PRACTICE POINTS: COMBATING THE MYTH OF "JOB BURNOUT" IN MILD TBI CASES  [ back to List of Articles ]
Harvey A. Hyman, Esq.

Plaintiffs in mild TBI cases who are well educated, professionals seem increasingly to confront the defense of "job burnout" as the "real reason" they have not returned to work. This is an insidious defense, because there is no scientific test to prove or disprove it, yet the mantra-like repetition of job burnout by the defense lawyer in opening, cross-examination of plaintiff's experts, direct of defendant's experts and closing argument, allows it to seep into and color juror perceptions and deliberations.

What is "job burnout"? It is certainly not a medical diagnosis or a well defined term from the social sciences. It is not found anywhere in the DSM IV. Rather it is a colloquial term that developed in the popular press. As a defense strategy it is rather shrewd to raise the specter of job burnout as the reason the plaintiff has quit her job to stare at the four walls of her home, and why she feels so sad, tired, washed out and hopeless about her future. Why is it shrewd? Because TBI is a physical injury to the brain from external application of trauma to the head, whereas job burnout is a purely subjective condition which the defense claims arises from a blameworthy internal flaw in the plaintiff's character as the source of her malaise and disability.

When we hear the term "burned out," we immediately, uncritically think of a discontented employee looking for a way out, somebody who might consciously or even unconsciously grab onto the concept of a mild brain injury as her ticket to early retirement. Is that accurate? Is it fair? No. Review of the research literature on burnout, shows it is a label that big corporate employers use to fault individual employees for their own weakness of character, when they complain about problems in the workplace environment like tedious assignments, low pay, layoffs or employer in difference to employee health and safety concerns.

In their book "The Truth About Burnout" (1997 Joey Bass Publishers, San Francisco) authors Christina Maslach and Michael Leiter list the following environmental factors as contributing causes to burnout: chaotic management changing business plans without warning; replacement of "excellence" in products or services with cost slashing practice to increase profit margin and reward the cost slashers with huge compensation packages; mechanical, cookie-cutter management which robs employees of choice and control and stifles their creativity; anxiety over being displaced by technology or out-sourcing of jobs to foreign countries with cheaper labor; perceived unfairness in employee hiring, promotion or discipline; crushing of "whistle blowers" seeking to protect employee safety; mergers and buyouts changing corporate leaders and policies so often it is hard to maintain loyalty; downsizing staff while demanding increased productivity from fewer workers who must work longer hours without increased pay; replacing face time between employees in favor of intra-company communication and training via computer; and the like.

If the defense in your client's case raises job burnout as its alternative explanation for all the problems the plaintiff has had since the car crash, make the defense accountable. Make them prove this charge. If your client has taken evident pride and pleasure in her work. If she has risen within the company and been appropriately rewarded with raises. If she has not clearly been subjected to the evils listed above which tend to engender burnout, then burnout is a label which should not stick.

What are the classic signs of job burnout? Industrial psychologists might disagree. Maslach and Letter say they are physical and mental exhaustion, cynicism about one's job and fellow employees, losing confidence that one can achieve anything on the job and feeling overwhelmed. Notice that these are subjective feelings which manifest stress. These are feelings which go hand in hand with depression. One must be careful with depression, because it manifests itself the same way, whatever its cause(s), as a combination of intense sadness, bleak mood, inability to experience pleasure, loss of appetite and libido, disturbed sleep, fatigue, irritability and slight decrements in attention and cognitive processing speed.

Fortunately, being stressed or depressed from a bad work situation (or any other reason) does not match up with characteristic physical manifestations of TBI such as headache, photophobia, visual disturbance, complex partial seizure disorder, speech hesitation, slurred speech, ringing in the ear, positional vertigo, dysequilibrium, loss of strength, loss of fine motor control, gait disturbance, etc. The sleep disturbance pattern would also differ. People who are depressed because of a bad life situation tend to wake up at 3 or 4 a.m. and cannot get back to sleep, whereas people with a TBI tend to wake up 40-50 times a night, as can be demonstrated on all-night sleep videos. A person who felt "job burnout," would not demonstrate the distinctive cognitive sequelae of TBI evident on neuropsychological testing or the distinctive neurobehavioral sequelae of TBI such as emotional lability, impulsiveness and poor social judgment.

Even if a colorable case can be made for classic signs of burnout, the burnout may not be the proximate cause of her problems. From time to time every one-experiences some dissatisfaction or frustration with their job, but they are able to shake it off and regain the wind in their sails. Having your client's head slammed by an 18 wheel truck, which shears and contuses her brain, is much more likely to cause long term, cognitive and emotional dysfunction with vocational disability. Further, what is the time line on the alleged burnout? If it started after the TBI, then the TBI is the likely cause of what is mistaken for job burnout.

Here the sleight of hand is uncovered. If you look carefully, most of the time the defense brings up job burnout, they are referring to mood changes and behavioral changes which began after the TBI. If 2, 3 or more years pass between the TBI and the trial, the plaintiff's love of work before the car crash is forgotten. Instead all the jury can see is a dejected, inactive complainer who spends her life being tested at the doctor's. This feeds right into the defense. They will project those negative qualities way back in time, long past the car crash. They will use the lack of loss of consciousness (LOC) and the negative CT/MRI to have the jurors conclude that the "small bump on the head" could not possibly have caused a brain injury, that we are really dealing with a 40-something victim of job burnout looking for her ticket to financial freedom. When it plays well to the jurors, the defense is emboldened to mock plaintiff's involvement in a TBI support group as a pathetic attempt on her part to convince herself she really suffered a brain injury. I have seen this done, and it is very ugly. Unfortunately it can be effective if not shown for the sham it is. It is important for us to keep reminding the jury that the time between the TBI and the trial has been a very unusual, very uncharacteristic time in the plaintiff's life, which is not reflective of who she really was. It may be useful to retain an industrial psychologist to distinguish plaintiff's situation from a classic case of job burnout based on analysis and interpretation of employment records and interviews of co-employees.

The key to beating this defense at trial is anticipating it, planning for it and working against it from the moment you take the case, and long before you file suit. Working against it occurs on many levels: controlling and shaping which "narrative" of plaintiff's life is most credible - plaintiff's or defendant's; getting hold of any "objective evidence" of organic brain damage, such as a PET scan, SPECT scan, neuro-optometric testing, vestibular testing or physical capacity testing; making sure the plaintiff gets neuropsychological and vocational testing to substantiate lost competence; making sure plaintiff gets medication to lessen depression and supportive psychotherapy to boost morale; and making sure plaintiff gets guidance and assistance to return to work in whatever fashion is appropriate - the old job with modifications; a new job with fewer demands; or even volunteer work. You might even hire an industrial psychologist, psychiatric social worker or other person who is highly experienced in face to face counseling of job burnout victims and victims of mass lay offs. This expert could interview your client and distinguish him from employees with classic burnout.

Just as a body at rest will remain at rest (a law of physics) a depressed plaintiff left alone will remain a couch potato. The defense of job burnout works best when plaintiff has been a couch potato during the 2,3 or more years from injury to trial. Her old identity as a hard worker and committed employee is now so far in the past as to fall below the jury's radar. Using a software like Casemap, or your custom program, to reconstruct plaintiff's good ole days before TBI can certainly help, since it guides the search for and correlation of facts, witnesses, documents and photos which build the evidentiary picture.

Getting the apathetic, depressed and adynamic plaintiff back in motion is much easier when she has close family or friends who love her and are personally motivated to do this work with her. The toughest situation is with the unmarried, self-employed plaintiff or the plaintiff with a selfish, uncaring spouse - both of whom are truly alone. In those situations, the job of the lawyer is much more difficult and much more of an uphill struggle. However, some turn around is achievable. The attorney should get a case manager involved, who will act as a life coach to get the plaintiff back in the swing, to the limited extent possible. If an attorney takes on one of these cases, he must look this issue squarely in the face and do something positive to get his frozen client back in motion. To ignore the situation is to invite disaster at trial, because the jury will have to decide why this person (who looks unhurt and has a negative CT/MRI) just sits at home and cries and will not seek work, and they may accept the job burnout defense, unless you have effectively discredited it in trial based on your pre-trial preparation.