PSYCH … in a nutshell
ANALYZING PENSION PSYCH CASES GC §31720
THE LEGAL ANALYSIS
1.
Did the member prove s/he is psychiatrically
incapacitated for duty?
2.
Did the member prove the psychiatric
incapacity is permanent?
3.
Did the member prove via substantial
evidence, a 'real and measurable' causal
connection between the member's work and
the psychiatric incapacity? Specifically, did
the member prove the following three things?
3a. Did the member's psychiatric incapacity Arise
Out of Employment? (the AOE portion of the
AOE/COE test).
3b. Did the psychiatric incapacity occur in the
Course of Employment? (i.e. Was the
incapacity caused by the member performing
services for the employer?) (the COE portion
of the AOE/COE test).
3c. Is the causal connection 'real and measurable?
3d. Is the casual connection 'measurable'?
Meaning was work a substantial, medically
'traceable' and explainable cause … not an
infinitesimal or inconsequential factor?
FURTHER EXPLANATION
Board decisions resolving medical issues, must be based on expert medical
opinion in the form of a medical report, that is 'substantial medical
evidence'. A medical report is substantial evidence if the physician ♦ offers
a diagnosis, ♦ articulates the objective findings, ♦ makes a medical
conclusion on each medical fact in dispute, ♦ bases conclusions on an
accurate and complete history, and ♦ articulates the medical reasoning of
how the physician progressed from the objective facts to her/his ultimate
conclusions.
3a. Did the member prove some connection between the employment and the
psychiatric incapacity? For instance, are the psych complaints related to
the member's employment or do they concern something/someone in the
work place? If so, the psychiatric incapacity probably Arises Out of
Employment and meets the AOE portion of the AOE/COE test.
3b. Where the substantial and persuasive evidence proves the member's
psychiatric incapacity was caused, in part, by the member performing job
duties, (such as handling a heavy workload, performing prolonged or
excessive overtime, unreasonable deadlines, chronic understaffing, lack of
supervision… or something about actually performing the job), the
member's incapacity arises in the Course of Employment, and meets the
COE portion of the AOE/COE test.
Alternatively,
The member's incapacity is not considered as arising in the Course Of
Employment, where substantial and persuasive evidence shows the
member's incapacity is not the result of performing her/his duties, but is
rather the result of the member's misperception of unfair or harassing
treatment; or is a reaction to properly administered discipline for bad
conduct, or which shows the member's employment was merely a passive
stage where the member's non-work-related psychiatric condition played
out, just as it would have elsewhere. (Note: Incapacity caused by
discipline which is found wrongful, or discipline which is based on
inability to perform the job because of disability, would be a basis for
finding COE).
3c. The causal connection cannot be theoretical, or conclusory or imagined,
nor can it be an 'after-the-fact rationalization'.
3d. The Panel Physician must identify the evidence establishing performance
of duties was a measurable, contributing factor. (For example: identifying
treatment records showing the psychiatric treatment commenced shortly
after the member came under the supervision of the allegedly harassing
supervisor, or shortly after the member started performing some stressful
duty, showing the member discussed the employment problem in
counseling sessions, or witness statements confirming an overwhelming
work situation, or other evidence showing the member's duties were
chronically stressing. In order for 'performance of duty' to be more than
an 'inconsequential factor', the Panel Physician should be able to state and
quantify, that absent the work related harassment, or stressor, the member
would not have become permanently incapacitated at the time s/he did.
PSYCHIATRIC CLAIMS
PSYCH … in a nutshell
ANALYZING WORKER'S COMPENSATION PSYCH CASES
1.
Has the employee suffered psychiatric injury?
("Injury" is defined as some measurable disability, or some accident or condition that caused the
worker to lose time from work).
2.
Did the injury arise out of and in the course of the worker's employment? (AOE/COE)
Was the psychiatric injury the result of an actual event of employment LC §3208.3?
(Not just a misperception of events, not merely a nonindustrial condition being played out on the
employment stage).
3.
Is there competent medical evidence establishing the percentage of causation for
each causal factor, industrial and nonindustrial?
4.
Is more than 50% of all causes of psychiatric injury, work related?
(At least 50% of all the causes must be work-related and not from discipline done in good faith).
5.
Has the employee been employed at least six (6) months before filing for psychiatric
injury? (The worker must have been employed at least 6 months to file a psychiatric claim).
6.
Was the psychiatric claim filed before the notice of termination was served on the
worker? (Post termination claims are not compensable).
7.
Was the psychiatric injury caused by a personnel action?
Was that action a lawful, nondiscriminatory personnel action taken in good faith?
(If the actual work events were lawful, nondiscriminatory personnel actions made in good faith, the
employer is not liable for resulting psychiatric injury).
8.
The requirement that the employee be employed at least six months, does not apply
if the cause of psychiatric injury is a sudden and extraordinary employment event.
(i.e. an unanticipated event for the type of job performed).
9.
The causation threshold is lowered to 35% of all causes if the psychiatric injury is the
result of exposure to a violent act at work.
PSYCHIATRIC CLAIMS