As an Injured Worker, you may come across terms such as “motivation factors,” “secondary gain,” and “victimization, ” noted somewhere within the reporting on your case. This can appear in a medical report or an analysis of your case that has prepared by an Insurance Company, Defense Attorney or an Investigator. Some of these reports, which use these terms, you will never see. The documents are generated as attorney work-product and are not discoverable. In addition, as an Injured Worker, you also may not see any medical reports that deal with your mental health. Psychiatric or Psychological reports that discuss these factors are not provided to unrepresented injured workers.
How Do these Observations Come Into Play?
Insurance Companies educate doctors on issues such as motivation, secondary gain, and victimization. They do so because they want these doctors to report on those factors. It allows the insurance company an opportunity to size up the injured worker. Additionally, these reports can be reviewed by later evaluating physicians, which can clue in later avaluators as to these issues. If the matter goes to Trial, the Workers’ Compensation Judge will also be informed of these factors as well.
The State Compensation Insurance Fund, one of the major insurance companies in California produced a guide for physicians to assist them in industrial medical treatment. The book is called “A TREATING PHYSICIAN’S GUIDE to Patient Care in the Workers’ Compensation System.” This guide discusses in detail “motivation” issues.
What Is a Motivating Factor and Why is it Important?
Motivation, in the view of insurance companies, works both ways for an Injured Worker. Some Injured Workers, for a variety of reasons, i.e. family, dedication to the job or profession, have a strong desire to recover from their injury and resume their work activities. Other Workers, for a variety of reasons, i.e. family, substance abuse, unhappiness with the job, other medical conditions delaying recovery, have a decreased desire to recover from their injury and resume work activities.
Per the SCIF Guide, “[m]ost risk factors for delayed recovery are associated with the level of motivation to return to work. Experienced vocational rehabilitation professionals usually can recall at least one example of phenomenal recovery of function following severe trauma. These individuals have the will to recover and refuse to accept disability, despite the extensive injury. At the opposite end of the spectrum are those individuals who persistently complain of pain and other subjective symptoms, with little or no objective findings (that is, they are functionally disabled without evidence of physiologic impairment). The importance of motivation cannot be overstated. The physician must consciously assess patient motivation and attempt specific psychotherapeutic interventions when appropriate. The earlier the physician can identify patients at increased risk for delayed recovery and chronic disability, the greater the potential to arrest the process and return the patient to a productive lifestyle.”
In sum, your Treating Physician, besides treating you, is sizing you up as to why you are there.
Anything that can occur in the examining room is being judged. It can be as simple as the clothes being worn. For women, whether they have had their nails done. Other examples would be the smell of alcohol on their breath, the smell of marijuana or cigarette smoke on their body. Some doctors have even made an observation of an Injured Worker in the offices waiting room or even in the parking lot of the facility.
What is Secondary Gain?
The SCIF Guide explains and defines secondary gain as follows “[t]he assumption has been that disability behavior is learned because the same impairment produces very different behavior in different individuals. There are a number of psychological influences that reinforce the disabled role and counteract the desire to recover.
The term “secondary gain” has been used to describe the factors that contribute to the maintenance of symptoms and inhibition of work performance. In essence, they create an advantage to persistent disability behavior. Secondary gain is distinct from malingering in that it involves unconscious phenomena that go[es] beyond monetary support. The three identified types of secondary gain are:
- Sympathy, attention, and support.
- Being excused from responsibility, obligation or challenge.
- Influence over important people by virtue of their acceptance that the individual is sick
There have been scientific studies that have shown that victims of child sexual abuse have issues when treating for medical conditions. In a paper that was presented in 1998, entitled
Psychological Profiles of Rehabilitation Patients Reporting Childhood Sexual Abuse by Disorbio and Bruns noted that “Patients reporting abuse were significantly more likely to be female, psychologically distressed, suicidal, prone to using drugs and tobacco, report family problems and complain of physical and pain symptoms more than nonabused patients.” [emphasis added]
The California Workers’ Compensation System provides that workers are to be taken as they are and that they are entitled to receive medical attention to cure and relieve from the effects of the injury. Further, treating the non-industrial to treat the industrial is an accepted aspect of the law. Therefore, the workers’ compensation system must accept and treat or accept these issues as industrial even though they may be considered an issue of “secondary gain.” These individuals may be considered “eggshell” patients. Regardless of that fact, they are still entitled to unapportioned medical treatment to cure or relieve from the effects of the injury in accordance with Labor Code Section 4600.
Who Would Not Feel Victimized to Some Extent?
- Per the SCIF Guide, “the feeling of “victimization” (that, of having suffered an injustice, of society owing something) is often a factor in secondary gain for workers’ compensation patients. The current workers’ compensation system may foster illness behavior in a number of ways:
- Providing tax-free income, although usually less than full wages, may not constitute a financial hardship on employees earning near the minimum wage.
Current laws provide compensation for being disabled, which may make a full effort toward rehabilitation difficult.
- Disputed cases typically last more than a year. During this time the individual avoids work because he or she feels it would adversely affect the claim. In addition, litigation can prolong symptoms by creating unrealistic expectations of a large financial reward. Patients may recover quickly when their claim is settled.
- Often multiple physicians evaluate individuals and subject them to extensive diagnostic testing. This extensive treatment reinforces the perception that the patient may have a serious medical condition.”
To SCIF’s credit, it identifies the fact that there are outside forces which create the feelings of victimization. Victimization, to some degree, should be taken as a serious issue. Some Injured Workers are tossed around and frankly abused by the system and the players within the system. Frequently, I concur with the Injured Worker feeling that the system has not been entirely fair to them. Again, we must all understand that this is a “compensation” system and not a “get rich” or “get a financial advantage system.” It is designed to compensate for “loss.”
What is Victimization?
Victimization is a controversial label. Injured Workers are not legal scholars who understand the process that they are going through. There are many players involved in workers’ compensation who have financial interests that may not be in line with the Injured Worker. There is the employer who wants to limit their risk and liability, i.e. injury costs or increased premiums. There is the insurance company which wants to limit liability. There are medical providers who want to make money for themselves. There are attorneys, both Applicant and Defense, who want to make money as a result of the claim. There are Judges who want to move the case to resolution. The Injured Worker is caught in the middle of these diverging interests.
What is Recommended by Insurance Companies to Address these Issues?
Per the SCIF Guide, “[t]he treating physician can play a key role in the prevention of delayed recovery. When the disabled employee has persistent symptoms, the temptation is for the physician to respond by providing additional rest and time off from work. This common therapeutic approach actually creates a vicious cycle that prolongs recovery and perpetuates the sick role. Transitional work is the most effective approach to the prevention of chronic disability. It should be a consideration on the first visit and an integral part of the treatment plan.”
These recommendations are pathetic. If an Injured Worker has persistent symptoms, the physician should have a discussion with the patient and try to get to the root of the problem. A persistent symptom may mean that there is more serious problem present. Further, some physicians, due to their limited time with the worker or other reasons, do not want to hear more and wish to ignore the complaints. It is sad but true. Returning an Injured Worker back on the job does not solve or cure the underlying medical condition.
As an Injured Worker, Where Can I Get Legal Advice?
If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.