Growth in stress claims no sweat yet, data show; data reveal that mental injury claims remain an insignificant proportion of all workers' comp claims. The National Council states they accounted for only 0.15 percent of all claims in 2002

Risk & Insurance,  August, 2003  by Joseph F. Mangan

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Earlier this year, the Wyoming Supreme Court awarded workers' compensation benefits to an employee for medical expenses and disability caused by his attempt to take his own life. The employee had suffered a back injury while at work, and everybody involved agreed that his injury was compensable. The employer not only made no objection to payment of medical and indemnity benefits, but also agreed that they were proper. What happened next, however, disrupted the harmony enveloping this claim about as completely as anything could.

As is often the case with back injuries, the employee was in pain and unable to return to work. He fell into depression. He attempted suicide. At hearings before the Wyoming Workers' Safety and Compensation Division, psychologists supported the employee's contention, but the division ruled that the injuries were not compensable. An appellate court upheld the commission's finding. The state Supreme Court reversed the ruling. The employer had to pick up the costs for a self-inflicted gunshot wound.

Old News

To many risk managers, the outcome of this litigation flies in the face of everything they have learned about workers' comp and what the legislatures have done to address such claims. Risk managers do not perceive a suicide attempt as either arising out of or occurring during the course of employment, the two requirements that define a compensable injury. Learning that the Wyoming Supreme Court's decision is not a new and startling expansion of workers' comp law comes as a surprise to many risk management professionals.

Awards of workers' comp benefits for suicide or attempted suicide are not new in the United States. Kenneth Brownlee, an Atlanta consultant with a career in workers' comp claims and author of Casualty Insurance Claims, 4th Ed. (the West Group), cites a 1983 Arizona Supreme Court decision that awarded workers' comp benefits to the surviving widow of a plant manager who committed suicide. Although the manager had suffered a work-related heart attack, the award of survivor's benefits in this case did not rely on any prior physical injury. The court accepted the premise that the extraordinary pressure of the manager's job created enough stress to drive him to suicide.

A Different Kind of Injury

At the root of these claims is a different kind of injury, one that is not physical but psychological. You will hear it described as a psychological, psychiatric, mental or psychic injury.

Workers' comp boards and industrial commissions around the country have recognized three types of nonphysical injuries that may arise out of and occur during the course of employment: physical/ mental, mental/physical and mental/mental injuries.

A physical/mental injury is a psychological or psychiatric condition that has its roots in a physical injury. The depression that the Wyoming Supreme Court found compensable fits the definition of a physical/mental injury.

A mental/physical injury is a physical injury caused by a psychological or psychiatric condition that arises out of and occurs during the course of employment. Ulcers and heart attacks caused by stress on the job are the classic examples of mental/physical injury, but there are others. The only way a court can bring the injuries sustained in a suicide attempt within the scope of the workers' comp system is by classifying them as mental/ physical injuries.

A mental/mental injury is a psychological or psychiatric ailment that has no physical cause. A worker who complains of the inability to enter the workplace or perform a task after seeing a colleague seriously injured or killed at the same work site or performing the same task is claiming a mental/mental injury. Not all states recognize mental/mental injuries as compensable, and others impose special requirements for diagnosing them and establishing the relationship between employment and the injury.

The claim that the Wyoming Supreme Court addressed does not fit neatly into any one of these classifications, but it does nonetheless fit. The injury for which the court awarded benefits is clearly a mental/physical injury, but the proximate cause remains a physical injury that arose out of and occurred during the course of employment. You can classify the outcome as a physical/mental/mental/physical injury.

Mental injuries are not new on the workers' comp scene. As Brownlee pointed out, they have been around for a long time. It is hard to imagine that anyone familiar with workers' comp law would be shocked to leam that benefits are routinely awarded for heart attacks brought on by stress in the workplace. Risk management professionals readily accept that as a compensable injury, but balk at paying benefits for suicide and attempted suicide. The fact that both are mental/physical injuries gets lost in the painful discussion of self-inflicted injury.

Dire Predictions Unfounded

About the time of the 1983 Arizona Supreme Court ruling allowing benefits for suicide, employers and their workers' comp insurers had to deal with workers' comp boards, industrial commissions and courts that ordered payment of benefits to employees complaining of mental illnesses that they attributed to occupational causes. Although work-related psychiatric conditions have always represented a very small share of workers' comp claims, they became prominent enough that by the late 1980s respected analysts predicted that they would become the occupational disease of the 1990s. Some even foresaw catastrophic claims comparable to those that asbestos has brought to general liability insurers. Those predictions, fortunately, have not come to pass, but awards of workers' comp benefits for nonphysical conditions persist.