Defending Psychological Workers’ Compensation Claims in North Carolina: Part 1 of 4
This is the first article in a four-part series discussing different aspects of workers’ compensation psychological claims in North Carolina, including:
- Part 1: Psychological Claims Resulting from Physical Injury;
- Part 2: Non-Physical Injury by Accident Psychological Claims;
- Part 3: Non-Physical Occupational Disease Psychological Claims; and
- Part 4: Claims Handling Tips for Psychological Workers’ Compensation Claims.
Workers’ compensation claims based on alleged psychological and mental impairments, including anxiety disorders, depression, and/or post-traumatic stress disorder (PTSD), are becoming increasingly prevalent, and understanding the differences between them is key in being able to adequately defend against them.
Psychological Claims Resulting From Physical Injury
When psychological claims are being asserted as the direct result of a physical injury, the psychological component of the claim can be hard to defend against.
Typically, Courts will find physical injuries that result in chronic pain with associated depression and anxiety to be compensable without strong expert testimony refuting the mental component of the claim. Powell v. O’Reilly Auto Parts, Inc., 259 N.C. App. 251, 812 S.E.2d 408 (2018) (Unpublished). In Powell, the Full Commission determined that plaintiff’s pre-existing psychological conditions were compensable aggravations from her fall because even though she didn’t tell anyone about it before her accident, she was still credible, and the treating doctors’ testimony was sufficiently specific, and therefore competent, on causation.
When trying to combat a psychological component of a physical injury claim, there are three best practices to keep in mind:
- It is imperative to hire an expert to perform an evaluation of plaintiff. This expert should use diagnostic neuropsychological testing to support his or her opinions about the lack of causation between plaintiff’s mental disabilities and his or her physical injuries.
- Surveillance can be a very useful tool when trying to defend against these types of claims. Multiple days of surveillance will probably be necessary in order to combat the assertion that on “the day in question” plaintiff was having a “good day.” Kirby v. Mission Hospital, 848 S.E.2d 754, 2020 WL 6140500 (2020) (Unpublished).
- Finally, even though the psychological component usually arises later and does not present itself immediately after the injury by accident, we strongly encourage carriers to include questions in the recorded statement regarding the name of the plaintiff’s primary care physician as well as whether the plaintiff has previously suffered from a mental illness and received treatment for the same, including anxiety and depression. Primary care physician records can offer a wealth of knowledge about past problems and treatment that sometimes get overlooked or simply forgotten by a plaintiff.
Psychological claims resulting from physical injury are typically the most difficult to defend in North Carolina, and are found compensable more often than psychological claims where there is no physical injury present. Good investigative practices at the outset of a physical injury claim are critical to the defense of psychological assertions down the road. A mental health expert and other investigative means should be utilized strategically to ensure the best possible chance of prevailing.