Post-Traumatic Stress Disorder and Other Mental Health Workers' Compensation Claims Arising During COVID-19

As we continue through the COVID-19 pandemic, the psychological effects upon employees, including but not limited to essential workers, are coming to light. While many employers have instituted safeguards to limit possible exposure, employers should also be prepared to deal with the psychological effects that come with COVID-19. The types of mental or psychological conditions that may result from having contracted COVID-19 include post-traumatic stress disorder (PTSD), anxiety, depression and insomnia, among others. This article reviews potential claims for post-traumatic stress disorder and other related mental health workers' compensation claims resulting from COVID-19 in Pennsylvania, Maryland and Washington, DC.

Consider the situations where claims may arise:

1. A nurse experiences stress and anxiety resulting from an increased workload and daily interaction with COVID-19 related fatalities but does not contract the virus.
2. A grocery store clerk is assaulted by a customer after confronting the customer about mask use and later experiences PTSD.
3. An airport employee contracts COVID-19 at work and is subsequently diagnosed with depression after having long-term effects of COVID.
4. A well-known pizza restaurant employee develops PTSD after being berated by customers because they are the only take-out restaurant open due to a COVID spike.

Pennsylvania

It is necessary to note, at the outset, that there are two types of workers’ compensation injuries in Pennsylvania and that COVID-19 could technically fall under either category. The first is an injury arising in the course and scope of employment; the second is an "occupational disease" with an exposure that "the incidence of which is substantially greater in that industry or occupation than in the general population." Occupational diseases are those identified by the PA Workers' Compensation Act, as well as the diseases that occur more often in specific jobs or industries. Exposure to COVID-19, which resulted in the illness, would most likely be considered an injury but could also be an occupational disease depending on the type of work performed.

Under the Pennsylvania Workers’ Compensation Act (the “Act”), employees not only have an avenue to bring claims for physical work-injuries but could also bring claims for psychological or mental injuries as a result of their work.

There are three separate categories regarding psychological and mental injuries under the Act, each carrying its own burden of proof. They include:

• a physical/mental case, involving a mental condition that occurs during or after a physical event,
• a mental/physical injury case, involving a mental condition that manifests itself in a physical way, and
• a mental/mental case involving a purely psychological trauma.

Physical/Mental Standard

A worker who seeks to have a psychological injury recognized as work-related must prove that his or her work-related physical injury caused the mental condition. Importantly, the work-related physical injury does not have to result in a disability to claimant, i.e., caused a wage loss, and the worker only needs to prove that the physical stimulus resulted in a psychological condition.

It is also necessary to note that for this standard to apply, the worker would first need to prove that he or she actually contracted COVID-19 and that same is related to work, or that some physical injury occurred as a result of COVID-19, in general. For example, an individual who does not actually contract COVID-19 but sustains a physical injury would be an employee who is assaulted because a customer refuses to comply with a mask requirement. Assuming that the worker is able to meet this initial threshold, he or she would then be required to prove that the physical injury caused a mental condition. At that point, the worker would need to establish, via unequivocal medical evidence, that they actually have a diagnosable mental condition, and that same is related to them having contracted COVID-19 or having sustained some physical injury.

Mental/Physical Standard

In cases where a physical injury arises from a psychological stimulus such as stress, the worker needs to establish that the work-related psychological stimulus caused the resulting physical injury. Mental/physical injuries have two common elements: (1) a psychological stimulus that causes a physical injury, which continues even after the stimulus is removed; and (2) a disability or loss of earning power, which is caused by the physical condition rather than by the psychological stimulus.

This standard carries a higher burden of proof than the physical/mental case. In the mental/physical case, the worker would be required first to establish that a psychological stimulus exists as a direct result of COVID-19. There are many different psychological circumstances that employees may allege caused them physical harm.

COVID-19 has impacted almost every aspect of life and especially the workplace. Many people are now working from home and trying to juggle their careers while also providing childcare and, in many cases, assuming the role of teachers. People are often working scattered hours without the structure they may be accustomed to. People feel a sense of loss of freedom, separation from friends and family, and at times, hopelessness based on the virus.

The issue for these types of cases likely will not be the requirement to establish a psychological stimulus but rather establishing that the psychological stimulus caused a physical injury. The worker would need to prove via unequivocal medical evidence that they have sustained a physical injury due to the stressors caused by COVID-19. The worker would then need to prove that they are disabled or are sustaining a loss of earning power because of the physical condition.

The types of physical conditions that may result from this type of psychological stimulus may include migraines, gastrointestinal issues, ulcers or heart attacks.

Mental/Mental Standard

The last standard involving psychological cases is the mental/mental standard. The burden is much higher for cases in which a worker is required to establish that a psychological stimulus caused a mental injury.

When a claimant seeks to prove that a single psychological trauma event or stressful working environment resulted in a mental condition, he or she must prove either (a) that actual extraordinary events occurred at work which caused the trauma and that these specific events can be pinpointed in time, or (b) that abnormal working conditions over a longer period of time caused the injury.

The courts have explained that injured workers must prove that the work-related stress must be caused by actual, objective, abnormal working conditions as opposed to subjective perceived or imagined employment events. Depending upon the circumstance, the courts have held that a long-term process of mental or emotional deterioration may be compensable.

Abnormal working conditions typically involve traumatic situations such as employees being robbed at gunpoint, being close to having a serious injury, sexual harassment or environments, or being wrongfully accused of crimes by an employee or supervisor. Workers under this standard would first need to prove that a psychological stimulus existed based on COVID-19 and created an abnormal working condition.

The type of workers that could potentially bring a mental/mental case based on COVID-19 would likely be individuals in the medical field, the retail sector such as gas stations or grocery stores, and individuals in the transportation sector. Examples could include nurses that are overwhelmed due to being inundated with COVID-19 patients, individuals in the medical field that see or deal with a high number of casualties due to COVID-19, grocery store employees and gas station employees that are now considered essential workers and need to work longer shifts with a greater risk of exposure to COVID-19, reporters that are required to report on more deaths or COVID-19 cases, and employees now being required to deal with difficult or abusive customers that refuse to comply with COVID-19 measures.

Although it will be more difficult to prove this mental stimulus as opposed to the scenarios mentioned above, many employees have been dealing with increased workloads, especially for those employees that are now working remotely. Many employees no longer have a set schedule and are instead essentially on call at all hours of the day. The work shift technically never ends, and this can cause severe stress and anxiety. Moreover, employees may also allege that the possibility of job insecurity due to COVID-19 is causing them enough stress to result in mental conditions.

In addition to proving the abnormal working condition, the worker will also be required to prove the connection of the abnormal working condition to the mental condition. In other words, the workers will need to show through unequivocal medical evidence that the abnormal working condition caused PTSD, insomnia, panic disorder, depression or some other mental condition.

Regardless of the type of psychological case the injured worker is alleging, the employee must still report the illness or injury to the employer within 120 days. However, an injured worker may not be aware of an injury or an illness until diagnosed by a physician. In these instances, the injured worker has 120 days after receiving the diagnosis to report it to their employer.

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‍Application to Fact-Patterns

1. Under the first scenario, the mental/mental standard would apply according to Pennsylvania law. As noted above, this scenario does not involve a specific trauma that can be pinpointed, the nurse would have to prove that there are abnormal working conditions over a period of time, which caused her stress and anxiety. Although an argument can be made that nurses typically deal with death and a stressful environment, the argument can also be made that the increased amount of deaths that nurses have been exposed to due to COVID-19 depending on the specific situation, is abnormal. Moreover, many nurses are required to do more than what was typically asked of them prior to COVID-19. As noted above, the courts have held that abnormal working conditions typically involve very traumatic situations like being robbed at gunpoint, being wrongfully accused of crimes or being sexually harassed. The determination of an abnormal working condition is a fact-intensive analysis and is decided on a case-by-case basis. However, depending on the amount of deaths and increased workload, the nurse may have a viable case. If the nurse is able to clear the first hurdle of proving an abnormal working condition, he or she would then have to present unequivocal medical evidence that she has been diagnosed with stress and anxiety and that same are directly related to the increased workload and exposure to COVID-19 fatalities.
2. Under the second scenario, the physical/mental standard would apply under Pennsylvania law. The crucial part of the analysis under this type of case is that the PTSD is actually related to the physical injury and that the PTSD is disabling for the store clerk. It is important to note that the clerk does not have to prove that he or she was disabled in any way from the assault itself. In other words, the clerk need not show that the physical injuries sustained caused any wage loss. Instead, the clerk would have to present unequivocal medical evidence that he or she has been diagnosed with PTSD and that same is a direct result of the assault.
3. The third scenario presents an interesting situation where the employee not only contracts COVID-19, which can be compensable in and of itself, but also later suffers from depression as a result of contracting COVID-19. This scenario would likely require the application of the physical/mental standard again. It should be noted at the outset that assuming the employee is able to prove that he or she contracted COVID-19 as a result of work, the employee would be entitled to workers’ compensation benefits for the treatment of the virus, as well as any wage loss for the period that the claimant was out of work. In addition to the above, the employee would then need to prove via unequivocal medical evidence that he or she is now suffering from depression as a direct result of contracting COVID-19 and the lingering physical effects of same. Again, under this scenario, the employee would not be required to prove that the physical injury of COVID-19 was disabling in any way. Perhaps the employee never missed any time from work while having any physical effects of the virus. However, the employee would be required to prove that the depression is directly related to contracting COVID-19 and that the depression is disabling in nature.
4. Finally, the fourth scenario would likely require the application of the mental/mental standard under PA law. The fourth example is based on a real-life situation in which two employees of a well-known pizza restaurant posted a picture of them being exhausted after selling out a weekend’s worth of food in four hours during the recent Texas storms and power outages. However, a similar scenario could very well occur because of COVID-19. Consider a scenario in which there is a COVID-19 spike in Pennsylvania, and a number of restaurants shut down as a result. A local pizza chain restaurant is the only take-out restaurant still open during the spike, and they receive a barrage of orders for take-out food. There are only two employees working at the location, and due to the incredible demand, these employees are unable to timely fill and deliver all the orders. Customers become impatient and begin calling and berating the employees. Customers also berate the employees when they arrived at customers’ homes to deliver the food. As a result of the situation, an employee develops PTSD. Under Pennsylvania law, the worker would obviously argue that the working shift involving the high stress of making an inordinate amount of food and being berated by customers constitutes abnormal working conditions. If the employee shows that the situation rose to the level of an abnormal working condition, the employee would then have to present unequivocal medical evidence that he or she has been diagnosed with PTSD and that same is directly related to the increased workload and harassment by the customers. Again, it is important to keep in mind that this type of case involves the highest burden on the employee.

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Maryland

Under Maryland Workers’ Compensation Law, workers’ compensation benefits are payable for the disability or death resulting from an accidental personal injury arising out and in the scope of employment. Similar to Pennsylvania, claims may arise through traditional workers’ compensation claims or through occupational disease exposure. An occupational disease under the Maryland Workers’ Compensation Act is an ailment, disorder or illness combined with a disablement caused by the conditions of the employment and which manifest itself over a period of time.

In order for the injury to be accidental, it must be from some unexpected (from the claimant’s perspective) strain, exertion or condition of the employment. Claimant must show thorough medical documentation that he/she has suffered an injury. It is possible to have an accidental occurrence without an injury being suffered.  

An injury must also result from the nature, conditions, obligations or incidents of the employment in order to “arise out of” the employment. “In the course of” employment refers to the time and place of the accident and the circumstances under which it occurs. The issue turns on where the injury occurred within the period of employment at a place where the employee reasonably may be, in the course of his duties and while he is fulfilling those duties or engaged in doing something incident thereto.

“Disablement” is the event of becoming partially or totally incapacitated for performing work. The loss of time from work usually constitutes a disablement. Benefits become payable as of the date of disablement.

In Maryland, PTSD, while not considered an accidental personal injury, may fall under the category of occupational disease. In order for PTSD to be covered and compensable under Maryland statute, the disorder must be caused by the employment, the disorder must result in disablement, and the disorder must manifest as a result of the nature of the employment or be the direct result of exposure to some chemical or biological factor common in that course of employment. The disorder also cannot exist in conjunction with a physical disease.  

The likelihood of a PTSD claim is fact-specific, like many other claims. In a situation where an employee is exposed to scenes that are shocking or horrific, a claim for PTSD may be granted. In contrast, situations arising from perceived harassment may not, as the employee did not sustain an occupational disease of mental disorder arising out of a course of employment.

Application to Fact-Patterns

1. Under the first scenario, an individual working at a nursing home who regularly would witness death, but the volume of individuals passing away due to COVID-19 may be compensable under the Maryland Workers’ Compensation Act, as the individual was normally exposed to the events that potentially caused the PTSD.
2. Under the second scenario, an assault would be compensable under Maryland law because the person was attacked while in the course and scope of their employment. This would be true even if it was a co-worker that attacked them. The PTSD is a direct result of the physical assault and would be compensable under Maryland workers’ compensation law.
3. Under the third scenario, it would be the claimant's burden to demonstrate that the COVID-19 infection was a result of the nature, conditions, obligations or incidents of employment in order for it to be covered. The claimant would also have to prove that the COVID-19 infection occurred while in the course of the employment rather than at home or outside of working hours. If we assume that the infection was in the course and scope and arose out of employment, then the resultant depression would also be compensable. If the infection is not work-related, then neither is the depression.
4. Under the final scenario, it would be very difficult for the employee to prove that this “perceived” harassment was a result of his employment. Additionally, dealing with angry customers is something this individual would have to do on a daily basis. While the number of angry customers may have increased with COVID-19, being yelled at by customers is part of the job, and any perceived increase would not be compensable. Maryland law does not make the bright-line distinction as does Pennsylvania regarding the need to prove any abnormal working conditions, but the totality of the circumstances would need to be reviewed.

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Washington, D.C.

The types of injuries recovered under the Workers’ Compensation Law of the District of Columbia include traumatic “single occurrence injuries or claims.” Injury is defined as an accidental injury or death arising out of or in the course of employment and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accident injury and includes an injury caused by the willful acts of third persons directed against an employee because of the employment. There is no requirement that a specific or unusual incident occur for there to be an injury under the Act. An employee of the District of Columbia enjoys a rebuttable presumption that the claim is compensable if something unexpectedly went wrong within his or her body and that the working conditions could have caused the harm.

Additionally, occupational diseases, including respiratory and repetitive use, are compensable. The same presumptions apply. There is a rebuttal or presumption that the claim is compensable if the working conditions could have caused the harm.

In general, disability casually related to psychological injuries is compensable if the employee establishes that the psychological injury resulted from a specific identifiable source within the obligations or conditions of employment, rather than the employees' perceived conditions of the employment.

Psychological injury cases are compensable regardless of the claimant’s preexisting condition. The test for psychological injury under the District of Columbia Act is subjective rather than objective.

Application to Fact-Patterns

1. ‍‍Based upon the fact that the test for a psychological injury is subjective rather than objective, an individual working in a nursing home who develops PTSD as a result of the increased amount of death that the individual is experiencing would have a compensable claim under District of Columbia law as there is a rebuttal presumption that the employment caused the injury and the test for a psychological injury is objective. Therefore, the claimant’s perception of what is happening at the employment is what is controlling.
2. Under the second scenario, the assault would be compensable under District of Columbia law as the person was attacked while in the course and scope of their employment. This would be true even if it was a co-worker that attacked them. PTSD is a direct result of the physical assault and would be compensable under District of Columbia workers’ compensation law.
3. Under the third scenario, it would be the claimant's burden to demonstrate that the COVID-19 infection was a result of the nature, conditions, obligations or incidents of the employment in order for it to be covered. The claimant would also have to prove that the COVID-19 infection occurred while in the course of the employment rather than at home or outside of working hours. If we assume for a moment that the infection was in the course and scope and arose out of employment, then the resultant depression would also be compensable. If the infection is not work-related then neither is the depression. Also, the employee enjoys the presumption that the infection could have been caused by the job.
4. Under the final scenario, it would be analyzed under the same subjective rather than objective test. If this person truly develops PTSD as a result of the increased berating by customers, it is possible that it would be compensable under District of Columbia law.

Conclusion

Employers are reminded to remain diligent in addressing employee concerns as they arise during the pandemic while remaining mindful of potential workers’ compensation claims. Moreover, employers are encouraged to consult with their workers’ compensation carriers and legal counsel to discuss claims as they arise.