When the law changes and makes a distinction between physical and psychiatric or psychological injuries, what should one do?
If you're a creative California lawyer, you simply argue that there isn't any distinction.
That's the trend that's being discussed at the California Applicant Attorneys Association Summer Conference in Las Vegas.
SB 863 added to Labor Code section 4660.1 language saying, "There shall be no increases in impairment rating for sleep dysfunction, sexual dysfunction and compensable psychiatric disorder, or any combination thereof, arising out of a compensable physical injury." An exception to the rule allows the use of psychiatric conditions to increase an impairment rating when the worker was injured by or exposed to a violent act.
Dr. Mark Kimmel, a qualified medical evaluator in psychological and neuropsychological assessment, called the distinction between mental and physical injuries "artificial" because research shows that there are changes in the brain related to conditions that would have been thought of as purely psychological.
He pointed to imaging studies finding some people with post traumatic stress disorder have a decreased hippocampus volume, while some with major depressive disorder have brain tissue atrophy.
He also illustrated the concept that amputees experience phantom pain in the limb that is no longer present.
Consequently, it may be possible to argue that a worker's complaint of pain is a "direct injury" and not a compensable consequence of an injury, panel moderator Arjuna Farnsworth of Boxer & Gerson in Oakland suggested.
The history of mental injury claims being distinguished from physical injuries in California goes back to the addition of Labor Code section 3208.3. That section of law was added in the early 1990s in response to med-legal mills and treatment clinics that found every injury had a mental component that required diagnostics, evaluations and treatment, even when the claimant did not complain of any psychiatric issue.
Back then the legal arguments seemed to be more about whether a claim arose out of some disciplinary action or termination, or a traumatic event. Not about whether there was any distinction between mental and physical.
Certainly, to the extent that the brain is an organic element and part of the biology of the human body, the argument may have some merit.
Regardless of merit, though, it seems that whenever there is an attempt at "fine-tuning" the law there end up a myriad of ways to argue alternatives to achieve the same, if not better, desired result.
In law school we're taught "the law." Then we're taught "exceptions" to the law. Finally there were always "exceptions to the exceptions," which if one just analyzed things without getting too fancy, were just "the law" stated another way.
So is there any difference between mental and physical injuries? Only if there is an advantage to claiming such depending upon the legal claim being made.