Don’t led stress claims broadside you

Don’t led stress claims broadside you – occupational stress claims in workmen’s compensation cases

Donald DeCarlo

Don’t let stress claims broadside you

They’re the fastest growing category of worker’s compensation cases. Learn why and how to protect your company.

What began as a trickle of job-stress claims in the late 1970s has swelled into a flood in the past few years. Across the country, employees are winning huge awards for a bewildering array of work-linked ailments, from depression and nervous breakdowns to migraines and anxiety.

The numbers are staggering. Stress now accounts for 15 percent of all occupational disease claims, up from less than 5 percent just nine years ago. In California, stress claims increased 430 percent from 1980 to 1986.

The trend is costing business plenty, drawing average payments of $15,000. Awards have gone as high as $28,000.

The situation is bound to get worse. Employers have a difficult time ahead. You’re up against an economy in which more and more jobs are mental rather than manual. The marketplace is undergoing gut-wrenching restructurings through mergers and acquisitions. At the same time, our legal system is growing more sympathetic toward mental injury cases.

The momentum is building so quickly that it’s nearly impossible for employers, legislators, and judges to put on the brakes. Let’s take a look at why sudden acceleration in litigation has occurred and what you can do to protect your company.

Why the upsurge?

A decade ago few workers, if any, won damages for mental maladies. But during the past few years, the courts have steadily broadened the legal definition of stress. At the same time, judges nationwide have increasingly recognized mental injury as a legitimate claim.

In more and more tort cases, people are receiving damages for stress-related pain and suffering –even in cases that would have been thrown out of the courts a few years ago. A Hawaii family, for example, recently won compensation for the distress they suffered when they witnessed the killing of their dog. Stress-related workers’ compensation is following the trend.

All but 14 states now allow workers to file claims for job-related emotional problems. Most of the courtroom activity has focused on the three types of stress claims: * Physical-mental–an emotional reaction to a physical injury; * Mental-physical–mental stress that causes physical injury; * Mental-mental–emotional disability without physical injury.

Among all the cases, the courts are finding it most difficult to rule on mental-mental claims, the fastest growing category of claims.

These cases often are based on subjective and contradictory medical evidence. Most decisions swing on the testimony of psychiatrists who identify the source of stress and determine the extent of the disability.

A big problem: Many psychiatrists seem reluctant to label an apparently healthy person as a malingerer. Most people who file claims have legitimate cause, but there are exceptions.

Proving that a job didn’t cause a stress-related problem can be difficult. To successfully contest a claim, employers often have to scrape together evidence from a claimant’s personal life, investigating such details as health habits and family life.

A Pennsylvania insurance agent claimed that job pressures made him anxious and stressed-out. The claim was thrown out when the court saw a more likely source of stress–the fact that the claimant was stealing from the company.

State actions

A number of states are trying to put constraints on stress claims. Six states award damages only if the stress results from a sudden, shocking event. Fourteen others say the cause of stress must be unusual–above and beyond what occurs in everyday life or employment. Seven states will rule against claims if the stress doesn’t result in physical injury.

The president of a Globe Machine subsidiary says the pressure of managing a bankrupt company caused his alcoholism. An Oregon court, citing the unusual nature of his stress, ordered his company to pay compensation.

A Florida switchboard operator, after being robbed at work by a gunman, became depressed. The court upheld the claim, noting that a sudden event caused the stress.

Although some states are clamping down on claims, it appears that employers are losing some of their longstanding rights, especially the right to fire employees. Fearful of inciting emotional distress, some employers now are hesitant to discipline, much less fire, employees.

The debate about employers’ right to fire-at-will points out the major problem of workers’ compensation: It was established to compensate workers for job-related injuries, not to address mental disabilities resulting from employers’ personnel actions.

Don’t despair, yet. There are at least three strategies available to you. You can better defend yourself against fradulent claims. You can teach your employees how to cope with high-pressure situations. And you can make your workplace less stressful. Here’s how.

How to fight fraud

Fradulent stress claims are difficult to prove. It’s much easier to see the evidence of a physical injury: an employee broke a leg falling off a ladder at work or he didn’t. But you can shore up your defense against a stress claim once it’s filed: * Make sure that a claimant’s mental malady is not a pre-existing condition. Look at medical records, if possible. Review benefit records to see if the claimant had previously filed a claim for the same ailment. A pre-existing condition would require a higher degree of proof to link the cause of disability to the workplace. * Try to get some information about the claimant’s background. In one case, it was argued that an accident caused a person’s marriage to break up. But the divorce papers were filed before the accident happened. * Ask co-workers about the incident that supposedly caused the problem. They can be a valuable source of information. * Find out how many times a claimant saw a psychiatrist. A brief visit can’t provide the information needed for a claim.

Since virtually all stress claims are litigated, it’s essential that employers protect themselves. In taking these and other defensive steps, you must be careful you don’t invade someone’s privacy–and overstep the law, too. If you seem too distrustful, it may cost you the loyalty of other employees who may resent what they see as unreasonable behavior.

How to prevent claims

A better tactic is to prevent claims in the first place. The key is to teach employees how to better handle job pressures and to reduce the level of workplace stress.

A number of companies are offering stress-management programs to help stressed-out employees learn how to unwind. The American Institute of Stress, Yonkers, N.Y., estimates that more than 500 companies have such programs, up from about 100 five years ago.

Stress-management programs are as different as the companies that offer them. They range from classes on meditation and relaxation techniques to lessons on how to work with people and to cope with high-pressure situations. Some are part of more comprehensive wellness plans. Others take place during lunchtime seminars.

Whatever the approach, the programs are working. It appears that employers who provide such programs are developing a more resilient, productive–and possibly less litigious–workforce.

Helping employees cope

But stress-management programs can’t succeed on a long-term basis if employees feel they’re trapped in a pressure cooker. Impossible deadlines, limited resources, hard-driving bosses, unclear job roles–all can make people feel stressed-out.

Often the problem is a poor fit between a person’s skills and job requirements. When people feel overwhelmed by work and unable to manage, they’re likely to feel anxious and in turn, to file more stress claims. * According to the Workers’ Compensation Research Institute, 20 percent of stress claims are made by workers in their jobs less than four months. * Forty-three percent come from people who have held their jobs less than one year. * The average age of stress claimants is 38.3 years, in contrast to an average age of 45.1 years for other occupational disease claimants. This may indicate that younger workers are more unhappy with their jobs, more susceptible to stress, and more willing to seek compensation.

Employers need to spend more time upfront talking with employees to make sure their skills match job requirements. You may need to take another look at your hiring, promotion, and job assignment practices.

Still other ways to make your workplace less stressful include opening up lines of communication, increasing chances to participate in decisions, and clarifying job roles.

Most important, ask your employees how much stress they feel at work and what needs to be done to alleviate it. Their answers may be startling. But they will give you an idea of where the problems are and how to begin to turn back the flood of stress claims.

Donald DeCarlo is senior vice president and general counsel of Commercial Insurance Resources, Inc. in New York City.

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