an interview with Susan C. Rose, Ph.D., QME.
Q. What are the specific implications for psychological/psychiatric injury claims of significant recent decisions concerning Labor Code Section 4662?
Dr. Rose, Ph.D. Let me start by extending wishes for a happy new year to you all from the Glaser Forensic Group. So as to contribute to this, I plan to help clarify what has become confusing to many as regards to permanent total disability benefits for psychological/psychiatric injuries since the Legislature passed Senate Bill 863 (SB 863) in fall 2012, which has been applied to all Worker’s Compensation specific and continuous trauma cases ending on or after January 1, 2013.
Over the past year, I have heard many complaints about the continuing viability of psychological/psychiatric permanent total disability benefits since this law took effect. However, a close examination of the specific statutes and legal analysis suggest otherwise. Rather, it seems that injured employees, who have developed mental, sleep, and/or sexual disorders as a primary response to work-related events arising from conditions of overwork, harassment, and/or discrimination, remain entitled to benefits as before. Even those claimants who have developed such psychological/psychiatric disorders secondary to physical injuries, e.g., spinal injuries, continue to be entitled at times to increased permanent total disability benefits, in addition to medically necessary psychological/psychiatric treatment and temporary disability compensation. As well, these latter applicants continue to be eligible for psychological/psychiatric permanent total disability benefits in cases wherein the industrial event resulted in a catastrophic injury, e.g., loss of a limb, paralysis, severe burn, or severe head injury; or involved becoming a victim of or directly exposed to significant violence in the performance of one’s job duties.
Yet, even in those cases to which the statute is addressed and attempting to improve for the betterment of the system, i.e., psychological/psychiatric disorders secondary to physical injuries, permanent total disability has not been demolished as is often inferred incorrectly. Rather, confusion has developed around the sometimes interchanging of terms “impairment” and “disability” in the Worker’s Compensation system. While one’s impairment rating cannot be increased by “sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof” according to the new statute, there is no such restriction on an increase in permanent disability due to these factors. Rather, since permanent total disability is determined by decreased functioning, as one examines the impact of a physical injury on activities of daily living in addition to social and emotional functioning; it becomes apparent that the consequence of an occupational psychological/psychiatric injury, either primary or secondary, may vary tremendously.
As such, a psychological/psychiatric examination remains a critical tool in determining the extent of permanent total disability damages to a claimant. One can readily appreciate that the nature of one’s medical or psychological/psychiatric impairment may have different effects on someone’s current and future life. For example, a previously high functioning client in a professional job who strains his lower back may have an easier time recovering well enough to return to performing his usual and customary duties; whereas another individual with similar spinal injuries with a less satisfying job, history of abuse, and/or recent deaths in the family, would be impacted differently. A thorough evaluation with psychological testing, taking into account prior coping strategies and possible vulnerabilities, an applicant’s credibility, and comprehensive assessment of activities of daily living, is essential in determining accurately the impact on or permanent psychiatric disability status of an individual.
And as is often the case, the skills of a trained mental health professional are needed to obtain as complete an understanding of the facts in a case as possible in emotionally distressed, cognitively impaired, and/or somatically focused clients.
If additional clarification is needed, please do not hesitate to contact any of us at this group.