The Lawyer's Guide to the AMA Guides and California Workers' Compensation, 2016 Edition By ...

39 Pages·2016·0.61 MB·English

by  Reed Elsevier

The Lawyer's Guide to the AMA Guides and California Workers' Compensation, 2016 Edition

By Robert G. Rassp, Esq.

© Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights
reserved. Reprinted with permission.

Selected excerpts from Chapter 10, Psychiatric Injuries

Table of Contents for this Handout
§ 10.01 Overview
§ 10.02 Proof of a Psychiatric Claim
§ 10.03 Use of Psychiatrist or Psychologist
§ 10.04 Cross-over With Civil Causes of Action
§ 10.05 DSM-5 Adopted by American Psychiatric Association
§ 10.06 Elimination of Axes I through V; Introduction of World Health Organization Disability Assessment
Schedule (WHODAS)
§ 10.07 Other Alternative WPI Rating Methods
§ 10.08 Pain Disorders
§ 10.09 Post-Traumatic Stress Disorder Under the DSM-5
§ 10.10 Adjustment Disorders
§ 10.11 Depression
§ 10.12 Anxiety Disorders
§ 10.13 Panic Disorder
§ 10.14 Determination of WPI Ratings Using the GAF Score
§ 10.15 Apportionment of Psychiatric Injuries
§ 10.16 Rebutting a GAF Score

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1-10 Lawyer's Guide to AMA Guides and CA Workers' Comp § 10.01
The Lawyer's Guide to the AMA Guides and California Workers' Compensation > CHAPTER 10
Psychiatric Injuries
§ 10.01 Overview

Industrial injuries that result in psychiatric disabilities have always been problematic in the California workers’
compensation system. The 1997 Schedule for Rating Permanent Disabilities changed the protocols for rating
permanent psychiatric disabilities to require each physician to evaluate a person’s psychiatric condition along eight
work function impairments that were largely borrowed from those that have been used to determine eligibility for
Social Security disability benefits. See, for example, page 365 of the AMA Guides 5th Edition in which the criteria
for rating work function impairments due to psychiatric conditions are listed.

In light of the complexities of prosecuting and defending psychiatric injury claims, this guidebook now includes a
separate chapter that is dedicated solely to psychiatric injuries. In the post SB 863 era, litigation of psychiatric
injuries is continuing but now will include medical and legal definitions of a “catastrophic injury” and whether or
not a psyche case should be best evaluated by a psychiatrist, psychologist, or both. On top of all of these issues is the
fact that on May 10, 2013, the American Psychiatric Association (APA) adopted the Diagnostic Statistical Manual
5th revision (“DSM-5”). As will be discussed in this chapter, the diagnostic criteria for certain mental disorders have
radically changed and counsel’s familiarity with those changes is essential. For example, there is no longer a
diagnostic category for a Pain Disorder that was in the DMS-IV that we commonly see in our cases. There are new
diagnostic criteria for post-traumatic stress disorder (PTSD). There is also a new category called “Somatic Symptom
and Related Disorders” that includes the old somatoform disorder and pain disorders. Similarly, the diagnostic
criteria for depression have been modified.

Counsel will be able to use this chapter in any psychiatric case in order to follow the sequential steps in the
prosecution or defense of these cases with quick references to pertinent case law to support your position.

Lawyer's Guide to AMA Guides and CA Workers' Comp
Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
1-10 Lawyer's Guide to AMA Guides and CA Workers' Comp § 10.02
The Lawyer's Guide to the AMA Guides and California Workers' Compensation > CHAPTER 10
Psychiatric Injuries
§ 10.02 Proof of a Psychiatric Claim

Proving the existence of an industrially related psychiatric injury has always been a challenge for applicant’s
counsel while the defense against these claims can also be difficult one. The shift from the 1997 Schedule for Rating
Permanent Disabilities to the 2005 PDRS effective 1/1/2005 changed how permanent psychiatric disability is
determined. However, the 2005 PDRS and the SB 899 legislation do not change any of the fundamental
requirements for the compensability of an industrially-related psychiatric injury. As described below, SB 863 in
2012 did change the requirements for compensability of a psychiatric condition that is caused by a physical
industrial injury. The requirements of Labor Code § 3208.3 must still be met in order for a psychiatric injury to be
compensable for injuries occurring on or after 1/1/2013. There has to be six months of employment in order for a
psychiatric condition to be considered industrially related, unless there is a sudden and extraordinary event of
employment [Labor Code § 3208.3(d)]. The six months of employment requirement applies in all psychiatric claims
[Wal-Mart Stores, Inc. v. Workers’ Comp. Appeals Bd. (Garcia) (2003) 112 Cal. App. 4th 1435, 5 Cal. Rptr. 3d 822,
68 Cal. Comp. Cases 1575].

“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”
[Labor Code § 3208.3(b)(1)]. The determination of whether an alleged psychiatric injury involves actual events of
employment is a question of fact and law, and the question of whether those events were the predominant cause of
the psychiatric injury is a question requiring medical evidence [Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp.
Cases 241 (Appeals Board en banc opinion)].

Under the Rolda analysis, the WCJ determines whether there were actual events of employment as a legal question,
the physician determines the causation of the psychiatric injury as a medical question, the WCJ then determines
whether the actual events were personnel actions, and, if so, whether they were lawful, nondiscriminatory and in
good faith, and the physician decides as a medical question whether the personnel actions substantially caused
(35%–40%) the psychiatric condition. Finally, the physician must offer a medical opinion as to what percentage of
the psychiatric condition is caused by personnel actions. Here is the four-step process of analysis in the Rolda
decision:

1. Does the alleged psychiatric injury involve actual events of employment, which is a factual and legal
determination made by the judge.
2. If so, are the actual events of employment the predominant cause (i.e., accounting for 51% of more) of the
psychiatric injury, which requires medical evidence from a physician.
3. If so, are any of the actual events of employment personnel actions that were lawful, non-discriminatory,
and in good faith, which are factual and legal determinations made by the judge.
4. If so, are the lawful, non-discriminatory, good faith personnel actions the substantial cause (accounting for
at least 35%–40%) of the psychiatric injury, which requires medical evidence from a physician.

A “personnel action” is action by or attributable to the employer if done by one who has authority over the injured
worker, in managing its business that includes but is not limited to reviewing, criticizing, demoting, or disciplining
the injured worker [see Larch v. Contra Costa County (1998) 63 Cal. Comp. Cases 831 (Appeals Board en banc
decision); City of Oakland v. Workers’ Comp. Appeals Bd. (Cullet) (2002) 99 Cal. App. 4th 261, 120 Cal. Rptr. 2d
873, 67 Cal. Comp. Cases 705].

In a recent noteworthy panel decision, a trial judge issued very specific instructions to an AME in psychiatry in
order to apply Steps 2 and 4 in Rolda [Fujimoto v. Caliber Collision Centers, 2014 Cal. Wrk. Comp. P.D. LEXIS
118]:
[P]lease provide a supplemental report that describes in detail, in accordance with Rolda all the workplace and
all the non-industrial related events and/or issues that combined caused the Applicant’s psychological injury.
You are then to assign a percentage of causation separately to each individual work-related and/or non-work
related events and/or issues that when combined, equal 100% of the causation of the Applicant’s psychological
injury. You are not to combine percentages as to any multiple factors and/or issues, either industrial or non-
industrial.

It will ultimately be up to [the judge] to decide which workplace activities are actual events [i.e., which of the
events described by the Applicant actually happened or not] and whether those events that [the judge] deemed
to be actual events are otherwise legitimate non-discriminatory, lawful, good-faith personnel actions. Based on
this, [the judge] can determine if the actual events of employment, if added together, will result in them being
the predominant cause [i.e., more than 50%] of the Applicant’s psychological injury and, whether those actual
causes were substantially caused [i.e., 35% to 45%] by lawful, non-discriminatory, good faith personnel
actions.

Your discussion should follow the following format:

[Employment Event #1]—[percentage of causation]

[Employment Event #2]—[percentage of causation], etc.

[Non-industrial Factor and/or Event #1]—[Percentage of Causation]

[Non-industrial Factor and/or Event #2]—[Percentage of Causation]

Total: 100%
The WCJ in this case evaluated the specific employment events as presented to the AME psychiatrist as if each
event was accepted as true. In addition, the WCJ requested the AME to comment on any evidence that the applicant
brought his own psycho-pathology to the work place which would exclude those factors from being industrially
related [Fujimoto v. Caliber Collision Centers, 2014 Cal. Wrk. Comp. P.D. LEXIS 118]. See Verga v. Workers’
Comp. Appeals Bd. [(2008) 159 Cal. App. 4th 174, 70 Cal. Rptr. 3d 871, 73 Cal. Comp. Cases 63], in which the
WCAB found that the applicant’s perception of harassment from co-workers was based on the disdain the co-
workers had for the applicant’s mistreatment of them by being rude, inflexible, easily upset, and demeaning toward
them. This was found by the WCAB not to constitute actual events of employment. Also see County of San
Bernardino v. Workers’ Comp. Appeals Bd. (McCoy) [(2012) 203 Cal. App. 4th 1469, 138 Cal. Rptr. 3d 328, 77
Cal. Comp. Cases 219], which bars compensation for psychiatric injuries that cause physiological manifestations
(such as headaches, stomach aches) substantially caused by legitimate, non-discriminatory, good-faith personnel
actions.

Remember, the analysis of causation of a work related psychiatric injury pursuant to Rolda is a completely separate
legal determination from the analysis of causation of psychiatric impairment which considers apportionment of
permanent disability. For example, it would not be unusual to have a case in which the causation of a psychiatric
injury meets the 51% threshold of causation under Labor Code § 3208.3 and the apportionment of permanent
disability is found to be 50% due to industrial factors and 50% due to non-industrial factors. Cases like this are still
compensable as long as the causation of the psychiatric condition is predominantly (51%) work related and are not
substantially due to good faith, non-discriminatory, lawful personnel actions.

The law still distinguishes between physical-mental, mental-mental, and mental-physical industrial injuries. The
analysis of compensability of a psychiatric injury is the same for all types of psychiatric claims. The “predominant
cause” threshold of compensability standard applies in all types of psychiatric cases, even ones that arise as a result
of a physical injury [Lockheed Martin v. Workers’ Comp. Appeals Bd. (McCullough) (2002) 96 Cal. App. 4th 1237,
117 Cal. Rptr. 2d 865, 67 Cal. Comp. Cases 245].

The determination of compensability of any industrial injury, including psychiatric injury, is independent of the
2004 legislation on apportionment of permanent disability to causation [see Lab. Code §§ 3600, 3208, 3208.3]. The
apportionment of permanent disability to causation mandated in Labor Code §§ 4663 and 4664 are irrelevant to the
threshold issue of causation of an injury arising out of employment and in the course and scope of employment
[Reyes v. Fremont Compensation Ins. Co. (Hart Plastering) (2005) 70 Cal. Comp. Cases 223 (Appeals Board
significant panel decision)].

In 2012, SB 863 changed the compensability of psychiatric injuries that result from physical industrial injuries.
Labor Code § 4660.1(c) mandates that sleep disorders, sexual dysfunction and psychiatric disorders caused by a
physical injury cannot cause an increase in a WPI rating unless there is a catastrophic injury. The employer must
still provide treatment for these disorders but no increase in WPI ratings can occur [see Hernandez v. Fremont Bank,
2015 Cal. Wrk. Comp. P.D. LEXIS 470 (applicant entitled to panel QME in psychiatry)]. The exception is if a
psychiatric disorder is caused by a violent act, or direct exposure to significant violent act (referencing Labor Code
§ 3208.3) or a catastrophic injury, including but not limited to, loss of a limb, paralysis, severe burn or severe head
injury [see Lab. Code § 4660.1].

Other than the four statutory examples given as definitions of a “catastrophic injury”, we do not know what the
legislature intended to mean by the term “catastrophic injury.” We do not know, for example, whether the reference
is to the underlying injury only or can include the results of an injury that is not necessarily catastrophic to begin
with but after medical complications arise becomes catastrophic to the injured worker. We have seen our share of
failed lumbar surgeries, chronic pain syndromes, failed knee replacements and other disastrous results of medical
treatment for industrial injuries, and we are not sure whether the legislature intended to exclude some of these
injured workers from receiving WPI ratings for psychiatric conditions that are caused from an underlying “non-
catastrophic” physical injury or treatment from one. As of September 2014, there is no published WCAB en banc
decision or court of appeal decision on what constitutes a “catastrophic injury.”

Lawyer's Guide to AMA Guides and CA Workers' Comp

Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
1-10 Lawyer's Guide to AMA Guides and CA Workers' Comp § 10.03
The Lawyer's Guide to the AMA Guides and California Workers' Compensation > CHAPTER 10
Psychiatric Injuries
§ 10.03 Use of Psychiatrist or Psychologist

This question arises in every workers’ compensation case: Do you use a psychologist or psychiatrist, or both for
treatment of injured workers who suffer from a work-related mental disorder? Do you ask for an AME or PQME in
psychiatry, psychology, or both? Which specialty is the most appropriate and will lead to substantial evidence?

In certain situations, a psychiatrist will provide medication management for an injured worker and is the most
qualified to supervise administration of a psychotropic medication or a combination of them. However, many
psychiatrists shy away from conducting cognitive behavioral therapy (CBT) or other face-to-face one hour sessions
and leave that to a treating psychologist. In many cases, the quality of medical-legal reporting is better from some
psychologists than from some psychiatrists and vice versa.

So the choice counsel makes in deciding who to refer the injured worker to for treatment and evaluation has to be
made strategically on a case-by-case basis. It can be stated based on experience that having a psychiatrist involved in
psyche cases is preferred over the use of psychologists for medical-legal purposes in most workers’ compensation
cases because a psychiatrist is a medical doctor with medical school training and is most qualified to comment on
medications and their side effects with overlapping commentary on other organic medical aspects of a case, e.g.,
referral of a depressed injured worker to a neurologist to rule out multiple sclerosis, dementia, or other disorders that
could overlap with a psychiatric condition.

That being said, in cases in which the injured worker is claiming mild to moderate depression and is refractory to
taking psychotropic medications, a psychologist may be preferred over a psychiatrist for treatment and evaluation
purposes since research is showing that directed CBT sessions conducted by a psychologist improve a person’s
coping skills. It is also clear that a psychologist can tell if a patient’s signs, symptoms, and complaints are situational
or chronic and whether a given patient could benefit from CBT, psychotropic medication, or both.

When should counsel for an injured worker raise the issue of a psyche injury? This, too, is a controversial issue. In
some workers’ compensation organizations, it has been publically stated that “it is legal malpractice not to include
psyche as a part of a claim.” In other words, some law firms as a matter of policy within that law firm will allege
“psyche” in every case, presumably because of the desire for maximum recovery. But in many cases, such a blanket
policy works to the detriment of individual injured workers, does not and should not apply in a given case, and does
more harm than good for the client. For example, should a young person who may apply for government or law
enforcement employment want a record of a prior workers’ compensation claim with a psyche allegation?

Counsel for injured workers should use caution before alleging a psyche case. The injured worker should be fully
informed of the consequences of including a psyche component to his or her case. Counsel should also be aware of
whether the psyche claim will reach the 51% causation threshold of Labor Code § 3208.3. The injured worker may
be subject to severe scrutiny during his or her deposition that includes questions about personal matters dating back
to childhood. Any applicant’s attorney who sits next to an injured worker during a deposition should have fully and
completely prepared the injured worker for the types of questions that will be asked in a psyche case. There is a
mantra from some attorneys who represent injured workers—“why ruin a perfectly good orthopedic case with a
psyche case?”

All kidding aside, counsel for injured workers need to evaluate each case on the merits of including a psyche
component in a case if a mental disorder is part of other claimed parts of body injured. This is especially true in light
of the 2012 reforms that prevent additional permanent disability for a psychiatric mental disorder that is a
compensable consequence of a physical injury that does not meet the definition of a “catastrophic injury” [see Lab.
Code § 4660.1(c)].

If counsel is claiming that the psychiatric condition is a compensable consequence of a physical injury, then
treatment for a mental disorder that is caused by the physical injury has to be treated on an industrial basis and the
limitation of Labor Code § 4660.1(c) only applies to permanent disability and not treatment for the industrially
related psychiatric condition.

Lawyer's Guide to AMA Guides and CA Workers' Comp

Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
1-10 Lawyer's Guide to AMA Guides and CA Workers' Comp § 10.04
The Lawyer's Guide to the AMA Guides and California Workers' Compensation > CHAPTER 10
Psychiatric Injuries
§ 10.04 Cross-over With Civil Causes of Action

An additional strategic decision has to be made on the basis of a pure psychiatric case—one in which there is no
physical injury claim. The decision here involves whether to refer the injured employee to a civil attorney for a civil
action with or without filing a workers’ compensation case. The best examples are cases that involve sexual
harassment by a supervisor over a subordinate employee and the employee suffers from a mental disorder as a result
of that.

Recently a case involved a 32-year-old employee of a medical group when, six years prior to her going on a medical
leave, the employee had ended a three-year affair with her married supervisor. The supervisor spent the remaining
six years of the applicant’s career harassing and threatening her, writing her up for misconduct, and destroying her
reputation. This caused significant enough psychiatric problems for the employee that she qualified for Social
Security Disability benefits based on her psychiatric diagnosis alone. The case started as a workers’ compensation
claim, but ended with a six-figure civil court settlement and a stipulated award in the workers’ compensation claim.

Lawyer's Guide to AMA Guides and CA Workers' Comp

Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
1-10 Lawyer's Guide to AMA Guides and CA Workers' Comp § 10.05
The Lawyer's Guide to the AMA Guides and California Workers' Compensation > CHAPTER 10
Psychiatric Injuries
§ 10.05 DSM-5 Adopted by American Psychiatric Association

The criteria for diagnosing mental disorders have changed since May of 2013 which may alter the way psychiatric
industrial injuries are rated for permanent impairment. Psychiatric injuries are not evaluated under AMA Guides
Chapter 14. The 2005 PDRS requires use of the Global Assessment of Functioning (GAF), which is indicated at
Axis V in the DSM-IV diagnosis. The method of rating permanent impairment for psychiatric injuries has not
changed under SB 863 for industrially related psychiatric injuries that do not fall under the limitations of Labor
Code § 4660.1(c). So the description of how to rate psychiatric impairment has not changed from the recent
legislation. The methodology described below, therefore, applies to mental-mental cases, mental-physical cases, and
physical-mental cases in which the latter kind of case involves a violent act or the injured employee was in the
proximity of a violent act or the injured employee suffers from a catastrophic injury.

What has also dramatically changed is the way mental disorders are determined. Diagnostic criteria for many
conditions we see in our cases have changed effective May 10, 2013, when the DSM-5 was adopted by the
American Psychiatric Association (APA). Labor Code § 3208.3(a) mandates the use of the DSM-III or any other
nationally accepted psychiatric diagnosis criteria for the determination of a psychiatric disorder. Axes I through V of
the various diagnostic statistics manuals have existed in the DSM-III, DSM-IV, and DSM-IV Text Revised editions
from the APA. Axis V is the GAF score that is the basis of a WPI rating using the 2005 PDRS as described below.
However, on May 10, 2013, the APA issued its long awaited DSM-5, which incorporates updated information on
mental illness and disorders based on current research and the clinical experience of practitioners.

The APA originally published its first version of a DSM in 1884 based on institutionalized mental patients. After
World War II, DSM “evolved through four major editions into a diagnostic classification system for psychiatrists,
other physicians, and other mental health professionals that described the essential features of the full range of
mental disorders.” According to the APA, “[t]he current DSM-5 builds on the goal of its predecessors (most
recently, DSM-IV-TR or Text Revision, published in 2000) of providing guidelines for diagnoses than can inform
treatment and management decisions” [see DSM-5, p. 6]. So it took the APA 13 years to revise the DSM-IV. In fact,
the APA decided to name the DSM-5 using the number “5” rather than using the Roman Numeral “V.”

Why discuss specific disorders in the DSM-5 in this guidebook? Psychiatric claims in our workers’ compensation
cases have been more common than not. Even with the new restrictions imposed on injuries occurring on or after
1/1/2013 under Labor Code § 4660.1(c), this factor has not discouraged many applicant’s counsel from routinely
including psyche as a separate and distinct alleged industrial injury. Counsel for both applicants and defendants must
become aware of the diagnostic criteria for mental disorders that we commonly see in our cases in order to properly
depose an injured worker as well as take testimony at a deposition of psychiatrists and psychologists.