How to establish a mental stress claim in Oregon
Next week, I am going to Nashville, Tennessee, to speak at the American Bar Association’s Workers’ Compensation Section mid-winter meeting. I’ll be on a panel discussing mental stress claims. I think this is as good a time as any to revisit Oregon’s workers’ compensation mental stress arena.
In 1987, the legislature changed the law, making it dramatically harder to successfully pursue what we call a “mental-mental” stress claim. Mental-mental stress claims are stress claims that arise as a consequence of events that transpire at work, as opposed to suffering an injury and having an emotional reaction to that.
In order to establish a mental-mental stress claim in Oregon, it is necessary first to show that the events causing the stress actually occurred, that the events are other than generally inherent in every working situation, that the events are not a consequence of normal business cycles, and that the events are not disciplinary or job-corrective actions.
The worker also has the burden of showing that they have a diagnosable stress condition generally recognized in the medical or psychological community, and they have to prove by clear and convincing evidence (much higher than the normal preponderance) that the work events when compared to all other possible causes, represent greater than 50 percent cause of the psychological condition.
As a consequence of this, we’ve seen a significant decline in the filing of mental stress claims, and a significant decline in those mental stress claims being determined work related.
If you suffer a physical injury and you develop a stress problem as a consequence of that, it is only incumbent upon the injured person to prove that the physical condition is the major cause of their current stress problem. It is more difficult than it used to be, but still is much easier than proving mental-mental stress conditions.
As always, it is a good idea to discuss the stress claim with an attorney prior to actually filing it. On a mental-mental stress claim, the statute of limitations requires that you file it within one year of when you knew or should have known it was work related, or you’re told by a doctor that it is work-related, or you become disabled as a consequence of the condition. The one year begins to run from the latest of all of those. Since attorneys representing injured workers in Oregon are all contingency fee lawyers and only get paid if they get you something, it won’t cost anything to go in and talk to a lawyer.
Author: Chris Moore
Feb 22nd, 2018
Moore & Jensen
678 Country Club Road
Eugene, OR 97401