Psychiatric Issues in Treating and Reporting

Saturday, December 6, 2003 | 0

Recent California cases have, I believe, created an unknowing malpractice bear trap for physicians practicing industrial medicine, necessitating ever more vigilance by the primary treating physician, and subsequent physicians, in the initial intake and subsequent patient interviews. The issue is psychiatric sequelae of industrial injuries, and the problem is the recordation and substantiation of problematic cases where the injury itself, the treatment, or resulting disability creates a psychiatric component.

A case recently handed down by the Fourth Appellate District of the California Court of Appeals, Wal-Mart Stores, Inc. vs. WCAB (Garcia) (No. E033208, 10/30/03) brings to light the essence of the problem. The essential holding of the case is that Labor Code section 3208.3 requires a psychiatric injury arising out of physical injury be governed by LC 3208.3 limitations.

In the Wal-Mart case, Velta Elaine Garcia ("Applicant") suffered an admitted orthopedic injury to her back while employed by Wal-Mart in February of 1995. At the time, she had worked for the employer for less than six months. Applicant had back surgery and did not return to work. Four years after the incident, Applicant amended her workers' compensation claim to assert that she had suffered damage to her psyche resulting from the disability caused by the orthopedic injury. The workers' compensation judge ruled that she was not entitled to compensation benefits with respect to the claimed psychiatric injury because it was barred by the "six-month" rule of Labor Code section 3208.3, subdivision (d). LC 3208.3(d) restricts the availability of workers' compensation benefits for psychiatric injuries if the employee had been employed for less than 6 months.

The Wal-Mart case relies on the paramount case of Lockheed v. WCAB (McCullough), 96 Cal.App.4th 1237 (2002). In Lockheed, the applicant sustained an admitted cumulative injury to her right upper arm and neck and also alleged psychiatric and internal injuries. The workers' compensation judge awarded the applicant in Lockheed permanent disability for her right upper extremity and neck, but found that the threshold of compensability required by LC 3208.3 was not met. The Board reversed, and the appellate court took the matter up, finding in favor of the judge's original holding.

The Lockheed court said (1) the precipitating physical injury constitutes an "actual event[] of employment" within the meaning of 3208.3 and that (2) a consequential psychiatric injury is compensable if and only if it is more than half attributable to a physical industrial injury.

That a work injury is traumatizing is well documented. The Lewin Group, in its report to the Industrial Medical Council on the expense component of delivering care to injured workers in the California workers' compensation system, noted in its survey that "many physicians reported that workers' compensation patients often have greater psychological stress associated with their injuries than other types of patients due to the potential loss of employment and other financial considerations."* Not only does this add to the expense in delivering care to injured workers, but calls for physician intercession where stress, or psychiatric issues, require treatment.

Thus, inherent in the physician's care of an injured worker is necessarily the issue of making inquiry into, and documentation of, complaints of stress, both industrial and non-industrial. The physician should be aware of the injured worker's mental status upon presentation for examination, and may wish to make questions necessary to ascertain the patient's stress level, as well as various individual stressors, a part of the intake documentation. The documentation should be carefully reviewed with the patient on each examination date to determine whether there is any decomposition in the patient's mental state, and an appropriate referral should be sought where mental issues are identified.

In particular, documentation of non-industrial stress at the first appointment is critical because the threshold of injury will be governed by the date of physical injury. As has been noted, the injury may lead to increased stress over time as a patient's disability continues - that increased stress will be played out upon non-industrial situations (financial stress, marital stress, etc.), and then it becomes difficult for the legal experts to determine whether the threshold of compensability has been met.

Certainly the intervention suggested in this article would not have helped the applicant in the Wal-Mart case, but could have made a huge difference in the outcome of the Lockheed case.

Article by David DePaolo, editor in chief and president of workcompcentral.com. He can be reached by e-mail at david@workcompcentral.com.

* A Study of the Practice Expenses Associated with the Provision of Evaluation and Management Services, May 12, 2003

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