John Pike may be the most (in)famous campus cop in America. He was video taped on November 18, 2011, at the University of California, Davis, spraying seated demonstrators with pepper spray. His demeanor was remarkably casual, as if he were spraying bushes for an infestation of bugs. He is now the subject of a meme that has spread across the internet, with images of Pike spraying Christina, in the famous painting by Andrew Wyeth, among other things. While we live in a culture where many are famous for being famous (the Kardashians come to mind), Pike is famous for one moment of his policing career.
An internal investigation by the university recommended that Pike be demoted. New police chief Michael Carmichael – the original chief had resigned – rejected that recommendation, deciding, in July of 2012, to fire Pike. There were a number of problems with Pike’s behaviour: he used an unapproved pepper spray that was three times stronger than the university’s preferred brand and he violated university protocol by spraying people in the face at close range.
Enter Workers Comp
Pike has filed a stress claim under the California workers comp statute. The state used to be famous for its lenient criteria for stress claims: only 10 percent of the stress had to be work related for a claim to be compensable. (How could work not comprise at least 10 percent of what is wrong in one’s life?) Over time, California tightened up the compensability guidelines, which now total six (as outlined by the Kenton Koszdin Law Office):
1.The employment must be six months or more. Check
2.The employee must have a psychiatric condition that is listed in DSM IV. Probably a check.
3.The employee must prove that the actual events of employment are the predominant cause of the psychiatric condition (51% or more). Definitely a check.
4.A psychiatric condition that is substantially caused (35%–45%) by good faith, non discriminatory personnel action(s) is not compensable as a work-related injury. Examples of good faith personnel actions are criticism of the employee’s work or attendance, change in work assignments, and decision about raises or promotion. The employer has the burden of proof on this issue. DNA.
5.A psychiatric injury that is caused by the litigation process is not compensable. Examples of psychiatric injury caused by the litigation process are an employees reaction to the denial of their claim, dealing with an abusive claims adjuster, or having their benefits terminated.DNA
6.A stress claim or mental–mental psychiatric injury claim filed after termination or notice of termination is not compensable unless the employer know of the injury or medical records of treatment for the psychiatric dated prior to the termination exist. He filed on June 10, presumably before the notice of termination.
A Mental-Mental Claim
Pike must prove compensability of the notoriously difficult “mental-mental” claim. In many states, there must be a physical injury that precedes the mental disability. In this case, the physical injury was limited to the protesters; the university settled their claims for $1 million. In the immediate aftermath of the incident, Pike in his new-found infamy has been subject to harassment, threats and humiliation. He is the principal subject of a meme that has spread throughout the internet. Stressful? Certainly. Compensable? Possibly, but by no means a certainty.
Pike’s former employer will try to show that he violated policy in spraying the students, including the use of an unapproved spray. Pike will undoubtedly try to show the ambiguity of the university’s policies, perhaps a lack of training specific to the circumstances he faced.
In the meantime, Pike has lost a job that paid in excess of $100,000 per year. He has achieved indelible fame for a single, ill-advised work-day decision. He is without a doubt suffering from work-related stress – stress of his own making – but the compensability of that stress is another matter altogether. We await the results of the August conference with great interest.
Posts Tagged ‘stress’
Pike’s Pique: The Stress of Behaving Badly
Monday, July 29th, 2013New Hampshire: Stressed-out Owner on his Own
Tuesday, December 20th, 2011Raymond Letellier co-founded a steel fabrication company in New Hampshire called Steelelements. The company suffered a major fire in March of 2007. They rebuilt, although the cost of the rebuilding, managed by Letellier’s partner, exceeded the budget. In October 2009 the company went out of business. Throughout the long, downward spiral, Letellier suffered from stress, hypertension and depression. Soon after the company’s failure, he filed for personal and business bankruptcy. At the same time, he applied for workers comp benefits.
Letellier’s claim was initially denied, then accepted for the medical costs only, and then denied again. Eventually the claim reached the New Hampshire Supreme Court, where a deeply divided court (3 to 2) ruled against Letellier. The court reasoned that the failure of the company was akin to a personnel action: workers comp does not cover such employer actions as discipline, termination and lay off. In closing the business, Letellier subjected himself – and everyone else – to a lay off. – a non-compensable personnel action.
Work-Related Stress?
Two dissenting judges pointed out that the majority focused almost exclusively on the ultimate failure of the company, the lay off itself. But the extraordinary and relentless stressors in Letellier’s life began with the fire and continued throughout the struggle to keep the over-leveraged company in business. This is not the stress of a single event, but the cumulation of stress over months and years. The dissenters noted that Letellier’s commute to the factory was 100 miles, so he often slept in his office, where ever-pending doom haunted his every waking moment and his troubled dreams. They opined that his multiple health issues were predominantly caused by work.
Letellier, once the proud owner of a successful business, finds himself in the same situation as laid off workers across America. He is on his own and out of luck.
We will set aside for the moment what may be Letellier’s biggest mistake: instead of trying to make things that people can actually use, he should have pursued a career in finance, where he could have sold worthless mortgages, watched his company flounder, and then be rescued by tax-payer bailout, all the while preserving a superbly inflated salary. That’s an All-American story of a different sort, albeit fodder for another day.
Tales from the TSA trenches: new security measures heighten worker stress
Monday, November 29th, 2010Some of the year’s busiest travel days just passed with little event, despite widespread threats of massive disruption in protest of the new screening procedures recently implemented by the Transportation Security Administration (TSA). In response to numerous personal anecdotes about invasive searches, irate consumers planned an Opt-Out Day for November 24, historically the busiest flying day of the year. On that day, those opposed to the new measures were encouraged to opt out of the scanning machines, requesting instead the more time-consuming physical pat-down. But Opt-Out day came and went with little fan-fare or disruption – some reports indicate that about 99% of the passengers opted for the advanced imaging technology screenings over patdowns.
Some think that the public opposition was overblown and overhyped by the media. Public polls continue to show that support for the full-body scanners is strong and that most travelers value protection over privacy (although there was less support for the more invasive pat-downs). In The New York Times, David Carr dissects the false alarm over the TSA, saying that “If a squadron of mad scientists surrounded by supercomputers gathered in a laboratory to try to conjure a single news topic that would blow up large, they could not touch the T.S.A. pat-down story.”
From the trenches
Meanwhile, one little discussed aspect of the story is the impact that the new procedures are having on the front line TSA employees themselves, a group of workers who may well have rapidly edged out lawyers and politicians on the scale of reviled professions. In response to public anger, the TSA’s union – The American Federation of Government Employees – issued a statement calling for the TSA to provide better protection for employees and more public education.
Steven Frischling, who runs a blog about flying and traveling, took a sampling of TSA employee opinions to get their reaction to the new procedures and their role in the new security measures. Not only did he find that his respondents universally disliked the new procedures, he discovered a severely demoralized and stressed-out work force.
All those responding to Frischling expressed discomfort with the personal nature of the pat-downs. As one explains:
“It is not comfortable to come to work knowing full well that my hands will be feeling another man’s private parts, their butt, their inner thigh. Even worse is having to try and feel inside the flab rolls of obese passengers and we seem to get a lot of obese passengers!”
But more than the discomfort with the responsibilities, TSA worker morale seems to be suffering from a heightened level of verbal abuse which is directed at them. They speak of being called everything from molesters to Nazis:
“I served a tour in Afghanistan followed by a tour in Iraq. I have been hardened by war and in the past week I am slowly being broken by the constant diatribe of hateful comments being lobbed at me. While many just see a uniform with gloves feeling them for concealed items I am a person, I am a person who has feelings. I am a person who has served this country. I am a person who wants to continue serving his country. The constant run of hateful comments while I perform my job will break me down faster and harder than anything I encountered while in combat in the Army.”
You can get a sense of the intensity of the anger in many of the 800 comments posted to Frischling’s article.
While worker turnover has been a persistent problem for the agency, TSA had more recently been reporting some progress on that front. In addition, TSA managed to make great strides in improving its workers compensation program. In a November 2009 story in Risk and Insurance, Melissa Turley writes about the “Cinderella story” of how TSA turned around its workers’ comp program, slashing both the number of injuries and lost time. We’ll have to see if TSA can tackle this new challenge to worker morale.
If you fly frequently, you will get a front row seat to this evolving drama. There are large issues at play, many of which will be more appropriately addressed in the courts than in the airport screening lines.
