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DANA POINT, California — Employers who have yet to see a psych claim in their workers compensation programs are on notice, as experts say mental-only claims and physical injury claims with alleged mental components are on the rise — and many of them warrant defense.
A trending topic in workers compensation, at least two sessions a day at the four-day Workers’ Compensation & Risk Conference were dedicated to the topic, with many panelists going into the legalese and nitty-gritty of adequately defending such claims: what’s required; when to depose; how to interview claimants; how to investigate; what’s clearly not a psych claim; and pitfalls to avoid.
The reasons such claims are increasing is unclear, as panelists pointed to a number of factors: a rise in presumptions laws for first responders; rising crime; the waning stigma of mental illness; and the documented increase in mental illness nationwide.
The COVID-19 pandemic alone ushered in more psych claims, according to Omar Behnawa, Orange, California-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 compensability are almost always raised, unless there are extenuating circumstances, such as the employee claiming a psych injury is also a victim of violence, according to panelist Michael Gaston, a Long Beach, California-based attorney with the law firm Cipolla, Calaba, Bhatti & Hoyal.
Many workers comp psych claims are the result of an employee angry with a supervisor or the employer, spurring a claim that their mental health was affected by an incident or the way the worker feels he or she is 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, California, who said during a session Wednesday that because there is no separate legal cause of action for bullying in the workplace that some claims for harassment and other incidents are finding their way in workers comp.
Yet many claims are the result of “the supervisor doing their job. And if that’s the case, as long as supervisors are acting in good faith, you should defend,” said Mr. Gaston.
Yet, “psych claims are difficult to defend because they are subjective,” he said, adding that the bar is clear for compensability: claimants in California, for example, must be diagnosed with a mental illness by a doctor, he said.
“It's got to be a psych disorder; being mad is not a psych 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 are important to document, he said.
Medical documentation and reports are another avenue for investigating 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 — asserting that the worker is “depressed” — without showing in notes observations that indicate depression, Mr. Heredia said.
“Every psych report in work comp needs to constitute substantial medical evidence,” he added. “In the 22 years I've been reading psych reports written by other psych doctors, I see that the vast majority do not constitute substantial medical evidence” for workers comp compensability.