West Virginia Code of State Rules › Agency 85 - Workers' Compensation › Title 85 - PROCEDURAL RULE WORKERS' COMPENSATION RULES OF THE WEST VIRGINIA INSURANCE COMMISSIONER › Series 85-22 - Guidelines For Psychiatric Permanent Impairment, Evaluations, Evidence And Ratings Of Psychiatric Impairment Due To Workers' Compensation Injuries › Section 85-22-5 - Psychiatric Evaluation and Impairment Guidelines

Current through Register Vol. XLI, No. 28, July 12, 2024
5.1. Professional Standards for Examiners -
				Examiners for the West Virginia Workers' Compensation Guidelines for
				Psychiatric Impairment 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 rules and regulations of the West Virginia Workers'
				Compensation Guidelines for Psychiatric Impairment 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."
5.2. General principles - A
				psychiatric examiner should be an objective evaluator who has no conflict of
				interest and -no prejudgment regarding the claimant's condition or the presence
				or absence of impairment. The examiner should not be a treating psychiatrist or
				vice versa.
a. Bias in an examiner is an
				inherent risk while performing these examinations and self-scrutiny is required
				to prevent or minimize it."
There is a tendency to identify with the referring sources
				  who may subtly pressure for a favorable opinion or only selectively support
				  needed information (medical records, employment records, previous injuries,
				  evaluations etc.). The examiner may develop a philosophical identification with
				  workers or employers due to his or her own background, development and
				  experiences. The examiner may assume in his or her mind the role of the trier
				  of fact or dispenser of justice. Sibling rivalry or other competitive
				  motivations may skew the examiner as he or she attempts to "outdo" another
				  psychiatrist involved in the case. The examiner may become paralyzed with
				  indecision or need for appearing unbiased such that no definite opinion is
				  rendered. Favorable or unfavorable personal opinions about the claimant may
				  enter the picture due to knowing the claimant or someone associated with the
				  claimant.
A. Pro-plaintiff evaluation
				biases:
(a). Inadequate exam - lack of
				tracing of symptoms, no exploring or pre-existing conditions or non-work
				stresses.
(b). Very pessimistic
				vocational prognosis early in a case which has not been treated or without
				scientific foundation or supportive evidence, proper diagnostic studies or a
				clear description of the factors that are causing the claimant's level of
				impairment.
(c). "Mixing of roles -
				both treating and evaluating the claimant.
(d). inappropriate legal advocacy.
(e). Diagnoses that go beyond the capacity of
				the diagnostic tests that have been performed or without objective mental
				status or psychological test data to support them.
(f). Sweeping statements as to disability
				from employment without a vocational expert assessment and no careful
				consideration of limited duty possibilities, transferable vocational skills,
				job analysis, or even the potential impact of treatment.
(g). "Pseudo-validating" a claim by the
				treating physician by means of "case building", whereby the physician provides
				a frequency and intensity of treatment not otherwise within the reasonable
				community standards of quality, cost-effective care.
(h). Use of numerous medical eponyms and
				jargon that are not explained in the text of the report and that are not
				obvious to the reader.
(i). Use of
				esoteric or pedantic terminology to ensure that the practitioner will be called
				upon for testimony, thus increasing his or her reimbursement for each
				case.
(j). Use of conclusory terms
				and statements based on the unclear named tests that place controversial or
				nonspecific categorical terms in a high profile, using a false premise giving
				rise to a faulty conclusion.