicians simply have not yet achieved any kind of true understanding of the processes of the mind. Although various diagnoses and descriptive terminology have developed, they are extremely flexible and imprecise in practical application. Laymen, including the attorneys and adjudicators in the worker's compensation system, usually find themselves adrift in uncertainty, turning with something close to helplessness toward psychiatric/psychological experts.
It is this dramatic difference between physical and mental "injuries" which produces the most problems in the worker's compensation system. As certain states across the country have moved in the direction of compensating stress, the dilemmas posed by the uncertainty of the entire field of mental health has resulted in a more chaotic, ever-changing mix of compensation entitlement standards than has ever been witnessed in any other area of worker's compensation law. Difficult areas such as heart disease and occupational diseases (such as cancer, asbestosis, toxic syndromes, etc.) have produced their share of consternation, but no area of worker's compensation law has produced more debate and discomfort than the area of mental disability. Legislators crafting the statutes and judges interpreting the law have simply not been comfortable enough to address mental disability claims with any kind of certainty or full expression of confidence.
With what type of "injury" is the worker's compensation system dealing when it comes to stress claims? Skeptics might respond that almost any person can be found to be mentally ill at least part of the time. Indeed, one study estimates that 15-30% of the general population at any given time is suffering from mental or emotional disfunction.10 Furthermore, one person's normal way of coping with life might be some other person's mental disability. Yet, despite the indeterminate nature of the entire question, it is clear that an extremely wide variety of personality and behavioral changes can occur following mental trauma or stress.11 These include neurotic and psychotic reactions, personality disorders, psychophysiological disorders, substance-abuse disorders and disorders of impulse control, as well as antisocial behavior.
Just what are the sources and causes of these mental "injuries?" At the most basic level, the answer is "life." Every aspect of our environment, from our family relationships to our friendships to our jobs and outside pursuits influence our mental makeup. Everything from the physical conditions of life (where we live, where we work), to the emotional aspects of our relationships, to our personal conditions (pain and physical condition, body image, financial status) to our basic behavioral choices (use of drugs and alcohol, active versus relaxed lifestyles) constitute sources for our mental being, and thus our moments of stress and disturbance. In addition, predisposing factors such as heredity, age, and gender, must be considered. To isolate any one factor in this broad spectrum of influences would be foolish, just as it would be foolish to say that any one of these factors plays no role. Everything in life plays a role in one's mental state. This of course includes work.
As far as the work environment is concerned, numerous factors ranging from the witnessing of shocking, unexpected events to the experiencing of steady stress can influence the mental wellbeing of the individual. Dr. Paul Rosch,12 president of the American Institute of Stress, and Dr. Carroll M. Brodsky,13 a much-published expert in the field, identify the following as major sources of everyday stress in the workplace:
workplace changes, such as new physical settings, increased quotas, new work shifts, new supervisors
insufficient time to get the job done to one's personal satisfaction or the satisfaction of supervisors
lack of clear job description or clear direction
lots of responsibility with little authority
the absence of proper recognition or reward for good job performance
intolerance or aggressiveness by supervisors
the inability to effectively or safely voice complaints
prejudice, discrimination and direct harassment on the basis of race, sex, ethnicity or physical characteristics
dangerous or dirty work conditions, neglect or unpunished violations of safety standards by coworkers or superiors
non-acceptance or loss of acceptance by the work group
workplace organization which stifles expression of emotions or ego
job insecurity
This laundry list of typical workplace stressors is experienced by every working individual to one extent or another. According to Dr. Rosch, these stresses cost American industry $150 billion annually in terms of absenteeism, reduced productivity and direct medical expenses. Interestingly, National Council of Compensation Insurance studies in 1980 and 1982 discovered that 59% of stress claimants are under 40 years of age.14
Of course the response to workplace stress will be unique to every individual. Some individuals might experience highly unpleasant events in the workplace and react with confidence and strength. Other individuals might be deeply disturbed by events that the average person would find fairly innocuous. Why some individuals continue to exhibit productive, "normal" behavior in the face of stress while others exhibit reduced ability to function remains difficult to assess and impossible to predict.
The symptoms of any "mental disorder" are expressions of each person's attempt to maintain his or her emotional balance, something known as "psychological homeostasis," a term originally coined by the physiologist Walter Cannon to refer to the many factors which act upon the individual as he or she seeks to establish a state of mental equilibrium. "Homeostatic mechanisms are the shock absorbers with which the person/organism defends against stress. In the same context, trauma is an event or agent that disrupts homeostatic mechanisms."15
The term "stress" refers to the effects and responses produced in an individual when events or conditions interfere with that individual's normal functioning, necessitating an adjustment or coping behavior. Psychologically, the individual's defense against stress consists of coping mechanisms which develop in three stages: 1) alarm reaction (in which resistance to stress is low and adaptation has not yet been achieved), 2) stage of resistance (during which optimal adaptation is attained) and finally 3) stage of exhaustion or collapse, when adaptation is lost due to depletion of energy. Stressful situations are handled primarily by ego-mechanisms, which for the most part are conscious modes of thinking and problem solving. There are many ego-mechanisms, but the primary one is repression, which is used to push stress concerns into the subconscious.
Mental stress becomes problematic when this coping mechanism produces unproductive or destructive ("maladaptive") forms of behavior. Usually, when stressors impinge on the individual, he or she attempts to relieve the resulting stress through characteristic coping behaviors he or she has devised. Ideally, these behaviors produce an adjustment so that life can continue in a smooth and productive way. However, if these coping behaviors are maladaptive (such as psychophysiological disorders, personality disorders, paranoia, or schizophrenia), it becomes a mental disorder, which in some cases may produce disability or the need for medical treatment.
One very common coping behavior in response to stress is anxiety, which arises from repression of painful conflicts in the individual's past. It may give rise to generalized apprehension, tension, and unhealthy behavioral patterns (such as overeating, excessive drinking or smoking, and other neurotic behavior). All of life's events require mental adaptation and adjustment, and most of the time this process works with little or no discernible destructive behavioral effect. However, adaptation and adjustment may take a detrimental turn, whereby, instead of responding to stress in a positive way, the individual develops behavior patterns which diminish or undermine his or her mental wellbeing.
At this point we should note that the above-described pattern of stimulus (stressors) and adaptation/adjustment constitutes one of the areas of psychological study where the "chicken-and-egg" question is of necessity often asked. What is the real source of an individual's mental complaints? Why is there a maladaptive response? Is it because of preexisting forces which predispose the individual to such response? Or is the maladaptive response something that arises by happenstance, depending on contemporary circumstances? Or is it both? These questions become very important when the issue is the legal causation for a mental problem. If the chief or only cause of the maladaptive response or maladjustment is the preexisting condition, it would seem unfair to place "blame" on stress factors such as employment, whereas if the preexisting condition provides only the setting, requiring a negative stress stimulus to activate the mental problem, attribution of "blame" on employment (if that is the stress factor) is more appropriate.
This dilemma is illustrated by a study of the predisposing causes for depressive reactions to rape.16 Most of the women victims in this study experienced depression after their assault, but as a group these women were not significantly more depressed than a non-victim control group at the 4-month follow-up. The exception was a subgroup of victims for whom depression continued even at the 12-month follow-up. The strongest determinants of adjustment over the longer period were associated with the victims' prior level of functioning. Women who had already experienced psychological problems, such as depression, anxiety, obsessive-compulsive behavior and sexual experience recovered more slowly from the rape experience. Naturally, one must then ask, what is the actual causation for the long-term depression -- the rape, or the preexisting confluence of maladaptive coping behaviors? The same question must be asked when a claimant points to workplace events as the cause for his or her mental distress.
Dr. Daniel S. Harrop17 has suggested that psychological treaters should keep this issue of causation carefully in mind. If a patient comes in for consultation or treatment and complains of a traumatic event as the cause for his or her mental/behavioral imbalance, a diagnosis of cause-and-effect focused on that traumatic event makes initial sense. However, if that same individual continues to complain of such mental/behavioral imbalance after six months, the doctor should reconsider his or her diagnosis. Six months is almost always enough time for a person to adapt and find new balance after a traumatic event. If such balance has not been found, there are almost certainly pre-trauma factors which must be explored as the true source of the patient's continuing complaints.
This analysis provides important lessons for understanding the role of employment stress in mental claims. When difficulties in the performance of work (up to and including full disability) follow a traumatic event, logic dictates that the workplace event may have been the triggering cause (at least in terms of aggravation), but if the individual remains unable to work after a longer period of time, it becomes increasingly unlikely that the workplace traumatic event is the continuing reason for such inability to work. Although the claimant probably will have by then consciously or subconsciously determined to use the workplace event as the primary explanation for all of his or her problems, it becomes more and more likely with the passage of time that the actual explanation for his or her problems rests not with the workplace event, but instead solely with preexisting factors which the employee brought with him or her into the workplace.
For many, if not most mental disorders, the causes and origins (or "etiology") are either incompletely understood or essentially unknown. All possible factors, whether they be personal-psychological, social/cultural, or biological, must be examined. There are at least fifteen major groupings of psychiatric disorders affecting adults, as well as twelve different personality disorders. Dr. Harrop has for easy understanding broken "stress injuries" into five major groupings:18
Adjustment Disorder: Time limited disorder, with variable symptoms, over not more than a six month period. A specific event causes specific symptoms (anxiety, despondency) for a specific period of time. While equally common in men and women, women tend to seek treatment more frequently.
Generalized Anxiety Disorder: Excessive worry more days than not over six months and problems with functioning.
An Acute Stress Disorder occurs after a particular event that is personal and threatening and the person developed fear, helplessness or horror. [Note: Stress Disorders, when used psychiatrically, mean reactions to things outside the range of normal human experience.] The reaction is time-related to the event, there is a numbing or detachment present, and the person reexperiences the event through dreams and thoughts.
A Posttraumatic Stress Disorder is similar to above, but the feelings go on more than one month: detachment, avoidance, persistent anxiety. (Acute: 1-3 months; Chronic: greater than three months; Delayed Onset: onset of symptoms at least six months after the event).
Major Depression: Persistent melancholic mood for at least two weeks; sleep, appetite, concentration, daily functioning all disturbed. [Note: Depression, when used psychiatrically, does not mean "unhappiness" but refers to a specific syndrome.] May become Dysthymia: Depressed mood most of the day, more days than not, over 2 years.
Often exhibiting themselves during times of stress but not caused by stress are personality disorders (enduring patterns of behavior that deviate markedly from the expectations of one's culture). These are formed by early adulthood and are stable over time, causing impairment in different ways.
Certainly the most common mental disorder found in contemporary worker's compensation cases is "post traumatic stress disorder." In order to understand this disorder, it is helpful to turn to the American Psychiatric Association, which has developed a Diagnosis and Statistical Manual of Mental Disorders (which we will hereinafter refer to as DSM-III-R, the common reference),19 to provide the field with a common language with which to diagnose and treat psychological disorders. DSM-III-R provides a description of post traumatic stress disorder which, although already quite brief, may be summarized still further for our purposes as follows:
The essential feature is the development of characteristic symptoms following a psychologically traumatic event that is generally outside the range of usual human experience. The stressor producing this syndrome would evoke distress in most people and is beyond common experiences such as simple bereavement, chronic illness, business losses, or marital conflict. Characteristic symptoms include persistent re-experiencing of the event, such as intrusive recollections, dreams, flashbacks and intense distress at exposure to events that symbolize or resemble aspects of the traumatic event; persistent avoidance of stimuli associated with the trauma, including amnesia, diminished participation in significant activities, and personal estrangement; and persistent new symptoms of arousal, including inability to sleep, outbursts of anger, difficulty concentrating, hypervigilance, and physical manifestation of distress. Impairment may either be mild or affect nearly every aspect of life.
Post traumatic stress disorder is thus "based on a combination of external events and internal psychological responses to these events. It is the particular combination of the nature of the life event and the psychological responses that form the basis of this nosological category."20 The psychiatrically recognized etiology for this disorder coincides most handily with the usual concept of causation under the law. There is a specific event and a series of reactions to that event. There have been enough studies of individuals experiencing severe unusual traumatic events (such as threats to one's physical safety or the safety of close ones, sudden destruction of one's home or community, or seeing another person killed or badly injured as the result of an accident or physical violence) so that psychiatry has a much firmer understanding of the nature and progress of this disorder than of most others. Here, the law's need for "factual" causation appears most easily satisfied.
Things become much more difficult to grasp, psychiatrically and legally, as one moves away from post traumatic stress disorder toward more diffuse diagnoses. According to Dr. George Bussey, "adjustment disorder" is a psychiatric illness that also requires external stress, although not as severe as in the case of post traumatic stress disorder. When there is an adjustment disorder, there is a maladaptive reaction to an identifiable stress, usually impairing occupational functioning or normal social functioning. Here patterns are less readily identifiable, because reactions to lesser (and often recurring) stresses are much more variable. What is devastating to one person (due to that individual's preexisting personality) may be of little consequence to someone else.
As one moves toward more generalized forms of anxiety, there is even less unanimity of medical opinion regarding etiology. "[T]he common thread is that, short of an overwhelming stressor similar to that found in [post traumatic stress disorder], or a less severe but clinically significant stressor as seen in adjustment disorder, the primary etiology of the disorder lies in the personal sphere of the patient. . . . The normal stresses associated with work, play, and family are not deemed sufficient to create a disorder except in those with a preexisting, though possibly latent, psychological impairment."21 Here the necessary ties for legal causation have become quite tenuous.
Mention must also be made of a mental illness at the opposite end of the causation spectrum: schizophrenia. Here, the primary focus is on genetic, biological, and neurophysiological deficits inherent in the afflicted individual, as opposed to external pressures, such as stress. Few theorists speak of environmental stress in relation to schizophrenia, and when they do, they focus merely on "vulnerability." Dr. Bussey summarizes: "In other words, the individual is predisposed, long before exposure to any kind of work, not to be able to tolerate the routine stresses involved in many different aspects of life. Therefore, the decompensations in schizophrenic individuals who do enter the workforce are generally due to the nature of the disease and its negative impact on the person's ability to address the stresses of routine day-to-day living."22 The cause of mental illness and disability in this instance is "internal," not the result of "external" causes. Generally, then, the concept of workplace causation (including aggravation) has no appropriate place in the arena of schizophrenia.
The concept of workplace causation does play a proper legal role in the broad spectrum of disorders ranging from post traumatic stress to anxiety. Here, judicial factfinders must explore the complex inter-relationships between preexisting personal experiences and predispositions on the one hand, and external stimuli, such as work, on the other. This must be done in order to determine whether a sufficient factual causal link exists between a person's disabling mental complaints and his or her experiences at work so that the disability can be deemed compensable under the worker's compensation law.
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10Note, "When Stress Becomes Distress: Mental Disabilities Under Workers' Compensation in Massachusetts," New England Law Review, Vol. 15, 1979-80, p. 287.
11A very helpful guide through the complex maze of mental responses and conditions is provided in the multi-volume Attorney's Textbook of Medicine, published by Matthew Bender. Much of the following discussion utilizes as a reference the excellent article by James Nininger and Lanny G. Foster, "Personality and Behavioral Changes Following Trauma," Chapter 101 (1986).
12"Legal Relief From Tension - Work-induced Stress Spurs Workers' Comp Claims," by Nancy Blodgett, American Bar Association Journal, Vol. 72, October 1, 1986.
13"A Psychiatrist's Reflections on the Workers' Compensation System," Behavioral Sciences & the Law, Vol. 8, Autumn 1990, pp. 331-348.
14Cited in Blodgett, see footnote 12.
15Nininger and Foster, p. 101-5, see footnote 11. The article provides an extensive analysis of how stress interferes with homeostasis and how the human mind responds. The following brief summary discussion is based upon this analysis.
16"Victims of Rape: Repeated Assessment of Depressive Symptoms," by B. M. Atkeson, et al., J. Cons. Clin. Psychol., Vol 50, pp. 96-102 (1982), cited in Nininger and Foster at pp. 101.9-10, see footnote 11.
17Presentation to the Twenty Second International Workers' Compensation College of the International Association of Industrial Accident Boards and Commissions, April 26, 1995.
18Direct quote from published notes, "Anxiety and Stress Disorders," see footnote 17.
19Many of the leading scholarly articles dealing with stress have focused their attention on DSM-III in its 3d edition, published in 1980, or DSM-III-R, the revised edition, published in 1987. In effect, DSM-III has become the official classification scheme.
203 Treatments of Psychiatric Disorders 2066 (Task Force Report of the American Psychiatric Association 1987), cited in "Mental 'Stress' Claims and Workers' Compensation: The Problems and Suggestions for Change", by George D. Bussey, Federation of Insurance & Corporate Counsel Quarterly, Vol. 43, Winter 1993, pp. 99-145. Dr. Bussey provides an excellent summary of the issues of causality as a medical-psychiatric response. The following discussion relies in particular on Dr. Bussey's analysis of current concepts in the etiology of psychiatric disorders.
21Bussey, pp. 126-127, see footnote 20.
22Bussey, p. 128, see footnote 20.
1) INHERENT PROBLEMS IN APPLYING
THE LAW TO STRESS CLAIMS
As the previous overview of the nature of stress suggests, the field of mental disability and stress offers a minefield of difficult questions, both from the standpoint of medical understanding and the standpoint of the law. As we have already stated and reemphasize here, there is one fundamental difference between mental disability and physical disability which creates an almost impenetrable barrier between the claimant and the legal factfinder in a worker's compensation case. That difference is that the human mind cannot be measured. Its health is a matter of pure subjectivity manifested exclusively through behavior. Consequently, it is unavoidable that a determination of causation is a mere exercise in conjecture and probabilities, not a true objective investigation of precise facts. The degree of factual certainty that can be achieved in most physical injury situations simply cannot be achieved in the field of mental complaints.
This is not a point of view held uniquely by this author. Any review of the medical and legal literature dealing with mental illness and the role of stress in the development of that illness accepts the fundamental limitations inherent in the study and understanding of mental distress. As a generally accepted principle, "the precise etiologies of most mental disorders are not readily identifiable. A mental disorder may arise from many possible combinations of factors in the individual's genetic or biological makeup and the individual's environment."23 As we stated earlier, the etiology of most mental disorders is simply "life" itself. It is an "undisputed medical conclusion that the integral etiological factors of a claimant's mental disability, a constellation of the disabled claimant's personal subjective mental life and objective employment and non-employment environmental stresses, cannot be quantified or qualified."24
This uncertainty has legal consequences. For one, any attempt to allocate percentage values for the various causes of a mental problem is simply nonsensical. One simply cannot decide that, say, 10% of the worker's condition is due to recent marital strife, 10% is due to workplace events, and 80% is due to previous life-shaping factors. As observed by Dr. Hubert Smith25, "[p]sychiatry has not advanced to the point where it is an exact science in the same sense that physical medicine is an exact science. A physician on the witness stand is able to declare positively whether or not the defendant has a fracture. He or she can even describe its duration and severity in detail. Psychiatry, on the other hand, cannot be so positive about neuroses and mental illness, particularly when the law is primarily interested in one isolated act, while psychiatry takes cognizance of all the influences that have come to bear on the individual throughout his lifetime . . ."
As we discussed earlier, the inability to quantify the effect of particular events arises not just from the impossibility of breaking down the impact of each person's countless life factors by percentage, but also from the fact that the same factors may have a totally different impact on each individual. The reality is that an event apparently harmless to the average individual may indeed have an extremely detrimental effect on someone with a history of prior mental complaints. A bad performance review may simply prompt an individual from a healthy family environment to work with greater determination. However, if the individual involved is, say, a woman abused by her father and beaten by her husband, the bad performance review might be devastating. It is false to say that the bad performance review for such a woman cannot be an important factor. Quite on the contrary, it might well be the critical factor which results in the ultimate inability of this woman to function in the workplace (at least for a while). The problem is that no psychiatrist or psychologist will be able to tell you with any degree of objective factual certainty how important the role of the workplace event was in the development of the functional disability.
The inability of medical science to provide definitive information in these matters is palpable. There are no objective means by which to measure the degree of a person's adjustment to life, no "hard" data easily verifiable by other physicians, and no firm categories within which experts can diagnose particular mental complaints. "In psychiatry, there are not even firm rules as to what the elements [in a category] are."26 The science of psychiatry remains a qualitative rather than a quantitative discipline. Moreover, "since there are no objective physical criteria or other external criteria to validate a diagnosis of a mental disorder, such a diagnosis cannot be said to be independently accurate or inaccurate."27
A mental disorder can only be defined as abnormal behavior, but this leads to all kinds of problems. Just what is "abnormal?" This definition is actually a function of societal rules and norms. "[A]ll behaviors are understood and evaluated in terms of social norms." Therefore, "psychiatric syndromes are matters of social and political convention." Taking two very broad examples, certain perfectly normal behavior in central Africa or Siberia may be viewed as decidedly abnormal in the United States. The habits of the art gallery crowd in New York might well be considered deranged in the farmlands of Iowa. As a result, in both cases, psychiatrists could well discover a mental disorder when a particular behavior is exhibited in a setting where such behavior is not expected. What is "abnormal" will also depend on the subjective preferences (values) of the medical expert or legal adjudicator observing the behavior. "What psychiatry lacks is a theory that is free of all such values."
Furthermore, medical experts have received many different types of training and will be inclined toward different psychiatric schools of thought, producing a wide variety of different and often contradictory diagnoses and recommendations for treatment. As Sara J. Sersland has pointed out in her excellent summary of the various legal standards for compensability of mental disabilities:
In psychiatry there is wide divergence of thought even as to the basic underlying theories of personality and psychopathology. An example of the effect of this divergence may be found in the wide range of opinions that exists concerning the cause of an anxiety neurosis. The proponent of a behavior modification theory considers it to be a conditioned response to some abstruse component of a previously threatening stimulus. The psychoanalyst views it as arising from the unconscious mind, evoked to protect the individual against executing some primitive drive that is not compatible with social practice. Those who follow the organic approach believe anxiety to be related to certain biochemical abnormalities in the blood and probably in the brain. Even the comparatively simple question of whether or not psychopathology exists in a particular person may be subject to much debate.
Although divergences in opinion also exist within other fields of medicine, the divergences do not run so deep and are not so pervasive as in psychiatry. For example, one orthopedic surgeon may disagree with another orthopedic surgeon on the question of whether spondylolisthesis is an acquired or congenital phenomenon, yet both agree wholeheartedly on the nature of the abnormality in terms of its physical components and typical symptomatology. Moreover, the two orthopedic surgeons' disagreement on this one issue will probably not be indicative of their disagreement concerning the etiology of other abnormal conditions. In other areas of medicine, there are no different schools of thought representing fundamentally different viewpoints that affect essentially all areas of practice, as there are in psychiatry.
It is also important to remember that medical professionals do not exist merely for the benefit of lawyers, ready to attribute causes for their patients' problems in a legal proceeding. They are there to treat the patient. For example, DSM-III-R does not exist in order to pinpoint causation -- it exists as a tool for identification and treatment. In fact, "psychiatrists in routine practice do not place a premium on being able to arrive at a correct diagnosis, at least during the initial stages of treatment. Their experience and training have led them to focus not on labels for the patient's condition, but on the symptoms of the patient and means to alleviate the symptoms." As Ms. Mussoff points out:
A prerequisite to any treatment is, of course, the accurate identification of the existence of the disease. To further its goal of treating disease, the medical profession operates on the assumption that it is more acceptable error to label a healthy person sick than to label a sick person healthy. In physical medicine, this is generally a harmless assumption because of the use of relatively objective diagnostic procedures and because of the opportunity during the course of treatment to reevaluate and revise the original diagnosis.
The bias toward finding disease has, however, been carried over from the objective area of physical medicine to the more subjective area of psychiatry and results in "an ever extending net. Into this net of mental illness are drawn many allegedly psychologically ill persons who are considered ill on the basis of minimal or unclear data." Thus, in response to the accepted assumptions of their profession, mental health experts are more likely than not to find the presence of a mental disorder, and in doing so may have a considerable impact upon the workers' compensation system. For example, the labeling of a particular set of symptoms as "anxiety neurosis" instead of "normal nerves" can mean the difference between a worker's being granted or denied compensation.
The dangers of labelling and blind legal acceptance of medical opinions cloaked in technical jargon cannot be overstated. To the extent that a psychiatrist uses diagnostic labels, those labels are often misconstrued by lawyers and judges to mean far more, and contain far more certainty, than the psychiatrist ever intended. Psychiatrists simply cannot, and usually do not wish to draw strict lines of demarcation between normal and abnormal mental conditions. A typical person will almost certainly be "depressed" on occasion about certain events in his or her life. When do these moments rise to the level of a "depressive neurosis?" The psychiatrist, when acting as a treater, does not really care about labelling, yet judges may base their ultimate decision on whether that label is attached to the claimant or not. This dependency on labelling makes no sense, yet in a field as indeterminate and imprecise as mental illness, judges often are so desperate for some kind of safe haven for their decisions that they rush to diagnostic labels for security.
The problems facing the legal factfinder in a mental disability case are therefore enormous. Because of the multitude of causation theories, the purely subjective bases for all medical analyses of mental distress, and the conflicts about the most basic terminology used by mental "experts," legal inquiries about causation are likely to produce just about any answer that a particular litigant wishes to have produced. Since any abnormal behavior suggesting the presence of a mental disorder must be observed and measured from the subjective standpoint of the "expert" doing the analysis, the resulting medical opinion is not subject to any means of objective confirmation, leading inevitably to a situation where the factfinder's choice between expert opinions becomes haphazard and itself subjective.
2) THE USE OF VALUES TO NARROW
THE SCOPE OF STRESS CLAIMS
So what is the factfinder to do when faced with a claim that work caused or contributed to a mental disability? On the one hand, work will be a shaping factor in the mental makeup of every individual who engages in employment. In a sense, employment stresses will always be at least a little bit of an aggravating factor when something has gone wrong in the behavior of a claimant. On the other hand, determining precisely what role the workplace played, and to what extent it was detrimental, is nearly impossible to gauge accurately. Research into the causes of mental disabilities reveals few factors that can be identified as sole or critical precipitators. At best, psychiatric research can merely show that some factors are mathematically more likely to be linked to disability. "Requiring that a worker prove a causal connection between his disability and his job by pinpointing a particular cause may therefore be imposing upon him a more difficult burden than the workers' compensation system contemplates." Requiring the factfinder to determine the impact of employment on the claimant may be imposing an objectively impossible task.
So what does the history of legal factfinders deciding worker's compensation mental stress claims tell us? It turns out that the process of fact finding, imposition of legal limitations, and determination of entitlements is actually not a process of awarding benefits on the basis of actual or factual causation. Instead, societal values are utilized to reach a final legal result. At the most basic level, these values center on 1) achieving greater mathematical probability of work-relationship, 2) compensating on the basis of fault, and 3) compensating those individuals who most closely resemble the average or reasonable person.
The mathematical probability value is easy to understand. After all, the goal of the law is to determine factual causation. When the nature of the issue makes this determination difficult, the natural response is to seek formulas for achieving high mathematical probability. The impossibility of measuring the exact contributive degree of external factors (such as workplace stress) renders the determination of causation "inherently vulnerable to a decisionmaker's evaluative choice of whether the factual probabilities preponderate to the degree that the contributive employment factors aggravate a claimant's preexisting mental condition, or whether the factual probabilities preponderate to the degree that the claimant's preexisting mental condition constitutes a collateral cause of the disability. The degree of evaluative latitude which exists at the fact-finding level is, therefore, extraordinary."
Mathematical probability comes into play in a very natural way. Looking back at the examples given at the beginning of this report, a magistrate is likely to find that Sam, the electrician who saw his friend plunge to his death, is mathematically highly probable to have suffered traumatic after-effects from the experience. The unusual and intensely traumatic event produces high mathematical probability of work-relationship. On the other hand, Mary, the less-than-stellar worker receiving a bad performance review, is less likely to achieve success in showing workplace causation, since the mathematical probability of becoming disabled due to common acts of supervision is, in the likely view of most magistrates, going to be much less.
The decisionmaker applying the common law or underlying statute defining the scope of entitlement will also focus on the nature of the workplace event and evaluate whether this event is "good" or "bad." In this regard, it must be noted that stress is an essential everyday component of life. Life would be empty without it. This stress can be good, increasing the quality of job performance, or it can be bad, destroying the efficiency and quality of an individual's work. We should remember that "psychiatry does not necessarily differentiate good from bad stress. For example, a job promotion, whether it actually requires increased responsibility and effort, might nonetheless be experienced by a depressed individual as stressful because of what might be expected."34
The legal decisionmaker, however, more often than not feels compelled to characterize the stress as being good or bad. Unfortunate events, and even more commonly, wrongful employer acts which are alleged to have contributed to mental distress, are much more likely to be compensated than benign or innocent events and acts. Especially in the field of personnel interactions and decisions, "fault" may become the determining factor.35 When an employer behaves improperly and the claimant seems mentally imbalanced thereafter, the decisionmaker is very prone to take recourse to the "fault" of the employer in deciding to award benefits, whether or not the wrongful behavior actually contributed to the claimant's mental distress. Similarly, when the employer acts appropriately, a decisionmaker is more likely to not award benefits, even though the employer's actions may well have contributed to the employee's mental imbalance.
As noted early in this report, "fault" is not supposed to play a role in worker's compensation. However, in the indeterminate area of the mental stress claim, the lack of objective certainty about causation inevitably invites recourse to the crutch of awarding benefits on the basis of "fault." For example, a magistrate is much more likely to rule in favor of Mildred, the victim of sexual harassment, than in favor of Mary, the poor worker, simply because Mildred's employer acted wrongfully, while Mary's employer was merely trying to achieve better performance by its workers. The first employer has "fault," whereas the second employer does not. Any review of the decisions reached in the worker's compensation field shows clear evidence of a pattern of compensability based upon "fault."
Finally, the decisionmaker is likely to utilize personal experiences and his or her own sense of how a "normal" person would react to an event in order to judge whether the claimant at hand was mentally injured by workplace events. This too is a crutch, since there is no objective relationship between how a reasonable or "normal" person reacts to a workplace stress and how the particular individual filing a claim reacted to that same stress. But use of this crutch is likewise natural and inevitable. Events which seem a likely source for distress in the average or "reasonable" person are simply more attractive bases for the finding of work-relationship.
Thus, Sam, the electrician, is likely to receive benefits, because an average person is likely to be deeply affected by a tragedy as profound as that experienced by Sam. On the other hand, Mary the bureaucrat is not average. Her reaction seems disproportionate and somehow not right, since she "deserved" the poor performance review. As for John, who imagines threats from innocent co-workers, the reaction is about as far away from that of the average or "reasonable" person as one can get. It is most unlikely that the magistrate will award benefits to such an individual because his reaction is so far from the norm.
Using value judgments in the field of mental claims cannot be avoided because the totally subjective nature of such claims (being incapable of objective verification) leaves no other moorings for deciding the case. A judge must determine whether a claimant is credible, whether his or her behavior is socially abnormal (and to what extent), whether the events occurring at work were "good" or "bad," and whether it is likely that the events could have caused the claimed harm. All this is done from the perspective of the judge, who has no choice but to begin with a measurement of how a normal person such as himself or herself might react to the same events. This utilization of value judgments must be acknowledged if one is to properly understand and apply the law. As Dr. Irwin Savodnik36 warns, in psychiatry "what constitutes an illness may turn out to be a moral judgment on the part of the community. There is nothing wrong with moral judgments, but when they are disguised as medical-scientific determinations serious consequences may ensue." It is essential that this be understood by the lawmaker or judge utilizing the expertise offered by psychiatry in mental stress cases.
A particular danger which also lurks in the field of mental stress claims is the behavior known as "malingering." In its commonly used form, malingering consists of the voluntary presentation of false or exaggerated physical or psychological symptoms. "Etiologically, the primary cause of malingering, apart from anti-social personality disorder and other pathological character traits, is the desire for secondary gain."37 This can include such benefits as the avoidance of work or the receipt of worker's compensation payments. The problem in the area of mental stress is that malingering is exceedingly difficult to diagnose. The question of malingering "opens up one of the most elusive fact-finding difficulties in the law of workmen's compensation."38 The reason for the dilemma is obvious: "The pivotal issue in malingering is the motivation of the individual. Since one person cannot determine another person's motivation with objective certainty, malingering is actually an accusation rather than a diagnosis."39
Complicating this problem area even more is the related phenomenon Professor Larson calls "compensation neurosis," which "may take the form of an unconscious desire to obtain or prolong compensation, or perhaps of sheer anxiety over the outcome of compensation litigation - in either case producing a genuine neurosis disabling the claimant."40
Also, individuals may consciously or subconsciously attribute all of their problems to the workplace and thereafter sincerely believe that work is the source of their mental complaints. Instead of work being a positive factor, work may become an after-the-fact rationalization. As a result, neither the psychiatrist nor the legal factfinder can take a litigant's claim of mental disability at face value. Mental disability claimants will convince themselves of their mental illness and will maximize their distress. In practice, it is nearly impossible for a psychiatric expert to separate these factors and for any legal factfinder to distinguish between these nuances. In effect, once a claimant has decided that work is the primary cause for his or her distress, work has in fact become the primary cause, and no legal factfinder will ever be able to truly distinguish between work actually disabling an individual and work being used by a disabled individual as an after-the-fact explanation for his or her distress.
Dr. Eric H. Marcus has proposed that the proper description of what is happening is:
A worker's attitude towards his job determines his perception of the circumstances which ultimately determines the amount of stress he feels. Perceptions do not arise in a vacuum. Many underlying variables establish the nature of one's perceptions - attitude being the most important variable in occupational matters. Secondary gain features such as wishes for revenge, monetary reward, and release from tedious employment all influence one's attitude and perception.41
Given this complex array of attitudinal and perception factors, it is clear that no one can make a meaningful distinction along the spectrum from true mental illness to compensation neurosis to malingering. This dilemma, more than any other facing legislators and adjudicators dealing with worker's compensation stress claims, gives rise to the utilization of the above-described values to determine which cases will result in benefit awards, and provides one of the most persuasive arguments for limiting the period of time that any worker can receive compensation for a mental disability claim.
So how do these values manifest themselves in state statutes and common law standards? One option is to not permit recovery for stress claims at all, by requiring that there be a physical injury component to any mental claim. As will be discussed later in this report, as many as 22 states may have such a requirement. Some background may be appropriate here: many legal commentaries, including that of Professor Larson, broadly discuss worker's compensation mental claims within the confines of three separate categories: 1) physical-mental, 2) mental-physical, and 3) mental-mental. Under the first two categories, a person either suffers mental distress because of a physical injury or suffers physical consequences because of his or her mental distress. These two categories are generally compensable throughout the country and not particularly controversial. Such lack of controversy is due primarily to the fact that worker's compensation systems are comfortable compensating physical injuries, which are for the most part objectively identifiable and quantifiable. Once this physical component is present, judges believe there is sufficient solid ground for a determination of work-relationship so that the mental component may be compensated. The focus of this report is not on these physical-mental and mental-physical cases. Stress cases fall into the last category, "mental-mental," and it is in this category where the great controversy rages on.
Legislators, in setting the statutory limits to recovery in mental cases, and the courts, in defining the legal standards of causation, have established many different restrictions in order to get a handle on the potentially explosive number of mental stress claims. Speaking very broadly, these restrictions fall into two basic categories: 1) sudden stimulus and 2) unusual stress. Reflecting the values of mathematical probability, punishment of fault, and adherence to the average person standard, legislators and courts often apply one of these two tests as prerequisites for awarding benefits.
Under the first test, requiring sudden stimulus, a person must demonstrate that his or her mental distress is the result of a singular, easily identifiable traumatic event. This may include sudden fright or mental shock causing "nervous" injury. Such a standard falls easily into the worker's compensation tradition of looking for an "accident" or moment of "injury" as the source for compensating a worker and satisfies the value of mathematical probability most easily. The sudden stimulus standard also sharpens the focus of the legal decisionmaker so as to make assessment of the "good" or "bad" nature of the event (and thus the degree of "fault") more easily assessable.
Under the second test, requiring unusual stress, a person claiming that gradual stress has produced a mental disability must show that such stress is more than just the occurrence of everyday pressures or events likely to occur regularly to all individuals. Thus, when a worker argues that he or she has been the subject of sustained stress, such as tension, worry, strain, frustration or harassment, the worker must show that such stress goes beyond the stimuli of everyday employment life which all employees must experience. Such a standard satisfies in particular the desire to limit recovery to individuals that approximate the "normal," "reasonable" or "average" person. Here too, the focus on unusual events makes the assessment of fault easier to attain.
There are, of course, other particular techniques employed by legislators and judges who establish the contours of mental stress law. For example, as will be examined more carefully later in this report, Michigan requires that compensable mental disabilities must be based on "actual events of employment, not unfounded perceptions thereof," and that these events must contribute to the mental disability in a "significant manner." However these restrictions may read, they are all intended to achieve the goal of determining true factual workplace causation for a claimant's mental distress. Since such factual causation is impossible to determine with anything resembling objective certainty, the restrictions act as an artificial tool which may be utilized to get as close to the goal of determining factual causation as possible.
Once that goal is reached, however, many additional questions remain to be answered. These include, 1) when does work-related mental stress become disabling?, 2) how long does a disability last and for what period of time should one attribute that disability to the workplace?, and 3) how does one predict the future course of an existing mental disability? The same problems afflicting the question of causation also burden the decisionmaker in answering these subsequent questions. "The psychiatrist's or psychologist's ability to predict the future condition of his mental patient is perhaps plagued by even greater doubt."42 Is an individual's mental distress a temporary problem, or does it form the basis of a permanent disability? To whom does one listen in trying to determine the ability to work? The claimant? The supervisor? The therapist? Is a claimant who has been judged to be "abnormal" by virtue of a finding of mental injury even competent to testify about his or her ability to function in the workplace? All of these difficult and often impenetrable questions reveal the enormous dilemmas facing the law of worker's compensation, even as the number of stress claims grow nationwide.
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23"Workers' Compensation: Compensating Claimants Who Suffer Psychological Disabilities Caused Solely by Job-related Mental Stress," by Anthony Michael Stiegler, Tulane Law Review, Vol. 60, Jan. 1986, p. 661.
24"Causation in Workers' Compensation Mental Disability Cases: The Michigan Experience", by Lawrence Joseph, Wayne Law Review, Vol. 27, No. 3, Spring 1981, p. 1127.
25"Problems of Proof in Psychic Injury Cases," by Hubert Winston Smith, Syracuse Law Review, Vol. 14 (1963), p. 663, n. 138; cited in Joseph, p. 1128, see footnote 24.
26One of the most thorough examinations of the weaknesses inherent in the application of the law to mental stress cases is provided by Joan Mussoff, "Determining the Compensability of Mental Disabilities Under Workers' Compensation", Southern California Law Review, Vol. 55, Nov. 1981-82, pp. 193-253. The quote is from p. 203. The subsequent discussion on analysis of behavior makes extensive reference to Ms. Mussoff's critique.
27Mussoff, p. 203, see footnote 26.
28"The Concept of Stress in Psychiatry", by Irwin Savodnik, Western State University Law Review, Vol. 19, Fall 1991, pp. 175-189. This paragraph quotes from pp. 183, 179 and again 183 respectively.
29"Mental Disability Caused by Mental Stress: Standards of Proof in Workers' Compensation Cases," by Sara J.Sersland, Drake Law Review, Vol. 33, No. 4, 1983-1984, pp. 751-816, 753-754.
30Sersland, p. 755, see footnote 29.
31Mussoff, pp. 205-206, see footnote 26; quoting Pollack, "Principles of Forensic Psychiatry for Psychiatric-Legal Opinion-Making," Legal Medicine Annual 261, 267 (C. Wech ed. 1971).
32Mussoff, p. 208, see footnote 26.
33Joseph, p. 1128, see footnote 24.
34Bussey, p. 128, see footnote 20.
35"Workers' Compensation for Mental Stress Arising From Personnel Decisions," by Stephanie Ann Schrimpf, University of Cincinnati Law Review, Vol 56, Fall 1987, p. 606.
36Savodnik, p. 181, see footnote 28.
37Bussey, p. 129, see footnote 20.
38Larson, §42.24(c), see footnote 3.
39Nininger and Foster, p. 101-87, see footnote 11.
40Larson, §42.24, see footnote 3.
41"Causation in Psychiatry: Realities and Speculations," by Eric H. Marcus, Medical Trial Technique Quarterly, Vol. 29, Spring 1983, pp. 428-429.
42Sersland, p. 756, see footnote 29
Entitlement to compensation for workplace stress (the so-called "mental-mental" cases) is a new and constantly evolving area of law, with each state developing its own unique nuances and contours. Change, either in the form of new case law or legislative activity, has been common. Consequently, any attempt to categorize what is happening in all 50 states is fraught with a great deal of imprecision. Nevertheless, it may be helpful to get a general understanding of where Michigan law stands in relationship to the law in the other 49 states.
A general survey of state law suggests that only 28 states have explicitly recognized in some fashion the compensability of claims based upon workplace stress.43 Seven states have expressly ruled out such claims, while 15 others have not explicitly recognized recovery for "mental-mental" claims. Standards for recovery in the 28 states that do recognize stress claims range from extremely limited (such as Texas and Louisiana) to broadly inclusive (such as California and Michigan). Most states strike a reasonable balance between the two poles. Table 1 identifies where each state lies within this spectrum of standards.
The most limited standard for stress claims is where a "sudden stimulus" is required. The hypothetical case of Sam discussed at the beginning of this report is an example of an incident involving a "sudden stimulus." Sam, a utility lineman, saw his co-worker receive an electric shock and plunge to his death while engaging in the normal work activities of their employment. This event was not only unexpected and witnessed from close proximity, but also horrific in result. That he would be deeply impacted by the event is a proposition most people would find reasonable and that a disabling mental condition may result is also not unreasonable. A "sudden stimulus" requirement, because of its reliance on a discrete causative event, bridges the gap between the traditional requirement for physical injury as the basis of compensation, with its inherent intuitive link between an event and injury, and the less tangible but still quite real psychological impact of an event.
Proximity to a horrific event is probably the most common type of disability-producing sudden stimulus recognized by states which adhere to this standard. The collapse of a scaffold on which the claimant and a co-worker were working and where the co-worker plunged to his death is an example of this type of claim.44 Severe fright caused by proximity to an unexpected event such as an explosion has been the basis for disability compensation.45 Seeing a co-worker maimed or severely injured on the job is a related class of claims.46
Less obvious scenarios, however, have also provided a basis for compensation in this first category. Compensation was awarded to an individual based on a bad reaction to an infrequent but nonetheless regular task. The claimant, a maintenance worker, became psychologically disabled as a result of an episode of claustrophobia experienced while engaging in the annual cleaning of a boiler.47 An unexpected demotion has also been found to have been a sudden stimulus for a compensable psychological disability.48 Hypothetical claimant Juanita would likely be able to collect worker's compensation in a sudden stimulus state based on the reported confrontation with the client. Mildred (unnerved by her supervisor's sexual banter), Mary (distraught from her poor performance evaluation), and John (who suffered a nervous breakdown when greeted by a co-worker), however, would have difficulty showing a discrete event from which their disability derived.
The majority of states that recognize stress claims require that the stress be, at a minimum, "unusual." Larson defines "unusual" in the worker's compensation context as "greater than the stress of everyday life, or sometimes greater than that of ordinary employment."49 An example of such a requirement is Maine's statute, which requires that the stress be:
considered extraordinary and unusual in comparison to pressure experienced by the average employee; the work-related stress must also be the predominant cause of the mental injury. A mental injury is not covered if it is the result of disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer. The amount of stress is to be measured by objective standards, not the employee's perception.50
Hypothetical claimant Mildred would likely be able to obtain compensation under an unusual stress standard. She was the focus of sexual banter and comments by her supervisor. Her supervisor's conduct was not in the good faith furtherance of the employer's business and it was of a sort that is plainly unacceptable under any reasonable standard of workplace conduct. Sam would also likely be compensated. Mary, however, would probably have difficulty collecting compensation, because her claim is based on stress-producing acts by her employer that were a normal part of the working environment. All employees are subject to the stress attendant with the need to perform their assigned tasks in a workmanlike manner and, without bad faith on the employer's part, that stress is not unusual. Juanita and John are also unlikely to be awarded compensation under this standard for similar reasons.
The unusual stimulus standard is, in many ways, a compromise doctrine. While the sudden stimulus standard, with its focus on a discrete causative event, extends by analogy the concept of compensable personal "injury" to psychological disability, it does so in a limited way. An unusual stimulus test moves away from the physical injury origins of worker's compensation to a recognition of the less tangible but no less real concept of a disabling psychological condition. It does so, however, in a carefully delineated manner, as is illustrated by the Maine statute discussed above.
Legislators and the courts of other states often express the fear that stress claims, because of their nebulous nature and the ease with which they can be made, could flood the system. They also express the fear concerning stress claims that it is too difficult to sort the legitimate claims from the fraudulent claims. For example, the Rhode Island Supreme Court in Seitz v. L & R Industries, Inc. expressed this concern, which was described in Ms. Sersland's article as follows:
[C]laims will be voluminous if a neurotic reaction to ordinary work stress is compensable because work stress is extremely common in our society and, as such, is very easy to cite as the basis for a claim. The Rhode Island court warned that "[g]reat care must be taken in order to avoid the creation of 'voluntary' programs that may be seized upon by an employee at an early age if he or she is willing or, indeed, even eager to give up active employment and assert a neurotic inability to continue." Not only is a claim of mental injury easy to feign, noted the court, but also, at least with regard to the claim before the court, the cause of the injury is largely unknown.51
By establishing statutory criteria such as found in the Maine statute, the opportunities for fraud are reduced while compensation is still available to most legitimate claimants.
Scenarios where compensation has been awarded under the unusual stress standard typically involve cumulative stress of the type caused by harassment52 or dramatic increases in work load and/or hours53. The stress caused to smokers unable to smoke in the workplace, however, is not considered unusual enough to warrant compensation. A Colorado court determined that smoking bans in the workplace, however stressful to some individuals, were commonplace and denied compensation.54
The final category, used by only 9 states (including Michigan), merely requires that work stress contribute to the claimant's mental condition. The degree of contribution required may be established by statute and can be very low. Larson summarizes it in the following manner, "[t]he jurisdictions in this group say, in effect, 'We do not ask whether the stress is greater than that of ordinary life or employment; it is enough that the stress contributed to the breakdown.'"55 This is the least restrictive standard. In a state using this standard, all of the hypothetical claimants could recover if the "work contribution" bar was set low enough.
As this summary demonstrates, Michigan's law on stress claims falls decidedly toward the "liberal," highly-compensable end of the spectrum. Michigan is one of only 9 states committed to the open-ended work-contribution test for compensability. How Michigan ended up in this latter category is discussed in the next section.
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43This overview draws heavily on §42.25(a)-(g) of A. Larson's Workmen's Compensation (Desk Ed.). The Desk Edition is an abridgement by Dr. Larson of his treatise, Workmen's Compensation Law, cited at footnote 3. Section references are true in either version. Larson's classification from least to most inclusive standards and inclusion of specific case citations and statutory examples allows for easy assessment of one standard against another.
44Bailey v. American Gen. Ins. Co., 154 Tex 430, 279 SW 2d 315 (1955).
45Simon v. R.H.H. Steel Laundry, 25 NJ Super 50, 95 A 2d 446, aff'd, 26 NJ Super 598, 98 A 2d 604 (1953)
46Pathfinder Co. v. Industrial Comm'n., 62 Ill 2d 556, 543 NE 2d 913 (1976).
47Sargent v. Board of Educ., 49 Md App 515, 43 A 2d 1209 (1981).
48Brown & Root Construction Co. v. Duckworth, 475 So 2d 813 (Miss 1985).
49Larson, §42.25(f).
50Larson, §42.25(f), n.16.
51Sersland, p. 780, see footnote 29.
52Velazquez v. Triborough Bridge & Tunnel Auth., 550 NYS 2d 139 (App Div 1989).
53Stokes v. First Nat'l. Bank, 377 SE 2d 922 (SC Ct App 1988), aff'd, 410 SE 2d 248 (SC 1991).
54Riddle v. Ampex Corp., 839 P 2d 489, 7 I.E.R. Cases (BNA) 525 (1992), cert. denied (Colo., Nov. 11, 1992).
55Larson, §42.25(g)
A. THE CARTER AND DEZIEL DECISIONS
In order to fully understand the current status of stress claims in Michigan, it is important to review the history of such claims in this state. A logical place to begin this review is with the landmark 1960 Michigan Supreme Court decision in Carter v. General Motors Corp.56 Prior to the issuance of that decision, case law in Michigan had already firmly established the compensability of both physical injuries due to sudden mental stimuli and mental disabilities due to physical injuries, however minor. However, Carter was a revolutionary step toward greater compensability. Not only did the Carter court accept the concept of compensable mental disability due to mental stimuli (the so-called "mental-mental" cases) -- it was also the first state case in the nation to accept the concept of compensable mental disability arising out of gradual workplace stress.
The claimant in Carter was a machine operator. After a lengthy layoff, the plaintiff was transferred to a "hub job," which required him to take a hub assembly from a nearby fellow employee's table to his own workbench, remove burrs with a file and grind outholes in the assembly on a conveyor belt. Plaintiff was unable to keep up with the pace of the job unless he took two assemblies at a time to his workbench, and he feared another layoff should he prove unable to do this work satisfactorily. He was repeatedly instructed by his foreman not to take two assemblies at a time because the parts became mixed up on the conveyor belt when he did so. However, the plaintiff continued having trouble doing the job correctly. When he took only one hub assembly at a time, he fell behind. When he fell behind, he took two assemblies, but then got the assemblies mixed up and was berated by the foreman. This dilemma resulted in an emotional collapse requiring hospitalization and shock therapy.
The court acknowledged that this case did not involve a psychosis resulting from a single fortuitous event, nor a psychosis resulting from a direct physical blow to the plaintiff's body. "Instead, there is involved a psychosis claimed to be the result of emotional pressures encountered by plaintiff daily in the performance of work."57 Indeed, the court pointed out that the plaintiff's disability was caused by emotional pressures produced by production line employment not shown to be unusual in any respect--"that is, not shown by him to be any different from the emotional pressures encountered by his fellow workers in similar employment."58 Characterizing the question as whether industry must bear the economic burden of such a claim, the court, after an extensive review of Michigan precedents and case law from other states, concluded that mental injuries due to gradual everyday psychological pressures should be treated no differently than physical injuries due to gradual everyday physical pressures, and therefore said "yes" to the question of compensability.
With one grand gesture, the Michigan Supreme Court thereby pushed Michigan to the absolute forefront in the awarding of mental disability benefits, opening up a wide expanse of potential claims for workplace stress, without much apparent consideration having been given to the extreme difficulties attached to trying to measure mental "injuries," as opposed to physical "injuries." The court simply established the logical and outwardly fair standard that proof of workplace contribution to an injury, even if in the sphere of the mind instead of the body, should be compensable, regardless of whether it was sudden or gradual, unusual or common. As the court viewed it, if factual workplace causation can be proven, such injury should be compensated. The nature of such proof was left to future analysis.
The culmination of this analysis of proof came with the dramatic 1978 Supreme Court decision in Deziel v. Difco Laboratories, Inc (After Remand)59, considered by many (if not most) commentators to be the single most liberal mental stress decision in American legal history. It appears that no other state has adopted the standard established in Deziel in total, with even extremely liberal states like California and Oregon stopping short of complete adoption. If one were to believe the majority of analysts reacting to this decision, especially in the first years after its release, the heavens came crashing down the day the court issued its opinion in Deziel. As will be discussed further a bit later in this report, this author does not agree with those critics who view the Deziel decision as somehow absurd or outrageous. Indeed, this author views Deziel as a very logical and sensible attempt to extend the worker's compensation tradition of compensating factually proven workplace injuries into the new area of mental stress. The problem with Deziel rests not in its theory, but in its consequences. In any event, Deziel was viewed as an aberrant legal development by most commentators, and especially by public policy makers who rushed to make statutory corrections.
The history of Deziel is actually quite long and torturous. Although this history is of great interest to lawyers, a quick summary of what preceded the 1978 decision is sufficient for the purposes of this report. Deziel was the consolidation of three separate cases, involving 1) a laboratory worker who first had glass get into her eye after she dropped a test tube and then had iodine splatter in her eye after she dropped another, allegedly causing anxiety, headaches, tiredness and nausea (Deziel v. Difco Laboratories, Inc), 2) a stamping machine operator who, after suffering a back injury and a brief time off from work, complained of continuing pain in his back and neck and an inability to move as a mental condition (Bahu v. Chrysler Corp), and most interesting of the set, 3) a sixty-five year old retired laborer who had a job requiring him to count and ship back defective parts to vendors, and who became irritated and nervous because the afternoon shift workers would take defective parts and install them in new cars, causing him to worry about the safety of the new cars (MacKenzie v. Fisher Body Division, General Motors Corp). In the last of these three cases, plaintiff's psychiatrist testified that his patient suffered from a long standing personality defect (compulsive perfectionism) and that the pressures of the job reacted with this defect to produce a mental disability.
In all three cases, the administrative appeals body of the time, known as the Appeal Board, reversed benefit awards given by the original referees. The Court of Appeals accepted review of the MacKenzie case and affirmed the Appeal Board's denial of benefits.60 The Supreme Court took up all three cases and, in a majority opinion written by Chief Justice Kavanagh61 in 1975, declared that the appropriate standard was whether employment aggravated, accelerated or combined with an internal weakness or disease to produce the disabling injury, and that a subjective standard had to be used to determine whether the injury arose out of the employment. All three cases were sent down to the Appeal Board for additional analysis. The second time around, the Appeal Board awarded benefits in Bahu, but refused to grant benefits in Deziel and MacKenzie. In the latter case (of the compulsive perfectionist), the Board determined that the disability arose from an imagined stimulus existing only in plaintiff's mind, and that the resulting disability could therefore only be attributed to plaintiff's already existing mental illness, not to his employment. These three determinations then returned to the Supreme Court for issuance of the controversial 1978 Deziel opinion which caused so much negative reaction.
Justice Moody, Jr., writing for the majority in Deziel, established the following basic standard of proof for a mental stress case:
We hold, as a matter of law, that in cases involving mental (including psychoneurotic or psychotic) injuries, once a plaintiff is found disabled and a personal injury is established, it is sufficient that a strictly subjective causal nexus be utilized by referees and the WCAB [Appeal Board] to determine compensability. Under a "strictly subjective causal nexus" standard, a claimant is entitled to compensation if it is factually established that claimant honestly perceives some personal injury incurred during the ordinary work of his employment "caused" his disability. This standard applies where the plaintiff alleges a disability resulting from either a physical or mental stimulus and honestly, even though mistakenly, believes that he is disabled due to that work-related injury and therefore cannot resume his normal employment.62
Justice Moody emphasized that the focal point of this standard was the plaintiff's own perception of reality, and he acknowledged that such a standard is readily subject to the dangers of malingering, shamming and fraud. Yet the justice reasoned that such a standard was required because any objective causal nexus standard would not suffice when examining a mental disability case, it being impossible to weigh the causal significance of any one factor. In effect, Justice Moody was saying, since the human mind and the many complexities of causation cannot be objectively measured, only a pure subjective standard makes any sense. "The only conceptually sound method for analyzing psychoses or psychoneuroses is to recognize that these illnesses constitute, by definition, subjective injuries and disabilities. As such, they only exist within the mind of their unfortunate victims."63
In a quite accurate summation of the medical understanding as to the nature of mental disabilities, the majority criticized those factfinders who think they can determine real objective factual causation in a mental case. The court explained that any attempt to do so results in a manipulation of the causal nexus in order to reach a mere ad hoc decision. The majority quite reasonably argued that all people manufacture their own concepts of reality, and that the difference between "normal" and "abnormal" persons is merely the difference between those that manufacture a reality closely resembling that of the average individual and those that manufacture a more unique view of the world. Consequently, if a person creates a reality in which the workplace produces disabling injury, then the workplace has in fact, for that particular person, produced such injury.
Citing the Carter decision, the majority ruled that Michigan precedent required using the subjective standard, and argued further that a liberal construction of Michigan's worker's compensation statute--required due to the "remedial" nature of the statute--necessitated use of the subjective standard. In the case of plaintiff MacKenzie, who became disabled because of his preexisting compulsive psychological makeup, use of this standard meant the granting of compensation, since he honestly, although perhaps mistakenly, perceived the cause of his disability to be the pressures of working with defective parts.
Justice Coleman wrote a blistering dissent, arguing that the majority's standard was "no standard at all in the reality of application. In cases where the 'disability' and 'personal injury' are established, the majority's test for causal nexus would result in an award of compensation for virtually all, if not all, claims based on mental disorders."64 The dissent suggested that all claimants would use their jobs as a convenient "hook" upon which to hang all their troubles and that the subjective standard established by the majority would thus inevitably result in employer liability for every stress situation. The dissent also suggested that neurotic personalities would be predisposed to "honestly perceive" work as the cause for their disability, making any connection to true workplace causation even more tenuous. Justice Coleman concluded that "[t]here is no doubt that the decision today will be a costly burden to Michigan employers, small and large, who compete with out-of-state business and to the consumers who absorb those costs."65
The reaction to Deziel was swift and extraordinarily negative. Newspapers such as The Detroit News warned that under the new honest perception standard, "it is no longer necessary to establish factually that a working condition or a job-related event caused or even aggravated a mental disability. If the worker testifies that he is unable to perform a task, he is judged disabled."66 University of Detroit Law Professor Lawrence Joseph wrote that the majority's standard "clearly does not conform to medical reality because it does not factor into account the necessary dimension of employment contribution to mental disabilities. Rather, it is based on an evaluative policy preference of the court. . . . By giving determinative weight to the subjective personal factor in a mental disability case, some claimants, who may not be genuinely entitled to compensation because their employment did not aggravate their susceptibility to a mental disability, may receive compensation."67 In a Detroit College of Law Review article, Derik R. Girdwood suggested the following specter:
Under the Deziel standard, if a hypothetical claimant honestly, but erroneously, believed that the company he worked for was a Communist spy base, that the female supervisors conspired to kill him, and that the male workers in his plant were slowly being replaced with alien look-alikes, then he could receive workers' compensation benefits provided he was found disabled.68
Criticism of Deziel was equally strong across the nation. For example, Dr. Eric Marcus wrote "A professor of psychiatry would be incredulous to learn that such an oversimplified understanding of human nature actually became the basis of a state supreme court decision."69 Anthony Stiegler, arguing that the Michigan test was no test at all because it results in the effective abrogation of the requirement that a claimant prove a causal link between his job and his disability, commented:
The subjective test of causation is troublesome, however, because it produces an overinclusive category of compensated claimants - both those claimants who suffer a work related disability and those who do not but are compensated anyway. Since the subjective test produces an overinclusive category of compensated claimants, employers, and ultimately consumers, unjustifiably support a large portion of the community's mentally ill. While this may be a desirable goal, it is inappropriate and unfair to use the statutory workers' compensation scheme to effect this redistribution of wealth.70
Even the Michigan Court of Appeals was critical. In Bentley v. Associated Spring Co.71, the court warned of the "alarming possibility" that Deziel would make Michigan employers the general health insurers for psychiatric disabilities. The court also cautioned that "[i]n view of the financial gain - sometimes very substantial - any person who files a claim based on a psychiatric disorder will have strong motives to lie about his perception."
In light of this highly critical commentary, the question that must be asked is whether the focus on "subjective" versus "objective" standards hits the mark. After all, all mental disabilities are exclusively subjective. A mental injury exists only in the mind, and as we have seen, such injury is completely incapable of objective qualification and quantification. The majority in Deziel were quite correct. A mental injury only exists when a claimant believes there is one, and therefore, if a person thinks that work has contributed to or caused his or her disability, in a very real sense for that particular person, it has!
As was stated earlier in this report, the reasoning in Deziel is quite logical, representing a common sense extension of the idea of factual causation from the area of physical injuries to the area of mental injuries. The theory of mental distress described in Deziel is absolutely correct. The problem with Deziel, also quite correctly noted by its numerous critics, is that the logical extension of factual causation law to mental disability cases produces a sphere of potential recipients so extraordinarily large that it threatens to turn employers into universal mental health insurers--a consideration of great importance in an age where pop psychology makes it very acceptable to complain about every disagreeable aspect and pressure in life. Practically speaking, every person made unhappy by their jobs qualifies as a potential compensation recipient. As noted earlier, every person who works and is mentally disabled will have some workplace connection between work and the mental condition. Work will always play a role, but how much of a role is impossible to determine with any degree of certainty. Practically speaking, under Deziel, every worker who becomes mentally disabled should recover benefits.
At its heart, the criticism of Deziel is thus based upon the value assessment that not all mentally distressed individuals should recover compensation benefits. These critics want something more than just the subjective meanderings of a less-than-average person. They want a firmer sense, from the standpoint of a reasonable person, that work contributed actually and significantly to the mental distress of a claimant, and that the claimant's reaction was not too weird or unusual. However, since true factual causation cannot be objectively determined in the mental setting, and because it is distinctly possible that a very normal workplace event might truly have sent a very abnormal person into a state of mental disability, what the advocates of an "objective" standard are actually arguing for is the use of values to limit the class of individuals that can recover for a stress claim. It is for this reason that such tests as sudden stimuli or unusual stress or wrongful employer acts are apparently so often suggested as better alternatives by critics of the wide-open Deziel standard.
Because of the concern about the potential opening of the floodgates for stress claims, the political pressure to take some type of action was certainly substantial. A powerful and effective Business and Industry Reform Coalition alleged that Deziel had gone to "absurd lengths in expanding the coverage of Workmen's Compensation" and that "legislative correction [was] urgently needed."72 With legislation effective January 1, 1982, such correction took place.
B. THE STATUTORY STANDARD AND THE GARDNER DECISION.
Michigan's worker's compensation statute now makes the following special provision for mental disability claims:
Mental disabilities . . . shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.73
There can be no doubt that "the purpose of the legislative amendments was to prevent the overinclusiveness of compensable mental disability benefits."74 The statutory language clearly reflects the preference for the values of mathematical probability, fault, and reference to the average person. The first value is most obviously reflected in the "significant manner" test, while the latter two values are most obviously reflected in the "actual events . . . not unfounded perceptions" test.
However, a major problem is readily evident when looking at this language: It is not very precise. It leaves extraordinary room for judicial maneuvering. It does not explicitly reject the subjective standard of Deziel. Such problems were immediately recognized by legal commentators. Professor Joseph75, for example, explained that the purpose of the "actual events" test was to be exclusionary and that the purpose of the "significant manner" contribution test was to alter the normal standard whereby a plaintiff must only prove contribution by a preponderance of medically-based probabilities. However, as he properly points out, the language used does not necessarily accomplish either purpose to any effective degree. For example, "[i]f a subjective approach is adopted, the 'unfounded' nature of a plaintiff's perception of employment events must take into account his honest subjective perceptions of the event. Under this approach, actual events of employment will be found without difficulty." Even under an objective approach, "the existence of any actual event of employment will also not be difficult to prove." Professor Joseph concludes:
[T]he new standard presents the same conceptual, technical, and policy problems inherent in the judicial interpretation of the arise-out-of requirement. Under the new provision, a trier of fact must determine the causal relation between the employment and the mental disability in an aggravate, accelerate or contribute sense. Moreover, the statutory provision does not exclude the trier of fact from considering a plaintiff's subjective perceptions in making the aggravate, accelerate or contribute determination. The primary substantive issues in the Deziel decisions have not, therefore, been resolved. Any interpretation of the new statutory language will reflect an evaluative choice for or against compensation which a trier of fact must still necessarily make when the aggravate, accelerate or contribute type of standard is applied. In addition, the evaluative choice will again shift to the appellate courts the process of determining whether the decisionmaker's findings were either factual or legal. The mental disabilities provision does not appear to have relieved the intense controversy over the appropriate causation standard in mental disability cases.
Professor Joseph's concerns proved to be prophetic. The language of the new statutory provision was so broad that the Michigan Supreme Court had little difficulty bringing the law right back into the general sphere of Deziel and the wide-open potential of the subjective causation standard. This return to the Deziel of Deziel occurred with the decision in Gardner v. Van Buren Public Schools.76
Prior to the issuance of the Gardner decision, the Michigan Court of Appeals had issued quite a number of decisions interpreting the new statutory language, and it would appear that these decisions more faithfully reflect the intent of the Michigan Legislature, as opposed to the actual language of the statute. Some of these case are quite interesting and worth reviewing.
In Iloyan v. General Motors Corp77, the plaintiff assembler, replacement operator and repairman alleged being harassed by a foreman, who asked the plaintiff to do jobs in addition to his regular work. The particular incident focused on by the plaintiff occurred on a day when the foreman allegedly came up to him every ten minutes, asking him to do more. When the plaintiff complained, the foreman accused the plaintiff of being "baby-sat." The plaintiff testified that his nerves were "stirred up." He collapsed and was screaming, incommunicative and shaking. He had difficulty working thereafter and was removed from his job. The court reversed the awarding of benefits, holding that "[a]n effort to obtain compliance with production standards is not necessarily 'harassment.' Neither is setting a production standard necessarily a basis for finding a contribution to, or aggravation or acceleration of, a mental disability in a significant manner."
In Greenwood v. Pontiac Board of Education78, the plaintiff, who held various positions from office clerk to relief bus driver, alleged that she was harassed by her supervisors who assigned her to positions she did not care for. On what turned out to be her last day of work, she received a memorandum informing her that she would have to help shovel snow. According to the plaintiff, she "went to pieces." She was subsequently diagnosed as having a "major depressive disorder, non-psychotic, single episode." The court reversed the awarding of benefits and remanded the case, carefully making the distinction that the plaintiff was not claiming disability because she talked to her supervisor and had to shovel snow, but instead because she was harassed. The court concluded that if the events alleged by the plaintiff did not constitute harassment and were merely an unfounded perception that she was being harassed, she could not recover benefits under the new statutory provision.
In Bach v. Flint Board of Education79, the plaintiff secretary with a history of emotional problems alleged that stress at work caused a disabling psychosis and neurosis. She complained of such events as the school principal speaking to her harshly, feeling uncomfortable while voluntarily participating in a random job exchange for half a day and having to tell a substitute teacher that his services were no longer needed. She became upset when a job evaluation did not show improvement. The court affirmed the denial of benefits, noting that the meaning ascribed to events by the plaintiff was not accurate. For example, there was no evidence that the plaintiff's relationship with her principal actually deteriorated. the plaintiff was not entitled to benefits by application of the "unfounded perceptions" test, as viewed by a reasonable person.
In Boyle v. Detroit Board of Education80, the plaintiff art teacher and a heavy alcohol drinker alleged that rude, noisy and disrespectful behavior by his generally poor quality students and a lack of concern or cooperation from his superiors and co-workers produced disabling emotional stresses. On his last day of employment his drawing hand trembled uncontrollably. When he returned home that evening, he drank whiskey, lost control of himself, destroyed much of his property, and apparently attempted suicide. The court affirmed the denial of benefits, noting that although actual events occurred, they were nothing more than the general stresses faced by many teachers who were not disabled by those same stresses. The court explained that the statutory language "would become meaningless if the ordinary daily conditions and minutiae of employment were sufficient to support a mental disability claim. Thus, ordinary stresses of employment (existing in probably all jobs) are not sufficient to establish the required injury. . . An idiosyncratic reaction to the ordinary stresses of employment does not create the injury necessary to sustain a claim of mental disability." The court also explicitly rejected the plaintiff's claim that the "actual events . . . not unfounded perceptions" test was designed to address only the limited number of cases where an employee is delusional or hallucinates.
In the Court of Appeals' consideration of Gardner v. Ban Buren Public Schools,81 the plaintiff custodian, an unpleasant, probably threatening person and poor employee, alleged numerous examples of harassment by fellow employees and supervisors, many of them flatly denied by those involved. The only actual events substantiated were participation in a grievance hearing requested by the plaintiff and being checked up on by his supervisors. The court reversed the awarding of benefits, finding that it could not be stated objectively that the events alleged would affect an employee in a significant manner.
The most interesting of the pre-Supreme Court Gardner decisions is Sobh v. Frederick & Herrud,82 in which the Court of Appeals explicitly declared that the new statutory standard imposes an objective standard from the standpoint of the reasonable person. This decision involved two cases, the first concerning a meat cutter who claimed that he felt nervous and pressured about the way he was to fill out a sickness and accident claim form, the second concerning a dishwasher distressed by her co-workers' lax attitudes about getting their work done. The court denied benefits on both claims, explaining that the "significant manner" test required an objective analysis in which a hypersensitive employee is not entitled to compensation where the events alleged are insignificant in the overall psychiatric scheme. This was the first case under the new statutory language explicitly resorting to the average person standard for determining compensability.
By the time the Supreme Court finally took up the opportunity to interpret Michigan's statutory language, the Court of Appeals had already established a comprehensive scheme whereby claimants were expected to demonstrate unusual stresses not experienced by the average employee, with proof either of wrongdoing by the employer (such as actual harassment) or proof that an average person would find the events allegedly causing disability to be significant. "Actual events . . . not unfounded perceptions" meant accurately perceiving the nature and consequence of events, and "significant" meant of great consequence as viewed by a reasonable person. With Gardner, the Supreme Court rejected this conservative, limited-compensability interpretation of the statute, sending the standard for entitlement dramatically back in the direction of Deziel.
With Gardner, the Supreme Court took up the Court of Appeals' decisions in Gardner, as well as Bach and Boyle, and reversed the lower court in all three cases. The majority (consisting of four of the seven justices) explicitly rejected the objective person standard, even though it acknowledged that such an interpretation of legislative intent was possible. Justice Cavanagh, writing for the majority, reinstituted the subjective standard, focusing on the impact of workplace events on the particular subjective condition of the individual.
In providing its analysis of the statutory provision, the court majority first turned to the test of "actual events . . . not unfounded perceptions," and announced that the terms "actual events" and "not unfounded perceptions" mean the same thing, as opposed viewing the later term as qualifying the former. In apparent violation of normal rules of statutory construction, which would suggest that the Legislature would not be saying the same thing twice, the court explained that if compensation were prohibited for claims based on unfounded perceptions of actual events, the provision would make no sense, since what makes a person mentally disabled by nature involves having unfounded perceptions of reality. In short, the court reasoned, such an interpretation would wipe out most mental disability claims, and the court was not about to interpret the statute in such a manner, regardless of the true intent of the Legislature. The court thus concluded, in direct contradiction to the Court of Appeals and the apparent intent of the Legislature, that the "actual events . . . not unfounded perceptions" test only rules out compensation for imagined or hallucinatory events, not actual events wrongly or inaccurately perceived. As long as the event took place, no matter how inconsequential or how misinterpreted by the claimant, the first test of the statute has been met.
In interpreting the first test of the statute in this way, the court in effect wiped out any entitlement-limiting potential it may have had (and did have in a very substantial way under the interpretation given by the Court of Appeals). The court did this despite acknowledging that one goal of the statutory change was to restrict expansive judicial interpretations of mental disability cases under the worker's compensation act.
Turning to the second test, requiring proof that workplace events contribute to a claimant's mental disability in a "significant manner," the court acknowledged that the Legislature intended to correct the perceived Deziel problem of granting benefits to claimants without requiring a "factual causal connection" between the injury and the employment. The court explained that the new "significant manner" test forces a claimant to "actually prove a significant factual causal connection between the actual events of employment and the mental disability." The court provided the following interpretative standard:
Under the statutory standard, causation is determined by the factfinder. It is not determined by the honest, even if unfounded, perceptions of the claimant. In determining whether specific events of employment contribute to, aggravate, or accelerate a mental disability in a significant manner, the factfinder must consider the totality of the occupational circumstances along with the totality of a claimant's mental health in general.
The analysis must focus on whether actual events of employment affected the mental health of the claimant in a significant manner. This analysis will, by necessity, require a comparison of nonemployment and employment factors. Once actual employment events have been shown to have occurred, the significance of those events to the particular claimant must be judged against all the circumstances to determine whether the resulting disability is compensable.83
In establishing this standard, the court took care to note that the test for compensability remains subjective, in the sense that what matters is how events affect the particular person, as opposed to how events would affect the average person. The court reminded readers that a basic tenet of worker's compensation law is that the employer must take employees as it finds them, with all their preexisting mental and physical frailties. Thus, a preexisting condition does not bar recovery, nor does the fact that an event may seem trivial. "The issue is not whether a person of 'reasonable' or 'average' health would have been injured. It is whether a specific individual, regardless of preexisting conditions, sustained an injury that arose out of, and in the course of employment."84 Thus, even the most ordinary events can be deemed injurious to a predisposed individual.
The chief dissent in Gardner found this approach violative of the Legislature's intent in establishing the statutory standard. Justice Riley interpreted the statute to require a claimant to demonstrate, "as a matter of objective reality," the occurrence of an actual and traumatic event. She went further and argued that "[w]ithout a recognizable, stressful event or at least a physical manifestation of injury occurring close in time to the alleged event, it would be virtually impossible to determine with a fair degree of certainty whether the allegations of work-related injury are actualities or misperceptions in the absence of expert testimony on the matter."85 Here, the preference for imposing the value of mathematical probability is most readily apparent.
Since the Gardner decision, the Worker's Compensation Appellate Commission has had several opportunities to apply the statute to mental disability claims. Two are worth noting. In Berry v. Michigan Department of Education, the Commission attempted to explain how a magistrate should apply the "significant" contribution test in practice:
This standard requires a careful analysis of plaintiff's mental state at the time of the actual events, with a thorough evaluation of nonoccupational factors and the role they play in plaintiff's mental condition. It also calls for an objective determination by the Magistrate as to whether the actual events alleged to have occurred were "significant" from his point of view as the factfinder. The Magistrate must be careful to distinguish between events to which a claimant, because of his or her preexisting mental condition, attributes significance (which is not compensable), and events which actually, in the view of the objective factfinder, significantly contribute to a claimant's mental disability (which is compensable).86
In Mihalik v. General Motors Corp, the Commission emphasized the need to engage in a careful weighing process of non-occupational and occupational factors in determining whether the latter are "significant." Referring to the Gardner interpretation, the Commission explained:
This interpretation of the "significant manner" test provides important guidance to the factfinder. It provides a definition of "significant" which calls for a weighing process of occupational and nonoccupational factors. It makes clear that actual events of employment are not significant merely because they are the last events to trigger a disability, or because they are the coincidental setting for the furthering of preexisting mental conditions. Under the Supreme Court standard, the factfinder must carefully weigh all of the factors contributing to a claimant's mental disability and analyze the dimensions of any work-related factors. Under this weighing process, normal workday events, including everyday stressors, normal acts of supervision, and common employment decisions usually will not have the dimensions or weight to be deemed "significant" in comparison with important nonwork-related factors.87
So where does this leave the law of stress as this report goes to press? The review of the history of stress cases in Michigan shows the judicial institution of a pure subjective standard, followed by a less than clear imposition of value constraints on compensation by the Legislature and early lower appellate decisions, followed by another judicial pull back toward, but not entirely back to, pure subjectivity. We have not returned to the completely open-ended standard of Deziel, but we are closer than the Legislature thought we would be. The only thing keeping Michigan law from such a complete return to the Deziel standard is the requirement that the workplace contribution to a mental disability be "significant." Unfortunately, it is not at all clear what the term "significant" means.
So, turning one last time to the five examples discussed early in this report, Michigan law theoretically permits recovery of benefits by all five individuals. In all five cases, there are actual events, not unfounded perceptions thereof, as that test is interpreted by the Michigan Supreme Court. The only thing that limits potential recovery by all five individuals is the statutory requirement that work must have contributed to the mental disability in a "significant manner." In practice, the likelihood of recovery by these five individuals depends on the personal value preferences of the particular magistrate.
Sam, having seen his friend plunge to his death, is very likely to recover because there was a severe, singular traumatic event likely to disturb the average individual. Mildred, the victim of harassment, is very likely to recover because the employer committed a wrong. Juanita, who experienced a threat, may well recover, but a magistrate may be concerned about her non-occupational problems. Mary, the poor government worker, is less likely to recover because the employer did nothing wrong, the stress was not unusual, and her reaction was not very normal, although strong proof that distress was directly related to the poor performance evaluation would entitle her to benefits. John, the neurotic, is least likely to recover because his interpretation of events is so far removed from that of the reasonable person and based on so much preexisting baggage.
What does this tell us about the law in Michigan? Michigan's statute, as interpreted by Gardner, leaves factfinders with an impossible job--namely, to quantify the impact of work on an individual's mental condition. As the law now stands, factfinders must engage in educated guesswork (aided by psychiatric "experts") as to the role of workplace events in a claimant's inability to perform work. Inevitably, factfinders will be forced to use the value crutches we have discussed in order to do their work. Since they have no real ability to determine "significance" from an objectively quantitative or qualitative standpoint, they have no choice but to resort to their own personal policy preferences in order to make their determinations. This is what the "significant manner" test invites, yet this is exactly what the Supreme Court wanted to avoid in Deziel and is probably not what the Legislature had in mind when it created the statutory provision. It is simply the natural less-than-desirable practical consequence of the imprecise and open-ended language provided by the political process in response to this extremely complex and difficult area of law.
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56361 Mich 577, 106 NW 2d 105 (1960).
57361 Mich at 581.
58361 Mich at 585.
59403 Mich 1, 268 NW 2d 1 (1978).
6048 Mich App 175, 210 NW 2d 357 (1973).
61394 Mich 466, 232 NW 2d 146 (1975)
62403 Mich at 26.
63403 Mich at 28.
64403 Mich at 48.
65403 Mich at 61.
66The Detroit News, July 12, 1979, sec. A, p. 18.
67Joseph, p. 1131, see footnote 24.
68Girdwood, p. 617, see footnote 4.
69Marcus, p. 429, see footnote 41.
70Stiegler, p. 661, see footnote 23.
71133 Mich App 15, 20-21, 347 NW 2d 784 (1984).
72Cited in Joseph, p. 1083, see footnote 24.
73MCL 418.301(2).
74Girdwood, p. 626, see footnote 4.
75Professor Joseph provides a thorough critique of the statutory provision at pp. 1134-1146 of his article, see footnote 24. The extended quote is from pp. 1145-1146.
76445 Mich 23, 517 NW 2d 1 (1994).
77187 Mich App 595, 601, 468 NW 2d 302 (1991).
78186 Mich App 389, 465 NW 2d 362 (1990).
79197 Mich App 247, 494 NW 2d 815 (1992).
80197 Mich App 255, 260-261, 494 NW 2d 818 (1992).
81197 Mich App 265, 494 NW 2d 845 (1992).
82189 Mich App 24, 472 NW 2d 8 (1991).
83445 Mich at 47.
84445 Mich at 48.
85445 Mich at 66-67.
861994 ACO #482.
871994 ACO #631.
This report began by stating that the goal was to enlighten readers as to the complex and difficult nature of worker's compensation stress claims. The first thing that must be recognized is that mental disability cases are not like physical disability cases. They are decidedly different because they involve purely subjective factors which cannot be objectively measured. Nevertheless, the temptation has always been to squeeze such cases into a system of law that was designed to respond to physical disability cases. As a result, there has been confusion, constant legal change, and much political dispute.
For policy makers, it is fundamentally important that they begin any deliberations on this issue by recognizing the unique and ephemeral nature of mental stress. Whatever choice they make, they must keep in mind the inescapable limitations on medicine and the ability to make findings of fact in an area as purely subjective as mental distress. The notion that our systems of medicine and law are capable of objectively determining true factual causation for mental disabilities is a fallacy. It cannot be done. All we can do is try to come close, and in so doing, there is a choice between greater compensability and lesser compensability.
If policy makers choose to compensate every instance of workplace contribution, they must realize that this will result in benefit awards in virtually every case. Except in those rare instances of actual fraud or malingering, there will inevitably be at least some workplace causation in every case where benefits are awarded, and so the desire to have linkage between the workplace and the disability will have been achieved, but at the price of compensating an extremely large and ever-increasing number of claims.
On the other hand, if policy makers are unwilling to grant benefits as readily in the case of mental stress, they must consciously choose values for limiting such claims. If they establish such limits as requiring traumatic or unusual events, or excluding instances of normal personnel decisions, or limiting recovery to instances where it is more likely that an average person would be disabled, they will certainly achieve a much greater mathematical probability that work played an important part in the shaping of the mental disability. They will also come closer to meeting the "reasonable person" standard utilized in other areas of the law.
However, if policy makers choose to impose such values, they must realize that some claimants actually injured by the workplace will be left uncompensated. The reality is that some predisposed individuals with preexisting mental complaints will in truth have been severely disabled by the most inconsequential or benign of workplace events, yet limitations imposed on when compensation will be allowed will leave such individuals without an effective remedy in the worker's compensation system. The choice is a difficult one: make employers universal insurers of mental health (with an open invitation to the unscrupulous to commit fraud), or leave some people injured by the workplace without a worker's compensation remedy. It is not for this author to suggest that either policy choice is preferable to the other, but instead merely to suggest that the choice is complex.
Policy makers should also address the question of duration. Again, medical science today suggests that for the great majority of individuals, the impact of any one event or pattern of stress will not be long lasting. Most individuals achieve a new homeostatic balance. Consequently, if most mentally distressed individuals still have disabling complaints six months after work, the diagnosis of work-relationship should usually be reassessed, since it has become much more likely that work-attribution has merely become an after-the-fact rationalization (often stimulated by the litigation process), and that other factors are the true culprits for the continuing disability. But as we have stated, the medical science of psychiatry is not a quantitative one, and theories may change as it matures. It is certainly accepted that in occasional cases, the direct consequences of traumatic events can have long-lasting maladjustment effects. If one establishes an artificial cutoff to the period of compensability, those individuals suffering this rarer condition may be left without an effective remedy. Here too, the policy choice is a difficult one.
Policy makers must keep uppermost in their minds the fact that mental distress is not objectively real. It is only subjective, and therefore can only be measured by others (including psychiatrists and judges) by observing behavior. When behavior departs from the norm established by "average," "normal" or "reasonable" individuals, we define that behavior as constituting a mental illness, and that mental illness may manifest itself in an inability to function in the workplace, thereby forming the basis of a mental disability. When, how, and for how long such unique disabilities should be compensated within the confines of the worker's compensation system remains one of the most acute and difficult legal policy questions of our time.
The author would like to acknowledge the invaluable assistance provided by Phillip Hendges in the preparation of this report. His research and insights were most helpful its development. The author would also like to thank his colleague, Joy Witte, for her editorial comments.
Jürgen Skoppek is Chairperson of the Michigan Worker's Compensation Appellate Commission, the seven-member body which reviews worker's compensation appeals. Prior to being appointed to the Commission by Governor John Engler in 1991, Mr. Skoppek was a Senior Policy Analyst with the Mackinac Center for Public Policy and the author or two Mackinac Center reports: Employment-At-Will in Michigan: A Case for Retaining the Doctrine and Litigation and the Market: Restoring the Balance Between Individual and Employer Rights. Mr. Skoppek served as counsel to the Michigan Senate, providing legal and policy advice on labor, insurance, health and constitutional issues. Mr. Skoppek has also practiced labor and litigation law with the firm of Miller, Johnson, Snell & Cumiskey in Grand Rapids, Michigan. He is a graduate of Calvin College and Harvard Law School.
