Abusive Behavior as a Disability?

This was originally published as a blog entry at www.workerscompinsider.com

Wellesley, MA  (CompNewsNetwork) - Rosemary Verga worked for United Airlines as a staff representative in human resources. This seems an odd choice for a woman described by co-workers as "a difficult person to get along with" - "impolite, unpleasant" and quick to explode. In addition to being rude, inflexible, easily upset and demeaning toward others. All in all, a rather marginal member of the HR team!

After a group of employees had a carefully structured opportunity to confront her bad behavior in the summer of 2000, Verga sought help from the Employee Assistance Program. The company doctor treated her, authorizing a brief medical leave and then cleared her for return to work. She sought treatment with her own physician, Dr. Ho (no comment), who authorized an indefinite medical leave in 2000. She has not worked since.

Verga filed a workers comp claim for psychological stress, claiming the disdainful actions of her peers caused her mental disability. Even conceding that her own actions may have contributed to this disdain, she argued that because workers comp is no fault, it didn't matter. She was entitled to compensation for work-related stress.

California's labor code (S3208.3,(B)(1) states that "In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." At her initial hearing, the workers comp board ruled that the disdain expressed by her fellow employees was not an event of employment, but something brought on by Verga's own (consistently obnoxious) actions. They denied the claim. The Court of Appeals has now upheld the denial.

Shrink Wraps
The role of psychiatrists in this case is instructive. Dr. Perry Segal, a Qualified Medical Examiner (QME) offered the opinion that Verga suffered from "adjustment disorder with mixed anxiety and depressed mood, resulting from cumulative trauma caused by negative interactions with her co-workers and her supervisor." Dr. Perry based this rather dubious diagnosis solely on Verga's version of the events. A second QME, performed by Edward Duncan, PhD, diagnosed Verga with an adjustment disorder and mild depressive symtoms, but he did not find her psychiatrically disabled from work. Duncan observed that statements of co-workers and Verga's employment records reveal ongoing problems in her relations with co-workers and customers going back 20 years. Prior to working in HR, Verga had served as a customer service rep for United (now there's a great job for someone with a short fuse!).

So the court has determined that Verga's "harassment" by fellow workers was caused by her own harassment of fellow workers. Her disability is the cause - not the result - of workplace stress. With her low frustration level, Verga abused co-workers when they did not meet her expectations. Verga was the aggressor. She created the negative work atmosphere which she claimed (unsuccessfully) caused her psychological injuries. Her supervisors tried to counsel her that rudeness and inflexibility were counterproductive. She ignored their advice and continued to belittle her co-workers. Needless to add, Ms. "Gloom and Doom" has not been missed during her prolonged absence from work.

ADA Remedy?
One final note. It does seem clear that Verga has psychological issues. Can she sue United to get her old job back, claiming that they must make "reasonable accommodation" for her under the Americans with Disabilities Act? Does her anxiety and depression qualify as an ADA disability? I doubt it. It is not at all clear that her mental disability "signficantly limits" one or more major life activities. Then again, you might well view her inability to establish friendships and collegiality as a disability. I am inclined to. But I still would not encourage United to take Verga back. She has proven unwilling to make her own accommodations for others and as such would be a huge liability anywhere in the company. After all, being "nice" is really an essential job requirement, one well beyond Verga's reach. With all their current problems, United has no need for an intractable, inflexible and embittered worker.

This article reprinted with permission from http://www.workerscompinsider.com/

Author: Jon Coppelman

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