This report began by stating that the goal was to enlighten readers as to the complex and difficult nature of worker's compensation stress claims. The first thing that must be recognized is that mental disability cases are not like physical disability cases. They are decidedly different because they involve purely subjective factors which cannot be objectively measured. Nevertheless, the temptation has always been to squeeze such cases into a system of law that was designed to respond to physical disability cases. As a result, there has been confusion, constant legal change, and much political dispute.
For policy makers, it is fundamentally important that they begin any deliberations on this issue by recognizing the unique and ephemeral nature of mental stress. Whatever choice they make, they must keep in mind the inescapable limitations on medicine and the ability to make findings of fact in an area as purely subjective as mental distress. The notion that our systems of medicine and law are capable of objectively determining true factual causation for mental disabilities is a fallacy. It cannot be done. All we can do is try to come close, and in so doing, there is a choice between greater compensability and lesser compensability.
If policy makers choose to compensate every instance of workplace contribution, they must realize that this will result in benefit awards in virtually every case. Except in those rare instances of actual fraud or malingering, there will inevitably be at least some workplace causation in every case where benefits are awarded, and so the desire to have linkage between the workplace and the disability will have been achieved, but at the price of compensating an extremely large and ever-increasing number of claims.
On the other hand, if policy makers are unwilling to grant benefits as readily in the case of mental stress, they must consciously choose values for limiting such claims. If they establish such limits as requiring traumatic or unusual events, or excluding instances of normal personnel decisions, or limiting recovery to instances where it is more likely that an average person would be disabled, they will certainly achieve a much greater mathematical probability that work played an important part in the shaping of the mental disability. They will also come closer to meeting the "reasonable person" standard utilized in other areas of the law.
However, if policy makers choose to impose such values, they must realize that some claimants actually injured by the workplace will be left uncompensated. The reality is that some predisposed individuals with preexisting mental complaints will in truth have been severely disabled by the most inconsequential or benign of workplace events, yet limitations imposed on when compensation will be allowed will leave such individuals without an effective remedy in the worker's compensation system. The choice is a difficult one: make employers universal insurers of mental health (with an open invitation to the unscrupulous to commit fraud), or leave some people injured by the workplace without a worker's compensation remedy. It is not for this author to suggest that either policy choice is preferable to the other, but instead merely to suggest that the choice is complex.
Policy makers should also address the question of duration. Again, medical science today suggests that for the great majority of individuals, the impact of any one event or pattern of stress will not be long lasting. Most individuals achieve a new homeostatic balance. Consequently, if most mentally distressed individuals still have disabling complaints six months after work, the diagnosis of work-relationship should usually be reassessed, since it has become much more likely that work-attribution has merely become an after-the-fact rationalization (often stimulated by the litigation process), and that other factors are the true culprits for the continuing disability. But as we have stated, the medical science of psychiatry is not a quantitative one, and theories may change as it matures. It is certainly accepted that in occasional cases, the direct consequences of traumatic events can have long-lasting maladjustment effects. If one establishes an artificial cutoff to the period of compensability, those individuals suffering this rarer condition may be left without an effective remedy. Here too, the policy choice is a difficult one.
Policy makers must keep uppermost in their minds the fact that mental distress is not objectively real. It is only subjective, and therefore can only be measured by others (including psychiatrists and judges) by observing behavior. When behavior departs from the norm established by "average," "normal" or "reasonable" individuals, we define that behavior as constituting a mental illness, and that mental illness may manifest itself in an inability to function in the workplace, thereby forming the basis of a mental disability. When, how, and for how long such unique disabilities should be compensated within the confines of the worker's compensation system remains one of the most acute and difficult legal policy questions of our time.