Emotional Harm Claims

Emotional harm claims are increasing in frequency and commonly constitute a substantial portion of the financial exposure in many contemporary insurance claims. Emotional harm claims often produce a bewildering array of esoteric jargon, diametrically opposed and seemingly unsupported medical opinions. However, there is hope. The Diagnostic and Statistical Manual of Mental Disorders(DSM-IV-TR) published by the American Psychiatric Association can help you understand emotional harm claims and is available at most bookstores.

The U.S. Surgeon General's most recent estimate is that about 20 percent of the adult U.S. population is afflicted by mental disorders during a given year. Research conducted for the DSM-IV-TR found that for a 1-year period, 22 to 23 percent of the U.S. adult population has diagnosable mental disorders. The Surgeon General's lower number was derived from the finding that 19 percent of the adult U.S. population have a mental disorder alone, 3 percent have both mental and addictive disorders, and 6 percent have addictive disorders alone. His analysis further concluded that about 28 to 30 percent of the population has either a mental or addictive disorder. Given these numbers, it is not surprising that the National Institute for Mental Health found that mental disorders are the leading cause of disability in the U.S. and Canada for persons 15-44 years old. It also means many claimants were mentally ill before the loss that constitutes the focus of their claim.

A claimant can allege an emotional harm solely by his or her own testimony. There is no legal requirement of a proximally caused mental disorder, a formal diagnosis, or even medical evidence, but most claims contain all of those elements. Corroborating testimony by the claimant's coworkers, supervisors, family, friends, and other persons with knowledge of the claimant's functioning before and after the date of loss is helpful. A medical diagnosis is, however, the strongest evidence of emotional harm and moves the claim from the realm of emotional distress to that of a mental disorder.

Once a mental disorder is alleged, then objective medical evidence is required. Usually, an emotional harm claim will include a diagnosis from the DSM-IV-TR. That's good news for the claims examiner because the manual provides extensive help in understanding mental disorders. For most mental disorders, the DSM-IV-TR provides:

• Features of the disorder
• Associated descriptive features and mental disorders
• Associated laboratory findings
• Specific culture, age, and gender features
• Course of the disorder
• Differential diagnoses
• Diagnostic criteria

A thorough understanding of the DSM-IV-TR section relevant to the claimant's alleged mental disorder is as critical to the claim's examiner as it is to the claimant's medical expert. For this reason the DSMIV-TR should be accessible to everyone who examines claims of emotional harm.

Medical experts commonly use a DSM-IV-TR diagnostic label without any attempt to assess the specific signs and symptoms required by the manual's diagnostic criteria. All of the DSM-IV-TR diagnostic criteria must be met for a valid diagnosis.

Descriptive phrases and allegations of causality are often presented as if they are diagnoses taken from the official nomenclature of the DSM-IV-TR. These will appear as "Depression secondary to sexual harassment" or "PTSD as a result of motor vehicle accident." These are not DSM-IV-TR diagnoses. They lack the empirical evidence supporting the official official diagnoses and are not published or accepted by the relevant scientific peer community. It is up to the user of these subjective and idiosyncratic diagnoses to demonstrate their scientific validity and when that cannot be done, the diagnoses may not survive a challenge as to their admissibility as medical or scientific evidence.

The term "depression" does not exist as a diagnosable mental disorder in the DSMIV-TR. What laypersons commonly call depression is referred to as a "Mood Disorder" in the DSM system. Twenty different mood disorders are listed and a depressed mood is a symptom or associated feature in over 200 mentaland physical disorders.

A claimant alleging emotional harm is often experiencing mental "distress" rather than a mental disorder. Distinguishing these two concepts is not merely a word game. A mental disorder is defined by published diagnostic criteria and marked by a cluster of signs and symptoms that, when taken together, impair the claimant's ability to function in their educational or occupational roles. Mental distress can be any combination of signs and symptoms regardless of whether or not the result is functional impairment.

A Disorder is not a Disability

It is common to find claims in which "severe" mental disorder is diagnosed yet very few signs and symptoms of the disorder are documented in the claimant's medical records. Often, the claimant's medical expert has not assessed their social and occupational functioning. Instead, many appear to assume the mere presence of the diagnosis implies that the claimant is disabled. Rarely does a medical expert specifically explain how the claimant's signs and symptoms impair their workrelated behaviors.

The claims examiner should look specifically for statements regarding the claimant's:

• Concentration and Persistence-sustain an ordinary workday and work week routine without special supervision
• Pace and Endurance-perform at a consistent pace without an unreasonable number and length of rests, complete a workday without interruption from psychologically-based symptoms, etc.
• Social Interaction-ask questions, request assistance, accept instructions, maintain basic standards of behavior and cleanliness
• Adaptation- tolerate unruly, demanding, or disagreeable customers, coworkers, and supervisors; be aware of normal hazards and take precautions

Do not assume the mere presence of a mental disorder excludes the claimant's continued employment. Most people with chronic mental and physical disorders are able to maintain their jobs. Continuing employment is a key component of effective mental health treatment because work is central to adult identity and provides structure and purpose to our days. Some mentally ill claimants will require reasonable accommodations in the workplace and those are sometimes required by the Americans with Disabilities Act. In nearly every case, continued employment is critical to the health of the claimant and the economical resolution of the claim for the insurer.

Premorbid mental disorders, many of which are recurrent, are common. Distinguish between mental distress, a mental disorder, and a mental disability. Use the DSM-IV-TR to ensure there is written evidence that the diagnostic criteria for the alleged mental disorder have been met. Do not equate a mental disorder with a mental disability. Instead, look for evidence of impaired concentration, persistence, pace, endurance, social interaction, and adaptive behavior that would preclude work. This process will ensure an emotional harm claim is substantiated by written evidence found in the claimant's medical records that satisfies scientifically established diagnostic criteria rather than subjective speculation.

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The DSM-IV-TR provides a common language and conceptualization of mental disorders. It is the official diagnostic criteria and nomenclature used by clinicians and researchers in psychiatry, psychology, and other related fields. Consultations between developers of the DMS-IV-TR and the World Health Organization ensured compatibility with the International Classification of Disorders, 10th Edition (ICD-10). When a claimant alleges Posttraumatic Stress Disorder, the DSM-IV-TR tells you specifically what that must mean and supplies the diagnostic criteria that must be met.

Any diagnosis not found in the DSM-IV-TR or the ICD-10, may not be legally admissible as medical evidence. The diagnostic criteria in the DSM-IVTR have an extensive empirical foundation as determined by 13 work groups, each of which has responsibility for a section of the manual. The decisions of the work groups reflect the breadth of available evidence and opinion from members who were selected for their wide range of perspectives and experience and who were instructed to participate as consensus scholars and not advocates of previously held views.

The work groups conducted a systematic and comprehensive review of the relevant scientific literature. Input was solicited, especially from those persons likely to be critical of the conclusions of the review. When the review revealed that evidence was lacking or conflicting, data reanalysis and field trials were used to help in making final decisions. Extensive field trials at more than 70 sites and utilizing more than 6,000 subjects helped bridge the boundary between research and practice by collecting information on the reliability and performance characteristics of each criteria set as a whole, as well as the specific items within each criteria set. No other nomenclature of mental disorders is better grounded in empirical evidence than the DSM-IV.