Dueling Shrinks: Uncompensable Depression

Tuesday, March 23, 2010 | 0

By Jon Coppelman

Depression is by no means a rare occurrence in the workplace, but depressions that lead to compensable claims under workers comp are very rare, indeed. The burden of proof on the claimant is substantial, generally requiring a conclusive demonstration that work is the "predominant cause" of the depression. Given all that goes on in our lives, this can be a very tough standard to meet.

Janina Guz was a factory worker until 2002, when she sustained a work-related injury and filed for workers' comp benefits. She had bilateral carpal tunnel syndrome, later amended to include a neck injury and an aggravation of a preexisting back condition. In 2007, she amended her claim to add a major depressive disorder. Her case reached the Appelate Division of New York's Supreme Court.

Shrink One, Shrink Two
The case revolved around the testimony of two psychiatrists, one hired by the insurer and one by the claimant. The two shrinks approached Guz's complaint with very different perspectives, which naturally influenced their conclusions.

Dr. Areyeh Klahr conducted independent medical examinations in 2006 and 2007. In 2006 he found Guz to be exhibiting some symptoms of depression, but in his opinion this depression did not prevent her from working. One year later, he concluded that Guz no longer suffered from an ongoing psychiatric condition and had reached maximum medical improvement. Klahr cast a sceptical eye on Guz: he found significant inconsistencies in her responses and concluded that her complaints did not correlate with his objective findings. Klahr ultimately concluded not only that Guz did not suffer a work-related psychiatric disability, but that she was not really depressed.

A claims adjuster would call this IME a "home run."

The evidence in support of Guz came from her own psychiatrist, Alina Marek, who treated Guz on five occasions beginning in January 2008 - which the court noted was more than five years after her injury. Marek diagnosed Guz as having a major depressive disorder that was causally related to the work accident. However, she she acknowledged that she had no information about the circumstances or nature of Guz's work-related injury. She was also unaware that Guz had been involved in two prior motor vehicle accidents which involved injuries to her neck and hands. Marek had to concede that such prior injuries would be important in diagnosing Guz and determining the cause of her depression. Marek further conceded that she had no information regarding Guz's daily activities or her personal life history, including the fact that she was divorced. When pressed to specify the basis for her opinion that Guz's depression was related to her workplace accident, Marek admitted that she relied entirely upon Guz's subjective account. The Board found Marek's testimony on the issue of causally related psychiatric disability to be "entirely lacking in credibility."

Objective, Subjective

It's interesting to note the radically different frames of reference used by the two psychiatrists. An independent doctor with no ongoing relationship to Guz, Dr. Klahr zeroed in on the inconsistencies in Guz's complaints. Using the "objective" standards of his profession - not always as objective as they appear - he concluded that Guz was fabricating her complaint in order to preserve her comp benefits.

In distinct contrast, Malek took Guz at her word. Guz said she was depressed and she said that the depression was related to her work. Malek did not feel the need to probe any deeper.

In the world of comp, medical opinions quickly turn into dollars: if a condition is work related, all the medical bills are paid and the claimant receives indemnity. If it's not work related, no such payments are made. While it's tempting to make a judgment about the relative quality of the two psychiatric evaluations, that might not be entirely fair. From a workers comp point of view, the court had ample reason to conclude that Guz's situation did not rise to the level of compensability. From a purely medical perspective - regardless of whether work caused the problem - Guz is in pain and in trouble. Given the court's decision, she will find no further solace in workers comp.

WorkCompCentral subscribers may download the appellate court's opinion by clicking the case title in the sidebar.

Jon Coppelman is a principal with Lynch Ryan & Associates, a Massachusetts-based employer consulting firm. This column was reprinted with his permission from the firm's blog, http://workerscompinsider.com