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Workers' Compensation Law: Common Non-Scheduled Injuries

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Workers’ Compensation Law: Common Non-Scheduled Injuries

            Many workplace injuries are to “scheduled” body parts, which means the injured worker is entitled to a statutorily scheduled amount of money based upon the body part injured. However, statutes cannot identify every possible injury, and some types of injuries are unique and complex. Therefore, some injuries are not scheduled. Common examples include: psychological injuries, hernias, occupational diseases, and repetitive trauma.

Psychological Injuries

Psychological injuries can be particularly difficult to prove. They often do not have clear onset dates, the evidence is often subjective, and there could be multiple causes. To determine which psychological injuries are most likely compensable, these injuries are often divided into three separate categories: physical-mental, mental-physical, and mental-mental.[1]

Physical-mental injuries occur when a physical stimulus causes a mental injury, and they are the types of psychological injuries that are the easiest to prove. Examples of physical-mental injuries include a prison guard being beaten by prisoners, resulting in paranoid schizophrenia; or anxiety and depression resulting from a work-related back injury. Physical-mental injuries are often compensable, even if they result from normal work conditions.[2]

Mental-physical injuries occur when a mental stimulus causes a physical injury. They are not as easy to prove as physical-mental injuries, but are more likely to be compensable than mental-mental injuries. An example of a mental-physical injury occurs when the stress of a job causes a worker to develop a heart problem or an ulcer. This injury is likely compensable, so long as the work-related stress was unexpected, unusual, or the result of extraordinary employment conditions. If the physical injury was caused by stressful work conditions that were the normal, reasonable conditions of the particular type of employment, however, the injury is often not compensable.[3]

Mental-mental injuries are psychological injuries that result from a mental stimulus, and they are the most difficult to prove. An example of a mental-mental injury occurs when an employee suffers emotional distress caused by continuing on-the-job harassment by an employer or co-worker. Some states allow recovery for mental-mental injuries, so long as the stressors are extraordinary conditions of employment.[4]  Several other states, however, limit recovery for mental-mental injuries.[5] For instance, in California the worker must have been employed for at least six months prior to the injury for a mental-mental injury to be compensable. Furthermore, claims for psychiatric injuries caused by nondiscriminatory, good faith, lawful personnel actions are prohibited.[6]


Hernias are also often treated as unscheduled injuries by state statute. A hurt worker must prove that a hernia is work-related as a threshold matter, and some states have additional requirements for compensability. For instance, South Carolina requires that the hernia appeared suddenly and immediately following the work-related accident, and that it was accompanied by pain.[7] In contrast, Maryland law does not require that an accidental injury caused the hernia. A mere work-related strain is enough.[8]

            Some states limit compensability by imposing strict time frames in which an injured worker must notify the employer that he has suffered a hernia. For instance, Maryland requires notification within thirty days,[9] but New Jersey requires notification within just forty-eight hours.[10]

            Still other states make proving compensability easier for certain employees with a hernia. California law for example, creates a presumption that a hernia arose out of and occurred within the course of employment when the injured workers are police, firefighters and others serving in other roles related to law enforcement or public safety.[11] Though the presumption is rebuttable, it shifts the burden to the employer to show that the hernia was not work-related.

            Hernias are also unique because they generally require surgical repair. In some states, an injured worker with a compensable hernia must undergo surgical repair; otherwise, he will receive no compensation. If the injured worker dies in surgery however, it will be considered a result of the work accident. Therefore, death benefits will accrue.[12]

            In other states, a worker does not have to undergo surgical repair to receive benefits. However, even where the worker does undergo surgical repair, there is no presumption of permanent disability. Instead, the worker must prove the extent to which he is permanently disabled, if at all.[13]

Occupational Diseases

Occupational diseases are illnesses that usually occur only after long periods of exposure, rather than after one specific incident. Some common examples of occupational diseases include black lung disease, asbestosis, and pneumonia. Although numerous states recognize occupational diseases under their workers’ compensation schemes, these states may vary as to what occupational diseases are compensable, and as to what special rules, if any, apply to claims for benefits.[14]

For example, New York historically only allows recovery if the occupational disease is characteristic of or peculiar to the type of employment. Therefore, even if a disease in fact resulted from exposure at the workplace, the worker cannot recover if the disease is not common in the employment. [15]

To determine whether an occupational disease is compensable, many jurisdictions apply the “Greater Risk” Rule. This rule states that the disease is compensable if the employment subjected the worker to a greater risk of illness than the general public. Compensable examples include where a roofer was on top of a roof in wind and rain as a necessary part of his job.[16]

Some states impose strict statutes of limitations for occupational disease claims. The Date of Last Exposure Rule will cut off an employee’s ability to file a claim based upon the last date of exposure to the injury-inducing substance or condition, without regard to when the employee became aware that the exposure caused the disease.[17] For example, a worker may have one year to file a claim after his last exposure to asbestos, even if he didn’t know the asbestos  was the source of the injury until two years after his last exposure.

Some other states, like California however, apply the Discovery Rule. According to this rule, the statute of limitations does not begin to run until the worker either is aware, or reasonably should be aware that the exposure caused the injury.[18] The Discovery Rule decreases the chance that the statute of limitations will cut off the injured worker’s right to recovery for an occupational disease.

Repetitive Trauma

            Finally, repetitive or cumulative trauma injuries are often addressed as unscheduled injuries. These injuries occur gradually and result from the cumulative effects of repetitive movements or traumatic events.[19] Examples include a back injury resulting from repeatedly lifting, carpal tunnel syndrome resulting from repeated hand movements, or even tarsal tunnel syndrome caused by walking on a unique surface at the workplace.

            The date of injury is very important, as it determines the deadline by which an employee must notify an employer of an injury to receive benefits. For repetitive or cumulative trauma injuries, the date of injury is either the date on which the worker first became disabled due to the injury or when the worker knew or should have known that the disability was caused by his employment.[20] This means that it may be possible or an injured worker to have a repetitive or cumulative trauma injury for quite some time before he either has to notify the employee of the injury, or before his claim is cut off by an applicable statute of limitations.[21]

            Some states, such as New York, however, treat repetitive or cumulative traumatic injuries as occupational diseases. In those states, the employee may have to prove that the injury resulted from conditions characteristic of or particular to that employment for the injury to be compensable. It may not be enough if the repetitive trauma in fact did result from work conditions. [22] As always, the law applicable to repetitive or cumulative trauma varies from state to state.


[1] Beard, G. L., Poteat, S. T., Lamar, M. J., Sumwalt, V. R., Bluestein, M. M., & Sullivan, A.P. (2012). The law of workers’ compensation insurance in South Carolina sixth edition. Specific Injuries. (Chpt. 5, pp. 202-203). Columbia, S.C.: South Carolina Bar Continuing Legal Education.

[2] Id. at 206.

[3] Id. at 203-205.

[4] Id. at 206-209.

[5] American Bar Association (2007, May/June). From John Burton’s workers’ compensation resources: workers’ compensation policy review [Vol. 7, Issue 3, p. 6]. Retrieved from http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/ac2011/087.authcheckdam.pdf The New York state workers’ compensation board (2014). Centennial: celebrating 100 years of New York state workers’ compensation and leading the way forward for the next century. [Top 10 decisions by appellate courts in the past 100 years. 7. Solely mental injuries. p. 12]. Schenectady, NY: The New York State Workers’ Compensation Board.  Retrieved from http://www.wcb.ny.gov/WCB_Centenial_Booklet.pdf

[6] California Department of Human Resources (2016, July). Workers’ compensation preview. [p. 9 Compensation for psychiatric injuries]. Retrieved from https://www.calhr.ca.gov/Documents/workers-compensation-preview.pdf

[7] Beard at 216-218.

[8] Warnken, B. (2017). Maryland workers’ compensation: information, resources, and estimate the value of your claim. Retrieved from http://www.mdcomplaw.com/info/workers-compensation-injuries/hernias/ 

[9] Id.

[10] Boll, A.C. (2012, Aug. 16). Personal injury law journal. Workers’ compensation law and hernias. (citing N.J.S.A. 34:15-12(c)(23)). Retrieved from http://www.personalinjurylawjournal.com/workers-compensation/workers-compensation-law-and-hernias/

[11] California Labor Code Section 3212-3212.7; California Department of Human Resources at 8.

[12] Beard at 219.

[13] Boll

[14] ABA at 5.

[15] Id.

[16] Beard at 225-226

[17] ABA at 5.

[18] Penny, T., Dubrawski,P., & Davis, Y. (2013). California workers’ compensation compendium [p. 5, B. Occupational disease (including respiratory and repetitive use)] ALFA International: Los Angeles, CA. Retrieved from http://www.hbblaw.com/files/Publication/48acc5bc-8067-4bf7-908c-84d59ff10574/Presentation/PublicationAttachment/2a5514e7-68e6-434a-9fe9-962cd135626e/Penny%20-%20ALFA%20WC%20Compendium%20Update%202013.pdf

[19] Beard at 105; California Department of Human Resources at 6.

[20] California Department of Human Resources at 6; Beard at 231.

[21] California Department of Human Resources at 6.

[22] New York State Workers’ Compensation Board (n.d.). Injured on the job? An employee’s guide to workers’ compensation in New York state [p. 5]. Retrieved from http://www.wcb.ny.gov/content/main/Workers/InjuredOnTheJob.pdf