It’s important to remember that when defending against pure psyche claims, that defendants in the workers’ compensation system have a plethora of defenses to raise against them.
A vigorous defense against pure psyche claims involves closely analyzing whether the applicant has satisfied their burden of proof, while navigating a number of affirmative defenses. It’s easy to forget the numerous nuances of defending psyche claims, so here is a checklist that will make it easier to analyze psyche claims from a defense perspective.
Is there evidence of psychiatric disorder?
You cannot have a psyche claim unless a doctor diagnoses a mental disorder as defined by the American Psychiatric Associations’ Diagnostic and Statistical Manual of Mental Disorders, Third Edition Revised (“DSM-III”), or similar manuals generally accepted and approved by psychiatrists.
Thus, you should never advise your client to accept a psyche claim as being compensable unless there is a medical report from a qualified psychologist or psychiatrist that provides a diagnosis that is found in the DSM-III.
I would not trust a chiropractor, orthopedic surgeon, or occupational health doctor to make this judgment. Many people may appear depressed or anxious, but they may not be suffering from a diagnosable disorder. Never accept a questionable psychiatric claim. They can be incredibly expensive and difficult to manage.
Is there a medical report finding that “the actual events of employment were predominant as to all causes combined of the psychiatric injury?” Is that report substantial medical evidence? (Labor Code Section 3208.3(b)(1)).
It is critically important as a defense attorney to understand what this statute truly means. Initially, when I first read the statute, I found the term “injury” confusing. Does it mean an injury to one’s psyche? The answer is no!
I believe “injury” in this context means the person’s psychiatric mental disorder (as defined by the DSM-III) at the time the claim was first reported. This interpretation is in line with the definition of injury as defined in Labor Code Section 3208.3(a) — “injury” is defined “as a mental disorder which causes need for medical treatment or disability.” Injury is not an event (as in the case of any other type of injury). It is a mental health condition.
The critical and most important question that the evaluating psychiatrist or psychologist must address is whether the person’s mental disorder at the time the psyche claim was reported was caused by work related events. For a psychologist or psychiatrist to determine all of the causes of a mental disorder is actually quite difficult. That doctor needs to delve deeply into a person’s personal, employment and health history, both mental and physical. At the beginning of a claim, a psychologist or psychiatrist often does not have nearly enough information to make this determination. He or she necessarily must rely on the applicant’s often very subjective and sometimes misleading history, especially about events at work. If the claim is questionable, it is our job as defense counsel to gather and then provide the doctor with as much accurate and pertinent information so that a proper determination about causation can be made.
Always remember that the Legislature intended, by enacting Labor Code Section 3208.3(b), to make it more difficult for the applicant to prove his or her psychiatric claim.
The statute requires an applicant, with substantial medical evidence, to prove that his or her mental disorder at the time the claim is made was mostly caused by work-related events. The courts have defined “predominant cause” to mean that the actual events of employment were at least 50% of the cause of the mental disorder. This is strikingly different from orthopedic claims where a claim can be compensable with very minimal industrial causation.
Because of this, I think it is useful as defense attorneys to assume or suspect that many individuals that make pure psyche claims have long standing mental disorders or have had long standing physical conditions that have led to mental disorders.
It is our job to find that evidence – if it exists. In questionable pure psyche claims, I have found it useful at the beginning of any claim to speak with and then depose the most important employer witnesses so that the doctor can have a better understanding that some or all of the employment events that allegedly contributed to the mental disorder may be disputed.
Deposing employer witnesses has the added benefit of getting the employer involved in defending the claim. Employer witnesses are often great sources of secret or undisclosed information about the applicant.
Although it is ultimately up to a judge to determine if the event or events actually occurred, the PQME psychologist or psychiatrist, in making a judgment about percentage of causation, likely would be influenced by employer witnesses who directly contradict the applicant about critical events that took place at work.
In every pure psyche claim, always remember to consider and, if applicable, raise these three affirmative defenses: i) Post-termination, ii) good faith personnel action defense, and iii) the six month rule.
Psyche claims often arise after a person has been terminated or laid off. People are often justifiably angry, upset, and sometimes psychiatrically harmed by the termination or layoff and turn to lawyers to seek justice and inflict economic harm on their former employers.
The Legislature wanted to curtail these claims which were often fraudulent and imposed significant costs on employers who may have legitimate business or practical reasons to terminate or lay off employees.
The upshot of the statute is that if the psyche claim does not arise out of a work related physical injury the post-termination defense is actually a very effective AOE/COE defense. If the psyche claim is made after the actual termination, the claim is generally not compensable.
There are exceptions. But the burden shifts to the applicant to prove one or all of the exceptions apply. The most important exception is when the “employee’s medical records existing before the notice of termination or layoff contain evidence of treatment of the psychiatric injury.” Again, the statute uses the words “psychiatric injury,” which I translate to mean a diagnosable mental disorder.
Case law has determined that the evidence does not have to include a specific diagnosis as set forth in the DSM. It just has to include records that reveal psychiatric problems that evidence a work related mental disorder or disorders prior to the notice of termination.
The records will typically include mention of work related stress or a conflict with a supervisor. If there are mental health records that exist prior to the notice of termination, then the applicant logically has a more believable claim in that the events of employment other than the termination or layoff, was more likely a cause of his or her mental disorder. The legal issue then becomes whether work related events was at least 50% of the cause of the mental disorder for which he or she was receiving treatment.
Good faith personnel action defense
This defense is actually quite cumbersome to apply and requires both a factual and medical determination.
On its face, it appears to be simple to prove. The statute provides that a psyche claim is not compensable if a substantial (more than 35%) of the psychiatric injury (mental disorder) is caused by a lawful, good faith, nondiscriminatory personnel action.
In reality, the judge has to first determine what events of employment were personnel actions, whether they took place or not, and he or she must also determine whether those personnel actions were good faith, lawful and nondiscriminatory.
This necessarily requires defense counsel to call employer witnesses at trial and persuade a judge (skeptical in some instances) that the personnel action or actions was warranted. At the present time it is also far from clear what constitutes a personnel action for purposes of the statute.
Does the personnel action have to come from the Human Resource (HR) Department? Does HR have to ratify a supervisor’s decision to impose discipline? Would a supervisor’s counseling session with the applicant constitute a personnel action because it could lead to discipline? The practical problem with this defense is that the evaluating psychiatrist or psychologist will often not know for certain whether an event actually occurred and if so, whether that event would be considered a personnel action until there is a determination of fact made by a judge.
Thus, even after a trial takes place, the parties may have to obtain a supplemental report from the PQME doctor to determine if the defense applies.
In addition, a trial will often produce evidence and testimony that is substantially different from what the evaluating doctor was originally presented with. How do we present this new evidence to a doctor?
All of these are food for thought when considering the good faith personnel action defense.
This defense is the easiest affirmative defense to prove up. Notably, unlike the other affirmative defenses, this defense applies even for psyche injuries that arise out of a or a compensable consequence of a physical injury.
This defense provides that the psyche claim is not compensable if the applicant worked for the employer for less than six months. As with the post-termination claim, once the employer proves that the employment was less than six months (of active service—not just on the books), then the burden shifts to the applicant to prove one of the exceptions. If there is any chance that the actual employment was less than six months, the wage records and personnel file become extremely important.
I would not, however, rely exclusively on those documents. An employer representative will almost always need to testify to confirm what was in the records and to provide a good record upon which the judge can base his or her decision that the six month rule applies.
Often in these cases, the employee will try to argue the “sudden and extraordinary employment condition” exception and employer testimony can provide evidence of whether a particular incident or event was frequent or routine as opposed to being unexpected. Employer witnesses can also cast doubt on the veracity of applicant’s claims, making it even easier for a judge to decide against the applicant.
In conclusion, when analyzing pure psyche claims it’s important to remember to make the applicant satisfy the basic burdens of proof as mentioned above. If their claim survives that analysis, then apply the affirmative defenses and see where one ends up.
Along the way, deposition testimony, subpoenaed records, medical reports, prior claims, witness testimony will all shape your analysis of how to best defend against these problematic claims.
Ronald A. Cher is a partner at Bradford and Barthel’s Woodland Hills location with decades of experience aggressively defending against workers’ compensation claims. If you have questions about workers’ compensation defense issues, feel free to contact him at firstname.lastname@example.org or by calling 818.654.0411.
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