The Role of Psychological Evaluators
and Therapists in Workers Compensation Cases
George A. Harris and Martin Zehr
Address correspondence to:
George A. Harris, Ph.D.
8080 Ward Parkway Suite 140, Kansas City, Missouri 64114
Contact: [email protected]
Copyright © American Psychotherapy Association 2014
The Role of Psychological Evaluators and Therapists in Workers Compensation Cases
Abstract
This article explores ethical guidelines for psychologists in workers compensation cases
and concludes that there are few differences between the roles of evaluator and therapist
as expert witnesses. This inherent role conflict is a potential source of problems for
psychologists who are involved in workers compensation cases. Ethical guidelines that
admonish psychologists to refrain from providing services both as evaluator and therapist,
if strictly followed, end up restricting psychologists from working within this system and
from providing important services. The article also explores how workers compensation
expectations influence the treatment of workers compensation clients.
Keywords:
ethical guidelines for forensic psychologists in workers compensation,
confidentiality in workers compensation, informed consent at the risk of
practicing law
Readers will: •
Learn inherent and unavoidable role difficulties for psychologists in workers compensation cases
•
Learn why standard assurances of confidentiality may be misleading and contrary to workers compensation requirements
•
Identify responsibilities of evaluators and therapists working within the workers compensation system
Copyright © American Psychotherapy Association 2014
Role of Psychological Evaluators and Therapists
in Workers Compensation Case
In recent years, the role of forensic psychologists has been differentiated
from the role of treating therapists. Greenberg and Shuman (2007)
discussed the conflicts inherent in assuming the role of both therapist
and evaluator, and advised psychologists to avoid role conflicts created by
conducting evaluation and subsequently assuming a treatment role, or by
offering evaluation opinions after providing therapy. There is no doubt
that conflicts can occur when psychologists assume these dual roles, but
the nature of workers compensation cases essentially requires therapists to
also be evaluators, and that problem is the focus of this article.
Specialty guidelines for forensic psychologists (2013) state that
“forensic practitioners refrain from taking on a professional role when
personal, scientific, professional, legal, financial or other interests or
relationships could reasonably be expected to impair their impartiality,
competence, or effectiveness, or expose others with whom a professional
relationship exists to harm.” However, there is not complete agreement
or clarity about this issue. Heitzel (2007) maintained that there can be
compatibility between therapist and evaluator roles. Cardwell (2014)
noted that in actual practice, courts often ask treating therapists to
provide expert testimony in proceedings and that this testimony is a vital
component of the legal process that should not be readily abandoned. As
will be discussed in this article, psychologists who provide treatment in
workers compensation are routinely expected to also provide evaluative
opinions that can affect the disposition of a claim.
It may be helpful in this discussion to define the legal status of
witnesses who may be asked to provide opinions to an administrative or
judicial proceeding. The role of the expert witness, generally speaking, is
to provide informed opinion to assist the trier of fact, the court, in making
its decisions. For example, in a child custody case, the court must settle
disputes between parents regarding custody and visitation, and often an
expert witness psychologist will make a specific custody recommendation
to the court. A therapist, however, can serve as a treating expert witness
but should avoid making custody recommendations without completing
Copyright © American Psychotherapy Association 2014
The Role of Psychological Evaluators and Therapists in Workers Compensation Cases
an evaluation of both parents. The therapist would likely be able to make
at least limited recommendations regarding the parenting ability of the
treated parent. Therapists may be able to assume the role of a fact witness
and provide only information about what was said in therapy and answer
questions about how therapy was conducted, but in most cases, courts
will ask the therapist for an expert opinion as well. As a practical matter,
psychologists will be expert witnesses or treating expert witnesses if asked
to testify.
Blurred line between expert witness
and treating expert witness
Workers compensation cases, in particular, provide examples of the
blurred line between expert witness and treating expert witness. The
treating psychologist in a workers compensation case is paid by the
workers compensation system, not the client, and the scope of therapy is
limited to issues directly related to the injury. Consequently, the treating
psychologist must perform a reasonable evaluation, including a review of
relevant medical records to determine the cause of injuries and should do
so just as an evaluating psychologist would.
The therapist, generally, should not provide treatment for issues
unrelated to the injury, no matter how important those issues may
be. For example, workers compensation would not pay for treating
depression that resulted from a stressful divorce but presumably would
pay for treatment of depression resulting from a painful on-the-job
injury. A treating psychologist should also be alert for the possibility
of malingering and secondary gain and should confront this problem if
suspected. An evaluating psychologist should, of course, make treatment
recommendations if a psychiatric condition is present.
The “treating” psychologist is frequently deposed and asked to offer
opinions about the client’s progress, employability and extent of injuries.
Questions asked about these matters are much the same as those asked of
the independent evaluator. In workers compensation cases, laws in most
states require the treating psychologist to provide treatment notes to the
workers compensation system, including attorneys.
Complicating matters further, workers compensation clients do
not unilaterally pick their own therapists. The therapist usually must
be approved by the client’s and the workers compensation attorneys.
Additionally, the client’s own health insurance will not pay for treatment
elsewhere if the injury is work-related. Clients may go to any provider
they choose as long as they pay for the service, but this presents a practical
restriction for most people.
It is not difficult to understand, then, how the client might perceive
the therapist to be an agent of the workers compensation system. Clients
do not by themselves select their therapists, do not set the treatment
goal (return to work), do not have the right to restrict access to workers
compensation treatment records and cannot control or restrict what their
therapist says about their employability or causation of psychological
injury. It is not a practical possibility for a therapist to assume the role of
therapist in these cases and decline to serve as a treating expert witness.
The fact that the psychologist’s fees are paid by the workers compensation
insurer underscores the reality that, no matter how psychologists perceive
their role as independent, they are an agent of the workers compensation
system.
In an ideal world, the independent psychological examiner is
neutral and objective in offering opinions to the court. In practice,
however, the neutrality of “independent” examiners is frequently
challenged because they are paid by either plaintiff or defendant.
Likewise, treating psychologists’ neutrality may be questioned because
they are viewed as advocates for their clients. In the end, the workers
compensation judge must parse the opinions of evaluating psychologists
and treating psychologists for bias and for defensible use of evidence and
reasoning in forming a conclusion.
Because of all these characteristics of the workers compensation
system, it is unrealistic to conclude that there is a clear difference between
an expert witness and a treating expert witness in workers compensation
cases, and there is little reason to believe that there is a practical role
distinction between evaluators and therapists.
Copyright © American Psychotherapy Association 2014
The Role of Psychological Evaluators and Therapists in Workers Compensation Cases
Special characteristics of evaluation and treatment
procedures in workers compensation
The difficulties of providing evaluation and treatment in workers
compensation cases extends beyond role definition and into matters such
as obtaining informed consent from the client. Psychologists may believe
that the Health Insurance Portability and Accountability Act (HIPAA)
regulations, and therefore standard release forms, should be used with
all clients including worker’s compensation clients. But, as noted earlier,
HIPAA makes exceptions for workers compensation records, allowing
greater and freer disclosure of these records without the client’s consent
(U.S. Department of Health and Human Services, Health Information
Privacy). State laws may provide rules more stringent than HIPAA
regulations, but many do not, and psychologists must be familiar with
the applicable laws of their state. Giving clients inaccurate information
about privileged communication at the beginning of therapy would be
false assurance and could encourage clients to make disclosures they might
otherwise withhold.
Would it be wise, then, for therapists to tell clients there is limited
confidentiality in their discussions? Such a warning might cause clients
a high degree of anxiety about revealing other personal problems that are
not, strictly speaking, work-related because clients would understandably
fear that such personal information could become public with potentially
harmful results through the workers compensation adjudication process.
Therapists, of course, need this information to fully understand their
clients and to determine whether an emotional symptom displayed is a
result of a work injury or a result of non-work related stressors.
Obtaining such information under false pretenses, however, as
a result of non-disclosure of the confidentiality limits associated with
participation in the workers compensation system is arguably unethical, if
not fraudulent. The requirement of informed consent is not, in this sense,
remarkably different from that applicable to other therapy contexts, in
which the client, as a prelude to therapy, is made aware of confidentiality
limits.
Of course, some clients may claim their work injury is the cause of
all or nearly all of their emotional problems in order to maximize claims.
Consequently, clients might minimize, in treatment, the discussion of
longstanding personal problems in order to focus blame on their workrelated injury. Evaluators and therapists alike are obligated to explore
these matters in order to assist workers compensation in the processing of
the worker’s claim.
This creates a dilemma for treating professionals. Psychologists,
whose records will be used by workers compensation or who may become
treating expert witnesses cannot consistently provide good treatment
if they are hearing only half of their client’s story, so it is unwise to
encourage clients, intentionally or unwittingly, not to disclose problems
and symptoms that are not work-related. If a therapist advises clients that
their statements could hinder their claims, thereby advising clients of the
inevitable evaluator/treater role of the psychologist, then does this not
potentially hinder effective treatment even if it may harm clients’ legal
claims?
In many respects, psychologists come dangerously close to
providing legal advice in worker’s compensation cases if they attempt to
advise clients about all concerns related to confidentiality and all possible
ways in which the psychologist may be called upon to answer questions
before a workers compensation court. For example, a psychologist might
tell a client that HIPAA may not apply to worker’s compensation cases, but
is it a legal opinion to tell a specific client that his or her records are not
protected health information under HIPAA? Is it providing incorrect legal
advice to advise clients through commonly used confidentiality forms that
their communications with the psychologist are protected? Using forms
designed for a different type of treatment can be misleading since they
may convey information about limits of confidentiality that are, in fact, not
relevant to workers compensation cases.
Or, to explore these problems from a different angle, is it the role
of the psychologist to explain to clients the role of the expert witness, the
treating expert witness and the treating therapist who is called to court
only as a fact witness? Would most clients be able to hear this information
Copyright © American Psychotherapy Association 2014
The Role of Psychological Evaluators and Therapists in Workers Compensation Cases
and understand how best to use it in meeting with the psychologist?
Should the psychologist go into detail about the implications of these roles
for a specific client’s legal case? In most cases, this would not be good
practice.
Attorney-client discussions may also be revealed inadvertently in
treatment by the areas a psychologist chooses to explore, and psychologists
must decide whether to open these doors. For example, psychologists
might ask clients about the specifics of their past and current workers
compensation claims. Such discussions may well elicit disclosure of
conversations clients have had with their own attorneys, and once
disclosed, this information may no longer be protected under attorneyclient privilege.
In such conversations, the disclosure of information about prior
workers compensation claims could suggest a pattern of exaggerated
claims or a history of emotional injuries. Attorneys may then ask treating
psychologists to offer an opinion regarding the possibility that clients are
exaggerating or malingering in order to increase their claims, and honest
answers to these questions could create a conflict between therapist and
client.
Further, psychologists are also often asked in workers
compensation cases to offer an opinion regarding the question of whether
a specific accident is the “prevailing” or “primary” factor in the present
injury, and knowledge of earlier claims would inform this opinion.
In discussions about prior claims clients might inadvertently reveal
conversations with their attorneys about their legal strategy and not realize
they should not discuss this because the attorney probably would not want
this revealed to the workers compensation defense attorney in the case.
An important question is whether it the responsibility of the
psychologist to explain to clients that the protection of attorney/client
privileged communication may be limited or broken by discussing such
conversations with a third party, a psychologist, whose conversations with
clients are ordinarily also privileged except in worker’s compensation
cases. Would advising clients about these issues be ethical or harmful?
Would such discussions come close to offering legal opinions that are
better left to clients’ legal counsel? On the other hand, is it unethical for
the psychologist not to make a reasonable attempt to advise clients that
conversations with an attorney should remain private?
Fortunately for psychologists, in almost all workers compensation
cases, clients have an attorney, and it is arguably the attorney’s
responsibility to advise the client about legal matters relating to
participating in psychological evaluation and treatment. The attorney
presumably should instruct the client on which attorney-client
conversations or subjects not to discuss.
Psychologists should probably provide a general overview
of the workers compensation system but encourage their clients to
consult their attorney regarding concerns about confidentiality, the
role of the psychologist, and what should and should not be told to the
psychologist. The responsibility of psychologists is to recognize that they
are compensated for providing evaluation and treatment of work-related
injury. They should provide their best professional opinions to the court
and to the client without regard for whether the opinion helps or hurts
a client’s case, regardless of whether the psychologist is retained as an
independent examiner or treating therapist.
An illustrative case example
A 61-year-old woman, Joan, slipped and fell in a factory where she
worked on an assembly line. She complained of back pain and went to
the occupational medicine clinic where imaging revealed no evidence
of orthopedic injury. The physician diagnosed soft tissue strain and
prescribed anti-inflammatory and muscle relaxant medications.
Joan, however, complained that she was in too much pain to work
and remained off work for three months. She reported that the pain
remained intense, and she became depressed. Workers compensation sent
her to a therapist, Dr. Howell, for treatment. Dr. Howell recommended
Joan be assessed for medications, and the occupational medicine physician
prescribed an antidepressant while Dr. Howell counseled Joan.
Copyright © American Psychotherapy Association 2014
The Role of Psychological Evaluators and Therapists in Workers Compensation Cases
In counseling sessions, Joan revealed she was going through a
stressful divorce and further noted that she had worked all her life and was
tired of working. In one session she said, “all I want to do is get to 62 so I
can start Social Security and retire. I'll be fine financially if I can stay on
workers compensation until then.”
After Joan was on medication for three months, the occupational
medicine physician said Joan was at maximum medical improvement. Dr.
Howell believed it was likely that Joan had some symptoms of depression,
but largely because of her personal circumstances and not because of
back pain. He addressed this concern in a counseling session with Joan
and also suggested she should consider returning to work because her
depression was not severe enough to prevent her from working. In fact, he
concluded, she had been depressed prior to her fall at work and had been
working successfully.
Dr. Howell could not say that Joan’s back pain was the prevailing
factor in the depressive symptoms she experienced. He explained that
he was required to provide session notes to workers compensation and
potentially to provide opinions about her return-to-work status. He
informed Joan that workers compensation would not likely continue to
pay for counseling for depressive symptoms unrelated to a work injury.
Joan stopped attending counseling, and her attorney sought another
opinion about the cause of her depression.
This case illustrates practical considerations in workers
compensation cases. Therapists are asked to provide return-to-work
recommendations and are reasonably expected to provide the basis for
their opinions. Their role is not just therapeutic but evaluative. Evaluation
opinions may affect the therapeutic relationship, but this is unavoidable for
therapists who take workers compensation cases.
It is entirely possible that Joan is not consciously malingering in
order to collect workers compensation until she is old enough to collect
Social Security. And it is possible that she does experience sufficient pain
to cause depression, though medical assessment shows no basis for the
pain. Nevertheless, Dr. Howell should conduct treatment with awareness
of the goals of workers compensation. When asked, he should provide his
best professional opinion and the basis for the opinion.
Case example 2
Dr. Smith, a psychologist, received a referral to evaluate an employee,
John, who was burned in an explosion while repairing welding equipment.
John had been treated for his burns and had also been seen by a
psychiatrist, who diagnosed post-traumatic stress disorder and prescribed
antidepressant medications. John returned to work and worked with
apparent success for two months but then violated a company policy and
was terminated. John alleged that he was terminated for having filed a
workers compensation claim.
Dr. Smith evaluated John and agreed that he needed treatment
for anxiety and depression symptoms and should remain on medications
as prescribed. However, Dr. Smith concluded that John was able to work
based on the fact that he had been working for two months after returning
from treatment for his burn injuries. Dr. Smith reviewed his evaluation
results with John.
John disagreed with Dr. Smith and claimed he was not able to work
and that he should not have returned to work at all after the accident. But
he told Dr. Smith that workers compensation would not authorize him to
return to the psychiatrist for renewal of prescriptions or for counseling.
Workers compensation personnel confirmed that John was not approved
to return to previous doctors and asked that Dr. Smith provide counseling
for John. Dr. Smith met with John for six sessions while attempting to
get renewed authorization for John to obtain necessary medication. John
asked Dr. Smith to provide an additional letter stating Dr. Smith’s opinions
about the need to stay on medication. Later, John’s attorney objected to
Dr. Smith counseling John because Dr. Smith had concluded that John was
able to work after receiving treatment for burn injuries. John was then
referred to a different psychologist.
Dr. Smith assumed both evaluator and therapist roles, even though
John disagreed with at least part of the evaluation opinion. John returned
for meetings with Dr. Smith, and Dr. Smith intervened to help John receive
appropriate medical treatment. In one session, Dr. Smith asked John if he
wanted to continue to meet and John said that he did because the sessions
Copyright © American Psychotherapy Association 2014
The Role of Psychological Evaluators and Therapists in Workers Compensation Cases
provided an “outlet.” But after his termination, John did not attempt to
find another job and told Dr. Smith that his attorney said that returning to
work at another job “would hurt my case.”
This example reveals the complexities of evaluation and treatment
roles in workers compensation cases. Because workers compensation
could discontinue providing psychiatric treatment, John was left with no
medical care, even though Dr. Smith believed such care was necessary. Dr.
Smith believed it was necessary to provide treatment and intervention to
help John get at least minimal care. In those treatment sessions, John may
have revealed attorney-client conversations that would break the privilege
of that relationship. And, eventually, John and/or his attorney concluded
that counseling would be better provided by another psychologist because
Dr. Smith had concluded that John was able to work despite his injuries.
Conclusions
The nature of treatment in workers compensation is unquestionably
affected by the requirements of the system. Because workers
compensation will not fund treatment for non-work-related issues,
therapists have little choice but to inform their clients directly about their
opinions on the causes of their problems. In other therapeutic contexts,
a therapist may choose a non-directive approach and permit clients to
come to a conclusion of their own. But in workers compensation, such
open-ended, costly, non-directive counseling could be seen as avoiding
responsibility for wise use of a limited pool of funds for other injured
workers.
The psychologist providing services, whether evaluative or
therapeutic, necessarily engages in a balancing act of client-centered
interests and the legal, contractual interests of the employer paying for the
psychologist’s services. Under such circumstances, the psychologist must
maintain an acute sensitivity to the potential pitfalls in the professional
relationship with a client that renders it a much different endeavor than
“normal” therapy or evaluation activities.
There are ethical dilemmas for psychologists providing services
in the workers compensation system. However, this system expects
therapists to provide expert opinion and asks evaluators at times to
provide treatment. When the legal structure brings psychologists into
both evaluator and treatment roles, can professional ethical guidelines
reasonably prohibit professionals from providing both evaluation and
treatment?
Psychologists may avoid the expectations and limitations of
the workers compensation system by choosing not to provide workers
compensation services. But in doing so, psychologists would vacate a huge
area of practice in which their expertise is badly needed and ultimately,
even considering the inherent constraints of the system, patients can derive
some degree of therapeutic benefit.
Copyright © American Psychotherapy Association 2014
The Role of Psychological Evaluators and Therapists in Workers Compensation Cases
The Role of Psychological Evaluators and Therapists in Workers Compensation Cases
References
American Psychological Association. (2003). Legal issues in the professional practice of psychology. Professional Psychology: Research and Practice. 34(6). 595-600.
Cardwell, Michael S. (2014). The Psychological Expert Witness: Ethical Considerations. The Forensic Examiner (2014). Retrieved from http://www.theforensicexaminer.com/2014/Phsycforensic.php.
Greenberg, S.A. & Shuman, D.W. (2007). When worlds collide: Therapeutic and forensic roles. Professional Psychology: Research and Practice. 38(2). 129-132.
Health Insurance Portability and Privacy Act of 1996. Pub.L. 104-1991 (1996). Retrieved from:
http://www.hhs.gov/ocr/privacy/hipaa/administrative/index.html.
Heitzel, T. (2007). Compatibility of therapeutic and forensic roles. Professional Psychology: Research and Practice. 38(2), 122-128.
Specialty Guidelines for Forensic Psychology (January 2013). American Psychologist, Vol. 68, No.1. pp. 7-19.
U.S. Department of Health and Human Services. Health Information Privacy (1996).
Retrieved from http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/workerscomp.html.
Copyright © American Psychotherapy Association 2014
The Role of Psychological Evaluators and Therapists in Workers Compensation Cases
About the Authors
George Harris PhD
I am the consulting
psychologist for the Kansas
City Regional Office for
developmental disabilities.
I also provide consulting
for Midwest Career Center,
an evaluation program for
Ministers. I taught Psychology
course for Johnson County
Community College and
Avila College while in graduate school. I provide pre-employment
evaluation and fitness for duty services to several areal police and fire
departments.
Copyright © American Psychotherapy Association 2014
Martin Zehr
Martin Zehr, Ph.D., J.D., is
a licensed psychologist and
attorney in Missouri. He was a
staff psychologist for the Veterans
Administration Medical Center,
an associate in a law firm and
a psychologist conducting
neuropsychological examinations
in a hospital before entering private
practice in Kansas City, Missouri.
Related certification offered by American Psychotherapy Association
and its sister organizations.
Certified Forensic Consultant (CFC)
Demonstrate your proficiency in foresics with the Certified Forensic Consultant (CFC) program.
You will be assessed on knowledge and competency in areas relating to consultation services, litigation processes, general
legal principles, witness payment, the discovery process, the deposition, and the trial.
See more at: http://www.acfei.com/forensic_certifications/cfc/
Advertisement
Copyright © American Psychotherapy Association 2014
You entered this field in order to help people. When was the last time that an organization came along to provide any real
help to you? The mission of the American Board of Professional Counselors, ABPC program is to be the nation’s leading
advocate for counselors. ABPC will champion counselors’ right to practice
Becoming a Board Certified Professional Counselor will provide you with resources, low or no cost continuing education
opportunities, and a forum to network with your fellow professional counselors.
See more at: http://www.americanpsychotherapy.com/certifications/abpc/
Advertisement
Copyright © American Psychotherapy Association 2014