FeaturesFactors Influencing Attorney Involvement 13 Richard A. Victor Bodgan Savych
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes In High-Risk Musculoskeletal Pain Disorder Cases 23 Robert Gatchel
Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy: Cases Involving Schizophrenia And Shiftwork Maladaptation Syndrome 57 David Torrey
Work Related Suicide: A Review of the Judicial Approaches in United States, Australia, Canada, and United Kingdom 83 Robert Guthrie Maryam Zulfa
TechnologyIAIABC White Paper on Section 111 Reporting to CMS 123 Catherine Dominquez Cindy Hall Faith Howe
OpinionCaution: A Little Change May Do You Good 131 David Paris
NASI ReportDrop in California’s Workers’ Compensation Spending Slows Growth In National Spending IN 2007 137 Ishita Sengupta Virginia Reno
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General Information, Subscriptions, and Submissions
The IAIABC Journal is published two times per year by the International Association of Industrial Accident Boards and Commissions, 5610 Medical Circle, Suite 24, Madison, WI, 53719.
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The mission of the IAIABC Journal is to advance understanding and man-agement of workers’ compensation system administration through the availability of data, research, policy analysis, and thoughtful opinion. The IAIABC is a non-profit, non-partisan association representing most of the United States and Canadian Provinces, and other nations and territories. Its mission is to advance the administration of workers’ compensation systems throughout the world through education, research, and informa-tion sharing.
Editorial Staff
EditorRobert AurbachAlbuquerque, New Mexico
IAIABC Executive Committee
Frances Huntley-Cooper, Wisconsin PresidentAlan McClain, Arkansas President-ElectChristine Baker, California Vice PresidentMary Ahearn, Maryland Secretary/TreasurerPeter Federko, Saskatchewan Immediate Past President
Members at Large: Dwight Lovan, KentuckyCarol Anne Duffy, Prince Edward IslandRobert Malooly, WashingtonJack Nolish, MichiganRichard Thomas, Kansas
FeaturesFactors Influencing Attorney Involvement 13 Richard A. Victor Bodgan Savych
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes In High-Risk Musculoskeletal Pain Disorder Cases 23 Robert Gatchel
Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy: Cases Involving Schizophrenia And Shiftwork Maladaptation Syndrome 57 David Torrey
Work Related Suicide: A Review of the Judicial Approaches in United States, Australia, Canada, and United Kingdom 83 Robert Guthrie Maryam Zulfa
TechnologyIAIABC White Paper on Section 111 Reporting to CMS 123 Catherine Dominquez Cindy Hall Faith Howe
OpinionCaution: A Little Change May Do You Good 131 David Paris
NASI ReportDrop in California’s Workers’ Compensation Spending Slows Growth In National Spending IN 2007 137 Ishita Sengupta Virginia Reno
Why is the International Forum on Disability Management Important to Your Organization?
Editor’s Report
We in North America have a tendency to think of ourselves as the apex of workers’ compensation thinking? Part of it is simple narrow mindedness. We’re focused on ourselves because we are what’s available and familiar. However, roughly half of the rest of the world mixes workers’ compensa-tion in with their analog to what we refer to in the United States as the Social Security system. The differing institutional framework and fund-ing mechanisms inherent in such schemes make them relatively easy to discount as not being fully relevant. Even where the systems function on more familiar funding and organizational models (such as Australia or Finland) it is easy to assume that cultural and demographic differences limit the applicability of the lessons that we might learn.
Some of our inwardly directed focus is based upon pride in the things we do right. North America is the source of many interesting initiatives with regard to cost control, quality care and dispute resolution. Carve-out pro-grams for workers’ compensation, evidence based medical practice guide-lines, actuarially fine tuned experience rating, sophisticated impairment rating guides, and various kinds of “mediation” programs come to mind as techniques where practices were developed, or significantly advanced, in the US. Canada can be justly proud of its pioneering work in preven-tion and disability management.
Some of our reluctance to look outside of ourselves comes from a desire to maintain the illusion of independence from outside influences. The response is probably partly based upon a belief that, in the information age, anyone can obtain information about the “best practices” in the in-dustry, and that local people are more aware of local problems. Yet, taken to an extreme, this attitude can make our thinking parochial, and insular, cutting us off from viewpoints that would help us see our own problems better. There is an old, often-repeated, parable about an elephant being perceived by several blind people, where each of whom thought that their limited perceptions were definitive of the nature of the beast. Sometimes our perception of workers’ compensation seems as narrowly focused.
We are at a point and time in the development of workers’ compensa-tion when limiting visions of what is possible no longer serve us well. The IAIABC Workers’ Compensation College learned many years ago that education concerning of the “big picture” of workers’ compensation provided participants with an important context in which to view their specific role, and that graduates of the program were able to understand the connections between what they did and other functions in the system that enhanced personal performance and overall organizational efficacy. Moreover, as successful practices were piloted in various IAIABC jurisdic-tions, the information spread and the “gold standard” of the industry was raised and more fully disseminated. The spread of voluntary and manda-tory alternative dispute resolution mechanisms, various protections from self-insured employer bankruptcy, and data acquisition, warehousing and analysis mechanisms appear to have occurred largely through this mecha-nism.
So too, our view of what the rest of the world is doing, particularly in the context of disability management, can be an opportunity to open our eyes, and see a view of the box that can only help us to think outside of it. One of the internet discussion groups recently posted an invitation to its members for a get together at the International Forum on Disability Man-agement (IFDM), to be held in tandem with the IAIABC Annual Conven-tion. In the first two days, at least ten people who had not appeared on the participant list for any of the last ten national IAIABC meetings indicated
their intention to participate. IFDM speakers and attendees will come from at least 25 countries, four continents, and include CEOs of many government agencies outside the US and Canada. Needless to say they are people rarely represented at IAIABC meetings.
Important world voices for the compassionate and effective treatment of those who have been injured will be presented. In particular, keynote ad-dresses by Dame Carol Black and a panel of world leaders speaking on the building of political consensus to advance public policy development promise to blend inspiration with proven effectiveness.
A quick perusal of the catalog of presentations suggests that there will be much that is new for IAIABC audiences. We are an industry plagued by a tendency to silo issues, and attention will be paid to the fostering of part-nerships on disability management. Successful vocational rehabilitation practices will be studied and explained.1 Treatment and attitudinal issues with medical intervention in disability will be explored.The return to work models in countries as divergent as Iceland and Japan, Germany and Aus-tralia, Taiwan and the United Kingdom, will be discussed. Measurement and evaluation of disability management initiatives will be a focus, as will models for a comprehensive societal disability management system will take center stage.
There will be specific focus on a variety of problems which traditionally have been considered “off limits” for reform. The effectiveness of experi-ence ratings as a mechanism for encouraging employer safety will be dis-cussed. Behavioral health and psychosocial influences on disabled behav-ior will be considered. The inadvertent creation of incentives in the system for unintended behaviors will attract attention.
The format of the conference is intended to introduce as wide a range of potential topics as possible, leaving full development of the implications of each presentation to the initiative of the participants in following on to explore the papers developed by the participants in conjunction with the
1 An international association of rehabilitation experts will be holding a satellite meeting at IFDM.
conference. This approach provides for the greatest exposure to new ideas and the possibility of in-depth follow up.
Albert Einstein is famously quoted as saying “We cannot solve the signifi-cant problems of today with the same level of thinking that created them.” Notwithstanding our pride in our accomplishments and our occasional reluctance to listen to experience developed elsewhere, we have been func-tioning in a model of managing injury that is focused on the control of costs for years. Perhaps it is time to take a look at disability anew, to see what is preventable and what solutions to common problems have been tested elsewhere. Come to IFDM and experience thinking about disabil-ity, and workers’ compensation, on a global level.
A major theme of 25 years of WCRI studies is that state workers’ compen-sation systems share common goals, but are often different from one an-other in design, administration, operations, and performance in meeting those goals. One dimension that illustrates these differences is the extent to which workers hire attorneys to assist in the resolution of their cases. Table 1 shows the percent of claims where defense attorneys are involved. Other WCRI research shows this is highly correlated with the involvement of workers’ attorneys.2 States like Wisconsin and Texas had low attorney involvement. States like Maryland, Tennessee, California, and Florida had three to four times as much attorney involvement.
1 This article is based on a research study by the authors, Avoiding Litigation: What Can Employers, Insurers, and State Workers’ Compensation Agencies Do? (2010, Cam-bridge, MA: Workers Compensation Research Institute).
2 See Table TA.1 in Victor and Savych, Avoiding Litigation: What Can Employers, Insurers, and State Workers’ Compensation Agencies Do?
* Executive Director, Workers’ Compensation Research Institute, Cambridge, MA. Email: [email protected]
** Public Policy Analyst, Workers’ Compensation Research Institute, Cambridge, MA. Email: [email protected]
Table 1 Percent of Claims Where Defense Attorneys Are Involved
% of Claims with Defense Attorney Involved
Maryland 37Tennessee 35California 34
Florida 33North Carolina 28
Pennsylvania 24Michigan 22
Massachusetts 21Wisconsin 10
Texas 8
Notes: Among cases with more than 7 days of lost time. Only cases with defense attorney payment > $500 are counted as having defense attorneys in order to focus on those cases that are likely to have substantive disputes (rather than merely drafting documents) Cases are for injuries that oc-curred in 2005 with experience as of March 2008.
Source: Telles, C., N. Coomer, S. Landes, E. Radeva, R. Yang, and R. Tanabe. 2009. CompScope™ Benchmarks, 10th Edition. 13 vols. Cambridge, MA: Workers Compensation Research Institute.
Attorney involvement can be costly. Injured workers often pay a percent-age of their benefits to their attorney. Insurers and employers often pay thousands of dollars per case to defense counsel.
To assess whether there may be unnecessary litigation, it important to understand the factors that lead workers to hire attorneys. In concept, workers’ compensation systems were intended to be largely self-executing—injured workers receive benefits without the need to hire attorneys and “sue” the employer. In practice, systems are composed of people whose decisions are shaped by expectations, economic incentives, and emotional responses to situations.
A decision to hire an attorney is partly driven by economic needs and wants and partly by emotional responses to certain situations. Both are leverage points for reducing unnecessary litigation.
We identify six factors that are important in determining whether a work-er hires an attorney. All reflect significant motivations reflecting economic interests or emotional reactions. This article examines each of the six and the motivations that each reflects.
Conceptual Framework
The analysis adopts the following conceptual framework. The typical worker is interested in both his/her (1) recovery of health and function and (2) economic well-being—both short term and longer term. For the typical injured workers, the short term is generally during the period of disability. The worker is interested in the income benefits received for temporary and permanent disability, as well as getting heath care services that facilitate recovery of heath and return to work. Ultimately, the worker is interested in return to work and the level of future earnings. The em-ployer is interested in paying required income benefits—but not paying more—and bringing productive workers back to work. Workers will hire attorneys if they perceive some threat to either their short-term or longer-term interests. Different workers respond differently to the same potential threat. The different responses depend on certain personal and injury characteristics. Workers also have a choice as to whether to navigate the workers’ compensation system without the assistance (and fee) of an at-torney or whether to give up a share of his/her benefits in return for such assistance. How workers value the assistance will be different based on certain personal and injury characteristics.
Empirical Approach
We use standard statistical methods to isolate the impact of different fac-tors, holding constant many other factors. When we report, for example, that workers with more serious injuries were more likely to hire attorneys than those with less serious injuries, we mean that this is true after we control for the worker’s age, education, tenure on the job, type of injury, gender, marital status, industry, wage level, union membership, local labor
market conditions, state of jurisdiction, and certain aspects of the employ-ment relationship that might affect the decision to hire an attorney. The study is based on 6,823 claims in 11 states with various injury dates be-tween April 1999 and September 2006. The Table 2 below lists the states, years of injury and the dates of the interviews. The data come from tele-phone interviews of injured workers and administrative claim records.
Workers with more severe injuries are more likely to hire attorneys. As Table 3 shows, 23 percent of those with the most serious severity hired attorneys compared with 13 percent of those with more minor injuries. Workers with more serious injuries are more likely to have more complex medical treatments, greater current economic losses, more concern about whether they will be able to return to work at their pre-injury employer, and may have to navigate more complex aspects of the workers’ compen-sation systems. For these reasons, workers with more serious injuries are more likely to hire attorneys. With larger benefit amounts involved, at-torneys are more likely to take these cases. However, the worker would pay more for this assistance than workers with less serious injuries—reducing the rate of attorney involvement for those who feel more competent to represent themselves. The difference in the rates of attorney involvement seen in Table 3 is the net effect of the factors that suggest higher and lower attorney involvement.
Workers with lower levels of education are more likely to hire attorneys. As Table 3 shows, 18 percent of high school graduates hire attorneys com-pared to 11 percent of college graduates. Those with lower levels of educa-tion may have more difficulty navigating the complexities of the workers’ compensation systems, hence the greater perceived need for an attorney. Those with lower educational levels may have the greater difficulty finding alternative employment opportunities, and may seek the assistance of an attorney to facilitate a resolution that includes a return to work.
Job Tenure
Longer-tenure workers were less likely to hire attorneys than very short-tenure workers. Nearly one-quarter of those with less than 6 months on the job hire attorneys. Only 13 percent of those with more than 10 years on the job hired attorneys. Part of the difference was likely the effect of loyalty—workers with more than 10 years on the job were more likely to benefit from a mutual loyalty with the employer and have greater confi-dence that the employer would bring them back to work. As a result, lon-ger tenured workers would be less likely to hire an attorney to protect their future employability. Longer tenured workers might also consider that hir-ing an attorney was inconsistent with the mutual loyalty that characterized the pre-injury relationship. Short tenured workers are less likely return to the pre-injury employer, and have less loyalty. They are more likely to hire attorneys to maximize the benefits received as a result of the injury.
Older workers were more likely to hire attorneys than younger workers. One-fifth of workers over age 55 hired attorneys, compared to 10 per-cent of workers under age 25. Older workers who cannot return to their pre-injury employer often have fewer re-employment opportunities than younger workers. The older workers may hire attorneys to help them get higher benefits if they are not able to return to the pre-injury employer, or to help facilitate a return to the pre-injury employer.
Perceived Mistrust By Supervisor
Under the conceptual framework, workers who perceived threats to their benefits or future employability would be more likely to hire attorneys. We found that workers who thought their supervisor had concerns about the legitimacy of the injury were more likely to hire attorneys. Attorneys were hired by twenty-three percent of those who strongly agreed that their supervisor did not believe their injury to be legitimate. Only 15 percent of those who disagreed with that statement hired attorneys. If the worker perceives that the supervisor does not trust the worker’s account of the injury, the worker may be concerned that benefits may not be automati-cally paid or that return to work at the pre-injury employer may be difficult to achieve. Both issues may lead the worker to seek an attorney to protect these economic interests.
Fear Of Being Fired Or Laid Off
Economic considerations are a central driver of the decision to hire an attorney. Those who fear that they might be fired or laid off when injured have very strong economic incentives to hire attorneys if the workers be-lieve that the attorneys can help them keep their jobs or increase their benefits if a layoff is likely. Attorneys were hired by 27 percent of workers who strongly agreed with the statement that they feared being fired or laid off. Those who disagreed hire attorneys 13 percent of the time.
This report examines some of the factors that predict whether or not a worker will seek the assistance of an attorney who will accept the case. Some of the reasons identified reflect the desire to protect economic in-terests—especially current income benefits or future job security. Others reflect the need for assistance to navigate complex processes and systems. Still others reflect the level of trust in the employment relationship.
It is possible that some attorney involvement can be eliminated by em-ployers, claims organizations, and state agencies. Among the directions to consider to accomplish this are:
Supervisor training.• The supervisor is often in the best position to shape a worker’s initial expectations about what will happen to him or her after being injured. Training supervisors about what types of messages encourage or discourage attorney involvement may reduce litigation that is based on preventable miscom-munication. These messages focus on trust, job security, and entitlement to medical care and income benefits. It is likely that timely communications would be more effective than delayed or no communications.
State agency education materials and help lines• . Many injured workers feel vulnerable and often seek attorneys when they are uncertain about what benefits they are entitled to or feel poorly equipped to navigate the workers’ compensation system. It fol-lows that there may be less attorney involvement in states where the workers’ compensation agency reaches out to the worker in a timely way and further provides a help line that answers work-ers’ questions.
Clear and timely communication about the status of the claim.• An important factor predicting attorney involvement is when the worker perceives that the claim is not likely to be paid and return to work is not likely to be welcome. The worker’s percep-tions may result from a formal written denial communication, but it also may result from unclear or untimely communication
from the claims manager or supervisor. If the worker misper-ceives that the case is being denied or return to work may not be welcome, then attorney involvement is unnecessary.
Eliminating system features that encourage denials or payment delays. •Some state laws contain elements that discourage the payer from making timely payments. One example is a relatively short pay-without-prejudice period. Some states establish a period during which a payer may initiate payments based on incomplete information about a case, but can later terminate payments without a hearing when they obtain more complete information. If that period is too short (or if there is no such period), then the safest course for the claims manager is to delay making payments until complete information is obtained. The delay may be perceived by the worker as a denial. Another example is a state law that requires that the payer accept or deny a case by a specific time after the injury. Similarly, if the time period is too short, the claim manager may have to deny claims that would otherwise be accepted. A few states have unique features that encourage payment delays. For example, in Maryland, workers are required to affirmatively file a claim in order for payments to start. In other states, filing is typically done by the employer. In Maryland, workers receive their first payments more slowly, on average, than workers in most other states. These delays could be misconstrued as denials, generat-ing unnecessary attorney involvement.
These are a few examples of actions that employers, insurers, and state governments might take to reduce attorney involvement, by reducing the feeling of a threat that some injured workers experience. The opportuni-ties will vary from employer to employer, insurer to insurer, and from state to state. We hope that the evidence presented in this study provokes some creative thinking about those opportunities.
Richard A. Victor Executive Director: Dr. Victor has been the Executive Director of the Workers Compensation Research Institute (WCRI) since its inception in 1983. The Institute, located in Cambridge, Massachusetts, is an independent, not-for-profit research organization providing high-quality objec-tive information about public policy issues involving workers’ compensation systems. Dr. Victor is the author of numerous books and articles on worker’s compensation issues.
Prior to working at the Institute, Dr. Victor spent seven years conducting research at The Rand Corporation in both Washington, D.C., and Santa Monica, California. At Rand, he was a principal researcher at the Institute for Civil Justice.
Dr. Victor received his J.D. and Ph.D. (economics) degrees at the University of Michigan, where he was the George Humphrey Fellow in Law and Economic Policy.
Dr. Bogdan Savych is a Public Policy Analyst at WCRI, focused on issues related to labor economics, dispute resolution and the design of income benefit systems. He currently conducts research that examines role of attorneys in the workers’ compensation system, studies that examine equity, adequacy, and efficacy of the workers’ compensation benefits, and an examination of the impact of business cycles on labor market behaviors. Dr. Savych received his Ph.D. from Pardee RAND Graduate School.
23Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
Early, Simple And Low-Cost Clinical Methods For
Improving Outcomes In High-Risk Musculoskeletal
Pain Disorder Cases
Robert Gatchel*
Abstract
This article reviews the growing evidence-based support for the treatment- and cost-effectiveness of early identification and intervention methods for “high risk for chronicity” patients with musculoskeletal disorders. Two such prevalent and costly disorders are used to demonstrate such effec-tiveness – low back pain and temporomandibular joint and muscle dis-order pain. The clinical research reviewed represents over two decades of attempts to “solve the puzzle” of effective musculoskeletal disorder pain management. We have now effectively “solved the puzzle” for two such disorders. However, we are currently faced with the more daunting task of how to eliminate the tertiary gain barriers that are preventing the more widespread utilization of these prevention approaches in the actual health-care insurance marketplace.
* Professor & Chairman, The University of Texas at Arlington, Arlington, TX. Email: [email protected]
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
[Key Words: low back pain; temporomandibular joint and muscle disor-der pain; early intervention; biopsychosocial; tertiary gain.]
As noted by Mayer, Gatchel and Polatin (Mayer, Gatchel, & Polatin, 2000), in the United States alone, the annual cost associated with the diagnosis and care of musculoskeletal trauma is staggering. Moreover, these costs are continuing to increase at an alarming rate, especially occupational muscu-loskeletal disorders that are highly prevalent. For example, the Bureau of Labor Statistics (Bureau of Labor Statistics, 2008) reported that the over-all rate of non-fatal occupational musculoskeletal injuries requiring time away from work was 35 per 10,000 workers. In addition, the cost of neck and back pain (which are the most pervasive musculoskeletal disorders) is almost $100 billion annually, related to surgery, doctor visits, imaging tests, medications, etc (Research and Markets, 2009). Back pain alone af-fects approximately 50% to 80% of the adult population sometime during their lifetime. At any given point in time, it is estimated that 12% to 30% of adults in western countries suffer from low back pain (Von Korff et al., 2005). Moreover, it is estimated that, by 2018, approximately 100 million Americans will be suffering from some form of back pain (Research and Markets, 2009).
Fortunately, the majority of cases of low back pain are self-limited, and will resolve without any major disruption in the lives of individuals (Carey et al., 1996). However, for roughly 25% of those who suffer from low back pain, the disorders last for more than one week and will eventually result in consultation with a medical professional (Deyo, Mirza, & Martin, 2006). If still unresolved, low back pain will become chronic in nature (i.e., more than 3-6 months after the initial episode). Indeed, it is now well known that these approximately 20% of the chronic low back patients will then go on to account for 80% of all the costs associated with low back pain (Mayer & Gatchel, 1988). Thus, a major goal has been to prevent this chronicity from occurring, or at least to decrease the negative impact (e.g., functional/work disability and cost) of the often relapsing nature of low back pain. The present article will review recent clinical research studies that have shown success in preventing acute musculoskeletal disorders, such as low back pain and temporomandibular joint and muscle disorders
25Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
(TMJMDs), from becoming costly chronic problems. Although TMJMD may not be of great interest to the readership, it is presented as another example of how progress can be made for addressing another quite com-mon musculoskeletal pain problem.
Low Back Pain and Disability
Low back pain (LBP) is one of the most common causes of disability. Vo-linn (1997) had earlier identified seven epidemiological investigations con-ducted in Belgium, Germany, Great Britain and Sweden that reported on the point prevalence of LBP. By weighting the percentages by the sample size, and then aggregating across studies, it was found that the rates of LBP in these countries averaged approximately 34%. This was almost twice that reported in surveys conducted in less developed countries. Also, as Mayer and Gatchel (1988) had originally reviewed, it is the number one cause of disability of persons under age 45. Over this age, it is the third leading cause of disability, becoming progressively less of a factor during later years when function and productivity become of less concern than survival.
It should also be noted that back-related disorders represent the most prevalent source of disability in the U.S. military (Feuerstein, Berkowitz, & Peck, 1997). Indeed, in the U.S., of all the occupational musculosk-eletal disorders, the most research attention to date has been dedicated to LBP disability because this is the most expensive benign condition in industrialized countries (Volinn, 1997). It has been estimated that, in any one year, about 3-4% of the population in all industrialized countries has a temporarily disabling LBP episode, and that more than 1% of the work-ing age population is “totally and permanently disabled” by this problem. From a financial point of view, it is one of the most costly problems in the North American workplace (Krause & Ragland, 1994). An even more startling trend is the disproportionate increase in LBP disability as mea-sured against population growth. For example, Cats-Baril and Frymoyer (1991) had earlier reported LBP disability increasing at a rate 14 times the population-growth from1957 to 1976. This trend is apparently continuing to this day in light of the various statistics reported in the literature of
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
Schultz and Gatchel (2005).
The critical nature of occupational musculoskeletal disorders such as LBP is further highlighted by the fact that, in 1998, the National Institutes of Health requested the National Academy of Sciences/National Research Council to convene a panel of experts to carefully examine some major questions raised by the U.S. Congress concerning occupational musculo-skeletal disorders (National Research Council, 2001). One of the impor-tant issues raised by Congress was: “Does the research literature reveal any specific guidance to prevent the development of chronic conditions?” As further evidence of the growing worldwide concern about musculoskel-etal disorders such as LBP, the World Health Organization convened an inaugural consensus meeting in April 1998 (World Health Organization, 1998). During this conference, a large number of representatives of inter-national scientific journals and societies discussed the significant problem of occupational musculoskeletal disorders and the patient-burden on soci-ety that they have created. Major concerns raised included the following: back pain is the second leading cause of sick leave; and there is anticipa-tion that 25% of healthcare expenditures in developing countries will be spent on musculoskeletal-related care by the year 2010. This recognition prompted a proposal to declare the years 2000-2010 as the “Decade of the Bone and Joint System.” A need for early prevention of chronic LBP was further highlighted by additional epidemiological studies that continued to show that LBP was a serious problem resulting in immeasurable emo-tional suffering, work loss and high cost (Crombie, Croft, Linton, LeRe-sche, & Von Korff, 1999). This resulted in a call for early intervention methods to prevent acute low back pain (ALBP) from becoming a chronic disability problem (S.J. Linton, 2002; National Research Council, 2001).
Clinical Research on Early Intervention
In this section, we will review a series of studies, funded by the National Institutes of Health (NIH) that directly addressed the issue of early in-tervention for acute low back pain (ALBP). The first study in this series sought to initially identify potential predictors of when ALBP occurrences
27Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
would likely develop into chronic disability problems (Gatchel, Polatin, & Mayer, 1995). In this study, a comprehensive assessment battery of physi-cal and psychosocial factors, i.e., a biopsychosocial evaluation, was admin-istered to a cohort of 421 ALBP patients within 6 weeks of their initial occupational injury (they had no previous history of LBP). These patients were then followed during the next year, at the end of which a structured telephone interview was conducted in order to evaluate return-to-work sta-tus. Logistic regression analyses were then conducted to differentiate be-tween those patients who were back at work at one-year versus those who were not. The model generated correctly identified 90.7% of the cases. Of note was the fact that there were no differences between the two groups for physician-related severity of the initial ALBP injury or the physical de-mands of the job to which patients had to return. Rather, a “psychosocial disability factor” emerged which reflected issues such as poor coping skills and symptom magnification tendencies.
Subsequently, a receiver-operator characteristic (ROC) curve analyses was applied to these data, which was based on the probabilities estimated from the above logistic regression model developed for this large cohort of pa-tients. From this ROC analysis, a statistical algorithm was developed that could be used to identify a cut-off point from a much-reduced patient self-report assessment test (requiring less than 15 minutes to complete) that could identify “high risk” ALBP patients who were prime candidates for early intervention in order to prevent chronicity. It was hypothesized that “low risk” ALBP patients would not require any extra early intervention other than standard medical care.
As an extension of these above important findings, the second NIH-fund-ed study in this series (Gatchel et al., 2003) involved the assessment of a large cohort of 700 ALBP patients in order to screen out those patients who were at “high risk” for developing chronicity (using the aforemen-tioned algorithm). These “high-risk” patients were then randomly assigned to one of two groups: an early intervention group or a non-intervention group (which simply received whatever standard care they would routinely receive). Those patients identified as “low risk” were also simply allowed to receive any standard care they would normally receive. During the next
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
year, routine three-month follow-up evaluations were then conducted in order to assess important long-term socioeconomic outcomes, such as re-turn-to-work, healthcare utilization rates, medication use rates, etc. It was hypothesized that early intervention at the acute stage would prevent the development of chronic disability.
Again, as a replication of the previous grant project results, the non-in-tervention group was compared to a demographically-matched cohort of initially assessed ALBP patients who did not display the “high risk” profile (i.e., the “low risk” group). It was hypothesized that the high-risk non-intervention group patients would demonstrate higher rates of chronic disability at one year relative to the “high risk” intervention and the “low risk” profile patients.
The early intervention program administered to some of the “high risk” patients consisted of an abbreviated form of interdisciplinary functional restoration which includes four major components – physical therapy, oc-cupational therapy, psychology, and case management – guided by a super-vising nurse-physician team. It consisted of a maximum of the following: three physician evaluations; one physical therapy evaluation; nine active physical therapy sessions; nine biofeedback/pain management sessions; nine group didactic sessions, nine care manager/occupational therapy ses-sions; and three interdisciplinary team conferences.
The early intervention approach evaluated in this study was based upon a number of suggestions by leading experts in the field that, in order to decrease the high cost of chronic musculoskeletal disability, there is a great need for better identifying patients at the acute phase who would benefit from such early intervention (Hazard, 1995; S.J. Linton, 2002; S.J. Linton & Bradley, 1996). Moreover, the early detection and intervention in order to prevent chronic disorders was also recognized as a high-priority research area (Human Capital Initiative Coordinating Committee, 1996). Also, as noted earlier, with the realization that work-related musculoskeletal dis-orders was a major socioeconomic problem in this country, a series of questions posed by the U.S. Congress prompted the National Institutes of Health to request the National Research Council to examine ways of
29Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
reducing this problem of work-related musculoskeletal disorders. This re-sulted in a publication, which, as one of its conclusions, highlighted the importance of early intervention in order to reduce the development of chronic disability (National Research Council, 2001).
The results of this study clearly indicated that early intervention at the acute stage of LBP significantly reduced the prevalence of chronic dis-ability, relative to those high-risk ALBP patients who did not receive such early intervention (Gatchel et al., 2003). Table 1 summarizes the outcome data that displayed significant differences among groups in the anticipated directions. As can be seen, the major hypotheses of this study were con-firmed: the high-risk ALBP patients who received early intervention (the HR-I group) displayed significantly fewer indices of chronic pain disabil-ity on a wide range of work, healthcare utilization, medication use and self-reported pain variables, relative to the high-risk ALBP patients who did not receive such early intervention (the HR-NI group). Relative to the HR-NI group, the HR-I group was much more likely to have returned to work (odds ratio=4.55), less likely to be currently taking narcotic analgesics (odds ratio=0.44), and also less likely to be taking psychotropic medication (odds ratio=0.24). In addition, the HR-NI group also displayed significant-ly more symptoms of chronic pain disability on these variables, relative to the initially low-risk ALBP patients (the LR group).
Table 1. Long-Term Outcome Results at 12-Month Follow-up (Gatchel et al., 2003)
OUTCOME MEASURE HR-I(n=22)
HR-NI(n=48)
LR(n=54) p Value
% Return-to-Work at Follow-up 91% 69% 87% .027
Average # Healthcare Visits Regardless of Reason 25.6 28.8 12.4 .004
Average # Healthcare Visits Related to LBP 17.0 27.3 9.3 .004
Average # of Disability Days Due to Back Pain 38.2 102.4 20.8 .001
Average of Self-Rated Most “Intense Pain” at 12-Month Follow-Up (0-100 scale) 46.4 67.3 44.8 .001
Average of Self-Rated Pain Over Last 3 Months (0-100 scale) 26.8 43.1 25.7 .001
% Currently Taking Narcotic Analgesics 27.3% 43.8% 18.5% .020
% Currently Taking Psychotropic Medication 4.5% 16.7% 1.9% .019
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
The cost-comparison savings data from this study were also quite impres-sive. Using unit cost multipliers obtained from the Bureau of Labor Sta-tistics for compensation costs due to disability days (Bureau of Labor Statistics, 2002), from the Medical Fees in the United States 2002 (Practice Management Information Corporation (PMIC), 2002) for healthcare costs, and the Drug Topics Red Book 2002 (Drug Topics Redbook 2000, 2002) for medication costs, we were able to calculate the average costs per patient associated with healthcare visits related to LBP, narcotic anal-gesic and psychotropic medications, and work disability days/lost wages. Table 2 lists these costs associated with the HR-I and HR-NI groups. As can be seen, the average overall costs per patient over the one-year follow-up period (even taking into account the $3,885/patient cost of the early intervention for the HR-I group) was significantly higher for the HR-NI group. The differences were statistically significant (p< .05). Thus, these re-sults, obviously, have major implications in terms of decreasing emotional distress and producing socioeconomic cost-savings for this prevalent LBP disability problem.
Table 2. Cost-Comparison Results (Average Cost Per Patient/YEAR) (Gatchel et al., 2003)
31Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
Obstacles to Return-to-Work
Another interesting finding from this above investigation (although it was not a specific aim of the study) was that, even in the early interven-tion group, patients encountered some problems when they were ready to return to work. Preliminary evaluations indicated that there were of-ten workplace factors that presented significant obstacles for some of these patients to immediately return to work when they are ready to do so. Indeed, as will be discussed, a growing body of literature suggests the importance of taking into account such potential obstacles in order to most expeditiously return patients back to work. For these preliminary evaluations, two patient assessments were conducted, using Linton’s Ob-stacles to Return-to Work Questionnaire (ORQ; (Marhold, Linton, & Me-lin, 2002) and the Liberty Mutual Disability Risk Questionnaire (Shaw, Pransky, Fitzgerald, Patterson, & Winters, 2002). The preliminary results we obtained subsequently prompted us to more systematically evaluate these potential obstacles to work return within the context of our already-developed and successful biopsychosocial assessment-treatment protocol (based on the past two reviewed studies) for high-risk ALBP patients. This resulted in the third NIH-supported study in this series. It represented a three-component biopsychosocial model of early intervention, which in-cluded the following:
1. 1. The identification of high-risk status by use of our empiri-cally supported statistical algorithm.
2. The administration of our empirically supported successful 2. early intervention program for these high-risk patients.
3. The introduction of a back-to-work transition component in 3. order to directly modify any potential work force obstacles that may prevent the most expeditious return-to-work.
It was hypothesized that the latter work-transition component would be the “final piece of the puzzle” of this overall biopsychosocial model of early intervention developed to maximize early work return and the prevention of chronicity in high-risk ALBP patients. Before reviewing the results of this study, a brief overview of potential obstacles to return -to -work will be provided.
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
There is general agreement in the scientific literature that the more time off from work substantially decreases the likelihood of successful return-to-work (Hildebrandt, Pfingsten, Saur, & Jansen, 1997). Waddell (1996) reported that the probability of return-to-work after 2 months of not work-ing is 70%; after 5 months is 50%; after 12 months is 30%; and at 2 years is 10%. In spite of these statistics, Marhold and associates (Marhold et al., 2002) have pointed out that the assessment of obstacles to return-to-work connected with the workplace is a relatively undeveloped field. However, there has been some recent research to demonstrate that psychosocial workplace factors are often associated with the development of persistent and chronic musculoskeletal disability. For example, Hoogendoorn and colleagues (Hoogendoorn, van Poppel, Bongers, Koes, & Bouter, 2000) reported strong evidence that lack of social support at work, as well as job satisfaction, were risk factors for the development of persistent LBP. A number of studies (Himmelstein et al., 1995; S.J. Linton, 2001; Na-tional Research Council, 2001; Pransky et al., 2000) have also found that work-related psychosocial factors are associated with more persistent mus-culoskeletal disability disorders such as LBP. In fact, van Der Geizen and colleagues (van Der Giezen, Bouter, & Nijhuis, 2000) have found that psychosocial aspects of work have a larger impact on return-to-work than more physical requirements of the job. Furthermore, Teasell and Bom-bardier (2001) have also found a moderate amount of evidence for the significance of two employment-related factors that predict chronic pain disability: lack of availability of modified work and work autonomy at the workplace.
Clinical care that follows a traditional medical management model may fail to properly address workplace ergonomic and psychosocial factors that have been shown to be risk factors for low back disability (National Research Council, 2001; Shaw, Feuerstein, Haufler, Berkowitz, & Lopez, 2001). Therefore, restoring occupational function to pre-injury levels may require that intervention efforts integrate workplace accommodation with clinical care. Both physicians and injured workers report that facilitating communication and resolving conflicts among patients, providers, and employers is a critical component of case management (Brines, Salazar, Graham, Pergola, & Connon, 1999; Pergola, Salazar, Graham, & Brines, 1999).
33Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
A review of empirical studies of workplace accommodation, including modified or temporary alternate duty, graded work exposure, and work trials, has shown that return-to-work rates are doubled among injured workers offered such options (Krause, Dasinger, & Neuhauser, 1998), and that accommodated work reduces the number of lost work days by 50%. Companies that report proactive return-to-work programs, and cre-ate an environment where employees participate in problem solving and decision making within company operations, have been shown to experi-ence fewer injury claims (Habeck, Hunt, & VanTol, 1998; Habeck, Leahy, Hunt, Chan, & Welch, 1991; Habeck, Scully, VanTol, & Hunt, 1998). In 1980, the American Biltrite Company (400 workers) instituted a sensitiv-ity training program for management that focused on early reporting of musculoskeletal pain, positive acceptance and empathy for affected work-ers, and providing modified duty work. The program resulted in a 50% reduction in claims with lost work time and a ten-fold decrease in workers’ compensation costs for low back disorders (Fitzler & Berger, 1982, 1983). Another study (Wood, 1987) provided hospital managers with training that emphasized frequent communications with employees (every 10 days), communicating a positive message (‘Your job is waiting for you’), and pro-viding modified duty work assignments. This program resulted in a 5-fold reduction in low back claims exceeding 125 days lost work time. Finally, a pilot intervention study (McLellan, Pransky, & Shaw, 2001) evaluated the impact of a brief training program tailored for work supervisors to reinforce proactive and supportive responses to work-related musculosk-eletal symptoms and injuries among employees (e.g., implement accom-modations whenever possible, increase sensitivity to possible work-related discomfort, facilitate communication, etc.). It was found that this pilot study resulted in decreases in lost work time among workers. McLellan and colleagues (McLellan et al., 2001) concluded that these results warrant future controlled trials to further confirm this effect. This investigative team from Liberty Mutual (Drs. Pransky and Shaw) will be part of the present proposed project in implementing the work-transition component of our intervention. It is hypothesized that facilitating workplace accom-modations will improve the benefits of an early intervention program for ALBP.
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
After the initial treatment of symptoms, employers may disagree with re-turning employees, and with their physicians, on the perceived need for modified or alternate duty or physical accommodations. Among workers with occupational LBP and greater than four weeks work absence, only one-half are offered modifications to their original jobs, and only one-half of employers provide special equipment needs requested by workers or physicians (Strunin & Boden, 2000). Among workers with disabilities, reasonable accommodation is the most common area of dispute between employees and their employers (Huang, Berkowitz, Feuerstein, & Peck, 1998). Although corporate policies and procedures appear to impact dis-ability rates, there have only recently been attempts to examine these poli-cies from the perspective of workers (McLellan et al., 2001). The success of a modified duty transition requires the joint cooperation and greement of the worker, treating physician, and employer.
As a result of the above studies, there has been an increased interest in developing assessment instruments to evaluate and potentially modify ob-stacles to return-to-work connected with the workplace, although these measures are still in the early stages of development (Marhold et al., 2002). Marhold and colleagues developed a questionnaire for the identification of obstacles for pain patients to return-to-work (the Obstacles to Return-to-Work Questionnaire, or ORQ). Various scales on the ORQ have signifi-cantly predicted sick leave in a cohort of 154 patients with musculoskeletal pain, and correctly classified 79% of these patients. Liberty Mutual has also been very interested in this issue, and has developed its own ques-tionnaire for evaluating potential obstacles for return-to-work in workers’ compensation patients (“Liberty Mutual Disability Risk Questionnaire”). In a Liberty Mutual study of 600 workers with acute occupational LBP, the Disability Risk Questionnaire has shown that longer disability duration is predicted by a number of scale items, including: physical job demands, shorter job tenure, negative responses of supervisors, pain ratings, pain avoidance beliefs, poor patient expectations for recovery, and clinician rat-ings of functional limitation, depression, and anticipated recovery time (Shaw et al., 2002). Such data, again, suggest that a patient’s perceptions and beliefs about work and returning to work (i.e., psychosocial variables) may be significant factors that can hinder actual recovery.
35Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
We used both of these questionnaires in a preliminary, retrospective study of the high-risk ALBP patients who participated in our second study re-viewed earlier. The results of that pilot study (in which a structured tele-phone interview was used to administer the questionnaires) indicated that many of the patients in our early intervention program could have returned to work much earlier if they had not encountered some signifi-cant workplace obstacles to return-to-work. For example, on the Liberty Mutual Disability Risk Questionnaire, it was found that a patient who did not return-to-work immediately after she was ready, but delayed and initiated vocational retraining, reported to be not satisfied about the fol-lowing workplace variables, relative to those who did promptly return: the employer’s lack of attempts to communicate with her after the injury; the perception that her boss blamed her for the injury; and there were no job accommodations made to help deal with her injury, even though her doctor ordered some work changes. This post-injury non-satisfaction was present even though this patient reported complete job satisfaction before her injury on the “Work Satisfaction” scale of the ORQ! Even though these were pilot, retrospective evaluations not collected for all patients, such results provide additional important preliminary data to suggest that one may have to modify these potential obstacles of work return in order to maximize the early intervention program for high-risk ALBP patients, and to thus further prevent the development of chronic disability. Such data are also in keeping with the results of the Marhold et al. (2002) study of the importance of a patient’s perception of workplace variables that present potentially formidable obstacles to expeditious work return. This was, therefore, a major focus of evaluation in our third study in this series of NIH-supported investigations.
Combined Early Intervention and Work Transition
In a just completed study by Whitfill, Haggard, Bierner, Pransky, Hasset and Gatchel (in press), “high risk” ALBP patients were randomly assigned to one of four groups: early intervention alone (EI); early intervention plus work transition (EI/WT); work transition alone (WT); or standard care (SC). The work transition component, consisting of up to six individual
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
sessions, provided guidance in the transition back to work and help in addressing current work conditions that may aggregate the injury. Modi-fications related to schedules, tasks and ergonomics are examples of areas that might benefit from adjustment. Results of this study again clearly demonstrated the effectiveness of the EI program. However, the WT com-ponent did not significantly add anything to these positive outcomes. One possible reason for the lack of a WT effect was the fact that it was viewed as a complicating factor by many participants who were concerned with the negative impact of their “suggestions” to employers. Thus, the success of the EI supports the position that additional work-specific interventions may be unnecessary, due to the added costs and compliance issues, in an ALBP population. It may be better suited for a more chronic population.
Finally, in another study emanating from this series of studies, Rogerson, Gatchel and Bierner (in press) conducted a cost utility analysis of our early intervention program, versus standard treatment, for the “high risk” ALBP patients. Results revealed that the early intervention group again reported fewer healthcare visits and missed workdays, relative to the standard treat-ment group. Moreover, the early intervention was more effective and less costly from a societal perspective, as well as being the preferred option in over 85% of the cases. Such findings are again encouraging evidence for the cost effectiveness of our early intervention program, as well as patient satisfaction.
Other Early Intervention Programs
The author would be remiss if not to mention other clinical research pro-grams that have demonstrated the efficacy of similar early intervention programs for LBP. For example, Loisel and Durand (2005) have provided a detailed account of The Sherbrooke Model. This integrated approach was developed to deal with the worker and the workplace, using a progressive and graded schedule. As they have noted: “The interventions included in this model of management had as a principal aim the early identifica-tion of workers at risk of prolonged disability (four weeks of absence from
37Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
regular work). A work rehabilitation process, graded to match the improve-ment of the worker’s capacities with a progressive augmentation of work demands, was utilized. Additionally, a simultaneous ergonomic interven-tion was undertaken to permanently reduce excessive work demand” (pp 480-481).
The efficacy of the above approach was evaluated by an RCT, comparing it with usual care as well as other traditional rehabilitation approaches. Re-sults clearly revealed that the Sherbrooke approach was significantly more efficacious at returning workers to their regular jobs faster and reducing the duration of absence from work. Moreover, self-report measures of pain and disability were reduced more.
Sullivan and colleagues (Sullivan et al., in press) have also developed an effective program that integrates psychosocial and behavioral interven-tions to achieve optimal rehabilitation outcomes in LBP patients. They are able to identify potential risk factors, and then tailor the rehabilitation program accordingly. Thus, this is another example of the progress being made to intervene at an early point in time in order to prevent the devel-opment of longer-time disability.
Temporomandibular Joint And Muscle Disorder Pain
Again, the purpose of presenting this information on TMJMD is to pro-vide another example of how systematic clinical research is being conduct-ed on other prevalent musculoskeletal pain syndromes. Hopefully, in the future, similar lines of research will be conducted for other common and costly conditions, such as upper extremity and low extremity pain and dis-ability syndromes.
Temporomandibular joint (TMJ) pain is part of the larger diagnostic cat-egory called temporomandibular joint and muscle disorders (TMJMDs). The majority of cases of TMJMD involve either disc displacements, muscle disorders, internal derangements or degenerative changes of the TMJ, or combined muscle-joint disorders. Gatchel (2005) and Gremillion (2000)
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
have reported that the most frequently cited reason patients in the United States seek medical or dental care is due to pain. Moreover, the Ameri-can Academy of Orofacial Pain (2004) estimates that 75% of the U.S. population experiences symptoms of TMJMD during their lifetime, and that 5-10% require professional treatment. Although the prevalence of TMJMD varies widely among studies, researchers surveying the prevalence literature estimated that, in any given year, 10% of women and 6% of men have TMJMD pain, which translates to some 20 million adults (Drang-sholt & LeResche, 1999). These researchers also estimated that, within a 6- to 12-month period, more than 5.3 million U.S. residents will seek treatment for TMJMD, at a conservative estimate of $2 billion for direct costs of treatment alone. Although studies measuring indirect costs are presently lacking, researchers have found that 28% of TMJMD patients re-port disability and limitations, in addition to unemployment (Von Korff, Ormel, Keefe, & Dworkin, 1992). Extrapolation from these researchers’ figures would drive the total cost of TMJMD to well over $4 billion per year, assuming that indirect costs would most likely exceed direct costs. Indeed, with health care costs becoming more of an issue for patients, as well as healthcare providers, researchers have been investigating and find-ing that some behavioral treatments offer a significant medical cost-offset effect (Chiles, Lambert, & Hatch, 1999). Annual managed care treatment costs for orofacial pain individually can range from $12,000 to $20,000 (Brotman, 1997). Von Korff and colleagues (Von Korff, Lin, Fenton, & Saunders, 2007) observed 372 TMJMD patients over a 3-year period, and found that this pain population made more visits than controls. Thus, in addition to the dental and psychosocial benefits in preventing patients from progressing from acute to chronic TMJMD, there is also a great cost benefit.
Clearly, TMJMD is a common and costly disorder. As a result of these high costs, there has been a trend towards more conservative forms of treatment (over the more invasive ones of the past). Stohler and Zarb (1999), in their seminal article on this controversy, made a plea for a “low-tech, high prudence therapeutic approach.” In response to this plea, a number of effective behavioral medicine approaches have been developed to better assess and treat TMJMD disorders. This was in response to the
39Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
traditional unresponsiveness of this TMJMD population to traditional medical/dental treatment approaches. It is well established that, as the du-ration of pain increases, patients become more refractory to intervention (Gatchel, 2002). Moreover, as also reviewed by Gatchel (2002), traditional treatment of TMJMD has predominantly involved physical interventions, such as TMJ surgery, occlusional adjustments, and a wide array of pharmo-cotherapeutic approaches. Moreover, other nonsurgical treatments, such as interocclusal appliances, physical therapy and nocturnal alarms also have been used. However, as Dworkin (1995) began to highlight, a more comprehensive biopsychosocial approach was needed to address both the physical and psychosocial factors involved in TMJMDs.
Our clinical research team became interested in TMJMD because, as originally noted by Dworkin (S. Dworkin, 1995), TMJMD and LBP are disabilities that have many things in common: the course of both are typi-cally recurrent and often chronic; and the severity of pain and related behavioral dysfunction is highly variable both between patients and over time. Furthermore, as also pointed out by Von Korff (1995), similar to LBP, TMJMD pain may be viewed as an “illness in search of a disease.” This is because the majority of cases of LBP and TMJMD are rarely associ-ated with a well-defined disease. Moreover, traditional interventional ap-proaches have not proven to be as therapeutic - or cost-effective as desired. Because of these similarities, our clinical research program on LBP was paralleled by a similar research program on TMJMD.
Initial Studies
In our initial intervention study, Mishra et al. (2000) compared four dif-ferent treatment modalities for the treatment of TMJMD: biofeedback (BFB); cognitive behavioral therapy (CBT); comprehensive combined BFB/CBT; and treatment as usual. We found all three treatment groups had significantly reduced pain scores from pre- to post- treatment, and sig-nificantly improved mood scores, relative to the treatment as usual group. Additionally, among the treatment groups, the BFB group alone showed the greatest improvement. Gardea, Gatchel and Mishra (2001) then built upon this research, following up their original study with a one-year out-
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
come evaluation. We found that all treatment groups maintained their therapeutic gains from pre-treatment to one-year follow-up, relative to the no-treatment group. Also notable in our findings was that, at one-year, the largest treatment gains were then associated with the comprehensive BFB/CBT group as compared to the BFB alone group. We concluded the BFB group was associated with greater significant gains immediately following intervention because treatment was more obviously and directly linked to the patients’ physical pain complaint. This may have increased the pa-tients’ motivation to comply both in-session and with home practice. At one-year, the gains in the comprehensive BFB/CBT group may reflect a combination of immediate benefits of biofeedback treatment, in conjunc-tion with longer-term benefits that may be realized after a lifestyle change. Such change may develop following CBT, which requires more time to fully embrace and implement. Short-range positive outcomes afforded by the BFB intervention, combined with longer-range gains provided by the CBT intervention, were thought to explain the increased gains in terms of physical and emotional functioning of the combined group at one-year.
Early Intervention Studies
The above studies represented a continuation of the recent trend to devel-op a comprehensive, manual-driven treatment approach that is biopsycho-social in nature. This “low-tech, high-prudence therapeutic approach” to TMJMD has now been employed with acute patients (complaints of pain for less than six months by most standards). Moreover, the question of whether the progression from acute to chronic TMJMD-related pain may be avoided by early intervention with patients deemed at risk for developing chronic pain was the first issue addressed. Epker, Gatchel and Ellis (1999) originally formulated a statistical algorithm, based on a logistic regression model, relying upon self-reported pain intensity ratings (as assessed by the Characteristic Pain Intensity index, as used in the Research Diagnostic Criteria/Temporomandibular Disorders [RDC/TMD]), and the presence or absence of myofascial pain to palpation (again, as measured by RDC/TMD criteria) in acute TMJMD patients. It correctly classified 91% of these patients “at risk” for developing chronic TMJMD problems at 1-year follow-up. In subsequent studies to be reviewed next, it was hypothesized
41Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
that early intervention with high-risk patients would result in lower levels of pain at one-year follow-up, relative to non-intervention patients. It was further hypothesized that these early intervention group patients would demonstrate improved levels of coping and decreased emotional distress at one-year follow-up. Both hypotheses were confirmed.
The results of the major study in this area clearly indicated that early inter-vention at the acute stage of TMJMD significantly reduced the prevalence of chronic pain and emotional distress, relative to those high-risk TMJMD patients who did not receive such early intervention (Gatchel, Stowell, Wildenstein, Riggs, & Ellis, 2006). Table 3 summarizes the outcome data that displayed significant differences, between the high-risk early interven-tion and the high-risk no intervention groups at one-year post-intervention follow-up, in the anticipated directions.
Table 3. Long-Term Outcome Results at One-Year Follow-up
OUTCOME MEASURES
Self-reported pain as measured by the Characteristic Pain Intensity (CPI); effect size=.872 (“large”)
Self-reported symptoms of depression as measured by the BDI; effect size=.44 (“medium”)
Adaptive and maladaptive coping styles; effect size for “Self Blame”=.40 (“me-dium”)
Psychopathology (Affective Disorders, Anxiety Disorders and Somatoform Disorders)
Health care utilization related to jaw pain (e.g., dentists, orthodontists, oral surgeons, chiropractors, etc.) outside of the study.
As can be seen in Table 3, the major hypotheses of this study were con-firmed: the high-risk acute TMJMD patients who received early interven-tion displayed significantly fewer indices of chronicity on measures of pain, health care utilization related to jaw pain, and emotional distress (as reflected by symptoms of depression, maladaptive coping styles and major psychopathology), relative to the high-risk acute TMJMD patients
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
who did not receive this early intervention. Such results, obviously, have major implications in terms of decreasing emotional distress and for po-tentially producing cost-savings for this prevalent pain problem. It is also interesting to note that there were significantly more health care visits by the non-intervention group patients seeking treatment for their jaw pain. As important were the types of providers seen. Many were made to more costly providers that could, over time, result in greater overall expense, especially if complex chronicity developed.
In terms of cost savings, we conducted a more comprehensive cost-effec-tiveness analysis of differences between the intervention and non-inter-vention groups (Stowell, Gatchel, & Wildenstein, 2007). Health-care costs associated with jaw pain from the initial onset of pain to the intake into the study, and for the one-year of study duration, were collected for all patients. These data included costs for health-care visits, and related ap-pliances/splints, travel distance and travel time to visits, medications, etc. Results demonstrated significantly greater overall costs associated with the non-intervention group, relative to the intervention group. For example, the early intervention group spent statistically significant fewer dollars dur-ing the 1 year after initial intake, relative to the non-intervention group ($131.84 average vs. $422.91 average, respectively). There were no differ-ences between groups at initial intake. Such therapeutic efficacious and cost-effective results are in keeping with the earlier cited plea by Stohler and Zarb (1999) for a “low-tech, high-prudence therapeutic approach” to TMJMD.
Finally, we also completed initial analyses of even longer-term outcomes of patients used in the above two studies by Gatchel and colleagues. In this investigation by Robinson, Stowell, Bernstein, Ellis and Gatchel, (in preparation) longer-term post-treatment outcomes (from approximately 2 to 6 years since initial intake) were evaluated in order to determine if the benefits achieved at 1-year were sustainable. Results clearly demonstrated this sustainability, with the early intervention group displaying lower pain and depression measures at long-term follow-up, relative to the non-in-tervention group. Moreover, the early intervention subjects reported the continued use of the skills and techniques at this long-term period, and
43Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
they perceived the intervention as very valuable, with 96% very likely or likely to recommend the intervention to others. In addition, the early intervention group subjects had significantly fewer visits to health care providers for jaw pain than the non-intervention subjects, as displayed in Figure 1. Although there are certain limitations of this yet-to-be-complet-ed study, such as not being able to initially collect data from all subjects (because such long-term follow-up was not planned for after the comple-tion of the one-year follow-up), the results are nevertheless quite clear in further demonstrating the long-term efficacy of our early biopsychosocial intervention. It also represents one of the first attempts at such long-term follow-ups of its type with TMJMD patients.
Figure 1. Statistically Significant Linear Trend for Jaw-Pain Related Health Care Visits (Robinson et al., in preparation)
0
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B as eline 1-Y R LTF
T im e
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isits
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The success of the biopsychosocial (combined BFB/CBT) intervention used in this study was not surprising in light of the fact that CBT has been shown to be very efficacious in the treatment of pain, as reviewed in
EI=Early Intervention
NI=Non-Intervention
LTF=Long-term Follow-up (2-6 Years Post Treatment)
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
a meta-analysis by Morley, Eccleston and Williams (1999). Such treatment also appears effective irrespective of medical diagnoses (Gatchel & Oordt, 2003; Morley & Vlaeyen, 2005). For example, a double-blind (RCT) for the treatment of chronic primary insomnia, often seen in a variety of med-ical disorders, has been shown to be efficacious (Edinger, Wohlgemuth, Radtke, Marsh, & Quillian, 2001). Earlier RCTs of the efficacy of CBT for TMJMD clinic patients by Truelove et al., (2006) Dworkin et al., (S. F. Dworkin et al., 2002) and Turner et al. (2006) further support the clinical robustness of this treatment modality.
A Final Word: Tertiary Gain Barriers
The evidence-based clinical research demonstrating the treatment-and cost-effectiveness of early intervention methods in two very prevalent and costly musculoskeletal disorders (LBP and TMJMD) raises an important question as to why they are not being more widely applied in the public healthcare marketplace? There still appears to be a “great divide” between the clinical research community and the healthcare services/insurance in-dustry in allowing such approach to be translated or utilized on a larger scale as a treatment of choice in the public arena. It may be partially due to the innate conservatism of insurance as an enterprise, and the concomi-tant reluctance/institutional barriers to attempt anything new. The an-swer may also be likely related to the phenomena of tertiary gain, a concept reviewed by Dersh, Gatchel and Kishino (2005). Of course, most readers are probably familiar with the concept of secondary gain, which has received a great deal of attention as a potentially perpetuating factor in maintaining illness, pain and disability. However, most are less familiar with tertiary gain, which can also be an equally significant perpetuating factor.
This concept was first introduced by Dansak (1973) which he defined as those gains sought or attained from a patient’s illness by someone other than the patient. For example, as Dersh et al. (2005) note: “…the wife of an ill man may use her husband’s illness to gain more power in their rela-tionship. Before his illness, he controlled the finances and did not allow her to work outside the house. After his illness develops, she takes over the finances, and takes a job to stabilize their financial status. Comfort-
45Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
able with this new arrangement – including her increased power in the relationship…” (p.13).
In addition to tertiary gains of family members, Dersh and colleagues (Dersh et al., 2005) also pointed out the potential tertiary gains of health-care providers and the healthcare industry. Table 4 presents some of these tertiary gains. As can be seen, there are a number of individuals/industries that want a “piece of the financial pie” related to covering the risk of a pa-tient’s illness. For example, healthcare professionals’ financial well-being is based upon the number of patient visits, assessments, treatments, etc. that can be charged. Hospitals depend on their financial status on the basis of “number of beds” filled, and inpatient surgeries/procedures performed. Pharmaceutical companies’ “bottom line” depends on the number of drugs that can be prescribed to patients. Healthcare companies are in the business of selling insurance for people against the risk that they will get ill. Even workers’ compensation companies are in the business of selling insurance for potentially disabled workers. Finally, the federal government has a stake in this area because the Medicare and Medicaid agencies em-ploy a great many federal workers whose jobs depend upon administering social insurance against the illness of citizens.
There are too many special interest groups pulling in the different direc-tions, wanting to be certain that they maintain their financial piece of the “illness pie.” As succinctly noted by Nemeth and colleagues (2005):
This resistance to change is multifaceted, with the major system stakeholders (injured workers, employers, insurers, health-care provider, and lawyers) creating an adversarial environment that can move only slowly toward actual reform. Indeed, Dersh and colleagues have discussed the issue of “tertiary gain” in a claim-ant’s continued impairment: claimant’s gain by maintaining fam-ily homeostasis; health-care provider and lawyers gain through continued payment for services; unions gain by justifying their existence, in advocating for workers not to return to work too early; politicians gain by offering programs such as Social Secu-rity Disability Insurance (SSDI), which are received from unem-ployment rate statistics (p.25).
Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
Table 4. Healthcare Practitioners/Industries Associated with Tertiary Gains
Healthcare professionals receiving financial rewards associated with an increased
patient pool and the provision of professional services.
Hospitals depend on their financial status on the basis of “number of beds filled,”
as well surgeries/procedures that keep their operating rooms busy.
The “bottom line” of pharmaceutical companies depends on the number of drugs
that can be prescribed to patients.
Healthcare companies are in the business of selling insurance for people who be-
come ill. Their profit margin is based upon premiums received versus healthcare
costs they must pay.
Workers’ compensation companies play an intermediary role of selling insurance
to States in order to insure their workers. Again, their profit margin is based upon
premiums received versus healthcare costs they must pay.
Federal Medicare and Medicaid agencies employ a great many federal employees
whose jobs are based on administrating benefits to patients with health disorders.
Summary And Conclusions
We have reviewed the growing evidence-based support for the treatment- and cost- effectiveness of early identification and intervention methods for “high risk” patients with musculoskeletal disorders. Two very prevalent and costly examples of such disorders – LBP and TMJMD pain – were used to demonstrate such effectiveness. The clinical research conducted and reviewed was stimulated by repeated calls for such an approach. For example, as succinctly noted by S. J. Linton (2005):
While identifying patients at risk for developing persistent…pain and dis-ability is important, providing an effective intervention is crucial. Indeed, the central question after identification is “How do we prevent this prob-lem from becoming chronic?” Without effective remedies, early identifica-tion is relatively meaningless. Thus, early identification has little inherent
47Early, Simple And Low-Cost Clinical Methods For Improving Outcomes
worth if it is not tied to action. However, developing early interventions has been a difficult challenge that has received too little attention. Still, some progress has been made and various researchers have developed pro-grams and scientifically tested them (p.463).
Indeed, a significant amount of progress has now been made, after re-sponding to this clear challenge for “action.” We have made significant gains in solving the puzzle for the most therapeutic- and cost-effective method to prevent chronic LBP and TMJMD. However, we are now faced with another important challenge – how can we “bridge the gap” between such evidence-based approaches and the healthcare insurance companies to utilize such approaches as a treatment of choice in the larger public marketplace arena? Barriers to making “tertiary gains” will now have to be aggressively addressed for the public good.
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Robert J. Gatchel, Ph.D., ABPP received his Ph.D. in Clinical Psychology from the University of Wisconsin. Since that time, his major area of clinical research has been in the area of pain assessment and management. He has been continuously funded by grants from the National Institutes of Health over the past 25 years for research in this area, and was also the recipient of a prestigious Career Research Scientist Award. He has published or co-authored 24 books, over 100 book chapters, and over 300 peer-reviewed journal ar-ticles. He has also received numerous awards for his clinical research in this area from organizations such as the American Pain Society, the American Psychological Association, the North American Spine Society, the Interna-tional Association for the Study of the Lumbar Spine, the American Academy of Pain Management, just to name a few. He is currently the Nancy P. & John G. Penson Endowed Professor of Clinical Psychology, as well as Chair-man of the Department of Psychology, College of Science, at The University of Texas at Arlington.
57Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
Pennsylvania Experiences With The Mental Injury/
Physical Injury Dichotomy: Cases Involving
Schizophrenia And Shiftwork Maladaptation
Syndrome
David B. Torrey*
Abstract
Barriers have been erected against the compensability of mental injuries. Some jurisdictions ban pure mental stress causing mental disability cases. Others require identification of some physical animus or, like Pennsylva-nia, “abnormal working conditions.”
Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
To try to avoid these burdens, injured workers have portrayed psychic in-juries as having a physical character. In Pennsylvania, a worker with schizo-phrenia sought to portray the illness as a biological disease. In another case, a worker who suffered from Shiftwork Maladaptation Syndrome (SMS), caused by disruption of “circadian rhythms,” proved the ailment as a physical injury. The Supreme Court reversed the award, implying that SMS reflected mere symptoms of an emotional problem.
In this article, the author analyses the Pennsylvania cases, noting also the similar Tennessee and Nova Scotia SMS cases. The author criticizes these illiberal decisions. Still, reluctance to recognize such claims likely has a genesis in a rational concern by courts that they must avoid setting too generous a precedent. The author concludes that because circadian rhythm disruption has now been identified as a possible carcinogen, it will now seem less far-fetched to posit that the physical maladies of SMS are reflective of real injury as opposed to the mere symptoms of an emotional condition.
[I.] Introduction
A recent panel discussion at an American Bar Association workers’ com-pensation meeting raised the issue of whether certain pathologies, nor-mally thought of as mental conditions, can be conceptualized, instead, as physical conditions. The issue is intriguing, as legislatures and some courts, in the current era of retractive reform, have erected barriers against the compensability of mental injuries. Some jurisdictions, like West Virginia, impose an outright statutory ban on pure mental stress caus-ing mental disability cases (the so-called “mental-mentals”).1 Others, like Kentucky, require, as a predicate for relief on mental injury claims, iden-
1 “For the purposes of this chapter, no alleged injury or disease shall be recog-nized as a compensable injury or disease which was solely caused by nonphysical means and which did not result in any physical injury or disease to the person claiming benefits. It is the purpose of this section to clarify that so-called mental-mental claims are not compensable under this chapter” (W. Va. Code § 23-4-1f).
59Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
tification of some physical animus.2 Pennsylvania, meanwhile, allows for compensability of “mental-mental” cases, but the common law erects a nearly insurmountable requirement of “abnormal working conditions” as a prerequisite for recovery (Martin v. Ketchum, 1990).
To try to avoid these heavy burdens, attorneys for injured workers have on occasion portrayed psychic injuries as in fact having a physical character.
The issue of whether a particular condition that seems to be “mental” in nature can, instead, be regarded as “physical,” has been encountered by Pennsylvania courts interpreting the workers’ compensation laws. This issue can be referred to as the physical injury/mental injury dichotomy.
The issue is particularly interesting under the Pennsylvania Act, as the legislature long ago (1972) substituted “injury” for “accident,” as the com-pensable event.3 The state Supreme Court in 1987 accorded to the word “injury” a liberal interpretation, and in Pennsylvania “injury” now means “any hurtful or damaging effect which may be suffered by anyone” (Pawlo-sky v. WCAB, 1987). The law with regard to occupational disease (O.D.) is similarly liberal. Like virtually all state laws, the O.D. provisions contain a list of diseases – coupled with specific occupations in which the disease is said to be a hazard – and if the worker labors in the occupation and de-velops the associated disease, a rebuttable presumption of work causation applies. The O.D. provisions do not, meanwhile, purport to bar diseases of everyday life, as do the laws of many jurisdictions, and the list includes
2 “‘Injury’ means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organ-ism evidenced by objective medical findings. ‘Injury’ does not include the effects of the natural aging process, and does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employ-ment. ‘Injury’ when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury” (K.R.S. § 342.0011(1)).
3 See Section 301(c)(1) of the Act, 77 P.S. § 411(1).
Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
a “catch-all” provision which accommodates recovery for newly identified occupational diseases.4
It is thus submitted that the definition of “injury” is, under the Pennsyl-vania practice, at its very zenith. This liberal regime, however, features two marked exceptions.
First, as foreshadowed above, the state Supreme Court has limited com-pensability of the “mental stress causing mental disability” (hereinafter “mental-mental”) cases. Compensation for such ailments is not barred outright, nor is a physical trauma required as a predicate for recovery in this category of cases. Thus, a WCJ may award benefits in a mental-men-tal case where the diagnosis is Post Traumatic Stress Syndrome (PTSD), even where no physical stimulus has been identified.5 Still, the claimant is obliged to show that the mental injury and disability were caused by objec-tively verifiable “abnormal working conditions” (Martin v. Ketchum, 1990). The courts, noting the subjective nature of psychic claims, imposed this heavy burden to insure that fraudulent claims could be avoided.6
Second, the Supreme Court has completely barred recovery for “Shiftwork Maladaptation Syndrome”7 and, by inference, for other maladies that have their genesis in bodily or mental reactions to irregularities in employee scheduling.
4 For the complete list, see Section 108 of the Act, 77 P.S. § 27.1.
5 See, e.g., Monessen, Inc. v. WCAB (Marsh), 631 A.2d 1119 (Pa. Commw. 1993).
6 “We believe…that to countenance the distribution of workmen’s compensation benefits to all potential claimants who may succumb emotionally to the demands and circumstances of their otherwise normal employment would be to usher in a wide spectrum of compensability heretofore unenvisioned by the General As-sembly. Although the Workmen’s Compensation Act is remedial legislation to be liberally construed in order to effect its humanitarian purposes, we believe that the standard presently in place serves the Commonwealth’s legitimate interest in determining frivolous and fraudulent claims and thereby maintains the financial and institutional integrity of the workmen’s compensation system” (Sibrava v. WCAB, 1988).
61Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
It is in these two categories that Pennsylvania has had its nota-ble encounters with the mental injury/physical injury dichotomy. With regard to the “mental-mental” cases, in at least one case the claim-ant, faced with the abnormal working conditions restrictive test, portrayed his injury, schizophrenia, as a “biological,” and hence a physical, injury. The court showed sympathy to this theory, though it ultimately affirmed an award of benefits on other grounds (Leo v. WCAB, 1988). (As noted below, however, a practice of portraying mental injuries as “physical” to date has not evolved from that seemingly portentous case.)
With regard to the Shiftwork Maladaptation Syndrome (SMS) case, the claimant at first successfully portrayed his condition (marked by insom-nia, headaches, and diarrhea) as a physical injury, supporting that theory with expert proofs that laboring at rotating shifts had upset his body’s biological clock or “circadian rhythms.” As foreshadowed above, however, the court rejected this argument, implying that such maladies were mere symptoms of an emotional problem, and declaring that the law did “not define injury to include physical ailments that arise from normal working conditions such as eight-hour shifts” (Metropolitan Edison Co. v. WCAB, 1998)
In this paper, I provide a summary and analysis of the two Pennsylvania encounters noted above. Among other things, I note that the “psychiatric jury” seems to be still out on whether schizophrenia should be considered a “biological” condition and hence conceivable as a physical injury. I fur-ther note that at least two other jurisdictions, Tennessee (Henley v. Road-way Express, 1985) and the Province of Nova Scotia (Michelin North America [Canada] Inc. v. Ross, 2002), have also ruled that pathological conditions developing from shiftwork are not compensable. These courts, however, took an approach different from that of Pennsylvania. Instead of holding that SMS could not be considered an “injury,” these courts held that the condition could not be said to have arisen in the course of employment.
Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
[II.] Limited Mental Stress/Mental Disability Recovery: Schizophrenia as a Biological Injury?
A Canadian psychiatrist – a cynic harshly criticizing the personal injury and workers’ compensation systems, with their purportedly generous pay-ments in subjective cases – has nevertheless acknowledged, “Nowadays, at least scientifically, it is accepted that mind and body, like the two sides of the same coin, are so interconnected that they cannot be separated” (Malleson, 2002). This idea, of course, complicates the mental injury/physical injury dichotomy.
Currently, schizophrenia as a diagnosis seems to be one where the major-ity of mental health professionals believe that such a mind-body connec-tion is operative. One resource posits, “Evidence suggests that genetic and environmental factors can act in combination to result in schizophrenia” (Harrison & Owen, 2003). Ongoing psychiatric research focuses on the role of neurobiology, but, reportedly, no single organic cause has been located and no laboratory test exists to verify or rule out the diagnosis.
In the same vein, another authority remarks, “The causes of schizophrenia are unknown: while several possible causes exist, no single cause explains all cases of schizophrenia. Genetics, birth defects, environmental triggers, and imbalances of the neurotransmitter dopamine are all considered pos-sible causes of schizophrenia.”8 With regard to this latter, potentially bio-logical cause, the authority explains, “Dopamine imbalances have been suggested as a possible cause of schizophrenia. Dopamine is a brain neu-rotransmitter necessary for relaying brain nerve cell impulses. Dopamine’s exact role in schizophrenia is unclear. Several arguments can be made in support of high dopamine levels as a cause of schizophrenia…”9
The American Psychiatric Association’s Manual DSM-IV echoes the am-biguity expressed above on the issue of causation. In discussing causation and any “familial pattern,” for example, the DSM remarks, “although
63Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
much evidence suggests the importance of genetic factors in the etiology of schizophrenia, the existence of a substantial discordance rate in mo-nozygotic twins [i.e., originating from a single fertilized ovum] also indi-cates the importance of environmental factors” (DSM-IV, 2000).
Whether schizophrenia is a mental or physical injury became ripe in a 1988 Pennsylvania case. There, an issue before the workers’ compensa-tion authorities and court was whether the claimant’s schizophrenia was a mental injury – as perhaps most lay people would view it – or, instead, a biological injury.
As foreshadowed above, the Pennsylvania rule was, in 1988 (as it is now), that a claimant asserting a pure mental stress causing mental disability injury is obliged to prove “abnormal working conditions.” An employee’s subjective reaction to abnormal working conditions, in contrast, cannot form the basis of a cognizable claim. The courts have always construed this requirement strictly. The fact-finder must, in his or her analysis, con-sider the worker’s occupation when making the pivotal determination as to whether the psychological stressors identified by the worker were abnor-mal for that particular occupation.
Perhaps to avoid this heavy burden, counsel for the claimant advanced the case as one where claimant had suffered a physical injury. In this regard, no abnormal working conditions requirement exists in a mental stress causing physical disability (mental-physical) case. The judge, however, viewed the case as a mental-mental, ignored the abnormal working condi-tions rule, and awarded benefits. The appellate court ultimately affirmed, expressing sympathy for the “physical injury” theory, but ultimately affirm-ing on other grounds.
In the case, Leo v. WCAB (1988), the claimant had been employed for six years (1968-1974) by his municipal employer. He was successful in that job, and was thereafter hired by the same employer as a police officer. This change of duties provoked a dramatic personality change in the claim-ant. He worked for another six years (1974-1980) in this occupation, but
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ultimately had a nervous breakdown from the stress of his new and more stressful work. He then filed for workers’ compensation. Both his treating physician and his psychiatrist represented that he “experienced a men-tal breakdown, a biological illness diagnosed as paranoia schizophrenia.” The judge awarded benefits, though he did so on the basis that claimant had suffered a compensable mental-mental. The Appeal Board (an intra-agency level of review) reversed, considering claimant to have suffered a purely “psychic illness” based upon a subjective reaction to normal work-ing conditions.
As noted above, the Commonwealth Court (the first level of judicial re-view) restored the award. The court first castigated the Board for consider-ing schizophrenia to be a “psychic injury”; to the contrary, the credible evi-dence was that claimant’s condition was a “biological disease.” The court thereupon contrasted an earlier case where claimant alleged a disability because of a “daily fear of another traumatic incident.” That case, the court noted, involved a “purely psychiatric injury.”
In the end, however, the court affirmed by applying a mental-mental prec-edent that allowed benefits in the “promotion” context. In this regard, a sub-category of mental-mental cases exists allowing benefits where a work-er, promoted to a job with dramatically increased duties, suffers a men-tal disability as a result (Leo v.WCAB, 1988).10 (In essence, Pennsylvania courts have considered a promotion attended by new stresses to constitute an abnormal working condition. When this doctrine first evolved, some critics derided the lead precedent as the “Peter Principle” case).
When the Leo case was filed, many in the workers’ compensation com-munity sensed that the court was extending a sub rosa invitation to the claimants’ bar to portray mental-mental cases as mental-physicals. They would do so, of course, by having their experts identify, when possible, the chemical, hormonal, or other biological agent that contributed as a causal factor in the mental disability. However, as long observed in a lead-ing treatise, this invitation seems to have fallen upon fallow ground. The
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claimants’ bar has not pursued the theory with any vigor. No further prec-edents directly address the issue (Torrey, 2008).
[III.] Shiftwork Maladaptation Syndrome:Physical Injury or Mental Injury with Mere Physical Symptoms?
[A.] Nature of Shiftwork
An employee’s adverse reaction to working odd hours, the night shift, or rotating shifts, may well be deemed merely a non-compensable mental problem. Indeed, as noted below, the Pennsylvania Supreme Court and a Nova Scotia appellate court have taken that position. (The Larson treatise, notably, does not take a position on such claims, but the cases addressing the issue are collected, generally, in Chapter 56.)
The latest research, however, suggests that physical illness can result from being subject to such work conditions, and hence adverse health reactions perhaps may now more likely be conceived of as compensable under work-ers’ compensation statutes. The latest research seems to confirm what has been known for some time: “shiftwork” disrupts the individual’s “internal-ized body clock called the circadian rhythm,” giving rise to ailments such as fatigue, sleep disruption, and even cardiovascular and gastrointestinal disorders (Bird & Mirtorabi, 2006). (The “circadian” of circadian rhythm, means “pertaining to events that occur at approximately 24-hour intervals, such as certain physiological phenomena” (Taber’s Cyclopedic Medical Dic-tionary, 1993).
Of course, workers in certain fields have always been exposed to night-shift work. Transportation, nursing, and utilities are all industries that have long required their employees to work the night turn. The evolution of the “24/7” economy has, however, reportedly given rise to an increasing demand for workers to work at odd hours (Bird & Mirtorabi, 2006). No longer is the 9 a.m. to 5 p.m. shift necessarily the standard shift that work-ers can expect. A scholar of such work patterns explains as follows:
Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
Social and economic changes during the past thirty years have triggered a significant increase in the use of shiftwork. As wom-en have increasingly participated in the workforce, dual-income families have increasingly demanded non-standard working hours for restaurants, entertainment, and other services. An aging population requires increased round-the-clock medical as-sistance. Technological innovations such as cell phones and pag-ers enable employers to contact employees at any time regardless of location or time zone. The result is a self-perpetuating cycle of increased consumer demand for shift services necessitating greater shiftwork scheduling which in turn triggers even greater consumer demand for services for shiftwork employees during nonstandard hours (Bird, 2007). (Footnotes omitted).
Scholars and analysts who are expert in the field refer to schedules, other than the familiar standard, as labor in “shift work” (Bird & Mirtorabi, 2006). One type of shiftwork is the “rotating shift,” where a worker alter-nates between day shifts and night shifts as the weeks go by.11
[B.] Shiftwork and Health Concerns
The leading chronicler of shiftwork health concerns, at least in the legal literature, is Professor Robert C. Bird of the University of Connecticut. In his leading article, he portrays shiftwork as “unhealthy and dangerous.” He summarizes, in this regard, the evidence suggesting that such work (1) causes not only fatigue, but cardiac and stomach problems; (2) may also affect reproductive health, diabetic conditions, epilepsy, and asthma; (3) inflicts harm upon healthy family life; and (4) causes a higher incidence of both on-the-job and off-the-job accidents (Bird & Mirtorabi, 2006; An-derson, 2004).
Health concerns by workers over shiftwork, rotating shifts, and mandatory overtime are also familiar to the general population. During a major strike
11 See http://en.wikipedia.org/wiki/Shift_work (discussing various rotating shift formats and depicting them with monthly calendars).
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by Verizon workers in Pittsburgh, for example, members of the Commu-nications Workers of America (CWA) handed out leaflets to this writer and others complaining that irregular working hours “were making them sick.” The website of the United Electrical, Radio and Machine Workers of America (UE), meanwhile, in an article called, “Fatigue and Shiftwork,” complains, “More and more employers, driven by their insatiable need for higher profits, are instituting some form of 24x7 ‘continuous produc-tion’ – which can have a major impact on the health and well-being of workers.”12
Many employers already realize that shiftwork can be accompanied by em-ployee health and other risks. One trade journal, for example, recently summarized research findings and counseled its readers that they must be ready for the possibility of significant collateral costs if they proceed forward with shift work:
A review of numerous studies and articles confirms that no re-search demonstrates a positive correlation between night-shift work and improved worker health and safety. By contrast, cited problems include cardiovascular ailments, decreased hormone production, preterm births, gastrointestinal disorders, increased alcoholism, and higher cancer and mortality rates. Numerous references to greater stress in family relations as well as parental unavailability further emphasize the liabilities associated with ro-tating- and night-shift work…
These findings suggest to the employer that when production demands warrant extended work hours or rotating shift work, costs associated with maximizing output via shift work or longer hours may be excessive. Those costs are related to an increased workplace incidence rate as well as a higher after-hours auto inci-dence rate, plus greater employee-health expenses. Such numbers should be considered when funding is evaluated for increasing production-equipment capacity (Eckhardt, 2008).
12 See http://www.ueunion.org/stwd_fatigueshift.html.
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Indeed, in the present day experts on problems with shiftwork market their services on the Internet to busy employers.13
[C.] Shiftwork-induced Physical Maladies: The Hor-mone Melatonin
The public’s familiarity with shift-work health concerns was vastly en-hanced in November 2007, when the International Agency for Research on Cancer (IARC), a subdivision of the World Health Organization, added “overnight shift work as a probable carcinogen.” This story was reported on the front page of USA Today (Night-shift work linked to cancer, 2007).
While the agency acknowledged that “higher cancer rates [among night shift workers] don’t prove working overnight can cause cancer,” its “sci-entists suspect that overnight work is dangerous because it disrupts the circadian rhythm, the body’s biological clock. The hormone melatonin, which can suppress tumor development, is normally produced at night…Scientists believe that having lower melatonin levels can raise the risk of developing cancer. Light shuts down melatonin production, so people working in artificial light at night may have lower melatonin levels.” The same scientists posit: “Sleep deprivation may be another factor in cancer risk. People who work at night are not usually able to completely reverse their day and night cycles.” Further, “Not getting enough sleep makes your immune system vulnerable to attack, and less able to fight off potentially cancerous cells” (Night-shift work linked to cancer, 2007).
A renowned workers’ compensation blogger, Jon Coppelmann, summa-rized these IARC findings on the Internet, as did many others in the me-dia. Coppelman expressed sympathy for workers who became ill because of the work schedules of the 24/7 economy, but pessimistically remarked that, “Given the general uncertainty about cancer’s origins, claims [for cancer based on allegations of exposure to shift work] will be routinely and aggressively denied” (Coppelmann, 2007).
13 For a website of consultants who counsel employers about the health risks of shiftwork, see http://www.circadian.com/.
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These recent cancer findings have, in any event, made fairly well known, in the present day, the hypothesis that disruption of the circadian rhythms can cause ill health. Still, the diagnosis of “shift work maladaptation syn-drome” or “shift work sleep disorder” has actually been established for some time. It is already recognized by the DSM-IV, and it is based on the same theory of disruption of the circadian rhythms.
To be precise, the DSM-IV recognizes the diagnosis of “Circadian Rhythm Sleep Disorder.” A subcategory is the “Shift work type” (Section 327.36). According to the manual, “The essential feature of Circadian Rhythm Sleep Disorder is a persistent or recurrent pattern of sleep disruption that results from a mismatch between the individual’s endogenous [i.e., arising from within] circadian sleep-wake system on the one hand, and exogenous [i.e., originating from without] demands regarding the timing and dura-tion of sleep on the other…” (DSM-IV, 2000).
As for the subcategory, “Shift Work Type,” “In this type of Circadian Rhythm Sleep Disorder, the endogenous circadian sleep-wake cycle is normal and the disturbance arises from conflict between the pattern of sleep and wakefulness generated by the circadian system and the desired pattern of sleep and wakefulness required by shift work.” The text adds, “Rotating-shift schedules are the most disruptive because they force sleep and wakefulness into aberrant circadian positions and prevent any consis-tent adjustment.” This subcategory of the “circadian rhythm mismatch is further exacerbated by insufficient sleep time, social and family demands, and environmental disturbances (e.g., telephone, traffic noise) during in-tended sleep times” (DSM-IV, 2000).
The DSM-IV does remark that, while workers afflicted with the problem “may appear haggard or sleepy,” and have cardiac and gastrointestinal dis-turbances, “there are [n]o specific physical findings…” (DSM-IV, 2000).
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[D.] Court Decisions Refusing to Recognize SMS: Two Approaches
[1.] Pennsylvania: Metropolitan Edison v. WCAB (Werner) (Pa. 1998)
The Pennsylvania Supreme Court, in a 1998 ruling, rejected the proposi-tion that Shiftwork Maladaptation Syndrome, even if proven, constituted a compensable injury.
In that case, Metropolitan Edison v. WCAB (1998), the claimant was a longtime employee of the company, a utility. In his job as a “system load dispatcher,” he oversaw the operation of the utility’s electrical system, in-cluding the “scheduling of generation and loading of transmission and distribution lines and substations.” He had long worked rotating shifts, and at the time of his claim his schedule apparently consisted of three time periods: 7:00 a.m. to 3:00 p.m., 3:00 p.m. to 11:00 p.m., and 11:00 p.m. to 7:00 a.m., the latter also known as the midnight shift. He worked these rotating shifts on a “six-week rotation pattern.”
In 1990, Werner sought a change of jobs with the employer, specifically one “that did not require a change in shifts because he was having trouble sleeping during the day.” He had had these problems since 1988, along with headaches and diarrhea. When the employer would not accommo-date the claimant, he resigned and filed for workers’ compensation. (Ulti-mately, he began working a day-shift janitorial job for the employer, so his claim was for one of partial disability.)
A WCJ, the Appeal Board, and the Commonwealth Court all granted benefits. The WCJ (the final fact-finder) had credited the opinion of claimant’s expert that Werner had developed SMS from his work. That witness, notably, was Board-certified in Internal Medicine and in Endocri-nology. He had been involved in studies dealing with the “human biologi-cal clock.” He had not examined the patient, but instead testified based on a hypothetical.
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The judge, in granting benefits, concluded that the condition constituted an “injury” under the Pennsylvania Act. The credited expert testimony was summarized as follows:
Dr. Richardson testified that shift work maladaptation syndrome is a con-sequence of a person’s inability to adapt to a shift work schedule. He dis-tinguished shift work maladaptation syndrome from diseases and defects, stating:
…anyting that prevents an individual from adequately sleeping during the day or as required by the shift schedule will cause shift work maladaption [sic] syndrome if allowed to progress for years or months or in some cases even weeks.
We have documented or demonstrated that some people sleep poorly on shift schedules because of unusual features of their cir-cadian clocks. Some people sleep poorly on day shift because of the inevitable consequences of aging. Some sleep poorly on the day shift because of co-existence of some other disease or prob-lem. Some probably for a variety of more mundane reasons. The data available do not allow us to be specific about Mr. Werner, but the outcome is fairly specific and recognizable. Something is preventing adequate sleep on the day shift or on the shift sched-ule as you outlined it and that consequence is chronic sleep dep-rivation and shift work maladaption [sic].
Dr. Richardson further testified that human physiology has adapted to make individuals active when there is light, and that bodily functions are optimized for daytime function. He indicated that the human body clock will always have a daytime orientation due to exposure to sunlight by day and darkness by night. Dr. Richardson stated that research suggests there are “no real night people,” merely a variation among individuals’ abilities to adapt. He considered the age of an individual to be a relevant factor, with the prevalence of shift work maladaptation syndrome increasing with age. Dr. Richardson observed, however, that no data was available to pre-
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dict who would be able to adapt to working at night and who would be unable to adapt (Metropolitan Edison v. WCAB, 1998).
The employer appealed the award, arguing that SMS was in effect a psychic injury, and that claimant had not shown abnormal working conditions. The Commonwealth Court, however, affirmed, as it “concluded that the interruption in the circadian rhythm was a physical injury, and that the application of the physical injury burden of proof was appropriate because Werner did not plead the existence of anxiety or psychic problems giving rise to physical problems.”
As foreshadowed above, the state Supreme Court reversed. The court held unequivocally that SMS could not be conceived of as an “injury” under the Pennsylvania Act. The court so held despite its full acknowledgment of the historic statutory change from “accident” to “injury,” and its own precedents giving the latter term a liberal interpretation.
The court seemed to treat the condition as a “mental stress causing mental disability” case – where abnormal working conditions are required – and dismissed the sleeplessness, headaches, and gastrointestinal problems as mere symptoms of the mental disorder.
On the other hand, the court may be viewed as treating the case as one in its own category. In this regard, the court repeatedly emphasized that the stimulus for the disability, viz., the normal process of an employer schedul-ing an employee for work, could not be conceived of as either provoking an injury or being an injury. The court stated:
Met-Ed argues that Werner has not sustained an injury…because the stimulus underlying his physical complaints was the simple scheduling of work on a rotating shift basis. Met-Ed contends that scheduling an employee to work an eight-hour shift is a normal condition of employment, not a disease or physical harm. We agree…Werner’s argument confuses cause with effect. The cause, or stimulus, of Werner’s physical complaints is the scheduling of the hours that Werner worked. Neither the condition of Met-
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Ed’s premises nor the job functions of a system load dispatcher resulted in an injury to Werner. It would be a gross distortion of the common and approved usage of the term “injury” to include within its meaning an employer’s scheduling of an employee to work during an available eight-hour shift (Metropolitan Edison v. WCAB, 1998).
The court added, “Normal working conditions, in the nature of schedul-ing an employee to work a night shift, are not injuries…merely because an employee undergoes physical or psychic reactions to those conditions. Although it is undisputed that Werner suffered from headaches, diarrhea and sleep loss, triggered by exposure to sunlight after working the midnight shift, the inquiry must focus upon whether the cause or stimulus of the physical complaints is an injury” (Metropolitan Edison v. WCAB, 1998).
In a remarkable development, a 2003 decision of Commonwealth Court granted benefits in an SMS case. There, the claimant, Zink, was a Viet-nam Veteran whose employer had long accommodated his service-related PTSD by allowing him to work on the night shift. Later, however, the em-ployer began requiring rotating shifts, and the claimant became disabled. The WCJ and Board, following Metropolitan Edison, dismissed the case. The court, however, awarded benefits:
Given the circumstances presented in this case, the Court con-cludes that Zink has satisfied his burden to prove that he was subjected to abnormal working conditions and that his injuries are therefore compensable. The WCJ found that Zink presented evidence to establish that his preexisting conditions were exac-erbated or aggravated due to working rotating shifts for eight months before he became totally disabled, unlike the claimant in Metropolitan Edison. Many other significant distinctions exist between the two cases. Contrary to the circumstances in Met-ropolitan Edison, Employer hired Zink under a federal law de-signed to promote employment of Vietnam War veterans with full knowledge of his preexisting condition. Employer knew that Zink worked the third shift for thirteen years to accommodate
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his condition, but it nevertheless required Zink to work rotating shifts despite written and oral communication from his treating physician that to do so would exacerbate Zink’s condition (Zink v. WCAB, 2003).
A vigorous dissent sympathized with the claimant but insisted that Metro-politan Edison should definitively bar the claim.
[2.] Tennessee: Henley v. Roadway Express (TN 1985)
A Tennessee court, in a 1985 ruling, rejected the proposition that an em-ployee’s depressive condition, brought on by working the night shift, either constituted a compensable occupational disease or “arose” in the course of employment. The case, decided more than a decade before Metropolitan Edison, does not use the phrase “Shiftwork Maladaptation Syndrome,” but it might as well have.
In that case, Henley v. Roadway Express (1985), the claimant was a clerical worker for the company, a national freight concern. Because of a down-turn in business, he was obliged to work the night shift with hours of 11:00 p.m. to 7:30 a.m. He was unable to sleep during the day, and he became extremely fatigued.
His physicians diagnosed him as suffering from stress exhaustion. Accord-ing to Henley, “I could not sleep during the day. I would lay there, my mind would race continuously. I heard every noise that went on. I heard every car that passed. I heard the clock tick, I heard the refrigerator run, I heard everything all day long…An average day’s sleep for me was cat naps, not more than forty-five minutes to an hour long…I dozed off, basically, forty-five minutes to an hour daily.”
He also testified, “I became deprogrammed. I lost assertion. I could not think, I could not remain stable, I could say yes one minute and no the next. I was happy, sad, continuously, nothing – nothing, I felt nothing at the end. I couldn’t sleep day or night. I am still affected by it.”
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His physician submitted a report to the company “wherein the opinion was expressed that plaintiff was suffering from ‘a stress exhaustion syn-drome brought on by an inability to adjust to night shifts’ and it was rec-ommended that he be allowed to work a regular daytime or evening shift.” After Henley became suicidal, he underwent a six-week hospital stay. After a week of restored regular sleep, he was much better. He changed jobs, but filed for a permanent partial disability.
The trial court awarded a 75% PPD. The judge found as fact that Henley had become “physically exhausted and [this] led to the development of a severe depression and a subsequent nervous breakdown and mental im-pairments resulting therefrom…In the court’s opinion, the nervous break-down was caused by his working on the third shift, which was a condition of employment under which he worked, and therefore arose out of his employment and he is entitled to recover worker’s compensation benefits for the disabilities resulting therefrom.”
The appellate court, however, reversed. The court was unpersuaded that the malady complained of could be an “occupational disease” under the law. It also pointed out a significant omission – plaintiff had not called for testimony the physician who prepared the report quoted above. More fundamentally, however, the court rejected the proposition that claimant had suffered an injury arising in the course of his employment:
[P]laintiff’s proof is insufficient to meet the tests of “arising out of” and “in the course of” employment. Plaintiff’s claim is predi-cated upon the effect that his hours of employment had upon his home life and personal activities, principally his problem with sleeping in the daytime, although it is obvious that during most of the year he has five to six hours of night time available for sleep.
We have repeatedly said that to satisfy the requirement “arising out of” employment it must be shown that the injury was caused by a hazard incident to the employment and that, to satisfy the requirement of “in the course of” employment, it must be shown
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that at the time and place of the injury the employee was per-forming a duty he was employed to do…
Clearly, it would require expansion beyond reasonable limits to find that the inability to sleep at home between the hours of eight-thirty a.m. and twelve p.m. was in the course of performing a duty plaintiff was employed to do or was a hazard incident to the employment environment (Henley v. Roadway Express, 1985).
[3.] Nova Scotia: Michelin No. America v. Ross (Ct. App. Nova Scotia 2002)
The Nova Scotia Court of Appeals, in a 2002 ruling, rejected, like the Pennsylvania Supreme Court, the proposition that SMS was compensable under its workers’ compensation laws (Keith & Groves, 2003). Like the Tennessee court, the Nova Scotia court could not conceive of the condi-tion as having arisen out of and in the course of the employee’s work. As in both Pennsylvania and Tennessee, notably, the court was reversing an award of benefits made by the workers’ compensation authorities/trial court.
In that case, Michelin North America (Canada), Inc. v. Ross (2002), the claim-ant, Ross, had worked for seven years on a rotating shift schedule. The type of shift involved was a “backward cycle”:
In a backward cycle a worker moves from days to the night or midnight to 8:00 a.m. shift to the evening shift from 4:00 p.m. to midnight. A day off occurs after every three or four shifts and a break of four days once per cycle. Medical evidence suggested that a backward rotating shift schedule is more difficult for a person with shift-work maladaptation syndrome than a forward rotating schedule.
Ross began missing work because of severe sleeplessness. This problem, ac-cording to the court, “caused Ross to consider himself disabled by a ‘cog-
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nitive deficit,’ which diminished his alertness on the job.” He thereupon “filed a workers’ compensation accident report claiming he had an ‘injury’ called ‘shift work maladaptation syndrome.’” The workers’ compensation authorities awarded benefits, but the court, distinguishing a precedent, reversed:
In the present case … the [workers’ compensation] Tribunal did confuse the manifestation of symptoms while at work with the re-quirement that the disablement arise out of and in the course of employment. Mr. Ross’s cognitive deficit was a result of his shift-work maladaptation syndrome arising, as the Tribunal found, from his natural and innate intolerance of the conflict between his personal circadian sleep-wake pattern and the need to work at a time when his individual sleep-wake cycle would naturally be in the sleep phase or the need to sleep at the time he would naturally be awake.
This intolerance is, as the Tribunal found, a personal characteris-tic inherent to the person…[T]here is no evidence that this condi-tion is either caused or aggravated by the requirements of the job. Contrary to the Tribunal’s holding…it cannot be said that simply because the condition manifests itself at work that the condi-tion or its symptoms arise out of or in the course of employment (Michelin North America [Canada], Inc. v. Ross, 2002).
[IV.] Conclusion
The Tennessee and Nova Scotia decisions summarized above denied com-pensability based upon narrow readings of the “arising out of and in the course of employment” test. The Pennsylvania case, meanwhile, is decided – awkwardly – on the unsatisfactory basis that the claimant, though prob-ably sickened by the obligations of his work, did not suffer any “injury.”
These three decisions are easy to critique. In Pennsylvania, “injury” has consistently been held to mean “any hurtful or damaging effect which may
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be suffered by anyone” (Pawlowsky v. WCAB, 1987). Yet, the court ignores its own rule and holds that a worker’s ill health caused by the conditions and obligations of his employ cannot be an injury. In Kentucky and Nova Scotia, the statutes provide for compensation for injuries that arise out of (a causation requirement) and in the course of (a time and space require-ment) employment. Yet, the courts so narrowly apply this universal test as to in truth nullify it, and hold that the sickened workers did not suffer injuries having their origins in the conditions and obligations of work.
Perhaps if continuing studies verify a hard physiological basis for SMS, and lawyers present their cases with persuasive experts on the issue, courts in the future may find compensability. It seems likely that if courts are con-vinced that the condition is objectively verifiable, they will be more sympa-thetic to SMS cases. Research into the question of disruption of circadian rhythms, notably, seems to be progressing, and it often seems to have as its focus the precise body chemistry involved. An academic enterprise, the Journal of Circadian Rhythms, now discretely treats the issue.14
Further, as of October 1, 2005, the diagnostic codes for circadian rhythm sleep disorders were changed from the 307-group to the 327-group in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR). The DSM was updated to be consistent with the International Classification of Diseases (ICD-9). The new codes reflect the transfer of these disorders from the Mental Disorders section to the Neurological section in the ICD.15 (This transfer, however, seems based more on technical reasons than a response to a new scientific understand-ing of the cause of the condition.)
Finally, because disruption of circadian rhythms has now been widely identified as possessing a carcinogenic effect, it will perhaps seem less far-fetched, or indulgent, to posit that other physical maladies – sleeplessness, headaches, and diarrhea – are reflective of a real injury and not the mere physical symptoms of the neurotic.
14 See http://www.jcircadianrhythms.com/.
15 See http://psych.org/MainMenu/Research/DSMIV/DSMIVTR/CodingUp-dates/NewDiagnosticCodesforSleepDisordersEffectiveOctober12005.aspx.
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It seems likely that judicial reluctance to grant such claims has its genesis in a rational “floodgates” concern, in this context a feeling by the court that it must avoid setting a precedent that will prompt any worker who experiences maladjustment to or discomfort with an undesirable work schedule to commence workers’ compensation litigation.
Surely an additional sub rosa judicial motivation is the concern that at least some of these claims will lack authenticity. Like the Pennsylvania court, quoted above, which applied the “abnormal working conditions” rule, the courts in these cases were no doubt concerned about “frivolous and fraudulent claims and…the financial and institutional integrity of the workmen’s compensation system.”
While floodgates and factitious claims are valid concerns, it is unfortunate that what appear to have been authentically afflicted workers – Werner, Henley, and Ross – were denied a remedy for their illness.
References
American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed. revised). Washington, DC: Author.
Anderson, T. (2004). Overwork robs workers’ health: Interpreting OSHA’s general duty clause to prohibit long work hours. New York City Law Review, 7(85).
Bird, R. (2007). A shift too far: The failure to recognize shiftwork maladaptation syndrome as an injury under workers’ compensation law (unpublished manuscript, in draft), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1057781.
Bird, R. & Mirtorabi, N. (2006). Shiftwork and the law. Berkeley Journal of Employment and Labor Law, 27(383).
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Coppelman, J. (2007). Awake in the dark: The link between shift work and cancer (blog posting), available at http://www.workerscompinsider.com/archives/2007_12.html. Eckhardt, B. (2008, May 1). Work shift review. Concrete Products. Available at http://concreteproducts.com/mag/work-shift-review-0301/.
Harrison, P. & Owen, M. (2003). Genes for schizophrenia? Recent findings and their pathophysiological implications. The Lancet, 361(9355): 417–19. Abstract available at http://www.ncbi.nlm.nih.gov/pubmed/12573388.
Henley v. Roadway Express, 699 S.W.2d 150 (Tenn. 1985).
Keith, N. & Groves, T. (2003). Workers’ comp and shiftwork. Accident Prevention (May/June 2003). Available at http://www.gowlings.com/ohslaw/pdfs/AccPrev_MayJune03.pdf.
Kentucky Revised Statutes § 342.0011(1).
Larson, A. Workers’ Compensation Law.
Leo v. WCAB (Borough of Charleroi), 537 A.2d 399 (Pa. Commw. 1988).
Malleson, A. (2002). Whiplash and other useful illnesses. Toronto: McGill-Queen’s University Press. Available at http://books.google.com/books?id=naDghccZhEwC&printsec=frontcover&dq=Malleson+whiplash&source=bl&ots=hs5ze3xaXQ&sig=a-j-EzV2fJJZRJit2qwdR4EHQds&hl=en&ei=mmR9S8vpItXelAej8MylBQ&sa=X&oi=book_result&ct=result&resnum=2&ved=0CA0Q6AEwAQ#v=onepage&q=&f=false).
81Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
Michelin North America (Canada) Inc. v. Ross, [2002] N.S.J. No. 538 (2002 NSCA 166, Docket No. CA 177445), full text available at http://decisions.courts.ns.ca/nsca/2002/2002nsca166.pdf.
Night-shift work linked to cancer. (2007, November 29). USA Today. Available at http://www.usatoday.com/news/health/2007-11-29-night-shift-cancer_N.htm.
Pawlosky v. WCAB (Latrobe Brewing), 525 A.2d 1204 (Pa. 1987).
Sibrava v. WCAB (TWA), 537 A.2d 75 (Pa. Commw. 1988).
Taber’s Cyclopedic Medical Dictionary. (1993), 17th ed., p. 391.
Torrey, D. & Greenberg, A. (2008). Pennsylvania Workers’ Compensation: Law & Practice (3rd ed.). Eagan, MN: Thomson-West.
Pennsylvania Experiences With The Mental Injury/Physical Injury Dichotomy
David B. Torrey has been a Workers’ Compensation Judge with the Pennsyl-vania Department of Labor & Industry since 1993. He is Adjunct Professor of Law, University of Pittsburgh School of Law (1996-present). He is also the Editor of the Pennsylvania Bar Association Workers’ Compensation Newslet-ter (1988-present). He has his A.B., 1982, from West Virginia University; and his J.D., 1985, from Duquesne University School of Law. While in law school, he was Editor-in-Chief of the Duquesne Law Review (Volume 23, 1984-85). He is a Fellow of the College of Workers’ Compensation Lawyers, an organization affiliated with American Bar Association workers’ compen-sation sections. He has recently published the Third Edition of his treatise, Torrey & Greenberg, Pennsylvania Workers’ Compensation: Law & Practice (4 Volumes: West 3rd ed. 2008). He also served in the U.S. Army (1976-1979), and in the West Virginia Army National Guard (1979-1982).
83Work-Related Suicide: A Review of the Judicial Approaches
Work-Related Suicide: A Review of the Judicial
Approaches in United States, Australia, Canada and
United Kingdom
Robert Guthrie*
Maryam Zulfa
Abstract
Work-related death by suicide raises a number of difficult issues in the context of workers’ compensation. Workers’ compensation statutes usu-ally prevent recovery of compensation where an injury is self-inflicted. Additionally compensation is usually denied where the nexus between employment and injury is broken. Both these matters are considerations in cases where work-caused injury results in a worker taking their own life. This paper examines the different approaches to the issue of work suicide in four major English common law jurisdictions. This survey concludes that all jurisdictions have gradually moved away from an approach, which
* Adjunct Professor of Workers’ Compensation and Workplace Laws, Curtin University of Technology, Perth, Western Australia. Email: [email protected]
Work-Related Suicide: A Review of the Judicial Approaches
restricted compensation for suicide to a more contemporary approach, which has removed most of the barriers for compensation for suicide.
Introduction
The first workers’ compensation statutes enacted in common law coun-tries appeared in the United Kingdom (UK) in the late nineteenth and early twentieth century. These laws were novel in that they made provi-sion for the payment of compensation to injured workers regardless of fault. Such a notion was foreign to the long established tort principles, which required a plaintiff to show carelessness or negligence on behalf of the defendant in order to recover damages. Workers’ compensation laws were put in place soon after in Australia, Canada1 and United States (US) which largely adopted the UK approach with some German2 influences also apparent in a number of US jurisdictions.
Common to these laws was the requirement that workers’ compensation payments were contingent upon proof by the worker that an injury had been suffered in a manner that arose out of and in the course of the em-ployment. Save for this requirement, and provisions that mandated timely submission of a claim, a worker did not have to show fault on behalf of the employer to establish liability. That said, provisions were included which prevented recovery by workers if they inflicted harm upon themselves or were injured by reason of their own serious and willful misconduct. Workers’ compensation entitlements have always included payments to dependents of a worker who is killed in an incident that arises out of and
1 The Canadian compensation regimes were heavily influenced by the report by Sir William Ralph Meredith, “Laws relating to the liability of employers to make compensation to their employees for injuries received in the course of their employment which are in force in other countries, and as to how far such laws are found to work satisfactorily.” Province of Ontario 31 October 1913.
2 In Germany, Chancellor Otto Von Bismarck introduced a compulsory state run accident compensation system between 1884-1886 funded by workers and employers. In 1911, Wisconsin was the first state to introduce constitutionally valid workers’ compensation in the US.
85Work-Related Suicide: A Review of the Judicial Approaches
in the course of the employment. Where a worker suffers a compensable injury and subsequently commits suicide the question arises as to whether the worker’s death is compensable and as a consequence his or her de-pendents should be awarded compensation. Differing approaches have emerged in the four major jurisdictions the subject of this study. Early UK and US cases suggested that compensation for suicide may be pay-able in very limited and restrictive circumstances usually requiring that the worker’s dependent establish that the workers took their own life because the compensable injury resulted in some form of mental derangement which robbed the worker of his/her volition. More recently, however, cases in all nations surveyed here3 suggest that if the dependent can show an unbroken chain of causation between the work-related injury and a re-sulting mental state (such as anxiety or depression) that impels the worker to suicide this may be sufficient to ground a compensable claim.
This paper is divided into four main parts. Each part will deal with the developments in the law in one of the four subject jurisdictions. In each part leading cases will be discussed in order to trace judicial refinement of the principles related to workplace suicide. The paper concludes with some reflections on the developments in this area.
1 United States
This section of the article will address the law of the United States in rela-tion to work-related suicide. It is notable that in United States workers’ compensation laws like those in Australia and Canada are dealt with at sub-national level. In the case of United States this results in 50 forms of state workers’ compensation legislation (plus territories and federal sys-tems), with the resultant potential for considerable variation in entitle-ment provisions and judicial interpretation. Under most workers’ com-pensation laws of the United States, as in all jurisdictions with this form of social insurance, there must be some causal relationship between the workers employment and the injury, disability, or death. In most States
3 This does not include all sub-national systems within the jurisdictions.
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the formula which establishes this relationship requires that the injury must “arise out of and in the course of the employment.”
An important commentator on the US position, Bradshaw (1967)4 notes that generally, disability, death, or other injurious consequences have been compensable under the worker’s compensation laws if proximately caused by an original, compensable injury. Importantly, Bradshaw notes that in the case of death, it is immaterial whether the death was the reasonable and likely consequence of the accident, if the death resulted from the injury. In many United States jurisdictions there are express provisions that exclude injuries which are intentionally self-inflicted by the worker. In those jurisdictions where express provisions of this kind exist the death of a worker by suicide has been held, at least in the early cases, to be com-pensable in very limited circumstances, requiring satisfaction of two key elements, which include;
The suicide was committed while the worker was insane, 1.
The worker’s insanity arose out of and in the course of his 2. employment.
United States compensation decisions rely upon a well-settled presump-tion that the worker is sane at the time of any injury. Although the fact of suicide may be considered, along with other facts, in evaluating the sanity of a person, the suicidal act is not of itself sufficient to establish insanity.
Preparation for Suicide – Influence on Findings of Insanity
As will be discussed below in those states where it is prerequisite for a compensable claim to prove the insanity of a worker a key element in the proof of the worker’s mental state will be a suicide note. Apparently, ra-tional suicide notes left by the worker have been held to demonstrate that
4 The authors acknowledge that this paper draws heavily on the work of Brad-shaw.
87Work-Related Suicide: A Review of the Judicial Approaches
the worker’s conduct was intentional and that he knew what he was doing at the time of taking his own life, thereby resulting in compensation to be denied on the grounds that the injury was self-inflicted. In such cases the so-called Sponatski rule, which is discussed below, is applied, although one court, not applying the Sponatski rule, has held that an apparently rational suicide note is not conclusive as to the power to resist the suicidal impulse (Widdis v Collingdale Millwork Co., 1951). On the other hand, incoherent notes left by the worker have been accepted as at least some evidence of the worker’s insanity at the time of the suicide, and the absence of a suicide note has occasionally been advanced as tending to show a lack of premedi-tation and a possible irresistible impulse (Terminal Shipping Co. v Traynor, 1965). The fact that some preparation was necessary for the suicidal act, or that the worker waited until he was alone, or hesitated before committing suicide, has been held, under the Sponatski rule, to demonstrate knowl-edge of the consequences of the act and the lack of an irresistible impulse, so as to deny compensation, although these factors have had no apparent effect under the chain-of-causation test also described below (Re Sponatski, 1915; Konazewska v Erie R. Co., 1945). Although one case regarded the violence of the method by which a worker took his life as evidence of an uncontrollable impulse, this factor has not generally been a matter of much influence in the stated reasoning of the courts (Rooks v Trans World Airlines, 1994). These issues are largely issues of fact for the primary judge to determine and the findings on the issue of sanity are not often subject to appeal court scrutiny.
The Sponatski Rule
A starting point for the discussion in relation to the themes which have emerged in relation to the work-related suicide is the Sponatski rule. In State ex rel. Wyoming Workers Compensation Div v Ramsey (1992) the Su-preme Court of Wyoming identified four rules which have been applied in the United States regarding the issue of the relationship of mental de-rangement, suicide and work. The harshest of these tests arises from the decision of Re Sponatski (1915) where a worker received an injury at work when a splash of molten lead struck his eye. He was treated at a hospital,
Work-Related Suicide: A Review of the Judicial Approaches
but whilst being treated he threw himself from a window and was fatally injured. It was held that “[t]he inquiry relates solely to the chain of cau-sation between the injury and the death,” and that it was necessary to decide “whether the chain of causation between the injury and the death is broken by the intervention of some independent agency.”5 The ques-tion is whether “there is a new and independent agency which breaks the chain of causation arising from the injury.” Under this rule, a suicide is not compensable unless;
As the result of a physical injury, 1.
the worker was possessed of an uncontrollable impulse to com-2. mit suicide or was in a delirium of frenzy,
did not consciously intend to kill himself, and 3.
did not realize the consequences of his act of self-destruction. 4.
The Sponatski rule incorporates the M’Naughten rule6 for criminal insanity, which essentially determines that a person’s insanity is established when he is deprived of the power of reasoning because of the injury arising out of and in the course of the employment. It requires that the dependent establish that the effects of the injury deprived the worker of the capacity to understand what he is doing or of the capacity to control his actions and as a consequence the worker has no capacity to understand that those actions are wrong. Thus the court in Sponatski summarised the rule as:
[W]here there follows as the direct result of a physical injury an insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy `without conscious volition to produce death, having knowledge of the physical consequences of the act,’ then there is a direct and unbroken causal connection between the physical injury and the death. But where the resulting insanity is such as to cause suicide through a voluntary willful choice determined by a mod-erately intelligent mental power which knows the purpose and
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the physical effect of the suicidal act even though choice is domi-nated and ruled by a disordered mind, then there is a new and independent agency which breaks the chain of causation arising from the injury (1915).
The effect of this rule is that it leaves it open for a court to find that a worker who commits suicide knowing the purpose of his actions would break the chain of causation and thus compensation for the dependents would not be payable. The Sponatski rule has been criticized because it em-braces a criminal-law standard of insanity, which is inconsistent with the civil law standards inherent in workers’ compensation laws. In addition it implies an element of fault upon the worker, which is a concept specifi-cally removed from such legislation. Not surprisingly this rule is hard to satisfy and has not been adopted in all jurisdictions, and as it will be dis-cussed below has lost favor in many jurisdictions in the US over time.
The court in Ramsey observed that whilst eleven states had adopted the Sponatski rule at one time it was currently in favor only in Iowa, Vermont Washington7, and Wisconsin. Wisconsin and the most recent Ohio and Pennsylvania lower court decisions reveal a tendency to prefer the chain-of-causation test, which is discussed below. Bradshaw (1967) also argues that Minnesota appears to have done no more than pay lip service to the Sponatski rule and follow the chain-of-causation test in practice. It would also seem that recent cases in Missouri show a tendency to follow Sponatski (Thomas v City of Springfield, 2002).
Chain-of-Causation Rule
As noted in Ramsey the courts in the US have not universally adopted Sponatski. A more contemporary approach has emerged with the adoption in some states of the so called “chain-of-causation” approach. According
7 In Re Erickson Decd Docket No 65,990 15th July 1985, Board of Industrial Appeals State of Washington, where the Board declined to depart from Sponatski, but took a liberal approach to the facts and found that the workers suicide was not volitional.
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to the “chain-of-causation” rule, sometimes referred to the as the “doc-trine of compensable consequences” adopted in some states, notably Ar-kansas (Jackson Mental Health Ctr. v. Lambie, 1995), Massachusetts8 (which originally formulated the Sponatski rule), Arizona (American Smelting & Refining Co v Industrial Commission, 1976), California (Donovan v WCAB [Finnerty], 1982; Burnight v Industrial Acci. Com., 1960), Connecticut, Florida, Illinois, Kentucky (Wells v Harrell, 1986), Michigan, Mississippi, Montana (Campbell v Young Motor Co, 1984), Oklahoma (Stroer v Georgia Pacific Corporation, 1983), Pennsylvania (Globe Social Security Systems Co v Workmen’s Compensation Board, 1988), Wyoming (State ex rel. Wyoming Workers Compensation Div v Ramsey, 1992), and Virginia9, a death by suicide is compensable if the injury and its consequences directly cause the worker to become devoid of normal judgment and dominated by a disturbance of the mind which leads to the suicide. The compulsion to commit suicide need not be abrupt or unpremeditated, but must be the result of an in-ability to exercise sound discretion. The suicide is not considered to be an independent intervening cause where, but for the accident, there would have been no suicide. In other words suicide in these circumstances does not break the chain of causation. It is not regarded as an intervening event. Bradshaw (1967) notes that Federal and Maryland cases also adopt the chain-of-causation test in some form, though they have not specifi-cally held it to be the law. Indiana has found it unnecessary to determine whether a more liberal rule should be used, since its sole case would have been compensable even under the Sponatski rule. The doctrine of com-pensable consequences has been stated in one case as follows;
8 Bemis v Raytheon 15 Mass Workers Comp Rpter 408 (2001) and Rizzo v MBTA 16 Mass Workers Comp Rptr 160 (2002) applied in National Fiber Technology LLC v Gilbert Dube (deceased) – Gilbert Dubes (dependants case) March 9 2007 Massachusetts Court of Appeal. In addition Massachusetts has amended its statute to provide compensation when ‘due to the injury, the employee was of such unsoundness of mind as to make him irresponsible for his act of suicide’ so as to effectively reverse the rule in Sponatski.
9 See Williams Industries Inc v Wagoner 24 Va App 181, 186 480 S.E. 2nd 788,790, Leadbetter Inc v Penkalski, 21 Va App 427, 432, 464 S. E. (1995) ap-plied in Century Indemnity Company v Ball Court of Appeals of Virginia 1206-96-4 May 13 1997 available at http://www.courts.state.va.us/txtops/1206964.txt last viewed 17th May 2009.
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Once an injury is compensable, the employer is liable for the full extent of the injury: the fact that complications arise of the injury worsens does not alter the compensable nature of the in-jury. When the primary injury is shown to have arisen out of and in the course of the employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause at-tributable to the claimants own intentional conduct (Williams Industries Inc v Wagoner).
Bradshaw (1967) argues that this rule is consistent with the general socio-economic purpose of the workers’ compensation laws which do not re-quire a worker to establish fault on behalf of the employer in order to claim and do not prevent a worker from claiming where the worker pre-cipitates the harm.
The Modified Chain-of-Causation Rule
The third approach noted in the decision of Ramsey is a modified chain-of-causation rule. New York has adopted a modified version of the chain-of causation test, known as the “New York rule” and sometimes as the “Delinousha rule” (Delinousha v National Biscuit Co., 1928) whereby death benefits are allowed where a compensable injury results in brain derange-ment other than discouragement, melancholy, or other “sane” condition, which in turn causes death by suicide. New York requires evidence of a psychosis or some physical damage to the brain itself, which appears to be somewhat stricter than the general chain-of-causation requirement that the worker be devoid of normal judgment and dominated by a distur-bance of the mind. It also seems to require that the injury precipitating the mental derangement be related to a physical one (Stapleton v Keenan, Gifford & Lunn Apartment House Co., 1934).
Work-Related Suicide: A Review of the Judicial Approaches
The Fourth American Test: The “English Approach”
According to the court in Ramsey, the fourth rule, referred to as the “Eng-lish rule” relying on the decision in Grime v Fletcher (1915) requires that insanity must be the direct result of the injury itself or the shock produced by it and not an indirect result caused by brooding over the injury and its consequences. This approach will be discussed further below. Although the court in Ramsey distinguished the English approach from Sponatski there seems very little difference in the actual application of the princi-ples.
The Degree of Work Connectedness in Relation to Suicide Claims in the United States
The mental aberration, of whatever degree required under the tests de-scribed above, must be traced directly to an injury or condition which arose out of and in the course of the employment, for the resulting suicide to be compensable under the workers’ compensation law. The nature of this required injury or condition, however, varies as can be seen above in different jurisdictions. Most American courts require that the mental condition must result from a work-connected, or compensable, injury or disease, and a few specify that the injury must be physical, but none of these courts were presented with a case in which no physical injury or disease was involved. On the other hand, four courts10 have permitted compensation to be awarded where the mental or nervous disorder and resulting suicide were produced by a work-connected activity, such as over-work, mental strain, and emotional experience, even though not precipi-tated by any physical injury.
10 Burnight v Industrial Acci. Com. (1960) 181 Cal App 2d 816, 5 Cal Rptr 786, Anderson v Armour & Co. (1960) 257 Minn 281, 101 NW2d 435, infra § 11[a], Wilder v Russell Library Co. (1927) 107 Conn 56, 139 A 644, 56 ALR 455, Trombley v Coldwater State Home & Training School (1962) 366 Mich 649, 115 NW2d 561,
93Work-Related Suicide: A Review of the Judicial Approaches
Except for one case,11 the remoteness of the injury from the time of suicide has not seemed to be important, so long as a direct connection between them could be shown. But this direct causal connection between the em-ployment and the suicide must not have been nullified by influences origi-nating entirely outside the employment. Compensation has been denied where the mental condition and resulting suicide were primarily caused by non work-connected injuries or personal problems, and where the mental aberration existed prior to the work-connected injury relied on, although some courts have found the aggravation of a pre-existing mental condition by a work-connected injury to be a sufficient ground on which to base an award. To summarize the US situation, it is fair to say that in some juris-dictions a restrictive approach is maintained, requiring suicide to have resulted from an uncontrollable impulse to do harm. The trend, however, seems to be toward a more generous approach in so far as the evidentiary onus has been eased towards a chain of causation.
2 Australia
As in the US, Australian workers’ compensation legislation contains pro-visions to the effect that compensation is not payable in respect of “any in-jury to or death of a worker caused by an intentional self-inflicted injury.” As in other common law jurisdictions, establishing evidence as to a chain of causation between a worker’s injury and his death is a factual matter involving the application of common sense12 and policy considerations. It is important to appreciate that in Australia, unlike the US and Canada, workers are entitled (in all jurisdictions apart from Northern Territory and South Australia) to commence common law actions against their employ-ers for damages for negligence in conjunction with any sufficiently serious claim for statutory workers’ compensation. This raises an important issue
11 Industrial Com. v Brubaker (1935) 129 Ohio St 617, 3 Ohio Ops 21, 196 NE 409, infra § 10[b],
12 The notion of common sense has been specifically endorsed as a guide in relation to causation by the Australian High Court in March v Stramare (1991) 171 CLR 506, discussed below in more detail.
Work-Related Suicide: A Review of the Judicial Approaches
as to whether tests applied in determining the chain of causation are the same in each kind of proceeding. In the first part of this discussion in relation to Australia we will review liability for damages when a civil tort causes suicide, showing that suicide is not subject to any unique consid-erations, then we will show how the same reasoning, which has gradually been adopted in workers’ compensation cases has eliminated barriers to compensation for suicide that characterized the early stages of workers’ compensation law.
Haber v Walker (1963), was one of the early Australian cases to consider the issue of suicide arising from an injury for which damages were payable. This case involved a claim for damages under the Wrongs Act 1958 (Vic) being a claim by a dependent consequent upon the death of the plaintiff killed as result of the defendant’s negligence. The deceased, Joseph Haber was injured on January 12, 1957, in a collision between a car he was driv-ing and the one driven by the defendant. He suffered severe brain damage and developed severe mental depression. In the hospital he made one at-tempt to take his life and on June 20, 1958, he committed suicide by hang-ing himself. The majority of the court distinguished between an action brought under common law and that which was brought under statute law (in this case the Wrongs Act), stating that the reasonable foreseeability considerations outlined by the House of Lords in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [The Wagon Mound] (1961) did not apply to actions under statute law.
Justice Gowans held that the ruling in the Wagon Mound imposed a limit upon liability in actions based on negligence at common law, whereas stat-ute law clearly laid down its own conditions for the imposition of liability on the defendant. His Honour referred to Chapman v Hearse (1964) and said, “The term ‘reasonably foreseeable’ is not in itself, a test of causation but that it marked the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act.”
Justice Lowe referred to a line of authorities, which recognized that actions brought under statute law are sui generis and that a statutory enactment such as the Wrongs Act creates a “novel right of action.” He observed
95Work-Related Suicide: A Review of the Judicial Approaches
that “no question of reasonableness” comes into the discussion in actions brought under statutes. Thus the test of liability which was established in Haber was whether the death in question was caused by the wrongful act, default or neglect of the defendant. The plaintiff was not required to prove that the death by suicide was reasonably foreseeable but merely that the suicide was a consequence of the defendant’s negligence. Nev-ertheless it was necessary to establish that there was a chain of causation, which linked the negligence of the defendant to the death of the deceased. In Haber v Walker the majority held that this had been established. The influence of this case was however significant and lead to a continuing struggle over the issues of causation and foreseeability. The impact of the case was that for some time different tests of causation were applied in relation to tort and workers’ compensation cases, with the proposition which emerged from Haber being that entitlements arising from statutory entitlements operated under principles of strict statutory interpretation. As will be noted below, Haber has been cited with approval in a number of cases outside of Australia.
Causation Under Common Law in Australia
The position outlined above in relation to Haber v Walker relates to the issue of whether the test of foreseeability should be applied to statutory entitlements. That is to say, were the injuries suffered by the plaintiff, which give rise to a statutory right to damages, reasonably foreseeable? The outcome of Haber v Walker was that such a test did not apply. Haber v Walker is now not considered good law and the common law principle of reasonable foreseeability with respect to causation came to be examined in later tort cases which as will be shown below have come to influence the outcome of workers’ compensation case in Australia. Medlin v State Government Insurance Commission (1995) was one such case. Although not a suicide case, the outcome of this tort case has been applied in later cases of work-related suicide in Australia. Medlin, which has been referred to in almost every workers’ compensation case dealing with suicide since it was decided in 1995, established that the test to be applied in determining whether there was a causal connection between a breach of duty of care
Work-Related Suicide: A Review of the Judicial Approaches
and the injury sustained by the plaintiff was whether but-for the injury the plaintiff would have suffered loss or not.
In Medlin, on appeal to the High Court, the issue was whether the plain-tiff, a university professor, who voluntarily retired from his employment at Flinders University in South Australia as a result of an injury four and a half years before reaching the normal retirement age of 65 years, was entitled to recover damages being the equivalent of four and a half years of salary for loss of earnings, as well as damages for loss of earning capacity in relation to the period after age 65. Evidence was tendered that the in-juries sustained in a work-related accident, namely the chronic and some-times intense pain and associated loss of intellectual energy contributed causatively to influence the plaintiff’s decision to retire early as a result of which he was no longer able to discharge his duties as the Head of School of Philosophy.
The High Court referred to the reasoning in the court below and the distinction made there between a “pre-eminent” cause and a “subsidiary cause.” The pre-eminent reason why the plaintiff decided to retire early was “to be able to devote as much time as possible to research and creative philosophy untroubled by the requirements of University life” and the subsidiary reason was that as a result of the plaintiff’s own high standards he believed he should retire for the reason that “he was not performing at the level he thought desirable” (Medlin v State Government Insurance Com-mission, 1995, at para 9). The High Court did not accept the Supreme Court’s ruling that the pre-eminent reason defeated the plaintiff’s claim for damages on the basis that the retirement was voluntary. In ruling in favour of the plaintiff the High Court reasoned that “the necessary cau-sation between [the] defendant’s negligence and the termination of the plaintiff’s employment, in the sense that the termination of the employ-ment is the product of an accident-caused loss,” can exist notwithstanding the fact that the immediate trigger of the termination of the employment was the plaintiff’s own decision to retire prematurely.”
The High Court ruled that the question of causation in common law negligence cannot be automatically answered by classification of causes
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as “pre-eminent” or “subsidiary.” Applying March v Stramare (1991) it was held that when there were two distinct causes without any one of which the particular damage would not have occurred, if each can “satisfy the law of negligence’s common sense test of causation” (at para 7), that was suf-ficient. In a joint judgment the court reasoned that in the circumstances of the case in Medlin, the relevant question was not whether the plaintiff “‘should’ have continued in his University post or whether his decision to retire early was not ‘reasonable’ but whether in the context of what was reasonable…the premature termination of the plaintiff’s employment was the product of the plaintiff’s loss of earning capacity notwithstanding that it was brought about by his own decision to accept voluntary retirement” (at para 14). Justice Toohey held the plaintiff’s decision to retire early was causally connected to his injuries, which were caused by the defendant’s negligence in the but-for sense. His Honour further elaborated that the plaintiff’s retirement might be a novus actus intervieniens if it was unreason-able in all the circumstances, applying the commonsense test established in March v Stramare (1991).
In March v Stramare the High Court determined that when there was a supervening event the but-for test must be “tempered by the making of value judgments and the infusion of policy considerations” (at CLR 516 per Chief Justice Mason). The facts of the case in March v Stramare were that the plaintiff who was intoxicated was injured when he drove into the rear of the defendant’s truck which was parked with its rear and hazard lights on. The truck was loading goods and was parked in the middle of the road. At first instance, the trial judge ruled in favour of the plaintiff but reduced damages by 70% due to contributory negligence. This deci-sion was overturned by the Court of Appeal. On appeal to the High Court the question to be decided was whether the conduct of the defendant in parking the truck in the middle of the road was a legally operative cause of the damage to the plaintiff (at CLR 526 per Justice McHugh). The High Court reinstated the trial judge’s decision, stating that there were difficul-ties of using the but-for test as a sole criterion of legal responsibility where there were two independent causes of the plaintiff’s damage, but neither alone was sufficient to have caused the damage. Whether an interven-ing or subsequent event had broken the causal connection was decided
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upon the basis of value judgments involving common sense. Citation of Medlin and March v Stramare has been a consistent feature of the cases dealing with work-related suicide in the workers’ compensation context. As the discussion of Kooragang Cement Pty Ltd v Bates (1994) below shows, these cases had a seminal effect on washing away the distinction created by Haber v Walker case.
The But-For Test in Cases Concerning Compensation under Statute Law
As noted in the decision the legacy of Haber v Walker endured in Austra-lia probably until the mid 1990s, whereby courts working with statutory schemes of compensation applied different considerations in relation to causation. The issue of whether the commonsense approach as endorsed by the High Court in March v Stramare as a means of considering causation in negligence actions should also be applied to statutory workers’ compen-sation cases was directly examined in Kooragang Cement Pty Ltd v Bates. In applying the chain of causation rule, the President of the Court of Appeal Justice Kirby (as he then was) stated:
The result of the cases is that each case where causation is an issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation or notions of proximate cause by the use of the phrase “results from”, is not now accepted. By the same token, the mere proof that certain events occurred which pre-disposed a worker to such injury or death, will not, of itself, be sufficient to establish that such in-capacity or death results from a work injury. What is required is a common sense evaluation of the causal chain. As the earlier cases demonstrate, the mere passage of time between a work inci-dent and a subsequent incapacity or death, is not determinative of the entitlement of compensation. In each case, the question whether the incapacity or death results from the impugned work injury (or in the event of a disease, the relevant aggravation of a
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disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinion. Applying the second principle which Hart and Honore identified, a point will sometimes be reached where the link in the chain of causa-tion becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, a judge deciding the matter will do well to return as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death resulted from. A work injury, which is impugned...
This case involved the death of Maxwell Bates who was working for Koora-gang Cement as a truck driver as in August 1981. Prior to his death Bates had reported a lower back injury and obtained a medical certificate ex-cusing him from lifting cement bags. The employer was unable to offer work confined to driving the truck only. Bates claimed workers’ compensa-tion based on the medical certificates evidencing incapacity for work. On March 16, 1992, the insurer informed Bates that as of March 1992 com-pensation would cease. The worker became depressed as a consequence of this decision. A medical report tendered in evidence disclosed that Bates “didn’t understand why it has taken so long to reach this point…why should he be singled out to have been kept in limbo all these years and then suddenly had the rug pulled off from under him.” The worker became anxious about his future and did not know how he would cope financially. On June 8, 1992, the defendant died of a myocardial infarc-tion. Compensation was awarded at first instance on the basis that the original back injury had led to depression, which in turn had led to the stress which caused the myocardial infarction. The chain of causation was held to be not severed.
On appeal the appellant argued that neither the back disability nor the degenerative heart disease were caused by the deceased’s employment with the appellant. It was argued that even if the deceased’s initial work in-jury did result in prolonged incapacity, a sedentary lifestyle, obesity, stress
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and anxiety, depression and stress on the cutting off of compensation, increased anxiety and depression just prior to the myocardial infarction, they were not causative in the relevant sense in that it was not shown that the death “resulted from” a work related injury, as the statute required; nor any of them either individually or in connection with the injury in question.
Justice Kirby observed,
…it has been well recognized…that an injury can set in train a se-ries of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the…court to award compensa-tion…
Based on the evidence tendered it was ruled that the chain of causation was not broken and that although the defendant had antecedent symp-toms of cardiac disease, this was exacerbated by the depression and anxiety caused as a result of the predicament arising out of the work-related injury. This view is in line with cases decided upon the basis that the proximate cause alone in interpreting the phrase “results from” is no longer accept-ed.13 As in that later case of Medlin, it was held that the events leading to the injury or death would not have occurred but for the work related injury. It follows that since Kooragang in Australia there is convergence of the tests of causation as between workers’ compensation and common law claims for damages for work accidents and that Haber v Walker is no longer applied.
13 His Honour referred to Woolworths Ltd v Allen (Court of Appeal 25 May 1988, unreported) and Australia Electrical Industries v Marlborough (Court of Appeal, 16 June 1989, unreported).
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The Contemporary Approach to Causation and Sui-cide in Australia
To return to the theme of cases directly dealing with work-related suicide, the application of the but-for test was also used in the more recent case of Holdlen Pty Ltd v Walsh (2000), a case in which insanity was the only issue in question as the factor that may or may not break the chain of causa-tion. In Holdlen the worker was injured at work in November 1994 and he committed suicide on November 14 or 15, 1997. The New South Wales workers’ compensation provisions relating to disentitlement in respect of “any injury to or death of a worker caused by an intentional self-inflicted injury” were again at the centre of the litigation. The trial judge held that the worker’s death resulted from the work injury and that the worker was insane at the time of his death, thereby rendering the suicide as uninten-tional. As established by a long line authority in the UK, death by suicide was regarded as excluded unless the worker was found to have been insane at the time of the suicide.14
The full court of the New South Wales Court of Appeal referred to the English standard of inquiry into sanity established in Marriott v Maltby Main Colliery Co Ltd (1920, at 359). Under that line of cases the depen-dents had to prove that: (1) at the time that the worker committed suicide he was in fact insane, (2) the insanity was a result of the accident, and (3) the suicide itself was the result of the insanity. It was decided that insanity in the McNaughten sense was not required. In Holdlen the court held that suicide, while deliberate, may often be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act breaking the chain of causation. A finding of insan-ity in the strict sense was not required, instead the test of whether the worker was “suffering from mental derangement sufficient to dethrone his power of volition” established in Parry v English Steel Corporation Ltd15
14 See for example Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353, Church v Douglas & Adams Ltd (1929) 22 BWCC 444 and Parry v English Steel Corporation Ltd (1939) 32 BWCC 272
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was applied. Parry established the standard that there could be “such a destruction of volition as may cause the suicide to be referable to what caused the destruction of the volition…even though there is no insanity in the legal sense.”16 Hence the strict insanity requirement first established in the early UK cases is no longer applicable in Australia. Holdlen held that it was sufficient if the injury materially contributed to the worker’s death. On the basis that the chain of causation was unbroken compensation was awarded. In Holdlen, as mentioned above, the chain of causation was ex-amined only on the basis of whether insanity needed to be proven. There were no other extraneous events that may have been broken the chain of causation as were discussed in Kooragang.
In a more recent case, Cecere v Communication, Electrical, Electric, Energy In-formation, Postal Plumbing & Allied Health Services Union of Australia (2008)17 the Holdlen decision was applied. This case involved a worker engaged to work under the provisions of a probationary employment contract the ex-tension of which was to be based upon satisfactory performance. The in-tensity of the work environment and the requirement to perform resulted in the worker suffering from the stress-related conditions of anxiety and depression. At the end of the probationary period the worker was notified by a mobile phone text message that his contract has been terminated. He committed suicide on March 12, 2005; a date at which the defendant ar-gued was outside of the probationary employment contract. Furthermore it was contested that the depressive disorder suffered by the deceased was not related to the course of the workers employment.
The argument that the defendants’ liability ceased when the worker’s con-tract was terminated failed. The question of whether the suicide broke the chain of causation was then examined. The defendant’s contention that there was sufficient evidence to establish that the deceased’s will was not overborne was not accepted by the court. Referring to Giles J in Hold-len, Justice Bowman stated, “Suicide, while deliberate, may often (but not always) be the product of a will so overborne…The question for the…judge
16 at para 275
17 I am grateful to Patricia Toop for alerting me to this case.
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was one of fact, [of] the worker’s mental state” (Cecere, 2008, at para 10). It was held that factual evidence tendered in each case must lead to a com-monsense determination of whether the chain was broken or not so as to determine whether the injury materially contributed to the suicide. So, in Cecere, based on the evidence tendered it was decided that there was no intentional act breaking the chain of causation because the deceased’s power of volition was overborne in the Holdlen sense.
In Sadlo v Comcare (2007) the case involved suicide by carbon monoxide poisoning which was precipitated by the aggravation of a depressive condi-tion which arose in the course of employment. The defendant argued that even if it was established that the depression from which the deceased suf-fered at the time of his death was a condition which was aggravated by his employment, the fact that the plaintiff committed suicide by carbon mon-oxide poisoning disentitled his dependents to compensation. The defense argued that the suicide was intentionally self-inflicted and thus excluded by compensation legislation. Section 9 of the relevant legislation provides that compensation was payable “…when an injury to an employee results in death,” was qualified, however, by section 14(2) that “compensation is not payable in respect of an injury that is intentionally self-inflicted.” Justice Constance quoted from Holdlen observed that “an intentional act may be part of the chain of causation…[there is no reason] why, if the facts be appropriate, death by suicide could not be found to have resulted from work-related injury without a finding that a worker was insane” (Holdlen, 2000, para 34, 35, 36; Sadlo, 2007, para 23). It is interesting to note, that in Sadlo, no test of insanity was considered, although evidence as to the extent of the depressive disorder was led. The court ruled in favour of the applicant on the basis that the chain of causation between the work-related injury, namely depression and his death was not broken. This line of cases confirms that in Australia, it is not necessary to prove that the worker was insane at the time of the suicide.
The Australian cases discussed above relate to circumstances in which only a single incident leading to the suicide is easy to be established. In Cecere the incident related to the worker’s stressful work environment, which eventuated in the termination of his employment, whilst in Holdlen the
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suicide linked directly to a work accident. In some cases the circumstances may not be as clear as to whether one or the other cause was compens-able.
The But-For Test in Cases Involving More Than One Incident Leading to Suicide
In cases when either or one of the events leading to suicide of itself did not satisfy the but-for test, applying the chain-of-causation rule is less straight-forward. The but-for test in such cases has a limited role to play and the concepts of reasonable foreseeability and remoteness are considered in conjunction. The tort case of AMP General Insurance Ltd v Roads & Traf-fic Authority of NSW & Anor (1997) was such a case in which applying the chain-of-causation rule using the but-for test has proved ineffective. The facts of the case were that a worker of the New South Wales Road Traffic Authority was injured in an accident at work in 1993. In 1997 the worker decided to make a common law claim for damages but the limitation for such a claim had expired and an application for special leave to proceed was required. The worker was granted the required extension of the limita-tion period, however the worker suffered stress as a result of being harshly cross-examined during the hearing on the question to extend the time for commencing proceedings. He developed anxiety and depression and committed suicide eight days after the hearing. Consequently the wife of the deceased worker suffered nervous shock due to her spouse’s death and brought an action against the defendant for damages in her own right. She was successful at first instance on the basis that the psychiatric injury that the worker suffered due to the proceedings to institute an action in respect of the work injury were reasonably foreseeable and the chain of causation was unbroken. The trial judge awarded the sum of $176,933 AUD for the nervous shock suffered by the widow. The insurer appealed.
On appeal the decision at first instance was overturned and the court ruled that the mental state of the worker arising out the cross-examination was not connected to the mental trauma arising out of the psychiatric in-jury caused by the work-related injury itself. These were two unconnected
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events and the but-for test, it was held, was of limited assistance.18 It was concluded that the conduct of the deceased cannot be characterized as amounting to a mental condition which arose as a result of the back injury sustained by the worker. The risk of self-harm as a result of the litigation, which led to the suicide, was regarded as not arising out of the failure to provide a safe work system. It was ruled that the damage caused as a result of the supervening event was not reasonably foreseeable and in any event too remote.
The reasoning in AMP is consistent with the commonsense approach es-tablished in cases of common law negligence such as March v Stramare (1976). In AMP the court held that “causation is not only a factual ques-tion, it was also a normative one…Considerations of policy are relevant and value judgments are required to determine matters of causation…Such considerations…lead to the conclusion that deliberate self-infliction of harm should generally be seen to break the causal link” (AMP, 1997, at para 27).
Importantly, a distinction was made by the Supreme Court of New South Wales in AMP between the kinds of mental damage, which could be fore-seeable as a result of the physical injury and those arising out of the super-vening event and the manner in which they occur. The common law prin-ciple established in Rowe v McCartney (1991) was applied: that the mental illness as a result of one event with only a “tenuous connection” with the defendant’s negligence is damage different in kind from the mental illness arising from the actual injury from the accident caused by the defendant’s negligence, despite the fact that but-for the accident the former would not happened. It was not enough to find merely that mental trauma “of some kind” was foreseeable as a result of the physical injuries sustained. It was held that the correct question in cases where the physical injury by itself did not cause any psychiatric injury was whether psychiatric injury caused by a supervening event (such as the litigation in this case) was “far-fetched or fanciful.” In answering this question the court concluded that the rationality or irrationality of the psychiatric injury so caused must be
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judged as suffered by a person of “normal fortitude” (Rowe v McCartney, 1991, per Chief Justice Spiegelman at para 104), as in common law cases of negligence. In ruling in favor of the appellant insurer, the court applied March v Stramare and said that the test of reasonable foreseeability was not a test of causation in itself, but of remoteness: “That is a breach of duty may be said to have caused damage, but recovery might nonetheless be prevented by reason of remoteness, and remoteness turns on reasonable foreseeability” (March v E & MH Stramare Pty Ltd, 1991, per Mason, CJ). It may be that the distinction between forms of mental injury raises novel developments in this area of law.
A similar approach as in AMP was applied in another tort case of Sarkis v Summitt Broadway Pty Ltd t/as Sydney City Mitsubishi (2006), which was a New South Wales Appeal Court case in which the deceased sustained whiplash injuries in a motor vehicle accident in the course of his em-ployment. Some months later he committed suicide. It was argued by the defendant/employer that the worker had no symptoms of clinical depres-sion or evidence that he had been contemplating suicide. The case also involved an additional injury that was sustained by the deceased when visiting the doctor’s rooms for treatment for the whiplash injury, when he fell down the stairs and caused comminuted and angulated fractures to two bones of his right hand. Three months after the fall, the worker drove to a secluded spot on a dirt road and committed suicide, leaving a note “I have had enough, sorry.”
The court held that the events subsequent to the accident had overwhelmed the worker but the mental condition suffered by the worker was extrane-ous and not connected to the accident or its consequences, and further, there was insufficient evidence as to whether the worker had symptoms of clinical depression. Justice Handley, with whom Justices Ipp and Bryson agreed, said that in cases where there are no other extraneous or interven-ing causes of the worker’s attempted suicide, establishing causation was not difficult by applying the but-for test (Lisle v Brice, 2002, at para 70). Justice Handley referred to the reasoning of Chief Justice Spigelman in AMP stating that “actions involving the deliberate infliction of self-harm should generally be regarded as independent and unreasonable and as a
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break in the sequence of events that may otherwise constitute a causal chain…” (at para 67), and to Justice Heydon’s judgment in that same case that “causation must be determined by applying common sense to the facts, that the but-for test although helpful was not definitive, and that it was a question of fact into which considerations of policy and value judg-ments necessarily entered.” In Sarkis the Court could not find, as a matter of common sense, that injuries sustained as a result of the motor vehicle accident was a cause for his suicide, despite the fact that the doctor’s visit (during which he was subsequently injured) would not have happened but-for the accident.
In summary, developments in Australian case law suggest that common law principles of establishing causation in negligence claims are applied in determining whether suicide was compensable under workers’ compensa-tion statutes. The but-for test is applied when there are no supervening events leading to suicide, however when there is more than one event lead-ing to suicide, reasonable foreseeability, remoteness and common sense is applied in apportioning liability. It is not necessary to show that the chain of causation includes evidence of insanity as long as the evidence points to a medical condition, which materially contributes to the death. In this sense the Australia approach may be considered less restrictive that at least some States in the US. On the other hand it would appear that the Cana-dian approach is to adopt a relatively restrictive approach to the award of compensation in the event of suicide.
3 Canada
In Canada the workers’ compensation system is one of compulsory no-fault insurance overseen by the Workers’ Compensation Board (Board) of every province or territory, with the Board having exclusive jurisdiction. The decision of the Board is final. All other rights are barred. This “his-toric trade-off”19 in which employers contribute to a mandatory insurance
19 Pasiechnyk v Saskatchewan Workers’ Compensation Board [1997] 2 SCR 890 (at para 24). In this case a number of workers of SaskPower were killed by a falling crane owned by Pro-Crane. The Canandian Government, Pro-Crane and SaskPower ap-
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scheme in return for workers giving up their common law rights in return for compensation that depends neither on the fault of the employer nor its ability to pay. Workers have the advantage of benefits that are paid imme-diately, regardless of whether the employer is solvent or not and without incurring costs and bearing uncertainties inherent in an action for a claim in tort.20 The first such “trade-off” scheme was established in Ontario in 1914. The other provinces soon followed. Similar to other common law jurisdictions, the Board as will be discussed below, applies the principles of causation, reasonable foreseeability and remoteness in awarding com-pensation. It should be noted that all Canadian boards are inquisitorial. Most decisions to allow or disallow a suicide are made claims adjudicators. The decision to allow or disallow may be appealed to a review stage and subsequently to the external Workers’ Compensation Appeal Tribunal. Only in rare are the decisions of the Workers’ Compensation Appeal Tri-bunal taken further for judicial review. It follows, the number of workers’ compensation cases on which to base an analysis of Canadian cases is very few. Therefore the discussion of the Canadian cases also includes some decisions which are grounded in torts as with the Australian discussion. For the most part the Canadian cases relate to decisions under the Family Compensation Act a statute designed to provide remedies for dependents of a person killed through negligence.
A starting point is the tort case of Swami v Lo [No 3] (1979) where it was determined that the common law test of reasonable foreseeability must be satisfied when establishing causation in relation to the defendants negligence and the plaintiffs subsequent suicide. In that case Mr. Swami committed suicide by shooting himself at his home in February 1977. Ap-proximately 14 months before this suicide the plaintiff had been seriously injured when he was run down at an intersection in Vancouver. The de-fendant’s negligence resulted in a crush fracture at the hip-joint and severe
plied successfully to the Board for a determination that an action by the families of those killed was statute barred. The workers appealed. The Court applied the “patently unreasonable” and the “correctness” test, and decided that the Board’s decision was correct.
20 In Reference re Validity of Sections 32 of the Workers Compensation Act 1983 44 DLR (4th) 501 (Nfld CA) per Chief Justice Goodridge.
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fracturing of the socket gave rise to profound disability followed by partial permanent disability leading to severe depression and the subsequent sui-cide. The court citing a line of English authorities21 applied the test of foreseeability to determine the link, if any, between the suicide and the compensable road accident. The court accepted that the pain and the dis-ability caused the plaintiff’s mental state, but recovery by the dependents for the subsequent suicide was denied on the grounds that the death of the plaintiff was not reasonably foreseeability.
Interestingly, the plaintiff had argued that the decision in the Australian case of Haber v Walker noted above must be followed. However the Su-preme Court of British Columbia declined to follow the majority decision but adopted the dissenting judgment of Justice Hudson in Haber. The Supreme Court asserted, “The right of action given by the statute is one which is subject to all the conditions and requirements of the common law including the requirement that when it is founded on negligence that the death must be shown to have been…a consequence of the negligence which is reasonably foreseeable” (Swami, 1979, at para 8). Justice Legg in his reasoning stated, “In my opinion…the taking of her life cannot rea-sonably be considered an incident within the purview of the risk created by the defendant’s [negligence]” (ibid, at para 12). Thus in Swami, which similar to the case of Haber v Walker was a case bought under the Family Compensation Act, it was decided that the test of reasonable foreseeability was not satisfied and further, it was reasoned, that the reference to death in the compensation legislation “caused by the wrongful act, neglect or default” was not drafted with “the spouse of a suicide victim” in contem-plation (ibid, at para 8).
Swami was followed in the 1992 case of Wright v Davidson (1992), which was also bought under the Family Compensation Act. In that case Mrs. Wright was injured in a motor vehicle collision. Her injuries caused her to be severely depressed. Two weeks later she committed suicide. Prior to the accident Mrs. Wright had had no known history of emotional or mental problems and in the first and second instance decisions it was
21 The Wagon Mound No.1 and No. 2, Hughes v Lord Advocate [1963].
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held that there was direct causal link between the accident and the sui-cide, i.e., the chain of causation was not broken. In the second instance decision, Swami was distinguished. The court reasoned that compensation in Swami was not allowed as Mr. Swami’s accident has not resulted in an injury to the head, which led to a mental disturbance and that, in con-trast, compensation was allowable in Wright as Mrs. Wright had developed particular symptoms relevant to a head injury after the accident which were unconnected to any prior mental condition. The first and second instant decisions of Wright as well as Swami seemed to suggest that there must be mental injury arising out of physical injury to the head in order for a chain of causation to be created to link the compensable injury with the subsequent suicide. However on appeal it was held that the death, although caused as a result of the depression and mental dysfunction was not a reasonably foreseeable consequence of the accident in other words, the suicide was a novus actus in that the victim took her life by making a conscious decision to take her own life. The court found no evidence of disabling mental illness, which would lead to the conclusion that of the injury had removed her volition. This decision, as well as the decision in Swami imply that mental injury affecting a person’s volition are a prerequi-site to recovery in the case of suicide. In any event, the court said that the death must be shown to have been the natural and probable consequence of the negligence and on the fact in this case it held it was not. Swami was referred to in Cotic v Gray (1981) which was an action under the The Fatal Accidents Act which went on appeal to the Ontario Supreme Court.Justice Lacourciere (with whom Justices Wilson and Weatherson agreed) noted that Swami had not been the subject of appeal court scrutiny, and that the judgment of Justice Gould in Swami has relied heavily on the decisions of American courts. He noted [at 81] that causation is subject to the qualification that if the intervening act is such that it might reasonably have been foreseen or anticipated as the natural and probable result of negligence, then the original negligence will be regarded as the proximate cause of the injury, notwithstanding the intervening act. He went on to find that in Cotic that the jury should have been allowed to decide the question of causation based on the test of foreseeability. Finally he noted that an important feature of the case was the deceased pre-existing mental vulnerability, which invoked the egg-shell principle so as to allow this to be a consideration in respect of foreseeability. The egg-shell principle as-
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serts that the defendant is liable for the injuries suffered to the plaintiff even if those injuries occurred by reason of the particular vulnerability or weakness of the plaintiff and might not have manifested in a more robust individual. Put simply, the defendant, under this principle takes the plain-tiff as he finds him or her.
Swami and Wright were noted in Costello v Blakeson (1993). In particular the Wright case was distinguished in Costello by Justice Spencer who [at paras 24-25] noted the court in Wright had pointed to the deceased’s con-scious decision in the absence of evidence of mental illness as the reason for finding her suicide was a novus actus interveniens. In Costello Justice Spencer found the plaintiff’s depression consequent upon a motor vehicle accident negligently caused by the defendant amounted to a mental ill-ness. The plaintiff’s attempted suicide in this case was,
not the conscious, deliberate act of a person whose mental health was entire, as some suicides, but the act of one whose judgments was unbalanced by the depth of the depression under which she was suffering.
Justice Spencer then opined, “It does not matter that her action may be regarded as having been conscious and deliberate if, as I find, it was that of a person whose ability to deal with the ordinary chances of life had been impaired by the defendant’s wrongful act.” It does not seem to be of any consequence that the case was decided as an action for damages rather than workers’ compensation, given that the test of foreseeability is the same in both instances. Thus Cotic and Costello taken together suggest a softening of the approach in Canada, to the extent that suicide may be actionable in tort and probably compensable under workers’ compensa-tion law, where it is the natural and probable result of the acts of the defendant and further that it is possible to succeed with such a claim where it can shown that depression suffered by the deceased unbalanced to decease to as so lead to the suicide. Swami and Wright linger as authori-ties for the proposition that the defendant is not liable for the death of the deceased who was sane at the time of taking his/her life. That said, it would appear that on a reading of the evidence in Cotic and Costello the
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courts in Canada are less likely to find that the deceased was sane if there is evidence of depression. As noted in the introduction to this section, most of these decisions have not been made in the context of workers’ compensation matters to the approach to the courts in relation to workers’ compensation matter is still to be determined although some guide can be obtained from the cases below.
Other Canadian litigation has centered on the question of whether the presumption against suicide where circumstances surrounding death was unknown, enshrined in Canadian workers’ compensation legislation, stands unless the defendant rebuts this presumption. The presumption was applied in the 1991 case of Beischel v Mutual Omaha Insurance Co22 which involved a plaintiff who sought judgment against the defendant for the sum of $185,375 CAN being the amount claimable on life insur-ance policies. The policies contained exclusion clauses barring recovery for suicide. The insured died in a fire of undetermined origin. Judgment was entered for the plaintiff on the basis the presumption against suicide operates in support of accident.
Similarly in the Saskatchewan workers’ compensation case of Henry v Saskatchewan (Workers Compensation Board),23 a 1999 a case in which the deceased was found dead at the bottom of a 400-ft shaft during working hours, in circumstances where it was difficult to establish whether the deceased committed suicide or it was the result of an accident. Section 30 of the Workers Compensation Act 1979 (Saskatchewan) provides that “where a worker is found dead at a place where he had a right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment.” The issue in question was whether the presumption referred to in that section was rebuttable or irrebutable. The majority decided that the legislature had intended for the presumption to be irrebutable. However, perhaps as consequence of this
22 82 Alta LR (2d) 103. This case has been followed in a series of cases, most recently Huber v Insurance Corp of British Columbia [2004] BCWLD 857.
23 1999 CanLII 12241 (SK CA), which has been most recently followed in Galger v Saskatchewan 2009 CarswellSask 333.
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case, in 2002, the Saskatchewan legislature added the words “unless the contrary intention is shown.”
4 United Kingdom
The Workmen’s Compensation Act 1897 (UK) and Workmen’s Compensation Act 1906 (UK) contained no express provision proscribing compensation for intentionally self-inflicted injuries or death. Interestingly United King-dom no longer requires compulsory workers’ compensation insurance and instead has opted for the less onerous Employers Liability (Compulsory Insur-ance) Act 1969 (UK) which now provides that employers need only insure against liability in tort for bodily injury or disease sustained by employees and arising our of and in the course of their employment. In effect the United Kingdom has provided a legacy of cases arising out of decision un-der its Workmen’s Compensation legislation, but is not developing fresh jurisprudence in relation to the question of suicide under tort law as will be discussed below.
As noted above, the early English authorities differed from the general chain-of-causation test adopted in the United States in that under the early English cases the insanity must have been the direct result of the injury itself or the shock produced by it. Insanity in this sense refers to any mental derangement, which impairs the victim’s volition (Parry v English Steel Corporation Ltd, 1939). The early English decisions show a reluctance to award compensation for death by suicide which resulted from brooding over the injury and its consequences, such as loss of working capacity or worry over family, rather than from damage to the brain and nervous sys-tem or pain from the injury itself (Church v Douglas and Adams Ltd, 1929). However in recent times the approach of the English courts to this issue may be moved more in favour of the plaintiff.
In Corr v IBC Vehicles Ltd (2006) Mr. Corr was an employee of IBC vehicles who in 1996 was injured when a moving machine swung without warn-ing in Mr. Corr’s direction and struck him a violent blow. The machine would have decapitated him had he not moved his head. This instinctive
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movement although saving his life, resulted in injuries to the right side of his head and severed most of right ear. As a result he underwent a series of painful operations, and consequently suffered post-traumatic disorder, nightmares and experienced flashbacks. In 2002, he was no longer able to stand his predicament he ended his life by jumping from the top of a multi-story car park.
The issue that divided the parties in this case was whether the damages claimed by Mrs. Corr his widow were too remote. The employer accepted liability and that it owed a duty of care to Mr. Corr, which was breached and that breach caused the accident in 1996. However the employer con-tended that the suicide was a novus actus interveniens that broke the chain of causation and that consequently it was not responsible for the resulting suicide.
The starting point of the House of Lords decision was the scope of the employer’s duty of care. The Australian case of AMP General Insurance Ltd v Roads & Traffic Authority of NSW & Anor (2001) discussed below was cited by the defendant employer as an authority for the principle that “there was no duty upon the employer…to protect the deceased from self harm” and the UK case of Reeves v The Commissioner of Police of the Metropolis (2000) was referred to as to assert that “it was unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately.” These arguments were not accepted principally on the grounds that they were misconceived, in so far as the Reeves case related to the question of a duty to prevent suicide, where suicide was the primary outcome of the alleged misfeasance. This contrasted to Corr, where the primary admitted outcome of the misfeasance was the injuries sustained in the motor vehicle accident (McIyor, 2007). The House of Lords applied the but-for test and concluded that the plain-tiff would not have acted in a way in which he had but for the initial work injury which was a consequence of the employer’s admitted breach duty of care. The question is whether the damages, which arise from the defen-dant’s misfeasance, are foreseeable. Referring to Lord Roger in Simmons v British Steel (2004), who opined, “There can be no recovery for damage which was not reasonably foreseeable,” Lord Bingham set out the basis for the decision in favour of the plaintiff,
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For present purposes…foreseeability is to be judged by the stand-ards of the reasonable employer, as to the date of the accident and with reference to the very accident, which occurred but with reference not to the actual victim but to a hypothetical employee (at para 10).
Following Page v Smith (1994) Lord Bingham noted that the law draws no distinction for purposes of foreseeability and causation between physical and psychological injury and rejected the view of Chief Justice Spiegelman in AMP (noted above) that suicide was a kind of damage separate from psychiatric and personal injury and therefore the necessity to regard it as separately foreseeable. Lord Bingham then concluded that depression was a foreseeable consequence of the employer’s breach, applying the view that a tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which damage may take. He noted that while suicide may not be a usual manifestation of a reasonably foreseeable event, it is “not uncommon” for a depressed person to commit the act. In examining suicide as a novus actus interveniens, Lord Bingham referred to the judgment of Lord Justice Ward in the court below (Corr v. IBC Vehicles Ltd, 2006), who noted that,
Once the law accepts…the foreseeability of psychological harm it is only if a break dictated by logic or policy…intervenes that it is possible today to exclude death by suicide from the compensable damage where that is what depression leads to”, and “to cut the chain of causation…and treat Mr Corr as responsible for his own death would be to make an unjustified exception to contempo-rary principles of causation. It would take the law back half a century to a time when legal and moral opprobrium attaching to suicide placed damages for being driven to it on a par with rewarding a person for his own crime. Today we are able to accept that people to whom this happens do not forfeit the regard of society or the ordinary protections of the law (at para 82).
Thus the rationale behind the reasoning of the decision was one of policy and fairness. The Court distinguished the Canadian case of Wright v Da-
Work-Related Suicide: A Review of the Judicial Approaches
vidson (1992) in recognising that the resultant mental disability did not break the chain of causation. In Wright v Davidson the victim took her life as a result of a injuries sustained in a car accident but the claim for work-ers’ compensation consequent upon her suicide rejected by the Canadian courts for want of evidence to show that there was a disabling mental illness that led to an “incapacity to her faculty of volition.” Unlike the victim in Wright v Davidson, Mr. Corr’s suicide was regarded as a “volun-tary informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future.” In effect the House of Lords did away with the earlier authorities requiring evidence of removal of the plaintiff’s volition by the compensable injury and were prepared to accept that where a clear line of causation can be established that it was not too remote for suicide to occur where the plaintiff’s pain cause such pain and anguish.
Regrettably, in a somewhat bizarre twist, the House of Lords was not con-sistent in its approach when consideration was given to the assessment of damages. The defendant employer argued with some success as it was accepted by a majority of the Lords, that the plaintiff’s suicide was in effect a form of contributory negligence, which could be invoked so as to reduce the damages awarded to his dependents (Mitchell, 2008). This argument, perpetuates the notion of treating psychiatric illness as blameworthy and less deserving that physical harm. Clearly Mr. Corr’s death was the result of a shockingly painful injury for which the defendant had admitted fault (O’Sullivan, 2008). The court was however divided on this point. Lord Walker also referred to the concepts of policy and fairness in awarding damages. Referring to Stapley v Gypsum Mines (1953), His Lordship noted that in applying the test that the Court has to have regard to both “blame-worthiness and to what is sometimes called causal potency” (at para 44). His Lordship concluded that as the harm suffered was a consequence of the physical and mental suffering which the defendant has been endur-ing since the accident, there was no contributory negligence to be appor-tioned. Although there was a degree of disagreement as to a reduction of damages due to contributory negligence, the majority of the House of Lords agreed that there should be none.
117Work-Related Suicide: A Review of the Judicial Approaches
It is useful to return to the Australian jurisdiction at this point to a case not discussed above, but with definite parallels to Corrs case. In Lilse v Brice (2001) the Queensland Court of Appeal dealt with a cases where the deceased was injured in a motor vehicle accident and suffered minor inju-ries, which resulted in depression, which lead to suicide some three years after the accident. Justice Williams noted that (as in the egg shell skull principle noted above in relation to the discussion of Canadian cases) the defendant takes the plaintiff as they find them. He observed, “If depres-sion is foreseeable then it is difficult to conclude that suicide as a result of that depression is not foreseeable.” That might be an admirable place to end this survey.
Conclusions
The award of compensation to the dependents of a worker who has com-mitted suicide is a vexed question. On the one hand, there are policy considerations, which in most jurisdictions (save for some states in the US which expressly provide to the contrary) hold that a benevolent approach should be taken to the interpretation of workers’ compensation legislation -- on the basis that it is remedial in nature. On the other hand, there is an appreciation that an employer should not be held liable for every event, which is linked to a compensable condition. An employer is justifiably entitled to argue that other events have intervened to relieve the employer of liability. Further, some jurisdictions specifically limit the potential for claimants to bring claims based upon mental injury thereby effectively making it difficult for suicide claims.
As the examination of these four large workers’ compensation jurisdic-tions has shown the influence of early English authorities has been re-markably robust in some jurisdictions, particularly some states of the US. Those jurisdictions have maintained, in some form or other, an insistence upon proof of insanity consequent upon a compensable injury as an es-sential ingredient in the compensation equation. On the other hand, it is clear that the line of authorities now developing in Australia and more recently in Canada and United Kingdom is moving away from this
Work-Related Suicide: A Review of the Judicial Approaches
restricted view. In Australia it seems to be established in recent times that it is not necessary to show the worker was insane at the time that death occurred but rather that a compensable condition materially contributed to the death. If the death occurred but-for a work-related injury or disease, which in turn gave rise to a foreseeable mental condition, then the suicide will be compensable. There is some hint, however, arising from the AMP decision that the question of foreseeability may be clouded by the nature of the particular mental condition in question. That AMP approach has been specifically disavowed in the UK House of Lords in Corr.
Some states in the US require insanity or evidence of mental derangement consequent or in some cases inextricably linked to the compensable injury leading to suicide to satisfy their requirements. Notably not all US juris-dictions apply such a restrictive approach and there are clear indications in states such as those which have adopted the chain of causation are moving more in line with the Australian and UK approaches. The trend clearly points to an approach, which provides compensation to the dependents of a person committing suicide where it is established that the suicide arises as a foreseeable consequence of injuries caused or contributed to by the defendant’s actions.
References
American Smelting & Refining Co v Industrial Commission (1976). 544 P. 2nd 1133, 1135 Arizona Court of Appeals.
AMP General Insurance Ltd v Roads & Traffic Authority of NSW & Anor (1997). Supra n.
AMP General Insurance Ltd v Roads & Traffic Authority of NSW & Anor (2001). NSWCA 186.
Bradshaw, L.A. (1967). Suicide as Compensable under Workmen’s Compensation Act 15 ALR 3d 616.
119Work-Related Suicide: A Review of the Judicial Approaches
Burnight v Industrial Acci. Com. (1960). 181 Cal App 2d 816, 5 Cal Rptr 786.
Campbell v Young Motor Co (1984). 684, P 2nd 1101, 1103 Montana.
Cecere v Communication, Electrical, Electric, Energy Information, Postal Plumbing & Allied Health Services Union of Australia (2008). VCC 445 13th May.
Chapman v Hearse (1962). ALR 379.
Church v Douglas and Adams Ltd (1929). BWCC 444 at 449 per Lord Hanworth MR.
Corr v IBC Vehicles Ltd (2006). EWCA Civ 331.
Corr v IBC Ltd (2006). 3 WLR 395.
Costello v Blakeson (1993). 2 W.W. R. 562.
Cotic v Gray (1981). 124 DLR (3d) 641, Gray v Cotic (1983) 2 S.C.R. 2.
Delinousha v National Biscuit Co (1928). 248 NY 93, 161 NE 431.
Donovan v WCAB Finnerty (1982). 138 Cal. App.3d 816.
Globe Social Security Systems Co v Workmen’s Compensation Board (1988). PA 544 A2d 953.
121Work-Related Suicide: A Review of the Judicial Approaches
Re Sponatski (1915). 220 Mass 526, 108 NE 466, LRA1916A 333.
Reeves v The Commissioner of Police of the Metropolis (2000). 1 AC 360.
Rooks v Trans World Airlines (1994). (Mo App) 887 SW2d 671.
Rowe v McCartney (1991). 171 CLR 506.
Sadlo v Comcare (2007). ALMD 5027.
Sarkis v Summitt Broadway Pty Ltd t/as Sydney City Mitsubishi (2006). NSWCA 358.
Simmons v British Steel (2004). UKHL 20.
Stapleton v Keenan, Gifford & Lunn Apartment House Co. (1934). 265 NY 528 193 N.E. 305.
Stapley v Gypsum Mines (1953). AC 633.
State ex rel. Wyoming Workers Compensation Div v Ramsey (1992). WY 127, 839 P 2nd 936.
Stroer v Georgia Pacific Corporation (1983). 672 P 2nd 1158 Oklahoma. available at http://wyomcases.courts.state.wy.us/applications/oscn/deliverdocument.asp?citeid=9549 last viewed May 17, 2009.
Swami v Lo (1979). [No 3] 16 BCLR 21.
Terminal Shipping Co. v Traynor (1965). (DC Md) 243 F Supp 915, ifra § 19.
Thomas v City of Springfiel (2002). No. 24849 (Mo. App. S.D., September 30, 2002), Garrison, J.
Wells v Harrell (1986). 714, S. W. 2nd 498, 501 Kentucky Court of Appeal.
Work-Related Suicide: A Review of the Judicial Approaches
Widdis v Collingdale Millwork Co. (1951). 169 Pa Super 612, 84 A2d 259, infra § 10[b].
Williams Industries Inc v Wagoner, 624 Va App 181, 186 480 S.E. 2nd 788,790.
Wright v Davidson (1992). 1020 (BCCA) CanLII.
Wright v Davidson (1992). 88 DLR (4th) 698, 705. CanLII.
Rob Guthrie is the Adjunct Professor of Workers’ Compensation and Work-place Law at Curtin University in Perth, Western Australia. He was admit-ted to practice as Barrister and Solicitor in 1982 and practiced in the area of workers’ compensation for approximately 10 years before turning to academic research in this area. He was the author of reports to the WA Government on workers’ compensation in 1991, 1999 and 2001. He has been an advocate for injured workers for 25 years and a consultant to WorkCover WA and vari-ous Ministers responsible for workers’ compensation legislation. He holds B Juris, LLB LLM MCom and PhD. He is the author of LexisNexis Workers Compensation Western Australiac
123IAIABC White Paper on Section 111 Reporting to CMS
IAIABC White Paper on Section 111 Reporting to
CMS
Catherine Dominguez*
Cindy Hall**
Faith Howe***
Abstract
With the enactment of Section111 of the Medicare, Medicaid, and SCHIP Extension Act in December 2007, the Centers for Medicare and Medicaid Services (CMS) will soon require proactive electronic reporting from pri-mary payers of claims for accident-related injuries with potential Medicare exposure. The IAIABC CMS Task Force was formed in spring 2009 to work with CMS on both business and technical issues that are pertinent to the workers’ compensation community. The CMS Task Force’s work products, a white paper and an issues spreadsheet, were created to serve as an ongoing communication vehicle between CMS and the IAIABC as a central collecting point for issues in workers’ compensation. This article reviews the background of the project and provides access for readers to the resources.
* Director of Operations, Ingenix, Red Oak, VA. Email: [email protected]** Compliance Manager, Aon eSolutions, San Ramon, CA. Email: [email protected]*** EDI Manager, IAIABC, Madison, WI. Email: [email protected]
IAIABC White Paper on Section 111 Reporting to CMS
The following article is based on a white paper written by a special IA-IABC task force and submitted to the Centers for Medicare and Medicaid Services (CMS) on September 16, 2009.
Background
In 1980, Medicare Secondary Payer legislation was enacted with the pri-mary purpose of assuring that appropriate payers assumed responsibility for medical treatment for accident-related injuries. Among other require-ments, primary plans, including auto and liability insurance plans, which encompass self-insured and workers’ compensation coverages, are obligat-ed to not shift the burden of these payments to Medicare. Because com-pliance with the earlier Medicare Secondary Payer legislation had been inconsistent, enhancements to Section 111 of the Medicare, Medicaid, and SCHIP Extension Act (MMSEA), enacted in December 2007, now include penalties for noncompliance. More immediately, the enhance-ments now require Responsible Reporting Entities (RREs) to proactively notify CMS, via electronic reporting, of claims with potential Medicare exposure. These reporting requirements were originally scheduled to take effect July 1, 2009.
Origins and Purpose of White Paper
The April 2009 IAIABC All Committee Conference in Baltimore, Mary-land, featured a forum for discussion of Medicare’s Section 111 report-ing requirements with CMS staff and IAIABC members. That forum was highly successful in alerting many parties about CMS’ increased reporting requirements under Section 111.
The meeting and subsequent discussion at the conference raised deep con-cerns in the workers’ compensation community - anxieties borne out of lack of familiarity with CMS rules and expectations, despite CMS’ strong efforts to communicate with affected parties throughout the implementa-
125IAIABC White Paper on Section 111 Reporting to CMS
tion. Many of the Responsible Reporting Entities (RREs)1 have not previ-ously been required to report workers’ compensation data. Because of ju-risdictions’ status as data receivers rather than data senders, they recognize that they have much to learn. Additionally, other workers’ compensation payers also have questions, in particular, how their software and business systems must be modified to comply with CMS requirements.
The Medicare Advocacy Recovery Coalition (MARC), which deals with li-ability claim reporting issues, initially worked with CMS and made signifi-cant progress in modifications to claims reporting criteria. MARC’s focus has not moved to the legislative components of CMS reporting. Con-cerned IAIABC members recognized that a similar effort should be made to communicate with CMS from a workers’ compensation perspective. The IAIABC will keep the workers’ compensation community informed of CMS policies and regulations through its well-established education and information sharing channels.
As a result of the April 2009 meeting and with the approval of the IA-IABC Executive Committee, several IAIABC members organized a spe-cial ad hoc task force (the IAIABC CMS Task Force, or IAIABC CTF) to identify issues with Medicare’s Sec. 111 reporting requirements, their impact on workers’ compensation RREs, and to propose remedies to ease reporting, educate responsible parties, and promote compliance and ef-ficient reporting.
1 Many government agencies and special funds were surprised to learn that they fell under the definition of Responsible Reporting Entities. According to CMS “applicable plans” that must report include: “…the following laws, plans, or other arrangements, including the fiduciary or administrator for such law, plan, or arrangement: (i) Liability insurance (including self-insurance). (ii) No fault insurance. (iii) workers’ compensation laws or plans.” For more details see: http://www.cms.hhs.gov/MandatoryInsRep/03_Liability_Self_No_Fault_Insur-ance_and_Workers_Compensation.asp#TopOfPage
IAIABC White Paper on Section 111 Reporting to CMS
Methodology and Organization of Paper
Over the course of several months, the IAIABC CMS Task Force identi-fied and categorized a number of issues with CMS’ reporting requirements that were particular or overwhelmingly important to workers’ compensa-tion claims RREs. The IAIABC CTF then shared its findings with CMS so CMS could understand the scope of how its requirements affect the workers’ compensation community.
In aggregating the issues, the Task Force classified them into “business” and “technical” groups, defined as:
Substantive: the issue presents a significant issue in meeting 1. reporting requirements, managing data, or potential inaccurate compliance status. Resolution would include revision in the reporting/testing requirements as well as clerical updates/clari-fication.
Clerical/Clarification: information provided in reporting or 2. testing requirements and/or the User Guide should be expand-ed upon and/or enhanced to provide additional clarity.
Minor: the issue presented a delay or challenge in meeting 3. reporting requirements or managing data. Resolution would include revision in the reporting/testing requirements as well as clerical updates/clarification.
Furthermore, the CMS Task Force only presented reporting issues that were widely shared by a number of entities and well documented and convincing, not merely anecdotal or rare cases.
The CMS Task Force also submitted a white paper to CMS to explain the IAIABC’s background in electronic data interchange (EDI) standards development. Using a consensus-based process, the IAIABC has spent nearly 20 years developing standards for electronic data interchange for jurisdictional reporting which consider jurisdictional requirements as well as trading partner data collection capabilities. In the white paper, the IA-IABC CTF noted that CMS’ consideration of the work that the IAIABC had already completed could lead to more accurate reporting and ease
127IAIABC White Paper on Section 111 Reporting to CMS
the burden on its workers’ compensation RREs. Through its experience with the EDI program, the IAIABC found that whenever the regulatory reporting requirements demand data or processes that are not part of the business needs and operational grasp of reporting entities, the quality of data reported may suffer.
The IAIABC CTF developed and followed a structured process in solic-iting issues from the IAIABC membership and compiling them into a detailed Excel spreadsheet. The spreadsheet, entitled IAIABC CTF Work-ers’ Compensation Reporting Issues can be found on the IAIABC website at http://www.iaiabc.org/i4a/pages/index.cfm?pageid=3614. As issues are raised and/or resolved, the spreadsheet date is advanced accordingly. The spreadsheet includes three tabs, entitled “WC Tech Issues,” “WC Business Issues,” and “Closed Issues.” The definitions below explain the spread-sheet’s columns and corresponding information.
The IAIABC CTF assigns a unique identifying number to each issue on the spreadsheet, and the issue number will follow the individual item throughout the process of addressing issues with CMS, from submission through resolution. All issues will be addressed with CMS.
The progress of each issue is tracked by means of an issue date, and issues are categorized thus:
Open: Issue is currently open. The issue may be actively being •worked on, or may yet to be addressed. The IAIABC indicates when an issue number will be opened. Any issues with an open status have not been completely resolved to the satisfaction of the IAIABC CTF.
Closed: Issue is currently closed. The issue is no longer actively •being worked on and is not being considered for review in the future. The IAIABC determines when an issue is transferred from open to closed status and has been resolved to the satisfac-tion of the IAIABC CTF.
Reopened: Issue was once closed, but requires further consid-•eration. The IAIABC CTF may reopen an issue if the central item contained within this issue needs to be considered for any
IAIABC White Paper on Section 111 Reporting to CMS
additional reason. Generally, issues may be reopened when reporting rules or requirements have been modified after the issue was initially closed.
To assist users of the spreadsheet, the IAIABC CTF has further separated the issues into Business or Technical categories:
Business issues relate to the operation of standard claim administrator practices. These items relate to clarification of rules or expected practices. Business issues may, but do not always, result in changes to computer programming or computer administration. Business issues may include, but are not limited to, questions related to best practices, legal precedents or interpretations, possible business or industry impact due to the issue addressed, or expected handling guidelines.
Technical issues relate directly to electronic communications, computer programming, architecture, design, or administration. They may be re-lated to a business issue, but are primarily focused on (but not limited to) computer administration best practices, impacts of technical processing changes, expected implications and clarification of data elements and data requirements, and expected processing guidelines.
Other sections of the spreadsheet note the topic (or highest level group-ing that categorizes issues), indicating the general area of overall reporting requirement, as defined within the CMS User Guide, and the subtopic, which further defines specific areas of concern within the main topic and may indicate the issue’s impact on the workers’ compensation industry.
The section of the spreadsheet for specific issues gives a succinct descrip-tion of the problems, the nature of the questions, concerns, or other re-quests for clarification. An issue identifies specific, explicit details and in some cases provides scenarios that illustrate the requirement’s effect on industry practices.
An important area of the spreadsheet is the impact statement, which de-tails the issue’s perceived or potential effect on the industry. It is intended to document the impact of CMS’ requirements on the workflow, business,
129IAIABC White Paper on Section 111 Reporting to CMS
or technical aspects of workers’ compensation industry standard reporting practices.
To guide CMS in developing a solution to the issue presented, the IA-IABC CTF has included a consensus-driven recommendation for resolv-ing the issue. In most cases, resolutions are baseline suggestions meant to incorporate industry standard reporting practices and CMS reporting requirements. They are not meant to be a final solution in all cases, but may be utilized as a starting point for issue resolution.
The CMS Reply section of the spreadsheet documents CMS’ response and allows for easier issue and response tracking by keeping all communi-cations in a centralized repository. CMS may offer multiple solutions to issues within this category. The IAIABC CTF requests that CMS respond to an item using this section, and may request further discussion with CMS to resolve the issue completely. If an issue’s “CMS Reply” section is left blank, the IAIABC CTF will assume that CMS has not reviewed or responded to that issue since the last correspondence date.
When an issue is resolved, the spreadsheet includes the resolution that CMS has agreed to and the IAIABC CTF closes the issue. At that point, it is the RREs’ responsibility to implement the confirmed resolution within their business units.
Summary and Conclusion
Recognizing its obligations to RREs with the enactment of Section 111, CMS has been conducting regular town-hall style teleconferences, and some of the issues discovered by IAIABC members have been resolved there. As of the end of January 2010, the IAIABC CTF’s compilation of workers’ compensation issues indicated that four substantive business is-sues were open, along with four clerical, two minor, and nine substantive technical issues. However, six clerical, one minor, and thirteen substan-tive issues had been resolved.
As stated above, a major purpose of the work of the IAIABC CTF is to in-form the workers’ compensation claims community about CMS reporting
IAIABC White Paper on Section 111 Reporting to CMS
issues. In particular, the IAIABC CTF’s intention is to help workers’ com-pensation RREs to appreciate the unique definitions and usages required by CMS. As issues arise, are worked on, and are resolved, the IAIABC CTF will update the spreadsheet posted to the IAIABC website. Addition-ally, the workers’ compensation community is encouraged to submit any issues to the IAIABC CTF so that there is a single, focused, source of entry of workers’ compensation issues to CMS.
Catherine Dominguez has been involved with EDI since the early 1990s de-veloping and supporting software applications in the financial, group health, workers compensation and federal markets. She has been involved in the IA-IABC for more than 15 years and leads the IAIABC CMS Task Force Sub-committee. Catherine was previously with Red Oak E-Commerce Solutions (ROES) before (ROES) was acquired by Ingenix in 2007. She is currently overseeing the CMS Section 111 software service offering for Ingenix.
Cindy Hall is the Compliance Manager at Aon eSolutions. She began work-ing at Aon in 2006 after 8 + years working for other claims administration solution vendors. Cindy was recently appointed to the IAIABC EDI Coun-cil. Due to project related work assignments and general interest in project methodology she obtained her PMP (Professional Project Management) cer-tification in 2005. Prior to insurance industry career Cindy spent 10 years in the Financial industry as Corporate Trainer and working on financial institution software implementations.
Faith Howe has been the IAIABC EDI Manager since 2000, having previ-ously worked in the Claims department of a major workers’ compensation insurance carrier. In her current position, she supports all IAIABC EDI com-mittees in the maintenance and development of national EDI standards for workers’ compensation data reporting to jurisdictions. Faith is an instructor at EDI training sessions, manages the maintenance and publication of the IAIABC’s EDI standards, and is the chief contact and spokesperson for EDI at the IAIABC. Since the formation of the IAIABC CMS Task Force, Faith has been involved in every aspect of its activity.
Imagine coming home one day and finding your “snail mail” mailbox stuffed as full as your email inbox is on a daily basis. I hate to admit, for me the delivery would have to be in the form of duffel bags stuffed with letters, flyers and postcards. The US Postal Service would love if we’d willingly put a .47 cent stamp and “snail mail” all the things we’d gladly send or receive electronically. We would not and we do not so our “free and easy” mail system, our email, has become a massive communication system for all things big and small. We gladly accept into those inboxes a volume that would be incomprehensible, if not plain ridiculous if put onto paper. Regardless, no one will deny email has become one of the greatest utilities of the 21st century and it’s virtually impossible to func-tion in business without it. I venture to guess no one reading this would dare attempt it. So what is behind that double, for some triple, digit read-ing on the inbox meter that begins our love-hate relationship along with our coffee every morning?
Lots of things really. Depending on how many inboxes one has and whether it’s your business, personal or one of your “extra” email accounts, there’s likely at least one with a group list or listserv that contains either multiple emails in “digested” form or multiple individual emails taking
up space in your inbox. The groups can range from topics of personal interest to work groups to associations to informational groups to business people with a common interest but who otherwise would seem to make strange bedfellows or at the very least would have little opportunity of ever actually communicating. I am a member of the latter, amongst many others, and it’s one of my favorite because of the quality, diversity, utility and high regard of the fellow list-mates and their posts. This particular listserv group (we prefer roundtable as opposed to group, I believe because it sounds more cohesive and like an equal opportunity idea exchange) is focused on return to work issues and preventing disability arising out of work injuries. It is one of the recent exchanges there that begged the ques-tion, “Why don’t we change?”
How Do We ‘Know’
Our example for discussion here was what seemed like a rather innocuous and easy to answer question considering the significance and cost of work-related illness and absence in this country, “What has been shown to get injured workers back to work and prevent disability?” Seems easy enough, most states have moved to a paradigm of Evidence Based (EB) medi-cine and/or decision making and there’s Official Disability Guidelines (ODG), American College of Occupational and Environmental Medicine (ACOEM) guidelines both represented on the list by either members of those groups or by people who use and rely extensively on them. There are hundreds of years of combined experience in HR management, insur-ance adjusting, case management/utilization review, clinical expertise in all fields of health care and even those whose legal obligation is not to the injured but to the board of directors and shareholders who hold a finan-cial interest. So we waited and waited and waited for an answer from the “roundtable.”
The silence of the list was akin to that first date silence where things would be so much better if something was said but really there’s not much to say...or it’s uncomfortable to say. Of course, there were some great thoughts, suggestions and ideas eventually put out there, all of them seemed com-
mon sense and useful somehow but none really had that the thing that makes suggestions and ideas powerful and “true.” None had quality re-search supporting them.
In this arena evidence in the form of research is king and we’ve all heard the saying, “In God we trust, all others bring evidence”...at least if you’re on the clinical side of health care it’s highly likely you’ve heard it. Of course, the “truth” of evidence is and can be debated ad nauseum but one thing is clear, Workers’ Compensation systems throughout the US and abroad have relied heavily upon our system of peer-review journal submis-sion and publication as the pinnacle of acceptance for our “truth.”
Lo’ and behold, there is in fact a study suggesting an answer, at least a partial answer, to the question. As luck would have it’s not just any old study either, it’s an award winner (yes, they do awards for research, not just acting). The icing on the cake...it was peer-reviewed and published in Spine journal. Surely this is one of the long-standing, most well respected pillars of journal publication and far from the many “rag” journals that are popping up everywhere. If it is possible for any journal to publish research that could be considered “truth,” Spine is one of them.
As expected, and rightly so, many questions were raised. Good questions too. Over the course of a few days all the possible negative aspects of the paper were well vetted from all angles by those who had actually read it and those who hadn’t. It provided a great learning experience in research methodology for those whose place in the system does not require them to learn, understand or read research. In the end it was indeed as advertised, award-winning research, rarely seen in the field of Workers’ Compensa-tion much less specific to return to work and preventing disability.
Only One Thing Left To Do?
Problem solved? Question answered? Now this illusive troubling issue can at least be partially addressed? Should we have spread the word and
all interested and affected parties can be made privy to this new knowl-edge or “truth?” Can we become better as individuals in making clinical decisions, authorizing benefits or having input into these decisions? Can we become an improved system to better serve those injured workers’ for whom our roles exist? All we need to do is CHANGE. Unfortunately, in this case we haven’t, at least not many and definitely not most.
GK: Again, you want the reader to assume that the truth is clear, un-contested and universally applicable. This seems like a stretch from my everyday experience. Many facets of life are open to vigorous disagreement of the TRUTH. Just think of Washington politics, international relations, academic debates, etc. Maybe we don’t take action because we don’t be-lieve in the version of TRUTH.
So, why? Why don’t we change or why haven’t we changed? Surely we can make exception for those who don’t have the knowledge, but for those on the list it was and is there. It’s presence, the debate and subsequent discussion left little room for doubt except for the most incredibly skepti-cal. However, few eyebrows were raised and even the original questioner seemed unfazed and unwilling to accept the response.
Is it our epistemology, the old “it’s not what we believe but why we believe it that matters.” Is it we’ve learned a certain line of thinking or way to understand that’s unchangeable? Is it the status quo and we fear being wrong? Is it bias and perhaps after holding so strongly to those biases it becomes impossible to let go of them? Is it that we simply punch the proverbial clock these days and rocking the boat in this economy is seen as career threatening? Is it that the systems have become so large that minor changes are overwhelmed by the major work needed to accomplish them? Is it that we look around, waiting for someone else to take that first step? Is it that we don’t care? Is it that our turf wars are perceived as too impor-tant than those and other concerns (perhaps financial) now drive a draco-nian system meant for assisting injured workers? Is there any evidence that our other concerns and issues benefit the goal and mission of our workers’ compensation systems? If there is none then how can we compare?
Obviously, there is no clear answer and there is likely a multitude of simi-lar situations where we know a better way but are able to ignore it. Not for lack of knowledge but for lack of the will to simply change it. Perhaps in the future, when we are armed with good knowledge and evidence, we can consider that a little change may do us good. No matter where we sit at the table, no matter our place in these systems we have the burden of knowing and I believe the obligation to act on that knowledge. If we cannot act armed with the security, confidence and confirmation that our own design to seek knowledge (i.e., research) provides us, then how we can ever hope to think we can do the right thing?
I think this over simplifies reluctance to change. There are several forces that cause inertia in human institutions:
1) an exponentially growing number of sources of information 1. (TRUTH purveyors)
2) inability to tell what is true and false among the wide array 2. of competing claims
3) vested interest in the status quo, even if change was good for 3. the vast majority of people that did not share my vested interest, e.g., spine surgeons make a fortune doing unnecessary back surgery.
4) the personal and organizational cost of championing change 4.
137Drop In California’s Workers’ Compensation Spending Slows Growth
Drop In California’s Workers’ Compensation Spending Slows Growth In National
Spending In 2007
Ishita Sengupta*
Virginia Reno**
U.S. workers’ compensation payments for medical care and cash benefits for workers injured on the job increased 2.0 percent to $55.4 billion in 2007, according to a study by the National Academy of Social Insurance (NASI). The new report, Workers’ Compensation: Benefits, Coverage and Costs, 2007, is the twelfth in the NASI series that provides the only com-prehensive national data on workers’ compensation medical and cash pay-ments for each state, the District of Columbia, and federal programs.
The modest growth in national spending in 2007 (the most recent year for which complete data is available) continues a multi-year trend of spending restraint in the program due largely to decline in California cash benefit payments in the wake of reforms enacted in 2003 and 2004. A 10 percent
* Workers’ Compensation Research Associate, National Academy of Social Insurance, Washington, DC. Email: [email protected]
** Vice President for Income Security, National Academy of Social Insurance, Washington, DC. Email: [email protected]
Drop In California’s Workers’ Compensation Spending Slows Growth
decline in California’s cash payments to injured workers in 2007 followed declines in 2006 and 2005, as well. “The reduced spending for cash ben-efits reflects the continuing effects of cost containment reforms that were put in place in 2003 and 2004,” said NASI member Christine Baker, who directs the California Commission on Health and Safety and Workers’ Compensation, a nonpartisan labor-management group that advises state policymakers.
Nationally, workers’ compensation payments of $55.4 billion in 2007 include $27.2 billion for medical care (an increase of 3.3 percent over the prior year) and $28.3 billion in wage replacement benefits for injured workers (an increase of 0.8 percent). In 2007, workers’ compensation cov-ered an estimated 131.7 million workers, an increase of 1.1 percent from the 130.3 million workers covered in 2006 (Table 1). Total wages of cov-ered workers were $5.9 trillion in 2007, an increase of 5.6 percent from 2006. Workers’ compensation coverage rules did not change significantly during this period.
Table 1 shows the 2007 changes in California and in the rest of the na-tion outside California. California’s cash benefit payments dropped 10.0 percent in 2007. California medical benefit payments increased in 2007 after recording a 16 percent drop in 2005 and no change in 2006. Costs to California employers fell 14.3 percent in 2007, after showing a 16.6 percent drop in 2006.
When California was excluded, total benefit payments in the rest of the nation increased by 3.0 percent (in contrast with a 2.0 percent increase when California was included). Employer costs outside California in-creased slightly by 0.1 percent (in contrast with a drop of 2.7 percent when California was included).
When changes in California were shown relative to aggregate wages of cov-ered workers, medical payments per $100 of covered wages fell by one cent to $0.69 while cash benefits fell by 11 cents to $0.58. Outside California both medical and cash benefits fell by one cent to $0.43 and $0.47 per $100 of wages respectively, and employer costs fell by seven cents to $1.39 per $100 of covered wages.
Drop In California’s Workers’ Compensation Spending Slows Growth
State Benefits by Type of Insurance Arrangements
The shares of workers’ compensation benefits by type of insurer vary con-siderably among the states (Table 2). Benefits vary within a state from year to year for many reasons, including:
Changes in workers’ compensation statutes, new court rulings, •or new administrative procedures;
Changes in the mix of occupations or industries, because jobs •differ in their rates of injury and illness;
Fluctuations in employment, because more people working •means more people at risk of a job-related illness or injury;
Changes in wage rates to which benefit levels are linked; •
Variations in health care practice, which influence the costs of •medical care;
Fluctuations in the number and severity of injuries and illnesses •for other reasons (for example, in a small state, one industrial accident involving many workers in a particular year can result in a noticeable increase in statewide benefit payments);
Changes in reporting procedures (for example, as state agencies •update their record keeping systems, the type of data they are able to report often changes, and new legislation can also affect the data states are able to provide); and
Changes in state procedures or criteria for lump-sum agree-•ments, which may affect the amounts in the agreements classi-fied as indemnity payments or medical benefits, thus altering the share of total benefits reported as medical benefits.
In the five states with exclusive state funds, the shares accounted for by the state funds vary from 100 percent in North Dakota and 96.8 percent in Wyoming – states that do not allow self-insurance – to 81.4 percent in Ohio and 75.3 percent in Washington – states that allow qualifying employers to self-insure.
141Drop In California’s Workers’ Compensation Spending Slows Growth
West Virginia was in a transition during 2007 from a state having an ex-clusive state fund to a state having private insurance carriers and self-in-surance but no state fund. In 2007, the state fund still accounted for 58.9 percent of all benefit payments, in part because workers with prior injuries were still receiving benefits from the state fund.
In the twenty-one states with competitive state funds in 2007, the percent-age of benefits accounted for by the state funds varied from 59.5 percent in Arizona to 5.4 percent in South Carolina, where the state fund provides coverage to state or local government workers within the state. The share of self-insurance in states that allow self-insurance carriers only varies from a high of 50.8 percent in Alabama to a low of 13.3 percent in Rhode Island. This wide variation in the share of self-insurance reflects the com-plex nature of the workers’ compensation insurance market.
145Drop In California’s Workers’ Compensation Spending Slows Growth
Employer Costs
Employer costs for workers’ compensation in 2007 were $85.0 billion, a de-crease of 2.7 percent from $87.3 billion in 2006 (Table 1). Relative to total wag-es of covered workers, employer costs decreased by 13 cents to $1.45 per $100 of covered wages in 2007 from $1.58 per $100 of covered wages in 2006.
For self-insured employers, the costs include benefit payments made during the calendar year and the administrative costs associated with providing those benefits. Because self-insured employers often do not separately record admin-istrative costs for workers’ compensation, their administrative costs must be es-timated. The costs are assumed to be the same share of benefits as are a portion of administrative costs reported by private insurers to the National Association of Insurance Commissioners. These administrative costs include expenses for direct defense and cost containment, taxes, licenses, and fees. For the federal employee program, employer costs are benefits paid plus administrative costs (U.S. DOL, 2008). For employers who purchase insurance from private carri-ers and state funds, costs consist of premiums written in the calendar year plus payments of benefits made under deductible provisions. The growing use of large deductible policies complicates the measurement of benefits and costs. Under deductible policies, the insurer pays all of the workers’ compensation insured benefits, but employers are responsible for reimbursing the insurers for those benefits up to a specified deductible amount. In return for accepting a policy with a deductible, the employer pays a lower premium.
Trends in Benefits and Costs
Table 3 shows the trend in benefits paid and employer costs per $100 of cov-ered wages over the last 19 years. Since 2004, workers’ compensation benefits and employers’ cost relative to covered wages have been on the decline and con-tinued to fall in 2007. Nationally, employer costs of $1.45 per $100 of covered wages in 2007 remained above their lowest point at $1.34 per $100 of wages in 2000, but were well below their 1990 level of $2.18 per $100 of wages.1 The benefits paid per $1 of employer costs is $0.65 in 2007, an increase by three cents from 2006.
1 As noted earlier, the national decline in employer costs was driven by a sharp decline in employer costs in California. If California is excluded, employer costs fell seven cents per $100 of covered wages (Table 1).
Drop In California’s Workers’ Compensation Spending Slows Growth
What accounts for the difference between benefits paid to workers and costs to employers? For self-insured employers (or the federal employee program), the difference reflects our estimates of administrative costs (or actual reported costs in the case of the federal program). For these employers, the costs in a calendar year pertain to benefits paid in the same year.
Table 3: Workers’ Compensation Benefit* and Cost** Ratios, 1989–2007
* Benefits are payments in the calendar year to injured workers and to providers of their medical care.** Costs are employer expenditures in the calendar year for workers’ compensation benefits, administrative costs, and/or insurance premiums. Costs for self-insuring em-ployers are benefits paid in the calendar year plus the administrative costs associated with providing those benefits. Costs for employers who purchase insurance include the insurance premiums paid during the calendar year plus the payments of benefits under large deductible plans during the year. The insurance premiums must pay for all of the compensable consequences of the injuries that occur during the year, includ-ing the benefits paid in the current as well as future years.
Source: National Academy of Social Insurance estimates.
147Drop In California’s Workers’ Compensation Spending Slows Growth
For insured benefits, employer costs are largely determined by premiums paid in that year. Premiums paid by employers do not necessarily match benefits received by workers in a given year for a number of reasons. First, premiums in a calendar year must pay for all of the compensable conse-quences of the injuries that occur during the year, that is the benefits paid in the current and future years. Thus, the premiums for 2007 include ben-efit payments during the year for 2007 injuries, plus reserves for payment of benefits for the 2007 injuries in 2008 and after. In addition, premiums must cover expenses such as administrative and loss adjustment costs, taxes, profits or losses of insurance carriers, and contributions to special funds, which can include the support of workers’ compensation agencies.
From the insurer’s perspective, these premiums reflect all future costs the insurer expects to incur for injuries that occur in that year. Thus, an in-crease in expected liabilities could lead to an increase in premiums and a decline in expected liabilities could lead to a decline in premiums. Second, premiums can be influenced by insurers’ past and anticipated investment returns on reserves that they set aside to cover future liabilities. Thus, a decline in investment returns could contribute to an increase in premi-ums, while an improvement in investment returns could lead to a decline in premiums. Finally, premiums reflect insurers’ profits (or losses), since profitability (or lack thereof) will affect the extent of dividends, schedule ratings, and deviations offered by the insurers. Burton (2008) observed that “the underwriting results for the workers’ compensation insurance industry deteriorated in 2007, but remained highly profitable by historical standards according to results from A.M. Best.”
For further references and additional data please refer to the Workers’ Com-pensation Benefits, Coverage and Costs 2007 at www.nasi.org.
References
Burton, J. F., Jr. (2008). “Workers’ compensation insurance industry profits remain high in 2007. Workers’ Compensation Policy Review, 8(5), 24-31.
Drop In California’s Workers’ Compensation Spending Slows Growth
U.S. Department of Labor (U.S. DOL). (2008). Employment standards administration. Office of workers’ compensation programs. Private data request. Washington, DC: Author.
Ishita Sengupta is a Workers’ Compensation Research Associate at the Na-tional Academy of Social Insurance (NASI). She is the co-author of NASI’s annual Workers’ Compensation: Benefits Coverage and Costs Report. She has also authored several articles on the trends in worker’s compensation in the US. A staff member of the National Academy of Social Insurance since 2004 and a member of the Academy since 2008, Ms. Sengupta received her Ph.D. in Economics from the University of Connecticut.
Virginia Reno is Vice President for Income Security at the National Acad-emy of Social Insurance where she plans and directs the Academy’s work on retirement income, workers’ compensation, disability insurance and related programs. She led the Academy’s 2005 study, Uncharted Waters: Paying Benefits from Individual Accounts in Federal Retirement Policy, and prior NASI studies of the economics of privatizing Social Security and of ways to strengthen the Social Security disability programs to promote rehabilita-tion and work. Before coming to the Academy, Ms. Reno held research and policy positions at the U.S. Social Security Administration (SSA). She was staff director of the Policy Council that advised the Commissioner of Social Security on legislative, regulatory and administrative issues and directed the program analysis staff in SSA’s office of research and statistics. Ms. Reno has published research on Social Security, private pensions, retirement policy, public opinion about Social Security, the impact of benefit and tax systems on women and families. A fellow of the TIAA-CREF Institute and founding member of the National Academy of Social Insurance, Ms. Reno served in the U.S. Peace Corps in West Africa and received her B.A. from the Honors College of the University of Oregon.
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