Anxiety Resolution

After so many years traveling the workers' compensation conference circuit, absorbing all of the education, statistics and analysis, it's nearly indisputable that perceived conditions of employment have more to do with a person's perception of injury than any actual injury itself - what the experts like to categorize as biopsychosocial factors.

These factors lead to seemingly incomprehensible case outcomes.

Like the recent Connecticut Supreme Court affirmation that an athletic FedEx driver was totally disabled for nearly 11 months despite running 4-minute miles working out during that same period.

William Hart exercised vigorously about 2 hours every day before reporting for work as a delivery driver for FedEx. He was a model employee from 1987 until June in 2009 when he received 2 written warnings: One causing a fuel spill when he failed to secure the cap on his truck's gas tank, and the other was for exceeding his allowable vacation time when he missed five days of work after his mother died.

Hart claimed he was very distressed by the reprimands and began to fear he would lose his job.

While he was at work on Sept. 15, 2009, Hart said he began to feel ill and light-headed after falling more than an hour behind schedule on his route. He said he was experiencing a fluttering sensation in his chest and a shortness of breath, along with a growing sense of panic, as he rushed through his stops.

After making a delivery to the fire station on Liberty Street in Pawcatuck, Hart asked a paramedic to check him out. The fire department summoned an ambulance after determining Hart's heart rate was over 200 beats per minute.

After he got to the hospital and doctors began tracking his pulse, Hart's heart rate went up to over 300 beats per minute (compare to normal which is between 60 and 100 BPM).

[DePaolo's Note: these are classic symptoms of a panic attack, usually associated with an anxiety disorder, which is not necessarily related to any physical or situational stimulus.]

The doctors at the hospital diagnosed Hart with a "paroxysmal atrial flutter," a malfunction in the right atrium, the heart’s natural pacemaker.

Doctors also determined that he had a low level of potassium in his body, which was indicative of dehydration. Hart remained in the hospital overnight, during which time his heart rate returned to normal.

Two weeks later, he was back at the gym and working out once more, although he said he was doing "less strenuous" exercises that he had previously done. His doctors continued to monitor his heart and kept him off work until Aug. 7, 2010.

Hart also began seeing a psychologist, who diagnosed him with post-traumatic stress disorder, depression, panic disorder with agoraphobia, and hypochondriasis.

Meanwhile, Hart returned to his normal workout routine, which including running on a treadmill at a 15.2% grade and a pace of 4.2 miles per hour, for 30 minutes.

FedEx's expert witness cardiologist testified that most people could not sustain that pace for three minutes.

Hart has not worked since September 2009 though, and he has been collecting Social Security disability benefits since May 2012.

The Workers Compensation Commission ruled Hart's claim compensable, and that was upheld by the Review Board.

FedEx then sought judicial review, and the Appellate Court transferred the case straight to the Supreme Court., in part arguing that Hart's physical condition was precipitated by lawful personnel actions, which the law says can not be compensable.

The Supreme Court upheld the Commission ruling because FedEx didn't present "any plausible explanation as to how the dehydration and resultant mineral deficiencies that precipitated the claimant’s heart problems and associated PTSD could have been the result of personnel decisions, real or imagined."

The court also said there was evidence that "other factors arising from the claimant’s employment, factors that were unrelated to any actual or potential personnel actions, also were substantial factors in causing his PTSD and associated anxiety, panic and depression" and that his "exemplary physical condition and impressive exercise regimen" didn't mean he couldn't still suffer a work-related heart injury.

My bet is that Hart would still be working today, and would have dismissed his anxiety attack (which, by the way, is not necessarily a psychological issue) as a personal issue had there not been the reprimands, particularly the time off for his mother's death.

Animosity towards the employer manifested via claim of work-induced physical symptoms is, despite all of the evidence, statistics and research, still not well appreciated.

Which is why workers' compensation is often referred to as the working person's dispute resolution system...

To read the court's decision, click here.

Pain in Mental Health

In just a couple of weeks Boston will host the annual Workers' Compensation Research Institute's conference. Lots of interesting research presentations on things that workers' compensation wonks love to cavort about.

A lot of the conference this year is medical in nature: fee schedules, outcomes, utilization review, jurisdictional issues on medical control and treatment...

We'll find out, predictably I think, that states with fee schedules cost less than those without. We'll probably learn that rewarding system vendors based on measurable outcomes, rather than on the services provided, generates better results and system savings. We'll learn that there are differences between jurisdictions that some may, or may not, exploit to their benefit or detriment.

Missing in the grand scheme, though, is this industry's unwillingness to accept that mental health is just as important to controlling costs, to achieving good outcomes, to minimizing disability, as any external, artificial controls dictated by law or regulation.

A lot of jurisdictions have laws that minimize employer liability for psychological or psychiatric issues, whether or not caused by work. Treatment is segregated - body parts are treated as though independent of the rest of the body, or the mind.

There is one commonality among all injuries, whether industrial or not: pain.

The reason someone seeks medical care is because something is causing pain. It might be the flu making one's head hurt with coughing, sneezing, running sinuses, achy back... It might be some trauma, a wound or fractured bone.

It might be that the boss yelled or was mean-spirited.

That's all pain. Pain isn't felt by the appendage, or the organ. Pain is an interpretation of signals from nerves that is processed by the brain. The purpose of pain is to send a message - stop doing what it is that causes the pain.

It's really pretty simple. Pain is in the head. It is real because our minds say it is.

Some of the most interesting breakthrough research is about how the mind can challenge pain, alter its character, change the outcome.

Becky Curtis, our 2015 Comp Laude Injured Worker award winner, can tell you all about how the mind can change the perception of pain.

Michael Coupland, a vociferous proponent of cognitive behavioral therapy, has the data and statistics on pain perception and altering outcomes to demonstrate the power of the mind over pain.

Senator Patrick Kennedy, talking about his battle with addictions, notes that the social stigma against mental health has stymied medicine's ability to take care of the whole person. We take statins to forego the possibility of a heart attack or stroke. We support biennial dental care to stem tooth decay. We promote exercise to stave off obesity and stimulate our muscles.

Yet, we eschew mental health services ... until it's too late. It's easier to dispense a pill than it is to dispense good psychology.

We know the path to wellness, to productivity, to return to society, is through the mind.

The Journal of Occupational and Environmental Medicine, in this month's issue, looks at wellness programs and why one company's program is a success, and another's a failure. The conclusion - it's about the whole person, an integrated approach.

What happens in workers' compensation treatment (and, frankly, in much of general health medicine) is a focus on the symptom, but not the problem. We treat the broken bone, the laceration, the low back pain, with physical modalities and drugs.

Throw a psych ICD code into the mix, though, and all hell breaks loose. We are conditioned to treat mental health as a negative, as that person's problem and not part of the claim.

But it's irrefutable that the mind controls the body, and controls one's perception of pain.

I have a high tolerance for pain. My threshold is miles higher than my wife's. Maybe it's because I've been a daredevil all of my life, jumping off roofs, skying a table top on my motorcycle, leaping off cliffs on a bicycle - all those crashes, all those broken bones and organs... I heal and move on to the next adventure.

Others don't have the same tolerance. They may become slaves to their injuries - instead of having an injury, they ARE the injury...
We can't help everybody. There are some that can not be redeemed, their issues too deep; complications interfere with desired outcome.

But most can be helped. Most can be brought back into productivity and well being; if mental health services are implemented earlier in the claim. Much earlier in the claim - like right at the very beginning of the very first treatment implementation.

The trite phrase, "prevention is the best medicine," applies. Identify early-on mental obstacles to return to health, deal with them head on. Don't worry about assuming someone's psychological disability - the fact is that's already happened by virtue of the workers' compensation claim!

When workers' compensation's culture changes to recognize the realities of mental health on successful outcomes, then the conversations at WCRI's annual conference will be less about controlling medical costs, and more about what to do with all the money that's saved on claims...

Empowerment

"I don't need someone to advocate for me. I need someone to empower me."

Becky Curtis was in a frightening roll over accident in Montana in 2005 when she fell asleep at the wheel. She was working and suffered a spinal cord injury resulting in partial paraplegia and intensive, prolonged (chronic) pain.

Ask her about workers' compensation, and she has nothing but positive things to say about the team that took care of her, and still is helping her.

Becky Curtis' car

Through vocational retraining Curtis became a pain management coach, and founded Take Courage Coaching to help chronic pain patients, those for whom pain management modalities have done the most any third party intervention could, enjoy life in spite of the pain.

Pain management, as Curtis explained to the audience at the Self Insurance Institute of America's annual Workers' Compensation Executive Forum yesterday in New Orleans, requires the patient ultimately be active in their own recovery, not a passive patient.

There is a psycho-physiological reality to chronic pain, that was explained by Michael Coupland, CPsych, RPsych, CRC. Coupland said that at the point where pain becomes chronic, which is when third party remedies no longer have an impact, cognitive behavioral therapy (CBT) is highly effective.

CBT is about remapping the brain to redirect the signals sent by the nervous system and involves a concept called neuroplasticity - the brain is flexible enough that it can be, essentially, trained to feel differently.

There was an overall theme to the forum that underscored a key difference between self-insured workers' compensation programs, and traditional insurance models: focus on the employee.

Though there were sessions on marijuana, the changes in health care insurance, and other technical sessions, the overall tone was, take care of the claim and the benefits will follow. Other than the debate about self-insurance groups versus captives, there was very little talk about cost and expense; most of the talk was about how to better serve the injured worker.

I expected this from a self-insurance oriented forum. The mindset is much different from the traditional insurance model, because the self-insured employer has a much tighter, more involved interest: that injured worker is THEIR employee and they're working with THEIR money.

The insurance covered employer typically doesn't react that way because the insurance company is an intermediary with its own financial objectives.

Self-insured employers get it: the best way to lower your workers' compensation expenses is to treat the injured worker quickly, efficiently, thoroughly and with the best treatment (including CBT) available.

Notice I did NOT says the MOST treatment - that is a vendor/provider desire.

The BEST treatment means sometimes having to pay more than fee schedule. It means sometimes authorizing a couple of extra physical therapy sessions even though the law says you've done enough. It means having claims adjuster case loads of not much more, if at all, than 100, so adjusters can actually make a difference rather than spend so much time entering data and completing paperwork.

It means providing the tools to the injured worker that will empower her to overcome chronic pain.

These remedies are available to traditionally insured employers, by the way - they just don't know it.

They Didn't Riot

With all of the racial tension in this country tied to police activity and grand juries waiving indictment of officers blamed for excessive force against blacks, the Commonwealth Court of Pennsylvania overturned a Workers' Compensation Judge's finding of mental injury from a combination of racial and sexist harassment.

In Frog, Switch & Manufacturing Co. v. WCAB (Johnson), No. 149 C.D. 2014, Lindora Johnson was one of only two women and the only African-American female in a workforce of approximately 200 employees at the Frog Switch manganese steel castings manufacturing plant in Carlisle, Pennsylvania.

She claimed that she suffered repeated incidents of harassment at work during a five-month period in 2009, where her male colleagues made disparaging remarks about her gender, used a racial epithet in front of her and hung a noose inside an office where it was visible from the women’s locker room.

Johnson stopped going to work in September 2009 after she burst out crying in a meeting with management and a coworker who had complained she didn't operate her overhead crane safely.

A workers' compensation judge found Johnson had developed atypical depression as a result of her exposure to abnormal working conditions at her job. The judge awarded her TTD from Sept. 30, 2009, until April 19, 2010, when Johnson returned to work.

The WCJ's award was based on three separate medical evaluations who found that Johnson had, "job-related stress," that was suffering an emotional stress reaction, and that she had depression based on “her stressful and overwhelming work conditions.”

The WCJ did not find credible Johnson's coworkers testimony that the noose was a joke directed at a coworker who had said he was "going to hang himself" because of things that kept going wrong. The judge also gave weight to Johnson's testimony that her colleagues had used "the N-word" in her presence, had said females shouldn't be working at the foundry and warned each other not to work below her crane.

"It should be abundantly clear that any reasonable person, let alone a reasonable African-American female in an all-male and virtually all-white environment, would perceive references to the ‘(N-word),’ a noose, and comments about refusal to work under her crane, or that women don’t belong, as degrading and hostile," the judge opined.

A split Commonwealth Court found Johnson's medical evidence didn't establish an industrial cause for her distress.

The the record must contain unequivocal medical testimony to establish the causal connection between a psyche injury and employment for the injury to be compensable, the majority, in an opinion by Judge Anne Covey, said.

"Due to the highly subjective nature of mental injuries," she said, "an injury’s occurrence and cause must be specifically delineated" by the medical experts.

From http://www.blackactivistzine.org/

A claimant further bears the burden of proving that the psyche injury was "more than a subjective reaction to normal working conditions," Covey added. However, she said there was no reason to decide whether Johnson's injury was the result of an abnormal working condition since Johnson couldn't even prove her condition was work-related.

Two justices dissented, stating that the record was "replete with testimony from both sides that these reprehensible incidents did occur and that claimant became upset to the point where she lost control at work and left to see a doctor."

From the time Johnson first sought medical treatment for stress, she indicated that it was due to continual harassment at work based on her gender and race, Justice Bernard McGinley noted. Even though Johnson's care providers didn't specifically mention the "noose incident" and "the N-word" in their reports, McGinley argued that "the only reasonable inference to draw" was that these events were what the doctors were talking about.

The argument among experts interviewed for the WorkCompCentral story on the case opine that either the Commonwealth Court was engaging in inappropriate fact finding, or conversely, that they correctly noted there was no nexus linking the work incidents and Johnson's doctors conclusions in the various reports.

Maybe they're both right. Fact finding, which is the sole province of the trial judge, includes making ultimate findings of fact; i.e. factual conclusions. In this case, that there was a connection between work place harassment and the claimant's mental injury.

Likewise, though, there must be substantial evidence to support an award, and part of that is an expert's opinion on causation; while a physician may conclude that there was a mental injury related to the occupation the doctor should be connecting the dots with specific factual references in the report.

Unfortunately we don't know what happened after Johnson returned to work.

And so far there are no reports of rioting in Pennsylvania.

Have A Kick Ass Day

Dwight Johnson lost both legs in separate industrial accidents.

But when he was really down he thought of his seven children, his wife, and the rest of his life.

“I was laying in the hospital bed and I asked the nurse, I said ‘Give me the red button and leave it on; I’m done’,” Johnson told CBS News in an interview.

Johnson's job was inspecting skyscrapers. The first occupational injury was incurred on a trip to Hong Kong for work, when he developed a staph infection. Three days later, his foot was dead, and his only option was amputation.

After that first ordeal Johnson returned to work on high-rises with the use of a prosthetic leg.

“I basically had to learn how to walk all over again, like a child,” Johnson said. “All your balance, you learn your core, and where your balance is, and then you go from there.”

Round two occurred a year and a half ago when he was was struck by a transit bus while crossing the street in New York City, again on the job.

This put Johnson in a deep hole, and he initially refused to see a doctor because he knew amputation was imminent.

“We went through a couple nights where he wasn’t going to go, and I kind of had to give him an ultimatum that he had to go,” his wife Debbie says on the news report. “Otherwise, he would have died on me right in the house.”

“Something just told me I could do it,” Johnson said. “With the seven kids and my wife, I wasn’t ready.”

Dwight Johnson with his best "kick-ass" scowl!

Tom Nomura is Clinic Manager at Hanger, the Newport Beach company that created Dwight’s new legs and providing rehabilitation.

“He had to go through rehab each one of those times,” Nomura explained. “So it was his perseverance and his determination that really made it work for him.”

Johnson says he's in pain every day, takes medication all day long, but still says, "I'm not ready to sit in a chair."

Besides returning to the work force, Dwight and Debbie also began work with Amputee Empowerment Partners, to assist other amputees in their own transition into new routines.

Dwight's goal is to inspire amputees who remain in their chairs to work with their prosthetics.

“I meet a lot of people that are still sitting in their chairs, and they have prosthetics and they won’t put them on," he says. "So, I’m hoping this will entice somebody to get up off their rear and get up and go.”

Dwight's favorite sign off phrase is, "have a kick-ass day."

Dwight will be the motivational speaker at the 3rd Annual WorkCompCentral Awards and Gala on December 6.

Get your tickets now, they're going fast, and you will have a "kick-ass day."

Memory And Work Comp

After Dad died my siblings and I made arrangements for Mom at the best memory care facility we could find.

My eldest sister has worked in the elder care industry for years and has extensive education, training and experience in the field. Fortunately she knows who the players are, what their reputations are, who the owners are, care policies etc.

Placing your parent into a memory care facility is a bit alarming - as my brother observed, first visit is a scene right out of One Flew Over the Cuckoo's Nest; people wandering about with various emotions expressed on their faces clearly indicative of cognitive impairment.

Mom has moderate to advanced dementia.

I can't say that I ever really appreciated what dementia was until Mom was at the moderate stage.

For years Dad would complain about Mom's behavior - that he would have to coach her in the simplest of activities; walking for example. As her disease progressed I noticed that even eating was not simple - there was this sort of vacant look to her eyes as she tried to make the fork find her mouth.

Mom's standard response when asked to recite something of recent history would be "I don't recall" and she would complain that "my brain doesn't work like it used to."

But she could regal us in stories of the past, often several iterations in a single sitting (she would remember the past event, but forget that she already told the story ... three times already).

And she always seemed happy. If she didn't recall who you were she would at least carry on like she did, and smile.

Always smiling.

Always smiling.

At last weeks California Workers' Compensation Institute's annual meeting Terry Bogyo (pronounced "Bo-show"), an independent researcher who formerly was the Director of Corporate Planning and research for WorkSafeBC (the Workers' Compensation Board of British Columbia) gave a presentation mostly comparing California work comp to Canadian work comp.

A big part of Bogyo's talk was about demographics, and how changes to the population affect the work force and, ergo, what impact that has on work comp.

I was surprised to hear from Bogyo that Alzheimer's Disease, a subset of dementia, was the third leading cause of death.

I didn't know that any form of dementia was a direct cause of death.

The Alzheimer's Association says however that 500,000 people in America each year die directly from the disease and that it is the 6th leading cause of death, 5th if over age 65 is accounted for and the only cause of death in the top ten that can not be cured, prevented or slowed.

According to the National Institute on Aging, over 5 million people in America have Alzheimer's. The disease disproportionately affects women, though men are not impervious; and typically the disease is not apparent until after age 60, though it can begin as early as age 30.

Bogyo brought this up because the age of the work force is changing. There are more people over age 60 who continue to work past retirement age, and in surveys a majority of people say they will continue to work past retirement age regardless for various reasons.

And, I suspect, the health care industry, representing trillions of dollars in the American economy, will be disproportionately represented in the workers' compensation statistics.

For instance, according to the Alzheimer's Association, caregivers to Alzheimer's patients rack up about $9.3 billion in additional health care costs on their own in 2013 due to the physical and emotional burden of taking care of the patients. They say that caregivers rate the emotional stress as high or very high and more than one-third report symptoms of depression.

The facility where Mom lives has a very high proportion of caretakers to patients, and residents are highly engaged - Mom is woken at 7:15 every morning and typically keeps moving until bed time around 8 or 9 (in the past she would sleep in until as late as 11...).

But her facility is atypical. It costs a lot because it provides a lot. Most facilities have a much lower ratio of caretakers to patients putting additional pressure and stress on that work force.

I would expect that the facility where Mom is at does not experience the same level of changes to employee count or work place accidents as other facilities.

Nevertheless, this is just a small example of changes the economy is undergoing. More obvious are the changes we have seen in the shift from manufacturing to information.

I can't say that I fully comprehend what all these changes mean to workers' compensation, or frankly whether they are even relevant to what we all do day in and day out. Clearly the risks are different, and how we deal with those risks may take on different tones.

Mom's Working and Happy

Generally accepted psychological principal is that working is good for the head and that is why there is such an emphasis on return to work in the workers' compensation context.


Work is a huge part of one's identity.


According to a 2012 study by Abay Asfaw, Ph.D., and Kerry Souza, Ph.D., of the Centers for Disease Control and Prevention, injured workers are 45% more likely to be treated for depression than non-injured workers.


That makes some sense to me, particularly after seeing my father go through his life, essentially "working" all the way up to the end, albeit as a volunteer. Nevertheless, his identity was hugely connected to the Oceanside Police Department where he felt particular swagger in his role as administrator of the department's gang unit database.


I see this in my mother, whom we have relocated to a beautiful memory care facility. Mom has advanced dementia, but she still likes to "work"; her dementia has sharpened her obsessive/compulsive qualities and she can't help but clean up after others. She's put to good use at her new facility and I can tell it brings her joy because she has purpose in life!


And that explains one of her diagnosis of "depression" upon discharge from the last rehabilitation facility - she didn't have anything to there!

Mom getting ready to "work".

So at least in my mind there is a deep connection between work, work injury and mental health.


Some states recognize this and other states don't.


A recent case in Ohio recognizes that it is settled law in that state that a worker's suicide is compensable as long as it is "causally related" to the worker's injury; there has to be "some effect upon the mind" from the injury, because of an injury to the head or because the injury is causing chronic pain, or because it led to the development of a psychological condition, causing the worker to become depressed.


The worker in that case committed suicide 5 days before Christmas, a particularly troubling time for many people regardless of work status. Her estranged husband sought, and obtained, death benefits before it was discovered that he didn't live with her and was charged with committing fraud. The case eventually settled, and what led to the court opinion is that the husband didn't get what he thought he was going to get out of the settlement.



Be that as it may, not all states provide workers' compensation benefits for the survivors of workers who have committed suicide. Illinois, Pennsylvania, Massachusetts and Washington will provide for awards if the worker's suicide had a causal link to the employment or industrial injury, but in other states, suicide is treated as a break in the causal chain.


Earlier this year, the Montana Supreme Court denied a request to decide if, under the 2007 Workers' Compensation Act, a death from suicide is an intentional act and an independent intervening cause that breaks the chain of causation between an industrial injury and the death. The court said it saw no reason to exercise its ability to bring the dispute out of the Workers' Compensation Court, since there was no indication that the normal appeal process would be inadequate for whichever party is aggrieved by the WCC decision.


Florida's workers' compensation statute states compensation is not payable if the injury was "occasioned primarily...by the willful intention of the employee to injure or kill himself, herself or another."


Alabama's comp scheme contains a similar limitation, as does the Longshore and Harbor Workers' Compensation Act. But the Benefits Review Board has recognized an exception when the suicide attempt results from an "irresistible impulse" caused by a work-related injury.


Courts in New York, Nevada and North Carolina will also award benefits for a suicide if the worker was driven to kill herself because of a mental depression and derangement directly related to and caused by her compensable injury.


The point to all of this is that there is wide disparity in the legal recognition of the importance of work to mental health - perhaps as many reasons as there are people making those claims. It is very difficult for claims administrators to ferret out legitimate claims for mental injury arising out of a work place situation.


I have argued before, and I maintain my position, that workers' compensation is not about return to work. RTW is a tool in the workers' compensation administrator's box, but it is not the end goal of the system. It might be the end goal of a worker, or claims payer, but not of the system itself.


And my guess is that there are as many different view points about the efficacy of providing mental health benefits as a part of any workers' compensation treatment scheme. Clearly this is exemplified by the different state's treatment of suicide arising out of a work injury.


I can say one thing after watching my parents go through their senior years - work IS important. How one defines "work" depends upon the circumstances, the individuals involved, the production required.


Whether one is paid in some remunerative fashion or simply gains personal satisfaction from doing a job, most people enjoy feeling productive, which is why there is such a high depression rate among those who get hurt on the job.


I'm keeping Mom working for as long as she wants...

Physical, Mental - It's All One Body

When the law changes and makes a distinction between physical and psychiatric or psychological injuries, what should one do?

If you're a creative California lawyer, you simply argue that there isn't any distinction.

That's the trend that's being discussed at the California Applicant Attorneys Association Summer Conference in Las Vegas.

SB 863 added to Labor Code section 4660.1 language saying, "There shall be no increases in impairment rating for sleep dysfunction, sexual dysfunction and compensable psychiatric disorder, or any combination thereof, arising out of a compensable physical injury." An exception to the rule allows the use of psychiatric conditions to increase an impairment rating when the worker was injured by or exposed to a violent act.

Dr. Mark Kimmel, a qualified medical evaluator in psychological and neuropsychological assessment, called the distinction between mental and physical injuries "artificial" because research shows that there are changes in the brain related to conditions that would have been thought of as purely psychological.

He pointed to imaging studies finding some people with post traumatic stress disorder have a decreased hippocampus volume, while some with major depressive disorder have brain tissue atrophy.

He also illustrated the concept that amputees experience phantom pain in the limb that is no longer present.

Consequently, it may be possible to argue that a worker's complaint of pain is a "direct injury" and not a compensable consequence of an injury, panel moderator Arjuna Farnsworth of Boxer & Gerson in Oakland suggested.

The history of mental injury claims being distinguished from physical injuries in California goes back to the addition of Labor Code section 3208.3. That section of law was added in the early 1990s in response to med-legal mills and treatment clinics that found every injury had a mental component that required diagnostics, evaluations and treatment, even when the claimant did not complain of any psychiatric issue.

Back then the legal arguments seemed to be more about whether a claim arose out of some disciplinary action or termination, or a traumatic event. Not about whether there was any distinction between mental and physical.

Certainly, to the extent that the brain is an organic element and part of the biology of the human body, the argument may have some merit.

Regardless of merit, though, it seems that whenever there is an attempt at "fine-tuning" the law there end up a myriad of ways to argue alternatives to achieve the same, if not better, desired result.

In law school we're taught "the law." Then we're taught "exceptions" to the law. Finally there were always "exceptions to the exceptions," which if one just analyzed things without getting too fancy, were just "the law" stated another way.

So is there any difference between mental and physical injuries? Only if there is an advantage to claiming such depending upon the legal claim being made.

Westphal, Davis, and Total Disability

The Westphal case opened up a huge controversy in Florida, and now the 1st District Court of Appeals (DCA) is being asked to also consider another "cap" case alongside Westphal in a consolidated hearing.

Tammy Davis held an administrative position with Nascar Holdings and injured her back while bending and twisting at work. Her doctors later diagnosed her with chronic regional pain syndrome and depression.

I didn't find anything about "chronic" regional pain syndrome, but according to the National Institute of Neurological Disorders and Stroke (NINDS) there is a generally recognized diagnosis known as complex regional pain syndrome (CRPS), which is a chronic pain condition that is believed to be the result of dysfunction in the central or peripheral nervous systems. 

According to NINDS, the syndrome used to be called "reflex sympathetic dystrophy syndrome," There is controversy over whether CRPS has its basis in biology or psychology, which could be important to the Davis case.

Regardless, the Judge of Compensation Claims (JCC) found Davis reached physical MMI in March 2011, but said Davis has yet to reach MMI for her psychological condition.

In Florida, a worker's mental injury is not compensable unless it is a manifestation of a compensable physical injury, and Florida Code Section 440.093 provides that a worker can only receive indemnity benefits for a mental injury for up to six months from the date she achieves MMI for her physical injury.

More specifically, subsection (3) states:

Subject to the payment of permanent benefits under s. 440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee’s physical injury or injuries, which shall be included in the period of 104 weeks as provided in s.440.15(2) and (4). Mental or nervous injuries are compensable only in accordance with the terms of this section.

Consequently Nascar terminated Davis' indemnity benefits, and stopped paying for Davis' psychological care, six months after she reached physical MMI.

I'll pause here - read 440.093(3) again - does it say anything about terminating TREATMENT? (More on that later.)

The defense argues that there are "substantively different historical antecedents" for Section 440.093 and Section 440.15, which provided "a rational basis for the distinction between the two kinds of 'caps,'" and so the validity of Section 440.093 should not depend on the viability of Westphal.

The claimant argues that an affirmance of the Westphal panel decision ought to mean an invalidation of Section 440.093 also. I can see that legal argument since 440.093 makes specific reference to 440.15 in that the 6 months is included in the 104 week cap.

Friend, defense attorney George Kagan representing Nascar, requested the 1st DCA to consolidate the Davis case with the Westphal case.

Mark L. Zientz, the attorney for Davis, said in this morning's WorkCompCentral report on the case that he did not object to Kagan's request for consolidation because he felt the judges might "not get the full picture" on the inadequacy of Florida's comp system if the judges only hear about the problems with Section 440.15.

"I've been saying for years that the system as a whole is inadequate," he said, and it seems "the courts are finally starting to look at it with a critical eye."

The issue in the Davis case is that the claimant is seeking 100% permanent disability. Without inclusion of the mental injury that status can not be achieved.

According to the WorkCompCentral story, Zientz averred that Davis is totally disabled, but since her physical disabilities alone were not enough to qualify her for permanent and total disability benefits, "she needs to reach MMI psychiatrically to get PTD."

Yesterday I went on a rant about disability. I got lots of response, and as usual, much of it was divisive.

I guess my issue with a PTD status in nearly any case (not just the Davis case) is because, to me, permanent total disability should mean that there is absolutely no capacity to engage in any meaningful ability to generate income whatsoever.

And my guess is that's not the case with Ms. Davis.

But my concept of PTD has nothing to do with how disability is actually applied. "Disability" is a legal status tied to either social benefits (e.g. special parking privileges) or financial benefits (e.g. indemnity).

I don't know Davis. I don't know her circumstances. I don't know her mental issues. I do know that depression should not be entirely disabling and that it can be controlled with appropriate medication and therapy (assuming compliance which may be tied to whether or not there is appropriate medical delivery available).

I also know that there are many, many people with severe disabilities, including depression, that would otherwise qualify for total disability under workers' compensation laws that have the ability to engage in various activities that would otherwise generate some income.

And note that the employer not only terminated Davis' indemnity under 440.093, they also terminated her treatment - if there was any argument for PTD status it would be the employer's acquiescence through actions. Apparently the employer did not feel that any further treatment would help, so why pay for treatment if it isn't going to help?

Seems to me that's a tacit admission of total disability...

Head Injuries and Cruel Behavior

The National Football League is big business, big entertainment, big athletes, big everything.

Its workers' compensation issues are big too.

The American football watching public takes for granted the hazards frequented by professional football players since the dazzle of big screen LED and pageantry of spectacle that surrounds every game cloud the reality of the sports dangers.

But the occupational hazard of protracted physical contact is becoming more and more public, and with the recent suicide death of San Diego darling, Junior Seau, and news of coach suspensions in the New Orleans Saints "bounty program" case, more pressure is on the league than ever before to provide a "safe" workplace for the players.

Traumatic brain injury is little understood by the public, until someone close sustains it, then one realizes how much life changes.

I had a friend who committed suicide by jumping from a bridge following a very difficult number of years post traumatic brain injury.

My friend was a very successful businessman, and a very gifted athlete. He lived life big - everything he did was outsized and he took as much from life as he could.

Then he fell on his head on a motocross track and sustained a very serious concussion.

After he recuperated his wife noticed he wasn't the same. His friends also noted the he behaved differently. He was moody, thought processes became cloudy, decision making was ineffective, questionable and prolonged.

The depression brought about by traumatic brain injury eventually took over his life and he decided to end it.

I can't help but think that this was went through Junior Seau's mind. Head injuries accumulate, and alter thought processes.

Junior knew his mind wasn't right - that must be why he shot himself in the chest. If he shot himself in the head then science would not be able to study his brain.

Seau's death followed the suicide of former Falcons safety Ray Easterling on April 19 of what police called a self-inflicted gunshot wound. He was one of the plaintiffs in a class action concussion lawsuit brought by a large group of former NFL players.

Just one year ago Boston University researchers issued a report on the autopsy of former Chicago Bears defensive back Dave Duerson. Duerson months earlier had shot himself in the chest – like Seau – and wrote a note to his family, asking that his brain be sent to doctors for study.

The report came back that Duerson had brain damage common to chronic traumatic encephalopathy, head trauma also found in more than 20 other deceased players.

In the meantime teams combat workers' compensation claims by players seeking to minimize the financial damage of claims being filed in "liberal" states, such as California, which recognize injuries through continuous trauma (CT), rather than just single injury incidents.

Many in business denigrate California's liberal recognition of CT claims because, like many legal issues, the scope and context of a CT injury gets blown out of proportion and abused by people who should not be entitled to benefits.

But there is legitimacy to the CT theory - at least in the game of football and for chronic traumatic encephalopathy.

The NFL has been making a lot of news lately by fining and suspending players, coaches and support staff for illegal hits and other damaging play activity. This is offensive to many fans, who complain that football is by its nature a violent sport, that players are paid a lot of money to engage in the sport and that they should stop crying.

The collective bargaining agreements that the players sign contain jurisdictional clauses for workers' compensation purposes to limit forum shopping so that players can not avail themselves of California law or other liberal work comp state laws.

WorkCompCentral legal editor, Sherri Okamoto, this morning writes about this jurisdictional wrangling and points to the fight between Maryland and Virginia as the Maryland Court of Appeals heard oral arguments in Pro-Football Inc. et al. v. McCants, No. 116, on Thursday. The case involves a claim by former Washington Redskins wide receiver Darnerien McCants against the franchise, which is incorporated in Virginia as Pro-Football Inc.

It is the second case brought by a former Washington Redskins player against the team in Maryland. Last February, the Court of Special Appeals ruled that the Maryland workers' compensation system had jurisdiction over a claim filed by punter Thomas Tupa Jr. for an injury sustained at FedEx Field in Landover, Md.

In February the California Workers' Compensation Appeals Board ruled that Labor Code Section 3600.5(b) foreclosed its ability to take jurisdiction over Vaughn Booker's claim for cumulative injuries allegedly caused, at least in part, by his one professional football game in California.

Booker had signed a contract with the Bengals covering five football seasons. An addendum to this contract provided that Booker "promise(d) and agree(d) that any workers' compensation claim, dispute or cause of action arising out of (Booker)'s employment with the (Bengals) shall be subject to the workers' compensation laws of Ohio exclusively."

After signing the contract, Booker played three seasons with the Bengals. Of the 48 games he played with the team during this time, only one was in California. Booker later filed a claim for workers' compensation benefits in California, claiming to have suffered cumulative injury to various body parts that resulted, at least in part, from the game he played in California.

The Cincinnati Bengals also used Labor Code 3600.5(b) to obtain two panel decisions in 2010 rescinding administrative decisions favoring former wide receivers Eddie Brown and Wesley Carroll.

Legal arguments aside, former Saints and Browns offensive lineman LeCharles Bentley dramatically brought the issue home on Twitter shortly after Seau’s body was found:

“Any other smart ass player want to question why the league is cracking down? One of the baddest dudes may have just killed himself …

“And saved his brain so it can be studied to save future generations from suffering same fate. Yeah, y’all real tough. Life after football is REAL … grown ass men struggle emotionally … young boys don’t see the end … it’s coming. Life lesson today."

These football cases are no different than the one I pointed out several posts ago about the Herman Blair case and the shameful shenanigans Erie Indemnity Co. engaged in to deny this man his benefits because his traumatic brain injury prevented him from remembering the circumstances of his fall from a ladder.

Depression, suicide, bizarre behavior, episodic amnesia - head injuries, specific OR cumulative, produce serious cognitive and emotional issues that can't be taken lightly and unfortunately suicide seems to be a common way out for those who suffer the trauma. Employers and carriers selfishly seeking to limit their monetary obligations when verifiable head injury claims are presented show how cruel mankind can be.

WY Case An Illustration of the Psychology of Disability

Not a lot of exciting workers' compensation law or issues come out of Wyoming - one of the least densely populated states in the US.

But one case that came out of that state's Supreme Court highlights the difficult interaction of psychology/psychiatry and disability.

The real issue is who pays for it, and in this case the court said that the cost burden is on the work comp system.

In McMasters v. Wyoming, No. S-11-0107, 03/02/2012, Jimmie McMasters was working in 2003 as a heating, ventilation and air conditioning journeyman when he fell 9 feet from a beam to a concrete floor and suffered a compression fracture to his L1 vertebrae.

After five years of treatment and evaluation by numerous medical providers and specialists, McMasters applied for permanent total disability benefits claiming a total disability under the "odd lot" doctrine.

The "odd lot" doctrine, as recognized in Wyoming, provided that permanent total disability benefits may be awarded to workers who were "not altogether incapacitated for work" but were "so handicapped that they will not be employed regularly at any well-known branch of the labor market."

The doctors who treated McMasters diagnosed him as suffering from Agoraphobia, Panic Disorder, Pain Disorder and Major Depressive Disorder, which prevented him from accepting work which could accommodate his physical restrictions.

The Wyoming Workers' Safety and Compensation Division denied McMasters' application. Although the division determined that McMasters could not return to work as an HVAC journeyman, it concluded his failure to obtain alternative employment was due to a pre-existing psychological condition and a poor effort to find work. The Medical Commission agreed and upheld the denial of benefits.

Up the judicial ladder the case went and the Wyoming Supreme Court said that "(f)our separate professionals evaluated McMasters and concluded that the combination of his physical restrictions, pain and psychological condition has rendered him unemployable," and given this evidence, concluded "there can be no question that McMasters met his burden of showing that the degree of his physical impairment combined with his mental capacity, education, training, and age make him eligible for permanent total disability benefits."

While a worker must make a showing that he was unemployable in order to state a valid claim under the odd lot doctrine, the court explained he "is not required to show that he searched for work and could find none to prove he is permanently and totally disabled…"

Even if McMasters' psychological problems predated his work injury, the court added, "(t)he record (was) clear that it (was) the combination of the two conditions that has permanently and totally disabled McMasters."

Compare this case with one I recently highlighted in California where the 4th District Court of Appeals ruled that physical disability arising out of a mental disorder was not compensable - albeit in response to a California specific statute (Labor Code 3208.3) that imposed certain restrictions on mental injury claims.

The interesting aspect of the two cases is that there is judicial recognition that physical disability can have its origin in mental health.

This is important to a broader understanding of the interrelatedness of disability and mental health. There is a growing school of thought that in order to properly manage the disability you must first properly manage the psychology.

In a system like workers' compensation, however, properly managing the psychology means getting into an argument about responsibility (read liability) for what is likely a pre-existing, underlying condition.

At the end of the day, someone pays for it. The cost may not be borne by the employer directly, but certainly the cost is borne by society, which means that the cost is spread to all of us.

CA 4th DCA Opens Pandora's Box for Denying Pain Cases

Wow, wow, wow.

That's all I could say to the recently released opinion by the California 4th District Court of Appeal (DCA) ruling in County of San Bernardino v. WCAB (McCoy), No. E053173, 2/29/12, published.

In this case the appellate court ruled that the claimant's allegation of migraine headaches were barred from compensability under Labor Code section 3208.3.

Section 3208.3 is the "psyche" statute and, among other limitations, permits a defense against workers' compensation claims for psychiatric injuries if the employer can show such injuries arise out of "lawful, nondiscriminatory, good faith personnel actions".

In the 4th DCA case, John McCoy, an automated systems technician for the County of San Bernardino, filed a workers' compensation claim alleging a cumulative trauma injury to his psyche from July 2005 through January 2006. He added a claim of injury for migraine headaches on the first day of trial.

The County denied the claim under 3208.3 stating that McCoy's injuries were the result of lawful, nondiscriminatory, good faith personnel actions.

The trial judge agreed and denied compensability, including for the migraine claim.

On reconsideration the Workers' Compensation Appeals Board (WCAB) reversed and said that the migraines were not the subject of 3208.3.

On appeal the 4th DCA sided with the County, ruling essentially that physical symptoms that are the product of psychological injury are not compensable if they are the product of lawful, nondiscriminatory, good faith personnel actions.

"We do not believe that the matter can be resolved so simply; seldom are the effects of stress limited to injury to the psyche without resulting physical problems," Justice Art McKinster wrote. "This is such a case. No evidence was presented that McCoy suffered any on-the-job stress other than that resulting from what has been determined to be good faith personnel actions. In such a circumstance, we must conclude that Section 3208.3(h), precludes recovery for physical manifestations that are directly and solely resulting from the psychological injury suffered as a result of good faith personnel actions."

The court explained that this was the only conclusion it could reach, without undermining the purpose of LC 3208.3.

"It would be relatively easy for a claimant to avoid this bar by asserting internal problems and symptoms, such as upset stomach, headache and sleeplessness, but not injury to the psyche per se," McKinster wrote. "There is no better example of this than the present case where McCoy added the claim for migraine headaches — a pre-existing condition— on the first day of trial. We conclude that the good faith personnel action defense precludes recovery for psychiatric injuries with resulting physiological manifestations solely caused by stress from such actions."

Me thinks this case is going up to the Supreme Court because the implications are enormous for a whole host of cases indicating physical symptoms that have their origination in psychological or psychiatric causation.

The reason is that another feature of LC 3208.3 is that, to be compensable, "an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." So beyond the lawful, nondiscriminatory, good faith personnel action defense, the courts language seems broad enough to encompass the causation threshold of 3208.3 and wrap into that any physiological response to psychological or psychiatric based injury or disease that may be precipitated or caused by employment stimuli.

When one looks at the DSM-IV, or Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (American Psychiatric Association), mandated in 3208.3, one can see where there is great potential for the use of 3208.3 to deny otherwise purely physical injury claims.

The biggest single catch-all for such issues is in the DSM-IV diagnosis category of Somatoform Disorders.

The chapter on Somatoform Disorders starts on page 445 of DSM-IV.

"The common feature of the Somatoform Disorders is the presence of physical symptoms that suggest a general medical condition (hence the term somatoform) and are not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder."

One of the subsets of Somatoform Disorders is Pain Disorder (page 458).

"The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. The pain causes significant distress or impairment in social, occupational, or other important areas of functioning. Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain. The pain is not intentionally produced or feigned ... "

This is very significant. The current majority medical opinion on, for instance, fibromyalgia, is that it is a Pain Disorder because there are no biological explanations for the patient's generalized pain symptoms.

How many work comp cases allege fibromyalgia, or some other pain that is not reasonably explained by physical findings? I believe there is actually quite a large population of those cases in the system.

In fact, the garden variety regional back pain case, so often accepted as compensable simply because of the allegation of pain in a physical body part, may fall into this category (see for example the extensive work and writings of Dr. Nortin Hadler).

So, if the 4th DCA's opinion is to be extrapolated to the general every day garden variety back pain case, or fibromyalgia case, the employer/carrier may ask for a psyche opinion - particularly if there are no diagnostic criteria that are unique from the normal population set to account for complaints of pain - and if the consult diagnoses a Pain Disorder, the employer/carrier may indeed find defense in 3208.3 against compensability.

I'm not saying this is right or wrong, or that payers are going to all jump on the band wagon and deny regional back pain cases as non-compensable under 3208.3, but it is certainly a possibility that many cases may be challenged in the future based on a psyche defense.

From a medical-legal operational standpoint, the examining physician will need to jump the gulf between physical and psychological, but that simply requires a consult referral from a mental health expert.

I suspect that talented defense attorneys will use this strategy on challenging cases until there is either a change in the statute, or a different ruling from a higher court.

Workplace Bullying Legislation - Really??

I'm going to Hawaii next week, ostensibly for a vacation, but perhaps there's purpose to my visit outside of rest, relaxation and surfing in eighty degree water.

A bill has been introduced into the Hawaii Senate making "workplace bullying" by public employees a safety violation and making aggrieved employees eligible for workers’ compensation benefits tied to emotional distress.

SB 2487, would give public employees who are victims of abusive conduct a course of action for emotional distress against another employee who is claimed to have made the abusive conduct. The employer would be “vicariously liable” for the acts of the bullying employee and subject to a penalty of up to $25,000.
Additionally, the bill would give abused workers the right to sue for emotional distress an employer whose workplace is an abusive work environment or who directly commits abusive conduct.

An employee would also be allowed to accept workers’ compensation benefits for emotional distress rather than bringing a legal action against the employer or co-worker.

The legislation would create affirmative defenses for businesses in situations where the employer exercised reasonable care to prevent and correct the abusive conduct or the complaint is based upon an employment decision, such as termination or demotion due to an employee’s poor performance.

The bill would require any complaint be filed within three years.

The bills are all based on language provided to lawmakers from the Workplace Bullying Institute in Washington state.

"Abusive conduct" is defined in the Hawaii bill as:

(1) Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests;

(2) Subjection of an employee by the employee's employer to an abusive work environment; or

(3) Retaliation in any manner against an employee because the employee:

(A) Opposed any unlawful safety violation under this part; or

(B) Made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this part, including but not limited to internal proceedings, arbitration or mediation proceedings, and legal actions.

Abusive conduct may include but is not limited to repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; the gratuitous sabotage or undermining of a person's work performance; or interference with subsequent work opportunities by defamatory evaluation. A single act normally may constitute abusive conduct if the act is especially severe and egregious; provided that the severity, nature, and frequency of any conduct objected to shall be considered in determining whether acts constitute abusive conduct.

Similar bills were introduced in Utah and Washington this year, but both measures are dead.

Anti-bullying measures were also introduced this year in Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Vermont, Wisconsin and West Virginia.

The Institute is working to line up sponsors to introduce similar legislation in California in 2013.

I'm going to call it like I see it - Really??? Do we really need this legislation?

This is the kind of law that fosters needless litigation, increases public employer costs tremendously, and in my personal opinion, has no real purpose other than to fatten the wallets of those providing services focused on this alleged problem (of which I have my doubts).

Indeed, the Institute's website makes it very clear that they are in a business to provide goods and services based on the perceived risk or actual experience of workplace bullying with coaching for individuals and organizations, books, DVDs, training, public appearances, etc:

"WBI is the first and only U.S. organization dedicated to the eradication of workplace bullying that combines help for individuals, research, books, public education, training for professionals-unions-employers, legislative advocacy, and consulting solutions for organizations. The Drs. Gary & Ruth Namie, Founders".

The Institute supports its cause with "research" - a couple of highly subjective surveys based upon the "repeated mistreatment: sabotage by others that prevented work from getting done, verbal abuse, threatening conduct, intimidation, & humiliation".

Honestly - that sounds like every employment environment I have ever witnessed. This is such a highly subjective standard there can be no qualitative basis for comparison in one case to the other.

Are there bad apples out there in the public sector work place? Sure. And they are dealt with like any other bad apple presently - with employment based discipline.

But this type of law creates new causes of action and/or or exceptions outside of workers' compensation jurisdiction and is the type of law that is the proverbial slippery slope, and before we know it the private sector will likewise be subject to such regulation.

Not only is this kind of law a slippery slope into an unknown abyss of moral regulation, but to define any act as workplace bullying requires a finding of fact, which means extensive, expensive, lengthy litigation that can ultimately serve only to further demoralize the work force.

To those states that are seriously considering this sort of legislation - get serious. There are more imperative issues out there that require debate.

NH Case Illustrates Legal Fiction in Causation

In his book, Stabbed In the Back: Confronting Back Pain in an Overtreated Society, Nortin Hadler MD argues that much of what we consider an "injury" in our health care and workers' compensation systems are not really injuries.

Dr. Hadler's book specifically addresses regional back pain as a condition that has gone from a normal experience of the human body, the product of general aging for the most part, to an "injury" providing substance to a grand medical sub-industry attempting to treat something with very limited success, if any at all, from a statistical and scientific standpoint.

What Dr. Hadler bemoans is how the laws and legal systems in the United States turn what otherwise would not be medically an injury into a condition that not only increases medical costs but disability. The import of Dr. Hadler's work is that society has essentially created injuries where none exist.

Much of what Dr. Hadler writes about is the product of the law, whether statutorily expressed or interpreted through cases - the point is that we legally recognize an injury (or the inverse, DON'T recognize an injury) other than the fact that the law says so with no underlying medical basis.

Essentially, Dr. Hadler points to confusion on causation. There is medical causation, and then there is legal causation.

A condition may have a basis in medical science, but not be recognized for legal purposes, which is generally tied to some system of indemnity and/or reimbursement for expense.

A New Hampshire case that was reported this morning in WorkCompCentral News is a perfect example of why physicians have a difficult time understanding how the law impacts what is, or isn't an injury.

The Supreme Court of New Hampshire decided that the Legislature intended to exclude a former business owner's depression from the list of compensable injuries, in the case of In Re Appeal of Letellier.

In the months before the business closed, Letellier saw a nurse at Concord Psychiatric Associates because of stress. He was diagnosed with major depression and hypertension, and filed a workers' compensation claim with Chartis Insurance for mental stress and severe depression.

The state's Compensation Appeals Board (CAB) awarded Letellier reimbursement for medical bills and expenses, but did not award indemnity benefits. Both parties appealed, with Letellier arguing for indemnity benefits and Chartis contending that the injury was not compensable at all.

The state Supreme Court noted that while major depression arising from work-related stress can be compensable, state law specifically exempts mental injuries caused by "any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action, taken in good faith by an employer." In other words, the statutory language bars compensation for mental injuries caused by good faith personnel actions.

"Like the listed exclusions, the possibility of a business failure is a normal condition of employment," the court wrote. "It, too, is often precipitated by poor company performance or general economic conditions. A business failure is indistinguishable from the specifically enumerated exclusions. Viewing the plain meaning of the phrase 'any similar action' in light of this fact compels us to conclude that the phrase encompasses a business failure."

To add to a physician's confusion over causation, even the law can't agree sometimes! In this New Hampshire case, two of the five justices on the court's panel dissented.

Chief Justice Linda Stewart Dalianis wrote that the statute only excludes "mental injuries that result from a good faith personnel action." She explained that even if the Legislature did not intend to allow claims such as Letellier's, the statute's actual language appears to render his claim compensable.

"Moreover, I believe that because of our obligation to construe the Workers' Compensation Law liberally to give the broadest reasonable effect to its remedial purpose, we must interpret the statutory exclusion at issue narrowly," Dalianis wrote. "Thus, I would hold that the claimant's cumulative occupational stress and resulting depression, caused by the failure of his business, do not fall within the statutory exclusion from the definition of 'injury.'"

When I lecture to physicians, I tell them that many things which they see medically as measurable science is described legally in fictional terms. I think this case illustrates that point.workers compensation, work comp, injured worker