W. Va. Code R. § 85-20-12

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 85-20-12 - Psychiatric compensability, treatment and impairment ratings. (Effective Date: January 20, 2006

12.1. Purpose. The purpose of this section is to develop guidelines for the determination of compensability, treatment, evaluation and permanent impairment rating of claimants for psychiatric disabilities arising from injuries sustained in the course of and resulting from employment. This rule is applicable to evidence submitted by any party to a claim and to evidence gathered by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

12.2. Definitions. As used in these rules, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.

a. "Work injury-related psychiatric disorders" means those psychiatric disorders caused by or aggravated by a work injury or disease. Attached as Exhibit A is a list of psychiatric diagnoses which are, by definition, not significantly contributed to by a work-related injury, unless the disorder ends in the phrase "due to a general medical condition" where the general medical condition is caused by the work-related injury. In order to be regarded as work-related, symptoms of an injury-related psychiatric diagnosis must be manifest within 6 months of the injury or significant injury-related complication based on credible medical evidence.

b. "Causation legal standard" means a physical, chemical, or biologic factor contributed to the occurrence of a medically identifiable condition. A medical determination is required to confirm the feasibility of the contributing factor could result in the occurrence of the condition (AMA Guides 4th Ed., Glossary).

c. "Aggravation, legal standard" means a physical, chemical, biological or medical condition significantly contributing to the worsening of a condition in such a way that the degree of permanent impairment increased by more than 3%. (AMA Guides 4th Ed., Glossary). For the impact to merit allocation of permanent impairment, the ultimate increase of impairment at MMI must at least be 3%.

d. "Apportionment" means a distribution or allocation of causation among multiple factors that caused or significantly contributed to the injury or disease and existing impairment.

e. "Psychiatric impairment" means the loss of, loss of use of, or derangement of mental, emotional or brain functioning.

f. "Permanent psychiatric impairment" means impairment that has reached maximum medical improvement which is static or well stabilized with or without psychiatric treatment or that is not likely to remit despite psychiatric treatment of the impairing condition.

g. "Permanent partial psychiatric impairment" means impairment that is assigned a percentage of impairment rating from the W. Va. Workers' Compensation Impairment Guidelines for Psychiatric Impairment (Exhibit B).

h. "Temporary total psychiatric impairment" means a psychiatric condition that in and of itself, or in combination with a physical condition, makes the claimant unable to function in the work setting, but for which the claimant has not reached maximum medical improvement.

i. "Maximum medical improvement, psychiatric (stabilized psychiatric condition)" means a condition or state that is well-stabilized and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not anticipated. Evaluators should recognize that many psychiatric disorders improve to a state of maximum medical improvement within nine months of the onset of reasonable management.

12.3. Evidentiary Requirements.

The evidentiary weight to be given to a report will be influenced by how well it demonstrates that the evaluation was conducted in accordance with the rule and three attached Exhibits (Exhibit A, Exhibit B, and Exhibit C). Exhibit A lists disorders and conditions not significantly contributed to by a work-related injury. Exhibit B is a guideline for providing impairment ratings. Exhibit C is a report outline for psychiatric independent medical evaluations. The evaluator must address and memorialize each bold face section found in Exhibit C.

12.4. Compensability. Services may be approved to treat psychiatric problems only if they are a direct result of a compensable injury. As a prerequisite to coverage, the treating physician of record must send the injured worker for a consultation with a psychiatrist who shall examine the injured worker to determine 1) if a psychiatric problem exists; 2) whether the problem is directly related to the compensable condition; and 3) if so, the specific facts, circumstances, and other authorities relied upon to determine the causal relationship. The psychiatrist shall provide this information, and all other information required in section 8.1 of this Rule in his or her report. Failure to provide this information shall result in the denial of the additional psychiatric diagnosis. Based on that report, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will make a determination, in its sole discretion, whether the psychiatric condition is a consequence that flows directly from the compensable injury.

a. A Diagnosis Update Form WC-214 must be attached to the treating physician's report in order to request the psychiatric condition be added as an approved diagnosis.

12.5. Treatment guidelines. Treatment of mental conditions to injured workers is to be goal directed, time limited, intensive, and limited to conditions caused or aggravated by the industrial condition. Psychiatric services to workers are limited to those provided by psychiatrists and licensed psychologists, and according to department policy.

a. Initial evaluation, and subsequent treatment must be authorized by Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, staff. The report of initial evaluation, including test results, and treatment plan are to be sent to the injured worker's attending provider, as well as the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. A copy of sixty-day narrative reports to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, is also to be sent to the attending provider. In addition, the following are required: Testing results with scores, scales, and profiles; report of raw data sufficient to allow reassessment by a panel or independent medical examiner. Use of the current Diagnostic and Statistical Manual of the American Psychiatric Association axis format in the initial evaluation and sixty-day narrative reports, and explanation of the numerical scales are required.

b. Understanding that psychiatric conditions may arise as a consequence of injury, it is recognized that these conditions need to be treated. It is expected that with resolution of the injury, there will be resolution of the psychiatric injury. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, is not responsible for the on-going management of chronic or pre-existing psychiatric conditions which it does not view as directly related to the injury.

12.6. In circumstances when a psychiatric condition does not causally relate to the injury of an injured worker, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may authorize treatment solely in its discretion for a limited period of time to maximize the opportunity for recovery from the work related injury. In such cases, no psychiatric diagnosis need be added to the list of compensable conditions in order to obtain the treatment.

12.7. Psychological Evaluation Guidelines.

a. General principles. Professional standards for psychological examiners. Psychologists providing services for the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable shall adhere to all relevant standards for practice as set forth by the American Psychological Association (Ethical Principles, Standards for Providers of Psychological Services, and Specialty Guidelines).

b. Purpose. The purpose of the psychological assessment is to obtain a current view of the claimant's emotional and cognitive functioning, interpersonal relationships and approach to tasks. Symptoms and behaviors must be sampled through interview techniques, checklists, and standardized psychological measurements. Long term personality traits and dysfunctions should be identified. Inferences should be made regarding motivation and dissimulation (faking). It is assumed that psychological assessments are comprehensive and not limited to the presentation of psychometric data. Even when part of an interdisciplinary team, the psychologist has responsibility for recommending additional evaluations and interventions by other health care professionals as deemed necessary.

c. Initial Evaluation. Clinical judgment should be used to delete inappropriate or unnecessary testing and add additional appropriate objective measures to adequately assess the intellectual, emotional, personality and functional status of the claimant.

1. Intelligence Assessment. During the initial evaluation a standardized intelligence test should be administered. Acceptable tests include the most recently standardized/normed versions of either the Wechsler Adult Intelligence Scale (WAIS) or the Stanford-Binet. An intelligence screening measure is not an acceptable alternative to completion of a full battery exam. Behavioral observations of an individual in a structured testing environment are an important component of the testing process and therefore such clinical observations should be provided. All subtest scores as well as the Verbal. Performance and Full-Scale IQ scores should be reported. If the claimant is completing a repeat IME, there should be a compelling reason present (e.g., head injury, brain disease, substance abuse and self-reported cognitive changes) to justify re-administration of an IQ test.

2. Achievement testing - Achievement testing, such as the Wide Range Achievement Test-Revised or the Peabody Individual Achievement Test, should be administered during the initial evaluation. Such tests are used to demonstrate that the claimant has the requisite reading skills to understand and reliably respond to objective measures of personality. They are also used to help determine whether the claimant might have a diagnosis of Learning Disability for rehabilitation purposes.

3. Personality assessment - The type of personality instrument(s) to be used depends on the claimant's intellectual capabilities and reading or listening comprehensive abilities. If indicated based on interview, claimant history or previous testing that the examiner has reason to suspect the claimant cannot adequately comprehend the item content of the personality measure, the examiner will need to screen for reading comprehension using standardized measures such as the WIAT-reading comprehensive subtest or the Woodcock-Johnson (Revised) passage comprehensive subtest. IF the claimant does not have adequate reading comprehension abilities, the examiner will need to objectively assess listening comprehension abilities (e.g., WIAT Listening Comprehension Subtest) prior to administration of a taped version of any personality measure. Taped versions of personality tests are acceptable for claimants with visual acuity problems but should not be given if listening comprehension is below acceptable levels for the selected personality measure. Reading/listening comprehension measures completed should provide a grade-equivalent reading/listening level that can be compared to reading requirements of the personality measure selected.

The personality measure selected should be normed on a psychiatric sample and not reflect "personality traits" of a normal population. At a minimum, personality assessment should include tests that address not only acute and chronic symptoms of emotional disorders but also long-standing personality characteristics. Personality assessment should utilize instruments with empirical/objective based scoring systems and appropriate norms. A summary of subscale scores when available should be included (e.g., MMPI-II profile sheet or a Welsh Code) in the report. Ideally, a measure of dissimulation should be incorporated into the specific test administered to address the validity of results (e.g., MMPI-II, Personality Assessment Inventory).

4. Supplementary testing. If indicated, additional measures can be administered. These measures should demonstrate adequate psychometric norms and may address:

A. Neuropsychological screen. Screening for the presence or absence of organic dysfunction in a claimant should address attention and concentration, memory, judgment, language skills and visual/spatial abilities.

B. Dissimulation

C. Somatization

D. Mood disorders/suicide probability

E. Anxiety/Stress disorders

5. Comprehensive neuropsychological evaluations. When indicated by the neuropsychological screen or claimant's history, a comprehensive neuropsychological evaluation consisting of accepted evaluation procedures should be completed by a psychologist qualified and trained in neuropsychology. A psychologist qualified to interpret neuropsychological evaluations should document extensive training at the graduate or post-doctoral level in a program specifically designed for neuropsychological training or complete intensive training in administration and interpretation by a qualified neuropsychologist.

6. Integration of findings. A detailed report integrating all the data from observations, test responses and their interpretation, results of previous assessments and any other relevant data such as school records, rehabilitation reports, and medical findings should be prepared. Address any inconsistencies noted between behavioral observations and tests responses or previous assessments.

12.8. Psychiatric Independent Medical Evaluation (IME) Guidelines.

a. Professional standards for examiners. Examiners for the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, are expected to adhere to professional standards of competent practice established by the State Licensing Boards, National Certifying Organizations and Professional Associations, and to Codes of professional, ethical, and legal conduct promulgated by these organizations. They must also follow the West Virginia Workers' Compensation Guidelines for Psychiatric Impairment (Exhibit B)and applicable West Virginia law. Clinical assessment procedures and measures utilized in forming an expert opinion must be generally accepted in the expert's scientific community. In forming his expert opinion, the examiner must use the standard of "Reasonable Medical Probability", meaning that the presence of the disorder, and the causation of the disorder by a work injury or disease is "more likely than not."

b. General principles. A psychiatric examiner should be an objective evaluator who has no conflict of interest and no prejudgement regarding the claimant's condition or the presence or absence of impairment. The examiner should not be the treating psychiatrist or vice versa.

c. Psychological evaluations and testing must be a part of every initial IME of a claimant to provide a comprehensive view of his mental, intellectual, and personality functioning. A psychological test report may be submitted as a separate document from the psychiatric IME.

d. Reports shall be prepared in a manner consistent with the Psychiatric IME Report Outline, attached hereto as 'Exhibit C' and incorporated herein by reference.

1. Identifying data. Provide identifying data as outlined in the attached guideline.

2. Consent. Explain to the claimant the nature and purpose of the examination.

3. Chief complaint. Ascertain the claimant's primary complaint.

4. History of present illness. Chronological background and development of the symptoms or behavioral changes culminating in the present state.

A. Using the attached guideline, provide a detailed chronological accounting of the circumstances surrounding the injury and the development of the symptoms or behavioral changes culminating in the present state.

5. Personal and social history

A. Obtain a detailed personal and social history from the claimant using the attached guideline.

6. Review of systems

A. Provide a review of the claimant's general organ and neurological systems.

7. Past medical history

A. Using the attached guideline, provide a complete accounting of the claimant's past medical history.

8. Family medical and psychiatric history

A. Using the attached guideline, provide a complete accounting of the claimant's family medical and psychiatric history.

9. Mental status exam

10. Summary of other sources of information

A. Using the attached guideline, provide a complete accounting of pertinent psychiatric information obtained from other sources.

11. Diagnosis

A. List all psychiatric diagnoses and conditions according to the latest edition of Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.

12. Opinions

A. For each psychiatric diagnosis, provide information on each of the five areas listed in the attached guideline. The basis of all opinions must be explicit and the report should contain the evidence upon which the conclusions and opinions were based. All reasoning processes should be outlined to explain exactly how the particular conclusion was reached. Opinions must be stated in terms of "reasonable medical certainty" or "reasonable medical probability."

13. Recommendations

A. Using the attached guideline, provide recommendations for further examinations, consultations, re-examinations, psychiatric treatment and rehabilitation.

W. Va. Code R. § 85-20-12