Post-Traumatic Stress Disorder and Workers’ Compensation

Under the laws of every state, if you have suffered an injury on the job, you can seek benefits through the state’s workers’ compensation laws. While certain types of injuries are clearly covered—traumatic injury and repetitive stress/motion injuries are almost always covered—some are less certain. For workers who have been exposed to conditions that cause post-traumatic stress disorder, or PTSD, many states have struggled to determine whether workers’ compensation should be provided.

The Sources of Post-Traumatic Stress Disorder

Work-related PTSD has been reported as resulting from a broad range of events, including:

• Witnessing work-related acts of violence, including co-worker attacks
• Working in jobs that necessarily involve danger, violence or frightening activities, such as law enforcement, fire prevention, paramedic services or emergency medicine
• Exposure to threats of violence by co-workers

The Basis for Compensation for Mental Disability in New Jersey

Under established New Jersey law, an employee may be eligible for workers’ compensation benefits for mental disability or injury (which covers PTSD) if five requirements can be shown:

• The employee’s working conditions were stressful
• Credible evidence must show that the employee found the working conditions stressful
• The identified “stressful working conditions must be unique to the specific workplace
• There must be medical testimony demonstrating a “psychiatric disability”—the finding cannot be based on the mere statement of the employee
• The workplace must have been a (not necessarily “the”) material cause of the psychiatric disability

The Impact of a Pre-Existing Condition

One of the principal challenges in successfully prosecuting a workers’ compensation claim for PTSD or almost any other mental disability is the concept of a “pre-existing condition.” With most compensable workplace injuries, the employer is said to take the employee as they found them, i.e., if an employee has brittle bones or a weak heart, the employee can still seek workers’ compensation benefits if the condition is aggravated at work. However, in a recent New Jersey case, the court of appeals found that such is not the case with respect to mental disability. The court held that a potential claimant, who had experienced sexual abuse as a child, could not recover workers’ compensation benefits because of psychological injuries suffered when a threatening environment at work triggered reactions tied to the childhood sexual abuse.

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At Taylor & Boguski, we bring more than 70 years of combined legal experience to injured workers throughout New Jersey. For a free initial consultation, contact our office online or call us at 856-200-8989.

Connecticut Legislature Seeks to Expand Work Comp Coverage for Psychological Injury

The Connecticut legislature is entertaining two separate proposals to increase workers’ compensation benefits for people who experience psychological or emotional distress related to exposure to workplace violence. Efforts to amend the state’s workers’ compensation laws to address this concern have failed in each of the last two legislative sessions.

Connecticut seeks to join New Jersey and some other nearby states (Massachusetts, Rhode Island and New York) in allowing workers to recover compensation for so-called “mental-mental” injuries. Workers’ compensation customarily views psychological injury three ways:

• Physical-mental injuries, where a physical injury leads to mental disability, i.e., a blow to the head leads to memory loss or brain injury. These types of injuries are almost always compensable.
• Mental-physical injuries, where stress, depression, anxiety or other mental conditions caused by some work-related activity result in physical problems, such as high blood pressure or heart disease. These types of injuries are frequently compensable.
• Mental-mental injuries, where some mental experience at work, such as witnessing an accident, causes emotional or psychological impairment. These types of injuries are the most difficult to prove, and getting compensation for them poses significant challenges.

Ironically, Connecticut routinely provided workers’ compensation benefits to people suffering emotional or mental distress, even in the absence of physical symptoms, until 1993. Since the legislature amended the workers’ compensation laws that year, claimants in Connecticut may only recover for mental or emotional injuries if there are also physical injuries.

The bills before the Connecticut legislature specifically address the situation where a worker either witnesses the death or serious injury of a co-worker, is exposed to workplace violence, or witnesses the aftermath of either. The bill is opposed by ambulance workers, who fear that their workers’ compensation premiums will skyrocket if the bill is passed.

Contact Taylor & Boguski

At Taylor & Boguski, we have more than 70 years of combined experience representing injured workers across New Jersey. For a free initial consultation, send us an e-mail or call us at 856-200-8989.

Tennessee Legislature Considers “Workers’ Compensation Option”

Joining the trend set by Texas and Oklahoma, the state of Tennessee is looking at a statute that will create a “free market” alternative to the requirement that Tennessee employers carry a policy or workers’ compensation insurance. Sponsors say there is strong legislative support to amend the state’s workers’ compensation laws to reduce costs to employers while still protecting workers and their families.

The main thrust of the proposed law is to allow private employers to “opt-out” of the state’s currently mandated workers’ compensation program and set up their own plans for compensating injured workers. The statute would require that employers meet certain financial requirements to qualify to opt out. The plan would not be accessible to employers in either coal mining or construction, because of the inherent job risks.

Proponents say the bill would allow many businesses to cut workers’ compensation costs in half.

One of the essential components of the workers’ compensation program in Tennessee, as in New Jersey and other states, is the “exclusive remedy” provision. As a general rule, when employers have a valid policy of workers’ compensation insurance, an injured worker must use the state’s workers’ compensation system as his or her “exclusive remedy” to recover for workplace injuries. Under the proposed Tennessee law, employers would lose this protection if they opt out of the state-mandated program.

Sponsors of the bill point to alleged successes in Texas and Oklahoma, citing statistics that show that approximately one out of every three employers in Texas opt out of the state’s workers’ compensation program. Nonetheless, employers have been able to successfully manage their own injury protection plans. Sponsors also note that the state currently allows cities, counties and school districts, as well as employers with fewer than five employees, to opt out.

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At Taylor & Boguski, we bring more than 70 years of combined legal experience to people throughout New Jersey. For a free initial consultation, contact our office online or call us at 856-234-2233.

Workers’ compensation programs have been instituted in all fifty states, including New Jersey, to provide a streamlined process for injured workers to obtain benefits to cover lost wages and medical expenses. Unfortunately, a large percentage of claims, including many legitimate claims, are initially denied by workers’ compensation insurance companies. There are some valid reasons why a workers’ compensation claim will be denied:

• The injury was not work-related
• You didn’t report the claim within the period of time required by law
• The injury may not be one that is covered by workers’ compensation—for example, some states don’t allow coverage of psychological injuries, including stress-related clai
• The injuries are not serious enough to prevent you from working

If none of the above situations applies and your claim has been denied, you are not necessarily out of luck. Every state, including New Jersey, has a process by which you can appeal the denial of a workers’ compensation claim. Often, you will find specific instruction on how to appeal the denial in the denial letter itself.

Before filing any formal appeal, you should contact the insurance company that provides workers’ compensation coverage for your employer. The denial may have been a mistake, or may have been based on erroneous or incomplete information.

In New Jersey, there are two ways you can appeal the denial of a work comp claim. To obtain a formal hearing, you must file what is known as a “claim petition.” An informal hearing may be arranged by submitting an Application for an Informal Hearing.”

The informal hearing process typically moves faster. Once you file your application, you will be assigned to a workers’ compensation judge and will receive notice of a hearing date. If you are unsatisfied with the judge’s ruling, you may still file a formal claim petition and seek a formal hearing.

When you request a formal hearing, you will be assigned to a “judge of compensation,” and will also be scheduled with a hearing date. However, that hearing may not take place for six months or more. In addition, the hearing will look more like a trial than a conversation (the informal hearing usually involves the judge asking questions of both parties). The formal hearing may include witnesses, as well as documentary evidence.

Contact Taylor & Boguski

At Taylor & Boguski, we bring more than 70 years of combined legal experience to injured people throughout New Jersey. For a free initial consultation, contact our office online or call us at 856-234-2233.