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In California, a worker can receive workers’ compensation benefits for a psychiatric injury if the worker can prove the following: The worker has a psychiatric diagnosis listed in a book called DSM IV. “Stress” alone, is not enough. The worker was employed at least six months (certain very limited exceptions apply) The actual events of employment are the predominant cause (50%+) of the psychiatric condition. (Certain limited exceptions apply). This means that the employer/insurance company can ask you questions about your entire personal life from the date your were born. You waive most of your rights to privacy for these sensitive matters when you pursue a psychiatric claim. The psychiatric condition is not substantially caused (35% to 45%) by a good faith, lawful, non discriminatory personnel action. (The burden of proving this rests with the employer) The employee reported the injury prior to termination or notice of termination. If the employee did not report the injury prior to termination, the medical records of the employee show treatment for the psychiatric condition prior to the termination. This does not apply if the psychiatric condition is caused by a physical injury that was reported before the termination or where there are records of treatment for the physical injury prior to the termination. The result of several waves of workers compensation reform beginning in 1989 has been to make recovery for many psychiatric injury claims very difficult in California. MENTAL – PHYSICAL CLAIMS Psychiatric claims that are caused by a serious physical injury or physical condition(s) are known as Mental-Physical Claims. Often, a serious physical injury impacts other aspects of an injured workers’ life. Examples of such impacts are sleep disorders, depression and/or anxiety caused by the physical pain, diminished functional ability, and the loss of an injured workers’ profession. Under the new permanent disability rating system, if you have a serious physical injury that results in your having significant impairment in your activities of daily living, or you are experiencing chronic pain or sleep disturbance, you need to have your psychiatric general assessment of functioning (GAF) considered. This is more important than ever because the new permanent disability rating schedule dramatically short changes those with serious objective physical injuries (contrary to what was promised by Governor Schwarzenegger when SB 899 was signed into law). It should be noted that in California, psychiatric injury caused by job termination, the emotional reactions to the claims process (i.e. being cut off from benefits, receiving an unfavorable decision, etc.) are not eligible for compensation. MENTAL – MENTAL CLAIMS Almost all Mental-Mental (Psychiatric or stress claims that do not also involve a physical injury i.e. Mental-Physical) are denied. Most of these cases are also lost at trial due to the good faith personnel action defense. A Mental-Mental claim that is caused by being the victim of a crime at work, witnessing a sudden violent event, or being the victim of sexual harassment may be a viable mental—mental claims. Claims by short term employees (Less than two years) that do not involve the above events above are usually weak claims. Claims that involve conflicts with supervisors or perceived unfair treatment at work are almost always weak claims.
This office takes very
few mental-mental claims. |
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