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Workplace tragedies create new perspective on comp

Workplace tragedies create new perspective on comp

It’s been a year, and at least a dozen workers have yet to step into the renovated, reconfigured, newly furnished offices of the San Bernardino, California, Health Department, whose employees were the targets of a deadly shooting that took place last December.

Fourteen people were killed and 22 seriously injured when two assailants fired into a rented banquet room at the nearby Inland Regional Center, where some 80 office workers were having a holiday party on Dec. 2, 2015.

Not part of the official tally of the dead and wounded are those whose injuries are limited to the mind, those who watched co-workers perish at the hands of a co-worker-turned-terrorist and his wife. Their injuries are nonetheless a major concern for officials at the health department — and the reason the office smells like new carpet and fresh paint.

“When you have the issues of potential (post-traumatic stress disorder) and depression, there could be triggers like, ‘This is where she sat’… we are trying to help erase that from memory,” said Ken Hernandez, director of risk management for San Bernardino County, who said overhauling the floor of the building where the shooting took place was just one strategy in getting employees comfortable again with their surroundings.

Tragic events in the workplace have pushed PTSD to the forefront in workers compensation. It is an issue that is getting more attention than ever, according to attorneys and medical experts in workers comp.

“PTSD has become a major public health issue,” said Dr. Teresa Bartlett, Troy, Michigan-based senior vice president of medical quality at Sedgwick Claims Management Services Inc. “There’s a public out there that has experienced this, that knows about this.”

Mental claims filed under workers comp typically fall into three basic categories:

• Physical-mental, when a physical injury gives way to a mental injury.

• Mental-physical, when an injury starts as that of a mental ailment but then results in a physical ailment, such as stress resulting in stomach ulcers.

• Mental-mental, where a mental stimulus — an image or an experience — causes a mental injury. Experts say this last category of claims is a small but growing part of the workers comp landscape.

It’s not always the big events, such as shootings or bombings, that result in these claims. Sometimes it’s a more common incident: a store cashier getting robbed or a worker seeing a co-worker injured in an accident. These types of smaller cases are gaining attention and sometimes confusing the issue, according to some experts.

Adding to the confusion is that each state has its own set of laws on the conditions for which claims are compensable, other experts say.

Assessing the problem

Carin Burford, a Birmingham, Alabamabased shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. who represents employers, said the diagnosis is often misused. “People hear PTSD all the time on the news, so instead of saying they have stress at work, they say they have PTSD,” she said.

Even so, Ms. Burford warns her clients to tread lightly on the issue and review the workers comp laws in the states where they are located. “I tell them, ‘The jurisdiction will decide the claim … and don’t be quick to rule out workers comp,’” she said. “Sometimes if you take the hard line that it is not compensable, it will open up the line for tort litigation, which can be worse when you are talking negligence.” 

“There’s a lot of gray,” said Michael Stack, Kennebunkport, Maine-based principal for Amaxx L.L.C., a workers comp consulting firm, adding that claims for mental injuries often have to meet the same bar as physical injuries: Did the job cause this?

“The biggest thing we are seeing with mental injury claims in general is the ambiguity: What was the cause of the (mental) injury? Did it arise out of employment?” Mr. Stack said.

Dr. Mark Levy, a Mill Valley, Californiabased forensic psychiatrist who teaches law and psychiatry at the School of Medicine at the University of California in San Francisco, said there is a “very slowly growing acceptance that people can be emotionally damaged without being physically damaged” and that the courts are busier than ever. “It’s claimed all the time … PTSD gets a lot of publicity.” 

But Andrew Meisler, a Hartford, Connecticutbased assistant professor of psychiatry of the University of Connecticut School of Medicine and a lecturer in the Department of Psychiatry at Yale University School of Medicine, said the increase in publicity could lead to fraud. A “careful assessment will do a fair but imperfect job” of diagnosing mental claims, and the “door is already there” for fraud in physical workers comp claims, he said.

“(Some) people exaggerate their conditions already,” he said, adding that he’s concerned that the widespread focus on PTSD discounts other equally debilitating conditions, such as depression, that can arise out of work-related incidents.

But some experts say fraud isn’t a big issue because PTSD — whose markers include insomnia, crippling anxiety, nightmares, flashbacks and more — is tough to fake.

“If you walked into an office and wanted to play games and claim, ‘I’ve got PTSD,’ as a therapist I can pick out a phony pretty fast,” said Ron Clark, Middlebury, Connecticutbased chairman of Badge of Life, an advocacy group for police officers with PTSD. Mr. Clark, a trained counselor, works to help change laws nationwide to grant first responders workers comp coverage for PTSD. Unlike other jobs, first responders are usually unable to claim for PTSD, as stress is deemed to be inherent in their jobs.

Changing the environment

Rehabilitating workers with PTSD can go far beyond workers comp.

For example, students and teachers walked into an entirely new Sandy Hook Elementary school building in Newtown, Connecticut, this fall, four years after a lone gunman killed 20 children and six faculty members at the previous campus, which was razed so that the town’s population there could heal.

In San Bernardino, only a few workers returned after the shooting at first, some left again later, and some work only parttime, but the new surroundings have helped, said Mr. Hernandez.

Today the 27-year risk management veteran spends much of his time helping employees navigate the workers comp system, a bureaucracy whose form letters were rewritten in the wake of the tragedy to make them appear “friendlier.” The new letters included clauses such as “Please be assured that assisting you is the county’s highest priority” and “The county makes every effort…” in between the formal sentences that are part of workers comp templates in California.

It’s the big things and the little things, said Mr. Hernandez, who gets emotional when he talks about the challenges employees face getting back to work after such a tragedy.

“This will never be over,” he said.


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