W. Va. Code R. § 85-22-5 - Psychiatric Evaluation and Impairment Guidelines

5.1. Professional Standards for Examiners - Examiners for the West Virginia Workers' Compensation Guidelines for Psychiatric Impairment are expected to adhere to professional standards of " competent practice established by the State Licensing Boards, National Certifying Organizations and Professional Associations", and to Codes of professional, ethical, and legal conduct promulgated by these organizations. They must also follow rules and regulations of the West Virginia Workers' Compensation Guidelines for Psychiatric Impairment and applicable West Virginia law. Clinical assessment procedures and measures utilized in forming an expert opinion must be generally accepted in the expert's scientific community. In forming his expert opinion, the examiner must use the standard of "Reasonable Medical Probability", meaning that the presence of the disorder, and the causation of the disorder by a work injury or disease is "more likely than not."

5.2. General principles - A psychiatric examiner should be an objective evaluator who has no conflict of interest and -no prejudgment regarding the claimant's condition or the presence or absence of impairment. The examiner should not be a treating psychiatrist or vice versa.

a. Bias in an examiner is an inherent risk while performing these examinations and self-scrutiny is required to prevent or minimize it."

There is a tendency to identify with the referring sources who may subtly pressure for a favorable opinion or only selectively support needed information (medical records, employment records, previous injuries, evaluations etc.). The examiner may develop a philosophical identification with workers or employers due to his or her own background, development and experiences. The examiner may assume in his or her mind the role of the trier of fact or dispenser of justice. Sibling rivalry or other competitive motivations may skew the examiner as he or she attempts to "outdo" another psychiatrist involved in the case. The examiner may become paralyzed with indecision or need for appearing unbiased such that no definite opinion is rendered. Favorable or unfavorable personal opinions about the claimant may enter the picture due to knowing the claimant or someone associated with the claimant.

A. Pro-plaintiff evaluation biases:

(a). Inadequate exam - lack of tracing of symptoms, no exploring or pre-existing conditions or non-work stresses.

(b). Very pessimistic vocational prognosis early in a case which has not been treated or without scientific foundation or supportive evidence, proper diagnostic studies or a clear description of the factors that are causing the claimant's level of impairment.

(c). "Mixing of roles - both treating and evaluating the claimant.

(d). inappropriate legal advocacy.

(e). Diagnoses that go beyond the capacity of the diagnostic tests that have been performed or without objective mental status or psychological test data to support them.

(f). Sweeping statements as to disability from employment without a vocational expert assessment and no careful consideration of limited duty possibilities, transferable vocational skills, job analysis, or even the potential impact of treatment.

(g). "Pseudo-validating" a claim by the treating physician by means of "case building", whereby the physician provides a frequency and intensity of treatment not otherwise within the reasonable community standards of quality, cost-effective care.

(h). Use of numerous medical eponyms and jargon that are not explained in the text of the report and that are not obvious to the reader.

(i). Use of esoteric or pedantic terminology to ensure that the practitioner will be called upon for testimony, thus increasing his or her reimbursement for each case.

(j). Use of conclusory terms and statements based on the unclear named tests that place controversial or nonspecific categorical terms in a high profile, using a false premise giving rise to a faulty conclusion.

B. Pro-defense evaluation biases:

(a). Routine discounting of the findings and opinions of even the most conscientious treating physicians.

(b). The findings of no basis to otherwise well-defined permanent impairment ratings.

(c). Routine recommendations against treatment, contrary to the opinions of the primary treating physician and/or a consultant.

(d). The examination does not lead to the same findings described by the treating physician, consultants, or other impartial observers.

(e). Unsubstantiated generalisations and psychiatric judgments about a claimant and his or her motivation for involvement in the case.

(f). Claimants perceive the examiner as cold, harsh, unpleasant, hostile, or biased' manner in questioning.

(g). A brief or cursory examination is often reported.

(h). Routine over-generalization of the conclusions of other doctors by further minimizing subtle positive or borderline findings.

(i). Discounting objective findings that cannot be ignored.

(j). Commenting skeptically or negatively on the competence and opinions of the treating physician.

(k). Dodging specific issues or being vague about certain critical findings or treatment recommendations while surrounding these discussions with negative comments (adapted from Grudem).

b. Norms of recovery. - Recognize that recovery from psychiatric conditions usually leads to maximum degree of recovery in 6 months, except for brain damage or toxic exposures which can take 2 years or more. Stabilization with static status of condition usually can be attained within three months.

c. Payment of Temporary Total Disability (TTD) for psychiatric cases. Psychiatric impairment alone usually does not warrant payment of TTD. Exceptions would be for significant brain damage, psychosis, or severe depression requiring hospitalization. The latter two frequently recover sufficiently to talce them out of the TTD category within months.

5.3. Identifying data - Provide identifying data as outlined in the attached guideline.

5.3.1. Consent - Explain to the claimant the nature and purpose of the examination.

5.4.1. Chief complaint - Ascertain the claimant's primary complaint.

5.5. History of the present illness - Chronological background and development of the symptoms or behavioral changes culminating in the present state.

5.5.1. Using the attached guideline, provide a detailed chronological accounting of the " circumstances surrounding the injury and the development of the 'symptoms or behavioral changes culminating in the present state.

5.6. Personal history.

5.6.1. Obtain a detailed personal history from the claimant using the attached guideline.

5.7. Review of systems.

5.7.1. Provide a review of the claimant's general organ and neurological systems.

5.8. Past medical history.

5.8.1. Utilizing the attached guideline provide a complete accounting of the claimant's past medical history.

5.9. Developmental history and history of family of origin.

5.9.1. Provide a complete accounting of the claimant's developmental history utilising the attached guideline.

5.10. Social history.

5.10.1. Using the attached guideline provide a complete accounting of the claimant's social history.

5.11. Occupational history.

5.11.1. Provide a complete record of the claimant's occupational history using the attached guideline.

5.12. Mental status.

5.12.1. Utilizing the attached guideline provide a sum total of the examiner's observations and impressions derived from the complete examination process and specific cognitive tests.

5.13. Other tests given or ordered by examiner.

5.13.1. Provide an accounting of all other tests given or ordered by the examiner. A limited physical examination and interviews with family members, co-workers, and supervisors is often helpful.

5.13.2. Psychological testing (may include separate report) must be a part of every initial workup of a claimant to provide a comprehensive view of his mental, intellectual, emotional and personality functioning. Obtain neuropsychological testing in cases of head traumas, brain injury from toxins, chemicals, and COPD.

5.14. Review of medical and other records.

5.14.1. Summarize pertinent data to be used in conclusions; note overview of issues, contradictions between records, questions raised by the records and assess credibility of various data. Review for evidence of either frank psychiatric symptoms or evidence of mental symptoms, problems, "overlay", or problems noted by examining or treating physicians. Look for evidence of discrepancy between the claimant's level of pain complaints and dysfunction and the objective medical findings. Such discrepancies can alert the psychiatric examiner to consider either abnormal illness behavior, psychiatric condition or malingering as operative to explain the symptoms.

5.15. Diagnosis.

5.15.1. Diagnose axis I through V according to the latest diagnostic and statistical manual of mental disorders published by the American Psychiatric Association.

5.16. Assessment, conclusions, opinions, and report preparation.

5.16.1. The psychiatric examination report to the West Virginia Division of Workers' Compensation should be thorough, complete, yet succinct, clearly written and logical in exposition. The basis of opinions must be explicit and the report must contain the evidence on which the conclusions and opinions were based. All reasoning processes should be outlined to explain exactly how the particular conclusions were reached. Opinions must be couched in terms of "reasonable medical certainty" or "reasonable medical probability". Avoid terms such as "possibility", or other speculative or conjectural terms. Separate observations and historical facts from opinion by the psychiatrist. Conclusions and opinions are needed. A report of" opinion only, however, ("This claimant has Major Depression that was caused by his low back injury and it makes him permanently and totally disabled") is of no value to the reviewing medical claim disability specialists, attorneys and judges. Explain how the various parameters in the West Virginia Workers' Compensation Guidelines for Psychiatric Impairment are affected by the psychiatric disorder. Answer all questions posed by the referral source. Provide opinions on the genuineness, cause, severity, duration and extent of the psychiatric condition and impairment.

5.17. Recommendations.

5.17.1. Provide recommendation for further examinations, consultations, re-examinations, psychiatric treatment and rehabilitation recommendations.

5.18. Comments.

5.19. Signature block with degree.

Notes

W. Va. Code R. § 85-22-5