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Strong Defense Encouraged in Stress Claims
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California -- Strong Defense Encouraged in Stress Claims
By Greg Griggs, Editor
Reprinted courtesy of WorkCompCentral Inc
The key to defending against stress add-ons in disability cases is good claims handling and comprehensive depositions, suggests the guy who handles comp for "The Happiest Place on Earth."
Such cases can add "thousands if not tens of thousands of dollars" to a claim, said Tim East, director of risk management for Walt Disney Co. The veteran workers' comp executive is set to moderate a panel on the subject next week at the eighth annual Workers' Compensation Policy Conference held by the California Coalition for Workers' Compensation in Newport Beach.
"Stress claims have always been a problem in California. Now they're more challenging, because there's a higher threshold for direct claims, so they come in on indirect claims," East said.
Under California statute, an injured worker must prove any psychological problems are primarily caused by industrial factors.
So stress complaints often come linked to a physical condition, such as a back or shoulder injury, where the worker also complains of having problems sleeping or the onset of sexual difficulties following an accident, East said.
East is quick to say it's not a fraudulent attempt to game the system, but usually a result of a worker having trouble coping with life after an injury.
"It's not that people are trying to get something they don't think they deserve, it's just, 'These bad things happened to me and I think work caused it,'" he said.
For example, East said after someone experiences a serious injury on the job he is likely at home full time, taking medication, not exercising and spending his days watching television or otherwise lounging. Consequently, he doesn't sleep at night because his routine is thrown off.
And being off work on temporary disability means a reduced income, which can lead to economic pressures, friction with a spouse and family and other stressful circumstances.
"It's a very difficult area where you have the injury and the resulting stress, sleep disruption and various changes that create legal and medical issues about compensability," East said. "They focus on the work problems, because it's external to them."
To defend against such claims, East said it's important to properly investigate and, when necessary, to thoroughly depose the applicant and the applicant's treating physician and mental health examiner.
"What you do in the deposition is you have to know how to get into the other areas of stress, such as family-life issues. Maybe there's a child custody issue or divorce contributing to the stress," he said. "You need to learn what other things are going on to see if the applicant has satisfied that 51% threshold."
An injured worker also may be asked about other painful situations in his life, such as being a victim of crime, filing for bankruptcy, having experienced the death of a close relative, or being the victim of sexual molestation or domestic violence.
Psychologist David C. Hall, a qualified medical evaluator who will speak on the panel, said an employer must ensure the mental health professional providing treatment has important related information available for consideration.
"That treater needs to have all the medical records, investigative reports, statements from coworkers, personnel files. Anything that's going to help you as an employer to explain this case and defend it, you need to get to that first doctor," said Hall.
By not including the information in the original report, which becomes part of the official medical file, the applicant and his or her attorney has the right to exclude that information
later in the process, according to Hall.
"You need all the stuff you can find because you don't know if you're going to have another chance to defend yourself," he said.
California Labor Code Section 3208.3, which deals with psychiatric injuries, states that employers need not pay compensation if "if the injury was substantially caused by a lawful, nondiscriminatory, good-faith personnel action."
And Hall said the good-faith defense is strong if an employer can show that the worker was not subjected to any unreasonable work conditions or treated differently than other employees.
"Any change on the job can be stressful, new coworkers, having your hours cut, disciplinary actions, about to be laid off," Hall said. "There are millions of reasons that people can get upset at work, and it's critical to the equation to document those things."
Attorney Theodore A. Penny, a Sherman Oaks defense attorney, will be the third panelist for the 90-minute session, which is set to start at 3:15 p.m. July 21.
Earlier that afternoon, there will be concurrent sessions on controlling rising pharmacy costs in workers' comp cases and new trends and tactics in permanent disability cases. The conference runs Wednesday through Friday, July 23 at the Hyatt Regency Newport Beach, 1107 Jamboree Road.
