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Claimants can still benefit from bringing claims for work-related psychological injuries. It is now well established that there are three types of psychological injury. The three possibilities are mental/mental (psychological stimulus causing a psychic injury); mental/physical (psychological stimulus causing a physical injury); and physical/mental (physical stimulus causing psychic injury). The mental/mental and mental/physical claims require the claimant to show that the psychic injury was caused by objective abnormal working conditions, as in Martin v. Ketchum Inc. This standard has made it very difficult, if not impossible, to secure benefits for a purely psychic injury. The physical/mental claim, where a physical injury causes a psychic injury, remains a viable and important claim for injured workers. To establish a psychic injury following a physical trauma, it is not necessary for a claimant to establish that he suffered a physical disability that caused the mental disability. He only needs to show that a physical stimulus caused the mental disability. As a result, counsel representing individuals who are experiencing symptoms of psychological injuries such as depression and/or anxiety should seriously evaluate the merits of a claim petition or a petition to review a notice of compensation payable to add the psychic diagnosis to a previously accepted physical injury. The addition of a psychological injury to the notice of compensation payable increases the settlement value of a claimant’s case and complicates every potential petition that an employer/carrier may file to reduce or stop his benefits. Following the Act 57 amendments to the Pennsylvania Workers’ Compensation Act, employers and carriers have used the labor market survey and Impairment Rating Evaluation (IRE) as tools to reduce the value of claims and, many times, gain leverage for settlement negotiations. The addition of a psychological injury to a notice of compensation payable that previously acknowledged only a physical injury throws a monkey wrench into their use of these two tools. For an employer seeking to terminate, suspend or modify a claimant’s benefits, the addition of a psychic injury will require the employer/carrier to schedule an IME with a physician for a claimant’s psychological and physical injuries. The employer/carrier will have to convince a workers’ compensation judge that the claimant is physically and psychologically recovered or capable of performing jobs identified by a labor market survey. Usually, the vocational witness identifies jobs such as host/hostess, telemarketer, accounts receivable clerk and security guard. While a claimant may be physically capable of performing these supposedly available jobs, it is not difficult to prove that a depressed and/or anxious claimant would not get hired to work in any of the jobs usually found for claimants. Further, the addition of a psychological injury may be the best way to reinstate total disability benefits after a claimant goes through the charade of an IRE. After a claimant is found to have a whole body impairment of less than 50 percent, as they almost all are, the newly added psychic injury may be the only way to reinstate total disability for claimants who have suffered very serious and permanent injuries. The IRE is conducted pursuant to the AMA Guidelines for the Evaluation of Permanent Impairment. Significantly there is no clear guideline provided for evaluating the combined impairment caused by the physical and psychological injury. Hence, the claimant has a good chance of reinstating total benefits before the 500 weeks of partial benefits are exhausted after an IRE. A long line of appellate court decisions from Martin v. Ketchum through the present have interpreted the abnormal working conditions requirement in a manner that has caused many claimants’ practitioners to ignore psychological injuries. The effect that an accepted psychic injury has on a claimant’s entitlement to benefits should not be ignored. Practitioners that ignore diagnoses such as chronic pain, depression, anxiety and post-traumatic stress after the occurrence of a physical injury may be missing one of the best ways to protect injured workers since Act 57. Michael G. Dryden is the head of the workers’ compensation department at Willig Williams & Davidson and co-chairs the Philadelphia Bar Association’s workers’ compensation committee. He can be reached at (215) 656-3645 or by e-mail at [email protected] If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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