The COVID-19 virus will continue to affect lives for the foreseeable future. As we’ve learned over the past two years, some folks with COVID-19 will have minor cold symptoms, some will experience severe illness resulting in hospitalization or even death and others will be asymptomatic. As we’ve also learned since the onset of COVID-19 in early 2020, many people will experience psychological problems that can be tied to the virus.
Some of the most common psychological complaints reported by individuals in the workplace include anxiety, depression, worry, fear, anger, difficulties with memory and/or concentration, and diminished sensory and cognitive functioning. These and other symptoms are reported by individuals in the workplace regardless of whether they test positive for COVID-19 or test negative. Recent contact with both municipal and private employers reveals that workers’ compensation claims related to COVID-19 are on the rise in early 2022 and are projected to increase throughout the year.
So how will it be determined if psychological problems related to COVID-19 are normal, reasonable and expectable or if they meet the threshold to be considered a psychiatric injury as that concept is defined by Labor Code section 3208.3? First, an injured worker who files a claim of a psychiatric injury should be evaluated by a psychologist or a psychiatrist. Second, assuming the psych doctor finds one or more psychological disorders found in the Diagnostic and Statistical Manual of Mental Disorder (DSM), the doctor is then tasked with providing an opinion about the cause of the psychological disorder(s). Third, the doctor’s report must constitute substantial medical evidence.
With respect to the above discussion, in arriving at medically probable conclusions, the evaluator must first collect sufficient data about the applicant that support the doctor’s conclusions. Second, that data must find its way into the doctor’s report. During a psychological or psychiatric face-to-face, in person examination the doctor will base their conclusions on five sets of data, with the first three of the five listed below being required:
(1) the doctor’s history of the applicant’s symptoms or complaints
(2) the physician’s Mental Status Examination with observations of the patient’s behaviors
(3) the results of psychological tests
(4) a review of the applicant’s medical records
(5) interviews with the applicant’s friends, relatives and business/work associates
When examining the data in a psych doctor’s report, an attorney or adjuster should look for sufficient data to support the doctor’s diagnostic conclusions. In this regard, a sufficient history of the applicant’s symptoms or complaints should include information about each of the complaint’s frequency, intensity, duration, onset and course over time. Next, a sufficient Mental Status Examination should include the physician’s face-to-face observations of the applicant’s behaviors using a relatively standard set of examining techniques and questions. Third, the results of the doctor’s psychological test battery should include a Minnesota Multiphasic Personality Inventory (MMPI) or a similar objective test capable of assessing the test-taker’s credibility and psychological status. More often than not, the doctor performs a review of the applicant’s medical records. With respect to medical records, the reader of the doctor’s report should look for any credible record from another mental health practitioner who concurred with the diagnostic conclusions. Lastly, in some cases, doctors may provide information gathered from interviews with the applicant’s friends, family and/or co-workers, although this source of data is not required. Nonetheless, when there are insufficient data in the doctor’s report to support their diagnosis, the conclusion is obvious; the doctor’s report does not constitute substantial medical evidence.
In summary, while COVID-19 psychological problems are real and prevalent, claims of psychological problems due to COVID-19 do not always result in a psychiatric injury as that concept is defined by Labor Code section 3208.3. This section of the Labor Code states that in order for there to be a psychiatric injury, a psychological disorder must be diagnosed. Additionally, Labor Code section 3208.3 requires that psychological diagnoses be made using a diagnostic manual “generally approved and accepted nationally by practitioners in the field of psychiatric medicine.” Further, the psychological disorder must be supported by the data in the doctor’s report. Thus, when the data are examined, and it is determined that the data are insufficient to support the doctor’s diagnosis, a series of simple and direct questions can be used to question the doctor at deposition and/or trial to demonstrate that a workplace psychiatric injury is not plausible.
Dr. Ron Heredia