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Workers' Compensation Compensability of a Psychiatric Condition

In 2012, the West Virginia Supreme Court of Appeals decided Hale v. W.Va. OIC, et al., 724 S.E.2d 752. In Hale, claimant had a compensable claim for a back injury. Claimant was later diagnosed with Major Depressive Disorder and other psychiatric illnesses. The treating physician submitted a Diagnosis Update seeking to add depression as a Workers' Compensation compensable condition, and the claim administrator denied the request on several grounds, most pertinent of which was that the initial diagnosis and treatment were not pre-authorized, as required by administrative rule.

Rule 85-20-12.5 states, that the initial evaluation and subsequent treatment of a psychiatric condition must be pre-authorized by the carrier or other party responsible for the claim. However, regulation 85-20-9.10 (g) states that while psychiatric treatment requires pre-authorization, the initial psychiatric consultation does NOT require pre-authorization. So the Court found that these two rules were in conflict with one another on the issue of the initial psychiatric evaluation/consultation. The Court then looked to a third administrative rule, 85-20-12.4, which states that the treating physician "must send the injured worker for a consultation with a psychiatrist" to determine if a psychiatric problem exists, and if so, whether it is compensable, and the responsible party for the claim must issue a Workers' Compensation compensability decision based upon that report. Based upon the above rules, the Court held that psychiatric compensability can only be determined after this initial consultation with a psychiatrist, and the treating physician must make the referral for the initial psychiatric consultation, and pre-authorization is not required. To the extent that Rule 85-20-12.5 states otherwise, the Court invalidated it.

As a practical matter, some treating physicians are familiar with the above process, but most do not seem to be. Most often, the treating physician either submits his or her own Diagnosis Update to add a psychiatric condition, or simply sends a request to the claim administrator to schedule a psychiatric examination, without selecting the psychiatrist to perform the initial consultation. Both are incorrect under Hale.

If a treating physician sends you a Diagnosis Update to add a psychiatric condition, you should deny the request with instructions for the doctor to schedule a psychiatric consultation with a psychiatrist of his or her choice. An interesting issue which the Hale court did not address is whether this initial psychiatric consultation must be performed by a psychiatrist within the approved managed health care plan network, assuming one is offered. We would argue yes, and when you deny the request, we recommend that you provide a list of all approved psychiatrists from which the treating physician may choose. Likewise, if you receive a request to refer claimant for a psychiatric evaluation or consultation to determine compensability, and the doctor does not specify which psychiatrist is requested, we would recommend that you deny the request and inform the doctor that he or she must make the referral, and once again, provide the list of approved psychiatrists within the managed health care plan network. If they insist that you pre-authorize this consultation, you may inform them that not only are not required to pre-authorize this consultation, you are not permitted to do so under Hale.

There may be unique factual scenarios which could arise in any given case, so if you have any questions about how to properly assess psychiatric compensability, treatment, or even permanent partial disability, please do not hesitate to contact us.

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