melton_97_ch12 - CHAPTER TWELVE rcoapmang Mental Injuries e...

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Unformatted text preview: CHAPTER TWELVE rcoapmang Mental Injuries. e ~ 12.01. Introduction Society has long been concerned with compensat— ing those injured by others. Although the criminal justice system helps fulfill this objective by exact- ing vengeance, it exists primarily for the benefit of society. Individual monetary compensation is most directly achieved through the civil justiCe system, primarily via “tort” law—the law of civil wrongs. Thus, the same act can trigger both sys— tems. An assault, for example, may be punished by the state in criminal court and also lead to damages for the victim in a tort action. In the first instance the state will be the “complainant”; in the second it merely provides the forum for resolu— tion of a dispute between private parties [see § 2.04]. The separation between the criminal law and civil compensation law was not always so distinct. In medieval England, the idea of compensating in- jured parties developed as an alternative to the warfare that traditionally occurred when the hon— or of one clan was affronted by another.1 The An- glo—Saxons ranked individuals in terms of relative worth and assigned a tariff, known as the wet, which established the official money worth of each person. When a clan caused injury to a member of another clan, fighting was avoided by offering the war, which was distributed in pre- scribed allowances to the paternal and maternal 'Workers’ Compensation and Torts kin of the injured party. Over time, however, penalties also became due the King when the transgression disturbed the King’s peace; this pay- ment became known as the wine. Eventually, the functions of appeasing the family and atoning for the breach of the King’s peace separated: The lat— ter emerged as the criminal law, and the former became the law of “torts.”2 As tort law developed, it came to incorporate a broad universe of harms. Today, the American Law Institute’s Restatement (Second) of the Law . of Torts defines the word “tortious” as appropriate to describe not only an .act which is intended to cause an invasion of an interest legally protected against intentional invasion, or conduct which is negligent in creating an unrea— sonable risk of invasion of 'such an interest, but also conduct which is carried on at the risk that the actor shall be subject to liability for harm caused thereby, although no such harm is in- tended and the harm cannot be prevented by any precautions or care which is practicable to require.3 As this definition suggests, tortious conduct may result from intentional conduct, from negligent conduct, or in some instances from conduct in which the actor’s motivation is not at issue and for which strict liability is imposed. At the same time, in determining the compensability of an in— jury, the law not only considers the actor’s con- 363 364 III. NONCRIMINAL ADJUCATION §12.02 duct but may consider that of the injured party as well. For example, if the injured party has con- sented explicitly or implicitly to the invasion of the protected interest (i.e., has “assumed the risk”), or has been negligent as well, damages may not be assessed at all, or at least may be appor- ties.4 7 W W 7 Because of the complex, fault-oriented nature of the present tort system, other systems of com- pensation have developed over the years.5 The most extensive such system is workers’ compen— sation, which is designed to provide compensa- tion to injured workers for the loss or impair— ment of their wage-earning power.6 The “work- ers’ comp” system came into being in the early 20th century, largely because the various defenses available to employers in tort suits left employees injured on the job grossly undercompensated.7 In contrast, workers’ compensation ignores the po— tential fault of the injured party and instead pro- vides compensation for all injuries arising out of employment. Both the tort system and the workers’ com— pensation system were initially reluctant to ac- cept Claims of “mental injury.”8 However, this re- luctance has gradually given way to expanded coverage, at least in part because of an increased willingness by courts to accept diagnosis and prognosis as legitimate skills. Thus, under each system of compensation, the clinician may be asked to assess the impact of conduct or events on an individual's mental status, functioning, and prognosis for recovery. This chapter discusses the workers’ compensa- tion system first and then examines compensabil— ity for mental injury under tort law. In the latter area, we focus particularly on the tort of inflic- tion of emotional distress because it most clearly raises the issue of “mental suffering.” Differences between the workers’ compensation and tort sys— tems are noted throughout. We conclude with a discussion of clinical evaluation techniques rele— vant to each. CASE STUDY 12.1 Ms. Friend, a longtime employee of Big Sound, a manufacturer of stereo equipment, had a spotless employment history. She rarely missed work either for vacations or because of illness, and was well Lffltiohediafiécifding Kathe Téléfifif‘fefilf’fifth? Par' liked by other employees. Her job was to drive a fork-lift on the floor, moving cartons of materials. One morning, as she was moving material, she heard a loud noise. She looked to her left, and saw hundreds of cartons falling from shelving directly onto a coworker who was driving another lift. The other employee’s neck was broken in the accident ,, aficilierdiedihnéhflj.7:7It: ,7 1: M, * Ms. Friend brought a workers’ compensation? claim against her company for the emotional injury sustained as a result of witnessing the fatal acci— dent. You are asked to evaluate Ms. Friend. She states that since the accident she has been unable to sleep and has lost her appetite. She also has had dif— ficulty at work because when she gets on her fork— lift she begins shaking so badly she has difficulty driving. She complains of stomach and neck pains as well. You also discover that one month before the accident Ms. Friend’s young son died in a home accident. After returning from a two-week paid leave to attend to funeral arrangements, she seemed depressed, according to coworkers. She has one small daughter remaining at home, who is watched by a nanny (Ms. Friend’s husband works full-time as well). She has told her coworkers that she feels guilty about leaving her son at home and wants to spend more time with 'her daughter. QUESTIONS: Based on what is known at this point, if you are a lawyer representing Ms. Friend how do you respond to her question as to whether she can recover monetarily from the workers’ com- pensation system? Assume her employer is not gov— erned by a workers’ compensation plan. Could she recover damages in a tort suit? In either case, what information would you want from a clinician in trying to determine the amount of compensation? As a clinician how would you answer the lawyer’s queries? 12.02. Workers’ Compensation Law Before the development of workers’ compensa- tion law, an employee injured at work could only be compensated through tort law. In these tort actions, the employer could raise several defens- es, including cantributory negligence (asserting that the employee’s negligence contributed to the in— jury), assumption gfthe risk (asserting that the em- ployee assumed the risk of injury by taking the job), and the fellow servant rule (asserting that the worker’s injuries resulted from the negligence of v.4 .V': ' . §12.02 12- COMPENSATING MENTAL INJURIES 365 /_________—_________.—————————— another worker).9 These defenses effectively 7 ~ barred many -workers or their families, from ref m,-aWeovepmgianytompensationfor workers’ injuries or deaths and subsequent loss of employment. Furthermore, even when no defense applied, proving fault was often a long, involved process that “frequently worked an injustice on the work— er,”l° who could ill—afford waiting for compensa— tion. An Illinois study at the turn of the century found that of 6141~ work-related death cases, 214- families had received no compensation and 111 cases were in pending litigation. In New York City in 1908 , there had been no compensation for 43.2% of those accidents in which disposition was known.11 As one commentator put it, this state of affairs was “a complete failure [which], in most serious cases, left the workers’ family desti— tute.”12 The workers’ compensation system was de» signed to change this situation. By entering into this system, which is compulsory in most states,13 both employers and employees give up rights pos— sessed in tort law. Employers have to insure em- ployees against work—related injury and, except in a few limited circumstances, waive the various defenses available in tort.14 Employees, for their part, forfeit the potentially unlimited compensa— tion available in a tort case (assuming the requi— site proof of tortious conduct and damages) but obtain more certain recovery, based on a fixed schedule derived from the degree and duration of the disability and the workers’ preinjury salary. Generally paid over a fixed period on a weekly basis, this compensation is not designed to “make the person whole” as is the case with tort damages but is meant to replace some meaningful degree (typically two-thirds) of lost earning capacity. 15 In addition, the disabled worker receives payment for medical care, surgery, nursing, and burial ser— vices.16 Today, all states and the federal govern- ment have workers’ compensation laws,17 and the vast majority of all civilian employees are cov— ered.18 (a) The Claims Process One of the primary goals of workers’ compensa— tion is the expeditious adjustment of claims for compensation.19 Therefore, nearly all jurisdic- tions providefor summary and generally informal proceedings before "an" administrative agency; as wellasfor appeal to the éé'm'r’ts'f As a first stethhe worker must give notice of injury to the employer and, in some jurisdictions, to the workers’ compensation board. The notice must provide general information regarding the circumstances of the accident and the nature and extent of the injury. 20 Once notice is given, the employee may be required to submit to a medical or physical examination to determine whether there is an injury and, if so, its extent.21 In such situations, the patient—physician privilege is con- sidered inapplicable [see §4.O4—(c)].22 The statutes generally provide an opportunity for the parties to reach a voluntary settlement. If adjudication becomes necessary, the proceeding is normally administrative in nature ; the case is tried before a hearing officer (who may be called a “commissioner”) rather than a judge in the court system. Technical rules of pleading are not fol— lowed (although the claim must set forth facts ad- equate to establish the case for compensation23), and the rules of evidence may not apply either, in which case hearsay will be admissible.” The adju— dication is informal in character; the parties may not even be represented by counsel. The claimant has the burden of making out a case for recovery. The standard of proof, which courts have described in various ways, is equiva— lent to the preponderance of the evidence test, which means that the claimant must show it is "more probable than not” that the employment caused the injury.25 Expert testimony is allowed at the hearing, though in at least some jurisdic- tions the expert is (and in our opinion should be) barred from testifying on the ultimate issue as to the percentage of loss of earning power suffered by the claimant.26 The hearing officer determines , questions of both law and fact and is often re- quired-to write out express findings of fact. Thus, the hearing officer determines whether an injury has occurred, its extent, and its compensability. Compensation can be for permanent total disabil— ity (paid out for the worker’s life or for some large number of weeks, such as 500), permanent partial disability (often paid out as a percentage of total impairment), or temporary total or tempo- rary partial disability (paid weekly for the dura- tion of the disability).27 66 111. NONCRIMINAL ADJUCATION §12.02 3___/ These findings, and any award given, are con- clusive as to the parties’ interests in the case, un- less reversed on appeal. As noted, workers’ com— pensation was designed to replace tort law in ad— judicating work-related injuries, so as a general rule theremployee cannot go to court under a tort tween the employment and the injury——that is, 1 Whether the disability resulted from a risk faced by the employee as a condition of employment.32 In the past, courts required a showing that the in- jury resulted from an increased risk that the worker, as distinct from the general public, faced as a result of 'employmentflThus, a worker who r theory inithehopeiofsupplefiieflimg EQmPén; T, dissatiomawardt ,Howgeviert the administrative out- 7 con’fractEd 7 lung cancer" because of" coworkerS" come may be appealed to a court if a party ques— tions the manner in which the law has been ap- plied to the particular case. (b) Substantive Criteria for Compensation Although workers’ compensation laws vary in some respects, they all contain certain common features. Typically the worker—or in the case of death, the beneficiaryzsflmust demonstrate (1) an injury or disability, (2) arising out of and in the course of employment, (3) which is “accidental,” as that term has come to be used in workers’ compensation laws. (I) 'Injury or Disability The first substantive criterion for compensation is the requirement that the worker show that he or she has suffered an injury or disability that af— fects earning power.29 Because of the require— ment that injury and earning power be related, certain types of injuries that might be compens- able in tort have been held noncompensable un- der workers’ compensation. Examples include fa- cial disfigurement, loss of sexual potency, and pain and suffering.3° Despite this substantive limi— tation, the types of injuries and disabilities found compensable are legion; they encompass nearly every other type of disability imaginable, includ- ing, as discussed later, various types of mental in— jury.31 (2) In the Course qumploj/ment Assuming a compensable injury is involved, the employee must also demonstrate that it arose “out of and in the course of employment.” This criteri- on is generally considered to contain two separate ideas. The first, arising “out of ” employment, in— volves determining the causal relationship be— smoking might not recoVeervhereas a CUIIStI‘lIC-' tion worker injured from falling off a building would. In many jurisdictions, however, this stance has since been modified to permit recovery for injury resulting from any risk of employment, even if it is a common risk to the public-as well.“ Adopting an even broader interpretation, a grow— ing number of courts have endorsed the “posi- tional risk” test. Under this test, an injury is com- pensable if it occurred because the conditions or obligations of the employment placed the claimant in the position in which the injury oc- curred.35 The effect of this modification has been to make more types of injuries compensable; it means, according to one commentator, that “the only connection of the employment with the in- jury is that its obligations placed the employee in the par‘u'cular place at the particular time.”36 The second causal requirement—that the in— jury arise “in the course of employment”—focus— es on whether the injury occurred within the pe- riod of employment, at the place of employment, and Where the employee might reasonably be ex— pected to be While fulfilling duties associated with employment.37 In jurisdictions that adopt the po— sitional-risk approach, this determination may of— ten be congruent With the arising—out—of inquiry. A difficult issue connected with determining causation in workers’ compensation cases is the relevance of a preexisting condition [see, e. g, the Gates report, § 19 .08]. As a general rule, employ— ers are said to take employees as they find them; a history of either physical or mental problems or a preexisting sensitivity to them will not in itself result in a denial of compensation}8 Thus, if a workplace injury aggravates or accelerates the ex— isting disease or infirmity, compensation is due.39 “Aggravation” of a disease might include situations in which cancer that existed prior to employment spread as a result of the employee’s workf’0 EX- amples of “acceleration” include failure of an al— ready weak heart due to w'ork-related excitement . m rvrmwdewwn-amv «rmmmm.w. ww-vr-zrerxw-mw-wm: memx r E if; s. E: El {2 i 2.02 12. or exertion and the “lighting up” of tuberculosis icausedraggrayated, or accelerated by the work; place, but existed or worsened independently of work, the claimant is not entitled to compensa— V 7 because of exposureflfiovve'vfl,ifiriiury'waéhot tion. (3) Injury Arising “by Accident” The cause of the injury must usually be “acciden- tal”——that is ,i an unanticipated event that occurs at the work site. However, “nonaccidents” in the lay sense may also be compensable. For example, if a worker who is routinely expected to lift heavy objects in the course of employment one day col- lapses during the course of these exertions, the result of the job performance is unexpected (or “accidental”), and therefore the injury is com- pensable.“2 In short, in most instances, either an event that accidentally causes injury or an acci- dental result of normal job performance will sat- isfy the test. Although “usual exertion” with an unexpected result generally suffices for compensability, courts have been reluctant to apply this principle when heart disease is involved. Rather, a number of courts have required “unusual exertion” before awarding compensation.“3 This type of holding flows from a concern alluded to in the discussion about causation—the difficulty in proving that deaths resulting from heart failure actually arise out of employment.‘14 It is noted here because it is similar to limits courts have placed on recovery for mental injuries, again because of concern over difficulties in proving etiology and causation. (c) Mental Injury In the early days of workers’ compensation, com— pensation for mental injury was much more diffi- cult to obtain than compensation for physical in— jury. This reluctance stemmed from a number of concerns. Courts rejecting such claims often re— lied on findings that the mental disorder could not have been caused by an “accident,” or that the mental disorder was not an “injury” Within the statutory meaning. But, at bottom, the hostility to compensation for mental injury reflected inher- ent distrust of such claims, including a fear of ma— COMPENSATING MENTAL INJURIES §1 —————————————————————— ,jectively linkingieh'iployment Withrrnental injuries 367 lingering,”rs and concern over the problem of ob- whose etiology is uncertain or milgnown,.46 7 In more recent times several states have been more generous in compensating mental injury.47 One commentator has noted that workers’ com— pensation cases today involve mental disorders of “almost every conceivablekind of neurotic, psy- chotic, depressive, or hysterical symptom, func- tional overlay, or personality disorder.Mrs Nonetheless, the success of a modern mental in— jury claim is still relatively tenuous, depending on its character. Most commentators divide such claims into three categories: physical trauma causing mental injury, mental stimulus causing physical injury, and mental stimulus causing men- tal injury.“9 Although the first two categories are usually compensable, the latter category contin— ues to be greeted with relative hostility. | (1) Physical Trauma Causing Mental Injury . In a situation in which a physical stimulus or trau— ma either causes a mental injury or causes a phys- ical injury resulting in a mental disorder, the mental injury is usually compensable.50 In such cases, the courts have little difficulty with the causation issue (i.e., the linking of employment with the injury); the usual reasoning is that “the existence of an objective, traumatic, work-con- nected physical impact or injury provides an intu— itive guarantee that the mental disorder is gen— uine and that the employment genuinely caused it.”51 Although such an analysis may overstate the case in clinical terms (e. g., by ignoring the multi— ple causative factors that may underlay the now discernible mental disorder), the reliance on the presence of physical impact is not confined to workers’ compensation. As will be seen, it is also the case in torts law. There are myriad physical situations that have given rise to compensable mental injury. The fol- lowing provide some idea of the variety: emo- tional trauma caused by rape at gunpoint; mental injury resulting from a pulled muscle sustained while swinging a Sledgehammer; a “posttraumatic neurosis” resulting from an employee’s fall from a scaffold; a “conversion reaction” caused when a 20-pound steel weight struck an employee; a neu— rosis that developed without any discernible §12.02 r, 368 111. NONCRIMINAL ADJUCATION However, in many American jurisdictions, as well as in Canada,57 recovery for “mental—mental” in— jury is limited in ways that recoveryfor physically physical cause, but that arose after several work- related accidents; a mental disorder resulting nine years after a work-related amputation of an arm; traumatic neurosis that developed from the loss related injury is not.58 of an employee’s eye, suffered while removing the For instance, some states limit compensation a cap. of a fire" extinguisherrand a“fear complex” to a sudden stimulus (e.g., fright or shock)——a ' ’ "l ’ ' ' that~prevented~anremployeefrom working after limitation, much like the “physical”limitationrfor— ’ suffering severe finger fractures from operation merlj imposed by courts uncertain 'Of me'ge’n: 75 of a power press.52 uineness of injuriesnwithout a physical etiology?” " N While this limitation has existed in some states " , , _ , for years, in others it is relativel new. For exam— (2) Mental Stlmulus causm‘g Ply/ma] Injury ple, in 1989, the Louisiana Suprleme Court ruled that a claimant could recover for mental injury suffered after a period of harassment by other employees.60 Two years later the Louisiana legis— lature amended the workers’ compensation statute to permit recover for mental injury only if it “was the result of a sudden, unexpected, or ex— resulting from a long period of emotional strain traordinary stress related to the employment and is demonstrated by clear and convincing evi- arising out of work will often be compensable. 7:61 Courts have also upheld awards for a claims ad- dence. juster who suffered angina pectoris due to ex— Although most other jurisdictions allow com- haustion, a negotiator who after 65 days of work— pensation for mental injuries arising from “grad- related tension suffered a stroke and paralysis, an ua ” stress, they typically impose a requirement insurance administrator who had a cerebral that the stimulus complained of “exceeds in inten— thrombosis as a result of job pressures, an em— sity the emotional strain and tension normally en- ployee who suffered aheart attack after becoming countered by employees on a daily basis.”62 In emotionally upset over office clerical errors, and other words, the stress or strain that culminates an employee who suffered ‘a stroke while argu— in the mental injury cannot simply be the routine ing over the amount of his paycheck.“ Perhaps 'stress associated with the job. One court put the some of the symptoms experienced by Ms. Friend matter succinctly when, in rejecting a claim re— in Case Study 12.1 would fall in this category sulting from “a tremendous amount of pressures as well; however, most would probably fall in and tensions,” it observed that the concept of a the third and final category of injury, discussed compensable injury “still does not embrace every below. stress or strain of daily living or every undesirable experience” presented by employment.63 (3) Mental Stimulus Causing Mental Injury A Enlal taCk Ilsed to hunt anlpensablhty Of mental injury clalms, whether arising from men- tal or physical causes, is to require more “causa— tion” than in other types of cases. For instance, California provides that compensation for mental injury is available only if the employee demon- strates that “actual events of employment were “1 just as mental injury caused by physical trauma is usually compensable, physical injury as a result of a mental stimulus is generally compensable as well,53 whether the mental stimulus is sudden (e.g., extreme fright resulting in physical injury) or more protracted. For example, heart failure The most controversial of the three categories is the last, in which a Claimant seeks compensation for a mental injury caused by mental stimulus. Courts initially resisted compensating injuries that fell into this category because there was no predominant as to all causes combined of the psy- “physical” evidence (i.e., a definable event or ob- servable bodily changes). As medical science con- chiatric injury.” Further, when the injury results vinced the courts that physical indicia were not from being a victim of a violent act or from Wit— _ necessary to ensure the genuineness of a mental messing one, the event must be responsible for “at injury Claim, that view has changed,55 with the least 35 to 4-0 percent of the causation from all result that today a “distinct majority” of American causes combined 7’64 jurisdictions find such injuries compensable.56 To some extent, these various limitations re- , stem §12.03 12- flect a distrust of such claims.65 But they also ’ r’r’dmcpn’gainabqutfinance-1iresourcesrBy the early 19905, the costs of workers’ compensa: ' tion had escalated dramatically, at a rate 30°76 greater than the inflation in total health care Spending during the 19803; in absolute terms, the total cost of the system was $70 billion in 1992, a tripling in costs since 1982.66 Commentators cit— ed three reasons for this escalation: the rising cost of medical care,67 the increased litigiousness asso— ciated with the workers’ compensation system,68 and, most important for present purposes, the expanding definition of “compensable injury,” particularly with respect to job-related stress and emotional or mental injury.69 In California, for instance, claims of mental injury Without a physi: cal injury rose from 1178 claims in 1978 to more than 9,000 claims in 1988. Nationally, the per— centage of claims for stress or mental injury dou- bled between 1980 and 1988.70 These trends may have since reversed”; in any event, mental injury claims appear to have been unfairly singled out as armajor source of problems in the workers’ compensation system.72 Nonethe— less, concern over such claims clearly increased in the late 19805 and early 19905. Thus, among the many reforms proposed or adopted in the work- ers’ compensation area,73 redefining the compens— ability of mental injury is likely to rank high in pri- ority. As Pryor has stated, such limitations will probably continue to be imposed on the theory that “employees should bear the risk and loss of or— dinary nonphysical features of the worksiteffl“r (4) Preexisting Mental Disorder A difficult issue which can arise in all three of the categories discussed above is the extent to which the mental injury preceded the work-related inci— dent or stress. As noted earlier, the core question , is whether the employment “aggravated” or “ac- celerated” the course or severity of the preexist- ing disorder. If this inquiry is answered affirma— tively, the employee may receive compensation even for mental injury.75 Note, however, that the presence of a preexisting disorder will make proof of a casual connection between the employ— ment and the mental injury more difficult, given the somewhat ephemeral quality of the concepts of acceleration and aggravation. The implications COMPENSATING MENTAL INJURIES 369 of this point for mental health professionals per- forming evaluations of, mental "injuryware dis- " ' cussed ’fUrther later in thischapter ' [seee§§ 7712.04, "’12'05’ " ” " ’ ’ ‘ ' 12.03. The Tort of Emotional Distress Like the workers’ compensation system, the tort system is designed to provide monetary compen— sation for certain types of injuries. However, tort law differs from workers’ compensation in sever— al critical respects. First, in nearly all jurisdic— tions, workers’ compensation depends on admin- istrative decisionmaking whereas tort law relies on judicial proceedings. Second, the guidelines for compensability under workers’ compensation are statutorily created by the legislature (though judicial interpretation is important), whereas tort law generally is developed by the courts (though legislatures increasingly have sought to address cost inflation, particularly in medical malpractice). Finally, the two systems differ in terms of objective. Workers’ compensation is based on a fixed schedule and primarily seeks to redress impairment in earning capacity; only a few of the associated costs (medical care, nursing care, etc.) may be covered. In contrast, damages in tort law are set by a jury, subject only to re— view by the presiding judge for reasonableness in light of the facts, and seek to compensate all damages resulting from the tortious conduCt, in— ' cluding ephemeral categories such as “pain and suffering,” “loss of consortium,” and mental an- guish. (a) Substantive Criteria As noted at the beginning of this chapter, the pri— mary purpose of tort law is to provide compensa- tion for private wrongs. Thus, a tort is not the same thing as a crime and does not normally con- template an evil intent or motive.76 Nor is it an action for breach of contract, which is based on violation of an explicit understanding about the duties between parties.77 Conversely, an action that might be a “moral” wrong to most is not necessarily tortious conduct if the actor’s con— 370 III. NONCRIMINAL ADJUCATION §12.03 (2) Breach zy‘lDuty duct is “within the rules.”78 Thus, for instance, failure to save a drowning child will not be con- sidered a tort unless one has an affirmative obliga— tion to act, as would be true of parents of the child. _ There are many separate torts for which one party maybe held liable to another; Examples in— Elude "assault, battery,” false" imprisonment, 7 An individual may violate a duty either by act or by omission. To use the parent—child example again, an omission likely to lead to tort liability is a parent’s failure to save a child. Another example . more..relevant.to clinicians. is, an mental...health.. . . 'pro’fessi'ona‘l’s‘ failure to "takesteps’to’ protect a " W ’ " "I' " ’thirdpartyeendan'gered’by’theiclini’cian’spatient? Wm“ We ' irv ’defamati'onflibel,’ slander, invasron of privacy, and malicious prosecution. Although the definitional criteria differ for individual torts, certain core concepts define whether an actionable wrong has been committed in each case: (1) the defendant must owe a “duty” to the plaintiff, which (2) the defendant “breaches” or violates, (3) thereby “proximately” causing (4-) a type of injury that is recognized as compensable.79 (1) Duty Prosser defines the first prong of a tort as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.”80 He acknowledges the vague quality of the concept, concluding that “no better statement can be made, that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.”31 “Duty” is probably best understood by consid- ering certain principles that govern relationships between individuals. For example, an individual has a “duty” to refrain from going uninvited on the property of another; if the individual nevertheless does so, he or she may have violated that duty and may be subject to damages for the tort of tres— pass. A physician has a “duty” to treat patients ac- cording to accepted professional standards; a fail— ure to perform this duty may result in a claim for damages based on the tort of malpractice. An in— dividual has a “duty” to avoid engaging in uninvit- ed physical contact with another individual; to strike the other person violates the duty and may make the actor liable for the torts of assault and battery. And, to repeat an example given above, parents have a duty to prevent their children from dying if they can reasonably do so. Duties may be created by the legislature, by the courts, or by a jury ruling in a case in which neither legislative nor judicial guidelines exist. recognized as actionable in jurisdictions that fol— low Tarasq’j‘" v. Board qf Regents82 [discussed in § 40403)]. Violation of a duty, whether by act or omis- sion, may be intentional, negligent, or, in some cases, neither. An example of an intentional tort is the intentional infliction of emotional distress, discussed below. A second intentional tort is as- sault and battery. The central issue in intentional tort cases is whether the actor intended the result of the act, not the act itself.83 “Negligence,” in contrast, does not describe a state of mind but, rather, is defined as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm?“ The standard against which the actor’s conduct is measured is commonly known as the “reasonable person” standard. In other words, the question is, “Would a reasonable per- son have acted as did the defendant in similar cir- cumstances?”85 If the jury finds that a reasonable person would not have acted as the defendant did, the defendant will be found negligent. Finally, in some cases liability will be imposed regardless of whether the defendant intended harm or acted reasonably. The best examples of this so—called strict liability come from product li— ability cases. For instance, a manufacturer of pharmaceuticals may be held liable merely on proof that it manufactured defective drugs and that the defect caused injuries. Imposition of strict liability represents a policy judgment that certain entities owe a heightened duty to society, as well as a practical judgment that proof of actual intent or negligence in such cases often would be difficult. It should be clear from this brief discussion that distinguishing between duty on the one hand and its violation on the other is somewhat artifi— cial. Both concepts aim at defining the type of 7 causes foreseeable Vinjllffx. , 7,", a conduct that society wishes to regulate when it (3) Proximate Cause Whether conduct is intentional, negligent, or governed by strict liability rules, it will not lead to liability unless it “proximately” causes injury. The concept of proximate cause is elusive. The traditional method of determining whether one event is the proximate cause of another is to ask whether one could “reasonably foresee” that the former would lead to the latter. The concept has also been defined as “the conduct or thing, which, in the ordinary unbroken sequence of events, without a new factor intervening, produces in— jury, and but for which that injury would not have occurred.”86 Thus, for example, if a driver strikes a child while speeding but the child was shoved into the driver’s path at the last minute by a third party, the driver may not be the proximate cause of the child’s injury. Slovenko calls proximate cause legal cause, a pragmatic view, and not . . . the “first cause” of philosophy or “field theory” of science. . . . As one judge put it, “What we do mean by the word proximate is that because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a se- ries of events beyond a certain point.”87 The concept has also been Characterized as “the near issue, not the remote one,”88 and “the straw that broke the camel’s back.”89 'In short, tort law, like worker’s compensation law, attempts to con— ceptualize causation as a series of events, with the most recent event or events being the only legally relevant one(s). (4) Compensable Damages Not every harm or injury proximately caused by violation of a duty is compensable. “Damages” or “injury” in the tort context means that there has been “an invasion of a legally protected inter- est.”90 In other words, even though the individual may feel harmed, that harm is not compensable unless the law defines it as sufficiently important or worthy of protection to hold the person caus- 12. COMPENSATING MENTAL INJURIES 371 ing the harm liable. For example, as discussed in 'imo're detail belowsome jurisdictions do'not pro- ' vide compensation for emotional distress: Harm may have occurredjbut itiis not compensable bé— 7 cause of a policy decision that broadening the scope of liability to include “bruised feelings” would make the conduct of daily life intolerable. (b) Mental Inju1y It has been claimed that “in every case of personal injury, there will be some accompanying mental damage.”91 The question addressed here is when the law of torts will compensate that damage (variously referred to as “psychic trauma,” “emo— tional distress,” or “emotional harm”). Tradition— ally, tort compensation was denied for mental in— jury unless it resulted from another, independent- ly recognized, tor‘t.92 For example, if an individ- ual was slandered and suffered emotional distress as a result, the harm was compensable because it was a consequence of an independent tort, that of slander. If an individual could not trace a mental injury to the tortious conduct of another, com— pensation was unavailable. Recognition of emofional injury as an indepen— dent tort was slow in coming for a number of rea— sons: a fear of false claims, a concern that quanti— fying and proving emotional injury would be too difficult, a belief that emotional injury was “too removed” from the claimed-source of an injury, and a fear that compensation would “open the floodgates” to litigation.93 Those jurisdictions that did allow recovery for mental injury unassociated with another tort generally insisted that the plain- tiff show physical as well as mental effects of the defendant’s conduct,“ just as a physical predicate was traditionally required in workers’ compensa- tion cases. However, many jurisdictions have departed from this traditional view; according to one com— mentator, the trend “has been to give accelerated, increasing and extensive protection to feelings and emotions and to enlarge and redress repara— tion for psychic injuries.”5 The most concrete il— lustration of this trend is the recognition in the past several decades of the independent torts of intentional infliction of emotional distress and 372 I 111. negligent infliction of emotional distress. While our discussion here is limited to these torts, the elements identified below are likely to be the fo— cus of any tort case where mental injury is al- leged. 7777(1)? if integrand IlflicrtfonEaab’tiofidi Distress; , 7 Recognition thatian indiVidual could engage'in‘” tortious conduct by attempting to cause emotion- al harm to another first came in 194-8, in the Re- statement of Torts. Today, at least 4-3 jurisdiction recognize the tort.% As described by one review of state law, the tort “provides that liability may be imposed Where a wrongdoer’s extreme and outrageous conduct, intended to inflict severe emotional distress in another, in fact proximately causes that result.”7 To prove a case, the plaintiff must show the following elements: (1) the defen— dant acted intentionally or recklessly, (2) the con- duct was “extreme and outrageous ,” (3) the con- duct caused the plaintiff ’s emotional distress, and (4) the emotional distress was severe?8 Note that the first element of the tort is met not only when an intention to produce emotional distress exists but also when the defendant is reckless with respect to that result.99 Reckless- ness does not require a conscious purpose to pro- duce harm but instead refers to a deliberate disre- gard of a high probability that harm will occur; thus, even if the harm was not intended, if the de— fendant foresaw it was likely, liability can at— tach.100 If the defendant knows that the plaintiff is parficularly susceptible to emotional distress, the requisite intent or recklessness may be in— ferred.101 The requirement of “outrageousness” recog— nizes that not all intentional or reckless conduct resulting in distress is tortious. This element of the tort is sometimes described as an assessment of whether the defendant’s conduct would greatly offend the community’s sense of decency.102 A wide variety of conduct has been labeled “ex- treme and outrageous” in past cases.103 For exam- ple, although the courts have been reluctant to impose liability for harm caused by an individual’s words—in part because of concern for the con— stitutional right of free slaeech1°4——numerous ex- ceptions to this rule have been recognized.105 Thus, a majority of jurisdictions hold racial or re— NONCRIMINAL ADJUCATION §12.03 ligious epithets actionable if they result in emo- tional harm.106 In addition, innkeepers, common carriers, and others in a business relationship with an individual may be subjected to liability for in— sulting or abusive language.107 The third requirement is the familiar one that the conduct. must 7 have ,been. the, f‘proximate cause”’of’ the injury, "a re’quirement'discussed ' more detail below [see § 12704:]. Finally, the”? ~ fourth requirement for the tort bars compensa- tion unless the injury is severe. In attempting to provide content to this concept, one authority suggests that the distress must be extremely se— vere: Complete emotional tranquility is seldom at- tainable in this world, and some degree of tran- sient and trivial emotional distress is a part of the price of living among people. The law inter— venes only where the distress inflicted is so se- vere that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in deter— mining its severity. 108 Compensation may result if the plaintiff suffers fright, grief, humiliation or shaIne, embarrass— ment, anger, chagrin, worry, or disappoint- ment,109 but only if it is demonstrated by substan- tial evidence and is significant in nature. (2) Negligent Infliction (fl/Emotional Distress The courts have been even more reluctant to im- pose liability when mental injury was caused by the simple negligence of another party. However, nearly one—third of jurisdictions today recognize a tort of negligent infliction of mental or emotional distress. 1 10 The elements of this tort are the tradi- tional ones necessary to establish an action for negligence: that is, a duty on the part of the de— fendant to protect the plaintiff from injury, viola- tion of which proximately causes compensable in- jury} 11 The tort arises most frequently in two types of situations: bystander recovery cases and product liability cases. As an illustration of the former type of case, a mother who sees her child struck and killed by a negligently driven automobile and suffers distress as a result may be able to recover under the tort of negligent infliction of emotional §12,o4 12. distress, even though she was a bystander to the 7 central action. 'In most states,’th'e plaintiff/by— bystander must be within the “zone of danger” created by the defendant.1 12 In a few states, how- ever, the plaintiff need not even see the injury (e.g., as when the mother comes upon the injured child minutes after the accident),1 I 3 and in others the bystander need not be related.114 In every state the distress must be severe, and generally must be manifested by objective symptomatology (e.g., vomiting, loss of sleep, or nervousness).HS Consider the relevance of these various approach— es to Case Study 12.1. Courts have also shown increased willingness to compensate individuals who suffer emotional disu‘ess as a result of manufacturers’ negligence. For example, a baby food manufacturer was liable to a mother for emotional distress suffered as a result of seeing her son gag and choke on foreign material contained in his food.116 In another case,117 an auto manufacturer was liable for the emotional distress a couple felt watching their children thrown out of the defective rear door of their van after it was struck by another car.118 (c) The Predisposed PIGintiff With respect to plaintiffs who are predisposed to mental injury, the rule applied in torts cases is the same as that found in workers’ compensation cas— es. A plaintiff ’s preexisting condition or suscepti— bility does not per se bar compensation. Howev— er, if the emotional distress would have resulted Without the defendant’s intervening act, the de— fendant should prevail.119 The subtle nature of this inquiry is discussed next. 12.04. Causation in Mental Injury Cases: A’Paradigm Clash? Although the terminology may be different in workers’ compensation cases, both workers’ compensation and tort law refuse to hold a defen— dant liable unless the defendant “proximately caused” the victim’s injury. As noted earler, for practical reasons, the concept of proximate cause COMPENSATING MENTAL INJURIES 373 f—___________———— ' broke therrcamel’s back.” 7 Events further backrin stander and therrvicrtim must berrelaitediand the V ' has come to mean “recent” cause—”the straw that the causal'chain’are’ considered irrelevant: ’ ' Several" commentators have recognized the d?" vergence between this legal definition of causa— , tion and the. behavioral sciences’ View of the con— l cept. As Blinder states: Speaking medically, the true Cause of the . . . ' illness lies within [the claimant’s] personality structure—who he was at the time of the injury rather than what happened to him. This deviant personality was not less immediate—no less proximate as it were—than the physical injury (leading to the injury).120 Sheeley puts the matter slightly differently: The syllogism, “The patient had no pain and he was working before the industrial incident; he now has pain and is not working: ergo, the in— dustrial incident produced the psychiatric disor— der or at least aggravated it,” may be false. The danger of such conceptual error is magnified by the patient’s characteristically denying evidence of a pre-existing disorder and by his exaggerat— ing current symptoms that he ascribes to the in- dustrial incident and that may themselves be suggested by the very psychiatric procedure it- self. 121 Similarly, Marcus asserts that the issue of causa— tion is “exceedingly complex” but is in large part a “Chicken or the egg” question that “cannot be de— termined with any degree of ‘reasonable medical probability.”122 In short, the concept of proxi- mate cause may not make sense in a deterministic paradigm [see § 1.03(a)]. For these reasons, in addressing the causation issue (in, for instance, the situation presented by Case Study 12.1), the clinician should merely in— dicate whether the legally relevant incident (the employment injury or the negligent act by the de— fendant) appears to have played a role in the claimant’s current mental injury; other contribut- ing factors should also be identified. Pronounce— ments to the effect that the work—related event or the tort “caused” the claimants’ mental state, or is the sole, “predominant” or primary cause of it, should generally be avoided, as should attempts to quantify the degree to which an incident caused the injury, statutory provisions notwithstanding. 374 III. NONCRIMINAL ADJUCATION‘ §12.05 This approach best reflects the clinical View of causation and the extent of clinical knowledge. It has another significant benefit as well. Per— haps because of the conceptual difficulty sur— rounding causation, in practice resolution of this 7 Vissiuerhas becomejprirnarilyrthe function of the subjective valueijudgments of the examining psy- N W 7 i~r—<e:hiatrrist.”1 23 Aanorecircurnspect,,less,c0;1§lllsory opinion by the Clinician should deter any tenden- cy on the part of the legal decisionrnaker to abdi- cate responsibility for analyzing the causation is- sue and applying the relevant legal construct. 12.05. Clinical Evaluation of Mental Injury The evaluation of mental injury is similar in workers’ compensation and tort cases. Each type of evaluation requires an understanding of the context of the evaluation, extensive information gathering, and a determination of whether mental injury has in fact occurred. If mental injury is found, the evaluation also requires assessing whether the injury was work—related workers’ compensation cases) or a result of action by the defendant (in a tort case); the causation investiga- tion will inevitably involve thexcorollary question of whether there are any preexisting disorders. Finally, assuming that there is an injury and that it is connected with the defendant, the impact of the mental injury on the individual’s ability to function at the time of the evaluation and in the foreseeable future must be examined. These facets of the evaluation are discussed below. 7 (a) Context of Evaluation The first issue in any evaluation is whether the clinician is qualified to perform it [see § 4.05 (a)]. In workers’ compensation cases, many states re- quire that physicians be involved; thus, the role of psychologists and other mental health profession— als in such cases may vary depending on the state.124 Although such restrictions generally do not apply in tort suits, one commentator has sug— gested that examinations of mental injury be con— ducted. jointly by a psychiatrist and a psycholo— gist, regardless of the relevant law on qualifica- tions, because each brings skills that will be par— ticularly useful in conducting the comprehensive inquiry that such evaluations require.125 As we make clear elsewhere [see § 1.05], as a general ,rfilé weifa'vn-competencyibaséd.rather than de- ' ' " ' gree-based criteria for identifying forensic exam- . iners. In the context of mental injury exams, however, we concur that in many mental injury cases an examination drawing on both psychiatric and psychological skills is preferred. For exam— ple, as will become clear later, both neurological and psychological testing can be an important component of a mental injury examination. Assuming one has the educational and experi— ential qualifications necessary, other ethical con- cerns should be considered. Davidson has ob- served that a psychiatrist who “does much med— ical—legal work soon acquires a personal philoso— phy with respect to psychoneuroses following injury.” He asserts that many clinicians believe “ei- ther, (a) that most of these patients are motivated primarily by greed; or (b) that they have a gen— uine illness in which the money—motivation factor is of minor importance.”126 Before conducting an evaluation, a clinician should attempt to assess whether either of these descriptions fits his or her views and the effect they may have on the evalua— tion; if the effect would be substantial, the clini— cian should Withdraw. It should also be recognized that a clinician’s posture relative to a case may affect the attitude of the claimant. Davidson has observed: In a sense, the opposing doctors are examining different patients. The plaintiff—selected physi- cian starts off with a good rapport. He is the helping doctor. The claimant trusts him—but sees the defense physician as the enemy. The first physician gets the picture of a sincere, trusting, and friendly soul. The defense examin- er sees a surly and suspicious one. These differ— ences obviously affect the examination tech- nique, as well as the credibility of the history and subjective symptoms. 127 A related point is that participation in the legal process may exacerbate certain personal traits of the claimant. Bromberg notes that “emotional tensions stimulated by the legal process tend to §12.05 12~ support a suspicion of exaggeration, malingering, ' f or excess interest remarkiatiépj’lfi:Théfiliriir , ,, ncianyvithaye to sort out these myriad “causative” factors in forming a picture of the individual—a task discussed more fully below. (b) Scope ovaaIuation An evaluation in a mental injury case has been likened to an inquiry into mental status at the time of the offense,129 another retrospective in- quiry fraught with difficulty [see § 8.06]. Yet the mental injury evaluation in some respects is even more difficult: Not only is a retrospective con— struction of the claimant’s mental functioning necessary (to determine the extent, if any, to which past events “caused” the injury), but a prospective inquiry is also required. In workers’ compensation cases, this latter inquiry involves assessing the effect the injury will have on the claimant’s wage-earning capacity. In tort law, it is the effect on the claimant's continued ability to function as the “person he or she was” prior to the defendant’s tortious conduct. Because the issues are so broad, these evalua- tions require the clinician to come to know and to explain the claimant’s life much more thoroughly than do most of the evaluations discussed else- where in this book. A complete history must be gathered, with emphasis not only on the events surrounding the alleged injury but also on the pe— riod before, extending into the past as far as the clinician deems relevant in understanding why the injury may have occurred. Since the issue of the claimant’s predisposition to mental injury or possible preexistence of the mental injury is cer— tain to be raised, particular attention must be paid to the gathering of clinical and medical histo— ries, evidence of behavioral or emotional disorder that did not reach the stage of formal clinical in- terventions, and any other social history that might shed light on the claimant’s condition. If the evaluation is being performed for a workers’ Compensation case, the clinician must also obtain in as much detail as possible a description of the claimant’s employment, place of work, conditions of employment, and all other work-related infor- mation. COMPENSATING MENTAL INJURIES 375 In addition to clinical interviews, other tech— ,, 9131965 .fifiiyfibé aseel;,,13sych¢1§gica1’"t&ting;'par—' ' ’ ticularly the personality inventories, may be more W relevant here than in other forensic areas, espe- cially if their results can be compared to tests tak- en before the legally relevant event [see § 12.05 (d)].130 It will also be important to investi— gate the extent of physical injury, if any, using neurological testing if necessary. The “total per— son” of the claimant will be considered when the claim for damages is adjudicated, and a clinical picture given without reference to other possible explanations for and consequences of the claimed injury will not only be less useful than it might otherwise be to the legal system but may expose the clinician to personal embarrassment. As one commentator has stated, for example, a clinician who testifies only to the emotional effects of trau- ma, while failing to address its effects upon physi- cal functioning, “is‘ asking to have his or her testi— mony impeached.”1 31 Given the broad reach of a mental injury eval— uation, some attempt to organize the inquiry is essential. A number of structured evaluation for— mats concerning mental injury exist, the most- prominent of which is the American Medical As- sociation’s Guides to the Evaluation if Permanent Im— pairment (hereafter AMA Guides).132 According to a 1990 survey, 36 states require by statute or by administrative policy that workers’ compensation examiners use these guidelines.133 Other states, while not adopting the AMA Guides, have en— dorsed similar criteria.134 Although the AMA guidelines are meant for use in workers’ compen- sation cases, they help provide a structure for any examination of mental injury, including one trig— gered by a tort lawsuit. The Guides are referred to throughout the following discussion. (c) Ascertaining Mental Injusz The law requires some objective indicia of mental injury to make out a compensable claim. The touchstone for this inquiry generally is the Diag— nostic and Statistical Manual (yr Mental Disorders (DSM). Some states (e. g., California) require the use of the DSM in determining whether a mental disorder exists. However, appellate courts in Cal- 376 III. NONCRIMINAL ADJUCATION ‘ §12.05 ifornia have also reversed compensation awards that are based primarily on conclusory labels rather than on more detailed data.135 It is impor- tant to remember that diagnosis and mental in- jury are not necessarily synonymous. As one ob— serverinote’s,raidiagnosis indicates that a mental w disorder exists but does not, always clarifythierde- 7 136 7faigree-ofidys;function.vln,eyaluating mental in- , juries, establishing the former is useful, but it is the latter that is most critical. The AMA Guides make the same point.137 Modeled explicitly on the Social Security Administration rules for de- termining disability [see § 13.04(c)], these guide- lines emphasize two issues: (1) Does the individ— ual suffer from an impairment (the mental in— jury)? and (2) What is the impact of that impair— ment upon the areas of functioning relevant in the particular case:2138 Nonetheless, there are several typical “condi— tions” that die clinician might rule in or out in de— termining whether injury exists and what its sig- nificance may be. These are explored in some de- tail below. (1) Traumatic Neurosis/Posttraumatic Stress The constellation of mental effects most fre- quently reported in workers’ compensation or emotional distress cases is usually termed “trau- matic neurosis,” although it has been called by a variety of other names as well.139 The concept posits a reaction to some “trauma,” but beyond this no clear definition seems to exist. Keiser has admitted, “The traumatic neurosis can take many forms, including all of the known psychiatric ill— nesses.””'O Perhaps partly because of the lack of definitional clarity, he states, the “concept of a nervous reaction of some kind after trauma re— mains suspect in many quarters?”1 The “trauma”—based diagnosis most likely to be involved in mental injury cases is posttraumatic stress disorder (PTSD). PTSD is almost “made to order” for personal injury and worker compensa- tion plaintiffs because the diagnostic criteria ex- plicitly include an etiological stressorMZ; PTSD is defined in DSM-IV as the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physi- cal integrity; or witnessing an event that in- volves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a fami— ' ly member or other closeassociated‘ii * 7 Previous editiionsmof the DSM required that the traumatic event be one that is “. . . generally out— side the realm of human experience?“M With the removal of this limiting criterion in DSM-IV, it is reasonable to expect that the prevalence of this diagnosis, and its use in litigation, will increase. Still, the requirement that the event be one that involves death, serious injury, or a threat to physical integrity, or the witnessing of same, does limit the applicability of this diagnosis in mental injury cases. While a relationship between stress and psychopathology has been documented in studies of released prisoners of war,”'5 concentra- tion camp survivors,146 victims of stressful crimes,147 and a wide range of natural and civil disasters,148 research focusing on more mundane stressors is less impressive. Thus, the PTSD diag- nosis may be difficult to establish in some work- ers’ compensation cases when the claimed stres— sor is, say, a tedious job that graduallyaffects the individual over time. 149 As discussed in detail in § 8.04(e) (dealing with PTSD in connection with evaluations of mental state at time of offense), there are a num- ber of other reasons‘to be cautious about con- cluding that a’person has incurred sustained or permanent emotional injury after exposure to stressful situations. First, many of the studies con— cerning PTSD have been anecdotal case reports of individuals or groups experiencing traumalsog rarely have investigators concerned themselves with the presence of preexisting symptoms or the V need for a group of control subjects in document— ing the psychological responses that characterize the disorder‘ Second, research indicates that when evaluations are made retrospectively (which is always the case in workers’ comp and emotional injury cases), estimates of pathology are inflated (compared to prospective studies or studies using nondisaster control groups).151 Third, despite its presence in DSM-IV, controver- sy continues regarding the validity of the PTSD §12.os 12- COMPENSATING MENTAL INJURIES 377 _’/_____—___—_————————————— diagnosis; persons who meet PTSD criteria often ' ’ meet criteria for other diagnoses as wellfsz and. 7 neurosis.” Despite, its amorphous nature, it is re— ported ithatr-‘imorerlavvyers and physicians attend, r r 'thehi’gh’correlationeof PTSD general meafim sures of psychopathology (I = .50—.60) suggest that general psychological stress, not a tight set of symptoms, define the response to traumatic events. ‘53 Finally, many studies of disaster victims reveal that few or no symptoms remain after a few months time has Passed. 154 As PTSD has increased in popularity, special instruments for diagnosing it have been devel- oped. 155 Clinicians may want to familiarize them- selves vvith these measures and consider their use in diagnostic evaluations. Alternatively, Wilkin— son has developed a checklist, a generalized ver— sion of which is presented here, that may serve as a convenient inventory for the clinician conduct- ing an examination regarding stress-related dis- turbance.156 Repeated recollections of the incident Sadness Fatigue pression I Sleep disturbance Loss of appetite Loss of enthusiasm Ease of startle Difficulty concentrating Guilt Avoidance of situations that cause recollection of the incident Reminders of the incident leading to worse feelings Inability to feel deeply about anything Anger Loss of interest (in general activities) Feelings of detachment Memory difficulties Psychosomatic complaints Diminished sexual interest All these symptoms need not be present; the existence of one or more may be compensable if the requisite “causation” element is met and if wage—earning capacity is affected (workers’ com— pensation) or the jury finds that damages should be awarded (torts). The legal system seems both accustomed to and curious about the “traumatic Recurrent feelings, usually anxiety and de— ' I programsionitheilegaliaspectsiofitraumatieneurour—vv sis than on the subject of sex.”157 (2) Other Conditions Although “traumatic neurosis” is the most com— monly observed mental injury, many other “disor— ders” have led to compensation. One example of such a disorder is “post—physical-injury trau— ma,”lss which involves a change in the injured person’s “body image” or self-perception in the af— termath of physical injury.159 This phenomenon is particularly prevalent (at least in the eyes of plain- tiffs’ lawyers) when the person has suffered dis- figurement or trauma to the head and spinal cord.160 Other compensable conditions the clinician may encounter include grief or sorrow.161 These conditions will of course be particularly likely in cases involving death of a loved one or in cases as—' serting intentional or negligent infliction of emo- tional distress, where the survivors may claim damages for “sorrow, mental anguish and solace which may include society, companionship, com— fort, guidance, kindly offices, and advice of the decedent.”162 In addition, the claimant may pre— sent evidence of the symptoms and sequelae of concussion and postconcussion syndrome,163 var- ious neurotic reactions to spinal injuries,164 and (on occasion) psychosis following trauma,165 as well as posttraumatic epilepsy166 and deficits in intellectual functioning. 167 Finally, given the broad nature of the com- pensability of mental injury and the fact that the constellation of symptoms for which the claimant seeks relief normally need not fit into formal di— agnostic nomenclature, the clinician may be asked -to evaluate the existence or impact of a host of vaguely defined “symptoms,” such as irritability and headache. These may not readily lend them— selves to diagnostic labels, but compensation may nonetheless be sought. (3) Malingering Most if not all of the previously described condi- tions can be “faked” or exaggerated. It is nearly certain that a clinician performing a mental injury ' awkwa- ', neammemmm vii-‘6‘?” maz- 378 111. evaluation will be asked whether the claimant is malingering. Bromberg defines malingering as “an assumed state which feigns illness but may be built on an historical event preceding it, i.e., an actual injury.”168 In his View, it is synonymous with simulation, which he , definesflas “an, assumed state of 'pain’and‘disability, an~imitation~of illness 7 witho’ut’anyfetiologicalrorvorganie~basis .”169 Ihe, fink/hichcontains,1,02,items inquiringiabout change clinician may also confront exaggeration, which is defined as a"‘magnification of pain and disability”; overevaluation, an “individual reaction to pain which may appear feigned but is not”; functional overlay, an “emotional superimposition on the original symptoms of an injury or illness”; and hysteria, “a physical representation of an emotional conflict.n1 70 None of these latter reactions is automatically noncompensable. However, the label that is ulti- mately attached to the individual (i.e., simulator vs. exaggerator vs. credible victim) will have an impact on whether an award is made and, if so, its amount. For this reason, the clinician should seek to describe the etiology of the alleged injury, backing up each inference with behavioral obser- vations, and let the factfinder decide whether it merits compensation. Some techniques for de— tecting malingering have been discussed else— where in this book [see § 3.07]. In this specific context, probably the best single device is corrob- oration through third—party information of the symptoms reported by the plaintiff. (d) Assessing the Relationship between Injuly and Event Of course, the mere fact of mental injury will not lead to liability. The defendant/ workplace must have proximately caused the injury. The concep— tual problems attending this issue have been dis— cussed in § 12.04». Here we attempt to provide some techniques that will help in assessing and re~ porting this difficult aspect of mental injury cases. To begin with, the clinician should be familiar with the literature on the relationship between particular life events (e.g., an accident) and both precedent and subsequent psychological adjust— ment. Some studies have suggested that psycho— logical maladjustment can lead to accidents.171 NONCRIMINAL ADJUCATION , and/ or impact of lifefichanges. The most comp §12.05 Numerous other studies have demonstrated a positive relationship between life change other. than accidents and later psychiatric illness.172 In addition, several structured questionnaires have been developed to help assess the frequency 1‘6- .hensive questionnaire is the'Li'fé’Evehtg’sealefl?‘ in 11 different areas: School, Work, Love and Marriage, Having Children, Family, Residence,- Crime and Legal Matters, Finances, Social Activi- ties, Health, and Miscellaneousm' A life change questionnaire may be useful in discovering events or changes that may have contributed to psycho— logical distress or decompensation in the client (e. g, loss of a spouse, change in job performance ratings, change in attendance at church, and social activities). Typically, the clinician specifies a par- ticular time frame (e. g. , six weeks or six months) prior to the incident and has the individual (as well as, ideally, a close friend or family member) complete the survey regarding changes that oc- curred during that preincident period. In this manner, the clinician can pinpoint areas of further inquiry and try to establish some “baseline” data regarding the client’s prior condition against which to compare the posttrauma presentation [see, e.g., Cates report, § 19.08]. The creative examiner may also make use of other measures of preincident adjustment when available. Pre— and postincident psychological testing could be particularly useful, as might be other relevant records from medical, military, and education sources. The more objectively and systematically the clinician can document change before and after the legally relevant incident, the more complete and compelling will be the clini- cal formulation regarding the relative contribu- tions of various factors to the client’s distress. Once these data have been accumulated, the clinician may find useful the following analytical structure proposed by Ebaugh and Benjamin, de- signed to help sort out alternative conclusions on causation: 1. The trauma (or event or accident) was the sole cause of the psychoneurosis (or mental injury). This would be the case when there were neither manifest or latent signs of mental disor- der before the trauma; when the mental injury, §12‘.os 12. COMPENSATING MENTAL INJURIES 379 in the clinician’s best opinion, would not have occurred now.or later, shadithere been no; trau—r "'ma. These criterriarrcanrbe.metonly inhead in-. . irainjupyicases ,_and,no,t,i1:1 many Of them. fl 7 2. The trauma was a major precipitating factor. For example, this would be the case in head injuries where the emotional disorder was present in latent or potential form, but where it is reasonable to suppose that, but for the acci- dent, the symptoms would not have occurred at this time. 3. The trauma was an aggravating factor. In these cases, some emotional disorder was clini— cally manifest prior to the trauma, but the cause of the condition was materially affected by the injury. 4-. The trauma was a minor factor. In these cases, the emotional disorder was well-devel- oped before the trauma, but the psychologic or mechanical effects of the claimed precipitating event contributed somewhat to the intensity of the present symptoms. 5. The trauma is unrelated to the emotional disorder.175 Another commentator, who served as the presid— ing judge for the Los Angeles Workers’ Compen- sation Appeals Board, has opined that there are three principal causation issues in workers7 com— pensation cases: (1) whether the industrial stress contributed substantially to the mental injury or whether other, non—work—related events were the precipitating factors; (2) whether the mental dis— order is the type for which the particular indus— trial stress could be the precipitating event; and (3) whether there was a preexisting disability. 176 Whatever analytical structure the clinician adopts on the issue of causation, it is important to remember, as noted in 12.04, that the factfinder decides where, if anywhere, along the spectrum of causation “proximate cause” is found. The clini- cian's job is to report the data and distinguish be— tween speculation and behavioral observation. As Ebaugh and Benjamin point out, the conclusion that a given incident is the sole or primary cause of emotional injury should be rare. (6) Ascertaining Effects ofMental Injury The core of the inquiry in a mental injury case is the functional impact of the injury. In workers’ - r creasinglyr structured by. statute. or state policy," the AMA”’Guide§ or" alternative‘sources provide " California criteria, for instance, Enslow suggests ' tion (the ability to comprehend and follow in— compensation cases, where the examination is in— detai’l’e’d guideline’s’on thisissue. The AMA Guides" adopt the format utilized by the Social Security Administration in disability determinations,177 which focuses on activities of daily living; social functioning; concentration, persistence, and pace; and ability to adapt to stressful circum— stances in work or work—like settings [for further discussion of these capacities, see § 13.04-(a) on Social Security determinations]. A slightly differ- ent format is found in the California workers’ compensation rules, which require that the exam— iner assess the impact of mental injury on eight areas of functioning: (I) the ability to compre- hend and follow instructions; (2) the ability to perform simple and repetitive tasks, including the ability to manage concrete activities and to make decisions based on simple sensory data; (3) the ability to maintain work pace appropriate to workload, including the ability to perform activi— ties on schedule, to be punctual, and to have reg- ular attendance and to complete a regular work- week; (4-) the ability to perform more complex and varied tasks (e.g., to analyze and synthesize material); (5) the ability to relate to other people beyond giving and receiving instructions (e.g., the ability of the examinee to interact with coworkers and peers); (6) the ability to influence people effectively and consistently; (7) the ability to make generalizations and decisions without immediate supervision (i.e., higher-order reason— ing); and (8) the ability to accept and carry out responsibility for direction, control, and planning (i.e. , skills relevant to supervision if the examinee ) I78 is in a supervisory position The techniques used in evaluating these func— tional capacities will vary. In connection with the that cognitive psychological testing (e. g., the WAIS) will be useful in evaluating the first func— structions) whereas a psychiatric assessment may be more helpful than cognitive testing in evaluat- ing factors five through eight (the more complex functional skills of relating to people, etc.).179 In workers’ compensation cases, the examiner will also usually be asked to rate the degree of im— 380 111. NONCRIMINAL ADJUCATION §12.05 / pairment in each function. In some jurisdictions, the examiner may be asked to fix a percentage to the amount of deterioration (e.g., “the ability to comprehend has been impaired 50 percent by the mental injury”). In those jurisdictions following the AMA..Guides,,,this typeflorf conclusion is ref-r 1 ' quired only in cases involving physical injury, “’iiivvh’ere'a’sicases—involvingimentalwand~behavioralv disorders involve rating the degree of impairment from class I (no impairment) through class 5 (ex- treme impairment). Regardless of the system used, an assessment of degree of impairment is necessarily arbitrary. Earlier versions of the AMA Guides seemed to deny this fact, claiming that “[i]f the protocols and tables have been followed, the clinical findings may be compared directly to the criteria and related as a percentage of impairment with confidence in the validity and acceptability of the determination."180 Fortunately, the fourth edition of Guides is much more circumspect in this regard, stating that “[i]t should be understood that the Guides does not and cannot provide an— swers about every type and degree of impair- I mentinsl and that “an impairment percentage is an informed estimate.”182 In tort law, the examination will generally not be as structured, and the clinician may consider issues of broader impact, as all injury is potential— ly compensable (assuming that the other substan— tive criteria for tort liability are met). However, the clinician must still focus on ways in which the individual is “diminished” from the person he or she was prior to the trauma or accident. For ex— ample, the mere presence of increased irritability, depression, or constant headache will probably be insufficient to convince a jury that such prob— lems substantially alter the individual’s life from what it had been previously. Again, the AMA Guides, though focused on work-related injury, provide a point of reference for the examiner in tort cases because they stress linking the injury to the activities in which the claimant normally en— gages. (f) Prognosis The clinician not only must gather information relevant to whether the mental injury is severe at the present time but must attempt to predict its _oLthe,impairment caused by the injury. As the likely impact in the future and whether treatment might alleviate its debilitating effects. In tort cases this information is extremely relevant to the amount of damages the plaintiff will receive, as— suming that liability is found. In workers’ com— W pensation cases, prognosis is important because it will be ,useful in determining thewlikely duration ' ' AMA Guides stress, a key component of this in— quiry is the injured person’s motivation to recov— er and participate in rehabilitation programs. This kind of prognosis is similar to those clini— cians often make in traditional practice. However, one problem area of specific concern in mental injury cases should be noted—the possibility of “secondary gain,” or the unconscious desire for the “fringe benefits” from appearing disabled. As Blinder states: Though not causative (in that secondary gain arises as an issue following injury), such sec— ondary gain factors as financial compensation, the solicitude of others, freedom from responsi— bility and/ or restitution for real or imagined past exploitation may greatly prolong convales— cence and prevent recovery. 1 8 ' Another author concludes that “one of the pecu- liar aspects of ‘treatment’ and ‘compensation’ is that both these supposedly reparative procedures can themselves further complicate the problems they address.”184 The extent of secondary gain behavior in men— tal injury cases is unclear. One author, after re— viewing whether and when workers’ compensa— tion claimants recover sufficiently to return to work, was only able to state that “almost any con— clusion drawn from a group of industrially—in— jured patients is valid for some and invalid for othersmss If behavior related to secondary gain appears to be present, this fact should be commu- nicated to the factfinder, which is ultimately re— sponsible for judging its impact on any award. The evaluator should also be aware that early intervention and attentive case management may curtail secondary—gain behavior.186 The evalua- tor’s report might not only address the types of issues discussed above, but also make recommen- dations as to the timing and type of treatment that would most effectively deal with the claimant’s mental problems. §12'06 12. COMPENSATING MENTAL INJURIES 12.06. N Conclusion: Reports and Testimony”: , 7,7 , 7,7, ,7 Detailed guidelines for writing reports and testi- fying are found in Chapter 18 of this book; other sources also provide helpful hints on these tOpics.187 As a way of summing up the various as- pects of the clinical evaluation of mental injury, however, three general points about communicat— ing with the court system are made here, based in large part of principles found in the AMA Guides. First, the clinician should avoid overreliance on diagnosis. The inquiry in workers’ compensa— tion and tort cases seeks ultimately-to explain Why a particular individual reacted in a particular way to a particular event or series of events. A di- agnostic label may provide an organizing principle for the constellation of symptoms demonstrated by the claimant but does not provide sufficient in— formation as to how the claimant has been affect— ed. If a diagnosis is given, its relative lack of im— portance to the questions posed by the legal sys— tem should be noted explicitly, or implicitly, through a more detailed narrative in which the clinician provides the substantive bases for his or her opinion. ' Second, a complete assessment of mental in- jury requires a longitudinal history of the impair— ment, its treatment, and attempts at rehabilita— tion, including the claimant’s motivation to re- cover. Reports and testimony Inust canvass the period before and after the legally relevant inci— dent, as well as predict the future, relying on Inul— tiple sources of information. It bears repeating in this regard thatthe clinician must be sensitive to the causation issue. He or she should note the presence of any preexisting condition or predis- position and explain why it may or may not be relevant to the claimant’s current condition. The clinician should also make clear that he or she is describing causation from a clinical point of View, and that, from that perspective, multiple causa— tion is the rule rather than the exception. _ Third, consonant with the first two points, conclusory information should be avoided. Be— cause of the amorphous nature of concepts such as mental injury, causation, and degree of impair— ment, clinicians bear a special responsibility to provide descriptive reports and testimony in these cases. On a systemic level, the failure to ex— ercise this responsibility may have had significant , ,cohsequenees."Alihbilghwritténini979+before , some of the aforementioned retrenchment in the 7 workers’ compensation system had taken place— these words from Blinder assessing the legal sys— tem’s treatment of mental injury cases are still worth considering: There is probably never a physical injury with- out some measurable psychic trauma or func- tional overlay. The past 30 years, and particular- ly the last decade, however, have seen the ex- ploitation of this truism in workers’ compensa- tion and personal injury litigation coupled with ever broader interpretations of the concepts of proximate cause, predisposition, work-connec— tion, and secondary gain, resulting in a stagger— ing number of physically fit, mentally compe— tent individuals forever being relieved of re- sponsibility for earning a living—on psychiatric grounds. The medicolegal system as it is presently construed not only drains away funds necessary for- the sustenance of those truly dis— abled but may foster or even increase disability where one otherwise would not have occurred . resulting in intolerable financial burdens for compensation funds, employers and carriers alike, substantially higher costs to the consumer, and ultimately, loss of coverage.188 This View is not universally shared, of course, and expansion of recovery for serious mental in— jury is probably, on the whole, a good thing.139 But to the extent Blinder’s critique is a response to the fact that legal decisionmakers have often accepted, at face value, conclusory statements by mental health professionals about causation and degree of impairment, we agree with it. Both the legal system and mental health professionals have more than occasionally forgotten that the clini— cian should be a disseminator of information, not benefits. Bibliography American Medical Association, Guides to the Evaluation ngermanent Impairment (4th ed. rev. 1993). Marc Antonetti, Labor Law: Workers’ Compensation Statutes and the R2501!er of Emotional Distress Damages in the Absence nghysicu] Injury, 1990 ANNUAL SURVEY OF AMERICAN LAW 671 (1990). Martin Blinder, The Abuse ngsychiatric Disability Deter- minations, 1979 MEDICAL TRIAL TECHNIQUES QUAR— TERLY 84 (1979). i 382 III. NONCRIMINAL ADJUCATION §I2.06 Lawrence Joseph, The Causation Issue in Workers’ Com- MARILYN MINZER, JEROME H. NATES, CLARK D. KIM- pensation Mental Disability Cases: An Analysis, Solu— BALL, DIANAT. AXELROD, 8: RICHARD P. GOLDSTEIN, I tions, and Perspective, 36 VANDERBILT LAW REVIEW 1 DAMAGES IN TORT ACTIONS (1991). ‘ 263 (1983). JEFFREY O’CONNELL 8: R. I—IENDERSON,TORT LAW: No— LARSON’SWORKMEN’S COMPENSATION LAW (rev. ed. by FAULT AND BEYOND (1975). Matthew Bender 1993), Willis Spaulding, A Look at the AMA Guides to the Eval— 1 Eric Marcus; Causation in Psychiatry: Realities and r r nation cf Permanent Impairment: Problems in, Workers’ ‘ V ' 'i'Spe'culatibnsf 1983 'ME’DIC’A’L TRIAL' TECI—INIQUES’ Gompensation'Claims Involving MentaleDisabiliLy; SrBE-r ~ ~ 7 e —Wi iQur/{RTERWAEZZWW gig-y‘fimw—WfiVrirflvv 7~~HAVIORALVSGIEN GEeSEeTHEvLAWiES 671471799093—777vflv ' r ...
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melton_97_ch12 - CHAPTER TWELVE rcoapmang Mental Injuries e...

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