The Role of Psychological Evaluators and Therapists in Workers Compensation Cases

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1 The Role of Psychological Evaluators and Therapists in Workers Compensation Cases George A. Harris and Martin Zehr Address correspondence to: George A. Harris, Ph.D Ward Parkway Suite 140, Kansas City, Missouri Contact:

2 Abstract This article explores ethical guidelines for psychologists in workers compensation cases and concludes that there are few differences between the roles of evaluator and therapist as expert witnesses. This inherent role conflict is a potential source of problems for psychologists who are involved in workers compensation cases. Ethical guidelines that admonish psychologists to refrain from providing services both as evaluator and therapist, if strictly followed, end up restricting psychologists from working within this system and from providing important services. The article also explores how workers compensation expectations influence the treatment of workers compensation clients. Keywords: ethical guidelines for forensic psychologists in workers compensation, confidentiality in workers compensation, informed consent at the risk of practicing law Readers will: Learn inherent and unavoidable role difficulties for psychologists in workers compensation cases Learn why standard assurances of confidentiality may be misleading and contrary to workers compensation requirements Identify responsibilities of evaluators and therapists working within the workers compensation system

3 Role of Psychological Evaluators and Therapists in Workers Compensation Case In recent years, the role of forensic psychologists has been differentiated from the role of treating therapists. Greenberg and Shuman (2007) discussed the conflicts inherent in assuming the role of both therapist and evaluator, and advised psychologists to avoid role conflicts created by conducting evaluation and subsequently assuming a treatment role, or by offering evaluation opinions after providing therapy. There is no doubt that conflicts can occur when psychologists assume these dual roles, but the nature of workers compensation cases essentially requires therapists to also be evaluators, and that problem is the focus of this article. Specialty guidelines for forensic psychologists (2013) state that forensic practitioners refrain from taking on a professional role when personal, scientific, professional, legal, financial or other interests or relationships could reasonably be expected to impair their impartiality, competence, or effectiveness, or expose others with whom a professional relationship exists to harm. However, there is not complete agreement or clarity about this issue. Heitzel (2007) maintained that there can be compatibility between therapist and evaluator roles. Cardwell (2014) noted that in actual practice, courts often ask treating therapists to provide expert testimony in proceedings and that this testimony is a vital component of the legal process that should not be readily abandoned. As will be discussed in this article, psychologists who provide treatment in workers compensation are routinely expected to also provide evaluative opinions that can affect the disposition of a claim. It may be helpful in this discussion to define the legal status of witnesses who may be asked to provide opinions to an administrative or judicial proceeding. The role of the expert witness, generally speaking, is to provide informed opinion to assist the trier of fact, the court, in making its decisions. For example, in a child custody case, the court must settle disputes between parents regarding custody and visitation, and often an expert witness psychologist will make a specific custody recommendation to the court. A therapist, however, can serve as a treating expert witness but should avoid making custody recommendations without completing an evaluation of both parents. The therapist would likely be able to make at least limited recommendations regarding the parenting ability of the treated parent. Therapists may be able to assume the role of a fact witness and provide only information about what was said in therapy and answer questions about how therapy was conducted, but in most cases, courts will ask the therapist for an expert opinion as well. As a practical matter, psychologists will be expert witnesses or treating expert witnesses if asked to testify. Blurred line between expert witness and treating expert witness Workers compensation cases, in particular, provide examples of the blurred line between expert witness and treating expert witness. The treating psychologist in a workers compensation case is paid by the workers compensation system, not the client, and the scope of therapy is limited to issues directly related to the injury. Consequently, the treating psychologist must perform a reasonable evaluation, including a review of relevant medical records to determine the cause of injuries and should do so just as an evaluating psychologist would. The therapist, generally, should not provide treatment for issues unrelated to the injury, no matter how important those issues may be. For example, workers compensation would not pay for treating depression that resulted from a stressful divorce but presumably would pay for treatment of depression resulting from a painful on-the-job injury. A treating psychologist should also be alert for the possibility of malingering and secondary gain and should confront this problem if suspected. An evaluating psychologist should, of course, make treatment recommendations if a psychiatric condition is present. The treating psychologist is frequently deposed and asked to offer opinions about the client s progress, employability and extent of injuries. Questions asked about these matters are much the same as those asked of the independent evaluator. In workers compensation cases, laws in most states require the treating psychologist to provide treatment notes to the workers compensation system, including attorneys.

4 Complicating matters further, workers compensation clients do not unilaterally pick their own therapists. The therapist usually must be approved by the client s and the workers compensation attorneys. Additionally, the client s own health insurance will not pay for treatment elsewhere if the injury is work-related. Clients may go to any provider they choose as long as they pay for the service, but this presents a practical restriction for most people. It is not difficult to understand, then, how the client might perceive the therapist to be an agent of the workers compensation system. Clients do not by themselves select their therapists, do not set the treatment goal (return to work), do not have the right to restrict access to workers compensation treatment records and cannot control or restrict what their therapist says about their employability or causation of psychological injury. It is not a practical possibility for a therapist to assume the role of therapist in these cases and decline to serve as a treating expert witness. The fact that the psychologist s fees are paid by the workers compensation insurer underscores the reality that, no matter how psychologists perceive their role as independent, they are an agent of the workers compensation system. In an ideal world, the independent psychological examiner is neutral and objective in offering opinions to the court. In practice, however, the neutrality of independent examiners is frequently challenged because they are paid by either plaintiff or defendant. Likewise, treating psychologists neutrality may be questioned because they are viewed as advocates for their clients. In the end, the workers compensation judge must parse the opinions of evaluating psychologists and treating psychologists for bias and for defensible use of evidence and reasoning in forming a conclusion. Because of all these characteristics of the workers compensation system, it is unrealistic to conclude that there is a clear difference between an expert witness and a treating expert witness in workers compensation cases, and there is little reason to believe that there is a practical role distinction between evaluators and therapists. Special characteristics of evaluation and treatment procedures in workers compensation The difficulties of providing evaluation and treatment in workers compensation cases extends beyond role definition and into matters such as obtaining informed consent from the client. Psychologists may believe that the Health Insurance Portability and Accountability Act (HIPAA) regulations, and therefore standard release forms, should be used with all clients including worker s compensation clients. But, as noted earlier, HIPAA makes exceptions for workers compensation records, allowing greater and freer disclosure of these records without the client s consent (U.S. Department of Health and Human Services, Health Information Privacy). State laws may provide rules more stringent than HIPAA regulations, but many do not, and psychologists must be familiar with the applicable laws of their state. Giving clients inaccurate information about privileged communication at the beginning of therapy would be false assurance and could encourage clients to make disclosures they might otherwise withhold. Would it be wise, then, for therapists to tell clients there is limited confidentiality in their discussions? Such a warning might cause clients a high degree of anxiety about revealing other personal problems that are not, strictly speaking, work-related because clients would understandably fear that such personal information could become public with potentially harmful results through the workers compensation adjudication process. Therapists, of course, need this information to fully understand their clients and to determine whether an emotional symptom displayed is a result of a work injury or a result of non-work related stressors. Obtaining such information under false pretenses, however, as a result of non-disclosure of the confidentiality limits associated with participation in the workers compensation system is arguably unethical, if not fraudulent. The requirement of informed consent is not, in this sense, remarkably different from that applicable to other therapy contexts, in which the client, as a prelude to therapy, is made aware of confidentiality limits.

5 Of course, some clients may claim their work injury is the cause of all or nearly all of their emotional problems in order to maximize claims. Consequently, clients might minimize, in treatment, the discussion of longstanding personal problems in order to focus blame on their workrelated injury. Evaluators and therapists alike are obligated to explore these matters in order to assist workers compensation in the processing of the worker s claim. This creates a dilemma for treating professionals. Psychologists, whose records will be used by workers compensation or who may become treating expert witnesses cannot consistently provide good treatment if they are hearing only half of their client s story, so it is unwise to encourage clients, intentionally or unwittingly, not to disclose problems and symptoms that are not work-related. If a therapist advises clients that their statements could hinder their claims, thereby advising clients of the inevitable evaluator/treater role of the psychologist, then does this not potentially hinder effective treatment even if it may harm clients legal claims? In many respects, psychologists come dangerously close to providing legal advice in worker s compensation cases if they attempt to advise clients about all concerns related to confidentiality and all possible ways in which the psychologist may be called upon to answer questions before a workers compensation court. For example, a psychologist might tell a client that HIPAA may not apply to worker s compensation cases, but is it a legal opinion to tell a specific client that his or her records are not protected health information under HIPAA? Is it providing incorrect legal advice to advise clients through commonly used confidentiality forms that their communications with the psychologist are protected? Using forms designed for a different type of treatment can be misleading since they may convey information about limits of confidentiality that are, in fact, not relevant to workers compensation cases. Or, to explore these problems from a different angle, is it the role of the psychologist to explain to clients the role of the expert witness, the treating expert witness and the treating therapist who is called to court only as a fact witness? Would most clients be able to hear this information and understand how best to use it in meeting with the psychologist? Should the psychologist go into detail about the implications of these roles for a specific client s legal case? In most cases, this would not be good practice. Attorney-client discussions may also be revealed inadvertently in treatment by the areas a psychologist chooses to explore, and psychologists must decide whether to open these doors. For example, psychologists might ask clients about the specifics of their past and current workers compensation claims. Such discussions may well elicit disclosure of conversations clients have had with their own attorneys, and once disclosed, this information may no longer be protected under attorneyclient privilege. In such conversations, the disclosure of information about prior workers compensation claims could suggest a pattern of exaggerated claims or a history of emotional injuries. Attorneys may then ask treating psychologists to offer an opinion regarding the possibility that clients are exaggerating or malingering in order to increase their claims, and honest answers to these questions could create a conflict between therapist and client. Further, psychologists are also often asked in workers compensation cases to offer an opinion regarding the question of whether a specific accident is the prevailing or primary factor in the present injury, and knowledge of earlier claims would inform this opinion. In discussions about prior claims clients might inadvertently reveal conversations with their attorneys about their legal strategy and not realize they should not discuss this because the attorney probably would not want this revealed to the workers compensation defense attorney in the case. An important question is whether it the responsibility of the psychologist to explain to clients that the protection of attorney/client privileged communication may be limited or broken by discussing such conversations with a third party, a psychologist, whose conversations with clients are ordinarily also privileged except in worker s compensation cases. Would advising clients about these issues be ethical or harmful?

6 Would such discussions come close to offering legal opinions that are better left to clients legal counsel? On the other hand, is it unethical for the psychologist not to make a reasonable attempt to advise clients that conversations with an attorney should remain private? Fortunately for psychologists, in almost all workers compensation cases, clients have an attorney, and it is arguably the attorney s responsibility to advise the client about legal matters relating to participating in psychological evaluation and treatment. The attorney presumably should instruct the client on which attorney-client conversations or subjects not to discuss. Psychologists should probably provide a general overview of the workers compensation system but encourage their clients to consult their attorney regarding concerns about confidentiality, the role of the psychologist, and what should and should not be told to the psychologist. The responsibility of psychologists is to recognize that they are compensated for providing evaluation and treatment of work-related injury. They should provide their best professional opinions to the court and to the client without regard for whether the opinion helps or hurts a client s case, regardless of whether the psychologist is retained as an independent examiner or treating therapist. An illustrative case example A 61-year-old woman, Joan, slipped and fell in a factory where she worked on an assembly line. She complained of back pain and went to the occupational medicine clinic where imaging revealed no evidence of orthopedic injury. The physician diagnosed soft tissue strain and prescribed anti-inflammatory and muscle relaxant medications. Joan, however, complained that she was in too much pain to work and remained off work for three months. She reported that the pain remained intense, and she became depressed. Workers compensation sent her to a therapist, Dr. Howell, for treatment. Dr. Howell recommended Joan be assessed for medications, and the occupational medicine physician prescribed an antidepressant while Dr. Howell counseled Joan. In counseling sessions, Joan revealed she was going through a stressful divorce and further noted that she had worked all her life and was tired of working. In one session she said, all I want to do is get to 62 so I can start Social Security and retire. I'll be fine financially if I can stay on workers compensation until then. After Joan was on medication for three months, the occupational medicine physician said Joan was at maximum medical improvement. Dr. Howell believed it was likely that Joan had some symptoms of depression, but largely because of her personal circumstances and not because of back pain. He addressed this concern in a counseling session with Joan and also suggested she should consider returning to work because her depression was not severe enough to prevent her from working. In fact, he concluded, she had been depressed prior to her fall at work and had been working successfully. Dr. Howell could not say that Joan s back pain was the prevailing factor in the depressive symptoms she experienced. He explained that he was required to provide session notes to workers compensation and potentially to provide opinions about her return-to-work status. He informed Joan that workers compensation would not likely continue to pay for counseling for depressive symptoms unrelated to a work injury. Joan stopped attending counseling, and her attorney sought another opinion about the cause of her depression. This case illustrates practical considerations in workers compensation cases. Therapists are asked to provide return-to-work recommendations and are reasonably expected to provide the basis for their opinions. Their role is not just therapeutic but evaluative. Evaluation opinions may affect the therapeutic relationship, but this is unavoidable for therapists who take workers compensation cases. It is entirely possible that Joan is not consciously malingering in order to collect workers compensation until she is old enough to collect Social Security. And it is possible that she does experience sufficient pain to cause depression, though medical assessment shows no basis for the pain. Nevertheless, Dr. Howell should conduct treatment with awareness of the goals of workers compensation. When asked, he should provide his best professional opinion and the basis for the opinion.

7 Case example 2 Dr. Smith, a psychologist, received a referral to evaluate an employee, John, who was burned in an explosion while repairing welding equipment. John had been treated for his burns and had also been seen by a psychiatrist, who diagnosed post-traumatic stress disorder and prescribed antidepressant medications. John returned to work and worked with apparent success for two months but then violated a company policy and was terminated. John alleged that he was terminated for having filed a workers compensation claim. Dr. Smith evaluated John and agreed that he needed treatment for anxiety and depression symptoms and should remain on medications as prescribed. However, Dr. Smith concluded that John was able to work based on the fact that he had been working for two months after returning from treatment for his burn injuries. Dr. Smith reviewed his evaluation results with John. John disagreed with Dr. Smith and claimed he was not able to work and that he should not have returned to work at all after the accident. But he told Dr. Smith that workers compensation would not authorize him to return to the psychiatrist for renewal of prescriptions or for counseling. Workers compensation personnel confirmed that John was not approved to return to previous doctors and asked that Dr. Smith provide counseling for John. Dr. Smith met with John for six sessions while attempting to get renewed authorization for John to obtain necessary medication. John asked Dr. Smith to provide an additional letter stating Dr. Smith s opinions about the need to stay on medication. Later, John s attorney objected to Dr. Smith counseling John because Dr. Smith had concluded that John was able to work after receiving treatment for burn injuries. John was then referred to a different psychologist. Dr. Smith assumed both evaluator and therapist roles, even though John disagreed with at least part of the evaluation opinion. John returned for meetings with Dr. Smith, and Dr. Smith intervened to help John receive appropriate medical treatment. In one session, Dr. Smith asked John if he wanted to continue to meet and John said that he did because the sessions provided an outlet. But after his termination, John did not attempt to find another job and told Dr. Smith that his attorney said that returning to work at another job would hurt my case. This example reveals the complexities of evaluation and treatment roles in workers compensation cases. Because workers compensation could discontinue providing psychiatric treatment, John was left with no medical care, even though Dr. Smith believed such care was necessary. Dr. Smith believed it was necessary to provide treatment and intervention to help John get at least minimal care. In those treatment sessions, John may have revealed attorney-client conversations that would break the privilege of that relationship. And, eventually, John and/or his attorney concluded that counseling would be better provided by another psychologist because Dr. Smith had concluded that John was able to work despite his injuries. Conclusions The nature of treatment in workers compensation is unquestionably affected by the requirements of the system. Because workers compensation will not fund treatment for non-work-related issues, therapists have little choice but to inform their clients directly about their opinions on the causes of their problems. In other therapeutic contexts, a therapist may choose a non-directive approach and permit clients to come to a conclusion of their own. But in workers compensation, such open-ended, costly, non-directive counseling could be seen as avoiding responsibility for wise use of a limited pool of funds for other injured workers. The psychologist providing services, whether evaluative or therapeutic, necessarily engages in a balancing act of client-centered interests and the legal, contractual interests of the employer paying for the psychologist s services. Under such circumstances, the psychologist must maintain an acute sensitivity to the potential pitfalls in the professional relationship with a client that renders it a much different endeavor than normal therapy or evaluation activities. There are ethical dilemmas for psychologists providing services

8 in the workers compensation system. However, this system expects therapists to provide expert opinion and asks evaluators at times to provide treatment. When the legal structure brings psychologists into both evaluator and treatment roles, can professional ethical guidelines reasonably prohibit professionals from providing both evaluation and treatment? Psychologists may avoid the expectations and limitations of the workers compensation system by choosing not to provide workers compensation services. But in doing so, psychologists would vacate a huge area of practice in which their expertise is badly needed and ultimately, even considering the inherent constraints of the system, patients can derive some degree of therapeutic benefit.

9 References American Psychological Association. (2003). Legal issues in the professional practice of psychology. Professional Psychology: Research and Practice. 34(6) Cardwell, Michael S. (2014). The Psychological Expert Witness: Ethical Considerations. The Forensic Examiner (2014). Retrieved from Greenberg, S.A. & Shuman, D.W. (2007). When worlds collide: Therapeutic and forensic roles. Professional Psychology: Research and Practice. 38(2) Health Insurance Portability and Privacy Act of Pub.L (1996). Retrieved from: Heitzel, T. (2007). Compatibility of therapeutic and forensic roles. Professional Psychology: Research and Practice. 38(2), Specialty Guidelines for Forensic Psychology (January 2013). American Psychologist, Vol. 68, No.1. pp U.S. Department of Health and Human Services. Health Information Privacy (1996). Retrieved from

10 About the Authors George Harris PhD I am the consulting psychologist for the Kansas City Regional Office for developmental disabilities. I also provide consulting for Midwest Career Center, an evaluation program for Ministers. I taught Psychology course for Johnson County Community College and Avila College while in graduate school. I provide pre-employment evaluation and fitness for duty services to several areal police and fire departments. Martin Zehr Martin Zehr, Ph.D., J.D., is a licensed psychologist and attorney in Missouri. He was a staff psychologist for the Veterans Administration Medical Center, an associate in a law firm and a psychologist conducting neuropsychological examinations in a hospital before entering private practice in Kansas City, Missouri.

11 Related certification offered by American Psychotherapy Association and its sister organizations. Certified Forensic Consultant (CFC) Demonstrate your proficiency in foresics with the Certified Forensic Consultant (CFC) program. You will be assessed on knowledge and competency in areas relating to consultation services, litigation processes, general legal principles, witness payment, the discovery process, the deposition, and the trial. See more at: Advertisement

12 You entered this field in order to help people. When was the last time that an organization came along to provide any real help to you? The mission of the American Board of Professional Counselors, ABPC program is to be the nation s leading advocate for counselors. ABPC will champion counselors right to practice Becoming a Board Certified Professional Counselor will provide you with resources, low or no cost continuing education opportunities, and a forum to network with your fellow professional counselors. See more at: Advertisement

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