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.

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.

CALIFORNIA VIRUS-21? COVID-19, CALIFORNIA HOMEGROWN VIRUS MUTATION, AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Is There Something New with Respect to COVID-19?

Yes. There is a new strain of Coronavirus which is a B1429 strain.  This may be unique to California.

“Health officials are still determining if the new variant shares is more contagious than the regular strain” NY Post,  “We’re concerned that it [B1429] attaches to the human cell a little more than the natural virus the one we’ve been dealing with. That might make it more contagious, we aren’t sure yet, we’re looking at it,” said Mark Ghaly, California Health and Human Services Secretary. Supra.

Is This Important for Workers?

For Workers’ Compensation purposes, the information about the new strain is important.  It may provide some explanation as to the severity of a COVID-19 infection.  Further, this new strain may be used to determine industrial causation.  For example, if co-workers have the same strain of COVID-19, this information may assist in finding industrial causation.

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.

 

KNEE AND HIP INJURIES, OSTEOARTHRITIS, AND WORKERS’ COMPENSATION: PHYSICAL ACTIVITIES AS RISK FACTORS FOR WORK INJURIES: WHAT YOU NEED TO KNOW

There is no requirement that the causes of a work injury has to be 100 percent industrial.

There are some medical conditions that can have a work-related component to them.  In other words, they are only partially caused by job duties.   Osteoarthritis (OA) can be that type of industrial injury.  OA is a common form of arthritis that can impact a variety of parts of the body.  The parts of the body OA can impact includes the knees.

This article will discuss OA , who Treats OA,  and how OA can be work-related.

What is Osteoarthritis?

Per the CDC, “Osteoarthritis (OA) is the most common form of arthritis. Some people call it degenerative joint disease or “wear and tear” arthritis. It occurs most frequently in the hands, hips, and knees.”

“With OA, the cartilage within a joint begins to break down and the underlying bone begins to change. These changes usually develop slowly and get worse over time. OA can cause pain, stiffness, and swelling. In some cases,  it also causes reduced function and disability; some people are no longer able to do daily tasks or work.”

Note:  The term degenerative joint disease is a term that is frequently used.   It is commonly abbreviated to DJD.

What Are the Symptoms of OA?

Symptoms of OA can include pain or aching, stiffness, decreased range of motion, and swelling. CDC.

Who Treats OA, and What Treatments are Available?

OA is an interesting medical condition in that there are two medical specialties that can address the condition.   The two types of doctors are Orthopedists and Rheumatologists.

Orthopedists focus on the bones and the joints.   They can prescribe medications and perform operations.

Rheumatologists focus on internal medicine matters.  They can prescribe medications and prescribe non-surgical treatments.

How Is OA Work-Related?

OA is work-related with respect to some activities.   According to one study,  A synthesis of 69 studies from 23 countries yielded strong and moderate evidence for lifting, cumulative physical loads, full‐body vibration, and kneeling/squatting/bending as increasing the risks of developing osteoarthritis (OA) in men and women.”  Strong and moderate evidence existed for no increased risk of OA related to sitting, standing and walking (hip and knee OA), lifting and carrying (knee OA), climbing ladders (knee OA), [and] driving (knee OA.)” Men and Women’s Occupational Activities and the Risk of Developing Osteoarthritis of the Knee, Hip, or Hands: A Systemic Review and Recommendations for Further Research, Monique A.M. Gignac Emma Irvin Kim Cullen Dwayne Van Eerd Dorcas E Beaton Quenby Mahood Chris McLeod Catherine L. Backman 14 February 2019, https://doi.org/10.1002/acr.23855

Note: thus, there are activities that can increase the risk of OA and other activities which are not a causative risk factor.  Thus, an analysis of one’s work activities is important when considering to file a claim.

What is the Legal Theory for Industrial Causation?

An Injured Worker must prove that their work activities contributed to the development of the disease. South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 [188 Cal.Rptr.3d 46, 349 P.3d 141].)

What is the Analysis?

The fact that one engages in certain injurious activities does not guarantee a valid claim.  A medical opinion is required. Such a medical opinion should include a medical examination, testing, review of medical records, review of one’s past medical history, and an analysis of the physical activities the worker engaged in at work. .

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.

WORKPLACE VIOLENCE AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Workplace Violence is a serious concern in California.  Some of the most infamous workplace violence episodes have occurred in California.  This includes the San Ysidro McDonalds shootings, the Piper Tech shootings, and the San Bernardino terrorist shootings.

Not all workplace violence involves fatalities. There are many workplace violence events of a non-fatal variety.   These violence acts are significant in the workers’ compensation area because workers who are either injured in the incident or suffer emotional injury as a result of witnessing the events.  These effected workers are entitled to seek medical treatment and disability benefits through the workers’ compensation system.

There was a recent study of interest which provides insight to workers with respect to these incidents.

This article will discuss non-fatal workplace violence, how it interacts with the workers’ compensation system and the rights that an Injured Worker has relating to those incidents.

What Were the Non-Fatal Workplace Violence Studied?

In a recent study, non-fatal violence in the workplace was investigated.   In the study, the types of crime included rape/sexual assault (including attempted rape, sexual attack with serious/minor assault, sexual assault without injury, unwanted sexual contact without force, and verbal threat of rape/sexual assault); robbery (including attempted robbery); aggravated assault (attack or attempted attack with a weapon, regardless of whether or not an injury occurred, and attack without a weapon when serious injury resulted, and including aggravated assault with injury, attempted aggravated assault with weapon, and threatened assault with weapon); simple assault (attack without a weapon resulting in no or minor injury, and including simple assault with injury and assault without weapon without injury); and verbal threat of assault.” Siegel, M. Johnson, CY, Lawson CC, Ridenour M Hartley D. Nonfatal Violent Workplace Crime Characteristics and Rates by Occupation- United States, 2007-2015. MMWR Morb Mortal Wkly Rep 2020;69: 324-328.

What Are the Frequency Rates of the Different Forms of Violence?

The most frequently reported type of crime was threat of assault (44%), followed by simple assault (37%), aggravated assault (13%), rape/sexual assault (3%), and robbery (3%). Siegel, M. Johnson, CY, Lawson CC, Ridenour M Hartley D. Nonfatal Violent Workplace Crime Characteristics and Rates by Occupation- United States, 2007-2015. MMWR Morb Mortal Wkly Rep 2020;69: 324-328.

Note: workplace violence does not necessary translate into matters of physical harm to workers. Threats of assault can cause psychological injury or give rise to physiological stress responses such as a heart attack. Likewise, witnessing these various events might give rise to such problems as well.

Are the Violence Rates Different Between Occupations?

Yes. In the study, “[d]uring 2007–2010, occupations with the highest rates of violent workplace crimes were Protective services (e.g., first responders) (101 crimes per 1,000 workers); Community and social services (19); Healthcare practitioners and technicians (17), Healthcare support occupations (17); Education, training, and library occupations (eight); and Transportation and material moving occupations (seven.)” Siegel, M. Johnson, CY, Lawson CC, Ridenour M Hartley D. Nonfatal Violent Workplace Crime Characteristics and Rates by Occupation- United States, 2007-2015. MMWR Morb Mortal Wkly Rep 2020; 69:324-328.

Note: It is interesting to note which areas of the workforce in which the acts occur.  It appears that the key factor is the significant contact that workers have with the public.

Are All Workplace Violence Episodes a Valid Work Injury?

No.  There are several issues that can come up.  First, there is the initial aggressor rule.  Second, if the alleged criminal has a relationship to the victim, there may be some issue of controversy as to whether it was a workplace event versus an event that happened at the workplace.  Legal analysis would be recommended in those circumstances.

Is there a Difference Physical Injuries versus Psychological Injuries?

Yes. Psychological Injuries have thresholds that must be met in order to prevail.

The Labor Code Section 3208.3 provides lower burdens for violent acts.  It is noted in the section that “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.”  Further, ““substantial cause” means at least 35 to 40 percent of the causation from all sources combined.”

Further, there are other sections that may assist on a psychiatric claim.  They, however, require a factual analysis. Therefore, they may be relevant but will not be discussed within this article.

Additionally, for certain safety and law enforcement officers, there is a post-traumatic stress disorder presumption.  Click here for an article discussing it.

Are There Any Other Sources of Benefits?

Yes. The State of California has a Victims of Crime Program which can also provide benefits in some circumstances.  Click here for an article discussing it.

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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