The assessment of psychiatric impairment

psychiatry-prove-mind-doesnt-exist

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.

Examples

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 psychiatrisgepict 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!

 

Summary

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.)“.

Additional read

Impairment benefits for psychiatric impairment: how to achieve the maximum

[dictated by workcovervictim and manually inserted on behalf of WCV]

 



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16 Responses to “The assessment of psychiatric impairment”

  1. This was such an informative insight into the definitions and determinatios of what constitutes psychiatric injury. I am from SA and my original diagnosis is Severe Depression from 2 years of constant workplace bullying and discrimination.

    For starters, how unfair is it that SA does not even recognise the pain, suffering and damage which workers endure, For some, it is for the rest of their lives.

    It was interesting reading about the medical panel, as I had to attend one to determine if I qualified to receive a section 43. Interestingly, the panel members were not made up of 3 psychiatrists. One was a psychologist, one was a psychiatrist and the other two were not related to mental health. Consequently, the questions they asked were inappropriate in that it did not relate to the “pre and post” components of your life and you as a person and member of society. Nor did they address the impact and consequence of having a psychiatric injury. So I was not surprised my answers were misinterpreted and the outcome was 10%.

    Now that may be seen as a Whoo Hoo moment as I managed to get something from Workcover SA. However my secondary injury is mild brain damage to the point where I cannot return to my profession due to significant memory loss. So there goes 2 Bachelor degrees and a post graduate diploma down the toilet. And I don’t even want to mention the impact on my life and now no future! 10% is such an insult and slap in the face!

    Maybe some clever lawyers in SA can try and find a loop hole to encompass common law or something similar to justify our claims as compensable. Why should be we crucified when other workcover victims in other states are not?

    We have suffered enough as is and we deserve the right to be recognised as workers with an injury. You may not see a plaster cast, stitch or walking aid, but if you listen closely to impact of having a psychiatric injury, the pain and suffering is equivalent to a physical injury.

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    SleeplessInSalisbury January 19, 2014 at 3:45 am
    • @ SleeplessInSalisbury “Why should be we crucified when other workcover victims in other states are not? ” – I fully understand that suffering from a psychiatric injury can at times be worse or equal to suffering an horrific physical injury, and that state workcover legislation should be liable and compensate victims for their crippling psychiatric injuries. Unfortunately the states that recognise psych injuries only compensate victims with a most pathetic lumpsum, and this is for primary psych injuries only. For example NSW’s lumpsum for 15% psych injury is barely $20,000 – that’s it (minus legal fees which are on average $5000) for the rest of the life of that injured worker.

      In the above example, this Victorian injured worker who suffers from a severe physical injury and of 23% primary psych injury (as a direct result from the trauma), plus a 22% secondary psych injury as a consequence of loosing a body part, career, lifestyle, hobbies and unrelenting pain did not receive any form of compensation nor lumpsum for their psych injury -even though the combined permanent psych impairment is a whopping 45% (= just about asylum).
      In Vic (and many other states) secondary psych injuries are simply not recognised, even though they are a direct result of a horrendous physical injury. In Vic one must suffer from a 30% primary psych injury to be eligible for a lumpsum (currently around $70.000 for injuries in 2013). So, what I am saying is that this terribly injured worker (both severe physical and mental injuries) did NOT receive any compensation (or lumpsum) for any of their crippling psych injuries!
      The only hope for this injured worker is a common law damages case, if they can prove negligence. In that case the totality of both the physical injury and the PRIMARY (only) psych injury could be compensated for, as the injured worker meets the threshold for a deemed serious injury (>30% WPI combined physical + primary psych injury).

      So, what I am saying is that even the states who “recognise” psych injuries have such a convoluted and outright very unfair legislation(s), that any compensation for psych injuries are basically a total slap in the face and an insult to injury. These people are often unable to work again for the rest of their lives, and yet are not compensated.
      Also to obtain a 30% psych impairment (i.e. in Vic) you ought to be classified as a nutcase – and in Vic can expect around K70 for the rest of your life. 1 year’s worth of salary.

      The system is extremely unfair indeed – an insult to injury.

      Not to mention “re-training”… obviously if you have a permanent psych injury, the insurer will come up with the most outrageous arguments to deny retraining, from stating you are “unstable”, can’t keep a job down, to needing counseling/treatment… Many psych injured workers have been treated appallingly by their insurers, and simply thrown on the scrap heap. In addition to that most insurers will go to very great lengths to cease your psychiatric or psychological treatment, arguing that you are “not improving” (as per the clinical framework). That you may get worse without psych treatment is not considered important…

      Aarggghhhh!

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      workcovervictim3 January 19, 2014 at 8:52 am
      • I do agree with you Workcovervictim3, no state in Australia recognises the extent of a psychiatric injury and its impact on the present or future. It goes back to the burden of proof, a broken bone, a lost limb, something that can be seen. To some degree back injuries are sometimes looked that way too unless there is some sort of tangible evidence like a CT scan.

        Therefore, I can’t help but ask the question, with the odds against us, shouldn’t we still fight? I know what you are saying Nightowl, the trauma of taking it to the courts could almost cause a relapse, But it only takes one case to set a precedence and scare these Workcover people and employers think twice about discing us

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        SleeplessInSalisbury January 19, 2014 at 3:52 pm
        • I wish I had the strength to take the fight to court. I wish I had the courage to fight the good fight for the benefit of all. I admire anyone who has the strength to confront workcover and make them pay a fair sum for damages. Unfortunately that person isn’t me. Maybe if I were by myself I would have pursued workcover with more vigour but I have children I need to protect from financial uncertainty. That’s why I settled. There are substantial financial risks in pursuing a matter in court. One could end up better off financially, but could also end up being forced to pay substantial legal costs. I understand your position, and you are right, if more matters were heard before the courts then maybe workcover would be a fairer, more humane system.

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      • Oh yeah, I forgot to mention something. With the compensation, I believe something is better than nothing. At least there is the tiny recognition of that we have been injured. I mean as is, we have to jump through hoops to even have a psych claim accepted.

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        SleeplessInSalisbury January 19, 2014 at 3:59 pm
  2. injured workers that have a ‘good case for success’ need to take matters into the courts. if this is not done then unfortunately the laws will change again and again removing more and more rights throughout the years.

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    HuntingWorkcover January 19, 2014 at 10:53 am
    • @HuntingWorkcover,

      I agree in theory. However, the increased psychological strain, not to mention the added financial risk, is a matter for each individual. For those of us with psychiatric injuries, whilst pursuing a “moral victory” would be very sweet, being trapped in the system for, potentially, another few years with continued harassment is not that appealing!

      Sometimes getting out, for a substantially lesser an amount, would be best for one individual, whilst fighting on would be best for another. No right or wrong. We all should protect ourselves first and any benefit to greater good should come second.

      The most important aspect for anyone is to look after their own best interests. If that can be achieved and kick serious WorkCover butt at the same time, that’s great. If not – then that’s life.

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      • yes, everyone’s situation is different and protecting ourselves first is a must. for the few that can push on further they should bring the fight to the courts and not go for the easier option. these few will do a great service for many and will be much appreciated to all injured workers. additionally exposure after success should be considered as this will further break down corruption.

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        HuntingWorkcover January 19, 2014 at 4:52 pm
  3. FU-CGU Couldnt agree more. I just settled my claim for substantially less than the estimated worth. For me, getting out now was the right thing to do. I could have fought on but I didn’t want the stress of being on workcover for perhaps another year or more, then face the uncertainty of the court system. At least this way I can pay off some debts and try to move on with my life.

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  4. Hi Nightowl,

    I hear you, I really do. I have young children as well and you did the smart thing and looked at the “bigger picture”.

    I still may have to travel down the same road as you. From the start of my claim 6 years ago, workcover have not said boo to me. I don’t get harassed by them, constant phone calls, I’m the one that’s hassling them to do something and be proactive. So I’m using this time to look at all my options, talk to people, get information etc.

    To be honest, all it would take is one smart lawyer who is passionate about social justice, and in particular, the disregard for psychiatric injuries. However,finding one is another question.

    So now while I am on borrowed time, with no one hassling me or intimadsting me, I have the mental capacity to try. Whether I succeed is another thing…. 🙂

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    SleeplessInSalisbury January 20, 2014 at 11:57 am
    • Thank you for your understanding. I hope that you are able to achieve a successful outcome for yourself whilst bringing attention to the many injustices inherent in the the workcover system. I wish you all the very best in your endeavour.

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  5. I suggest everyone that has being affected by these changes tells their story..we need to reach 200 responses on this latest site by David Shoebridge who is campaigning for injured workers. This can be done at :

    https://davidshoebridge.good.do/tell-your-workcover-story/tell-your-workcover-story/

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  6. All of the above, very courageous.
    I am in the process of proving negligence against my employer as I opted out of my common law claim to pursue a work injury damages as to prove neg against a 3rd party or occupier is tough and as for physch claims you are right up and over certain % which I obtained in both physical and mental WPI % wow lucky me and now with 10 spinal ops and lots of pins and rods the future is uncertain and man I just want to get in court have it heard and get on with life but it does not work that way now does it.
    I was a head case after learning to live with the injuries after having to accept how I’d be for the rest of my life and like most my employer treated me like nothing which shocks one and thoughts of retribution went screaming through the head, long hours with my physchologist etc so when does it end…………………….? when we do not have to deal with all the crap. I still think at times we shouldbe more like the IRA but karma has a funny way of settling the score for those who have no moral fibre.
    Keep fighting for your rights and hope you all make to the greener side.

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  7. ive been on workcover near 7yrs as i got bashed firing a guy. Broken ribs, cuts in eye, knuckles bled, etc . Workcover pay small amount weekly. I have ptsd, rib removed, surgical enthasemia,, broken ribs.. I see a psychologist. I cant handle how i am or the pain everday, but why dont they help me or us? When i call they dont care. Contact lawyer” have a great day”.

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    • Hey @upset,

      I feel for you, injured supervisors and managers are a real “problem” for insurers.

      Unfortunately, no-one in the system does care. After several years, and still suffering physical and psychological injuries, surely your injuries would be classed as “permanent”.

      All you can hope for is being paid out and getting out from the insurers clutches. Everything is reduced down to money and cost. A good lawyer will be able to assist you getting fairly assessed for WPI and helping you get out with some compensation.

      Being blunt you have choices to make:
      (a) get out with some payout and try to rebuild your life as best you can
      (b) Hope for a WPI over the common law threshold in your State and sue the bastards (this might take several more years)
      (c) stay in the system and cop shit forever.

      It sucks, it’s not fair, it’s corrupt, it’s bullshit – but that’s the system. Sink or swim, fight or walk away.

      Good luck

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