MENTAL STRESS CAUSING MENTAL DISABILITY UNDER WORKERS’ COMPENSATION LAWS: A SHORT HISTORY, THE COMPETING ARGUMENTS, AND A 2021 INVENTORY

The present day is also marked by a seeming parallel trend: at least some state courts are reading their traditional laws in the mental-mental area liberally, so as to award compensation to such traumatized workers.5 Finally, this examination of laws is undertaken in the aftermath of successive Middle East wars, which generated an epidemic of mental illness and suicide among soldiers, a phenomenon which raised awareness about PTSD and which only now is being fully analyzed.6 This article features tables in which the laws of the state and federal programs are identified and specifically referenced by statute and/or important case law. A physical-mental is typified by the worker who sustains a violent trauma to the body and is physically injured, but who is left, in the aftermath, with anxiety and depression.13 A mental-physical, meanwhile, is typified by a worker who develops stress at work (for example, an encounter with a menacing supervisor) and who, in the aftermath, is left with a physical injury (for example, a heart attack).14 These types of injuries are universally held compensable as long as medical causation is established.15 These three categories are crucial to the understanding of how mental injuries are treated by workers' compensation laws. First is the majority rule that, if a workers' compensation statute will not allow, as a matter of law, a claim for mental stress causing mental disability, then presumably a negligence suit against the employer by the worker (typically based on a theory of failure to provide a safe workplace) will be cognizable.17 Second is the majority, if not universal, rule that a worker who has completely imagined his or her workplace stress will possess no cognizable claim18; as the Larson treatise correctly declares, claims based on misperceived stress, though originally recognized by a few courts, "have not fared well. The Report-relevantly-calls for "broad coverage . . . of work-related injuries and diseases," but the mental-mental claims were not on the Commission's radar.23 In any event, the phenomenon, at the time, was treated as a crisis, because of vast potential workers' compensation liability on the part of employers and carriers.24 Donald DeCarlo and Deborah Gruenfeld, writing in 1989, remarked that stress claims were typically twice as expensive as traditional claims, and "once the word gets out [about the compensability of mentalmentals] . . . , the workers compensation and insurance industries could fac