Chapter 3 Compensability PDF

Chapter 3 Compensability Key concepts: x How to Take a Complete Occupational History x How to Define: R An Injury R First Aid x Aggravation x Recurrence x Arising Out of Employment (AOE) x Occurring in the Course of Employ...

Chapter 3 Compensability Key concepts: x How to Take a Complete Occupational History x How to Define: R An Injury R First Aid x Aggravation x Recurrence x Arising Out of Employment (AOE) x Occurring in the Course of Employment (COE) x Causation x Presumptions x Psychiatric Injuries Workers’ compensation is a medically driven system designed to provide injured workers with medical treatment, an income maintenance allowance, and other indemnity benefits (benefits that compensate, in part, for injury, loss, or damage). The term “medically driven” means that medical information is used to guide key decision points in the system, including entry into the system. Physicians may be asked to evaluate an injured worker’s condition. Labor Code §3209.3 defines physicians as including physicians and surgeons holding an MD or DO degree, psychologists, op- tometrists, dentists, podiatrists, and chiropractic practitioners licensed by California state law and within the scope of their practice as defined by California law. The physician’s opinion provides much of the basis for a claims administrator to start or deny benefits. Many claims can pro- ceed to a rapid and fair resolution, with no dispute, if the physician prepares detailed, accurate, and unbiased reports. In contested cases, physicians are asked to provide expert opinion on particular medical issues for a party to the case. Physicians provide evidence that the workers’ compensation judge may use to make a decision. The physician’s opinion is almost always in the form of a written report. It is critical for physician reports to be complete, accurate, and carefully written, with con- clusions that are consistent with the rest of the report. An especially important part of the report is the occupational history (see below). How to Take a Complete Occupational History In the workers’ compensation system, words have very specific meanings. The way in which a phy- sician uses certain words or concepts can open or close doors to the various benefits an injured worker may need. Because of this, it is very important for physicians to use workers’ compensation “language” to convey the intended meaning. This section explains basic concepts that physicians need to know in order to function effectively and responsibly in this system. The importance of taking a complete occupational history, especially in the case of cumula- tive injuries and occupational illness, cannot be overstated. A complete occupational health his- tory should contain information on all the jobs the worker has held, including the length of the worker’s employment, the specific job duties, how much time was spent on different tasks, any hazards (e.g., dusts or solvents) to which the worker was exposed, and what kind of protective 8  Chapter 3 equipment was used. An example of an occupational history is available at www.epa.gov/pesticide-worker-safety/pesticide-poisoning-handbook-section-vi-appendices/. What Is an “Injury”? For the purposes of the workers’ compensation system, the Labor Code defines an injury as: x Any injury or disease arising out of employment (Labor Code § 3208) x Any “derivative” injury caused by the treatment of an injury arising out of employment x Any reaction to or side effect from preventive health care the employer provides to health- care workers (Labor Code § 3208.05). Injuries may be specific or cumulative. A specific injury occurs as the result of a single incident or exposure. A cumulative injury results from repetitive trauma (mental or physical) over a period of time (Labor Code § 3208.1). For example, a worker who falls and injures his/her back has suffered a specific injury. A worker has a cumulative injury if, for example, he/she lifts objects regularly and, as a result, has developed lower back pain that gets progressively worse, whether the person con- tinues to work for that employer or moves on to another job. In order for a condition to be considered an injury, it must either cause disability (described be- low) or result in a need for medical treatment. A condition that causes no lost work time or does not interfere with an employee’s ability to work is not considered an injury by the workers’ compensa- tion system. First aid is defined as any one-time treatment and any follow-up visit for the purpose of ob- servation of minor scratches, cuts, burns, splinters, and so forth, which do not ordinarily require medical care (Labor Code § 5401(a)). First-aid treatment may be provided by a physician or regis- tered professional. For example, a worker drops a heavy box on his toe. The company’s occupation- al nurse puts ice on the toe and sends the worker home an hour early. The worker returns to work the next morning, with no further problems. An employer is not required to provide a worker with a claim form or submit an Employer’s First Report (Chapter 4) when first-aid treatment is provided. However, a physician rendering first-aid treatment must submit a Doctor’s First Report (Chapter 7) to the employer’s claims administrator. An occupational disease, as the term is used in California, is a disease that in whole or in part was caused by work. Occupational diseases can include diseases that, under other circumstances, may have occurred without a relationship to work. For example, a health-care worker who con- tracts tuberculosis from a patient has sustained an occupational disease injury, even though the disease would not have been occupational if he had contracted the disease in a non-occupational setting. Occupational diseases can arise from exposure to chemical agents, such as mercury or organic solvents; physical agents, such as noise, cold, radiation, or vibration; biological agents; or repetitive motions, such as kneeling, lifting, or typing. Treatment rendered for pesticide poisoning or a condi- tion suspected as pesticide poisoning can never be considered first aid (Labor Code § 6409.3). Excluded Injuries The Labor Code (LC § 3600) specifically excludes from compensation seven types of injuries: 9  Chapter 3 x Injuries caused by the employee’s use of alcohol or illegal controlled substances (if it can be shown that the injury would not have occurred otherwise, which is often difficult to sub- stantiate) x Intentionally self-inflicted injuries x Suicide x Injuries resulting from altercations, in which the injured employee is the “initial physical ag- gressor” x Injuries resulting from the employee’s commission of a felony, for which the employee has been convicted (this includes “wobbly felonies,” which are crimes that may be prosecuted as misdemeanors or felonies) x Injuries resulting from off-duty recreational activities, in which participation in the activi- ties does not constitute part of the employee’s work-related duties and the activity is not an expressed or implicit condition of employment x Psychiatric injuries claimed after notice of termination/layoff unless certain conditions ex- ist. What Is a Compensable Injury? An employer must provide compensation, without regard to negligence, for “any injury sustained by his or her employees arising out of and in the course of the employment.” Four basic condi- tions must be met for a workers’ compensation claim to be established: x There must be an “injury” (physiological or psychological harm). x There must be an employment relationship. x The injury must have been caused by the employment. (This is also referred to as arising out of employment [AOE]. See below for an expanded definition of this concept.) x The injury must occur in the course of the employment (COE), that is, at the time of the inju- ry, the employee must have been performing a service that grew out of and was incidental to the employment. (See below for an expanded definition of this concept.) Physicians enter crucial details into the system by defining the injury and then establishing whether and how the injury is related to the employment. Physicians do not usually provide information re- garding the employment relationship or whether the injury occurred COE. What Is Considered an Aggravation of a Pre-Existing Non-Industrial Condition? Under California law, a worker who suffers an on-the-job aggravation of a non-industrial pre- existing disease or underlying condition has sustained a new injury. For example, if a worker has arthritic deterioration in her knee and then falls on her knee and is unable to continue to work, the fall constitutes an injury. An aggravation causes a temporary or permanent increase in disability, creates a new need for medical treatment, or requires a change in the existing course of treatment. Symptoms that are from a “flare-up” or “recurrence” of a previous industrial injury or illness, but have not been caused by the current employment, do not constitute a new injury. In other words, responsibility for compensation would lie with the employer where the worker was em- ployed when the original injury was sustained. 10  Chapter 3 What Is the “Date of Injury” and Why Is It Important? In every workers’ compensation claim, it is necessary to establish the date of injury (DOI). In a specific injury, the DOI is simply the date on which the incident or exposure occurred (Labor Code § 5411). In a cumulative injury or occupational illness, the DOI (for statute of limitation purposes) is the date when the employee first suffered disability from the exposure, and either knew, or should have known, that the disability was caused by present or previous employment (Labor Code § 5412). An employee may have had symptoms resulting from the cumulative injury or the disease for a period of time, even years, before the DOI. The DOI is important because it determines: x The statute of limitations for particular procedures within the workers’ compensation sys- tem x The regulations that will apply to the worker’s injury x The compensation rate for the worker’s injury x The employers who are liable for the claim. Important time limits controlled by the DOI include how long a worker has: x To file a workers’ compensation claim x To file a claim with the appeals board. The DOI is used to identify the claim; employers must record the DOI on the log of injuries and ill- nesses. Is the Injury Work-Related (AOE/COE)? An injured worker has the burden of proof to show by a preponderance of the evidence that an in- jury is work related. Work activities need not be the sole cause of the injury or even the primary cause. Except in psychiatric cases, it is sufficient that the employment contributed to the injury to a significant degree. (Psychiatric injuries are covered further later in this chapter.) The question of whether an injury is work related is divided into two parts (Labor Code § 3600): x Did the injury “arise out of employment” (AOE)? x Did the injury “occur in the course of employment” (COE)? Arising Out of Employment (AOE) Because the physician provides direct evidence on whether and how the activities of work led to the current injury, the physician answers the question of whether the injury arose out of employ- ment (AOE). In a specific injury, establishing AOE may involve giving a description of an incident and the resulting harm to the patient. It is very important to obtain and document detailed infor- mation about how the injury occurred. These details can help clarify whether the injury is work re- lated. In cumulative injuries and occupational illnesses, the physician’s medical opinion regarding the rela- tionship between workplace risk factors and activities and the resulting disease or disability is critical. There are some well-documented relationships between specific cumulative exposures and diseases, such as asbestos and asbestosis or mesothelioma, coal dust and coal worker’s pneumoconiosis (black 11  Chapter 3 Box 3-1. Case Example: Possibility or Probability? In Rosas v. WCAB (1990) 16 Cal App 4th 1692; 58 CCC 313, a wastewater treatment worker was exposed to raw sewage for many years in the course of his employment maintaining sewage sys- tem flow regulators. He later contracted hepatitis, which was held to be non-industrial in nature by the WCAB. The medical evidence conflicted, in that some evidence indicated that it was likely that such occupational exposure was the cause while other evidence indicated that the cause and method of transmission were uncertain. The court reversed the WCAB decision and held that proof of absolute certainty or absolute scientific verification was not required to prove the work- er’s claim. All that is required is proof of a reasonable medical probability. This case illustrates the critical nature of taking a complete history and understanding all rele- vant factors involved in the work environment. A physician’s failure to take an adequate occupa- tional history can lead to disputes like this one. lung disease), vinyl chloride and angiosarcoma of the liver, and organophosphate pesticides and certain neurological impairments. Similarly, the medical literature documents links between repetitive motions, such as those performed on assembly lines or at video display terminals and certain musculoskeletal conditions. There are also a few well-documented biological markers of disease or exposure, such as x- ray evidence of pleural plaques and interstitial fibrosis in asbestos exposure, measurements of lead in the blood or bones following exposure to lead, or plasma and red cell cholinesterase from organophos- phate pesticide exposure. However, there are many exposures, pathologies, and diseases that have not been as fully inves- tigated or for which the causal mechanism is not known. The lack of conclusive epidemiological or toxicological studies should not, in itself, invalidate a worker’s claim. In giving evidence on these claims, you are being asked whether the combination of existing medical and scientific knowledge and the occupational and medical history of the individual worker leads you to conclude with “rea- sonable medical probability” (i.e., that it is more likely than not) that the work exposure contrib- uted to the injury. Analyzing Causation The determination of medical causation is essential in workers’ compensation evaluations for the continuation of benefits and for the prevention of occupational disease and injury. The treating or evaluating physician is often asked to express an opinion about medical causation, that is, whether the occupational illness or injury arose out of employment (AOE). In other words, the physician is asked to indicate whether it is “more likely than not” (in other words, there is at least a 51% likeli- hood) that the work exposure or incident played a significant role in producing the pathological condition or disability that the physician described. Three factors need to be established in order to make a causation determination: 1. What pathological condition(s) (and disability) are present? 2. What relevant work exposures were present? 3. What other causes might produce the disease (i.e., non-industrial exposures)? Only after all three have been considered can causation be adequately addressed. Therefore, a re- port should include documentation of the specific nature of the workplace hazard (e.g., whether the individual was exposed to chemicals, ergonomic hazards, or mental stress and the duration and in- 12  Chapter 3 Box 3-2. Types of Causation There are five major types of causation: Direct Causation: The work exposures are directly responsible for the health outcomes. Contributing Cause: Several factors led to the disease; work exposure is one of these factors. Acceleration: The disease process is accelerated by virtue of work exposure. The date of the onset of the disease is much sooner than it would have been in the absence of the exposure. Precipitation: The work exposure “precipitates” the manifestation of the illness. For example, an underlying tendency or asymptomatic problem was present, but the work exposure causes it to clinically manifest. Aggravation: A medical condition may be present already, but work exposure makes it worse. tensity of exposure to the hazard. In addition, if the disease was caused by work, the physician should explain whether the disease produced sufficient impairment (loss of function) to lead to dis- ability. Causation is a simple question in specific injuries. A woman with no previous medical history falls from a ladder, breaks her shoulder, and, after completing the course of medical treatment, still has moderate pain and a reduced range of motion in her shoulder. The cause of the disability is the injury to her bone and soft tissues as a result of the fall. However, if a woman with a prior history of shoulder pain has the same accident and undergoes the same treatment with the same results, there also may be a dispute as to whether her previous shoulder pain constituted a significant or ratable disability or degree of any permanent disability. A case like this would require the physician to inquire further into the patient’s history to determine the factors of disability that existed prior to the recent industrial incident. Prior pathology alone is not sufficient; the physician must docu- ment both prior impairment and the resulting pre-existing factors of disability. If prior pathology did not cause actual prior disability, the physician should so state. Causation: Cumulative Injuries and Illnesses In determining the causation in occupational illnesses or cumulative injuries, the same reasoning applies. The physician must first determine the cause of the injury. For example, a worker with a history of asbestos exposure develops restrictive lung disease, including reduced vital capacity and shortness of breath. X-rays reveal pleural plaques and fibrosis, particularly in the lower region of the lung. The impairment is reduced lung function, which was caused by asbestos exposure. Similar reasoning applies in the case of an asbestos-exposed worker who was evaluated for lung cancer. Asbestos exposure is a known risk factor for lung cancer, and the X-ray examination provid- ed evidence of significant asbestos exposure. Even though the worker had other risk factors for lung cancer, such as smoking, the physician concluded that the asbestos exposure significantly in- creased the worker’s chance of developing cancer. In this case, the lung cancer resulted in the re- moval of part of a lung and a work restriction to semi-sedentary work; the asbestos exposure was again considered to have caused the injury (cancer), and the injury was considered to have caused the disability. 13  Chapter 3 Box 3-3. Case Example: Taking Employees as You Find Them During her normal workday, a school crossing guard suffers a heart attack and dies a week later. Medical records indicate that she had undiagnosed, non-industrial coronary artery disease at the time of her death. Her duties involved walking to the center of the street and holding a “stop” sign as children crossed. She did this 10-15 times in 25- minute shifts. The reporting physicians concluded that, given her condition, even minimal activity could have caused the heart attack. The judge found industrial causation, which was upheld by the WCAB. City of Arroyo Grande v. WCAB (64 CCC 1147). What Is the Effect of Other Risk Factors on the Cause of the Injury? Most employees are not perfectly healthy before incurring an occupational injury and do not lead perfectly healthy lifestyles. A basic principle of workers’ compensation law is that the employer “takes employees as they find them.” The employer cannot avoid liability for an occupational injury by claiming that the injury would not have happened if the worker had been in a different physical or emotional condition before the accident. Workers who smoke, drink, or do not get physical exer- cise are still entitled to workers’ compensation benefits for their occupational injuries. For example, consider a worker with diabetes who cuts his foot at work and develops a se- vere infection. The evaluating physician might determine that the diabetes increased the work- er’s chance of infection and may even believe that a worker without diabetes would not have developed an infection. However, the infection would not have developed at this time without the cut. Therefore, the infection and any complications of the infection are compensable under workers’ compensation. Establishing the Cause of Cumulative Injuries and Illnesses When considering cumulative injuries and occupational illnesses, the relationship of the work activ- ity to the disability may not be as obvious as in specific injuries. There is simple cause and effect between a cement block falling on a worker’s foot, the crushing injury, and a resulting permanent work restriction to semi-sedentary work. But the relationship between work and illness is not as clear-cut in a painter who, after working in the trade for 25 years, complains of memory loss, lack of concentration, and mood swings. All these symptoms might result from long-term exposure to sol- vents in paints, but they may also be due to other non–work-related factors. There are evaluation guidelines for some occupational diseases, such as asbestos-related lung disease, or coal worker’s pneumoconiosis. But, for other occupational diseases, the physician needs to assess causation by weighing various factors, such as the following: x The kind of exposure involved (names or types of chemicals, activities involving repetitive motion, etc.) x The level, frequency, and duration of exposure 14  Chapter 3 Box 3-4. Case Example: The Physician Does Not Decide COE A patient requests an evaluation of flexor tenosynovitis of the hands and wrist with associated carpal tunnel syndrome. The patient states that she uses her hands “furiously” at work doing manual tasks. The employer states that the patient hardly uses her hands at all on the job, but that the patient is an avid knitter at home. A job description provided by the employer describes almost no use of the hands in the workplace. The patient rebuts, stating that the job description is inaccurate. The doctor then takes the history and tries to determine how much hand overuse (if any) occurred on the job and how much occurred off the job. Ultimately, however, the judge decides whether the injury occurred in the course of employment (COE). The doctor states that using one’s hands doing electronics components assembly for five hours a day at work (as the patient asserts) can cause flexor tenosynovitis and carpal tunnel syndrome and that knitting every evening for three hours (as the employer asserts) can also cause flexor tenosynovitis and carpal tunnel syndrome. The doctor should also describe how a combi- nation of the two activities could contribute to the illness. The judge will decide which of the two histo- ries is correct. If the judge determines that both activities occurred and that, based on the doctor’s report, work activities contributed, then the injury is compensable. x The presenting signs or symptoms that are consistent or inconsistent with the occupational exposure and the disease x The medical literature, including epidemiological or toxicological studies and case reports that indicate that the disease in question is associated with the worker’s exposure or occu- pation. Much of this information can be obtained by taking a thorough occupational history and discussing the actual work processes with the injured worker. Because of the long latencies involved in many occupational diseases, there may be no records on the period in which the injured worker was ex- posed. However, the treating and evaluating physicians should attempt to obtain all available rec- ords and include them in the case documentation. Occurring in the Course of Employment (COE) The question of whether an injury occurred in the course of employment is not a medical question because it involves the circumstances of the accident or exposure. If COE is in dispute, a workers’ compensation judge will decide the issue based on evidence offered by the employee, the employer, or other witnesses and on legal precedents. A physician’s only input is information that helps to es- tablish the facts of the exposure. For example, if the employer contends that the worker has changed the description of the way in which an accident happened, the physician may be asked to provide the description the worker provided on the first visit. For treating physicians, it is important to fill out the “history” section in the Doctor’s First Report with as much detail as possible (see Chapter 11 for more information). The physician may be asked whether the injuries observed were consistent with one (or both) of the conflicting histories of the incident. The Workers’ Compensation Appeals Board (WCAB) and the California appellate courts have es- tablished that activities that are not part of the worker’s job description but are “incidental” to the employment are included in the “course of employment.” For example, employees who travel on 15  Chapter 3 Box 3-5. Proximate Cause In Albertson’s Inc. v. WCAB (Bradley), 131 Cal. App. 3d 309, 47 CCC 460 (1982), the court stated that subjective stress by itself was not sufficient to implicate the employment where, in fact, the employment in no way contributed to the stress that the employee was feeling. Even though the court found in favor of the employee, it ruled that there had to be something more than imag- ined stress. The court held under the proximate cause requirement of Labor Code § 3600(a)(6) that “The employment itself must be a positive factor influencing the course of disease.”  behalf of their employer are generally covered by workers’ compensation for the entire travel peri- od, unless there is “substantial deviation” from the agreed-upon route. Injuries sustained in em- ployer-owned parking lots, in the restroom, or while the employee is on the premises for a rest break or lunch period are usually compensable under workers’ compensation. In a contested case, a workers’ compensation judge will consider evidence on AOE and COE in the determination of compensability. It is possible for the physician to offer good evidence regarding the relationship between an exposure and the injury and for the judge to find that the injury did not occur in the course of employment. For example, consider an employee in a radiator repair shop who develops a primary motor neuropathy. The physician finds elevated blood lead levels con- sistent with the neuropathy and consistent with the use of lead solder in the patient’s workplace. The employer contests the claim and submits evidence that the employee did not work in the shop area, that there was no lead contamination in the employee’s work area, and that the employee had significant lead exposure at home, where he poured his own lead bullets at least six times per month. The judge might find that although the neuropathy appeared to be related to lead exposure, the lead exposure did not occur at work. Presumptions about Work-Related Injuries for Certain Groups of Employees The law defines specific conditions (e.g. hernias, pneumonia, tuberculosis, heart disease, and can- cer) as work related when they affect certain employees, including firefighters, forestry officers, peace officers, and correctional employees. In these workers, the specified medical conditions are presumed to “arise out of and in the course of the employment.” These presumptions generally cover conditions that mani- fest or develop during the period of active service and following termination of service for up to five years (Labor Code §§ 3212–3213.2). The laws include a rebuttable presumption (an assumption that can be contradicted by providing evidence to the contrary) that those conditions are employment related. The effect of this presumption is to shift the burden of proof to the employer, who must then show that the condition is not caused by work. If the employer does not meet that burden, 2 A WCAB panel decision distinguished the facts in Albertson’s from cases in which the worker has an “after- the-fact realization” of his or her injury. The panel concluded that an applicant’s misperception of the cause of his physical injury is not the test of whether the physical injury was industrially caused or aggravated and should not be the test of whether a psychological consequence of that injury is compensable. The applicant must demonstrate that there was actually something in the work place that caused or contributed to the physical condition that caused the psychiatric disability (Brannen v. SCIF (1995) 23 CWCR 138). 16  Chapter 3 Box 3-6. Case Example: Derivative Psychiatric Injuries The threshold for causation is different when the psychiatric injury derives from an underlying physical injury (psychiatric overlay). Rebelo injured her back in 1996 while working at Washington Hospital. The claim was accepted, and Rebelo was in a vocational rehabilitation plan in 1997, when she was hospitalized because of suicidal ideation. The employer denied having liability for the psychiatric injury. Rebelo argued that the psychiatric injury was a “compensable injury.” The judge found that actual events of employment were not a predominant cause of the psychiatric injury. The WCAB reversed the judge, stating in its decision that Labor Code § 3208.3(d) allows a psychiatric overlay to be a compensable consequence of an orthopedic injury, provided there is substantial evidence on the issue. Rebelo v. Washington Hospital (1999) 27 CWCR 159. workers’ compensation benefits must be awarded. The presumptions apply only to the specific statutory disability, however, and cannot be used for other disabilities. 3 Compensation for Psychiatric Injuries Labor Code §3208.3 defines the threshold for causation for psychiatric injuries. A psychiatric injury is compensable if it is a diagnosed mental disorder that causes disability or need for medical treat- ment, and the employee can demonstrate that the events of employment were the “predominant cause” of the injury. The law limits workers’ compensation psychiatric claims by establishing this “higher threshold of compensability” for such claims, and by limiting the types of claims that can be submitted. 4 These limits are summarized below. x An injured worker must prove that the “actual events of employment” were the “predomi- nant cause” (presumed to be more than 50%) among all the combined causes of the psychi- atric injury. If the psychiatric injury is derivative of an underlying physical injury, there is no requirement for predominant cause or the psychiatric component (see Box 3-5). x For psychiatric injuries that result from a violent act or from direct exposure to (i.e., obser- vation of) a significant violent act, the actual events of employment must have been a “sub- stantial cause” of the injury in that they contributed at least 35% of the causation from all sources combined. x A psychiatric injury is not compensable unless the employee was employed by the employer for at least six months, which need not have been continuous. This requirement does not apply if the injury was caused by a sudden and extraordinary employment condition. x Claims for psychiatric injuries that are substantially (at least 35%) caused by “lawful, non- discriminatory, good faith personnel actions” are prohibited. This prohibition is meant to eliminate claims that were filed by workers who suffered stress resulting from personnel actions, such as being passed over for promotion or being transferred to another depart- ment. x Claims filed after notification of termination or layoff (see below) are prohibited. 3 In Gurich v. WCAB (1996) 61 CCC 1205, a deputy sheriff was prohibited from using the presumption for his heart condition under Labor Code § 3212 and applying it to his claim for psychiatric disability. 4 Hansen v. WCAB (1993) 18 Cal App 4th 1179. “It is the intent of the Legislature in enacting this section to establish a new and higher threshold of compensability for psychiatric injury under this division.” 17  Chapter 3 Perception Is Not Disability The test to be applied in cases of alleged employment stress has been held to be subjective. The proper focus of injury, then, is not on how much stress should be felt by an employee in the work environment, based on a normal reaction to it, but how much stress is felt by an individu- al worker reacting uniquely to the work environment. The stress, however, must still have proximately caused the injury. Proximate cause in workers’ compensation is the causal connec- tion between the injury and the employment. The employment need not be the sole cause of the injury but merely a contributing cause. 5 How to Determine Causation for Psychiatric Injuries Because workers’ compensation psychiatric claims are subject to more restrictions, and because psychiatric claims require the collection of many additional facts, the physician must take a much more detailed history when doing this kind of evaluation. The examiner needs to address issues such as the employee’s developmental history, personal problems, job satisfaction, performance reviews, and reasons for leaving other positions. A psychiat- ric history should include the employee’s level of functioning in home, academic, and so- cial settings. Determining whether there is workplace causation for psychiatric injuries is basically subjective; the examiner will have to rely on depositions, co-workers’ state- ments, personnel records, psychometric test data, academic and military records, and in- terviews with family members. Because the examiner must review this additional data and determine the employee’s potential exaggeration or minimization of symptoms, moti- vation for retraining, and sources of secondary gain, the psychiatric examination will take longer than a simple medical examination. What Happens If a Claim Is Filed after Notice of Termination or Layoff? Under Labor Code § 3208.3(e), psychiatric injuries and claims filed after notice of termination or layoff/termination are not compensable unless the actual events of employment were the predom- inant cause and any of the following conditions are met: x The injury was the result of sudden and extraordinary events of employment. x The employer had notice of the injury before the notice of termination or layoff. x Medical records existing before the notice of termination or layoff contain evidence of treatment of the psychiatric injury. x A contractual, administrative, regulatory, or judicial trier of fact (judge, referee, or other individual who hears and makes decisions on a case) has found that there was sexual or racial harassment. x There is evidence that the DOI is subsequent to the date of notice of termination, but before the effective date of the termination. This provision allows post-termination claims for cu- mulative injuries or occupational illnesses that do not manifest themselves until after the employee has left the job. The DOI in these cases is the date when the employee first suf- fered disability from the exposure and either knew, or, in the exercise of reasonable dili- gence, should have known that the disability was caused by present or prior employment. 5 Maher v. WCAB (1983) 48 CCC 326. 18  Chapter 3 If termination or layoff does not occur within 60 days of the notice, then the prohibition against post-termination claims does not apply. Frequent notices of termination or layoff are considered a “bad-faith” personnel action and are exempted from this prohibition. Teachers and other certifi- cated employees are not considered to have been provided with notice of termination until the school district has made a final decision not to re-employ them. 19