DANA POINT, Calif. — Employers who have yet to see a psych claim in their workers’ compensation programs are on notice, as experts say claims for only mental and physical injuries with alleged mental components are on the rise — and many of them warrant defenses.
A trending topic in workers’ compensation, at least two sessions a day at the four-day Workers’ Compensation & Risk Conference were devoted to the topic, with many panelists going into the legal and nitty-gritty of adequately defending such claims: what is required; when to depose; how to interview the claimant; how to investigate; what is obviously not a psych claim; and pitfalls to avoid.
The reasons for the increase in such claims are unclear, as the panelists pointed to a number of factors: an increase in presumption laws for first responders; rising crime rates; the diminishing stigma of mental illness; and the documented increase in mental illness across the country.
The COVID-1
9 pandemic alone ushered in more psych claims, according to Omar Behnawa, Orange, Calif.-based managing partner at Laughlin, Falbo, Levy & Moresi LLP, who spoke during a session Wednesday. “A lot of people are afraid to go back to work,” he said.A common denominator in many claims is that issues of compensation are almost always raised, unless there are extenuating circumstances, such as the employee claiming a psychological injury is also a victim of violence, according to panel member Michael Gaston, a Long Beach, Calif. -based lawyer at the law firm Cipolla, Calaba, Bhatti & Hoyal.
Many employee psychological claims are the result of an employee being angry with a supervisor or the employer, which spurs a claim that their mental health was affected by an incident or how the worker feels he or she is being treated, he said.
Bullying is also on the rise, according to panelist Jeffrey Adelson, general counsel and co-managing shareholder at Adelson McLean APC in Newport Beach, Calif., who said during a session Wednesday that because there is no separate legal action for workplace bullying that some allegations of harassment and other incidents find their way into workers’ comp.
Nevertheless, many claims are the result of “the supervisor doing his job. And if that’s the case, as long as the regulators are acting in good faith, you should defend yourself,” Mr. Gaston said.
Still, “mental health claims are hard to defend because they’re subjective,” he said, adding that the bar is clear for compensation: plaintiffs in California, for example, must be diagnosed with a mental illness by a doctor, he said.
“It has to be a mental disorder; being crazy is not a mental disorder,” Mr. Gaston said.
Investigating claims is also key, according to panelists, who said a worker’s mental history — even that which occurred during childhood — can become factors and is important to document, he said.
Medical records and reports are another way to investigate a claim.
Panelist Ron Heredia, a psychologist and director and founder of Los Angeles-based Good Mood Legal, which specializes in reviewing psych reports in insurance claims, said in a session Wednesday that most medical reports are missing key elements.
For example, a doctor will give a subjective opinion — and claim the worker is “depressed” — without showing in notes observations suggestive of depression, Heredia said.
“Every fit-for-work psych report must constitute substantial medical evidence,” he added. “In the 22 years that I’ve been reading psych reports written by other psychiatrists, I see that the vast majority do not constitute substantial medical evidence” for workers’ compensation.
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