Entitlement to compensation for workplace stress (the so-called "mental-mental" cases) is a new and constantly evolving area of law, with each state developing its own unique nuances and contours. Change, either in the form of new case law or legislative activity, has been common. Consequently, any attempt to categorize what is happening in all 50 states is fraught with a great deal of imprecision. Nevertheless, it may be helpful to get a general understanding of where Michigan law stands in relationship to the law in the other 49 states.
A general survey of state law suggests that only 28 states have explicitly recognized in some fashion the compensability of claims based upon workplace stress.43 Seven states have expressly ruled out such claims, while 15 others have not explicitly recognized recovery for "mental-mental" claims. Standards for recovery in the 28 states that do recognize stress claims range from extremely limited (such as Texas and Louisiana) to broadly inclusive (such as California and Michigan). Most states strike a reasonable balance between the two poles. Table 1 identifies where each state lies within this spectrum of standards.
The most limited standard for stress claims is where a "sudden stimulus" is required. The hypothetical case of Sam discussed at the beginning of this report is an example of an incident involving a "sudden stimulus." Sam, a utility lineman, saw his co-worker receive an electric shock and plunge to his death while engaging in the normal work activities of their employment. This event was not only unexpected and witnessed from close proximity, but also horrific in result. That he would be deeply impacted by the event is a proposition most people would find reasonable and that a disabling mental condition may result is also not unreasonable. A "sudden stimulus" requirement, because of its reliance on a discrete causative event, bridges the gap between the traditional requirement for physical injury as the basis of compensation, with its inherent intuitive link between an event and injury, and the less tangible but still quite real psychological impact of an event.
Proximity to a horrific event is probably the most common type of disability-producing sudden stimulus recognized by states which adhere to this standard. The collapse of a scaffold on which the claimant and a co-worker were working and where the co-worker plunged to his death is an example of this type of claim.44 Severe fright caused by proximity to an unexpected event such as an explosion has been the basis for disability compensation.45 Seeing a co-worker maimed or severely injured on the job is a related class of claims.46
Less obvious scenarios, however, have also provided a basis for compensation in this first category. Compensation was awarded to an individual based on a bad reaction to an infrequent but nonetheless regular task. The claimant, a maintenance worker, became psychologically disabled as a result of an episode of claustrophobia experienced while engaging in the annual cleaning of a boiler.47 An unexpected demotion has also been found to have been a sudden stimulus for a compensable psychological disability.48 Hypothetical claimant Juanita would likely be able to collect worker's compensation in a sudden stimulus state based on the reported confrontation with the client. Mildred (unnerved by her supervisor's sexual banter), Mary (distraught from her poor performance evaluation), and John (who suffered a nervous breakdown when greeted by a co-worker), however, would have difficulty showing a discrete event from which their disability derived.
The majority of states that recognize stress claims require that the stress be, at a minimum, "unusual." Larson defines "unusual" in the worker's compensation context as "greater than the stress of everyday life, or sometimes greater than that of ordinary employment."49 An example of such a requirement is Maine's statute, which requires that the stress be:
considered extraordinary and unusual in comparison to pressure experienced by the average employee; the work-related stress must also be the predominant cause of the mental injury. A mental injury is not covered if it is the result of disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer. The amount of stress is to be measured by objective standards, not the employee's perception.50
Hypothetical claimant Mildred would likely be able to obtain compensation under an unusual stress standard. She was the focus of sexual banter and comments by her supervisor. Her supervisor's conduct was not in the good faith furtherance of the employer's business and it was of a sort that is plainly unacceptable under any reasonable standard of workplace conduct. Sam would also likely be compensated. Mary, however, would probably have difficulty collecting compensation, because her claim is based on stress-producing acts by her employer that were a normal part of the working environment. All employees are subject to the stress attendant with the need to perform their assigned tasks in a workmanlike manner and, without bad faith on the employer's part, that stress is not unusual. Juanita and John are also unlikely to be awarded compensation under this standard for similar reasons.
The unusual stimulus standard is, in many ways, a compromise doctrine. While the sudden stimulus standard, with its focus on a discrete causative event, extends by analogy the concept of compensable personal "injury" to psychological disability, it does so in a limited way. An unusual stimulus test moves away from the physical injury origins of worker's compensation to a recognition of the less tangible but no less real concept of a disabling psychological condition. It does so, however, in a carefully delineated manner, as is illustrated by the Maine statute discussed above.
Legislators and the courts of other states often express the fear that stress claims, because of their nebulous nature and the ease with which they can be made, could flood the system. They also express the fear concerning stress claims that it is too difficult to sort the legitimate claims from the fraudulent claims. For example, the Rhode Island Supreme Court in Seitz v. L & R Industries, Inc. expressed this concern, which was described in Ms. Sersland's article as follows:
[C]laims will be voluminous if a neurotic reaction to ordinary work stress is compensable because work stress is extremely common in our society and, as such, is very easy to cite as the basis for a claim. The Rhode Island court warned that "[g]reat care must be taken in order to avoid the creation of 'voluntary' programs that may be seized upon by an employee at an early age if he or she is willing or, indeed, even eager to give up active employment and assert a neurotic inability to continue." Not only is a claim of mental injury easy to feign, noted the court, but also, at least with regard to the claim before the court, the cause of the injury is largely unknown.51
By establishing statutory criteria such as found in the Maine statute, the opportunities for fraud are reduced while compensation is still available to most legitimate claimants.
Scenarios where compensation has been awarded under the unusual stress standard typically involve cumulative stress of the type caused by harassment52 or dramatic increases in work load and/or hours53. The stress caused to smokers unable to smoke in the workplace, however, is not considered unusual enough to warrant compensation. A Colorado court determined that smoking bans in the workplace, however stressful to some individuals, were commonplace and denied compensation.54
The final category, used by only 9 states (including Michigan), merely requires that work stress contribute to the claimant's mental condition. The degree of contribution required may be established by statute and can be very low. Larson summarizes it in the following manner, "[t]he jurisdictions in this group say, in effect, 'We do not ask whether the stress is greater than that of ordinary life or employment; it is enough that the stress contributed to the breakdown.'"55 This is the least restrictive standard. In a state using this standard, all of the hypothetical claimants could recover if the "work contribution" bar was set low enough.
As this summary demonstrates, Michigan's law on stress claims falls decidedly toward the "liberal," highly-compensable end of the spectrum. Michigan is one of only 9 states committed to the open-ended work-contribution test for compensability. How Michigan ended up in this latter category is discussed in the next section.
43This overview draws heavily on §42.25(a)-(g) of A. Larson's Workmen's Compensation (Desk Ed.). The Desk Edition is an abridgement by Dr. Larson of his treatise, Workmen's Compensation Law, cited at footnote 3. Section references are true in either version. Larson's classification from least to most inclusive standards and inclusion of specific case citations and statutory examples allows for easy assessment of one standard against another.
44Bailey v. American Gen. Ins. Co., 154 Tex 430, 279 SW 2d 315 (1955).
45Simon v. R.H.H. Steel Laundry, 25 NJ Super 50, 95 A 2d 446, aff'd, 26 NJ Super 598, 98 A 2d 604 (1953)
46Pathfinder Co. v. Industrial Comm'n., 62 Ill 2d 556, 543 NE 2d 913 (1976).
47Sargent v. Board of Educ., 49 Md App 515, 43 A 2d 1209 (1981).
48Brown & Root Construction Co. v. Duckworth, 475 So 2d 813 (Miss 1985).
50Larson, §42.25(f), n.16.
51Sersland, p. 780, see footnote 29.
52Velazquez v. Triborough Bridge & Tunnel Auth., 550 NYS 2d 139 (App Div 1989).
53Stokes v. First Nat'l. Bank, 377 SE 2d 922 (SC Ct App 1988), aff'd, 410 SE 2d 248 (SC 1991).
54Riddle v. Ampex Corp., 839 P 2d 489, 7 I.E.R. Cases (BNA) 525 (1992), cert. denied (Colo., Nov. 11, 1992).