Managing Employee Injuries and Disability and Occupational Safety

4. M ENTAL OR E MOTIONAL S TRESS Mental illness caused by stress or tension of work activities constitutes a compensable injury. Effective July 1993, legislation was passed which imposed a higher standard of proof for psychiatric injuries. A psychiatric injury may be held compensable if it is a mental disorder which causes disability or need for medical treatment and is diagnosed as a mental disorder using the criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III), or the diagnostic criteria of other psychiatric diagnostic manuals which are generally approved in the medical profession. Additionally, in order to prove compensability of a psychiatric injury, the employee must show by a preponderance (51%) of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. Labor Code Sections 3208.3(a)(3), 139.2(j)(4). The legislation concerning psychiatric injuries was intended to impose a higher threshold of compensability for psychiatric injuries. Labor Code Section 3208.3(c). Under existing law, the “stress” which an employee may experience, and which results in psychiatric injury, has been based on a purely subjective test. Thus, if the employee reacts to the work environment and perceives it as stressful, this will supply the necessary causal element to support a finding of psychiatric injury. 32 , unless the perception is a misperception and not an actual event of employment. 33 On the other hand, if the employment simply provided a “stage” for the employee’s emotional condition to become symptomatic, then no industrial injury has occurred. 5. H EART D ISEASE One of the most problematic areas in workers’ compensation law is that of heart cases. Most of these cases involve aggravation of a pre-existing condition. The problem of proof is in showing a causal connection between the heart disease and the work activity. One approach is to determine whether or not the heart injury was the result of any strain exerted in the workplace. The strain need not be unusual but merely a strain normal to the type of employment. Thus, if one’s employment has contributed to the heart problem because of exertion, either physical or mental, or other work-related circumstances, the heart problem will be found to have arisen out of employment. 6. C ANCER Like heart disease cases, cancer cases present a problem of causal proof. In these cases, the decision of the trier of fact as to the causation is conclusive if based on supporting medical evidence. 7. S PECIAL E XPOSURE An employee may not recover for diseases or conditions to which everyone in the vicinity is exposed and which are not rendered any more hazardous by reason of work activities. In such situations, the employee must show some special exposure which differs from the common group. Examples of the diseases and conditions which are commonly held non-compensable include: colds, measles, influenza, and the elements of nature.

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 28