Friday, March 2, 2012

CA 4th DCA Opens Pandora's Box for Denying Pain Cases

Wow, wow, wow.

That's all I could say to the recently released opinion by the California 4th District Court of Appeal (DCA) ruling in County of San Bernardino v. WCAB (McCoy), No. E053173, 2/29/12, published.

In this case the appellate court ruled that the claimant's allegation of migraine headaches were barred from compensability under Labor Code section 3208.3.

Section 3208.3 is the "psyche" statute and, among other limitations, permits a defense against workers' compensation claims for psychiatric injuries if the employer can show such injuries arise out of "lawful, nondiscriminatory, good faith personnel actions".

In the 4th DCA case, John McCoy, an automated systems technician for the County of San Bernardino, filed a workers' compensation claim alleging a cumulative trauma injury to his psyche from July 2005 through January 2006. He added a claim of injury for migraine headaches on the first day of trial.

The County denied the claim under 3208.3 stating that McCoy's injuries were the result of lawful, nondiscriminatory, good faith personnel actions.

The trial judge agreed and denied compensability, including for the migraine claim.

On reconsideration the Workers' Compensation Appeals Board (WCAB) reversed and said that the migraines were not the subject of 3208.3.

On appeal the 4th DCA sided with the County, ruling essentially that physical symptoms that are the product of psychological injury are not compensable if they are the product of lawful, nondiscriminatory, good faith personnel actions.

"We do not believe that the matter can be resolved so simply; seldom are the effects of stress limited to injury to the psyche without resulting physical problems," Justice Art McKinster wrote. "This is such a case. No evidence was presented that McCoy suffered any on-the-job stress other than that resulting from what has been determined to be good faith personnel actions. In such a circumstance, we must conclude that Section 3208.3(h), precludes recovery for physical manifestations that are directly and solely resulting from the psychological injury suffered as a result of good faith personnel actions."

The court explained that this was the only conclusion it could reach, without undermining the purpose of LC 3208.3.

"It would be relatively easy for a claimant to avoid this bar by asserting internal problems and symptoms, such as upset stomach, headache and sleeplessness, but not injury to the psyche per se," McKinster wrote. "There is no better example of this than the present case where McCoy added the claim for migraine headaches — a pre-existing condition— on the first day of trial. We conclude that the good faith personnel action defense precludes recovery for psychiatric injuries with resulting physiological manifestations solely caused by stress from such actions."

Me thinks this case is going up to the Supreme Court because the implications are enormous for a whole host of cases indicating physical symptoms that have their origination in psychological or psychiatric causation.

The reason is that another feature of LC 3208.3 is that, to be 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." So beyond the lawful, nondiscriminatory, good faith personnel action defense, the courts language seems broad enough to encompass the causation threshold of 3208.3 and wrap into that any physiological response to psychological or psychiatric based injury or disease that may be precipitated or caused by employment stimuli.

When one looks at the DSM-IV, or Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (American Psychiatric Association), mandated in 3208.3, one can see where there is great potential for the use of 3208.3 to deny otherwise purely physical injury claims.

The biggest single catch-all for such issues is in the DSM-IV diagnosis category of Somatoform Disorders.

The chapter on Somatoform Disorders starts on page 445 of DSM-IV.

"The common feature of the Somatoform Disorders is the presence of physical symptoms that suggest a general medical condition (hence the term somatoform) and are not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder."

One of the subsets of Somatoform Disorders is Pain Disorder (page 458).

"The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. The pain causes significant distress or impairment in social, occupational, or other important areas of functioning. Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain. The pain is not intentionally produced or feigned ... "

This is very significant. The current majority medical opinion on, for instance, fibromyalgia, is that it is a Pain Disorder because there are no biological explanations for the patient's generalized pain symptoms.

How many work comp cases allege fibromyalgia, or some other pain that is not reasonably explained by physical findings? I believe there is actually quite a large population of those cases in the system.

In fact, the garden variety regional back pain case, so often accepted as compensable simply because of the allegation of pain in a physical body part, may fall into this category (see for example the extensive work and writings of Dr. Nortin Hadler).

So, if the 4th DCA's opinion is to be extrapolated to the general every day garden variety back pain case, or fibromyalgia case, the employer/carrier may ask for a psyche opinion - particularly if there are no diagnostic criteria that are unique from the normal population set to account for complaints of pain - and if the consult diagnoses a Pain Disorder, the employer/carrier may indeed find defense in 3208.3 against compensability.

I'm not saying this is right or wrong, or that payers are going to all jump on the band wagon and deny regional back pain cases as non-compensable under 3208.3, but it is certainly a possibility that many cases may be challenged in the future based on a psyche defense.

From a medical-legal operational standpoint, the examining physician will need to jump the gulf between physical and psychological, but that simply requires a consult referral from a mental health expert.

I suspect that talented defense attorneys will use this strategy on challenging cases until there is either a change in the statute, or a different ruling from a higher court.

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