In discussing the subject of mental illness as it relates to workers' compensation, I find the following thought experiment to be very fruitful. Imagine that you are assigned the following task. Though you have no debilitating physical injury or illness, you must do the following:
1) Leave your job, live with the uncertainty of whether you will ever go back, and stop associating with co-workers.
2) Have your income cut by 30-50%.
3) Drop your health insurance.
4) Arrange to have your paycheck sent to you by mail, irregularly.
5) Stop your hobbies.
6) Take narcotic medications.
7) Limit your time outside. On those occasions when you will be outside, someone will be following you.
8) Or maybe not. Not today.
9) Wait . . . or are they?
10)Deal with the loss of not just your job, but your career.
11)Drown your sorrows in a cocktail of Lone Star, Jerry Springer, and insurance carrier corporate “hold” muzak.
Few among us can begin such a regimen and escape without being caught in the throes of misery. Mental trauma is so pervasive within the workers' compensation system as to appear built in as a feature.
In this climate, defining what is covered, and not merely incidental, is critical.
- COMPENSABILITY ISSUES IN MENTAL TRAUMA
(A) History of Mental Trauma in Texas Workers' Compensation
Mental trauma injuries trace back quite far in the Texas workers' compensation system, though they then had no real footing in the statutory text itself (and in large measure, still do not, at least in a positive-- what is covered-- rather than a negative-- what is not-- sense).
The Texas Supreme Court wrote:
The phrase 'physical structure of the body', as it is used in the statute, must refer to the entire body, not simply to the skeletal structure or to the circulatory system or to the digestive system. It refers to the whole, to the complex of perfectly integrated and interdependent bones, tissues and organs which function together by means of electrical, chemical and mechanical processes in a living, breathing, functioning individual. To determine what is meant by 'physical structure of the body', the structure should be considered that of a living person-not as a static, inanimate thing.[1]
The court in that case found compensable a diagnosis of “psychic trauma” as falling within the statutory definition of injury, broadly defining what “damage or harm to the physical structure of the body” entails.
By the time of the 1989 Act, a body of case law had developed that restricted mental trauma claims to certain circumstances, and the 1989 Act codified that understanding by reference:
It is the express intent of the legislature that nothing in this subtitle shall be construed to limit or expand recovery in cases of mental trauma injuries.[2]
The question then arises what parameters then hadbeen set on mental trauma recovery. The basic requirements are that the mental trauma injury must be traceable to a definite time, place and cause. It cannot be a repetitive mental trauma (it is the only legal cause of action that readily comes to mind where “I did that to her repeatedly”is recognized as a defense).[3]
Additionally, the law has now by statute required that the action not result from a legitimate personnel action:
A mental or emotional injury that arises principally from a legitimate personnel action, including a transfer, promotion, demotion, or termination, is not a compensable injury under this subtitle.[4]
Legitimate personnel action does not refer to whether or not the action, under the facts of the case, was justified or not. In other words, it is not an issue of whether the basis for the personnel action was true or false. The issue is whether it falls in the scope of what personnel action would ordinarily involve. The Appeals Panel has looked to whether the personnel action (typically, a termination) was contrary to law or illegitimate.[5] This is usually viewed in the sense of grossly illegal or abnormal.
For example, in affirming a finding against a claimant, the Appeals Panel nonetheless discussed that the claim was not legally deficient, but that the hearing officer was factually well-founded in ruling against the claimant when there was evidence in the record that the claimant was not, as she alleged, slapped, berated, or yelled at in the course of termination, and was afforded an opportunity to rebut the recommendation that she be terminated.[6]
On the same point, the Appeals Panel rejected the claimant's alleged mental trauma following a personnel meeting in which she was threatened with a criminal charge by her employer, but on the basis of the lack of specificity in her medical causation letter, not reaching the legitimacy of the personnel action involved.[7] Similarly, a severe reprimand can be legitimate.[8] However, the Appeals Panel has focused on the employer's standards in some cases, holding that violation of those standards (it apparently does not pay to have high standards for your supervisors) removed the legitimacy of the action, resulting in a compensable mental trauma.[9]
The Appeals Panel has held that a factually wrongful termination (i.e. retaliatory, or otherwise legally prohibited) can nonetheless be a legitimate personnel action.[10] However, the Appeals Panel has noted that it can be an illegitimate personnel action when it is contrary to law or employer policies.[11] An action by a police officer arising out of the trauma of a press conference by the employer announcing an investigation into claimant's activities failed due to lack of proof that this was contrary to law or the employer's policies.[12]
A reprimand, whether or not deserved, can ordinarily be a legitimate personnel action.[13]Evaluations, demotions, and pay adjustments can also qualify.[14] The Appeals Panel has deferred to outside agencies in determination of whether the personnel action was legitimate, such as where a teacher's reported grades were changed by the principal.[15]
A graphic threat by a mentally disturbed student was held to be a valid cause of a mental trauma injury and thus compensable.[16]
Instruction to deliver an illegal drug as part of a police narcotics sting was a legitimate personnel action (for a courier), despite its result in mental trauma and thus the trauma was not compensable.[17]
For claimants, the focus must therefore be on (1) tracing the mental trauma to a discrete event in time (2) eliminating any inference that this is from a pattern of actions (3) defining the trauma as either arising from a third party or an employer violation of law or company policy (4) connecting the dots through expert medical evidence, not generally that the mental trauma is work-related, but specific to the event in question.
[1] Bailey vs. American General Ins. Co., 279 S.W.2d 315, 318 (Tex. 1955).
[2] Tex. Lab. Code Sec. 408.006(a).
[3] Transportation Insurance Company v. Maksyn, 580 S.W.2d 334 (Tex. 1979)
[4] Tex. Lab. Code Sec. 408.006(b).
[5] Appeals Panel Decision No. 950168
.
[6] Appeals Panel Decision No. 980583r.
[7] Appeals Panel Decision No. 060176
r.
[8] Appeals Panel Decision No. 960026.
[9] Appeals Panel Decision No. 92189.
[10]Appeals Panel Decision No. 93867.
[11]Appeals Panel Decision No. 93844.
[12]Appeals Panel Decision No. 93137.
[13]Appeals Panel Decision No. 93364.
[14]Appeals Panel Decision No. 93747.
[15]Appeals Panel Decision No. 951073.
[16]Appeals Panel Decision No. 950788.
[17]Appeals Panel Decision No. 951777.
[18]See e.g. Krueger vs. Atascosa County, 04-04-00242-CV (Tex.App.--San Antonio 2004, no pet.) (dispatcher who sent officers to an ambush and heard them killed over radio, but remained at work afterwards, denied compensation for failure to file within one year).
[19]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[20]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[21]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[22]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[23]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[24]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 126.
[25]Appeals Panel Decision No. 010321.
[26]Appeals Panel Decision No. 012398.
[27]GTE Southwest Inc. vs. Bruce, 98-0028 (Tex. 1999).
[28]Baker vs. Cook Children's Physician Network, 2-07-174-CV (Tex. App.--Fort Worth 2012).
[29]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. x.
[30]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xviii.
[31]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xi.
[32]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xiv.
[33]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xviii.
[34]F.A. Hayek, The Counter-Revolution of Science: Studies on the Abuse of Reason (1980).
[35]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xiii.
[36]Vesecky vs. Vesecky, 94-0856 (Tex. 1996).
[37]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), p.300.
[38]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), p. 301-302.
[39]Appeals Panel Decision Manual, https://www.tdi.state.tx.us/wc/idr/apdmincome.html#I07.
[40]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), p. 295.
[41]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), p. 295.
[42]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), pp.295-296.
[43]Tex. Lab. Code Sec. 408.161(a)(6).
[44]National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950, (Tex. App.—Texarkana 1998, no pet.)
[45]National Union Fire Insurance Company vs. Burnett, 06-97-00089-CV (Tex.App.--Texarkana 1998), no pet.
[46]Appeals Panel Decision No. 002946.
[47]Tex. Occ. Code. Sec. 503.003(b)(4)(c).
[48]Tex. Occ. Code Sec. 503.003(b)(1).
[49]Texas Board of Chiropractic Examiners, et al vs. Texas Medical Association, et al, 03-10-00673-CV (Tex.App.--Austin 2012).
[50]Tex. Occ. Code Sec. 501.003(c)(2).
[51]Appeals Panel Decision No. 030966.
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