ASA Law Group attorneys, Katlyn Rowe-Brasel and Rachel Smith have authored an article published in the WCLA November Newsletter. ASA’s goal of advancing our clients’ interests by way of educating the legal community is furthered by this article on the very critical issue of PTSD and Workers' Compensation Claims for Psychological Injuries.
Workers’ Compensation Claims for Psychological Injuries
By: Rachel E. Smith
Katlyn M. Rowe-Brasel
ASA Law Group
When an employee files a claim for recovery under the Illinois Workers’ Compensation Act, that person must establish that he/she has suffered a disability as a result of a work-related injury. This process is complicated when that employee seeks compensation for a psychological injury, which may only be pursued under one of three acceptable theories of recovery: mental-to-physical, physical-to-mental, and mental-to-mental.
An employee may be entitled to compensation when he/she suffers a physical disability due to mental, emotional or psychological stress or trauma related to his/her employment. In this situation, we would see psychological factors, such as workplace mental stress, manifesting in an identifiable physical disability, like a heart attack. It should be noted, however, that when alleging a physical injury as a result of workplace mental stress, the claimant need not prove increased or unusual stress at the time of injury. Baggett v. Indus. Comm’n. (2002). A claimant can prevail on this type of claim simply by establishing a causal connection between the day-to-day employment stressors and the physical disability.
Psychological injury is may also be compensable if the injury is related to and caused by a physical trauma or injury. In this circumstance, the precipitating physical trauma must be at least one causative factor of the ensuing psychological injury; and, physical contact alone, without trauma or injury, can be sufficient to sustain a claim under the physical-to-mental theory of recovery. City of Springfield v. Indus. Comm’n. (1997). It is under this theory, that a claimant might be entitled to recover workers’ compensation benefits for psychological injuries secondary to nonconsensual sexual encounters related to employment, absent physical damage.
The most challenging claims to recover for psychological injury arise in the absence of a physical trauma or injury; however, these claimants can prevail under the mental-to-mental theory originally set out by the Illinois Supreme Court in Pathfinder Co. v. Indus. Comm’n (1976). The Court established that such injuries are compensable, but only in cases where the individual suffers a sudden, severe, work-related emotional shock, traceable to a definite time and place, and which causes an actual psychological injury. This standard was later expanded by the Court’s decision in Gen. Motors Parts Div. v. Indus. Comm’n. (1989). which requires the emotional shock to be precipitated by an uncommon event of significantly greater proportion or dimension than that which the employee would otherwise be subjected to in the normal course of employment. In 2013, the Court clarified that the Pathfinder decision covers psychological injuries that may not be immediately apparent, so long as the emotional shock itself is sudden. CTA v. Ill. Workers’ Comp. Comm’n. (2013). Further, the determination of whether the claimant suffered an emotional shock under the Pathfinder standards should be judged using the standard of an objectively reasonable person from the public. Diaz v. Ill. Workers’ Comp. Comm’n. (2013)
Generally speaking, physical trauma is easy to identify. A strain, tear or fracture. A concussion cut or infection. All these traumatic injuries can be experienced, observed, tested for, diagnosed, and ultimately treated. But when we hear about a traumatic event, many times that trauma comes without physical injury, instead impacting the psychological well-being of those individuals who have experienced it. From an analytical perspective, the greatest difficulties with understanding psychological trauma arise from a fundamental misunderstanding of the role of subjective assessment and the necessity for objective evaluation that the diagnostic and treatment processes require.
As practitioners on both sides of the bar will agree, when a claimant is diagnosed with a psychological condition, such as PTSD, major issues arise with prolonged recovery and the unavoidable accumulation of associated costs and indemnity exposure. These problems are exacerbated by an underwhelming level of education and/or understanding throughout the legal community concerning the process by which psychological conditions are objectively diagnosed. Primarily, misconception as to the existence of identifiable criteria and objective scientific evaluation behind a specific psychological diagnosis and the identification and assessment of malingering as well as its impact on the diagnostic and treatment processes.
Diagnosing Post-Traumatic Stress Disorder
PTSD is one of many psychological reactions to emotional trauma, but whether an individual actually suffers from PTSD is a matter which must be determined to a reasonable degree of medical and psychological certainty. The primary tool that healthcare professionals utilize is The Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which is considered the foremost authoritative guide to the diagnosis of mental disorders. The American Psychiatric Association published the fifth edition of this diagnostic tool in 2013, and with it came the creation a new category of trauma and stressor-related disorders, of which PTSD is included. The DSM-5 sets out the specific criteria which must be met in order to officially diagnose an individual with PTSD.
Although the DSM-5 is written in such a way that the average person can understand the criteria at a basic subjective level, qualified experts, like forensic psychologists, must apply these criteria to each particular individual and situation in order to provide a reliable, objective diagnosis. The DSM-5 sets out clear guidelines for what constitutes a traumatic event and focuses more on the behavioral symptoms which accompany PTSD. The manual provides four distinct diagnostic clusters and two specifications, all of which must be satisfied for a PTSD diagnosis to be valid. Criterion A address the event itself, specifying what constitutes a traumatic event for purposes of diagnosis. Criterion B require that the individual persistently re-experience the trauma in at least one of five ways, while Criteria C indicates that the individual must demonstrate avoidance of trauma-related thoughts, feelings or reminders. Criterion D and E address that negative thoughts or feelings must either initially manifest or increase after the trauma and that, after the event, the individual must exhibit specific types of reactivity to trauma-related triggers.
Overall, the DSM-5 requires that all qualifying symptoms (1) occur for more than a month, (2) create distress or functional impairment, and (3) are not the result of medications, substance abuse or some other illness. In addition to meeting all diagnostic criteria, the claimant must experience high levels of either depersonalization or derealization and, although the onset of symptoms may occur immediately, full diagnostic criteria cannot be met until at least six months after the event. In order for a claimant to recover for work-related PTSD, a qualified expert must properly evaluate that individual’s symptoms, and the event from which those symptoms allegedly stem, against the requirements set forth in the DSM-5. If those requirements are not met, the expert will use the DSM-5 to try and identify whether the claimant suffers from any other psychological disorder. However, if those requirements are met, the expert must always be on the lookout for symptom magnification and signs of what the DSM-5 identifies as Malingering.
DSM-5 and Malingering
For litigators on both sides of a Workers’ Compensation claim, the issue of malingering is one which constantly arises and is often the subject of Arbitral intervention. What is often judged to be a matter of subjective assessment, in fact requires a valid determination by a qualified expert utilizing industry accepted tools to objectively evaluate on a case by case basis. The DSM-5 specifies how to objectively identify the signs and symptoms of malingering so that such a finding can be relied on from an evidentiary standpoint. It is important to understand that the DSM-5 does not identify malingering as a disorder, but rather the absence of any particular disorder. In other words, if it is determined that an individual is malingering, that means that he/she is feigning or exaggerating physical or psychological symptoms of an actual medical or psychological disease/disorder.
The most commonly malingered psychiatric conditions often include: dissociative identity disorder, psychosis, suicidal tendencies, mood disorders, and PTSD. The manual includes specific criteria which should be used in order to evaluate whether one is suffering from a particular and identifiable disorder, or whether that disorder is being “faked.” The primary factor, which often triggers an assessment for malingering, is the identification and potential influence of external incentives. Such incentives might include the desire to avoid military duty, work, or criminal prosecution, or might be an attempt to feed a drug addiction or secure financial compensation.
The DSM-5 clarifies the differences between malingering and factitious disorder, conversion disorder, and related conditions - as all could involve the feigning of symptomology. Yet, malingering is the only condition here where symptoms appear solely because there is an external incentive. On the contrary, an individual exhibiting signs of a factitious disorder, may involve someone who undertakes a high personal cost just to be perceived as ill. The figure to the left is an effective guide to understanding the key differences when evaluating the validity of a particular diagnosis.
Models of Malingering Behavior
The DSM-5 argues that if “any combination” of the following four items is present in a patient, you should consider the condition of malingering:
(1) Medicolegal context of presentation;
(2) There is a “marked discrepancy” between the individual’s “claimed stress or disability” and “objective findings and observations”;
(3) “Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen”; and,
(4) The presence of antisocial personality disorder.
As with other diagnostic tools, the DSM-5 is not the only guide for identifying and assessing an individual for malingering behavior. According to the Adaptational Model, one who partakes in malingering utilizes a ‘cost-benefit’ analysis while being examined. In other words, it finds that one is more likely to malinger in the following circumstances: 1) the examination is viewed as confrontational/accusatorial; 2) heightened personal stakes are involved; and, 3) no other alternatives/options seem viable.
Assessment of Malingering
There are several factors that feed into the assessment of whether malingering is present in a case. Two main factors include the clinical interview and collateral information/records. Those two will be assessed through an examiner’s clinical experience and testing to fully determine whether an examinee is a malingerer.
The Clinical Interview
A vital step in the assessment of malingering, the clinical interview is a detailed process that utilizes the objective guidelines for diagnoses and related screenings set by the DSM-5. An examiner will be able to utilize the clinical interview as an opportunity to gather the evaluee’s understanding and manifestation of their symptoms in the evaluee’s own words. In such notes, an examiner will highlight how one’s manifestation of symptoms occurred, what their ongoing symptoms are, and whether those symptoms as typical or atypical. An examiner will also be able to keep a pulse on the consistency throughout the entirety of an evaluee’s narrative. Discrepancies and consistencies will be detailed. This may not just involve the narrative that is being given, but also the behaviors and cognitive indicators that are exhibited.
It is understood that an examiner will rely on their clinical experience during the interview to help determine any patterns, normal or abnormal, for self-reported symptomology. In particular, note the number of symptoms that are reported. It is understood that there are classes of symptoms: rare, blatant, and absurd. A rare symptom is considered valid, but one that infrequently reported. Blatant symptoms are those are immediately recognized as an indicator. An absurd symptom is one that is improbable and cannot be affirmed. The idea of nonselective endorsement is the idea that the more symptoms one reports, the more likely one is to be found as ill. Therefore, by tracking the class and quantity of self-reported symptoms, examiners have an additional factor to assess whether malingering may be present.
Another great resource for clinical examiners are collateral information/records. This may include concurrent or prior medical records, ambulance reports, police reports, personnel files, or even surveillance reports. Examiners will assess such records and reports to determine whether they coincide with the evaluee’s self-reported symptomology and/or manifestation of trauma. Such information provides great insight and advantages to reaching a reliable determination of malingering. Any reports or records reviewed will be noted, as will the reports or records that were requested but refused to be provided, all of which will be weighed.
Despite the ever-increasing attention that PTSD receives and the push to understand the ways in which it impacts different individuals, the general public only has a cursory knowledge of this extremely intricate and complicated disorder. More importantly, the number of mental health related filings at the Illinois Workers’ Compensation Commission is on the rise. This spike in filings adds to the weight of the responsibility for the legal community to not only be more aware of PTSD and other mental health disorders, but to become more educated and knowledgeable about how they are treated and diagnosed. It is has become the burden of the legal community to illuminate both the science and legality of these disorders and related claims to an Arbitrator and/or Commissioner so that each case is adjudicated properly. A vital part of effective comprehension is the understanding of malingering and how an examiner effectively determines whether it is present in a claim. One must not only understand the basic models and factors to be determined, but the overall process undertaken by the examiner. Only then, can litigators begin to effectively present or defend a PTSD or mental health claims on behalf of their clients.
• American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5. Washington, DC: American Psychiatric Association, 2013.
• American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-IV. Washington, DC: American Psychiatric Association, 2000.
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• Weathers FW, Litz BT, Keane TM, et al. The PTSD checklist for DMS-5 (PSL-5). National Center for PTSD. www.ptsd.va.gov. Accessed September 18, 2018.
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