End-of-Healing Issues for Dual Mental and Physical Workplace Injuries

March 9, 2018

Wisconsin is one of the few states that recognize the compensability of mental injuries in all forms under worker’s compensation law. That includes situations in which physical trauma causes a subsequent mental injury (“physical-mental”), a nonphysically traumatic mental stimulus causes a mental injury (“mental-mental”), and a mental stimulus causes a physical injury (“mental-physical”). Certain professions are prone to a heightened number of mental injuries because of the nature of the workplace or the actual work involved. As the field of mental healthcare evolves and different treatment options become more readily available, it’s important to understand the distinction between the various types of mental injuries and the end-of-healing issues presented when an employee has both physical and mental injuries.

What Constitutes an ‘Injury’?

The Wisconsin Worker’s Compensation Act includes in its definition of “injury” both mental and physical harm to an employee that is caused by an accident or disease. While Wisconsin courts recognize the inherent difficulty of establishing causation and determining other issues of compensability when mental injuries are involved, the Wisconsin Supreme Court has recognized that mental injuries occurring in the workplace are “as real as any other disability and may be as disastrous.”

Compensable mental injuries are divided into three distinct categories:

  1. Physical-mental: a posttraumatic mental injury, which is a mental disorder caused by a compensable physical injury;
  2. Mental-mental: a nontraumatic mental injury, which is a mental injury that doesn’t result from or in a physical trauma but is attributed to extraordinary work-related stress; and
  3. Mental-physical: a physical injury resulting from job-related mental stress—i.e., when work-related stress precipitates, aggravates, or accelerates a progressively deteriorating or degenerative condition beyond its normal progression.

Posttraumatic Mental Injuries

The most commonly understood forms of mental injuries in the worker’s comp setting are mental injuries caused by a compensable physical injury. Conditions typically associated with this type of mental injury include posttraumatic stress disorder, conversion disorder or conversion hysteria/hysterical neurosis, psychogenic pain disorder, depression, and phobias. It’s important to note that because mental injuries are unscheduled, a posttraumatic mental disorder shifts the otherwise scheduled injury from which it stems to an unscheduled injury for purposes of loss of earning capacity if some permanent psychological limitation precludes the employee from returning to work with the time-of-injury employer.

To establish a sufficient causal relationship between a mental health condition and a traumatic injury, as well as any end-of-healing issues such as permanency or future medical expenses, an employee must rely on a qualified mental health specialist. Under Wisconsin law, “qualified mental health specialist” refers to a psychologist or a psychiatrist. That’s an important distinction because many mental healthcare professionals who provide regular treatment, including counseling and other therapeutic services, are not psychologists or psychiatrists. These professionals hold various degrees or licenses that certify them to provide certain mental health services but do not qualify them to render opinions on causation or end-of-healing issues in the worker’s comp setting.

Nonphysically Traumatic Mental Injuries

Perhaps the most difficult form of mental injury to establish compensability for is the mental-mental injury, or an injury that doesn’t result from any physical trauma. In fact, it wasn’t until 1974 that Wisconsin recognized this form of mental injury as a compensable work injury.

In the seminal case recognizing a mental-mental injury as compensable, the Wisconsin Supreme Court set a new “extraordinary stress” standard under which a mental injury that isn’t caused by a physical injury must have “resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience.” Since that time, the legislature has attempted to codify and clarify the standard to better explain the stress to which an employee’s emotional strain and tension should be properly compared. However, those statutory provisions have since been repealed.

In a 1989 decision, the Wisconsin Court of Appeals found that the proper comparison for job duties and stresses should be those “that employees similarly situated face.” As a result, the comparison is not between the claimant and employees at large, but between the stressors that the claimant contends entitle him to worker’s comp benefits and the amount of stress experienced by others in his same occupation and field.

Job-Related Mental Stress Causing Physical Injury

The final category of compensable mental injuries, mental-physical, arises when an employee’s job-related stress results in a particularized physical injury. Unlike mental-mental injuries, mental-physical injuries do not require an employee to prove an unusual or extraordinary level of stress. Rather, the threshold for compensability is work-related stress that causes a physical injury by aggravating, precipitating, and accelerating a preexisting progressively deteriorating or degenerative physical condition beyond its normal progression. The mere manifestation of physical stress-related symptoms is not compensable.

Healing Plateaus, Permanency, and Loss of Earning Capacity

When employees experience both mental and physical injuries, it’s important to remember that the healing period associated with the physical injury isn’t necessarily determinative of the healing period for the mental injury. An employee can remain in a healing period for a posttraumatic mental injury after he has already recovered from his physical injury, and compensation for a mental injury may be awarded after all physical symptoms have disappeared.

In Johnson, the supreme court stated that the healing period for a mental injury “would be the period prior to the time when the mental condition becomes stationary and would require a postponement of fixing permanent disability, if any, to the time when it becomes apparent that the mental condition, to a medical certainty, will become no better or no worse.”

While mental injuries may not totally disable an employee from work, frustration frequently arises because mental injuries do not follow the traditional patterns of treatment and healing that physical injuries do. Entitlement to temporary total disability benefits and establishing a healing plateau are inherently more challenging with mental injuries.

Mental disorders that are caused by, and manifest themselves in, only scheduled body parts will still be treated as scheduled injuries. For instance, someone who loses physical function or experiences debilitating pain in a limb due to a mental disorder but experiences no other permanent mental impairment will be limited to recovering the assessed percentage of permanency in that particular limb.

When a mental injury is categorized as unscheduled because of a permanent mental impairment and permanent work restrictions prevent an employee from returning to work, the employee can pursue a claim for loss of earning capacity, even when the underlying physical trauma affected a scheduled body part. When an employee has returned to work for the time-of-injury employer, however, no award for permanent mental disability is allowed, even if the employee’s mental healthcare provider has issued a permanent partial disability rating.

Bottom Line

In cases involving mental injuries, the most practical defense relies on reviewing up-to-date records from all of the employee’s mental healthcare providers, keeping in mind that she could be receiving treatment from a psychiatrist who is handling any pharmaceutical-based treatment, a psychologist who is creating and directing a plan of care that includes counseling or various other therapeutic modalities, and another mental health professional who may be providing more regular (weekly or even more frequently) treatment and keeping records and charts of the employee’s overall progress based on her presentation at each session. All of that information should be reviewed by a competent psychologist or psychiatrist before an independent psychological or psychiatric examination is performed. If there’s a question about the reasonableness and necessity of pharmaceutical treatment, however, it will fall within the purview of a psychiatrist or another licensed prescriber, such as a physician’s assistant or advanced practice nurse prescriber who specializes in mental health treatment.

This article, slightly modified to note recent updates, was featured in the February 2018 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "End-of-Healing Issues for Dual Mental and Physical Workplace Injuries," contact Kristin R. Pierre at kpierre@axley.com or 608.283.6719.