The current recession has pushed employers to slash work forces and to increase work demands and hours on those workers who remain. As a consequence, this overworked and anxious workforce has experienced a parallel rise in workplace accidents and incidents leading to both physical injury and mental distress. In an effort to reduce costs, companies are turning to investigators, attorneys and doctors to formulate strategies to deny the legitimate claims of injured workers through discrediting the worker. In many cases this increased scrutiny is not warranted.
Physical injuries are tangible and less easy to question and dispute. Yet, the very real mental stress that often accompanies a physical injury is less visible and often becomes a target of insurance adjusters and lawyers hired by firms to reduce their culpability in a workers’ compensation claim case.
Dr. Andrew Meisler, a clinical and forensic psychologist, serves as an independent examiner for attorneys and insurers in an effort to bring scrutiny to workers who claim mental distress as a result of a workplace injury, incident, or institutional structure. He has created a series of ten “red flags” that employers should focus on when putting pressure on an injured worker. His strategy involves not only questioning if mental distress actually exists, but also asking whether mental distress is the result of some other, underlying or preexisting condition. Further, if injury-related mental distress is undisputed, investigators and examiners can further scrutinize if a worker’s inability to return to work is a matter of capacity, or a matter of motivation. If an investigator decides that a worker is simply unmotivated, the employer can demand the worker return to work.
It is worthy to take a look at the ten “red flags” devised by Dr. Meisler to get a clearer picture of the kinds of strategies employers pursue in their efforts to avoid culpability:
1. Insufficient time spent with claimant. It is sometimes noted by insurance examiners that forensic experts often spend dozens, if not hundreds of hours, examining a criminal defendant. As such, they claim that anything less than 2 hours is insufficient. Aside from the the unseemly and subtle connection between a criminal defendant and an injured worker, saying that any amount of time is simply insufficient does not defer to the expertise of the examinor.
2. Insufficient Record Review. Investigators working for employers want no stone unturned in their effort to deny compensation to an injured worker, and one place they will go is to dig into a claimant’s medical history. Much like an insurance company looking for preexisting conditions in order to deny rightful coverage, a worker’s prior mental health history can be used to discredit a legitimate claim.
3. Were there pre-injury stressors? While depression arising from something so dramatic as a lost limb seems a clear case of mental distress stemming from a workplace injury, this kind of visible connection is also most rare. Often, mental conditions arise legitimately out of a complex tissue of relations in the workplace and the nature and cause of the physical injury. Investigators working for employers will do all they can to identify stressors outside the context of the workplace and thus cast doubt on an injured worker.
4. Is the worker exaggerating? Investigators will sometimes make use of standardized tests or rubrics to root out if a worker is indeed distressed, but perhaps exaggerating it a bit. The idea of workers “enhancing” the symptoms of an injury is a cliche one sees promoted in anti-labor sectors and treated frivolously in the media. The perception of mental stress is highly personal and individualized and attempts to establish the degree of suffering should not intimidate an injured worker.
5 & 6 Psychological Testing and a Mental Status Exam. One well-worn strategy of investigators hired by employers is to combat psychiatric results with even more psychiatric tests with the hope that the quagmire of tests will reduce evaluators to confusion.
7. No Family History? Injured workers should be prepared to present family histories and to answer detailed questions about their relatives, even if such invasive inquiries seem to lend no light on the present case.
8. Are they continuing to live their life? Investigators will often seek out a set of symptoms and then decide whether these symptoms keep the worker from engaging in other activities outside of work. This line of thought often conflates the private and the public sphere. It also ignores that while work functions should be performed without pain, there are private activities that an injured worker will continue to perform in spite of the pain.
9. Calling Dr. House. Anyone familiar with the cantankerous eponymous main character of the television show House, is familiar with the process of differential diagnosis. This process of not jumping to a diagnosis, but slowly ruling out many possibilities through the process of elimination is important, but can also be used to call a valid diagnosis into doubt.
10. What is the Permanent Partial Disability (PPD) Rating? Most investigators wish to subject the injured worker to more tests than necessary by claiming that more and more tests will give a more complete picture of the injured workers’ impairment. Often these tests do yield different results and while there are protocols for reconciling diverging scores, the injured worker should be prepared observe these tests being put into competition with one another to cause confusion in evaluators.
Dr. Meisler notes these “red flags” are only a small checklist, and that there are a number of other issues that investigators should be alert for when compling a report on a claimant.
Somewhat arbitrary lists such as these not only serve to give employers hope that they can “debunk” even legitimate workers compensation claims, they also intimidate injured workers who feel that a vast amount of institutional, commercial, and legal resources are aligned against them as they move through the process of receiving rightful compensation.
So…what is an injured worker to do?
Injured workers in Seattle and Washington State should not be intimidated by these well-worn tactics of employers and corporate attorneys. With the proper workers compensation attorney as their partner through the process, a worker should feel protected and at ease while their attorney anticipates moves such as these and negates them. An injured worker should first seek medical care, then contact an expert Washington Workers Compensation Lawyer at Emery Reddy to guide them through their claim process and be an advocate for their health and mental well being.