With the recent rise in workcover, common law and civil claims involving alleged psychiatric injury, knowledge of how psychiatric impairment is assessed is critical to determining whether an injured worker is entitled to a lumpsum or general damages.
The assessment of psychiatric impairment
Dr Nigel Strauss is a psychiatrist with over 30 years’ experience and co-author of the “Guideline to the Evaluation of
Psychiatric Impairment for Clinicians”(GEPiC).
Dr Strauss has provided several “insider’s view” into how psychiatrists use the GEPIC to assess psychiatric injury for the purposes of determining whether an injured worker (or claimant) exceeds the necessary impairment threshold (*) under the workers compensation legislation, (or the current 10% impairment threshold under the Wrongs Act).
(*) Note: the required permanent impairment for a psychiatric injury, in order to be eligible for a lumpsum and/or a common law damages claim varies from state to state. For example, in Victoria one must be assessed as being 30% or more permanently impaired; in NSW one must suffer from an assessed 15% psychiatric impairment; SA does not recognised psychiatric injuries for the purpose of workcover (lumpsum/pain and suffering etc).
With the recent rise in claims involving alleged psychiatric injury, knowledge of how psychiatric impairment is assessed is critical to determining whether an injured worker is entitled to a lumpsum or general damages (common law).
Psychiatric disorders: what are they?
Dr Strauss has explained a number of common psychiatric disorders seen in civil (and workcover) claims. These include:
- acute stress disorder;
- post-traumatic stress disorder (PTSD);
- generalised anxiety disorder;
- adjustment disorder with depressed mood and/or anxiety;
- panic disorder with/without agoraphobia;
- obsessive compulsive disorder;
- major depressive disorder;
- pain disorder;
- substance use disorder; and
- dysthymic disorder
Although abnormal grief reaction is commonly alleged in nervous shock claims, it is not a psychiatric disorder listed in the 4th edition (the previous version) of the Diagnostic and Statistical Manual of Mental Disorders (DSM-iV). One can only assume that this is the reason why for example NSW has abolished compensation for nervous shock claims – experienced by for example the relative(s) of a deceased injured worker.
Currently, the released 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) is in use.
DSM-V includes abnormal grief reaction and does not include the “Bereavement Exclusion” (nervous shock claims) contained in DSM-IV, which discouraged diagnosis of major depression within two months of the death of a loved one.
Using the GEPIC
According to our consultant psychiatrist and senior lawyer, an understanding of how the GEPIC operates is important when deciding whether or not to refer an injured worker to, for example, the Medical Panel (upon service of a certificate of assessment.)
Under the GEPIC, psychiatric impairment is evaluated by:
- assessing six mental functions (intelligence, thinking, perception, judgement, mood and behaviour) and determining which class (1-5) they fall into by reference to their severity (normal to slight, mild, moderate, moderately severe and severe); and
- once a class has been determined for each mental function, determining the median class.
The percentage impairment which correlates with that particular class is the overall percentage impairment for the injured worker. (read more about the GEPIC>>)
Our consultant psychiatrist kindly provided the following insights and commentary about the use of the GEPIC:
- only consultant psychiatrists can use the GEPIC and issue certificates of (impairment) assessment – this includes consultant psychiatrists on a Medical Panel (i.e. in Victoria)
- a psychiatric diagnosis is not necessarily required in order to exceed the needed threshold (i.e. 30% in Vic)
- the descriptors in the GEPIC are indicative only and other symptoms can be relied upon if justified;
- psychiatrists primarily use mental state examinations to evaluate impairment and they are reliant on self-reporting; and
- documentary evidence (this can include video surveillance) can assist to -of course- counter an injured worker’s version of events or support the existence of a pre-existing psychiatric injury.
Our consultant psychiatrist kindly discussed a couple of real case examples and some of the features that may be seen in differing levels of psychiatric impairment. This may help any injured worker understand or estimate their own “level” of permanent psychiatric impairment (where applicable) and be realistic when receiving their percentages.
Very broadly, he explained that:
- in mild (5-10%) impairments – the injured worker may have psychiatric symptoms only, work and have only had minimal treatment;
- in moderate (10-20%) impairments – the injured worker may have a psychiatric diagnosis, not work and have seen a psychologist; and
- in severe impairments (25%+) – the injured worker may be suicidal, inactive (no work) and be seeing a psychiatrist.
He also explained that if Post Traumatic Stress Disorder (PTSD) and adjustment disorders are (or have been) diagnosed, the symptoms are usually significant and impairment may well exceed 10%.
If major depression is diagnosed, an injured worker will very likely exceed 10%.
However, beware that injured workers may not exceed the threshold where there has been a significant improvement or where there is pre-existing psychiatric impairment. He also told us that assessing pre-existing impairment is complicated and involves considering temporary, severity, level of activity, treatment and historical factors. Remember that IME’s or so called independent impairment assessors love nothing more than to pin down your current psychiatric injury to a “pre-existing” one, such as a previous divorce, death of a family member (spouse/child), and a “troubled” childhood.
A real case sample can be seen right (image) – note that the so called independent psychiatrist assessed this injured worker of suffering from only 5% primary psychiatric injury (!!!) and 25% secondary, whereas the non-biased medical panel assessed a whopping 23% primary psychiatric injury, AND a 22% secondary injury (total of 43% psych injury). Massive difference, you bet! Again, talk to your lawyer if you believe your “independent” psychiatric assessment was biased!
The above insights may have a real practical relevance to the consideration of whether an injured worker is/may be entitled to a lumpsum, and/or general damages (common law claim) in claims alleging psychiatric injury and/ or whether referral to the Medical Panel is worth. The latter may be worth if you believe you have been assessed wrong – as illustrated above, it is not uncommon for an”independent” assessor to for example state you suffer from a 5% primary psychiatric injury, and from 25% secondary psychiatric injury in the context of a physical injury, whereas often a medical panel will get it right and the 5% primary becomes 20 or 25% primary psychiatric injury and the secondary psychiatric injury becomes 5 or 15%! A medical panel, consisting of at least 2 to 3 consultants psychiatrists will often be able to better distinguish between primary and secondary psychiatric injuries, as their assessments are much more thorough. However, remember that a medical panel assessment is legally binding.
In view of the recent rise in workcover psychiatric injuries and in the Wrongs Act nervous shock claims, an understanding of the GEPIC is really invaluable, and we highly recommend any injured worker suffering from primary (and yes, secondary) psychiatric injury studies the GEPIC mode of assessment thoroughly.
♣ For more information about psychiatric assessments and the GEPIC guide, and how things are assessed, please read our article ” The guide to the evaluation of psychiatric impairment for clinicians (G.E.P.I.C.)“.