Psychological injury claims in Oregon have been very difficult since 1987. Under Oregon law, workers must prove that there were a series of events that actually happened at work that could cause stress in people and did cause that person to develop a diagnosis that is generally recognized in the psychological and medical communities, and they have to prove that the work events were the major cause of that condition as compared to all other potential causes, and the burden of proof of that is by clear and convincing evidence. In most civil cases, the burden of proof is on the person going forward (i.e. the injured worker) but it is a preponderance of the evidence. Preponderance is greater than 50 percent. Criminal cases require proof beyond a reasonable doubt, which is up in the 97 percent range, and clear and convincing is probably in the 80 percent range. Courts have held that clear and convincing means that the evidence must be free from confusion and that it is highly probable that the point being claimed is in fact true.
This has had, as you might suspect, a bad effect on Oregon mental stress claims, and typically the injured worker does not win them.
While it may be difficult to understand, Oregon’s law is actually fairer in most instances than other states. In many other states, the circumstances under which a mental injury claim can be proven are even more difficult or sometimes not allowed at all.
Recently, states have been liberalizing mental health issues under workers compensation for first responders. Although it isn’t much, it is a step in the right direction. I have attached a link to a South Carolina article so you can take a look at that. https://abcnews4.com/news/local/sc-legislation-to-cover-first-responders-mental-health-issues-under-workers-comp
The reason that I’m posting about this, however, is that Oregon is also liberalizing our mental health law for certain first responders, specifically firefighters, emergency medical service providers, police officers, corrections officers, youth corrections officers, parole and probation officers, emergency dispatchers who have been employed for at least five years and have been exposed to traumatic events that satisfy the criteria to establish post-traumatic stress disorder. I have attached a link to that legislation as well if you are interested in looking at it. Again, it is helpful to a small class of individuals rather than to all injured workers, but again it is a step in the right direction.
Although I have thought about this quite a bit since 1987, when the law was changed, I still don’t fully understand why mental health issues are seen in such a poor light. The reality is that people suffer mental health injuries and their mental health is just as important as their physical health.
It is still possible to get compensation for these mental health problems, but not nearly as easy as it was before 1987. It will now be easier in certain circumstances for first responders, which overall is a good thing.