Processing a stress claim in Oregon and taking a recorded statement? Here are some recommendations.
As an occupational disease, to establish compensability of a mental disorder/stress claim, the Oregon worker must prove that his/her employment conditions are the major contributing cause (greater than 50%) of the alleged disorder. ORS 656.802(2)(a). Further, the worker must also establish that there is a diagnosis of a mental or emotional disorder generally recognized in the medical or psychological community; that the employment conditions producing the mental disorder exist in a real and objective sense; that the employment conditions producing the mental disorder are conditions other than conditions generally inherent to every day working situations or reasonable disciplinary, corrective or job performance evaluations by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles; and there is clear and convincing evidence that the mental disorder arose out of an in the course of employment. ORS 656.802(3)(a); ORS 656.266(1). Mental disorder/stress claims are not compensable unless the worker can establish all of those elements.
While mental disorder/stress claims are less frequent than claims for physiological condition, their complexity requires a specific approach when performing an investigatory recorded statement. Below are recommendations for your recorded statement, based on the worker’s specific burden of proof.
- The employment conditions exist in a real and objective sense; Flush this out. What employment conditions caused/exacerbated the worker’s symptoms? Who witnessed these conditions? Who was involved, who did the worker report it to, and what was the employer’s response? Gather as much of this information as possible, because you can then cross-check/reference it with those witnesses and/or the employer to determine whether those conditions/circumstances did in fact exist in a real and objective sense, as described and relied upon by the worker. For instance, I cannot establish a compensable stress claim because I *believe* a coworker has been writing nasty emails about me, if a coworker has not in fact been writing nasty emails about me. The more details you obtain, the easier it will be to reference with the employer. Conversely, without specific examples, you will have a harder time rebutting that the employment conditions exist in a real and objective sense. The more detail the better, which makes it easier to counter with rebuttal testimony.
- The employment conditions producing the mental disorder are conditions other than conditions generally inherent to every day working situations or reasonable disciplinary, corrective or job performance evaluations by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles; The majority of stress/mental disorder claims hinge upon this prong. So, really flush this out. Ask for descriptions of any/all circumstances that the worker believes caused the stress condition/disorder. Ask for as many tangible and detailed examples as the worker can provide. The best defense to these claims is that, even if the worker can meet his/her burden in all other elements, the conditions which the worker describes are simply inherent to the common workplace.
- There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community; This prong is usually easy for the worker to meet. That notwithstanding, be certain to request and obtain the names of all clinics and providers with which the worker has treated, along with the worker’s contemporaneous and historical mental disorder/stress diagnoses. Determine how long has the worker been treating with that provider, what are the active diagnoses/medication/therapeutic modalities, and ask whether the worker has any history for other similar symptoms, treatment, medication, diagnoses, etc. That will allow you to request/obtain those records, and possibly prior records.
AND
- There is clear and convincing evidence that the mental disorder arose out of and in the course of employment. This is a higher burden of proof than the standard “preponderance of evidence” that our claims are typically subject to. It does not impact your recorded statement, but it will impact how the ALJ/Board/Court analyzes the claim, if denied.
If you have any questions, concerns, or desire to discuss your claim for mental disorder/stress, and/or any other Oregon workers’ compensation issues, please contact me at or 503-595-6109.
Posted by: Andrew Evenson
