The same principles of “stay at work” or “better at work” and treating each and every person with professionalism, respect and dignity should apply to absolutely every person who files a claim for compensation or requests accommodation for a disability in the workplace. This means that in almost all circumstances, the employer should adopt and work hard to establish a practice of accommodating every one with modified duties. Accommodating every disability, physical or mental should be the universal standard applied to every person. In doing so, the same principles and actions govern the managing of all disability claims including those claims which are possibly feigned or malingered. Ultimately, in the end, this practice should and often will result in the denial of LOE benefits being paid at the operations level, or a successful win at Appeals in which LOE should be reversed. And there are additional bonuses with this practice. You set the excellent precedent for your company, that you are an employer who accommodates all injuries and disabilities. In the long run, this minimizes lost time claims and reduces the risks of human rights applications based upon disability as the ground of discrimination.
However, claims for mental conditions such as Post-Traumatic Stress Disorder (PTSD) pose unique challenges for employers because some adjudicators treat individuals with PTSD presumptively as though they are totally occupationally disabled, and many, if not most employers presume that workers with PTSD cannot be accommodated. This is simply not true and employers are encouraged to start offering the most ‘accommodating, safe, supportive modified return to work plans’ (RTW plans) possible as soon as they receive medical notes putting worker’s off because of PTSD. These RTW plans get legitimately injured workers back to work in a safe, supportive and respectful environment, and those who are feigning and malingering find that it is no longer worth it to continue with the charade if they cannot be paid to stay home. Win, win.
PTSD – Easily Feigned and Malingered
Firstly, we should remember that the DSM tells us that the majority of people who experience truly horrific traumatic events do not develop PTSD. So, if you have a worker who has suffered a questionably traumatic event or one in which most people, would not find objectively traumatic, it is wise to consider the possibility of feigning and malingering. This is because PTSD is unfortunately a condition that can be easily malingered for secondary gain. PTSD is particularly vulnerable to malingering because the diagnosis relies heavily (if not exclusively) on subjective symptoms and a patient driven history. At the same time, physicians are reluctant to diagnose malingering. They have very legitimate concerns for their reluctance, for both legal liability, and the potential for regulatory complaints to the College of Physicians and Surgeons.
The American Psychiatric Association 1994 at p.683, as quoted by Philip J Resnick MD, notes that given the high incidence of malingering, which has been estimated to be as high as 40-60% depending on the potential financial outcome, there is a renewed need for caution and guidelines in circumstances such as litigation or workers' compensation contexts. Certainly, physicians need valid, reliable collateral information before they conduct assessments so that they can identify true instances of PTSD from those that are driven by other motivations. Dr. Resnick states that "clinicians who simply inquire about specific symptoms of PTSD and other diagnostic criteria in DSM-IV will be easily fooled".
Confirming a Diagnosis of Feigning or Malingering
There are only three ways to confirm that feigning or malingering can be confirmed with certainty:
- when malingerers think that they are being unobserved and they are caught in the act unintentionally or intentionally through surveillance activities;
- when malingerers confess to faking it; or,
- through the use of a Forensic Psychiatric or Psychological Evaluation (Forensic IME).
Early Surveillance and Forensic IMEs
Claims should not be driven by vague notes from a treating psychologist. Surveillance and Forensic IMEs should be used early in the claim if the worker refuses to return to highly accommodated flexible and responsive modified duties (these can include one-on-one assistance such as that of an Occupational Therapist being provided and paid for by the employer).
A Valid Diagnosis of PTSD Does Not Automatically Mean Total Disability
Under no circumstance should a diagnosis made by a treating clinical psychologist be equated with an automatic acceptance of a worker's total occupational disability. Clinically, there are varying degrees of disability that may or may not arise with this condition. There are serious problems in accepting a claim of total disability by a treating practitioner who is relying exclusively on the worker's subjective reporting of symptoms, work conditions and opportunities. Given what was mentioned above, that "clinicians will be easily fooled" in relying exclusively upon their patient's subjective information, claims of total occupational disability should be substantiated, preferably by outside Forensic Psychiatric specialists. The benefit of obtaining independent medical evaluations by neutral and unbiased health practitioners cannot be overstated. Treating practitioners have an inherent conflict of interest due to their professional obligation to have an uncompromising alliance and regard for the well-being of their patients.
Integration, Accommodation and De-Stigmatizing Mental Illness in the Workplace
Just as important as the inherent problems with treating practitioners making unsubstantiated determinations of "total occupational disability", is the problem of presuming total occupational disability for PTSD or any mental illness. This is contrary to the peer reviewed medical literature and human rights obligations and the duty to accommodate. It is also contrary to a preponderance of evidence which supports the "better at work" or "stay at work" principles, which are unquestionably considered most often to enhance better recoveries and the reduction of the devastating financial and social outcomes that arise when a person is both alienated or separated from work, and also suffering the financial consequence of being at home on reduced income.
Employers and organizations across Canada, and many other jurisdictions, are actively encouraging accommodations for mental illness, reducing the stigma, returning people to work, and treating people with much greater respect and dignity in an inclusive and supportive atmosphere. When the WSIB makes or supports presumptions of total occupational disability based only upon the subjective opinion of treating psychologists, they appear to be going in the opposite direction from this progress. A finding of total disability should not be the default for "mental illness" injuries without sufficient objective evidence and collateral information.
PTSD is Predicated on the Severity of the Stressor
The professional literature on PTSD clearly demonstrates that the psychological response causing PTSD is predicated on the severity of the stressor. Factors such as having one’s life actually threatened, possible physical injury, object loss, and the grotesqueness of the traumatic event, all contribute to the development of PTSD. The Forensic IME assessment should not only confirm the diagnosis, and a finding of total occupational disability (if applicable), but also the severity of the alleged sudden and unexpected traumatic event (which is not every sudden and unexpected event) or the severity of the cumulative or gradual onset traumatic events using these categories for evaluating the alleged or reported traumatic stressor.
Require Written Explanation of the Criteria is Met
Require that the Board obtain and provide you with an explanation in writing, as to how the event giving rise to PTSD meets the specific and detailed criteria of both the Board Policy (TMS) and DSM requirements. The DSM IV applies for non-emergency responders and DSM V applies for emergency responders. There are significant diagnostic differences between DSM IV and DSM V and these are mandatory in Board Policy. The Board’s written explanation should be reviewed with these criteria in mind.
About the Author
Cézanne Charlebois, Charlebois Associates. Cézanne is a Certified Specialist in Workplace Safety and Insurance Law, practicing almost exclusively in management-side workers’ compensation law for employers throughout the province of Ontario in all areas of claims management. She conducts appeals under the Workplace Safety and Insurance Act at the WSIB Appeals Branch and the Workplace Safety and Insurance Appeals Tribunal (WSIAT). She is known for taking on impossible, challenging, complex and even fatality claims and winning big for her clients.