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Compensation for work-related stress is hard to get.
By Rebecca A. Clay
''Horrendous' is how Steven B. Bisbing, PsyD, JD, described the state of stress-related workers' compensation during a presentation at the 'Work, stress and health' conference (see related stories). 'Mental health claims are proliferating out of control,' said Bisbing, a Takoma Park, Md., psychologist who often serves as an expert witness in workers' compensation cases. Bisbing said that's bad news not only for employers but also for claimants. Take, for example, a worker who has suffered a serious fall on the job and becomes severely depressed as a result of chronic pain. 'Cases like this are clearly established as compensable in all jurisdictions,' explained Bisbing. But, he added, the enormous backlog of cases in some jurisdictions can mean big delays in adjudication and compensation, even for individuals with clear-cut cases like this one.
Overwhelmed courtrooms are just one of the problems. Geography and gender can play a critical role in what is considered compensable, speakers at the session said. Part of the problem lies in the hard-to-prove nature of mental health claims. 'Physical-mental' cases in which a physical trauma causes a mental problem and 'mental-physical' cases in which a mental trauma causes a physical problem can be relatively straightforward.
Far more problematic, said Bisbing, are 'mental-mental' cases in which a mental trauma like stress causes a mental problem like depression.
Spurious claims?Suspicions about fraud have made some employers reluctant to recognize mental health claims, Bisbing said. 'It's not unusual for fabricated or exaggerated claims to occur,' he said.
Another reason behind employers' resistance has been the less stringent standards that prevailed until recently. California, for instance, used to award compensation to workers whose stress was only 10 percent job-related. An employer could be stuck with the bill for an employee whose stress was primarily caused by a family problem, as long as the employee could prove at least a tenth of the stress was caused by a work situation.
Donald Elisburg, a Potomac, Md., lawyer, said the situation is a lot different today. 'What you see is the very well-organized, well-heeled insurance industry trying to limit or exclude stress claims from the system,' he said.
Today geography can dictate the fate of a person with a mental health complaint. Arkansas, for example, now compensates workers for workplace stress only if it results from a violent crime. Oklahoma and West Virginia have struck mental-mental problems altogether from their lists of compensable conditions.
'We don't have one workplace disability system in the United States,' explained Elisburg. 'We have 57 of them. Each state, each territory, and even the U.S. government has its own system.' Even in states that still compensate workers for mental-mental problems, the legal language can be ambiguous. Case law is not yet well-established and awards tend to be hard-won.
'In my experience, employers tend to fight in these cases and require full-blown assessment as part of litigation,'said Bisbing. Evidentiary standards are now much stricter, he said, and much more attention is given to medical testimony by psychologists, physicians and other health experts.
To win an award, claimants must convince examiners that they clearly have a cognizable psychological injury or mental stress; that the injury or stress is work-related; and that it prevents them from working in any job, even if the employer makes reasonable accommodations.
Gender biasOther factors can also play a role in determining who receives workers' compensation. For Katherine Lippel, an attorney and professor of law at the University of Quebec at Montreal, one of the key variables is gender bias. Quebec law requires stress to be out of the ordinary to be compensable under workers' compensation; Lippel's research indicates that assumptions about the nature of men's and women's jobs make it difficult for cases to be evaluated fairly.
Lippel examined appeal-level cases between 1986 and 1994. She found that women had to work much harder than men to make it through the appeal process. At the intermediate level, men won 55 percent of cases involving chronic stress, while women won only 23 percent.
For men, having a vacation rescheduled without prior notice, being forced to produce an important report without a secretary's help, and being rejected by colleagues were all deemed sufficiently stressful to merit compensation.
'I don't want to give the impression that these men shouldn't have won,' said Lippel. 'But when you look at what is deemed normal and usual for women, you see that something's fishy.'
Sexual harassment, intense surveillance by supervisors, and inadequate training were all judged to be normal parts of women's jobs and therefore not compensable.
'The unusual-stress rule works against women because women's work is seen as banal,' said Lippel, noting that epidemiological data abound for male-dominated occupations like police work, but are rare for female-dominated occupations like retail.
When women do take on jobs normally held by men, their cases are often denied because women are seen as not tough enough--even in cases where men would be compensated, added Lippel. She noted that a male prison guard who discovers a hanged body, for instance, typically wins compensation on the first appeal; a female guard is told that it's normal for people to hang themselves in prison and may win her case only on the final appeal.
Research like Lippel's will become increasingly important as workplace stress reaches epidemic proportions, said Elisburg.
'There's a growing recognition that stress on the job is an enormous issue worldwide,' he added. 'At the same time, mental problems are being written right out of the system. It's a lose-lose proposition.'
Rebecca A. Clay is a freelance writer in Washington, D.C.
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