March 15, 2010

Dueling Shrinks: Uncompensable Depression

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.



I once had a claim that included a psych component and the injured worker was treating with a psychologist. We provided ample information to the treating psychologist that the injured worker's account of the accident and pre-existing diagnoses were in direct conflict with what was now being said by the injured worker. The treating psychologist refused to consider any 'objective' information we provided to her.
As my sister is a clinical psychologist, I posed the question to her as to why the treater would not consider our objective information. My sister informed me that when there is a doctor patient relationship established, the treating physician (psychologist or psychiatrist) has no option other than to believe the patient.
I think many times claim examiners or adjusters do not understand this and feel the treater is assisting the injured worker with an exaggeration of their claim. Forensic or reviewing physicians have no such obligation and therefore can focus only on the evidence and take all information into consideration which many times provides the courts with the necessary information to carve out the personal from the work injuries/illnesses.

Thank you for clariying that point. I agree, those outside the treatment room are often frustrated with what is decided inside the room.

As a clinical psychologist myself, I respectfully note that this is not standard in the profession. I work extensively in Occupational Psychology and I do agree that many mental health professionals over-rely on subjective information. However, we are taught in graduate school to utilize certain tools, such as objective, standardized psychological testing to confirm or rule out a diagnosis. Otherwise, the usage of subjective information alone can lead the professional to make an inaccurate diagnosis as well as provide inappropriate treatment. I just wrote an article on this for the IAIABC journal (peer-reviewed)regarding Behavioral Health issues in WC and disability claims. Please contact me if you're interested in additional information. Best regards!

The problem I have with IME's or insurer picked examiners is that one visit and a records review may be an inadequate way to assess depression. It is a first impression and saying it can be more accurate is something that depends on the examiner and the circumstances. Some IME's have a known tendency to deny and support the view that the problem does not exist or is pre-existing or is not from the work injury. The criticism of the treating doctor may be true but then again treating doctors also may have a more complete picture of the situation. What I do know is that becoming unhealthy because of any injury does not lead to happy people and some truly are miserable. Perhaps too much in this area is subjective and it is easy for a polished expert to raise doubts. Sometimes it is just very difficult to find the truth.

The challenge that all injured workers face is that so called IME's do have a contract between the claims agent and themselves. Here in Adelaide [Australia] the majority of IME's no longer practice clinical medicine, but only do insurance work,-it pays well, there are no difficult diagnosis to make and even if the report is wrong they still get paid a great deal of money for just a short amount of time.- The case managers format the questions so as the answers are a simple yes no answer. This then allows the case manager to cease income payments for the injured worker based totally on the opinion of a non-treating doctor. Work Injured Resource Connection is looking at ways of informing the IME's that they will be reported to the Medical Board for the reports that favor the claism agent instead of factual reporting of the workplace injury that is still being treated by a variety of medical people. Whilst this move may not remove all of the IME's who are happy to have the money for the insurance reports, it will mean that some of them will reconsider the reports that they write.

Yours in service
Rosemary McKenzie-Ferguson
Work Injured Resource Connection
South Australia


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This page contains a single entry by Jon Coppelman published on March 15, 2010 12:11 PM.

Traumatic brain injuries (TBI): in the workplace and in the field was the previous entry in this blog.

Mother Jones: from County Cork to the Coal Mines is the next entry in this blog.

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