B. Limitations and Application of the Law to Stess Claims


As the previous overview of the nature of stress suggests, the field of mental disability and stress offers a minefield of difficult questions, both from the standpoint of medical understanding and the standpoint of the law. As we have already stated and reemphasize here, there is one fundamental difference between mental disability and physical disability which creates an almost impenetrable barrier between the claimant and the legal factfinder in a worker's compensation case. That difference is that the human mind cannot be measured. Its health is a matter of pure subjectivity manifested exclusively through behavior. Consequently, it is unavoidable that a determination of causation is a mere exercise in conjecture and probabilities, not a true objective investigation of precise facts. The degree of factual certainty that can be achieved in most physical injury situations simply cannot be achieved in the field of mental complaints.

This is not a point of view held uniquely by this author. Any review of the medical and legal literature dealing with mental illness and the role of stress in the development of that illness accepts the fundamental limitations inherent in the study and understanding of mental distress. As a generally accepted principle, "the precise etiologies of most mental disorders are not readily identifiable. A mental disorder may arise from many possible combinations of factors in the individual's genetic or biological makeup and the individual's environment."23 As we stated earlier, the etiology of most mental disorders is simply "life" itself. It is an "undisputed medical conclusion that the integral etiological factors of a claimant's mental disability, a constellation of the disabled claimant's personal subjective mental life and objective employment and non-employment environmental stresses, cannot be quantified or qualified."24

This uncertainty has legal consequences. For one, any attempt to allocate percentage values for the various causes of a mental problem is simply nonsensical. One simply cannot decide that, say, 10% of the worker's condition is due to recent marital strife, 10% is due to workplace events, and 80% is due to previous life-shaping factors. As observed by Dr. Hubert Smith25, "[p]sychiatry has not advanced to the point where it is an exact science in the same sense that physical medicine is an exact science. A physician on the witness stand is able to declare positively whether or not the defendant has a fracture. He or she can even describe its duration and severity in detail. Psychiatry, on the other hand, cannot be so positive about neuroses and mental illness, particularly when the law is primarily interested in one isolated act, while psychiatry takes cognizance of all the influences that have come to bear on the individual throughout his lifetime . . ."

As we discussed earlier, the inability to quantify the effect of particular events arises not just from the impossibility of breaking down the impact of each person's countless life factors by percentage, but also from the fact that the same factors may have a totally different impact on each individual. The reality is that an event apparently harmless to the average individual may indeed have an extremely detrimental effect on someone with a history of prior mental complaints. A bad performance review may simply prompt an individual from a healthy family environment to work with greater determination. However, if the individual involved is, say, a woman abused by her father and beaten by her husband, the bad performance review might be devastating. It is false to say that the bad performance review for such a woman cannot be an important factor. Quite on the contrary, it might well be the critical factor which results in the ultimate inability of this woman to function in the workplace (at least for a while). The problem is that no psychiatrist or psychologist will be able to tell you with any degree of objective factual certainty how important the role of the workplace event was in the development of the functional disability.

The inability of medical science to provide definitive information in these matters is palpable. There are no objective means by which to measure the degree of a person's adjustment to life, no "hard" data easily verifiable by other physicians, and no firm categories within which experts can diagnose particular mental complaints. "In psychiatry, there are not even firm rules as to what the elements [in a category] are."26 The science of psychiatry remains a qualitative rather than a quantitative discipline. Moreover, "since there are no objective physical criteria or other external criteria to validate a diagnosis of a mental disorder, such a diagnosis cannot be said to be independently accurate or inaccurate."27

A mental disorder can only be defined as abnormal behavior, but this leads to all kinds of problems. Just what is "abnormal?" This definition is actually a function of societal rules and norms. "[A]ll behaviors are understood and evaluated in terms of social norms." Therefore, "psychiatric syndromes are matters of social and political convention." Taking two very broad examples, certain perfectly normal behavior in central Africa or Siberia may be viewed as decidedly abnormal in the United States. The habits of the art gallery crowd in New York might well be considered deranged in the farmlands of Iowa. As a result, in both cases, psychiatrists could well discover a mental disorder when a particular behavior is exhibited in a setting where such behavior is not expected. What is "abnormal" will also depend on the subjective preferences (values) of the medical expert or legal adjudicator observing the behavior. "What psychiatry lacks is a theory that is free of all such values."

Furthermore, medical experts have received many different types of training and will be inclined toward different psychiatric schools of thought, producing a wide variety of different and often contradictory diagnoses and recommendations for treatment. As Sara J. Sersland has pointed out in her excellent summary of the various legal standards for compensability of mental disabilities:

In psychiatry there is wide divergence of thought even as to the basic underlying theories of personality and psychopathology. An example of the effect of this divergence may be found in the wide range of opinions that exists concerning the cause of an anxiety neurosis. The proponent of a behavior modification theory considers it to be a conditioned response to some abstruse component of a previously threatening stimulus. The psychoanalyst views it as arising from the unconscious mind, evoked to protect the individual against executing some primitive drive that is not compatible with social practice. Those who follow the organic approach believe anxiety to be related to certain biochemical abnormalities in the blood and probably in the brain. Even the comparatively simple question of whether or not psychopathology exists in a particular person may be subject to much debate.

Although divergences in opinion also exist within other fields of medicine, the divergences do not run so deep and are not so pervasive as in psychiatry. For example, one orthopedic surgeon may disagree with another orthopedic surgeon on the question of whether spondylolisthesis is an acquired or congenital phenomenon, yet both agree wholeheartedly on the nature of the abnormality in terms of its physical components and typical symptomatology. Moreover, the two orthopedic surgeons' disagreement on this one issue will probably not be indicative of their disagreement concerning the etiology of other abnormal conditions. In other areas of medicine, there are no different schools of thought representing fundamentally different viewpoints that affect essentially all areas of practice, as there are in psychiatry.

It is also important to remember that medical professionals do not exist merely for the benefit of lawyers, ready to attribute causes for their patients' problems in a legal proceeding. They are there to treat the patient. For example, DSM-III-R does not exist in order to pinpoint causation -- it exists as a tool for identification and treatment. In fact, "psychiatrists in routine practice do not place a premium on being able to arrive at a correct diagnosis, at least during the initial stages of treatment. Their experience and training have led them to focus not on labels for the patient's condition, but on the symptoms of the patient and means to alleviate the symptoms." As Ms. Mussoff points out:

A prerequisite to any treatment is, of course, the accurate identification of the existence of the disease. To further its goal of treating disease, the medical profession operates on the assumption that it is more acceptable error to label a healthy person sick than to label a sick person healthy. In physical medicine, this is generally a harmless assumption because of the use of relatively objective diagnostic procedures and because of the opportunity during the course of treatment to reevaluate and revise the original diagnosis.

The bias toward finding disease has, however, been carried over from the objective area of physical medicine to the more subjective area of psychiatry and results in "an ever extending net. Into this net of mental illness are drawn many allegedly psychologically ill persons who are considered ill on the basis of minimal or unclear data." Thus, in response to the accepted assumptions of their profession, mental health experts are more likely than not to find the presence of a mental disorder, and in doing so may have a considerable impact upon the workers' compensation system. For example, the labeling of a particular set of symptoms as "anxiety neurosis" instead of "normal nerves" can mean the difference between a worker's being granted or denied compensation.

The dangers of labelling and blind legal acceptance of medical opinions cloaked in technical jargon cannot be overstated. To the extent that a psychiatrist uses diagnostic labels, those labels are often misconstrued by lawyers and judges to mean far more, and contain far more certainty, than the psychiatrist ever intended. Psychiatrists simply cannot, and usually do not wish to draw strict lines of demarcation between normal and abnormal mental conditions. A typical person will almost certainly be "depressed" on occasion about certain events in his or her life. When do these moments rise to the level of a "depressive neurosis?" The psychiatrist, when acting as a treater, does not really care about labelling, yet judges may base their ultimate decision on whether that label is attached to the claimant or not. This dependency on labelling makes no sense, yet in a field as indeterminate and imprecise as mental illness, judges often are so desperate for some kind of safe haven for their decisions that they rush to diagnostic labels for security.

The problems facing the legal factfinder in a mental disability case are therefore enormous. Because of the multitude of causation theories, the purely subjective bases for all medical analyses of mental distress, and the conflicts about the most basic terminology used by mental "experts," legal inquiries about causation are likely to produce just about any answer that a particular litigant wishes to have produced. Since any abnormal behavior suggesting the presence of a mental disorder must be observed and measured from the subjective standpoint of the "expert" doing the analysis, the resulting medical opinion is not subject to any means of objective confirmation, leading inevitably to a situation where the factfinder's choice between expert opinions becomes haphazard and itself subjective.


So what is the factfinder to do when faced with a claim that work caused or contributed to a mental disability? On the one hand, work will be a shaping factor in the mental makeup of every individual who engages in employment. In a sense, employment stresses will always be at least a little bit of an aggravating factor when something has gone wrong in the behavior of a claimant. On the other hand, determining precisely what role the workplace played, and to what extent it was detrimental, is nearly impossible to gauge accurately. Research into the causes of mental disabilities reveals few factors that can be identified as sole or critical precipitators. At best, psychiatric research can merely show that some factors are mathematically more likely to be linked to disability. "Requiring that a worker prove a causal connection between his disability and his job by pinpointing a particular cause may therefore be imposing upon him a more difficult burden than the workers' compensation system contemplates." Requiring the factfinder to determine the impact of employment on the claimant may be imposing an objectively impossible task.

So what does the history of legal factfinders deciding worker's compensation mental stress claims tell us? It turns out that the process of fact finding, imposition of legal limitations, and determination of entitlements is actually not a process of awarding benefits on the basis of actual or factual causation. Instead, societal values are utilized to reach a final legal result. At the most basic level, these values center on 1) achieving greater mathematical probability of work-relationship, 2) compensating on the basis of fault, and 3) compensating those individuals who most closely resemble the average or reasonable person.

The mathematical probability value is easy to understand. After all, the goal of the law is to determine factual causation. When the nature of the issue makes this determination difficult, the natural response is to seek formulas for achieving high mathematical probability. The impossibility of measuring the exact contributive degree of external factors (such as workplace stress) renders the determination of causation "inherently vulnerable to a decisionmaker's evaluative choice of whether the factual probabilities preponderate to the degree that the contributive employment factors aggravate a claimant's preexisting mental condition, or whether the factual probabilities preponderate to the degree that the claimant's preexisting mental condition constitutes a collateral cause of the disability. The degree of evaluative latitude which exists at the fact-finding level is, therefore, extraordinary."

Mathematical probability comes into play in a very natural way. Looking back at the examples given at the beginning of this report, a magistrate is likely to find that Sam, the electrician who saw his friend plunge to his death, is mathematically highly probable to have suffered traumatic after-effects from the experience. The unusual and intensely traumatic event produces high mathematical probability of work-relationship. On the other hand, Mary, the less-than-stellar worker receiving a bad performance review, is less likely to achieve success in showing workplace causation, since the mathematical probability of becoming disabled due to common acts of supervision is, in the likely view of most magistrates, going to be much less.

The decisionmaker applying the common law or underlying statute defining the scope of entitlement will also focus on the nature of the workplace event and evaluate whether this event is "good" or "bad." In this regard, it must be noted that stress is an essential everyday component of life. Life would be empty without it. This stress can be good, increasing the quality of job performance, or it can be bad, destroying the efficiency and quality of an individual's work. We should remember that "psychiatry does not necessarily differentiate good from bad stress. For example, a job promotion, whether it actually requires increased responsibility and effort, might nonetheless be experienced by a depressed individual as stressful because of what might be expected."34

The legal decisionmaker, however, more often than not feels compelled to characterize the stress as being good or bad. Unfortunate events, and even more commonly, wrongful employer acts which are alleged to have contributed to mental distress, are much more likely to be compensated than benign or innocent events and acts. Especially in the field of personnel interactions and decisions, "fault" may become the determining factor.35 When an employer behaves improperly and the claimant seems mentally imbalanced thereafter, the decisionmaker is very prone to take recourse to the "fault" of the employer in deciding to award benefits, whether or not the wrongful behavior actually contributed to the claimant's mental distress. Similarly, when the employer acts appropriately, a decisionmaker is more likely to not award benefits, even though the employer's actions may well have contributed to the employee's mental imbalance.

As noted early in this report, "fault" is not supposed to play a role in worker's compensation. However, in the indeterminate area of the mental stress claim, the lack of objective certainty about causation inevitably invites recourse to the crutch of awarding benefits on the basis of "fault." For example, a magistrate is much more likely to rule in favor of Mildred, the victim of sexual harassment, than in favor of Mary, the poor worker, simply because Mildred's employer acted wrongfully, while Mary's employer was merely trying to achieve better performance by its workers. The first employer has "fault," whereas the second employer does not. Any review of the decisions reached in the worker's compensation field shows clear evidence of a pattern of compensability based upon "fault."

Finally, the decisionmaker is likely to utilize personal experiences and his or her own sense of how a "normal" person would react to an event in order to judge whether the claimant at hand was mentally injured by workplace events. This too is a crutch, since there is no objective relationship between how a reasonable or "normal" person reacts to a workplace stress and how the particular individual filing a claim reacted to that same stress. But use of this crutch is likewise natural and inevitable. Events which seem a likely source for distress in the average or "reasonable" person are simply more attractive bases for the finding of work-relationship.

Thus, Sam, the electrician, is likely to receive benefits, because an average person is likely to be deeply affected by a tragedy as profound as that experienced by Sam. On the other hand, Mary the bureaucrat is not average. Her reaction seems disproportionate and somehow not right, since she "deserved" the poor performance review. As for John, who imagines threats from innocent co-workers, the reaction is about as far away from that of the average or "reasonable" person as one can get. It is most unlikely that the magistrate will award benefits to such an individual because his reaction is so far from the norm.

Using value judgments in the field of mental claims cannot be avoided because the totally subjective nature of such claims (being incapable of objective verification) leaves no other moorings for deciding the case. A judge must determine whether a claimant is credible, whether his or her behavior is socially abnormal (and to what extent), whether the events occurring at work were "good" or "bad," and whether it is likely that the events could have caused the claimed harm. All this is done from the perspective of the judge, who has no choice but to begin with a measurement of how a normal person such as himself or herself might react to the same events. This utilization of value judgments must be acknowledged if one is to properly understand and apply the law. As Dr. Irwin Savodnik36 warns, in psychiatry "what constitutes an illness may turn out to be a moral judgment on the part of the community. There is nothing wrong with moral judgments, but when they are disguised as medical-scientific determinations serious consequences may ensue." It is essential that this be understood by the lawmaker or judge utilizing the expertise offered by psychiatry in mental stress cases.

A particular danger which also lurks in the field of mental stress claims is the behavior known as "malingering." In its commonly used form, malingering consists of the voluntary presentation of false or exaggerated physical or psychological symptoms. "Etiologically, the primary cause of malingering, apart from anti-social personality disorder and other pathological character traits, is the desire for secondary gain."37 This can include such benefits as the avoidance of work or the receipt of worker's compensation payments. The problem in the area of mental stress is that malingering is exceedingly difficult to diagnose. The question of malingering "opens up one of the most elusive fact-finding difficulties in the law of workmen's compensation."38 The reason for the dilemma is obvious: "The pivotal issue in malingering is the motivation of the individual. Since one person cannot determine another person's motivation with objective certainty, malingering is actually an accusation rather than a diagnosis."39

Complicating this problem area even more is the related phenomenon Professor Larson calls "compensation neurosis," which "may take the form of an unconscious desire to obtain or prolong compensation, or perhaps of sheer anxiety over the outcome of compensation litigation - in either case producing a genuine neurosis disabling the claimant."40

Also, individuals may consciously or subconsciously attribute all of their problems to the workplace and thereafter sincerely believe that work is the source of their mental complaints. Instead of work being a positive factor, work may become an after-the-fact rationalization. As a result, neither the psychiatrist nor the legal factfinder can take a litigant's claim of mental disability at face value. Mental disability claimants will convince themselves of their mental illness and will maximize their distress. In practice, it is nearly impossible for a psychiatric expert to separate these factors and for any legal factfinder to distinguish between these nuances. In effect, once a claimant has decided that work is the primary cause for his or her distress, work has in fact become the primary cause, and no legal factfinder will ever be able to truly distinguish between work actually disabling an individual and work being used by a disabled individual as an after-the-fact explanation for his or her distress.

Dr. Eric H. Marcus has proposed that the proper description of what is happening is:

A worker's attitude towards his job determines his perception of the circumstances which ultimately determines the amount of stress he feels. Perceptions do not arise in a vacuum. Many underlying variables establish the nature of one's perceptions - attitude being the most important variable in occupational matters. Secondary gain features such as wishes for revenge, monetary reward, and release from tedious employment all influence one's attitude and perception.41

Given this complex array of attitudinal and perception factors, it is clear that no one can make a meaningful distinction along the spectrum from true mental illness to compensation neurosis to malingering. This dilemma, more than any other facing legislators and adjudicators dealing with worker's compensation stress claims, gives rise to the utilization of the above-described values to determine which cases will result in benefit awards, and provides one of the most persuasive arguments for limiting the period of time that any worker can receive compensation for a mental disability claim.

So how do these values manifest themselves in state statutes and common law standards? One option is to not permit recovery for stress claims at all, by requiring that there be a physical injury component to any mental claim. As will be discussed later in this report, as many as 22 states may have such a requirement. Some background may be appropriate here: many legal commentaries, including that of Professor Larson, broadly discuss worker's compensation mental claims within the confines of three separate categories: 1) physical-mental, 2) mental-physical, and 3) mental-mental. Under the first two categories, a person either suffers mental distress because of a physical injury or suffers physical consequences because of his or her mental distress. These two categories are generally compensable throughout the country and not particularly controversial. Such lack of controversy is due primarily to the fact that worker's compensation systems are comfortable compensating physical injuries, which are for the most part objectively identifiable and quantifiable. Once this physical component is present, judges believe there is sufficient solid ground for a determination of work-relationship so that the mental component may be compensated. The focus of this report is not on these physical-mental and mental-physical cases. Stress cases fall into the last category, "mental-mental," and it is in this category where the great controversy rages on.

Legislators, in setting the statutory limits to recovery in mental cases, and the courts, in defining the legal standards of causation, have established many different restrictions in order to get a handle on the potentially explosive number of mental stress claims. Speaking very broadly, these restrictions fall into two basic categories: 1) sudden stimulus and 2) unusual stress. Reflecting the values of mathematical probability, punishment of fault, and adherence to the average person standard, legislators and courts often apply one of these two tests as prerequisites for awarding benefits.

Under the first test, requiring sudden stimulus, a person must demonstrate that his or her mental distress is the result of a singular, easily identifiable traumatic event. This may include sudden fright or mental shock causing "nervous" injury. Such a standard falls easily into the worker's compensation tradition of looking for an "accident" or moment of "injury" as the source for compensating a worker and satisfies the value of mathematical probability most easily. The sudden stimulus standard also sharpens the focus of the legal decisionmaker so as to make assessment of the "good" or "bad" nature of the event (and thus the degree of "fault") more easily assessable.

Under the second test, requiring unusual stress, a person claiming that gradual stress has produced a mental disability must show that such stress is more than just the occurrence of everyday pressures or events likely to occur regularly to all individuals. Thus, when a worker argues that he or she has been the subject of sustained stress, such as tension, worry, strain, frustration or harassment, the worker must show that such stress goes beyond the stimuli of everyday employment life which all employees must experience. Such a standard satisfies in particular the desire to limit recovery to individuals that approximate the "normal," "reasonable" or "average" person. Here too, the focus on unusual events makes the assessment of fault easier to attain.

There are, of course, other particular techniques employed by legislators and judges who establish the contours of mental stress law. For example, as will be examined more carefully later in this report, Michigan requires that compensable mental disabilities must be based on "actual events of employment, not unfounded perceptions thereof," and that these events must contribute to the mental disability in a "significant manner." However these restrictions may read, they are all intended to achieve the goal of determining true factual workplace causation for a claimant's mental distress. Since such factual causation is impossible to determine with anything resembling objective certainty, the restrictions act as an artificial tool which may be utilized to get as close to the goal of determining factual causation as possible.

Once that goal is reached, however, many additional questions remain to be answered. These include, 1) when does work-related mental stress become disabling?, 2) how long does a disability last and for what period of time should one attribute that disability to the workplace?, and 3) how does one predict the future course of an existing mental disability? The same problems afflicting the question of causation also burden the decisionmaker in answering these subsequent questions. "The psychiatrist's or psychologist's ability to predict the future condition of his mental patient is perhaps plagued by even greater doubt."42 Is an individual's mental distress a temporary problem, or does it form the basis of a permanent disability? To whom does one listen in trying to determine the ability to work? The claimant? The supervisor? The therapist? Is a claimant who has been judged to be "abnormal" by virtue of a finding of mental injury even competent to testify about his or her ability to function in the workplace? All of these difficult and often impenetrable questions reveal the enormous dilemmas facing the law of worker's compensation, even as the number of stress claims grow nationwide.


23"Workers' Compensation: Compensating Claimants Who Suffer Psychological Disabilities Caused Solely by Job-related Mental Stress," by Anthony Michael Stiegler, Tulane Law Review, Vol. 60, Jan. 1986, p. 661.

24"Causation in Workers' Compensation Mental Disability Cases: The Michigan Experience", by Lawrence Joseph, Wayne Law Review, Vol. 27, No. 3, Spring 1981, p. 1127.

25"Problems of Proof in Psychic Injury Cases," by Hubert Winston Smith, Syracuse Law Review, Vol. 14 (1963), p. 663, n. 138; cited in Joseph, p. 1128, see footnote 24.

26One of the most thorough examinations of the weaknesses inherent in the application of the law to mental stress cases is provided by Joan Mussoff, "Determining the Compensability of Mental Disabilities Under Workers' Compensation", Southern California Law Review, Vol. 55, Nov. 1981-82, pp. 193-253. The quote is from p. 203. The subsequent discussion on analysis of behavior makes extensive reference to Ms. Mussoff's critique.

27Mussoff, p. 203, see footnote 26.

28"The Concept of Stress in Psychiatry", by Irwin Savodnik, Western State University Law Review, Vol. 19, Fall 1991, pp. 175-189. This paragraph quotes from pp. 183, 179 and again 183 respectively.

29"Mental Disability Caused by Mental Stress: Standards of Proof in Workers' Compensation Cases," by Sara J.Sersland, Drake Law Review, Vol. 33, No. 4, 1983-1984, pp. 751-816, 753-754.

30Sersland, p. 755, see footnote 29.

31Mussoff, pp. 205-206, see footnote 26; quoting Pollack, "Principles of Forensic Psychiatry for Psychiatric-Legal Opinion-Making," Legal Medicine Annual 261, 267 (C. Wech ed. 1971).

32Mussoff, p. 208, see footnote 26.

33Joseph, p. 1128, see footnote 24.

34Bussey, p. 128, see footnote 20.

35"Workers' Compensation for Mental Stress Arising From Personnel Decisions," by Stephanie Ann Schrimpf, University of Cincinnati Law Review, Vol 56, Fall 1987, p. 606.

36Savodnik, p. 181, see footnote 28.

37Bussey, p. 129, see footnote 20.

38Larson, §42.24(c), see footnote 3.

39Nininger and Foster, p. 101-87, see footnote 11.

40Larson, §42.24, see footnote 3.

41"Causation in Psychiatry: Realities and Speculations," by Eric H. Marcus, Medical Trial Technique Quarterly, Vol. 29, Spring 1983, pp. 428-429.

42Sersland, p. 756, see footnote 29