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Medical Articles »Brian Jacks, M.D.
Rebelo and Rolda: Recent Psychiatric Workers' Compensation Case Decisions
Brian Jacks, M.D.
Psychiatry
There are new, exciting changes in workers' compensation case law as it applies to psychiatric injuries. It is absolutely essential for an evaluating psychiatrist or psychologist to understand these changes in order to properly assess causation as it applies to workers' compensation psychiatric disorders. There are two such cases which I will briefly describe: Rebelo v. Washington Hospital and Rolda v. Pitney Bowes. In the latter of the two cases, Rolda v. Pitney Bowes, I was a participant.
Rebelo v. Washington Hospital
On June 8, 1999, there was issued a workers' compensation decision after reconsideration in Rebelo v. Washington Hospital. Briefly, Rafaela Rebelo injured her back during the course of her employment with Washington Hospital. This was an accepted orthopedic claim. The workers' compensation judge found that the applicant had not sustained a compensable psychiatric injury or disability as a result of her back injury because he concluded that it was necessary for the applicant to prove that her back injury was the predominant cause of her psychiatric disability.
However, on reconsideration a board panel of workers' compensation commissioners indicated, in short, that there is a different level of compensability for physical / mental injuries. (That is where physical injuries, such as a back injury, result in emotional disorders as compared to mental / mental injuries where allegations of work stress result in emotional difficulties in short, stress cases.)
The requirements are only that it is enough that the employment (in other words, the physical injury, if it is admitted as a work-related injury) is a contributing cause. Therefore, where the original injury (in this case, a back injury) contributes to the second (in this case a psychiatric injury) it operates as a sufficient cause. This is the so-called Compensable Consequence Doctrine. The panel of judges found that nothing that the legislature passed for workers' compensation law disturbed or changed the long-standing rule of compensable consequences. In other works, the predominant cause of workers' compensation cases applies only to stress cases and not to physical / mental injuries.
What does this mean practically speaking? Where there are physical injuries which are accepted as being work related and there are claims that emotional difficulties have resulted from this, the predominant rule of compensability does not apply as it does in stress cases. This means that causation for physical/ mental injuries is compensable at a lower percentage threshold. In other words, of the overall emotional difficulties, the psychiatric difficulties only need to be a contributing cause. What we seem to be left with is the old workers' compensation laws where for physical mental injuries, if the emotional difficulties are related at all as a cause of the emotional difficulties, this may be found compensable. However, they also concluded that there needs to be "substantial evidence" to support a finding that the psychiatric injury is a "compensable consequence of the physical, industrial injury."
Rolda v. Pitney Bowes
The second case which, as I have mentioned, I have been involved with as one of the psychiatrists doing the evaluations is Rolda v. Pitney Bowes. This case involves Rick Rolda, who was employed by Pitney Bowes as a business machine salesman. He alleged work stress and strain resulting from disputes between himself and other salesmen over territory and clients. I was the psychiatrist for the defense. I found that the predominant cause of the emotional difficulties were non-industrial. Another psychiatrist, Dr. Thomas Curtis, concluded that is was an industrial psychiatric injury.
The workers' compensation judge made a decision which was heard on reconsideration by the Workers' Compensation Appeals Board; there was a unanimous decision (also known as an en banc decision).
What this decision means is that in order to discuss causation for psychiatric stress cases one needs to present a multilevel analysis of causation. Anything less will not be considered proper evidence to decide causation by the courts and the workers' compensation judge.
This applies to workers' compensation cases where there are claims which may be considered lawful, good-faith, non-discriminatory personnel actions. First of all, one needs to establish whether there is a psychiatric injury at all, and then present the evidence for this. Secondly, the psychiatrist doing the evaluation needs to determine whether the alleged events of employment were a predominant (at least 51 percent) cause of the psychiatric injury. (Here, it will be up to the judge to determine whether these were actual events of employment.) Thirdly and finally, if a routine personnel action is in issue here, the psychiatrist needs to describe each of the factors involved in the allegations of work stress as a percentage of causation of the overall emotional difficulties. The stress case will be found compensable for workers' compensation purposes only if at least a substantial (35 to 40 percent) overall cause of the emotional difficulties is related to lawful, good-faith, non-discriminatory personnel actions. (It will be the trier of fact, however, who will determine whether these are lawful, good-faith, non-discriminatory personnel actions or not.)
In summary then, what is needed is a multilevel analysis of causation by the psychiatrist who is familiar with Rolda v. Pitney Bowes. Anything less than this will not stand up for AOE/COE purposes or for any other psychiatric evaluations concerning causation where routine personnel matters are at issue.
One of the problems with Rolda v. Pitney Bowes is that the workers' compensation judge must determine on a factual basis certain of the conclusions, as I have pointed out above. These namely are in two areas: whether or not the alleged events at work were actual events or not and whether the allegations of work stress, in each of their parts, were lawful, good-faith, non-discriminatory personnel actions or not. These are both factual issues which the workers' compensation judge will determine. The problem with this is that for example, AOE/COE evaluations, a psychiatrist is left in the difficult position of either assuming or not that the various stressors complained of are lawful, good-faith, non-discriminatory personnel actions. In other words, a psychiatrist can do a multilevel analysis of causation and determine that certain of the personnel issues are more than a substantial cause of the overall emotional difficulties, but is only the trier of fact (the workers' compensation judge) who can finally determine whether these are actually routine personnel matters or not and so, whether this is a compensable claim or not.
It is therefore, absolutely necessary that psychiatrists or psychologists who evaluate people for workers' compensation claims where there are physical / mental injuries (as Rebelo) or where there are issues of causation involving routine personnel matters (as in Rolda) be familiar with these case law decisions and apply them in their workers' compensation reports. They also need to be familiar with the ins and outs, twists and turns, and various ways to deal with these new decisions. This is necessary in order for the psychiatrists' reports and their reasoning to stand up for workers' compensation purposes.
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