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PSYCHOLOGY: Posttraumatic Stress Disorder and Employment Litigation

Claims of Posttraumatic Stress Disorder (PTSD) are made in all types of employment litigation; mental and emotional injuries constitute the bulk of an employer’s exposure. Psychiatric evaluation of PTSD claims in employment litigation often demonstrate

By L.H.G., M.D.

 

Claims of Posttraumatic Stress Disorder (PTSD) are made in all types of employment litigation; mental and emotional injuries constitute the bulk of an employer’s exposure. Psychiatric evaluation of PTSD claims in employment litigation often demonstrate that such claims are not supportable. When a damages claim includes a diagnosis of PTSD which cannot be substantiated, plaintiff attorneys may have placed their client’s case in jeopardy and defense attorneys have an opportunity to cast doubt on all mental health damages claims; perhaps even the plaintiff’s credibility.

An adverse workplace event, actionable or not, cannot serve as the basis for a claim of PTSD. Whether making or countering claims of damages related to PTSD, attorneys should understand that PTSD is not necessarily an inevitable psychiatric outcome of any adverse event a person may experience. Mental health professionals do not accept as axiomatic that every upsetting, distressing or even traumatic event results in a psychiatric disorder. Even individuals who have undergone a traumatic stressor typically have only an approximate 15% incidence of PTSD.

Most unsupportable claims of PTSD in employment litigation fail based on the first criterion defining the disorder; the definition of a traumatic stressor that could result in PTSD. The Diagnostic and Statistical Manual (4th edition, text revision) (DSM-IV-TR) defines PTSD by six criteria. Discussions of the other five criteria become moot if a person has not been exposed to a traumatic stressor. Thus this first criterion should be thought of as the “gatekeeper” for a PTSD diagnosis.

All traumatic experiences are stressful; however, not all stress is traumatic. A traumatic stressor (as defined by the DSM-IV-TR) is comprised of two arms; one objective, the other subjective. To develop PTSD, a person must be exposed to a traumatic event in which both of the following were present:

  1. “The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others”
  2. “The person’s reponse involved intense fear, helplessness, or horror.”

 

Events can occur in the workplace that meet the definition of a traumatic stressor. These might include being the victim of a fire, motor vehicle or other workplace accident, physical or sexual assault, a terrorist attack, or dangerous events of similar magnitude. Although such events occur more often than we would like, allegations in employment evaluations typically do not often involve physical or sexual violence, or danger to life and limb. They more often include claims of discrimination, adverse employment practices or actions, or interpersonal problems. The behaviors that characterize these experiences do not typically constitute traumatic stressors capable of resulting in PTSD.

Unless there is alternate causation or pre-existing vulnerability, employees do not develop PTSD from being yelled at or insulted by a supervisor, by having a boss throw papers or shake fingers at them, by having their work criticized, by being fired, transferred, or denied a promotion, or even by being verbally bullied or harassed. These experiences, especially when repeated over prolonged periods of time, are extremely upsetting and may even be actionable. Nevertheless, they are generally more akin to severe occupational stress than traumatic stressors. Occupational stress can have physical and psychiatric health consequences, which can potentially result in a psychiatric disorder such as anxiety or depression, but typically not PTSD.

Some individuals under certain circumstances can develop PTSD without meeting the traumatic stressor criterion. In addition, the more vulnerable the victim, the less severe the stressor needed to precipitate PTSD. However, the further the traumatic event strays from the gatekeeper criterion (particularly the objective arm), the greater the burden for the claimant to demonstrate how the exposure met the subjective and objective arms necessary to meet the definition of a traumatic stressor. Reported feelings of horror, fear of death, or physical injury in response to the types of occupational stress common in the workplace raise issues of hypersensitivity rather than traumatic exposure.

Without meeting the gatekeeper criterion, a claim of PTSD proximately caused by the alleged workplace event is unlikely to succeed. Plaintiff attorneys should avoid weakening their clients’ cases by alleging PTSD if the workplace event simply does not rise to the level of a traumatic stressor. If the claim is relatively easy to disprove by applying the gatekeeper criterion, any other emotional damage claims (even if legitimate and supportable) become less credible. Defense attorneys should be wary of becoming focused on the PTSD diagnosis and its implications regarding causation. Instead, they should explore whether the psychiatric basis of the PTSD claim is sound, beginning with the validity of the alleged traumatic stressor.