The Reviewing Board of the Department of Industrial Accidents recently issued a significant decision that recognizes that an employee who suffers a psychiatric injury that arises out of and in the course of his or her employment may be entitled to permanent loss of function under the Section 36 of the Massachusetts Workers' Compensation Act.
Cases involving psychiatric injuries arise in a number of different contexts. Employees subjected to significant work-related stress often fall victim to emotional injuries that are truly disabling. For reasons that few, if any, are able to articulate, insurers are adamantly resistant to the payment of benefits associated with psychiatric injury. Much of the skepticism associated with this type of injury reflects society's lack of appreciation of the impact of workplace stress upon an individual, and the seemingly subjective nature of such conditions.
Psychiatric response to physical injury is another example of a compensable condition for which workers' compensation benefits may be payable. Understandably, people who are victims of catastrophic injury often experience great difficulty in accepting the limitations of the impairments caused by those injuries, and the effects of the physical injuries upon their lives in total. It is more understandable how a healthy, vibrant, and ambitious person would fall prey to an emotional injury after receiving a significant physical injury that deprives him or her of the ability to pursue his or her livelihood. Once again, however, society's refusal to appreciate the effects of psychiatric disability often results in resistance by insurers to these claims.
The decision by the Department of Industrial Accidents reflects acknowledgment that the Workers' Compensation Act not only recognizes the compensability of psychiatric injury, but also has elevated it to a stature that is on equal footing with physical injury. This is not to say that the department has lowered its standards for the award of benefits associated with psychiatric and psychiatric injury, but rather has ratified the notion that psychiatric injury can have truly devastating, permanent consequences.
The standard associated with proof of the compensability of a work-related psychiatric injury was not altered by this recent decision. Individuals who make a claim for benefits under the Workers' Compensation Act as result of psychiatric injury continue to be held to a higher standard than one who makes a claim for a physical injury.
Claims for disability payments and/or medical treatment for psychiatric injury are compensable only if "the predominant contributing cause of such disability is an event or series of events occurring within any employment." This heightened standard reflects the skepticism associated with proof that oftentimes is felt to be subjective in nature and can be contrasted with disability resulting from an aggravation of a pre-existing physical condition which is compensable, provided the aggravation is a major, but not necessarily the predominant, cause of disability. This lower standard for physical injury reflects society's continued reluctance to place physical injury on the same level as a psychiatric injury. This decision of the Reviewing Board is a major step forward in the recognition that there can be permanent, long-term effects associated with a psychiatric injury.
The Reviewing Board decision did not alter claims for psychiatric care and/or disability where a physical injury has also occurred. It is common for victims of serious work-related injuries to suffer emotional consequences as they deal with depression caused by an injury's chronic pain or the frustration of the long, difficult road to recovery that ends with permanent impairment. The treatment required to address these issues is unaffected by the decision. However, if there is permanent psychiatric loss of function, a claim for that loss of function is now undeniably possible.
In order to pursue such a loss of function claim under G.L. c. 152, §36 (1) (j), the injured employee must follow the guidelines that are discussed in Shoshana Yeshaiau v. Mt. Auburn Hospital, DIA No. 016890-05. In essence, the injured worker must provide a medical report that contains an opinion "in accordance with standards set forth in the American Medical Association Guides to the Evaluation of Permanent Impairment" (See 6th edition of the AMA Guides, which contains a chapter entitled "Mental and Behavioral Disorders").
G.L. c. 152, §36 (1) (j) limits the benefits for a permanent psychiatric loss of function to no more than thirty-two weeks of the average weekly wage in the Commonwealth on the date of injury. Currently, the maximum award is $37,537.92, applicable only if one suffers a 100% permanent psychiatric loss of function.