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Non-Scheduled Injuries-Module 5 of 6

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Non-Scheduled Injuries

          Some types of injuries are unique and complex. These are not addressed under state scheduled injury statutes, but instead are addressed individually, in their own statutes. Common non-scheduled injuries include: psychological injuries, hernias, occupational diseases, and repetitive trauma.

Psychological Injuries

Psychological injuries are particularly hard to prove because they often have no visible symptoms or clear onset date; their supporting evidence is subjective; and they likely may have multiple causes. To address psychological injuries, jurisdictions often divide them into two, and sometimes three separate categories: physical-mental, mental-physical, and mental-mental.[1]

Physical-Mental Injuries

Physical-mental injuries occur when a worker has a physical injury that causes a mental condition. Examples include where a prison guard is beaten by prisoners and therefore develops a psychological condition; or anxiety and depression resulting from a work-related back injury. Physical-mental injuries are often compensable. Some jurisdictions even allow recovery for physical-mental injuries if they result from normal, rather than unusual work conditions.[2]

Mental-Physical Injuries

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 (discussed a bit later). Examples include fright by nearly avoiding an accident or by witnessing something traumatic, which then causes the employee to suffer heart attack, ulcer, or stroke.[3]

Mental-physical injuries are 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 employment however, the injury is generally not compensable.[4]

Mental-Mental Injuries

Mental-mental injuries occur where a mental stimulus causes a psychological injury, and they are the most difficult to prove. Examples include where an employee suffers emotional distress caused by continuing on-the-job harassment by the employer; or where a worker witnesses a co-worker fall to his death and subsequently develops a disabling fear of heights. A minority of states, including Alabama, Florida and Georgia bar recovery for mental-mental injuries altogether. However, most jurisdictions recognize mental-mental claims as compensable, but may apply additional requirements beyond those for mental-physical or physical-mental claims.[5]

States that allow compensation for mental-mental claims generally fall into three categories.[6] First, a small number of states have historically provided compensation for mental-mental injuries without imposing any additional requirements.[7] Second, states including South Carolina, Maine, and Vermont allow recovery for mental-mental injuries only if the injury was caused by extraordinary or unusual conditions of employment. If ordinary and usual circumstances caused the mental-mental injury, there is no recovery.[8]  Third, some states such as Colorado and Louisiana require that the mental stimulus be a sudden event. If the mental-mental injury results from gradual exposure, then it is not compensable.[9]

States may also limit recovery for mental-mental claims in other ways. 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. [10] Several states also explicitly deny benefits for mental-mental injuries if they are caused by nondiscriminatory, good faith, lawful personnel actions, including discipline, demotion, and termination.[11]


As with psychological injuries, states often apply extra requirements for compensability for hernias, as compared to regular scheduled injuries. These extra requirements are intended to ensure that the alleged work incident caused the hernia.[12] For instance, South Carolina requires that the hernia appeared suddenly and immediately following the work-related accident, and that it was accompanied by pain. “Pain” does not include general symptoms of fatigue, and it must accompany the accident that causes the hernia, not a hernia when it subsequently develops. The court has used pain as an indicator of the actual onset of the hernia.[13]

North Carolina requires that the hernia or rupture was not pre-existing but does not require that the rupture immediately follow the accident. Instead, the hernia only has to be the “direct result” of the traumatic incident.[14] In contrast, Maryland law does not require that an accidental injury caused the hernia, but it is enough if the hernia was caused by a mere work-related strain.[15]

          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,[16] but New Jersey requires notification within just forty-eight hours.[17]

          Hernias are also unique injuries because they generally require surgical repair. In some states, an injured worker must undergo surgical repair. Otherwise, no benefits will be paid unless and until he complies. There usually is an exception if the worker has some condition that makes surgery unsafe.  If the injured worker dies in surgery, the death is considered a result of the work accident. Therefore, death benefits are payable.[18]

          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.[19]

Occupational Diseases

“Disease” is defined as any deviation from the normal and healthy functioning of the body.[20] Generally, states define “injury” or “injury by accident” as excluding all diseases, except two types: those resulting “naturally and unavoidably” from the injury by accident, and those considered “occupational.”[21] An example of a disease that results naturally and unavoidably from the injury would be where a worker continues to have arthritic pain in his knee following a specific knee injury. This section will focus on occupational diseases.

Occupational diseases result from exposure to particular substances at or debilitating conditions of employment.[22] They usually occur only after long periods of exposure, rather than after one specific incident. This is how they are distinct from the usual “injury by accident” under workers’ compensation law. However, they are compensable nonetheless. States vary however, as to what occupational diseases are compensable, and as to what special rules or requirements may apply.[23]

Heightened Causation Requirements

Some states mandate that a claimant with an occupational disease must meet heightened causation requirements, including that the disease is “characteristic of or peculiar to” the worker’s employment.[24] In these jurisdictions, an occupational disease will not be compensable unless the worker shows that the disease is a common occurrence in the employment, even if it in fact resulted from exposure at the workplace. [25]

Along similar lines, some jurisdictions apply the Greater Risk Rule, which requires that the employment subjected the worker to a greater risk of illness than the general public. It ensures that “ordinary diseases of life,” those “to which the general public is equally exposed outside of employment” are not compensable.[26] An example of a disease that meets the Greater Risk Rule would be where a roofer develops pneumonia resulting from working on top of a roof in wind and rain.[27]

Strict Statutes of Limitation

A statute of limitation is a rule that cuts off the injured worker’s ability to file a workers’ compensation claim, based upon how much time has passed since the injury occurred. Often, when the cause of an injury is difficult to determine, or when a disease may take a significant period of time to develop, courts apply the Discovery Rule to ensure just compensation for the injured party.

The Discovery Rule states that a limitations period does not begin to run (or is tolled) until the plaintiff discovers, or reasonably should have discovered the injury.[28] Some jurisdictions, like California, apply the Discovery Rule for occupational diseases.[29] However, other jurisdictions apply the Date of Last Exposure Rule, which cuts off an employee’s ability to file a claim based upon the last date of exposure to the injury-inducing substance. This rule does not consider when the employee became aware that the exposure caused the disease.[30] For example, a worker may have two years to file a claim after his last exposure to a dangerous substance, even if he could not have known and did not know that the workplace substance caused the injury until five years after his last exposure.

Express Limitations on Diseases that Qualify as “Occupational”

          Finally, state statutes may simply list what specific diseases qualify as “occupational,” thereby excluding compensation for any other workplace diseases. Usually the diseases listed are caused by exposure to specific chemicals, including arsenic, brass, zinc, manganese, lead and the like.[31] However, check these laundry-list occupational disease statutes to see whether they have a catch-all provision. A catch-all provision may allow an injured worker to recover for an occupational disease not specifically listed, so long as the disease meets the jurisdictions other special requirements. These catch-all provisions may be the basis of recovery for other non-scheduled injuries as well.

Repetitive Trauma

          Repetitive trauma occurs gradually and results from the cumulative effects of repetitive movements or traumatic events.[32] Examples include a back injury resulting from repeatedly lifting, or carpal tunnel syndrome resulting from repeated hand movements. Repetitive trauma injuries are often addressed as unscheduled injuries, but jurisdictions vary as to whether they are compensable as injuries by accident or as occupational diseases.[33] How repetitive trauma is treated under the law will dictate what the worker must prove to receive compensation.

          An “injury by accident” generally requires that the repetitive trauma results from some unusual condition of employment, or that the injurious result itself was an accident. Injuries by accident also have a specific, identifiable onset date. In jurisdictions that provide compensation under this theory, each repetition of the injurious movement is seen as a traumatic event.[34]

In contrast, occupational diseases result from something characteristic of the employment, rather than something to which the public is equally exposed.[35] In these jurisdictions, it is not enough if the repetitive trauma resulted from work conditions. [36]

There are at least some jurisdictions however, such as Virginia, that generally provide no compensation for certain types of repetitive trauma. Virginia law states that injuries incurred gradually or from repetitive trauma are not considered injuries by accident. Furthermore, Virginia’s occupational disease statute indicates that diseases, including repetitive trauma to the back, neck or spinal column are excluded from the definition of occupational disease.[37] While this may allow compensation for repetitive trauma injuries to body parts other than the back, neck and spinal column, it would exclude all other repetitive trauma injuries. To obtain recovery, when an injured worker reports the injury, he must describe it as an injury by accident. For example, an injury reported as general back pain resulting from lifting boxes at work all week would not be compensable. However, if the worker noted what box he was lifting at the time and place that he heard a pop and felt immediate and sharp pain, the injury may be compensable.[38]

Calculation of Benefits

States vary as to how the claimant is compensated for non-scheduled injuries. As compared to calculating benefits for scheduled injuries, non-scheduled injury benefits are imprecise. Sometimes non-scheduled injury statutes still assign a specific number of weeks of benefits. Other times the judge may simply consider the injury when assigning the disability rating, or the rating may be applied to the number of weeks for the whole person.

For instance, if a statute provides a specific number of weeks of benefits to which a injured worker is entitled for the unscheduled injury, then the judge would assign a disability rating that would apply to that number of weeks. If a hernia could result in up to 250 weeks, and the judge assigns 50% disability, then you would multiply the 50% disability rating times 250 weeks of benefits at the applicable compensation rate.

Often, psychological injuries are simply an additional consideration in the judge’s calculation of a disability rating. This can be very subjective and is therefore, the subject of much debate. For instance, if a claimant is entitled to a specific number of weeks of benefits due to a scheduled injury, but he also has a causally related psychological injury, the judge may simply increase the disability rating more to account for the additional psychological injury.

Finally, in other cases non-scheduled injuries may be assigned a whole person disability rating. The whole person is usually assigned the same number of weeks as the maximum benefits for permanent total disability. For example, South Carolina’s whole person is worth 500 weeks.[39] If a jurisdiction determines occupational disease compensation based upon the whole person, and a judge assigns 50% disability to the whole person, the worker would be entitled to 500 weeks times 50%, or 250 weeks of benefits at the applicable compensation rate.

As always, check the law in your jurisdiction.

[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 205-206; Copeley Leto (n.d.), Applicability of workers’ compensation acts to mental disabilities: the plaintiff’s perspective. (p. 3-4). Raleigh, N.C.: Patterson, Harkavy & Lawrence, L.L.P. Retrieved from www.cjglawfirm.com/wp-content/uploads/pdf/mental_disabilities_leto_copeley.pdf .

[3] Beard at 203-205; Copeley at 5.

[4] Id.

[5] Copeley at 6-10; Robinson, Thomas A. (June 20, 2014). The post-traumatic stress disorder dilemma for workers’ compensation claims. Retrieved from www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2014/06/21/the-post-traumatic-stress-disorder-dilemma-for-workers-compensation-claims.aspx?Redirected=true

[6] Id.

[7] Id.

[8] Copeley at 6-10; Robinson; Beard at 206-209.

[9] Id.

[10] 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

[11] Id; Copeley at 9-10.

[12] Beard at 215.

[13] Beard at 216-218.

[15] 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/ 

[16] Id.

[17] 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/

[18] Beard at 219.

[19] Boll; N.C. Workers’Comp Law, Sect. 97-2((18)(e), p. 21.

[21] Beard at 83.

[23] American Bar Association, Workers’ compensation policy review (Vol. 7 Issue 3, May/June 2007), at 5. Retrieved at https://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/ac2011/087.authcheckdam.pdf  

[25] Id.; ABA at 5.

[26] N.C. Workers’ Comp. Law, Sect. 97-53(13); Beard at 225-226.

[27] Beard at 225-226

[28] Black’s, Definition: discovery rule, p. 478.

[29] 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

[30] ABA at 5.

[31] N.C. Workers’ Comp. Law, Sect. 97-3(2-6), p. 363.

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

[33] Workers’ compensation acts and repetitive motion injuries in North Carolina, Tennessee, Kentucky, West Virgina, and Maryland (n.d.). Retrieved from www.law.virginia.edu/pells/employment+law+4.nsf/Studentarticles/C699BABDBE214ACB8525674F000DB3B7/$File/Rmimulti.pdf

[34] Workers’ Comp Acts at 3-4.

[35] Id. At 2.

[36] 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

[37] Virginia Workers’ Compensation Commission (n.d.), Virginia workers’ compensation commission injured workers guide. Retrieved from www.vwc.state.va.us/sites/default/files/documents/Injured-Workers-Guide.pdf

[38] Dubs, A. (May 26, 2017). Virginia workers’ compensation doesn’t cover repetitive injuries. Retrieved from www.hurtinva.com/virginia-workers-compensation-doesn’t-cover-repetitive-injuries/

[39] South Carolina Workers’ Compensation Commission (2017). Workers’ compensation in South Carolina. Columbia, S.C.: State of South Carolina. Retrieved from http://www.wcc.sc.gov/WELCOMEANDOVERVIEW/Pages/default.aspx