CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
By Joseph D. Dougherty, J.D.
One of the primary goals of the workers’ compensation system is to return the injured worker to a productive life. And yet, this objective is sometimes lost with many state legislatures focused on reducing workers’ compensation costs. Addressing behavioral health care needs of workers is now more important than ever, given the surge in the most commonly occurring mental health problems for working adults, i.e., anxiety, depression and substance abuse, as a result of COVID-19, the economic downturn, and the stay-at-home orders.
In an August 2022 white paper, “A Primer on Behavioral Health Care in Workers’ Compensation,” by Vennela Thumula and Sebastian Negrusa (Workers’ Compensation Research Institute (WCRI)) [see https://www.wcrinet.org/reports/a-primer-on-behavioral-health-care-in-workers-compensation], the authors examine how psychosocial factors act as barriers to recovery following a work-related physical injury. Though the white paper focuses on psychological risk factors, the authors recognize and briefly discuss the impact of “blue flags” (psychosocial factors related to a person’s job, such as job dissatisfaction, workplace stress, low support from supervisors and peers), “orange flags” (preexisting mental health symptoms or conditions), and “black flags” (system or contextual obstacles) on a worker’s postinjury recovery.
The authors based their findings from interviews with mental health care professionals and other health care providers within the workers’ compensation system, employers, labor advocates, and workers’ compensation insurers. They also performed a review of select occupational medical treatment guideline recommendations related to the provision of behavioral services, and a literature review of behavioral health services provided in workers’ compensation systems. All workers’ compensation stakeholders consulting this study would likely glean some additional knowledge of the interrelatedness of the treatment of behavioral health issues and the worker’s subsequent return to work.
Screening of Injured Workers
Among other things, the authors urge early identification of psychosocial factors by using screening tools, such as those for musculoskeletal pain, back pain, and functional recovery, so that patients can be educated and taught self-management strategies, or even be directed to specialists. Psychological risk factors that impede postinjury recovery and/or increase medical costs include the following: fear of pain due to movement, catastrophizing, distress, perceived injustice, job dissatisfaction, lack of family or community support system, chronic pain, depression, anxiety, substance abuse disorders, and other mental health symptoms or conditions. Psychometric tests used for identifying various psychiatric syndromes are reviewed.
The use of the screening tools is recommended early following the injury in order to prevent a delayed recovery. The screening may allow certain therapies or course of treatments to be recommended in order to shorten the duration of the disability. It is suggested that the screenings be administered within the first few weeks after the injury for the most efficacious use of the tools.
There is a discussion of other predictive analytical tools that may help to delineate those claims that are at a high risk for a poor outcome. The objective of using these tools is to allow for referrals to the appropriate providers or counselors.
Behavioral Health Findings
As mentioned above, psychological risk factors that impede postinjury recovery and/or increase medical cost include the following: fear of pain due to movement, catastrophizing, distress, perceived injustice, job dissatisfaction, lack of family or community support system, chronic pain, depression, anxiety, substance abuse disorders, and other mental health symptoms or conditions.
These psychosocial factors can augment the chronic pain experienced after a work-related accident and can lead to eating disorders or other addictive behaviors. Even in the absence of chronic pain, these factors can delay the workers return to function and work with a corresponding negative consequence on indemnity payments and medical costs. Workers with psychosocial factors present with their injury were found to have recovered more slowly and been less likely to return to work. They often expressed problems getting the medical care they desired and were dissatisfied with their care.
Although behavioral health claims that do not have an actual physical injury component are relatively rare, the instances of such claims have been growing in frequency in recent years. Thus, the authors examined the characteristics of instances when behavioral health services were provided. The increase in such claims may be attributed to those by first responders for post-traumatic stress disorder and may also reflect improved data collection efforts.
Many of the individual behavioral conditions found present in workers’ compensation patients are reviewed and a selection of the prior named studies affecting each individual condition are discussed. Mention is made of how that health factor may affect the work time period missed by the injured worker and the recovery time frame.
In addition to the discussion of the well-known more traditional factors, a newer condition that may involve injured workers going forward are the symptoms associated with the COVID-19 pandemic. According to the Centers for Disease Control and Prevention (CDC) the symptoms of COVID-19-like difficulty in concentrating (“brain fog”), headaches, change in smell or taste, and depression or anxiety can last for weeks, months, or years. The injured workers who are also suffering from long-term COVID-19 effects may have a much longer recovery period. This is an area of rapid change and evolution and will need to be monitored by workers’ compensation stakeholders so that the behavioral health challenges are addressed going forward. [See WCRI’s recent study on long COVID and its impact on workers’ compensation.NOTE TO SELF: ADD URL]
Several possible conceptual frameworks are discussed for viewing the behavioral health concerns and the associated interventions that can be provided to improve the work disability period. One methodology is to view all the issues on a severity continuum that ranges from psychosocial risk factors to psychiatric conditions. Another model is an integrated model that sharply focuses on the injury causation and considers many factors regarding the individual and their subsequent return to work. Finally, another model discussed is one that has been applied mainly to mental stress claims in California in the 1980’s. In this model the behavioral health conditions can be classified as physical-mental claims (when a physical injury leads to mental health consequences), mental-mental claims (when a mental stimulus produces mental health conditions), or mental-physical claims (which arise when a mental stimulus produces a physical consequence). However, this framework does not account for psychosocial factors and psychological symptoms, either preexisting or consequent to an injury, which can delay recovery and the return to work. Relying solely on a framework based on causation and attribution may keep a worker from getting the necessary treatments needed to address the barriers and allow for a return to work.
The study sets forth an overview of the most often used behavioral health treatments. Many of the conditions are co-occurring in workers and there exists a significant overlap in recommended treatments. Cognitive behavioral therapy (CBT) is the most often recommended treatment by national and state-specific guidelines and is often a collaborative effort between the provider and the injured worker.
Next, the study reviews the course of the most common treatments being followed for chronic pain, post-traumatic stress disorder (and other disorders), as well as depressive disorders and substance abuse disorders. Specific examples are given of the usual course of medical treatment provided for each factor and the duration of the treatment course. While cognitive behavioral therapy (CBT) is the most recommended treatment across the board, there are several other newer therapies like biofeedback and pain reprocessing therapy that are being successfully used. Sometimes a pharmacological drug regimen proves the most effective and productive choice. A detoxification process is sometimes employed where the prescribed medication substance is tapered off.
Several studies suggested that early targeted interventions to address the psychosocial risk factors resulted in improving patient outcomes. The authors point out that the Washington State Department of Labor and Industries’ guide on psychosocial social influencing recovery (PDIR) was the first comprehensive guideline addressing these risk factors. The PDIR recommended that treating providers consider several approaches to accelerate recovery including motivational interviewing, physical activation, patient education about psychosocial conditions, pain coping, management of sleep habits, and relaxation training and techniques.
In more complex cases, a referral of the worker to a specialist is suggested. Occupational therapists and physical therapists as well as activity coaches and case managers are now also being trained and involved to help handle psychosocial risk factors.
A lengthy discussion follows on the billing for the health assessments and treatments using Current Procedural Terminology (CPT) codes based on whether the patient has a primary physical health diagnosis or a compensable mental health diagnosis. But the assignment of the codes is not always uniform and therefore the categorization or the aggregation of the relevant data may not always give a complete picture of the services rendered. Sometimes the provider needs to select among several possibilities based on the major issue the injured worker is experiencing. At other times the providers are restricted by the codes available to a person who practices their healing art or may use a code that is favored in that jurisdiction. This may affect any comparisons of aggregated data from various jurisdictions.
Several valuable tables extracted from prior WCRI inventories, compile relevant information across multiple jurisdictions. The first table shows whether the state laws cover mental stress claims (such as PTSD and acute stress disorders) in the absence of a physical injury. Of note here is that 14 states do not provide coverage in the absence of a physical injury, except in some instances for first responders.
Another table shows whether the jurisdiction limits the number of behavioral health treatments that can be provided to an injured worker without additional authorization of the payor or the regulator. Most jurisdictions do not limit the number of psychotherapy treatments while others allow for additional services only when subsequently authorized.
A final table covers whether psychologists and psychiatric social workers are considered authorized treating medical providers and whether they can treat injured workers or only with a referral from an authorized provider. Interestingly, while 33 states authorize a psychologist to be a treating provider, only 16 states authorize a psychiatric social worker to be an authorized provider. Additionally, several other states allow for such practices only if referred by a treating physician.
The key lessons learned about the behavioral health treatments and the return to work include:
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