For many W/C claims, the hard part is differentiating where the physical injury ends and where the psychiatric injury begins.  Often, the pain associated with a severe work place injury will lead to certain psychiatric impairments: anxiety, depression, paranoia.  However, there are statutory limits to the exposure E/C’s have in claims with mental and nervous injuries.

In a seminal case, the First DCA sifted through the mental and nervous injury statute to decipher what happens when a Claimant suffers a psychiatric injury simultaneously with her physical injury.

In McKenzie v. Mental Health Inc., Claimant suffered a compensable accident when, while working as a nurse, a patient attacked her and struck her in the head and throat.  In addition to the physical injuries, Claimant alleged mental injuries which the E/C denied.

At trial, both parties focused on section 440.093(2) which states that where a mental or nervous injury that manifest itself from a compensable physical injury, the physical must remain the major contributing cause of the mental injury.  The JCC agreed with the E/C and denied the claim.

On appeal, the First DCA found that both parties were wrong.  The type of injuries Claimant suffered from where not mental injuries manifested from a physical injury.  Claimant suffered a mental injury accompanying a compensable physical injruy. 

Like the recent Wyeth decision which laid out the burdens of proof for TPD, the Court in McKenzie lays out the ground work for proving mental or nervous injuries.  They breakdown s. 440.093 as follows:

There are 4 scenarios that involve mental or nervous injuries in W/C:

  1. A mental injury alone is not a compensable injury.  This means if a store clerk is robbed at gun point, with no physical injuries, but suffers from anxiety disorder from the incident then the mental injury is not compensable.
  2. A mental injury is compensable only if it accompanies a separate physical injury.   An example could be a sexual assault at work by a co-worker.  The obvious mental injury that accompanied the physical ones would be compensable.
  3. A physical injury manifesting from a mental injury is not compensable.  An example would be my first example but the clerk develops stress from the robbery which leads to a heart attack.  The subsequent heart attack would not be compensable.
  4. Finally, s. 440.093(2) which mandates that where a mental injury manifesting from a physical injury, the physical one must remain the major contributing cause of the mental injury.  The most common example we see is a Claimant who suffers depression from long term chronic back pain.

At trial, Claimant presented no evidence to support that her mental injury manifested from her neck and throat injury.  In fact, both IME’s testified that the mental injury occurred independently of the physical injury.  In statutory speak, her mental injury accompanied the physical injury rather than manifesting from it.   Claimant’s mental injuries occurred from the sudden fright of the attack.  Her physical injuries allow the mental injury to remain compensable. 

Under this scenario, Claimant need not prove that the major contributing cause of her mental injuries remains the physical injury.  This seems to jive with the real world.  In this case, Claimant’s long term injuries are going to be the mental fear of the attack rather than the attack itself.

So, how does this decision apply to claims handling?  For one, work with your attorney in identifying what caused Claimant’s mental injuries.  For many cases, Claimant’s allege mental injuries from the long term pain associated with physical pain.  For those other cases, make sure it accompanied the injury before you deny.  In those cases, the physical injury is long resolved but the mental injury remains.  According to this ruling, major contributing cause does not play into compenability.

Second, remember that s. 440.093(2) also requires Caimant’s prove mental injuries by clear and convincing evidence by a licensed psychiatrist.  So many times, I see claims where the PCP or ortho or pain management doctor diagnose a Claimant with depression.  Even if they are experienced with diagnosing depression and treat it regularly (thanks to free Rx samples from the drug manufacturers) do not accept their opinion as gospel. 

Unless a licensed psychiatrist tells you Claimant has a mental injury, it is not compensable.

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