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QME Can Chronic Pain be a Catastrophic Injury?

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


6 Credit Hours - $159
Last revised: 02/17/2017

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 Psychiatric Injuries under SB863

Derivative Psychiatric Injuries and the Catastrophic Injury Exceptions

Report Writing Tips and Comments

Case example report

 

Introduction and Overview of the Course

 

This course begins with a review derivative psychiatric injuries under SB863, including the Violent Act and Catastrophic Injury exceptions. The course then reviews evaluation and report-writing “tips” followed by a case example that demonstrates a possible catastrophic injury exception due to chronic pain under SB863.  

 

Overview of the Case Example

 

Mr. Smith was employed by Cable Comm Systems, Inc.  as a cable installation technician on January 13, 2013 when he fell approximately 15 feet from a ladder, sustaining serious injuries to both lower extremities and his spine (L5 compression fracture, bilateral calcaneus fractures, etc.).  He also suffered co-morbid psychiatric problems including a major depressive disorder with anxiety disorder and a pain disorder.  He underwent multiple orthopedic surgical procedures in addition to psychiatric and psychological treatment. He underwent psychological treatment “…to assist him with the catastrophic and life-changing effects of his injury” (from applicant’s attorney letter).  He developed a chronic pain syndrome, complex regional pain syndrome (CRPS) and is under the care of a pain management physician.  He ambulates with a cane. He has taken a myriad of different medications over the course of his case and reports stomach pain due to these medications. He has been declared 100% disabled by Social Security.  He has not worked since the DOI, over two years prior.     

 

 

Learning Objectives

 

 

Discuss SB863

Discuss the violent and catastrophic exceptions under SB863

Discuss the chronic pain syndrome and outlined in the case example

Explain why chronic pain might be considered “catastrophic”

 

 

 

Brief Review of Psychiatric Injuries Under SB863

 

An overview of SB863 can be found HERESB 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.

 

It should be underscored that Labor Code 4660.1 (c) (2) used the term “catastrophic injury” as opposed to “catastrophic event”, “catastrophic incident” or “catastrophic accident”.  Thus, the focus appears to be on the injury (or the outcome of a work- related injury) and not necessarily on the initial mechanism causing the injury. A simple example of a patient I treated illustrates this point:

 

 

Is This a Catastrophic Injury?

 

 

A 32-year-old veterinarian sustains a minor dog bite to the index finger of her dominant right hand. There are significant problems with healing and she ultimately develops a very painful Complex Regional Pain Syndrome (CRPS, Type I) of the entire right upper extremity.  Typical of CRPS, she experiences severe pain (burning, throbbing), sensory changes, edema, sweating, and temperature disturbance in the afflicted extremity. She also experiences allodynia, hyperpathia, decreased range of motion, and functional decrement. Chronic changes also occur in the skin, nails, and bone.  After a myriad of aggressive treatments (pharmacotherapy, interventional procedures, etc.) she undergoes spinal cord stimulation implantation and this is minimally beneficial.  The symptoms are barely manageable and are spreading to the left UE. She has been unable to work for four years and is maintained on a number of different medications.  She develops a co-morbid major depressive disorder.

 

 

In this example, the minor dog bite would likely not be considered a catastrophic injury. However, in this example, the end result of the minor dog bite was essentially the functional loss of the use of her dominant upper extremity.  This is in fact one of the specific exemplifiers used in the Labor Code 4660.1 C (2). Thus, it seems that the outcome or the effects of an injury would be how a “catastrophic injury” would be conceptualized.

 

It might also be contended that there are potential sources for a definition of “catastrophic injury” under other California statutes and regulations. For example, California Education Code §44043.5(a)(1) and §87045(a)(1) each provide that “catastrophic injury” means an injury expected to incapacitate the employee for an extended period of time which incapacity requires the employee to take time off from work for an extended period of time and taking extended time off work creates a financial hardship for the employee because he or she has exhausted all sick leave and other paid time off.

 

Other California statues and regulations, (i.e., Education, Government and Welfare and Institution Codes) have referenced financial hardship, direct economic loss, or events that lead to financial ruinous situations. For example, the California Education Code, §§ 44043.5(a)(1) and 87045(a)(1) each provide as follows: Catastrophic illness" or" Injury" means an illness or injury that is expected to incapacitate the employee for an extended period of time, or that incapacitates a member of the employee's family which incapacity requires the employee to take time off from work for an extended period of time to care for that family member, and taking extended time off work creates a financial hardship for the employee because he or she has exhausted all of his or her sick leave and other paid time off.

In addition, Government Code § 19991.13 (b)(1) provides as follows: Catastrophic illness or injury means an illness or injury that is expected to incapacitate the employee and that creates a financial hardship because the employee has exhausted all of his or her sick leave and other paid time off.  Catastrophic illness or injury may also include an incapacitated family member if this results in the employee being required to take time off from work for an extended period of time to care for the family member and the employee has exhausted all of his or her sick leave and other paid time off.

Moreover, the Welfare and Institutions Code § 4785 (f) provides as follows: A regional center may grant an exemption to the assessment of an annual family program fee if the parents demonstrate any of the following, one of which was (3) the existence of a catastrophic loss that temporarily limits the ability of the parents to pay and creates a direct economic impact on the family.  For purposes of this paragraph, catastrophic loss may include, but is not limited to, natural disasters, accidents involving, or major injuries to, an immediate family member, and extraordinary medical expenses.

In addition, an Illinois appellate court described the “ordinary and popularly understood meaning” of the term “catastrophic injury” as follows: “The term ‘catastrophic’ is ordinarily understood to mean, in terms of an illness, ‘financially ruinous.’ [citation] Thus, the plain meaning of the term ‘catastrophic injury’ …refers to an injury that is financially ruinous.” Villareal v. Village of Schaumburg, 325 Ill. App. 3d 1157, 1162-1163, 759 N.E. 2d 76 (2001).

As can be seen, what constitutes “catastrophic”, aside from the four examples mentioned in the law, is unknown and not currently defined.  One group has made a suggestion as to what might constitute “catastrophic”. A task force of doctors from the California Society of Industrial Medicine (CSIMS) has proposed a framework for clinically defining "catastrophic". The document can be found HERE.  CSIMS identified 12 factors that can medically contribute to a catastrophic injury, 5 of which relate to the mechanism of injury and 7 of which relate to the effects of the injury (See the CSIMS document for the 12 factors along with weighting).



The CSIMS task force proposes that if the mechanism of injury was not one of those enumerated in the statute or "of equal medical significance", that catastrophic be defined by whether the worker's injury resulted in a variety of weighted factors on a proposed point scale. Such factors include the following in addition to others (For a complete list, click HERE):

 

 

Some Factors in Defining a Catastrophic Injury (CSIMS)

 

 

Extended period of temporary disability

 

Repeated hospitalizations, surgeries or required use of assistive devices

 

Bankruptcy, divorce or loss of home related in whole or part to the injury

 

Work-injury caused cognitive deficits

 

Chronic pain requiring intrathecal pump, narcotic dependence, etc.

 

Serious mental illness

 

Eligibility for Social Security disability as result of injury condition

 

 

Of course, the CSIMS framework is only a suggestion and does not carry any legal weight. Even so, it is important of the QME/AME to address the issue of an injury being “catastrophic” in appropriate cases even if the case does not fall into one of the following: loss of a limb, paralysis, severe burn, or severe head injury.  It is important to keep in mind that the legislature clearly stated that catastrophic injuries are “…not limited to…” those four injuries but the legislature failed to define what that means. It is likely that ultimate determination of this issue will play out in the appellate courts on more traditional lines regarding legislative intent and statutory interpretation rules.

 

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 increased 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."

 

Catastrophic Injury Related to the Case Example

 

The applicant advocacy letter in this case suggested that this might be considered a “catastrophic” injury; however, this is a complicated issue.  Per SB863, for injuries on and after January 1, 2013, the law states that 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 (aside from two exceptions to be discussed).  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.

 

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.

 

A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.

 

The first exception does not apply in this case. However, the possibility of this being defined as a “catastrophic injury” under the second exception must be entertained.

 

As can be seen in Section 4660.1(c)(2), the term “catastrophic injury” is not defined. Instead, Section 4660.1(c)(2)(B) only provides a non-exclusive list of examples of such injuries. The most important point is that what must be “catastrophic” is the outcome of a work-related injury and not necessarily the initial injury itself. Section 4660.1(c)(2)(B) speaks of a “catastrophic injury”, as opposed to a "catastrophic event," a "catastrophic incident" or even a "catastrophic accident." Furthermore, it seems  from the examples of “catastrophic injury” set forth in Section 4660.1(c)(2)(B)(i.e., loss of a limb, paralysis, severe burn, or severe head injury) that it is the outcome of a work-related injury, and not the nature of the underlying injury itself, which must be considered when determining whether that injury is indeed, “catastrophic”. For example, a simple laceration to an arm or a leg which becomes infected may cause that limb to be amputated, or a minor slip and fall injury may result in TBI or paralysis. While neither the cut nor the slip and fall is “catastrophic”, the outcome in each instance certainly is. 

 

Currently, there is no definition in the CA Workers Compensation System for “catastrophic injury”.  In other systems, catastrophic injury has been defined in different ways such as extended disability from work, financial hardship, and as “consequences of an injury that permanently prevents an individual from performing any gainful work”(42 USCS § 3796b).

 

The possibility that the current case might constitute a “catastrophic” injury will be addressed by the Trier of Fact.  Elements of this case suggesting the possibility of a catastrophic injury include, but are not limited to, the following:

 

 

Factors Suggesting Catastrophic Injury in the Case Example

 

 

The applicant is credible. He has been motivated and compliant in all of his medical and psychological treatments.

 

He has a reasonable work history and would have likely continued in gainful employment.  Because of his injuries, he will very likely not be returning to work.

 

He is s/p four surgeries and has been left with chronic pain (low back and lower extremities) for which he is receiving treatment. The records also suggest he may have developed a Complex Regional Pain Syndrome (CRPS) which is a very painful and difficult condition to manage.

 

He shows a significant orthopedic WPI and difficulties with ADLs (per the PTP permanent and stationary report – The orthopedic QME is pending).

 

Social Security has determined him to be 100% disabled (It is understood that the SSA uses different criteria, but this is another objective finding).

 

His future medical care (including long term pain medication management, possibly a SCS implant, etc.) is likely to be significant.

 

This gentleman will suffer from the psychological sequelae of his chronic pain and disability on long term basis. Much of his social network has been disrupted due to the sequelae of the injury (e.g. breakup of engagement, etc.).

 

 

As discussed, the possibility that the current case might constitute a “catastrophic” injury will be addressed by the Trier of Fact.

 

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. Although I have no absolute proof, these approaches to completing the evaluation and report-writing may be why I have not been deposed relative to one of my QME/AME reports in over six years. 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 which 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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