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Written by Tracey Jones
Workers’ compensation claims based on alleged psychological and mental impairments, including anxiety disorders, depression, and/or post-traumatic stress disorder (PTSD), are becoming increasingly prevalent, and understanding the differences between them is key in being able to adequately defend against them.
Psychological Claims Resulting From Physical Injury
When psychological claims are being asserted as the direct result of a physical injury, the psychological component of the claim can be hard to defend against.
Typically, Courts will find physical injuries that result in chronic pain with associated depression and anxiety to be compensable without strong expert testimony refuting the mental component of the claim.Powell v. O’Reilly Auto Parts, Inc., 259 N.C. App. 251, 812 S.E.2d 408 (2018) (Unpublished). InPowell, the Full Commission determined that plaintiff’s pre-existing psychological conditions were compensable aggravations from her fall because even though she didn’t tell anyone about it before her accident, she was still credible, and the treating doctors’ testimony was sufficiently specific, and therefore competent, on causation.
When trying to combat a psychological component of a physical injury claim, there are three best practices to keep in mind:
1. It is imperative to hire an expert to perform an evaluation of plaintiff. This expert should use diagnostic neuropsychological testing to support his or her opinions about the lack of causation between plaintiff’s mental disabilities and his or her physical injuries.
2. Surveillance can be a very useful tool when trying to defend against these types of claims. Multiple days of surveillance will probably be necessary in order to combat the assertion that on “the day in question” plaintiff was having a “good day.”Kirby v. Mission Hospital, 848 S.E.2d 754, 2020 WL 6140500 (2020) (Unpublished).
3. Finally, even though the psychological component usually arises later and does not present itself immediately after the injury by accident, we strongly encourage carriers to include questions in the recorded statement regarding the name of the plaintiff’s primary care physician as well as whether the plaintiff has previously suffered from a mental illness and received treatment for the same, including anxiety and depression. Primary care physician records can offer a wealth of knowledge about past problems and treatment that sometimes get overlooked or simply forgotten by a plaintiff.
Psychological claims resulting from physical injury are typically the most difficult to defend in North Carolina, and are found compensable more often than psychological claims where there is no physical injury present. Good investigative practices at the outset of a physical injury claim are critical to the defense of psychological assertions down the road. A mental health expert and other investigative means should be utilized strategically to ensure the best possible chance of prevailing.
Non-Physical Injury By Accident Psychological Claims
Over the last several years, the increase in non-physical psychological workers’ compensation claims matches an overall increase in anxiety and depression in members of the general public. Nevertheless, true psychological claims, without a precipitating physical component, are much harder for a plaintiff to prove. The North Carolina Workers’ Compensation Act allows for recovery of psychological and mental disorders which are proven to be an “occupational disease” or the result of a compensable “injury by accident.” There are two ways to prove that a “mental claim” is compensable under the Workers’ Compensation Act:
1. Claiming that a discrete stressful event resulted in an injury by accident; and
2. Asserting that the claimant suffers from a stress-related occupational disease under N.C.G.S. § 97-53(13).
The North Carolina Workers’ Compensation Act defines an “accident’ as an unlooked for and untoward event which is not expected or designed by the injured employee. Davis v. Raleigh Rental Ctr., 58 N.C. App. 113, 116, 292 S.E.2d 763, 766 (1982). The essence of an accident is its unusualness and unexpectedness. Id.
The injury by accident theory does not appear as frequently in appellate cases as the occupational disease theory with respect to mental and psychological illnesses. In any event, like the cases brought under the occupational disease theory, the cases brought as injuries by accident have had varying outcomes.
Whether a psychological impairment should be considered a compensable injury by accident depends heavily on the underlying facts of each specific case.The “incident” that leads to the alleged psychological impairment must be unusual and not part of the employee’s normal work routine.
For example, Courts have held that a performance review, or a routine, problem-solving meeting is an ordinary incidence of employment, and a nervous breakdown and stress-induced anxiety following thereafter does not constitute an injury by accident.Pitillo v. N.C. Dep’t of Envtl. Health and Natural Res., 151 N.C. App. 641, 566 S.E.2d 807 (2002). On the other hand, being falsely accused of stealing from the company was considered unusual and rose to level of an accident. SeeBursell v. Gen. Elec. Co., 172 N.C. App. 73, 616 S.E.2d 342 (2005).
These claims are also subject to an analysis of pre-existing conditions and often require expert medical testimony. Expert witnesses must give an opinion to a reasonable degree of medical certainty that the medical condition and accident are related. It is not sufficient to say that just because the medical condition was absent before the injury, but was present thereafter, that the two are linked.
Non-physical psychological workers’ compensation claims are not as straightforward as psychological claims directly resulting from a physical injury. The plaintiff still has the burden of proof, and use of expert witness testimony can assist in determining whether the psychological impairment should be considered a compensable injury.
Non-Physical Occupational Disease Psychological Claims
As stated earlier, a plaintiff can recover for psychological or mental claims under an occupational disease theory. Occupational disease claims are governed by N.C.G.S. § 97-53. Although anxiety disorders, depression, and PTSD are not specifically enumerated in this statutory list of compensable occupational diseases, they are included in the “catch-all” provision of subsection 13.Smith-Price v. Charter Pines Behavioral Ctr., 160 N.C. App. 161, 584 S.E.2d 881 (2003) (holding that post-traumatic stress disorder is a compensable occupational disease).
The North Carolina Supreme Court in Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983) explained what is required to prove an “occupational disease.” The three elements are:
1. The disease must be characteristic of, and peculiar to, the plaintiff’s particular trade, occupation or employment;
2. The disease must not be an ordinary disease of life to which the public is equally exposed outside the employment; and
3. There must be proof of causation (proof of a causal connection between the disease and the employment). “[T]he first two elements are satisfied if, as a matter of fact, the employment exposed the worker to a greater risk of contracting the disease than the public generally.”
North Carolina Appellate Courts have both upheld and rejected mental and psychological illness claims brought under an “occupational disease” theory of recovery. These cases typically turn on whether the plaintiff can show that his job responsibilities placed him at an increased risk of contracting the mental or psychological illness than the general public. Even if the plaintiff is successful in showing that his job placed him at an increased risk of developing the disease over the general public, he still has the burden of proving a causal nexus between the mental or psychological condition and his employment. Rutledge, 308 N.C. at 94, 301 S.E.2d at 365.
Often times the plaintiff has a pre-existing mental or psychological condition. It is imperative that prior medical history be obtained and investigated early on in a case. Although the Act allows for recovery when a pre-existing condition is materially aggravated or accelerated by one’s employment, it is crucial to determine whether it is a new or different condition which the plaintiff is experiencing rather than a mere continuation of a pre-existing condition. Anderson v. Nw. Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951) (holding that in North Carolina, an injury arising out of and in the course of employment which materially accelerates or aggravates a pre-existing disease or infirmity is compensable).
In addition to establishing that there was an aggravation or acceleration of his pre-existing condition, the plaintiff must also “show that the employment placed him at a greater risk for contracting the condition [than the general public], even where the condition may have been aggravated but not originally caused by the [claimant’s] employment.”Chambers v. Transit Management, 360 N.C. 609, 613, 636 S.E.2d 553, 555 (2006).
Unless the plaintiff is in the public sector and provides aid to the community, such as a law enforcement officer, EMS worker, firefighter, or some other community servant, most jobs do not place individuals at an increased risk of developing psychological claims. Bad bosses, poor work reviews and severe and extreme work related stress and pressure have historically not been found compensable.Day v. Travelers Insurance Co., 845 S.E.2d 208, 2020 WL 4462171, (2020) (holding that an adjuster’s job, while very stressful, does not place her at an increased risk of developing depression and anxiety as opposed to the public generally).
Most of these claims are decided on the underlying facts and each must be analyzed on a case by case basis. Regardless, the plaintiff retains the burden of proof. He must prove every element of the claim, whether an accident or an occupational disease, and meet the criteria for the same under the North Carolina Workers’ Compensation Act to receive an award of benefits.
Claims Handling Tips for Psychological Workers’ Compensation Claims
The burden of proof for a psychological workers’ compensation claim lies with the plaintiff. However, to prepare a proper defense, there are some key claims handling tips to take into account, which include:
1. Ensure a thorough recorded statement is taken as soon as notification of a claim is received. The recorded statement should:
· Address the plaintiff’s regular, normal job duties;
· Identify anything new or unusual with the plaintiff’s job and the length of time or duration of the new or unusual activity;
· Identify the plaintiff’s prior medical history including whether he or she has ever treated for depression, anxiety, or any other psychological illness. If so, pin down the exact illness diagnosed; the type and frequency of psychiatric treatment received before and after; any difference in the plaintiff’s complaints or intensity level with regards to his psychological illness; and, the name of the medical professional providing treatment;
· Always request the contact information for the plaintiff’s primary care physician so you can obtain the records before accepting the claim;
· Identify the plaintiff’s supervisor and the co-workers plaintiff interacted with on a daily basis (so that interviews and fact investigation can occur with these individuals); and,
· Identify the plaintiff’s hobbies and activities (if plaintiff is going to baseball games and/or concerts on a regular basis then it is unlikely that he or she has an inability to function in society or at work).
2. Conduct surveillance, if warranted, to investigate the plaintiff’s physical activities and demeanor outside of his treating relationship with medical providers.
3. Perform extensive employer interviews in the early stages of the case. These interviews should also involve the plaintiff’s co-workers so that any pre-existing problems or complaints can be identified as compared to the new complaints that may have arisen.
4. Retain a psychological professional to analyze the issues, the type of job the plaintiff performs, and elicit opinions on causation.
5. Enroll the plaintiff in counseling instead of simply approving medications for psychological or mental illnesses. A plaintiff’s depression may drastically improve with counseling on a regular basis. Treatment notes often provide helpful information for the claim as well.
6. Control the claim by directing the plaintiff’s medical care. Make sure that only an approved, treating physician provides medications instead of allowing the plaintiff to go to his primary care physician for additional care for the same condition.
By engaging in these best practices early, during the investigative phase of the claim, a stronger defense can be prepared against psychological workers’ compensation claims when litigation does ensue.
If you have questions or wish to discuss this further, please contact Tracey Jones or your Teague Campbell workers’ compensation attorney.