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QME Complicated Apportionment I - Primary and Derivative Psychiatric Injuries Post SB863

by William W. Deardorff, Ph.D, ABPP.


6 Credit Hours - $159
Last revised: 02/10/2017

Course content © Copyright 2017 by William W. Deardorff, Ph.D, ABPP. All rights reserved.



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Table of Contents

 

Introduction and overview of the course

Overview of the case example

Learning objectives

Brief Review of Apportionment (SB899) and Psychiatric Injuries (SB863)

Apportionment under SB899

Derivative Psychiatric Injuries under SB863

Report Writing Tips and Comments

Case example reports

 

Introduction and Overview of the Course

 

This course begins with a review of apportionment under SB899 and derivative psychiatric injuries under SB863. The course then reviews evaluation and report-writing “tips” followed by a case example that demonstrates complicated apportionment under SB863 (Initial QME evaluation and follow-up re-evaluation with permanent and stationary rating for primary and derivative psychiatric injuries stemming from the same DOI).  

 

Overview of the Case Example

 

This course involves reviewing a case example of primary and derivative psychiatric injuries occurring simultaneously.  Briefly, the claimant’s clothing was caught in an escalator at her workplace causing her to fall and then be dragged for a duration of about five minutes. During this time, she was trying to extricate herself from the moving escalator while sustaining physical injuries. This resulted in PTSD (due to the fear of great bodily harm) which is a primary psychological injury and Major Depressive Disorder/Pain Disorder (due to the psychological sequelae in response to the orthopedic injuries (which is a derivative psychological injury). Since this is a post-SB863 claim, permanent impairment due to the MDD/Pain disorder is not allowed, but it is allowed for any residuals of the PTSD.

 

 

Learning Objectives

 

 

Learning Objectives

 

 

Explain apportionment under SB899

Explain Psychiatric Injuries under SB863

Discuss primary versus derivative psychiatric injuries

Discuss PTSD – Delayed

 

 

Brief Review of Apportionment (SB899) and Psychiatric Injuries (SB863)

 

Apportionment under SB899

 

Only permanent disability (PD) can be apportioned. Medical treatment, temporary disability, and death benefits cannot be apportioned. SB 899 made major changes to apportionment of permanent disability. Labor Code §4663 was revised to provide "Apportionment of permanent disability shall be based on causation." The leading Escobedo en banc case defined "other factors" to include "pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial medical evidence establishing that these other factors have caused permanent disability."

 

SB 899 added Labor Code §4664 to announce the policy that "The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." If there was a prior permanent disability award, "it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury." This was intended to prevent claims of rehabilitation as a way to avoid apportionment. Body regions were listed, so that awards over a lifetime could not exceed 100 percent, unless the case fell under Labor Code §4662.

 

Please review a more detailed discussion of apportionment under SB899 which can be found in the following: Understanding the Effect of SB899 and Section by Section Summary of SB899

 

Derivative Psychiatric Injuries under SB863

 

An overview of SB863 can be found here. SB 863 impacted several major changes to the system of permanent disability compensation by adopting a new statute, Labor Code section 4660.1, which is applicable for all injuries occurring on or after January 1, 2013. Among these changes is a limitation on the ability of injured workers to receive permanent disability compensation for sleep disorders, sexual disorders and psychological/psychiatric disorders which develop as a “compensable consequence” of physical injuries. Labor Code 4660.1(c)(1) states:

 

Except as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury.

 

It is important to look at the wording to understand the impact. The first phrase that must be evaluated is:

 

there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury ….”. 

 

Labor Code section 4660.1(c)(1) does not preclude an injured worker from receiving temporary disability compensation when, for instance, compensable consequence psychological/psychiatric disorders render an injured worker to be temporarily totally disabled.

 

Further, related to the phrase, “arising out of a compensable physical injury ….”. Labor Code section 4660.1(c)(1) does not preclude “increases in impairment ratings” for sleep disorders, sexual disorders and psychological/psychiatric disorders which occur as a direct result of the industrial injury itself. What this means in the specific context of psychological/psychiatric disorder claims is that an injured worker may still receive permanent disability compensation:

 

(1) in cases where the primary injury is to the psyche (so called “mental-mental claims”); and

 

(2) in cases of traumatic brain injury; and

 

(3) in cases where the psychological/psychiatric disorder directly results from an underlying industrial event which is inherently psychologically traumatic (e.g., PTSD).

 

The last phrase which deserves mention is: “[n]othing in this section shall limit the ability of an injured employee to obtain treatment ….”. Thus, whether or not an injured worker can receive permanent disability compensation for compensable consequence sleep disorders, sexual disorders and psychological/psychiatric disorders, that worker is still entitled to receive treatment for these conditions, provided, of course, that such treatment is deemed medically necessary. Assuming that the physical injury in a particular case is significant, one can easily understand why psychological/psychiatric treatment would be necessary to alleviate the effects of that injury.

 

With respect to psychological/psychiatric injuries, there are two exceptions to the prohibition contained in Section 4660.1(c)(1).  Labor Code section 4660.1(c)(2) states:  An increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following: Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3. Or, a catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.

 

The “Violent Act Exception”. Labor Code section 4660.1(c)(2)(A) does not define the term “violent act”. Rather, it simply references Labor Code section 3208.3, which likewise fails to define this term. Accordingly, what constitutes a “violent act” is subject to debate until such time as a precise definition is derived through the appellate litigation process.

 

To begin to understand the term “violent act” in its proper context, one needs to first review Labor Code section 3208.3(b) in its entirety: 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. In the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury. For the purposes of this section, "substantial cause" means at least 35 to 40 percent of the causation from all sources combined.

 

As such, in cases where the injured worker was either “the victim of a violent act” or was “directly exposed to a significant violent act”, the causation threshold of compensability for any resulting psychological/psychiatric injury is different. Unlike all other claims of psyche injury which are subject to the “predominant cause” standard (>50%), where a psychological/psychiatric injury results from a “violent act” or exposure to a “significant violent act” the injured worker need only prove that the act was a “substantial cause” of their psyche injury (35% - 40%). Although Labor Code section 3208.3(b) has been around since 1991, there are very few cases which address whether a particular work-related event constituted a “violent act”. Most of these cases involved rather obvious situations such as the injured worker being threatened by armed gunmen in the course of a robbery or witnessing a drunk driver hitting a pedestrian.

 

The “Catastrophic Injury” Exception. The exception provided for in Labor Code section 4660.1 (c) (2) for psychological/psychiatric conditions which result from "catastrophic injury" is vague and will likely result in significant debate.  Similar to the case of the “violent act” exception, Section 4660.1(c)(2) does not define the term “catastrophic injury”. Instead, Section 4660.1(c)(2)(B) simply provides a non-exclusive list of examples of such injuries. Once again, what constitutes a “catastrophic injury” will be unclear until such time as the appellate courts intervene.

 

Summary

 

For injuries on and after January 1, 2013, there shall be no increase in impairment ratings for the compensable consequence of a physical injury resulting in psyche, sleep, or sexual dysfunction or any combination thereof. An exception to this rule being a catastrophic injury which includes but is not limited to loss of a limb, paralysis, severe burn, or severe head injury. Clearly the legislature, in enacting SB 863, was attempting to restrict psychiatric claims, but the Labor Code and Regulations are silent as to what constitutes catastrophic injury.

 

Newly enacted Labor Code §4660 1 C (1) states in pertinent part that except as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable consequence injury. Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury.

 

A stated exception to the new rule barring increase permanent impairment in compensable psyche injuries flowing from physical injuries is spelled out in Labor Code §4660 1 C (2) which states that an increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injuries resulted from either applicant being a victim of violent act or direct exposure to a significant act within the meaning of Labor Code §3208.3 (b) or a catastrophic injury including but not limited to loss of a limb, paralysis, severe burn, or severe head injury. This newly enacted provision specifically uses the term "catastrophic injury" as opposed to "catastrophic event." This suggests the focus to be on the injury or the outcome of a work-related injury and not necessarily on the mechanism of the injury. The outcome or the effects of an injury would be one of the criteria used to define a "catastrophic injury." But, case authority has yet to make this determination as to how to properly define "catastrophic injury."

 

Report Writing Tips and Comments

 

I would like to mention a few things that I have found useful in terms of producing a report that is not likely to be challenged by either side. I believe that these approaches to completing the evaluation and report-writing may be why I very rarely get deposed relative to one of my QME/AME reports. The evaluation should attempt to clearly and fully answer all questions and issues in dispute, and provide a solid empirical/objective basis for the conclusions. If this is done successfully, there is generally no reason for deposition.

 

Include comments in the text. As can be seen in the report, I am a big fan of including “comments” throughout.  In the section entitled, “Presenting Problem as Reported by the Applicant” I will often comment about what is being reported versus other data that is available (e.g. the medical records).  I believe that commenting throughout the report helps the reader understand the basis for conclusions or the reason for issues that are not addressed.

 

Review the records before the interview. Related to making comments in the report, I also believe it is important to review the medical records before seeing the claimant for the clinical interview.  Reviewing the records can help guide the clinical examination and help the examiner delve into areas that might be overlooked absent the information from the records. If the records are reviewed after the interview, and there are discrepancies or previously unknown information, it is very difficult to have the claimant return for an additional interview. It is not always possible to get the records reviewed beforehand, but it is highly recommended.

 

Comments in the review of records.  I will also often make comments in the review of records (ROR).  This can address such issues as whether the ROR information is consistent with what the applicant reported, whether previous psychological/psychiatric results are consistent, etc.

 

Psychological testing. The psychological test battery should be tailored to the presenting problem. I have peer reviewed countless reports in which it was clear that the examiner used the same tests on all individuals no matter what.  I also include a description of the test along with the test data. As is well known, there can be great latitude in how test data is interpreted. By providing the test data, along with my interpretations, there is no question about where the conclusions are emanating from.  Also, it is important to have at least one test that has some measure of validity and response-bias. 

 

Psychiatric diagnoses.  After listing the diagnoses, I think it is important to discuss why the applicant meets the criteria for the disorder(s). To highlight certain decision-making issues, I use comments for further explanation.

 

ACOEM work-relatedness approach.  I use the six-step approach to assess work-relatedness (AOE/COE) as can be seen in the report. This helps the parties understand how the causation issues was approached and determined (versus just reporting the conclusion that the disorders were or were not work-related).

 

Credibility of the claimant.  I always include some discussion of the claimant’s credibility.  If symptom amplification is found, then it is important to discuss the ramification of the finding (e.g. due to stress, due to impression management to communicate suffering, due to malingering, etc.).

 

Causation.  It is important to discuss whether there is a primary psychiatric injury, derivative psychiatric injury, or both. This is essential post-SB863.

 

GAF determination.  Similar to all other conclusions, it is important to discuss how the GAF was determined (versus just reporting a number). This will allow the parties to see that there was some objective approach to the GAF (and WPI) determination.

 

Apportionment.  Similar to other areas, there should be some discussion about how apportionment values were determined. This should include any possible area of apportionment, no matter how small, even if the apportionment to the area is 0%. This shows the parties that all areas of possible apportionment were considered. The special case of apportionment between primary and derivative psychiatric injuries (and associated impairment) should be discussed.

 

References.  I think it is important to use references and research related to various conclusions. In this case, there was the special case of PTSD – delayed.  Since this is rather unusual, the references discussing the condition are included. Other references support the report’s conclusions.

 

Case Example

 

Please review the following case example. The initial evaluation can be found here.  The follow up evaluation and P/S report can be found here.

 

NOTE: All of the identifying information related to the case has been changed. The reports include information from a variety of cases to develop this fictitious example.

 

NOTE:  The test question help-prompts do not work for information contained in the case example reports. 



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