Today we’re featuring another guest post by our colleague Tom Domer of Wisconsin. Here Tom shares the legal tests that establish whether damages for mental injury will be awarded. For mental injuries following a physical injury, the standard is “Is the mental disability… related to the work injury?” For cases that don’t involve a physical injury, some states require that the stress that triggered the mental injury be extraordinary “beyond those stresses than the day to day emotional strain and tension which all employees must experience.” While these criteria can be difficult to meet, mental injuries are real and can be as debilitating as physical ones.
From time to time, headline stories appear in the national news about workers claiming compensation benefits for “mental stress” injuries. Most recently “former professor claims years of mistreatment by colleagues cause mental health breakdown – denied benefits”. These stories often add fuel to the fire that workers are filing claims that do not have merit.
Wisconsin is one of a handful of States that recognize mental injury in all its forms: physical trauma causing mental injury (“Physical—Mental”), non-traumatic mental stimulus causing mental injury (“Mental—Mental”) and mental stimulus causing physical injury (“Mental—Physical”). Many States whose legislatures have forced “workers’ compensation reform” have rolled back the latter two categories, only allowing mental injuries if they stem from a traumatic physical injury. Wisconsin litigation on the meaning of “injury” has involved various mental and nervous conditions, which, as the effects of mental stress on physical functions are better understood, help define and expand traditional concepts of disability. Since objective standards such as x-ray and MRI do not exist in work-related mental injury cases, establishing causation has always been problematic, provoking some skepticism from the courts.
“A neurotic mental disability is as real as any other disability and may be as disastrous.”
For example, in a seminal mental injury case, Johnson v. Industrial Commission, the Court said “Claims for mental injury under the Workman’s Compensation Act should be examined with caution and carefulness because of the danger inherent of malingering in such cases.” The cautionary proviso notwithstanding, the Johnson Court also recognized the reality and severity of such mental injuries: “A neurotic mental disability is as real as any other disability and may be as disastrous.” States have also wrestled with the appropriate criteria to apply to a mental injury. For post-traumatic mental injuries (those following a physical injury) the standard is straightforward “Is the mental disability (Post Traumatic Stress Disorder, Conversion Disorder, Psychogenic Pain Disorder, Depression, etc.) related to the work injury?” For the so-called “stress” cases that are non-traumatic, several States including Wisconsin, require that the stress itself triggering the mental injury be extraordinary – beyond those stresses than the day to day emotional strain and tension which all employees must experience.
Additionally, proof problems arise because the worker claiming a mental injury is often not pristine, routinely having a history of family abuse or strife and a significant prior mental health history. Nonetheless, these claims are serious and often compensable.
With over 30 years of experience representing injured workers in Wisconsin, Tom Domer was recently named the 2011 Milwaukee Workers’ Compensation Lawyer of the Year in Best Lawyers. Tom teaches the worker’s compensation course at Marquette University Law School, providing the instruction and training for many other lawyers. He lectures frequently around the nation. He also is a prolific writer, editing the national magazine Workers’ First Watch. He has co-authored over two dozen texts, including with his son and law partner Charlie, West’s Wisconsin Workers’ Compensation Law. Tom earned all his degrees in Wisconsin.