An Effective Tool in Court: Refuting Psychological “Junk Science”

By Pamela Warren, PhD

Co-Head of Mental Health Treatment Guidelines Panel
American College of Occupational & Environmental Medicine

The federal and state workers’ compensation (WC) systems contain a great deal of imprecision that makes psychological claims difficult and unpredictable. Employers can eliminate some of these challenges by applying current psychological standards of care for treatment and when claims are litigated.

WC systems have many pitfalls to avoid. First, each has its unique rules, regulations, and laws pertaining to workplace injuries. This creates considerable variation in what is an allowable workplace psychological injury; not all states allow WC psychological injury claims (more on this below).

Second, WC systems don’t require accurate and current psychological diagnoses relating to a workplace psychological injury. For example, states that allow WC psychological claims frequently refer to “depression,” a nonmedical term that lacks specific diagnostic criteria. Instead, “major depressive disorder” is a recognized diagnosis with specific criteria that can be applied to a person.

Third, WC systems do not require the submission of supporting documentation that meets the current psychological and psychiatric standards of care. Thus, WC systems frequently are at odds with these professional standards.

Due to this imprecision, each WC system is ill-designed to make accurate WC psychological injury determinations. This issue becomes especially important since WC claims that are denied and have exhausted all WC appeals can transfer to the tort system, where the Daubert standard applies, supporting a focus on accurate, current psychological diagnoses.

Three types of WC claims relate to psychological conditions:

• Mental-physical: A psychological condition aggravates an individual’s physical condition, such as migraines;
• Physical-mental: A physical workplace injury results in the development of a psychological condition, and
• Mental-mental: An individual is subjected to repeated workplace situations, such as workplace stress, that are the catalysts for the development of a psychological condition.

The following states do not allow any WC mental-mental claims: Alabama, Arkansas, Connecticut, Florida, Georgia, Idaho, Kentucky, Montana, Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, South Dakota, and Wyoming.

In several states and under the Federal Employees Compensation Act (which covers many federal employees) it is possible to file psychological injury claims only when circumstances occur beyond those normally encountered by others in the same work environment or the catalyst is sudden versus gradual exposure. The states that allow these claims are: Arizona, Colorado (for firefighters only), Illinois, Iowa, Louisiana, Maine, Maryland, Mississippi, Missouri, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Virginia. Massachusetts and the District of Columbia allow mental-mental claims in very limited cases.

The only states allowing mental-mental claims are Alaska, California, and Hawaii.

The tort system is very specific about what types of information it allows to support claims of injury. Typically, tort systems require any professional documentation that is submitted to meet certain standards such as the Daubert¹ or Frye² standards. Tort proceedings in the majority of states and federal courts utilize the Daubert standard, establishing more precise psychological findings based on current standards of care. When a WC claim has exhausted all appeals within the WC system, the claim can proceed in the tort system.

The Daubert standard is used in court proceedings to evaluate whether an expert’s testimony is based on valid scientific methods and is appropriately applied to the facts of a litigated case. Further, the Daubert standard requires that:

1. any methodology used by a professional can be and has been tested;
2. the employed method has been peer-reviewed and published;
3. the method has a known error rate;
4. standards apply to how the method is appropriately employed; and
5. there is extensive acceptance by the relevant scientific community.

Thus, the Daubert standard provides a starting point to address the disparities across all WC systems. In tort procedures in the U.S. court system, the Daubert standard weeds out junk science. Based on my past 18 years of professional services (including WC work), I advocate to apply the Daubert standard in all WC systems. It is in the interest of all employers to advocate for the Daubert standard in the WC systems that have jurisdiction over their claims. Using such an approach provides a consistent framework, which bridges the differences in the state and federal WC systems. The Daubert standard is adopted in some state WC systems, including Florida’s.

While each individual claim has its own set of facts that drive litigation, it’s still valuable to provide a brief overview of some of the key issues evaluated under the Daubert framework. Applying the Daubert standard with WC claims requires careful assessment of the reported psychological injury to assess whether the submitted professional documentation has successfully demonstrated:

1. the existence of a psychological condition that has diagnostic criteria;
2. whether the reported psychological injury meets a specific WC system’s criteria for being an allowable injury; and
3. assessment of purported impairment in functioning.

This framework requires application of current psychological standards to review any medical treatment of the individual, as well as any documentation submitted by treating professionals. This fundamental approach can be applied in any WC system.

It’s important to remember that while the WC system is focused on causation — did a workplace event cause a psychological injury? — that causation is focused on a “yes” or “no” answer from the professional. Any professional who opines that a workplace definitively caused a workplace injury must address empirical research that demonstrates that there is a non-linear path for the development of psychological conditions. This is because:

• the majority of psychological conditions begin in adolescence;
• psychological conditions rarely occur immediately after a single event because there are life-long interactions between the biological, cognitive, perceptual, environmental, genetic, attitudinal, beliefs, and expectations factors for each individual; and
• most psychological conditions do not result in permanent impairment in functioning.

Although the WC system requires a “yes” or “no” answer that the workplace caused the injury, the above factors assure that a simple “yes” is not accurate in most cases.

When current professional psychological and psychiatric standards of care are applied, imprecision is removed from the WC system. Moreover, purported psychological diagnoses without diagnostic criteria, unsupported professional documentation, and junk science are disallowed. Instead, a more objective evaluation of reported psychological injuries results, and potential functionality issues are evaluated in a consistent manner. Frequently, those litigated claims are settled outside of the WC arbitration system.

It is important for all treating professionals to provide treatments that meet the current professional standards of care to improve treatment outcomes. A 2012 study³ demonstrated that when evidence-based treatment was provided to WC claimants in Colorado, treatment outcomes improved, treatment costs were substantially less than in other state WC systems, and claimants were more satisfied with the treatment — a winning situation for all parties involved.

Case Study: Applying the Daubert Framework in Litigation

The impact of the Daubert framework on litigated claims can be considerable, as described in this example. In a Texas WC claim, an employee at one Texas university transferred to another Texas university. Her work position and associated work duties were identical in both positions.

Approximately two years after the employee transferred to her new job, she began to have attendance issues. Eventually, she filed a WC claim indicating that she could no longer complete her job duties. To support the claim, she submitted treatment records from her psychologist. The psychologist indicated her diagnoses were depression and attention-deficit hyperactivity disorder (ADHD), as well as “cognitive impairment.” The submitted documentation was screening tools, plus two psychological tests, the Minnesota Multiphasic Personality Inventory (MMPI-2) and the Wechsler Adult Intelligence Scale (WAIS-IV).

The MMPI-2 is frequently used to confirm or rule out psychological conditions. The psychologist asserted that the claimant was “severely” depressed according to the results of the MMPI-2.

The WAIS-IV is utilized to assess a variety of cognitive functions, including general intelligence, verbal intelligence, performance intelligence, speed of response to test questions, and so forth.

The psychologist also administered two screening tools, the Beck Depression Inventory (BDI) and the Zung Anxiety Scale.

Based on the test results, the psychologist opined that the claimant wasn’t capable of doing her job and that she was permanently disabled.

First, “depression” is not a known condition; this is a layperson’s term. Instead, major depressive disorder is a condition that must be confirmed or ruled out with testing.

Second, ADHD is a life-long condition. The claimant worked successfully for 17 years with ADHD. However, after two years in her new position, she claimed she could no longer do the same job. This type of change is typically not observed with ADHD. While intermittent attentional issues may occur, typically these are not permanent and do not result in permanent disability. Typically, most individuals with ADHD are able to work.

Applying the Daubert framework to this claim produced several key findings.

First, screening tools can never be employed as diagnostic tools since they frequently do not have validity or reliability measures. Typically, they provide no means to assess the possibility of symptom exaggeration or malingering. Because of that, screening tools do not meet the current psychological testing standards and are inadmissible.

Second, the claimant’s psychologist reported and interpreted invalid MMPI-2 results. All standardized tests include a set of validity measures that must be used to assess whether a test’s results can be interpreted. If a test’s results do not pass the required validity assessment, the test cannot be interpreted. Because the MMPI-2 results in this case were invalid, the test could not be interpreted and could not contribute to a diagnosis. Consequently, the psychologist did not provide objective evidence of a major depressive disorder in the claimant. All professionals who administer psychological tests are required to follow the American Psychological Association (APA) testing standards regardless of APA membership; the claimant’s psychologist did not do this.

Third, the psychologist only reported percentile WAIS-IV scores for the claimant. Thus, when scores were reported, they looked very low and seemed to support the claims of impairment in cognitive functioning. For example, on an attention measure, the psychologist reported a percentile score of 35. However, WAIS test scores are typically reported as IQ scores. When the same score that the psychologist reported was put into the appropriate IQ score form, her IQ score for that measure was 85, which was within the normal range. Applying a population bell curve during the deposition demonstrated that the psychologist reported the claimant’s WAIS-IV scores inappropriately and did not follow the psychological testing standards on how to report those scores. Thus, a re-examination of the scores demonstrated that the claimant had normal cognitive functioning. Consequently, there was no support of cognitive impairment in functioning.

A review of work records identified that the claimant had attendance issues and was about to be disciplined. She filed a WC claim indicating that the workplace duties were beyond her ability and that the repeated workplace stress contributed to her cognitive impairment and “depression.”

This WC claim was later dismissed due to use of the Daubert framework to review the submitted documentation for the WC claim.

Conclusion

A framework that meets current psychological standards of care can and must be used in treatment and litigation. It is important to stay abreast of these standards and to apply them consistently to assess each WC psychological claim based on its own specific set of facts and documentation.

References

1. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
2. Frye v. United States, 293 F. 1013, 1014 (App. D.C. Dec. 03, 1923)
3. Bruns DL, K Mueller, PA Warren. Biopsychosocial Law, Health Care Reform, and the Control of Medical Inflation in Colorado. Rehabilitation Psychology. 57(2):81-97. 2012. Retrieved from https://www.researchgate.net/publication/225294845_Biopsychosocial_Law_Health_Care_Reform_and_the_Control_of_Medical_Inflation_in_Colorado