Worker's comp can also cover mental stress
Published 05/20/05

While all of us have to deal with a certain amount of work related stress, if work related stress gets to such a severe level that it is seriously debilitating, it may be covered under New Hampshire 's Worker's Compensation law.

The New Hampshire 's worker's compensation law provides benefits to workers for work related injuries. By far the most common injuries for which worker's compensation is sought are physical injuries such as a back strain or broken bones. However, severe mental injuries can also be compensable through worker's compensation, although there are substantial limitations.

Particularly, under the New Hampshire Worker's Compensation statute, RSA 281-A:2, a compensable work related injury does not include an injury resulting from stress without physical manifestation. This is because unlike physical injuries, mental injuries are more challenging to evidence by objective standards. Therefore, a worker who is seeking worker's compensation for a mental injury because of stress must show physical manifestations, such as loss of appetite, chest or stomach pains, insomnia, or excessive sleeping. It is probable that such a mentally injured worker may also need an expert opinion of a professional mental health care worker to not only provide verification that in fact the worker is mentally injured and it is work related, but also whether she can do some work, and if so, what, or if she is unable to do any work.

If the worker feels a lot of stress because of her particular job or boss, generally the solution is to find a new job rather than to claim Worker's Compensation. A work related mental injury is not compensable if it results from a disciplinary action, work evaluation, job transfer, lay off, demotion, termination or similar action taken in good faith by the employer.

The mental injury standard under worker's compensation strikes a balance between workers having to accept a certain level of work related stress and management's need to correct performance issues and otherwise act in the best interest of the employer with the need to protect workers from work related mental injuries which are severe and debilitating, unrelated to good faith critique of their own job performances.

Simply put, a worker will generally have to show some extraordinary circumstances to be able to receive compensation from her employer or its insurance carrier for work related stress without it being as a result of some state or federal statutory violation such as racial or sexual harassment.

Furthermore, if a worker claims she is unable to work because of a work related mental injury thereby attempting to receive worker's compensation and the employer or its insurance carrier denies the claim, the dispute may take months to over a year to resolve through hearings and appeals process at the New Hampshire Department of Labor during which time the worker may not be receiving any compensation.

Meanwhile, if the worker has also been fired she will have a difficult time claiming unemployment compensation since she has already asserted that her mental injury is preventing her from working and to receive unemployment compensation a worker needs to be employable and seeking employment. Lastly, if a worker is mentally disabled and it is not work related, it is possible the employer may have disability insurance which may cover the worker.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.