Kamin: Psych Cases: Return to Work Should Lower PD

Tuesday, July 12, 2022 | 0

When conducting discovery in psych cases, it’s important to make sure that medical evaluators are completely aware of any return to work and attempts to return to the workplace after the initial date of injury when evaluating impairment.

John P. Kamin

The American Medical Association's Guides to the Evaluation of Permanent Impairment call for the consideration of four categories when evaluating psychiatric impairment. They are:

• Activities of daily living (ADLs).
• Social functioning.
• Concentration, persistence and pace.
• Adaptability.

Med-legal experts are supposed to take these categories and determine which class the applicant is supposed to be in for each category. Class 1 is the least severe; it is “no impairment.” Class 5 is the most severe, and that is labeled “extreme impairment.”

In most workers’ compensation cases, it’s quite common to see competing reports from both treating physicians and qualified medical evaluators (QMEs) or agreed medical evaluators (AMEs).

At a recent deposition, I had two competing reports: a treating report with a relatively low PD rating, and a QME report with an unusually high PD rating. What was one of the key differences between the reports?

The treater’s report, albeit much older, had a very accurate history about applicant’s job applications and eagerness to return to the workplace. The QME’s report, which came much later, had no mention of that. Between the two reports, applicant accepted a short-term contract to perform a functioning job for a few months. After the last report, she landed a similar, but long-term permanent position.

The QME was unaware of this. Simply put, he was so focused on the applicant’s employer on the date of injury, and on the thousands of pages of other records and voluminous facts in the case, that subsequent employment got lost in the shuffle.

When taking the QME’s deposition, the QME was surprised to learn applicant had returned to work and said that it would have a great impact on his evaluation of impairment. And it did: He dropped his whole person impairment (and therefore PD rating) significantly.

In summary, these four categories are all impacted by a return to work:

• ADLs: A person who can get himself ready for work, drive to an office, figure out his lunch plan, perform a job with a variety of duties and get himself home on a regular basis arguably has minimal limitations of his activities of daily living.
• Social functioning: Many jobs, if not most, require some degree of social interaction. Simply put, if a person was able to successfully interview for a meaningful job and subsequently reports no problems with co-workers, that tells the QME that she is interacting appropriately and communicating effectively with others. Those last few words, “interacting appropriately and communicating effectively,” are straight out of the AMA Guides.
• Concentration, persistence and pace: A person who is able to hold down a job where she can concentrate, keep doing her job duties and do them at an acceptable pace is probably not having much impairment. If someone was hired for a new job, it’s fair to assume that the new employer thought that the applicant was able to fulfill all of these categories. If not, why hire them? And if the applicant is still at that new job, it’s fair to assume that she's doing all right in this category.
• Deterioration or decompensation: Also known as adaptability, this refers to applicant’s ability to handle stressful situations. Interviewing for a new job is a stressful situation, and doing it well enough to get hired shows the ability to handle stress in an appropriate way.

Conclusion

In psych cases, pay attention to anything hinting at subsequent employment. This could come up in a deposition when an applicant eagerly says he's applying for jobs, or in a provider’s narrative that notes that applicant just interviewed somewhere.

Alternatively, in cases with less-than-honest applicants, it might appear in sub rosa video where applicant goes to the new workplace while conveniently failing to mention this to any of the treating physicians.

Regardless of the source, keep an eye out for any signs of attempts to return to work in your review of a file. Once you find those, determine if the doctors on your case are aware of them. If not, bring that information to their attention, as that could result in a lower PD rating.

John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.