By Mark L. Zientz

Mental-Mental (M&M) describes two things; the way an injury occurs, and the type of injury produced. The way this injury happens can also be characterized as "non-physical." The same can be said of the type of injury, until now.

Injuries have traditionally been the subject of lawsuits and claims of various kinds including Tort and Workers’ Compensation. The laws of the 50 states differ in many respects regarding M&M situations. Florida, for example, is what is known as an "impact" state. For a Mental injury to be actionable, there must be an impact of a physical nature to which it can be attributed. The same is true fo purely M&M injuries which arise out of and occurs within the course and scope of employment. Hence, M&M injuries are not recognized in Florida as a basis for civil recovery from a wrongdoer, with one insignificant exception discussed herein. According to Professor Larson, the Dean of Workers’ Compensation , the majority of the states are more enlightened in their approach to M&M situations. A. Larson, The Law of Workers' Compensation, sec. 42.20 (1996).

The Florida courts have tried to lessen the inequities brought about by the impact rule by "bootstrapping."  In one case, the Plaintiff was mis-diagnosed with the virus that causes AIDS.  He was put on some very strong medication which cause physical symptoms.  The Supreme Court decided that the effects of the medication were enough of a physical injury to allow the claim for mental anguish to attach. R.J. and P.J., v. Humana of Florida 652 So 2nd 360 (Fla. 1995) (noting that purely emotional injuries are actionable if the conduct causing the mental disease is intentional and outrageous). Of course, public policy would prevent a prospective defendant from procuring insurance to cover such conduct.

In the Workers' Compensation arena, the law went in the opposite direction. While it used to be enough that if a minor physical injury occurred, even a touching, the mental result would be compensible.  That is no longer true., City of Holmes Beach v. Grace, 598 So. 2nd 71 (Fla.1992). The physical injury now must be significant and be the cause of the mental problem which results.  So the bus driver who through no fault of his own hits a car head on, and who watched through the big window the bloody painful deaths of a family, cannot recover for his Post Traumatic Stress Disorder if her has a minor physical injury which in no way contributes to the totally disabling mental condition.

But there is a beacon of hope for the victim, who, through the negligence of another is terrorized into becoming a PTSD vegetable but who suffers no visible physical injury.  Life threatening mental trauma does cause a scientifically identifiable and provable injury to the brain.  A portion of the brain called the Hippocampus shrinks in people who suffer PTSD. The loss can be seen on MRI scans and be directly attributable to the traumatic event.

Professor Mark I. Levy, M.D. at the University of California San Francisco has been able to demonstrate not only physical changes in the brain but also chemical changes in mental trauma victims.  Dr. J.D. Bremner of the Department of Diagnostic Radiology at Yale University School of Medicine has demonstrated in MRI studies of combat veterans and victims of childhood abuse that Hippocampal volume was decreased and correlated with deficits in verbal memory on neuropsychological testing

This area of medical investigation is not the only source for hope for those workers who suffer PTSD without physical injury.  In Maryland and in the Federal Workers' Compensation system and in the Railway Compensation system, PTSD has been recognized as Occupational Disease.  Will that tactic work in Florida? Only time and the courts know the answer to that one.  In Maryland, Police, Fire and EMTs will have benefits for PTSD if they can show that their occupations pose an increased risk, greater than the usual run of occupations Means v. Baltimore County, 689 A.2d 1238 (Court of Appeals of Maryland 1997). In the Federal System, PTSD is recognized for Air Traffic Controllers. In the Railway System, PTSD is an occupational disease for Engineers, see; Consolidated Rail Corp. v. Gottshall v. Carlisle, 114 S.Ct.2396, 512 U.S. 532 (1994). Read literally, the Occupational Disease law in Florida does not require physical trauma. It exempts itself from the definition of accident, "the disablement or death of an employee resulting from an occupational disease... shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter..."(F.S. 440.151(1)(a)(1994). So, with the proper expert testimony and statistic showing, for example, that convenience store clerks suffer a higher incidence of PTSD that the usual run of occupations, individuals who otherwise would have no Tort or Workers' Compensation recovery would have a viable theory upon which to proceed for Workers' Compensation benefits.  Getting those statistics might not be so difficult,  After all, Florida has "The Convenience Business Security Act" Ch.812,sec.173 et. seq. There must be statistics to prove that these businesses are substantially more dangerous than other forms of business and produce more PTSD type injuries than the usual run of occupations.  OSHA has published statistics related to high risk occupations, OSHA 3153 (1998). Northwestern Mutual Life has studied and published "Fear and Violence in the Workplace" (October 1993), and California has determined that "workplace assaults which result in the threat of harm, are more common than those which result in fatal injury" (CAL/OSHA Guidelines for Workplace Safety, 1995).

Florida's impact rule dates back to 1893, Int'l Ocean Telegraph v. Saunders, 32 Fla. 434 So. 143 (1893).  A time when Psychiatry was closer to witchcraft than to medicine. The underlying basis for the rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims, 1 Thomas M. Cooley, Colley on Torts (3d ed. 1906). The Workers' Compensation Acts' prohibition on compensating M&M injuries is also rather aged and not in step with the current state of mental diagnosis and/or treatment. Since Florida is an impact state, even if the Employee could sue in Tort for the damages not covered in Workers' Compensation, the same defense would defeat recovery.

However, since the law in tort as represented by R.J. P.J., supra, is less oppressive that Chapter 440 due to 'bootstrapping', scientific proof of brain damage may propel these cases into the Circuit Courts instead of placing them before JCCs. Once the Employer/Carrier denies that the mental-mental injury is one for which compensation is payable, the door to the jury box is opened, Byerley v. Citrus Publishing, 24 Fla. L. Weekly D262 (Fl. 5 DCA 1999). As we learned early in the 20th century, when employees can sue employers, the legislature will enact legislation to protect business from large verdicts.  All of a sudden the word "A mental or nervous injury caused by stress, fright, or excitement alone... is not an injury by accident arising out of the employment" will disappear from the Workers' Compensation Law (F.S. 440.02(1)(1994).

It really is time for a change in both the Tort and Workers' Compensation arenas. Thomas Jefferson said, "Laws and institutions must go hand in hand with the progress of the human mind... we might as well require a man to wear the coat that fitted him as a boy, as a society to remain ever under the regime of their ancestors."

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