Psychiatric Workers’ Compensation Disability Claims in a Pandemic Environment
There are scores of workers on the front lines fighting the consequences of the COVID-19 pandemic – doctors, nurses, EMTs, paramedics, police officers, firefighters, correctional officers, grocery store cashiers, truck drivers, food delivery workers, and those deemed to be “essential workers,” just to name a few. While many of these workers are accustomed to and trained for emergency situations, the current worldwide health crisis is unprecedented in nature and scope. Brick and mortar hospitals are at capacity in many geographic areas, field hospitals are being constructed, protective equipment is in short supply, and the number of people diagnosed with, and who have died of the highly contagious COVID-19 virus are growing. Little is known about the COVID-19 virus – our knowledge about how it is transmitted, treatment options, and prevention is evolving – but much remains unknown. The media has barraged us with around-the-clock news of the human loss and the economic consequences of the pandemic.
Stress, in general, is high. And, due to current circumstances, some workers are now being subjected to greater stress than ever before. Thus, we suspect there may soon be a surge in psychiatric workers’ compensation claims – based on anxiety disorders, depression, post-traumatic stress disorder (“PTSD”), and other psychiatric sequelae.
The Michigan Workers’ Disability Compensation Act provides the basic legal framework for determining compensability of psychiatric conditions:
Mental disabilities and conditions of the aging process, including, but not limited to, heart and cardiovascular conditions and degenerative arthritis, are compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disability shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof, and if the employee’s perception of the actual events is reasonably grounded in fact or reality. See MCL 418.301(2); MCL 418.401(2)(b).
The Michigan Supreme Court has provided us with some guidance regarding these requirements:
To satisfy the mental disability requirements under the second sentence of Section 301(2), a claimant must demonstrate: (a) that there has been an actual employment event leading to his mental disability, that is, that the event in question occurred in connection with the employment and actually took place; and (b) that the claimant’s perception or apprehension of the actual employment event was not unfounded, that is, that such perception or apprehension was also grounded in fact or reality, not in the delusion or the imagination of an impaired mind. In analyzing whether a claimant’s perception of the actual events of employment had a basis in fact or reality, a factfinder must apply an objective review, that is, examine all the facts and circumstances surrounding the actual employment events in order to determine if the claimant’s perception of the actual events was reasonably grounded in fact or reality. See Robertson v DaimlerChrysler Corp., 465 Mich 732 (2002), remanded on other grounds, 482 Mich 997 (2008).
The Robertson court did not completely rule-out all subjective considerations though – instead, the court noted that a relatively innocuous event could potentially give rise to liability if the worker correctly, or at least reasonably, perceived it. The court further held that while the claimant’s perceptions of work events were to be objectively evaluated, his or her reaction to those events was still to be examined subjectively. See Robertson at 754.
When evaluating compensability of psychiatric claims, it will be important to be mindful of the fact that a claimant’s perception of an actual event may actually be a factually inaccurate perception – but nevertheless, a reasonable perception (meaning one that is grounded in fact or reality). Thus, the simple fact that an employee misperceives an actual event will not, as a standalone, extinguish the claimant’s entitlement to compensation. Howard v DaimlerChrysler Corp., 2003 ACO 115.
Accordingly, the process for determining compensability will necessitate the following step-by-step analysis:
- Were there actual events in the employment – if not, the worker’s claim should be denied. However, even a seemingly innocuous event may satisfy this requirement.
- If there are actual events in an employment, the claimant’s perception of those events must not be “unfounded.” This does not mean that the perceptions must be completely accurate – or even accurate at all – so long as the perceptions are reasonably grounded in fact or reality as objectively evaluated. If a reasonable person could have similarly perceived the actual events in employment, the claimant’s perception is not unfounded.
- The claimant’s personal reaction to his reasonable perception of actual events will be judged on a subjective basis. This is the point where one must consider the subjective effect on this claimant, “as he was hired,” with all of his preexisting personal attributes, strengths, and frailties.
- The contribution of the work event to the claimant’s psychological condition must be significant when compared to other avocational (meaning non-work-related) factors in the worker’s life. These avocational factors could include the economic consequences of the pandemic, the stress of the constant news cycle, illness or death of family and friends, and other non-work-related stressors.
These are the types of scenarios that we think may land on your claims desk in the near future:
- A police officer stops a vehicle to determine whether the occupants are in violation of the Governor’s Shelter in Place Order. When the driver stops the car and opens the car window, he accidentally coughs into the police officer’s face. The police officer notes that the driver has a “flushed” appearance, and is sweating. The driver advises the officer that he was tested for COVID-19 three days prior and is awaiting the test results. The officer, who has preexisting, but manageable, asthma and anxiety is so concerned about his heath, he develops PTSD during the ten day period between the vehicle stop and the return of the driver’s test results (which turn out to be negative). The police officer’s own test results come back negative, as well. Is his continuing PTSD compensable?
- A teacher is required to teach her students remotely via Zoom during the recent government-mandated school closure. While conducting a Zoom teaching session, the teacher observes a student’s father severely beat the student’s sibling in the background. The teacher develops a disabling anxiety disorder and is no longer able to teach remotely or otherwise. Is the teacher’s anxiety disorder compensable?
- A pizza delivery employee each day encounters several delivery customers who are elderly and appear ill when they come to their door – which concerns the employee greatly. The stress of this accumulates to the point that the delivery man develops a psychological disorder for which his treating doctor removes him from that job. Is his psychological disorder compensable?
- A nurse who has an adequate supply of appropriate N95 masks, face shields, and other PPE nevertheless becomes so stressed from the long hours she is working with gravely ill COVID-19 patients that she has a “nervous breakdown.” Is her psychiatric disorder compensable?
- An employee who is able to work remotely travels to her workplace to retrieve her laptop computer from the IT department in the lower level of her office building. She subsequently learns that one of her co-workers had traveled to the office earlier that same day to retrieve his laptop computer from the IT department. She also learns that that employee subsequently tested positive for COVID-19. She becomes so distraught over the possibility that she has been exposed to and will acquire the COVID-19 virus that she develops an anxiety disorder that is disabling. Is her condition compensable?
These are just a few examples of the types of complex claim scenarios you may soon face. We believe claims examiners should consider utilizing the step-by-step analysis, delineated above, when assessing compensability. If you have any questions at all, please let us know.
Otherwise, over twenty states have enacted, or are considering, workers’ compensation legislation that relaxes the typical burden of proof for “first responders” who claim work-related post-traumatic stress disorder. Generally speaking, these new laws create a “rebuttable presumption” that a first responder’s diagnosed post-traumatic stress disorder (PTSD) arose out of and in the course of employment. Michigan has not yet enacted such legislation. However, as we discussed in a previous article, there is such a Bill sitting at the committee level in Michigan’s House of Representatives (House Bill No. 4473).
The typical legislation – and Michigan’s proposed iteration of such a Bill – provides that after such a presumption is triggered, the burden essentially shifts to the employer to rebut the presumption. Most often these laws require the employer to produce “scientific evidence” showing that the employee experienced a psychiatric stressor unrelated to work, and that stressor was a “significant factor” in the cause of the employee’s PTSD.
Most states’ legislation of this sort protects a class of “first responders” as set-forth within each respective piece of legislation. Typically, these laws’ delineated classes of “first responders” include employees such as police officers, firefighters, doctors, nurses, and other health care workers. Each state has defined the class of “first responders” differently. Again, Michigan has not enacted such legislation. You will recall that the Director of the Agency, and the Governor, in tandem, promulgated Emergency Rules providing for a similar rebuttable presumption for “first response employees” who test positive or are diagnosed by a physician with COVID-19.
As we anticipate the possibility of a surge in psychiatric claims, we wanted to provide you with a framework for determining compensability. Every factual scenario will be unique. Please do not hesitate to call a member of our practice group with your questions, or to discuss your compensability issues – we are here to help: