Evaluating Mental Health Disability in the Workplace (eBook)

Liza H. Gold, M.D., is a board certified clinical and forensic psychiatrist.  Dr. Gold is Clinical Professor of Psychiatry at Georgetown University Medical Center in Washington, D.C. and Associate Director of Georgetown's Program in Psychiatry and Law.  After graduating from Harvard/Radcliffe College, she went on to earn a Master of Philosophy degree from Cambridge University and receive her M.D. from New York University School of Medicine.  Dr. Gold is the author of Sexual Harrassment: Psychiatric Assessment in Employment Litigation, which won the 2006 Manfred S. Guttmacher Award and was also honored by the American Psychiatric Association and American Academy of Psychiatry and the Law for best contribution to forensic psychiatric literature for the year.  In addition, Dr. Gold is coeditor of The American Psychiatric Textbook of Forensic Psychiatry and its accompanying study guide.  She has also authored numerous articles and book chapters, and has lectured nationally and internationally on topics related to clinical and forensic psychiatry.  She has a private practice in Arlington, VA.Daniel W. Shuman, J.D., is the M.D. Anderson Foundation Endowed Professor of Health Law at Southern Methodist University School of Law.  In addition, Dr. Shuman serves as an adjunct Professor of Psychiatry at the University of Texas, Southwestern Medical School and an adjunct Professor of Psychology at the University of North Texas.  He is member of the American Law Institute and former chair of the Association of American Law Schools sections on Law and Mental Disability and Law and Medicine.  Prior to joining the faculty of the SMU School of Law, he served as an Assistant Attorney General for the State of Arizona and a legal services attorney in Tucson, Arizona.  Dr. Shuman is the author of more than 5 books and more than sixty articles and book chapters.  His 1986 release, Psychiatric and Psychological Evidence, was the winner of the 1988 American Psychiatric Association's Manfred S. Guttmacher Award.

Acknowledgments 6
Contents 8
Introduction 14
Workplace Conflict and Crisis 14
The Extent and Cost of Mental Health Disorders in the Workplace 15
Disability and Disability-Related Mental Health Evaluations: The Need for Expertise 18
Who Can Use the Information in This Book 21
Unique Perspectives on Workplace Mental Health Evaluations 24
1 Taking the High Road: Ethics and Practice in Disability and Disability-Related Evaluations 27
Introduction 27
The Ethical Obligation to Practice Within Areas of Expertise 28
Ethics and Relationships in Third-Party Evaluations 29
The Relationship with the Third Party 29
The Physician-Evaluee Relationship in Employment Evaluations 30
Disclosure and Informed Consent 31
Confidentiality in Third-Party Employment Evaluations 33
Obligation for Honesty and Objectivity: Sources of Bias in Employment Evaluations 34
Common Sources of Bias in Disability and Disability-Related Evaluations 36
Advocacy Bias 37
Bias Associated with Mental Health Training and Experience 38
Intraspsychic Bias 38
Bias Associated with an Extrapsychic or External Focus 39
The Bias Toward Diagnosis: Stress vs. Disorder 40
Bias Associated with Role Conflict 43
Bias Associated with the Work Ethic: Can’t Work or Won’t Work? 46
Administrative Consequences of Not Conforming to Ethical Guidelines 48
Disciplinary Actions and Mental Health Employment Evaluations 48
Implications for Impeachment 49
Conclusion 50
2 Employment Evaluations and the Law 51
Introduction 51
Obligations to the Retaining Party in Employment Evaluations 52
Consent 53
Obligations to the Evaluee in Disability and Disability-Related Evaluations 55
The Question of Duty in Third-Party Evaluations 56
The Duty to Not Cause Harm in the Conduct of an Examination 58
The Duty to Communicate Critical Information 58
The Duty to Maintain Confidentiality 59
Breach of Duty and Harm 60
Immunity in the Provision of Disability and Disability-Related Evaluations 61
Privacy and Confidentiality: Access to Information 62
Qualitative Standards for Employment Evaluations 65
Psychiatric and Psychological Evaluations Intended for Judicial Consumption 65
Psychiatric and Psychological Evaluations Intended for Administrative Consumption 66
Conclusion 68
3 Why We Work: Psychological Meaning and Effects 69
Introduction 69
The Central Role of Work in Daily Life 69
Work and Its Effects on Mental Health 70
The Benefits of Work 71
Job Satisfaction 74
Work: The Downside 74
Assessing ‘‘Goodness of Fit’’ 75
Constant Effect Determinants 77
Variable Effect Determinants 77
Occupational Stress 79
Outcomes of Occupational Stress: Job Burnout and Withdrawal 86
Job Burnout 86
The Effects of Job Loss and Unemployment 88
Conclusion 94
4 Psychiatric Disorders, Functional Impairment, and the Workplace 95
Introduction 95
Psychiatric Disorders, Impairment, and Disability 96
Psychiatric Diagnoses and Disability: Caveat Emptor 97
Psychiatric Disorders in the Workplace 100
Evidence-Based Assessment of Psychiatric Impairment 104
Affective Disorders 104
Major Depression 105
Bipolar Disorder 109
Anxiety Disorders 113
Substance Use and Dependence 117
Comorbidity 118
Conclusion 120
5 Psychiatric Disability: A Model for Assessment 122
Introduction 122
Disability: A Psychological Process 123
The Relationship Between Impairment and Disability 124
Work Capacity: Supply, Demand, and Domains of Function 126
Work Demand: The Job Description 127
Work Supply: Performance and Employment History 129
Decreased Work Supply: Diagnosis, Symptoms, Impairments, and Treatment 131
Decreased Work Supply: Personal and Social Circumstances 132
Work Capacity Models: The Process and Patterns of Disability Development 132
Change in Work Capacity Due to Sudden Illness and Impairment 133
Change in Work Capacity Due to Sudden Illness and Impairment with Relatively Rapid Recovery to Baseline 134
Increasing Impairment and Decreasing Work Capacity over Time Due to Progression of Illness 135
Cumulative Effect of Prior Impaired Function with New Impairment Resulting in Decreased Work Capacity 136
Change in Work Demands Outpacing Change in Work Supply, Resulting in Decreased Work Capacity 138
Repeated Episodes of Impairment with Decreasing Baseline Work Capacity Between Episodes 139
Work Capacity Models and Disability Evaluations 141
Motivation 143
Cultural and Ethnic Issues 145
Conclusion 147
6 Practice Guidelines for Mental Health Disability Evaluations in the Workplace 148
Introduction 148
The Benefit of Practice Guidelines 148
Definitions and Related Issues 150
Disability and Impairment: Related but Not Synonymous 150
Restrictions and Limitations 152
Impairment vs. Illegal Behavior 152
Insurance Issues for Forensic Evaluators 154
Safety Issues for Evaluators 154
General Practice Guidelines for Psychiatric Disability Evaluations 155
Clarify the Nature of the Referral with the Referral Source 155
Review Records and Collateral Information 156
Written Records 157
Job Description 157
Psychiatric, Substance Use, Medical and Pharmacy Records 158
Employment Records 158
Academic Records 159
Other Experts’ Evaluations 159
Personal Records 159
Third-Party Information 159
Family Members and Friends 159
Treatment Providers 159
Written Statements 160
Surveillance 160
Conduct a Standard Examination 160
Obtain Informed Consent 160
Perform a Standard Interview, Including a Mental Status Examination and Review of Information Relevant to the Disability Claim 161
Avoid the Presence of Third Parties During the Evaluation 162
Correlate the Mental Disorder with Occupational Impairment 163
Assess Categories of Function 163
Seek Descriptions and Clear Examples of Impairment 163
Correlate the Requirements of the Evaluee’s Job to the Claimed Impairments 166
Compare and Correlate Functional History with Current Level of Impairment 166
Use Rating Scales Whenever Appropriate or Requested 167
Consider the Effects of Medical Illnesses and Medications 169
Utilize Psychological Testing When Indicated 170
Advise the Referral Source to Obtain Additional Opinions if Indicated 171
Consider Alternatives That Might Account for Claims of Impairment and Disability 172
Consider Alternative Explanations 172
Consider the Possibility of Malingering 173
Formulate Well-Reasoned Opinions Supported by Data 176
Write a Comprehensive Report That Addresses Referral Questions 177
Opinions 178
Multiaxial Diagnosis, Including GAF Score 179
Impairments in Work Function and the Relationship to Psychiatric Symptoms 179
Causation 179
Disability for One Type of Work, Evaluee’s Type of Work, or Any Type of Work 180
Current and Past Treatment, Its Adequacy, and Claimant’s Response 181
Treatment Recommendations, Including Recommendations for Medical Consultations or Psychological Testing 182
Prognosis 183
Motivation 183
Maximum Medical Improvement 183
Restrictions and Limitations 185
Malingering, Primary Gain, and Secondary Gain 185
Conclusion 186
7 The Maze of Disability Benefit Programs: Social Security Disability, Workers’ Compensation, and Private Disability Insurance 187
Introduction 187
Public Disability Insurance: The SSDI Program 188
SSDI Definitions and Process 189
The Process of Filing an SSDI Claim 190
Disability and Substantial Gainful Activity 190
Residual Functional Capacity 194
SSA’s Adjudication of SSDI Claims 195
The Role of Mental Health Professionals in SSDI Disability Claims 197
Treatment Providers and SSDI Claims 198
Consultative Examinations 200
Other Roles for Mental Health Professionals in SSDI Claims 201
Additional Guidelines for Conducting SSA Disability Evaluations 202
Workers’ Compensation Programs 202
The Basic Components of Workers’ Compensation Legislation 229
Differences Between Workers’ Compensation, Tort Law, and SSDI 204
Causation in Workers Compensation: No Fault Does Not Mean No Conflict 205
The Decision-Making Process in Workers’ Compensation Claims 205
Evidentiary Issues in Worker’s Compensation Claims 206
Definition of Disability in Worker’s Compensation Cases 207
Psychiatric Claims in Workers’ Compensation 208
Physical-Mental and Mental-Physical Injury Claims 208
Mental-Mental Injury Claims 209
Mental Health Evaluations in Workers’ Compensation Claims 210
Subcategories of Disability in Workers’ Compensation Claims 212
Aggravation or Apportionment of Preexisting Injury 213
Dual Roles in Worker’s Compensation Claims 214
Additional Guidelines for Conducting Workers’ Compensation Evaluations 216
Private Disability Insurance Claims 216
Private Disability Insurance: Benefits by Contract and Differences from Other Disability Benefits Programs 219
Legal Disability vs Factual Disability 220
Private Disability Insurance: Definitions and Terms 221
Disability: Total or Partial 221
Permanent vs. Temporary Disability 223
Disability: Own Occupation or Any Occupation 223
Mental Health Professionals and Private Disability Insurance Claims 225
Communicating Findings in Private Disability Insurance Evaluations 229
Dual Roles and Ethical Conflicts in Private Disability Insurance Evaluations 230
Additional Guidelines for Conducting Workers’ Compensation Evaluations 231
Conclusion 232
8 Working with Disabilities: The Americans with Disabilities Act 233
Introduction 233
The ADA in Action: How Does it Work? 234
Enforcement of the ADA 237
Mental Disabilities: The ADA and Employment 239
Referrals for ADA Mental Health Evaluations 240
Mental Health Professionals: Understanding the ADA 243
The ADA’s Statutory Definitions and Relevant Terms 243
Disability 243
Mental Disorder 244
Substantial Limitation of a Major Life Activity 247
Essential Job Functions 248
Reasonable Accommodation 249
Direct Threat or Risk of Danger 256
Risk Assessment: Treatment Providers vs. Forensic Examiners 257
Conclusion 258
Additional Guidelines for Conducting ADA Evaluations 259
9 Fitness-for-Duty Evaluations 260
Introduction 260
The Public’s Stake in FFD Decisions 262
The Legal Basis for FFD Examinations 263
Forced FFD Evaluations 267
FFD Evaluations and the ADA 267
Referral Issues 269
Triaging the FFD Referral 269
Qualifications for Conducting FFD Evaluations 270
Constraints on FFD Evaluations 270
Confidentiality 271
Consent 273
Role Clarification and Dual-Agency Issues 273
Conducting a Mental Health FFD Evaluation 275
Documentation 275
The FFD Interview 278
Dissimulation 280
Opinions 280
Degree of Certainty of Opinions 284
Return-to-Work Evaluations 285
Conclusion 286
Additional Guidelines for Conducting FFD Evaluations 286
Key Points in Conducting RTW Evaluations 287
Conclusion 288
Appendix A: The American Academy of Psychiatry and the Law: Ethics Guidelines for the Practice of Forensic Psychiatry, 2005 291
I. Preamble 291
Commentary 291
II. Confidentiality 292
Commentary 292
III. Consent 292
Commentary 293
IV. Honesty and Striving for Objectivity 293
Commentary 293
V. Qualifications 295
Commentary 295
VI. Procedures for Handling Complaints of Unethical Conduct 295
Commentary 295
Appendix B:The American Psychology-Law Society, Committee on Ethical Guidelines of Division 41 of the American Psychological Association and the American Academy of Forensic Psychology: Specialty Guidelines for Forensic Psychologists (1991) 297
I. Purpose and Scope 305
A. Purpose 298
B. Scope 298
C. Related Standards 299
II. Responsibility 299
III. Competence 299
IV. Relationships 300
V. Confidentiality and Privilege 302
VI. Methods and Procedures 302
VII. Public and Professional Communications 305
Appendix C:The Disability Report 308
References 311
Legal Citations 329
Cases 329
Statutes, Regulations, Model Acts 332
Rules 333
Index 334