WORKERS’ WITH PRE-EXISTING MENTAL HEALTH ISSUES AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Many Workers, prior to starting employment, have diagnosed medical illnesses.  There are a variety of forms of mental illness.

A study looked into mentally ill individuals in the workplace.  This study discusses how work impacts the mentally ill. This information is important with respect to workers’ compensation stress claims.

This article will discuss mental illness, forms of mental illness, work’s impact on mentally ill individuals, and what it means in the context of workers’ compensation stress claims.

What Is Mental Illness?

 Mental illnesses are health conditions involving changes in emotion, thinking or behavior (or a combination of these). Mental illnesses are associated with distress and/or problems functioning in social, work or family activities. Psychiatry.org. “ Mental illness is common. In a given year: nearly one in five (19 percent) U.S. adults experience some form of mental illness one in 24 (4.1 percent) has a serious mental illness, one in 12 (8.5 percent) has a diagnosable substance use disorder.” Psychiatry.org

There is a variety of mental illnesses.  These include anxiety disorder, Attention-deficit/hyperactivity disorder, autism, bipolar disorder, clinical depression, dementia, obsessive compulsive disorder, post-traumatic stress disorder, schizophrenia,

What Is California Psychiatry Injury Causation Standard?

Labor Code Section 3208.3 provides the causation standard.  The causation burden per (b)(1) is that “In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury”  This means greater than 50 percent.

There is a lower standard in certain circumstances.  Per (b)(2), “… in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury.”  Substantial cause is at least 35 to 40 percent.

 Does Working Impact Mental Illness?

The study found that “Individuals with mental illness who are employed, compared to those who are unemployed, reported slightly higher levels of overall life satisfaction and psychophysiological health”. Granjard A, Mihailovic M, Amato C, et al. Occupation and life satisfaction among individuals with mental illness: the mediation role of self-reported psychophysiological health. PeerJ. 2021;9:e10829. Published 2021 Jan 29. doi:10.7717/peerj.10829.

How Does The Study Relate to Work Injuries?

Mentally ill individuals may have improved health and satisfaction when they are working.  Therefore, this improvement in their mental state should be factored into work injury causation analysis.   Also, it may have value with respect to permanent disability apportionment.

What Was in the Study’s Reporting?

The study reported that “, the mechanism underlying the relationship between having an occupation and life satisfaction implies that having an occupation enhances individuals’ perception of their own physical and psychological health, which in turn might increase their satisfaction with life” Granjard A, Mihailovic M, Amato C, et al. Occupation and life satisfaction among individuals with mental illness: the mediation role of self-reported psychophysiological health. PeerJ. 2021;9:e10829. Published 2021 Jan 29. doi:10.7717/peerj.10829.

What Is the Impact of Unemployment on Mental Illness?

The study noted that “[u]nemployment can lead to, among other things, diminished social status, financial debt, reduced self-esteem, and feelings of guilt. Most importantly, unemployment is significantly associated with psychiatric problems and approximately 37% higher risk of suicide (Milner, Page & Lamontagne, 2014).” Granjard A, Mihailovic M, Amato C, et al. Occupation and life satisfaction among individuals with mental illness: the mediation role of self-reported psychophysiological health. PeerJ. 2021;9:e10829. Published 2021 Jan 29. doi:10.7717/peerj.10829.

Note: This finding is important.  Mental health treatment and assessment of impairment during a pre-employment period is exacerbated by unemployment.  Thus, with no unemployment In combination with work, a Mentally Ill individual’s mental state may be significantly elevated prior to confronting work stress.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for over 28 years. Contact us today for more information.

VISUAL ANALOG PAIN SCALE (VAPS) AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

In the Workers’ Compensation System, Doctors and Medical Evaluators ask Injured Workers to fill out various scales and questionnaires. One of these scales is the Visual Analog Pain Scale (VAPS.)

Scales and questionnaires can impact an Injured Worker’s ability to get treatment and disability payments. Therefore, Injured Worker should understand how to answer them properly.

This article will discuss the Visual Analog Pain Scale(VAPS), how the VAPS is administered, how VAPS is to be answered, how VAPS is graded, and how VAPS can be used within the workers’ compensation setting.

What is VAPS? What Is it Designed to Measure?

The Visual Analog Pain Scale is “a unidimensional measure of pain intensity, which is utilized in diverse adult populations.”  Measure of adult pain: Visual Analog Scale for Pain (VAS Pain), Numeric Rating Scale for Pain (NRS Pain), McGill Pain Questionnaire (MPQ), Short-Form McGill Pain Questionnaire (SF-MPQ), Chronic Pain Grade Scale (CPGS), Short Form-36 Bodily Pain Scale (SF-36 BPS), and Measure of Intermittent and Constant Osteoarthritis Pain (ICOAP) Gillian A. Hawker, Samra Mian, Tetyana Kendzerska Melissa French 07 November 2011 https: //doi.org/10.1002/acr.20543

The VAPS is intended to explore the issue of pain.

What Does VAPS Look Like?

The VAP Scale can be set up either horizontally or vertically. Supra.

This is an example of a scale:    0 “no pain”   |————————————————–| 100 “worst imaginable pain.”

How Many Questions Are There in VAPS?

One. It is the simple answering of one’s pain level.  This is done by marking a spot on the spectrum to describe the pain. Supra.  The spot can be measured and assigned a number.  See below.  Some scales allow for the patient to assign a number.

How is the Score Interpreted?

“A higher score indicates greater pain intensity. Based on the distribution of pain VAS scores in post surgical patients (knee replacement, hysterectomy, or laparoscopic myomectomy) who described there postoperative pain intensity as none, mild, moderate, or severe, the following cut points on the pain VAS have been recommended: no pain (0-4mm), mild pain (5-44mm), moderate pain (45-74 mm) , and severe pain (75-100 mm) ” Supra.

Why Are These Terms important?

In workers’ compensation, the evaluators look at pain. Pain is often characterized by the terms of slight, moderate or severe.

The definitions for slight, moderate and severe are different in the field of industrial medicine. California used to use them to assign permanent disability.  In order to do so, they defined the terms.  The 1997 Permanent Disability Rating Schedule defined the terms as follows: “Pain is not always disabling. It becomes disabling when its degree affects function. Regulations define four degrees of subjective pain – minimal, slight, moderate and severe. By definition, minimal (mild) pain is not disabling because it causes no handicap in the activity precipitating the pain. However, slight, moderate and severe pain reflect increasingly greater degrees of handicap on work activity, and are ratable factors of disability.” P.1-7.  While these terms are no longer used for permanent disability purposes, they are frequently documented in medical reports.

Pain’s nature and extent, in certain circumstances, can be a factor in assessing whole person impairment. Whole person impairment is then translated into permanent disability.

How Can Testing Impact Injured Workers’ Claims?

Testing creates credibility issues.  When an Injured Worker provides a 100 score, it means either that they are in severe pain, they are exaggerating, or that they are making a cry for help.  In cases with minor injuries, high scores will impact the credibility of the pain reporting.

Also, an injured Worker may wish to ask how the question should be answered. Pain level when medicated or pain level during a certain period of time, i.e. this moment or this week, are legitimate questions.

What Is the Problem with this VAP Scale?

Pain assessments can be confounded with respect to an individual’s “pain reference.”

Some individuals have never experienced severe pain in their life.  For women who have experienced childbirth and for those who have passed a kidney stone, their pain references, however, can be in the severe range.  Thus, an individual’s past medical conditions is important to review as a reference.

It is quite conceivable that they have experienced pain in the 90s up to 100.   Some individuals also have strong pain tolerances.  A 70 to them would be a 95 to others Thus, these individual’s reporting may only be relevant when compared to other  assigned scores provided on different dates of evaluation or treatment.

How Should an Injured Worker Answer the VAPS?

An Injured Worker should make their best effort to accurately describe their pain.

If there is any confusion concerning how to answer or mark the scale, you should clarify with the evaluator. For instance, you could be a 50 on medications and a 70 without.  Thus, it is important that the doctor or evaluator understand your reason for assigning a particular level of pain.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for over 28 years. Contact us today for more information.

REMOTE WORKERS’ COMPENSATION TRIALS VS. IN PERSON TESTIMONY: THE WORKERS’ COMPENSATION APPEALS BOARD SIGNIFICANT PANEL DECISION: A WORKERS’ COMPENSATION ATTORNEY’S VIEW: WHAT YOU NEED TO KNOW

In WCAB vs. Chevron (2021), the Workers’ Compensation Appeals Board issued a Significant Panel Decision on with respect to how California Workers’ Compensation Appeals Board have trials done remotely. Currently, the WCAB uses a “zoom” like product called Lifesize to conduct their trials.

What Was the Chevron Case issue?

In Chevron, in person testimony was taken. After the change to remote testimony, there was additional witness testimony. The Workers’ Compensation Judge on the matter did not want to proceed. The issue was essentially whether all testimony be taken in the same manner.  Thus, there was the argument that the matter be delayed until “in person” testimony could take place.

The Applicant wished the matter to proceed with remote testimony rather than wait.

What Was the Ruling?

In the particular case, the WCAB ordered the trial to proceed with remote testimony.

The WCAB, ruled that “each case must be resolved according to its own particular circumstances, and it would therefore be inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony.”

“However, in consideration of Executive Order N-63-20, the purposes of the workers’ compensation system, and current conditions, the default position should be that trials proceed remotely, in the absence of some clear reason why the facts of a specific case require a continuance. Moreover, as the party seeking the continuance, the burden should be on defendant in this case to demonstrate why a continuance is required.” [emphasis added]

What Facts Would Required for “In Person” Testimony?

 At trials, Judges have the opportunity to view Injured Workers when they are not testifying.  They see them  sitting and observing the trial, and they see them walking up to take the stand to testify, and they see them during break time.  Additionally, they are able to view the Injured Worker’s posture during testimony.  Thus, it is possible to view whether someone is exhibiting pain behavior.

Based upon my 29 year Trial Attorney experience, an Applicant’s live testimony is  important when there is an allegation of marked or profound  disability.  Thus, if an Injured Worker has a severe limp, a Judge would be able to observe it if there was live testimony.   This observation is not possible with remote testimony.

Thus, matters in which observation of the Applicant is of import would be the cases upon which a party may wish to have “in person” testimony.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

THE PAIN, ENJOYMENT AND GENERAL ACTIVITY SCALE (PEG) AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

The California Workers’ Compensation System employs various scales and tests to assist with Injured Workers’ evaluation and treatment.  One of these tests is the Pain, Enjoyment and General Activity Scale (PEG.)

This article will discuss the PEG Scale and how it can be used within the workers’ compensation system.

Why Are Scales Used in General?

Scales can be used for many reasons.   Scales are generally self-reporting. Thus, all that is needed to administer one is a pen, a clipboard, and the questionnaire. Thus, they are a cheap, quick and easy way to extract information from Injured Workers. Scales can show that an injured Worker is credible.  They can show that an Injured Worker is malingering or exaggerating. Scales can show a cry for help.

One way a scale can be used Is by comparing them to prior scales.  When compared, it can show a patient’s assessment of medical improvement or lack thereof.

Scales are employed by medical examiners, treaters and utilization review evaluators to assess the Injured Workers’ disability status, permanent disability, and whether forms of treatment are indicated and should be approved.

In an article discussing PEG, it was noted that “[t]he competing demands of primary care, in which visits are short and pain is only one of several problems warranting attention, make efficiency of assessment a paramount concern.  A balance must be found between feasibility and key characteristics such as reliability, validity, and responsiveness.”  Krebs EE, Lorenz KA, Bair MJ, et al. Development and initial validation of the PEG, a three-item scale assessing pain intensity and interference. J Gen Intern Med. 2009;24(6):733-738. doi:10.1007/s11606-009-0981-1

What Is PEG Scale’s Complete Name?  How Does It Relate to Workers’ Compensation?

The PEG Scale’s full name is the Pain, Enjoyment of Life and General Activity Scale.

California Workers’ Compensation Law employs the AMA Guides to assess permanent impairment.  In the assessment of permanent impairment, Pain is a factor that is considered.  Also, Activities of Daily Living is also a factor.

In sum, the scale overlaps some of these issues.

What Does the PEG Scale Consist Of?

The PEG Scale consists of three questions that are rated from 0 to 10.

What is the Pain Scale’s First Question?

The first question is “what number best describes your pain on average in the past week?”

How is the First Scale Question Answered?

The question is answered in a 0 to 10 scale. 0 being “no pain” to 10 being “pain as bad as you can imagine.”

What is the Second Question of the Pain Scale?

The second question is “what number best describes how, during the past week, pain has interfered with your enjoyment of life?”

How is the Second Question Answered?

The question is answered in a 0 to 10 scale. 0 being “does not interfere” to 10 being “completely interferes.”

What is the Third Question on the Pain Scale?

The third question is “what number best describes how, during the past week, pain has interfered with your general activity?”

How is the Third Question Answered?

The question is answered in a 0 to 10 scale. 0 being “does not interfere” to 10, “completely interferes.”

How is the PEG Scale Scored?

The scale is scored by adding up all three numbers and dividing by 3.

What Is the PEG Scale Specifically Used For?

“This scale can be administered in person at a clinic or hospital, answered via phone interview or personally completed at home. It is a flexible scale that can be used for many scenarios. For example, the PEG scale is often used to determine if a medication is effective; using it for this purpose helps determine an individual’s level of functioning while taking medication(s). Individuals who show a stable level of functioning, with no other factors that suggest a dosage adjustment, a medication taper or a medication change is needed, would then continue on their medication regime.”  Painscale.com

Is There Any Advice to An Injured Worker?

Yes. These scales will be used possibly for two purposes: first, to evaluate your credibility, and  second, to evaluate your improvement with respect to prescription medications and treatment.

Thus, it is best to make your best efforts to accurately answer them.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

 

THE FEDERAL EMPLOYEES’ COMPENSATION ACT (FECA) AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

The Federal Government has its own Workers’ Compensation System.  Thus, a Federal Government Employee, living in California, pursue FECA claims rather than filing California workers’ compensation claim.

This article briefly details the Federal Employee’s Compensation Act (FECA) system and how it differs from the California State system.  This article is cursory and not meant to be relied upon for the purposes of pursuing a claim.   It is merely informational.

Who Is covered By FECA?

“The FECA program covers all civilians employed by the federal government, including employees in the executive, legislative, and judicial branches of the government. Both full-time and part-time workers are covered, as are most volunteers and all persons serving on federal juries. Coverage is also extended to certain groups, including state and local law enforcement officers acting in a federal capacity, federal jurors, Peace Corps volunteers, students participating in Reserve Officer Training Corps programs, and members of the Coast Guard Auxiliary and Civil Air Patrol.” The Federal Employees’ Compensation Act (FECA): Workers’ Compensation for Federal Employees Updated April 13, 2020, Congressional Research Service https://crsreports.congress.gov R42107

Note: There are Injured Workers who are employed by businesses with Federal Government contracts.   These employees may be as a private employee and may not be eligible for a FECA claim. Instead, they are eligible to pursue a state-based workers’ compensation claim.

What Conditions are Covered Under FECA?

Under FECA, “workers’ compensation benefits are paid to any covered employee for any disability or death caused by any injury or illness sustained during the employee’s work for the federal government.  There is no list of covered conditions nor is there a list of conditions that are not covered.” Supra.

Defenses available for certain injuries.   The defenses include willful misconduct and intoxication as causes of the injury.

Note: These defenses are similar to that of state-based systems.  In addition, state-based systems place limitations on claiming benefits on certain body parts. In California,  compensation is limited with respect to the following body parts: psyche, sleep, and sexual dysfunction.

What Is the FECA Claims Process?

“All FECA claims are processed and adjudicated by OWCP (Office of Workers’ Compensation Programs.) Initial decisions on claims are made by OWCP staff based on evidence submitted by the claimant and his or her treating physician. The law also permits OWCP to order a claimant or beneficiary to submit to a medical examination from a doctor contracted to the federal government. An employee dissatisfied with a claims’ decision may request a hearing before OWCP or an OWCP review of the record of its decision. A final appeal can be made to the Employees’ Compensation Appeals Board (ECAB). The decision of the ECAB is final, cannot be appealed, and is not subject to judicial review”. Supra.

Note: in the California state-based system, there is the Workers’ Compensation Appeals Board which provides for adjudication of claims.   Employers are required to maintain insurance, be self-insured, or be legally uninsured.  Also, the California state-based system also allows for an employer opt-out in the form of Alternative Dispute Resolution (ADR.)  In the California system, Injured Workers are capable of appealing cases up to the California Supreme Court. In very limited circumstances, there may be even access to Federal Courts.

Are There Time Limits to Filing FECA Claims?

 “FECA Claims In general, a claim for disability or death benefits under FECA must be made within three years of the date of the injury or death. In the case of a latent disability, such as a condition caused by exposure to a toxic substance over time, the three-year time limit does not begin until the employee is disabled and is aware, or reasonably should be aware, that the disability was caused by his or her employment.” Supra.

Note: In California Workers’ Compensation, there are multiple time limits for filing claims.  Generally, there is a one-year statute to file an Application at the Workers’ Compensation Board.

What Are the FECA Disability Payments?

 The FECA system has various forms of disability payments. They include continuation of pay, partial disability payments, scheduled benefits (which are permanent partial disability payments), and total disability payments.

For the scheduled permanent partial disability payments, there is a schedule which determines the disability payments.

For total disability, there is a monthly benefit paid.

Note: The California system has salary continuation benefits for some public employees.  Otherwise, there is a temporary disability rate which is essentially two-thirds of the workers’ average weekly wage. Similar to FECA, California has a permanent disability schedule which addresses the amount of payments of permanent partial disability.   The California based system also has a form of total disability payment as well.

Are There FECA Death Benefits Available?

 Yes.  If an employee dies in the course of employment or from a latent condition caused by his or her employment, the employee’s survivors may be eligible to receive compensation benefits.

Note: The California system also has a death benefit component  for dependents.

What Are Medical Benefits Under FECA?

“Under FECA, all medical costs—including medical devices, therapies, and medications— associated with the treatment of a covered injury or illness are paid for, in full, by the federal government.”  Supra. “Generally, a beneficiary may select his or her own medical provider and is reimbursed for the costs associated with transportation to receive medical services.”  Supra.

Note: This is different from the California system.  In that system, there are medical provider networks that may impact which providers a worker can choose as their treater.   California industrial medical treatment is also entirely the responsibility of the carrier and not the worker.

Does FECA Provide Vocational Rehabilitation Benefits?

“The Secretary of Labor may direct any FECA beneficiary to participate in vocational rehabilitation, the costs of which are paid by the federal government. While participating in vocational rehabilitation, the beneficiary may receive an additional benefit of up to $200 per month. However, any beneficiary who is directed to participate in vocational rehabilitation and fails to do so may have his or her benefit reduced to a level consistent with the increased wage earning capacity that likely would have resulted from participation in vocational rehabilitation.”

Note: The California system is different.  Currently, for 2013 dates of injury and beyond, there is an educational voucher along with a separate job displacement benefit payment.  It is  markedly different from FECA.

What If I Need Advice?

If you would like a free consultation regarding workers’ compensation, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. We have been helping people in Central and Southern California deal with their workers’ compensation cases for 27 years. Contact us today for more information.

 

 

 

 

 

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