Bernard was recently interviewed by Workers’ Compensation Institute about depression and workers’ compensation claims. The article focuses on how states vary in their handling of this sensitive and overlooked issue.
States Vary in Handling Depression as Workers’ Comp Claims
By Jim Thompson
Sarasota, FL (WorkersCompensation.com) – Whether through the actual circumstances of a workplace accident, or the worry of dealing with medical treatments and wondering about the future in the wake of the accident, mental issues like depression can and do accompany physical injuries in workers’ compensation claims.
“When you get hurt on the job, all stresses in life ramp up,” says Bernard Nomberg, a Birmingham, AL, attorney whose practice includes workers’ comp cases.
As a general rule, however, states place some limits on compensation for depression and other mental issues. For example, many states require that any claim for mental issues must be associated with an actual physical injury, and will routinely limit compensation for treatment with depression and other mental issues to the time that the physical injury is being treated. Once an accident victim is cleared to return to work, coverage of treatment for mental ills is suspended.
“Insurance companies don’t like covering them,” Nomberg said, because of the subjective nature of mental health claims like depression.
According to Dr. Teresa Bartlett, senior vice president for medical quality at Memphis, TN-based Sedgwick Claims Management Services, a third-party administrator, five states — Montana, North Dakota, Ohio, Washington and West Virginia — specifically exclude depression from workers’ comp claims.
Other states, like Michigan, do allow those claims, but subject them to a rigorous standard of proof that they are work-related. In Michigan, Bartlett said in an interview with WorkersCompensation.com, such claims must be “absolutely grounded in fact.”
All of that is a familiar dynamic for Nomberg with his work in Alabama workers’ comp cases. In one of his cases, a woman working in a check-cashing business was held hostage during a robbery. She managed to escape, but while running from the business, she tripped over a curb and broke an arm.
Her physical injury was covered, but as soon as she was released from care, the insurer stopped covering the visits to a therapist that had been part of her treatment for mental trauma resulting from being held hostage.
His client had been making good progress with the therapist, and was able to use some separate disability insurance to continue the treatment, but the workers’ compensation insurer moved swiftly to cut payments to the mental health therapist.
“They didn’t hesitate,” Nomberg said. “They booted her from care.”
“A lot of carriers don’t want to fool with mental injuries,” Nomberg said, adding that some carriers will go to considerable lengths to keep mental issues out of a workers’ comp claim.
According to Nomberg, some carriers simply will wait for an injured worker seeking coverage for mental issues to file a lawsuit trying to compel that coverage. The time it takes for the lawsuit to move through the courts, however, is likely to frustrate the injured worker to the point that they simply abandon the legal action, Nomberg said.
Coverage for depression or other mental issues in a workers’ comp claim is a particularly tricky issue for emergency responders, Nomberg said, because their work often puts them in situations where mental issues are a likely outcome, as they come face-to-face with severely injured people and face other potentially traumatic situations.
According to Bartlett, there are states that allow for mental distress in workers’ compensation claims filed by first responders such as emergency services personnel and hospital emergency room workers.
Nevada’s state workers’ comp regulations have specific language relating to claims for mental issues filed by first responders, Bartlett said. That’s also the case in Alaska, she said, although that state has a high threshold for showing that depression or other mental challenges are work-related.
And, according to Bartlett, Colorado allows for those issues in workers’ comp claims, but requires that the incident for which such coverage is being sought be outside the normal job experience for the emergency worker.
Minnesota allows for some coverage of mental issues in workers’ comp claims, limiting that coverage to claims involving post-traumatic stress disorder, Bartlett said.
On the other side of the equation, workers in more routine settings who contend that the mental stress of the workplace has become tantamount to a workplace injury likely will face a tough time in making that case. Such cases “are rarely covered under workers comp,” Bartlett said. Only two states, Rhode Island and Wisconsin, allow those types of claims, Bartlett said.
Interestingly, a June decision by the North Carolina Supreme Court that could have moved the state toward a more comprehensive approach to dealing with issues of depression and other mental health problems in workers’ comp cases was effectively negated in July when Gov. Roy Cooper signed House Bill 26 into law. The bill had passed unanimously in both the state House and Senate.
Hearing an appeal in the case of Johnnie Wilkes, a landscaper for the City of Greenville, who was injured in a vehicle accident at work in 2010, the state’s high court ruled that once a worker meets the initial requirement of showing that an injury is directly related to a covered accident, a “rebuttable presumption” — an assumption made by a court that is taken to be true unless someone proves otherwise — is created to the effect that additional medical treatment is related to the compensable injury. Wilkes had claimed that the vehicle accident and his injuries had led to anxiety and depression.
House Bill 26 shifted the burden of proof to injured workers with regard to showing that a subsequent “injury or condition” stems from a work-related accident.
Generally speaking, though, there has been a shift in attitude toward depression and other mental problems among both employers and other entities in connection with workers’ compensation claims, Bartlett indicated.
A number of employers, for instance, now provide employee assistance programs including mental health services, and third-party administrators also are being more resourceful in approaching issues like depression, according to Bartlett.
“Many employers are embracing more of an advocacy approach, rather than deny, deny, deny,” Bartlett said.