PROVING THE STRESS CLAIM. by Gordon Reiselt.

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1 PROVING THE STRESS CLAIM by Gordon Reiselt Stress claims under the Federal Employees Compensation Act are difficult to prove. Claimants who are placed in a position to file such claims are often confused and medicated. They are rightfully hesitant in not wanting to relive their past troublesome work place experiences by having to rehash specific details that have placed them on leave status from their jobs. These claims are also quite different than proving traumatic claims and require more elaborate evidence. And the chief part of a stress claim, the medical evidence, cannot be relied upon as proof until it is firmly established that the stressful reaction did in fact arise from the performance of federal duties. If you have a stress claim pending or you are considering filing one, this information may be helpful, but it is not the answer. Hopefully, though this information will assist you by making you more aware of what you are up against. Perhaps this information will give you the edge and the confidence needed to proceed. If you feel confused after reviewing this, in all likelihood it is time to contact a person who is knowledgeable about the existing state of the law. For an emotional condition to be covered under the federal law, the disability must result from an employee's emotional reaction to his/her regular or specially assigned work duties or to a requirement imposed by the employment. To establish an emotional condition causally related to factors of one s federal employment, it is necessary to submit: (1) factual evidence identifying and supporting employment factors or incidents alleged to have caused or contributed to his condition; (2) rationalized medical evidence establishing that he has an emotional condition or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition is causally related to the identified compensable factor of employment. What kind of factual proof is required that stress did occur? To demonstrate one major difference between the proof necessary for a traumatic claim as opposed to a stress claim, consider this. In a traumatic claim, an injured employee's statement that an injury occurred at a given time and manner is all that it required in most circumstances. In fact, this statement is afforded great probative value and will be sufficient unless the employing agency refutes the statement by strong or persuasive evidence. If the facts and circumstances are consistent with a claimant s statement, (1 of 6)6/22/2004 8:55:24 AM

2 there is absolutely no need for statements from witnesses with respect to a traumatic injury claim. On the other hand, because emotional claims are subjective in nature, statements from an employee that stressful event occurred are considered to be only perceptions. Personal perceptions alone are insufficient to establish that an employment- related emotional condition occurred. In order to turn a personal perception into facts, an employee must submit corroborating or substantiating evidence, which must be specific as to time and circumstance. General allegations of perceived harassment, abuse or stresses arising in employment situations are not sufficient for coverage. If a claimant does not have either witness statements or documentation supporting that the alleged stress occurred, in all likelihood the claim will be denied. To make matters even more difficult, co-employees who have personal knowledge of the circumstances underlying a stress claim are understandably reluctant to come forward to lend a claimant assistance by providing a written statement about the stressful event. The reason is obvious- they have witnessed first hand what the claimant has gone through and they want no part of it. For these reasons, if a co-employee volunteers to give a written statement, obtain it without delay knowing that it may not be available for long. If witness statements cannot be obtained, then any type of other reliable documentation that establishes the claimant s perceptions can be used as substantiation for the allegations. Assuming that sufficient proof is available to demonstrate that the stress did occur, a claimant is better positioned to having the claim accepted. If a claimant does successfully identify and substantiate a factor of employment, OWCP must then determine whether the evidence of record substantiates that factor occurred within the performance of duty. Keep in mind that not every situation that bears some relationship with employment gives raise to coverage. There are occasions when an injury or illness has some connection with the employment but nevertheless does not come within the coverage of workers' compensation law because the injury or illness did not arise in the performance of duty. A threshold has been established which requires making a differentiation between situations arising from the performance of the employee's regular or specially assigned duties from those, which superficially bear a relationship to work. This can be a very fine line of distinction. For example, because an agency must have the ability to direct its work force in an effective manner by enforcing its rules and regulations, any stress resulting from an administrative or personnel action, may have some relationship to one s employment, but does not strictly arise in the performance of duty because any resulting stress is not sufficiently related with one s regularly assigned duties. Thus, stress resulting from the proper administration of a personnel matter is not compensable. However, if there is corroborating proof that an agency has been either acted in error or was abusive in the administration of a personnel action, there is a likelihood that the claim will be accepted, for the reason that the resulting stress is considered to have been caused (2 of 6)6/22/2004 8:55:24 AM

3 by an error or abuse in the administration of the personnel action and not by the administration of any personnel action. Just what type of work place situations gives rise to a compensable claim? As would be expected, in today s highly charged and automated environment, verbal altercations and tense relationships with a supervisor may, if proven, constitute compensable factors of employment. Similarly, verbal disputes or difficult relations between employees, outside of an administrative setting, may also give rise to coverage under the Act. However, a claimant s frustration with regard to not getting a particular job; anxiety with regard to job security; unpredictable work hours; the employing establishment's decision to ignore suggestions for improved efficiency; and the denial of a requested job transfer, all relate to one s desire to work in a particular environment are not compensable. Frustration regarding the denial of a leave buyback request related to an accepted condition involves the administration of a personnel matter and is not compensable absent evidence of error or abuse by the agency. Also deemed to be administrative or personnel matters and therefore not compensable are letters of warning not involving appraisal or dissatisfaction; investigations into or disciplinary actions for engaging in illegal or improper activities. On the other hand, if a supervisor issues a letter of warning following dissatisfaction or doubt as to whether an employee possesses the skills or has the potential necessary to perform the duties of the job in the time allotted, any resulting substantiated stress encountered by the employee would be compensable as the stress arose while the employee was performing the regular day to day assigned duties. The same would be true when a dispute or disagreement with a supervisor arises concerning the manner in which the work duties are performed and an emotional reaction results which is directly traceable to a disciplinary action. If a letter of warning in this type of situation was issued with an emotional reaction resulting, with sufficient proof, it may well constitute a compensable factor of employment. In both instances it is important to understand that the letters of warning were directly traceable to the correct performance of one s duties. Some confrontations with a supervisor involving criticism or other verbal altercations concerning an employee s performance may be compensable, depending on the nature of the criticism and intensity of the altercation. Verbal altercations such as name calling or difficult relationships with supervisors are covered when there is corroborating evidence supporting such allegations and the conduct or language is found to be unusual and not usually encountered in the particular work place. This does not imply, however, that every negative statement uttered in a work place will give rise to coverage. OWCP is required to carefully review the factual circumstances of each case and make an independent determination of whether the evidence establishes a compensable factor of employment. But, where an employee is performing his normal day-to-day duties or specially assigned duties and alleges he/ (3 of 6)6/22/2004 8:55:24 AM

4 she sustained an emotional condition as a result of a dispute or disagreement with the supervisor over the manner in which the duties were performed, and where such emotional condition is directly traceable to some form of disciplinary action which is managerial or administrative in nature, the employee may have an actionable claim. In a postal setting, emotional reactions to route inspections are recognized as an administrative function of the employer, which pertain to the evaluation process and are not covered as are unsatisfactory performance ratings. Although performance ratings are generally related to the employment, these are considered an administrative function of the employer, not a duty of the employee. An allegation that an agency unjustifiably cancelled training on a mail distribution machine again relates to an administrative or personnel matter and is unrelated to the employee's regular or specially assigned work duties. But a claim that a condition was caused by the pressures of trying to meet the production standards of his job is compensable. An emotional condition related to chronic pain and other limitations resulting from an employment injury is covered under the Act. In fact whenever the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributed to claimant's own intentional conduct. An emotional reaction to the processing of an OWCP claim and the resulting actions of OWCP in the development of that claim does not constitute a compensable factor of employment. A change in an employee's duty shift is a factor of employment to be considered in determining whether an injury has been sustained in the performance of duty. But the denial of promotions, or a request for a different job, promotion or transfer are not compensable factors of employment under the Act, as they do not involve appellant's ability to perform his regular or specially assigned work duties, but rather constitute appellant's desire to work in a different position. The same is true for an emotional reaction to being denied sick leave because use of leave is an administrative matter, and therefore outside the scope of appellant's job duties unless there is a showing of either error or abuse on the part of the employing establishment. A claim for stress based upon an employee being required to perform work which exceeded the doctor s physical restrictions is compensable if such activity was substantiated by the record. Development of an emotional condition due to gossip about one s personal affairs initiated by her supervisor is not compensable as not being related to one s duties. As a general rule, union activities are personal in nature, as are the filings and pursuit of EEO claims, all which bear no relation to an employee s day-to-day or specially assigned duties.. However, in the area of EEO claims, if an employee develops an emotional condition brought about by testifying for the benefit of the employer, the resulting condition is compensable. (4 of 6)6/22/2004 8:55:24 AM

5 Emotional conditions caused, in part, by unrealistic work requests, unrealistic time frames, and by not being treated the same as other employees in the unit, are compensable if corroborated as are situations in which an employee is trying to meet/ his/her position requirements. An employee may sustain an emotional "latent disability" which results from a combination of compensable employment incidents occurring years apart. Emotional conditions encountered by loud noise while in the performance of regular or specially assigned duties may constitute a compensable factor of employment. An employee's complaints about the manner in which supervisors perform supervisory duties or the manner in which a supervisor exercise supervisory discretion fall, as a rule, outside the scope of coverage provided by the Act. This principle recognizes that a supervisor must be allowed to perform his or her duties and that in performance of these duties, employees will at times dislike actions taken. Mere disagreement or dislike of a supervisory or management action is not actionable, absent evidence of error or abuse. Not meaning to confuse this already complex issue, an employee's reaction to a letter from the employing establishment proposing removal from a work position due to failure to meet certain performance requirements of that position would constitute frustration over wanting a particular position, which, does not constitute a factor of employment. Each claim is sensitive to the facts involved and just a slight variance of those facts could change would be consider a compensable factor of employment into a noncompensable factor. And a claimant cannot relay upon the medical evidence, which might state that a claimant s condition is work related. The reason for this is that when a treating doctor makes such a statement, it is usually based upon what a claimant has told the doctor. Certainly, if OWCP does not accepted a claimant s word that a stress work event occurred without substantiation, why would they take a doctor s statement, which is based only upon a claimant s word? For this reason, the medical evidence is not reviewed until which time a claimant identifies and proves that a compensable factor of employment is involved. Only then does OWCP review the medical evidence to determine if the compensable factor resulted in a psychological injury. (5 of 6)6/22/2004 8:55:24 AM

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