Psychiatric Annals

The articles prior to January 2013 are part of the back file collection and are not available with a current paid subscription. To access the article, you may purchase it or purchase the complete back file collection here

The Injured Worker and Disability Evaluation 

Psychiatric Disability Evaluation of the Injured Worker: Legal Overview

Herbert Lasky

Abstract

In recent years there has been a virtual explosion of claims related to "stress and strain" or psychiatric disability in workers' compensation and other disability compensation systems. The August 6, 1986 edition of the San Francisco Chronicle reported that National Council on Compensation Insurance figures indicate about 15% of all occupational disease claims nationwide in 1985 were stress related, up from about 5% in 1979. The October 1985 issue of Business Week reported "Stress claims are making business jumpy. All but nine states now pay compensation for job related emotional problems. ' ' The April 13 and July 7, 1984 issues of The Economist referred to estimates that stress-related illness cost the United States $66 billion a year and Britain $9 billion a year, in each instance about 2% of each country's gross national product.

Serious issues have arisen in this connection. Should psychiatric disability as a work-related event be compensated at all? Is it feasible to classify and define psychiatric injury for the purposes of the compensation system so that valid claims can be distinguished from spurious ones? Are there practical ways to quantify the effects of psychiatric disability on the open labor market so that appropriate compensation benefits can be measured? The California Division of Industrial Accidents Medical and Chiropractic Advisory Committee recently addressed these issues by appointing a subcommittee to establish guidelines to deal with what it conceived to be the critical issues. This subcommittee was comprised of four psychiatrists, three psychologists, one medical social worker, one labor market analyst, and one attorney (this author}.1 Because the problems addressed by California essentially occur nationwide, the California approach should be of interest to all concerned with these types of cases.

The basic approach is to give the legal system psychiatric conceptual tools and to provide the psychiatric establishment with legal conceptual tools. Thus, the guidelines established by the California subcommittee provide a prescribed format for medicolegal reports by the psychiatric consultants in these cases. The questions of existence of mental injury, industrial causation, definition of disability, and measurement thereof and apportionment to preexisting conditions are dealt with as follows:

* a uniform nomenclature, such as the DSM-m-R, is adopted,

* legal standards for determining causation are set out and resporne in terms of such standards required,

* existence and extent of disability are required to be defined and measured in terms of the effect of the psychic injury on eight basic psychological work functions (ability to maintain appropriate work pace, follow instruction, perform simple tasks, relate to others, influence people, decision-making, supervision, and perform complex tasks) ,

* legal standards for apportionment to preexisting disability are set out and response in accordance with the standards required, and

* substantiation of findings as required above by specification of the particulars of the psychiatric examination and history on which the reporting doctor bases his or her finding.2

A cornerstone of this system is its reliance on the classifications of the DSM-III-R. Because the status of the DMS-III-R is a somewhat controversial matter in the psychiatric profession, some words should be addressed to the appropriateness of using it for dealing with the type of legal problems described here.

The critics in the psychiatric profession are concerned that the DMSIII-R lakes too much of a cookbook approach - that it may be forcing natural phenomena into unnatural classifications. From a scientific standpoint, these may be appropriate concerns. However, the feet that there may well be some defects in the complete accuracy of these definitions and that time will bring about changes does not impede their use by the legal system now. Consideration…

In recent years there has been a virtual explosion of claims related to "stress and strain" or psychiatric disability in workers' compensation and other disability compensation systems. The August 6, 1986 edition of the San Francisco Chronicle reported that National Council on Compensation Insurance figures indicate about 15% of all occupational disease claims nationwide in 1985 were stress related, up from about 5% in 1979. The October 1985 issue of Business Week reported "Stress claims are making business jumpy. All but nine states now pay compensation for job related emotional problems. ' ' The April 13 and July 7, 1984 issues of The Economist referred to estimates that stress-related illness cost the United States $66 billion a year and Britain $9 billion a year, in each instance about 2% of each country's gross national product.

Serious issues have arisen in this connection. Should psychiatric disability as a work-related event be compensated at all? Is it feasible to classify and define psychiatric injury for the purposes of the compensation system so that valid claims can be distinguished from spurious ones? Are there practical ways to quantify the effects of psychiatric disability on the open labor market so that appropriate compensation benefits can be measured? The California Division of Industrial Accidents Medical and Chiropractic Advisory Committee recently addressed these issues by appointing a subcommittee to establish guidelines to deal with what it conceived to be the critical issues. This subcommittee was comprised of four psychiatrists, three psychologists, one medical social worker, one labor market analyst, and one attorney (this author}.1 Because the problems addressed by California essentially occur nationwide, the California approach should be of interest to all concerned with these types of cases.

The basic approach is to give the legal system psychiatric conceptual tools and to provide the psychiatric establishment with legal conceptual tools. Thus, the guidelines established by the California subcommittee provide a prescribed format for medicolegal reports by the psychiatric consultants in these cases. The questions of existence of mental injury, industrial causation, definition of disability, and measurement thereof and apportionment to preexisting conditions are dealt with as follows:

* a uniform nomenclature, such as the DSM-m-R, is adopted,

* legal standards for determining causation are set out and resporne in terms of such standards required,

* existence and extent of disability are required to be defined and measured in terms of the effect of the psychic injury on eight basic psychological work functions (ability to maintain appropriate work pace, follow instruction, perform simple tasks, relate to others, influence people, decision-making, supervision, and perform complex tasks) ,

* legal standards for apportionment to preexisting disability are set out and response in accordance with the standards required, and

* substantiation of findings as required above by specification of the particulars of the psychiatric examination and history on which the reporting doctor bases his or her finding.2

A cornerstone of this system is its reliance on the classifications of the DSM-III-R. Because the status of the DMS-III-R is a somewhat controversial matter in the psychiatric profession, some words should be addressed to the appropriateness of using it for dealing with the type of legal problems described here.

The critics in the psychiatric profession are concerned that the DMSIII-R lakes too much of a cookbook approach - that it may be forcing natural phenomena into unnatural classifications. From a scientific standpoint, these may be appropriate concerns. However, the feet that there may well be some defects in the complete accuracy of these definitions and that time will bring about changes does not impede their use by the legal system now. Consideration of the fundamental difference in the underlying objectives of the law and of medicine should help to understand why this is so. The purpose of medicine is to heal and to maintain health; the purpose of law is to furnish a substitute for combat in resolving disputes in society. As long as a conceptual approach furthers that goal in the law, the fact that the premises of the approach may not be totally accurate or that it is susceptible to improvement do not negate its usefulness as a practical aid to resolving disputes. Accordingly, for the legal system, the DSM-III-R was a heavensent aid to achieving an effective degree of uniformity and objectivity for evaluating psychiatric claims.

The process of evaluating a psychiatric disability in workers' compensation is broken down into several basic questions. These are:

* Has the applicant sustained an injury that caused a mental disorder? The answer is to be found by considering whether the applicant is alleged to have sustained a mental disorder, as defined in the DSM-HlR, and whether there is substantial legal evidence from which each of the elements of such a mental disorder as defined in the DSM-UI-R can be found to exist.

* Was the condition caused by the employment? This leads to the question of how causation of psychic injuries are defined; this question is probably the single most vexing concern for the various authorities, whether legislative, judicial, or academic, confronted with the issue. Again, workable solutions to the problem of causation can be developed by making proper use of the conceptual tools furnished by both the psychiatric and the legal community. From the medical standpoint, the following questions for determining causation have been suggested: 1 ) what is the natural course of the disease; 2) what has been the course of the individual's life up to the time in which he or she allegedly sustained the disabling event? Thus, how would the person have developed had the event not occurred; 3) what is the degree of the susceptibility of the person in question to the type of stress involved; and 4) does the type of disability involved tend to be caused by the disease involved in the case?2

The legal approach will be presented by describing the development of the case law on this subject in California. That development began with a foundation in the following established principles:

* The necessary causation will be found in a workers' compensation case where a work stress is one of the contributing cause of disability. (Bstandig v Workers' Compensation Appeals Board, 68 Gal App 3rd 988, 137 Cat Rptr 713, 42 CaI Comp Cases 114 [1977].)

* A contributing cause is one without which injury would not have occurred. (Albertson's, Ine v Workers' Compensation Appeals Board, 131 CaJ App 3rd 308, 314, 182 CaI Rptr 304, 308, 47 CaJ Comp Cases 460, 466 [1982].)

* Industry takes the employee as it finds him or her and the "lighting up" of a previously nonsystematic patliological condition by an industrial injury renders the employer fully responsible for the resulting disability. (Colonial Insurance Co ? IAC, 29 Cal 2nd 79, 83, 1 1 Cal Comp Cases 226, 228, 172 P 2nd 884 [1946].)

Then came the famous case of Albertson's Ine v Workers' Compensation Appeals Board, 131 CaI App 3rd 308, 314, 182 CaI Rptr 304, 308, 47 CaI Comp Cases 460, 466 (1982), which dealt with what is perhaps the most controversial issue in these cases. Is a mere subjective perception of stress from working conditions an appropriate basis for an award of workers' compensation benefits? This question was answered in the affirmative by Albertson's Ine v Workers' Compensation Appeals Board, but this case also stated a limit on its scope.

The facts of Albertson's Ine v Workers' Compensation Appeals Board follow. As part of a general layoff in a plant, the applicant was laid off. It subsequently appeared that they had mistakenly applied the seniority rules and therefore she was called back to work. She testified that after that her boss was harsh and unfair to her, citing various examples of unfair behavior. As a result, she had an anxiety attack and then filed a workers' compensation claim for stress in her employment. There was evidence of various nonindustrial life difficulties. Her psychiatrist said that she had a mild obsessive compulsive personality and that sensitized her to stress and colored her perceptions of stress. The defense psychiatrist said that her symptoms night be the result of progressive deterioration of her underlying personality disorder. The testimony at the trial established that her supervisor was in fact courteous to all employees and that some of the incidents the applicant described had not in fact occurred.

The main issue on appeal was whether the applicant's subjective perception of stressful events having occurred was in itself sufficient to support an award even though actually the events had not occurred. The Appellate court held that it was, saying:

because industry takes the employee as it finds him Lamb v Workers' Camp Appeals Bd (1974) 11 CaI 3rd 274, 282, 39 CaI Comp Cases 610, 113 CaI Rptr 162, 520 P 2d 278 quoting liberty Mut Ins Co v IND ACC Com (1946) 73 Cal App 2d 555, 559 ( 1 1 Cal Comp Cases 66, 1 66 P2d 908) , a subjective test (that is one personal to the applicant) has been applied in California to injuries resulting from stress. 'It is not the board's assessment of the amount of stress inherent in a workman's employment which governs in matter of stress caused injuries, but rather the board's determination of the amount of stress which the particular employment has in fact asserted upon the particular workman.' . . . Lamb, supra 11 CaI 3rd pp. 282-283) The proper focus of inquiry, then, is not on how much stress should be felt by an employee in his work environment, based on a normal reaction to it, but how much stress is felt by an individual worker reacting to the work environment. His perception of the circumstances (eg, underlying crowded deadlines, mountains of paper, a loo fast assembly line) is what ultimately determines the amount of stress he feels.*

However, in an equally important part of its opinion, the court showed its awareness of the dangers implicit in an unrestricted emphasis on subjectivity in determining stress causation issues. The court said that in Albertson's Ine ? Workers' Compensation Appeals Board, there was substantial evidence to support a finding that the employment played an active role in the development of the psychiatric condition, but that the general rule in these cases should require a determination of whether the employment itself was a positive factor influencing the course of disease as distinguished from a mere stage for the event, an after-the-fact rationalization, or a mere passive element that a nonindustrial condition happened to have focused on.

The first published decision in which the active versus the passive role of the employment test was applied to deny compensability was the case of 2OiA Century Fox Film Corporation v Workers' Compensation Appeals Board, 141 CaI App 3rd 779, 190 CaI Rptr 560, 48 CaI Comp Cases 275 (1983). In this case, the employee sought compensation benefits for an alleged general anxiety disorder caused by the stress and strain of his employment. He testified that the stress was due to working with a dangerous alcoholic whose drunkenness caused the employee to do his work and in addition the employee had to sign fraudulent purchase orders filled out by his supervisor. He also testified that he had written a screenplay, which was rejected by the studio, and the same day the screenplay was rejected, he was in a minor automobile accident that compelled him to take some time off from work. He never returned and subsequently filed his claim for injury to his psyche.

A psychiatrist reporting on behalf of the employee diagnosed an anxiety neurosis and a passive-aggressive personality with obsessive traits. He described the aforementioned facts and said that the employee's primary concern was furthering his career as a screenwriter, which meant that his success or failure at work and psychological adjustment to employment was largely based on his ability to further his career as a writer. The psychiatrist said that his commentary was limited by inadequate information as to the accuracy of the depiction by the applicant. The psychiatrist concluded that the rejection of the screenplay caused the employee's previous efforts to bind his anxiety to collapse and therefore to sustain a psychic injury. The trial court found compensability.

The Court of Appeal reversed on the basis of the active versus passive causation doctrine. The court said it is not sufficient for purposes of finding industrial causation if the nature of the employee's duties merely provide a stage for the injury, if the employment were an after-the-fact rationalization, or if the employment were a mere passive element that a iionindustrial condition happened to have focused on.

Because the trial judge had failed to make findings on whether the employment was an active cause of the condition and there was not enough evidence to determine whether such a finding could be supported, the case was remanded for further proceedings.

The next case to apply the doetrine was Georgia Pacific Corp v Workers' Compensation Appeals Board, 144 CaI App 3d 72, 192, CaI Rptr 643, CaI Comp Cases 443 (1983). In this case, the employee had filed an application for benefits due to psychiatric injury after a lay-off.

There was undisputed evidence that in 1978, the employee had been on medical leave because of a nonindustrial emotional problem involving, among other things, alcoholism. After returning from that leave, according to the employee, he noted increasing stress and strain on the job consisting of working overtime for a period and taking an airplane trip. In November of 1978, he was told that his job had been eliminated and that he would have to take a lower-paying job or be laid off. Two different psychiatric reports were presented on behalf of the applicant. In one, the doctor based his conclusion of an industrial psychiatric injury on the assumption that the applicant had been told that he would have to work longer hours or be fired and that it caused severe depression and anxiety. In reliance on that report, the trial judge found a compensable injury. The defendant petitioned for reconsideration and the full Appeals Board upheld the finding of compensable injury relying an a different psychiatric report on behalf of applicant. In this one, the doctor assumed that the applicant had been fired.

On appeal from that decision, the appellant court pointed out that these factual inconsistencies made the medicolegal reports speculative and based on inaccurate history and therefore not substantial evidence to support an award. They remanded the case to the trial court to apply the correct legal principles and again stated the rule as follows: The test of compensability is whether the employment is a substantial contributing factor to the disability. The linkage between the alleged industrial incidents and the development of the employee's disabling psychiatric conditions must be based on psychiatric opinion. The psychiatric opinion must be based on substantial evidence to support a finding that the employment played an active or positive role in causing the injury. It is not sufficient if the nature of the employee's duties merely provide the stage for the injury.

The case also presented a strong dictum on another important issue. It stated that if mere termination caused the psychiatric injury, it would not be industrial. A termination for economic or any other reason does not invoke workers' compensation liability.

This case is significant from a conceptual standpoint because it points up a distinction between medical and legal concepts of causation. It might be that medically a termination was the cause of a major depression, for example. Here, however, for reasons of legal policy it is not a basis for compensation. However, that does not mean that the doctor makes that decision; the doctor only states the medical findings. It is for the judge to determine their legal significance.

The development of the active versus the passive role of the employment doctrine should be of particular interest to psychotherapists because it indicates a developing congruence between legal analysis in this area and psychiatric principles. Indeed, there is some question as to whether the concept of "convenient focus" is a medical issue or a legal issue. The law has a category of "mixed questions of law and fact" and this may very well be one. From a psychiatric standpoint, the convenient focus doctrine brings to mind the concept of personality disorders. Thus, a preexisting passive aggressive personality, schizoaffective disorder, or antisocial personality disorder (without intending to be comprehensive) are conditions that could be conducive to making ajob the mere passive stage for the focus of a preexisting psychiatric condition.

In summary, the basic issues in causation are:

* Did the industrial stress contribute substantially to the mental disorder or were other nonindustrial events the precipitating causes?

* Was the mental disorder in question the type for which the particular industrial stress coufd be a precipitating event?

* Is the disability that bas come to light after the industrial stress all or in part the result of the industrial stress or was there a preexisting disability that was discovered by the stress rather than created by it (ie, convenient focus) ?

The issues of disability and apportionment still remain. Disability assessments in a litigation context must be expressed quantitatively. This is an issue for which the doctor's background does not prepare him or her. The following quote from the 1961 Yale Law Journal offers some insight.

The necessity of translating psychiatric terminology and concepts into legally meaningful economic terms presents a danger that the psychiatrist will be called on to make decisions beyond his [or her] special competence. Workers* Compensation Boards are dependent upon psychiatrists to provide information as to the genuineness, cause, severity, duration and extent of the injury. But psychiatrists are not qualified to estimate the percentage of normal earning capacity which has been lost due to the injury. This decision requires familiarity with a myriad of industrial practices and employment opportunities. It also requires a determination involving the reasonableness of alternatives and substitutes open to the claimant, social value judgments which seem peculiarly within the competence of the legal tribunal.3

For the resolution of this problem, the California subcommittee called on the expertise of the labor market analysts. A large body of information has been compiled over the years by the United States Labor Department pertaining to the nature and types of occupations in the US labor force, their distribution by percentage, and the types of qualities required to perform the various occupational specialties. Drawing on this information, the California Commission arrived at eight basic classifications of psychological job function that can be used to describe the full range of occupational requirements in the American labor market;

* the ability to comprehend and follow instructions,

* the ability to perform simple and repetitive tasks,

* the ability to maintain a workplace appropriate to a given work load,

* the ability to perform complex or varied tasks,

* the ability to relate to other people beyond giving and receiving instructions,

* the ability to influence people,

* the ability to make generalizations or decisions without immediate supervision, and

* the ability to accept and carry out responsibility for direction, control and planning.

The administrative guidelines require that medicolegal reports submitted for the determination of contested issues contain findings as to the effect of the psychiatric injury on each of these work functions. The doctor's findings are to be expressed in terms of a range running from "slight," to "moderate," to "severe" with intermediate gradations such as "slight to moderate." There is then a point system that has been developed for arriving at an overall percentage disability, which is then translated into dollars and cents by the basic California Permanent Disability Rating Schedule. Because this article is addressed to a national audience and not all states have the same type of rating systems, the specifics as to the particular California point system have been omitted. However, the concept of the eight basic work functions would appear to be appropriate from an evidentiary standpoint for application in any jurisdiction that is concerned with the question of whether disability from a labor market standpoint was the result of a psychiatric injury.

Finally, there is the principle of apportionment. This is the concept that the present employer should not be held responsible for disabilities that were either preexisting or are the natural progression of a preexisting condition. The doctor is required to use the same method and apply the California Guidelines that would be used for originally determining disability caused by an industrial psychic injury. That is, the doctor determines whether there was a preexisting mental disorder, labels it in accordance with the DSM-HI-R, and estimates (in accordance with the eight basic work functions system) the degree of the preexisting disability. This would then be subtracted from such amount of disability as was found as a result of die present injury.

The foregoing is a necessarily sketchy overview of the approach taken under the California system. Essentially, this system could be applied and used nationally, and indeed, for any other society concerned with these problems.

REFERENCES

1. The Evaluation of Permanent Psichiatric Disability. Report presented to the Medical Advisory Committee of the California Division of Industrial Accident, State of California, Department of Industrial Relations; 1987.

2. Guidelines for Handling Psychiatric Issues in Workers' Compensation Cases, Rancho Palos Verdes, Calif: Lex-Com Enterprises; 1988:5.

3. Workers' compensation awards for psychoneurotic reactions. Yale Law Journal. 1963:70:1129, 1133.

10.3928/0048-5713-19910101-06

Sign up to receive

Journal E-contents