Updated November 28, 2017:
A common question presented to workers' compensation attorneys involves how to handle psychiatric workers' compensation claims. A 2012 opinion of the West Virginia Supreme Court of Appeals illustrates one approach to deciding this difficult question.
Psychiatric Workers' Compensation Claims: One Approach
In 2012, the West Virginia Supreme Court of Appeals decided Hale v. W. Va. OIC et al., 724 S.E.2d 752. In Hale, the claimant had a compensable claim for a back injury. Later, the claimant was 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.
West Virginia Code of State Rules § 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. As a result, 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 could only be determined after this initial consultation with a psychiatrist, that the treating physician must make the referral for the initial psychiatric consultation, and that pre-authorization was not required. To the extent that Rule 85-20-12.5 stated otherwise, the Court invalidated it.
Physicians Must Follow the Correct Legal Procedures for a Psychiatric Worker's Compensation Claim.
As a practical matter, some treating physicians are familiar with the above process, but most do not seem to be. In WV, 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 the Court's decision in Hale.
As a workers' compensation carrier or a WV employer, if a treating physician sends a Diagnosis Update to add a psychiatric condition, the best practice is often to deny the request with instructions for the doctor to schedule a psychiatric consultation with a psychiatrist of his or her choice.
An interesting issue that 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. Many would argue that using an out-of-network psychiatrist should lead to denial the request. If this course of action is chosen, our typical recommendation is that a list of all approved psychiatrists from which the treating physician may choose should be provided at that time.
Likewise, if a carrier or employer receives a request to refer a claimant for a psychiatric evaluation or consultation to determine compensability and the doctor does not specify which psychiatrist is requested, the best practice is often to deny the request, 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 a physician continues to insist that on pre-authorization, the best response is often to inform them that Hale does not permit preauthorization.
Still Not Sure How to Handle Psychiatric Claims by Workers in Your Situation?
Unique factual scenarios may arise in any given case and the nature of the law in this area is ever-changing. As a result, when an employer or insurance carrier has questions about how to assess psychiatric compensability, treatment, or even permanent partial disability, contact the experienced employment attorneys at Jenkins Fenstermaker. You may reach us at (304) 523-2100 locally or toll-free at (866) 617-4736.