Psychological or mental injury can be difficult cases to prove in Wisconsin workers comp law. Mental claims are specifically included in Wis. Stats. Sec. 102.01(2)(c), however one must look to case law to define mental claims which are categorized as: physical-mental, mental-mental and mental-physical.
Physical-Mental claims are those where a physical injury causes a mental or psychological injury. A physical-mental injury can stem from a traumatic or occupational physical injury and from a nonscheduled or scheduled injury. Except for scheduled physical injuries that cause a mental disorder that only affects a scheduled body part, a scheduled physical claim can turn into a nonscheduled mental claim. See Thomas Domer and Charles Domer, Wisconsin Workers’ Compensation Law, Sec. 10:2, (2015-16 Edition). Mental conditions following physical injury include post-traumatic stress disorder, conversion disorder, psychogenic pain, depression, anxiety and phobia. Expert opinion to establish a mental claim almost certainly have to come from a psychologist or psychiatrist. See Medincoff v. DILHR, 54 Wis. 2d 7, 194 N.W. 2d 670 (1972).
Mental-Mental claims are difficult to establish, the applicant must prove that his or her job produced “extraordinary stress” as compared to similarly situated persons. This leaves the door open to mental-mental claims in any occupation but puts a governor on each individual case. After years of unsuccessful legislative attempts, the common law rule of compensability remains:
“Thus it is the opinion of this court that mental injury nontraumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience. Only if the “fortuitous event unexpected and unforeseen” can be said to be so out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury will liability under ch. 102, Stats., be found.” Sch. Dist. v. Dep’t of Indus., 62 Wis. 2d 370, 377, 215 N.W.2d 373 (1974).
The claimant’s experiences creating the stress are compared to a cohort of similarly situated employees, not just by looking at the claimant’s situation:
“Probst complains that LIRC erred by focusing only on the type of job duties that employees similarly situated face, rather than the nature and magnitude of the stresses and strains which she actually endured. However, the School District No. 1 test does not contemplate consideration of the claimant’s stresses and strains alone. Rather, these must be measured against the “day-to-day emotional strain and tension which all employees must experience.” Id. Only by so doing can the agency determine whether the event is “so out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury.” Id. at 378, 215 N.W.2d at 377. The LIRC interpretation and application of the statute is squarely in keeping with the mandate of School District No. 1 and is, therefore, eminently reasonable. See Nigbor, 120 Wis. 2d at 384, 355 N.W.2d at 537.” Probst v. Labor & Industry Review Com., 153 Wis. 2d 185, 450 N.W.2d 478 (Ct. App. 1989). In Probst, the ALJ found what Mrs. Probst experienced is not uncommon to what others who run small businesses go through.
A mental-physical claim occurs when job stress causes a physical injury. Because the physical injury is more clearly definable, the extraordinary stress test of Sch. Dist. v. Dep’t of Indus., 62 Wis. 2d 370, 377, 215 N.W.2d 373 (1974) is probably not required. See United Parcel Service, Inc. v. Lust, 208 Wis. 2d 306, 560 N.W. 2d 301 (Ct. App. 1997).
McCormick Law Office in Milwaukee, Wisconsin has successfully handled psychological or mental injury in workers compensation cases in Wisconsin.
