Stress Claims As A Remedy For Workplace Bullying

By John D. Kovac, Esq.


The workers' compensation system is currently the main venue offering a legal remedy for workplace bullying that does constitute discrimination based on race, age, sex and other protected categories under New Jersey and federal law. Under workers' compensation law, benefits are provided for work-related injuries. If the bullying does not result in an injury requiring medical treatment, though, there is no remedy. In many cases, however, bulling in the workplace results in stress-related health problems. According the U.S. Workplace Bullying Survey of 2007, the health of 45% of targets is affected.[2]

Bullying, as defined by The Workplace Bullying Institute, is repeated mistreatment manifested as either (1) verbal abuse; or (2) conduct which is threatening, humiliating, or intimidating; or (3) sabotage that interferes with work; or (4) some combination of the above.[3]

Bullying cases can be considered a subset of stress-related workers' compensation claims. Many stress claims involve some bullying, often combined with other types of work-related stress. To understand how a bullying claim might play out in workers' compensation, one needs a fundamental understanding of compensation law and of how stress claims are governed by that law.

Three Necessary Elements of a Stress Claim


Williams v. Western Electric Company, 178 N.J. Super. 571 (App. Div. 1981). makes clear that an employee's subjective reaction is not to be disregarded, though it cannot be the sole ingredient of the formula for compensation. Williams also teaches that objectively verifiable work conditions need not be outside of the ordinary work stresses: "The requirements of unusual strain or stress as a causative factor was rejected [. . . ] and we, as an intermediate court, cannot revive that approach." Id. at 106. Thus Williams specifically rejected the Wisconsin rule, which requires proof that the psychiatric injury must result from "greater dimensions than the day-to-day mental stress and tensions which all employees must experience." Id.



2. Work conditions peculiar to the workplace (not just common to everyone). Fiore v. Consolidated Freightway, 140 N.J. 452, 468-470 (1994) illustrates "peculiar to the workplace":




3. Objective medical evidence showing that the work conditions were the material cause of the psychiatric disability. Professional analysis in psychiatric claims, as opposed to physical claims, depends upon "analysis of the subjective statement of the patient." Saunderlin v. E.I. Dupont Company, 102 N.J. 402, 412 (1986). Though subjective evidence requires analysis beyond mere subjective statements and will not be present when the physician simply "parrots" the patient's complaints, objective evidence of a physical manifestation is not required in psychiatric claims. Id. at 412, 416. The distinction between objective and subjective "is not between physical and mental (or body and mind) but between independent professional analysis and the bare statement of the patient." Interposition of a professional judgment between a subjective statement and an award of disability does not involve exclusion of the subjective statement: any medical examination "must begin with the [patient's] subjective statement." In physical disability claims, medical analysis often goes beyond subjective statements by virtue of clinical and laboratory tests. But in psychiatric claims, diagnostic criteria include descriptions of states of mind "discoverable only through" the subjective statement. Id. at 412-414. Under Saunderlin, Reasoned analysis of the subjective statement of a psychiatric patient is objective within the meaning of N.J.S.A. 34:15-36. Id. at 313-314. But where petitioners saw their psychiatrists only once upon recommendation of their attorneys and the psychiatric reports merely dressed the complaints in "psychiatric nomenclature," the claims for psychiatric disability were dismissed. Id. at 418-419.

Specific Event versus Occupational Stress

In Prettyman v. State of New Jersey, 298 N.J. Super 580, 594 (App. Div. 1997), the court stated that Walck and Williams do not apply when an alleged psychiatric disability is caused by a specific event rather than a stressful work environment. Wrongly suspected of stealing from a coworker, petitioner was removed from work by the State Police and taken to a station for aggressive questioning. The court applied the "but for" test to determine that the petitioner's injuries arose out of her employment: but for the fact that she came to be suspected of theft while carrying out her usual duties, she would not have been taken for questioning a few days later. Respondent's contention, based on Cairns, that police investigations of theft are as normal to the workplace as layoff notices, was rejected along with the argument that the interrogation was a separate event that did not arise "during the course of employment." Among other things, the court's distinction in Prettyman between a specific event and a stressful environment suggests that a worker's predisposition cannot be used to bar specific event claims. Hence the court noted that the "employer takes the employee as the employer finds the employee, with all of the pre-existing diseases and infirmiti[es]." Evidence of the petitioner's emotional and excitable nature, precluded by the trial judge, was not deemed significant to respondent's defense. Id. at 592-595.


Burden of Proof in Occupational Claims


Standard of Proof: "It is sufficient in New Jersey to prove that the exposure to a risk or danger in the workplace was in fact a contributing cause of the injury. That means proof that the work related activities probably caused or contributed to the employee's disabling injury as a matter of medical fact. Direct causation is not required; proof establishing that the exposure caused the activation, acceleration or exacerbation of disabling symptoms is sufficient."

Bargain Theory: The Workers' Compensation Act "involved a historic trade-off whereby employees relinquished their rights to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries . . . " At the " heart of this 'original bargain . . . . is the notion that the burden of proof on claimants would be easier . . . under workers' compensation laws than under common law."


3 Types of Workers' Compensation Benefits


Cure and Relieve. N.J.S.A. 34:15-15 requires an employer to furnish treatment "necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the [worker's] injured member or organ where such restoration is possible." But Hanrahan v. Township of Sparta, 284 N.J. Super 427, 436 (App. Div. 1995), held that the phrase "cure and relieve" is not conjunctive: treatment must be provided as long as competent medical testimony establishes treatment is necessary to either cure the worker or relieve the worker of symptoms.







1. Does the current law require permanent injury to win a judgment?

You can get medical and temporary disability benefits without being entitled to permanent disability benefits, but usually once medical attention is required, there will be some finding of permanency.

2. At what point of bullying should I seek legal recourse?

Certainly once your health is affected, if not before. However you should go to management immediately and ask for help. Psychiatric damages are compounded when management fails to properly respond and thus effectively becomes complicit in the bullying. Ask your employer to provide medical treatment if you feel upset or depressed, and report bullying immediately.

4. What are the best methods of documentation I should use?

E-mail, diary (note physical symptoms of stress—weight loss, upset stomach, vomiting, etc.), doctor visits (to company doctors and/or private doctors), e-mail to supervisors, etc.

5. Should I ask for my documented letters to HR to be placed in my personnel file?

You can but certainly keep a duplicate copy; or send by certified mail RRR.

6. How do I know if I can trust a colleague to help me with my case?

You never can be sure; it can be tough for colleagues to take action perceived to be against their employer. Nevertheless, corroboration is very helpful in bullying cases as well as in other stress claims. Such proof can come not only through coworkers, supervisors, personnel department staff, but also from therapists, family doctors, and family members. E-mail makes good evidence; supportive letters from coworkers also are helpful.

7. The economy is so bad right now, I feel like I will lose my job if I complain. What should I do?

Jobs are always at risk in these circumstances. You must weigh your health against financial needs if you can't work it out with the assistance of management. Look for written company policies. Most written policies have complaint procedures for harassment (usually gender or racial) but you may want to pursue the same procedures for bullying. You may go out of work and collect temporary disability benefits with doctor's certification. Psychiatrically injured workers may also be able to obtain a doctor note specifying work accommodations and thus seek protection under the Americans with Disabilities Act or NJ equivalent.


[1] This article is a slight reworking of notes I prepared for presentation at "Bullying in the Workplace," a conference on November 22, 2008 sponsored by New Jersey State Bar Foundation and the Organization of Chinese Americans.



[4] In American Motors Insurance Company v. L-C-A Sales Company, 155 N.J. 29, 38 (1998) the New Jersey Supreme Court noted that Cairns was "based largely on 'the underlying policy considerations rather than the clear language of the act,'" quoting Cairns at 399. American Motors Insurance Company addresses the question of third-party coverage for an employer sued civilly for violating the Law Against Discrimination. Observing that Cairns involves a general economic risk applicable to all employment, the Court distinguished the situation in Cairns from one where an "employee-specific layoff notice" illegitimately targets an individual. Though American Motors Insurance Company does not address a workers' compensation claim, its reasoning nevertheless suggests that a layoff notice targeting a specific employee may create a right to compensation benefits if an illegitimate or illegal purpose is involved. Cairnes v. City of East Orange, however, held that a layoff or unemployment is not a risk arising out of employment but rather out of the economy and economic forces. A layoff notice is a threat that confronts every worker.