Wednesday, September 17, 2014

Psych. Claims: Not the Dead Bang Loser You May Think

One of the benefits of my new firm is that it exposes me to new practice areas. Case-in-point, workers’ comp, which I could not previously offer. Today, I am introducing you to my partner, Steve Dlott, who heads the Workers’ Compensation Department at Meyers Roman, and is a Certified Specialist in Workers’ Compensation Law.

Steve was kind enough to author a guest post, discussing a tricky issue under Ohio’s workers’ comp laws, psych claims.

Having worked with several different TPA’s regarding psych. claims, there seems to be a general doomsday mindset about the inevitability of such claims. As I have been accustomed to hearing, “What’s the point in fighting them? They always get allowed.” Certainly, based on the IC’s history when it came to such claims, this reaction was entirely understandable. However, based on my own recent experience of taking a string of psych. claims to hearing, these claims are winnable. In fact, I have won the last 5 psych. claims that went to hearing. And, to reinforce this point, several of those claims were state funded claims where the BWC psychologist supported the C-86. That is not to say, of course, that every psych. claim is winnable, or that this streak will indefinitely continue. Certainly, it will not. The point is simply to dispel the commonly held notion, upon getting a C-86 for depression or PTSD, that success is hopeless-or dismal at best.

Two factors account for this new outlook-one, clarification of existing law, the other, good old fashioned detective work. First, in Armstrong v. Jurgensen, the Ohio Supreme Court reiterated the legal requirement for establishing a psych. condition. As the court noted, the psych. condition must result from the physical injuries in the claim and not simply relate to the injured worker’s involvement in the accident. In Armstrong, the injured worker (Armstrong) was slightly injured in an accident in which the other driver was killed. After Armstrong’s claim was allowed for soft tissue injuries, he sought to additionally allow his claim for PTSD. The IC allowed the PTSD and the employer appealed the disallowance to court. The employer ended up taking the case to trial. The judge overturned the IC’s decision, finding the claim not compensable because it did not arise from the allowed conditions. The case was ultimately appealed to the Ohio Supreme Court, which affirmed the trial court’s decision. While employers have always argued this was the law, as apparent from the IC’s decision, hearing officers did not always buy this argument. Now, with the Supreme Court’s decision, they must. 

Without question, Armstrong has changed the landscape in terms of giving employers a significant advantage in getting psych. claims denied, provided it can be shown-which happened in 3 of the 5 cases I won-that the psych. condition did not arise from the physical injuries.

The second step in successfully fighting psych. claims is simply good old fashioned detective work. In one claim, I discovered claimant had a previous history of psychological treatment. Claimant had denied this to both her psychologist and to the BWC psychologist. While this certainly is not unusual, through discovering a record buried in other documents in the injured worker’s file which led to my discovering claimant’s previous history of depression, I was able to discredit claimant at the hearing. Not surprisingly, hearing officers do not like liars, and, not just in this case, but in all of the cases I’ve won to date, the claimant’s credibility has been a major focus of the hearing. Because credibility is such a key component in psych. claims-more so than in any other claim because the condition is based almost entirely on the claimant’s subjective symptoms (“I’m depressed”, “I can’t sleep”, “I can’t concentrate”, etc.), a thorough investigative background is absolutely critical (and often overlooked) in making the difference between success and failure at the IC.

So, my advice to tpas and others is: Bring it on. Don’t assume that fighting that psych. claim that was just filed is a hopeless cause. With Armstrong at our side and good detective work of the injured worker’s background aggressively pursued, who knows, it may be a winner after all.

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