IMPAIRMENT
and
Disability Claims
Sean Kaliski
Dept of Psychiatry, UCT
Forensic Mental Health Service, W Cape
FORENSIC PSYCHIATRY ASSESSMENTS:
1. Determine the specific juridical task that has to
be achieved
2. Perform a psychiatric assessment, and
determine the degree of impairment
3. Match step 2 to step 1
4. Comment on:
a. Response to previous interventions / treatments
b. Prognosis etc
5. Make a recommendation, but try not to decide
on the Ultimate Issues
DEFINITION OF CAPACITY
• Legal context: “a person’s ability to perform a
specific juristic act”
• Is a legal determination, often based on
medical evidence
• Two essential (cognitive) elements:
– Capacity to assimilate relevant facts
– Appreciation/understanding of his/her situation as
it relates to the facts
• FUNCTION-BASED CONCEPT
(South African Law Commission; 2004)
Capacity Fluctuates:
• Depends on the demands of the task
• Depends on mental state
• Depends on the support and assistance
available
• Is on a continuum from baseline (minimum) to
optimal abilities in individuals
• Therefore determination of the threshold
between Capacity and Incapacity can be
difficult to determine (matter of judgement)
The Sainsbury Centre for Mental Health; December 2007
A Recent Local sick note...
“J has been exposed to very poor working conditions which
have caused him tremendous stress and anxiety. Apart from
having to work under a junior manager (at a lower level
than he), his working hours have changed and he has
limited access to resources such as telephones, radios,
forearms, bulletproof vests and roadworthy vehicles.
He has made several appeals to the City Manager to make
his post redundant as there was no placement for him in the
City. His case has dragged on for more than 4 years with no
resolution.
In light of the above, it is evident that his persistent stressful
working conditions have impacted significantly on his
physical and mental health. It is therefore, strongly
recommended that he be medically boarded”
‘Amazingly, several had been receiving full
salary while off work on sick leave for 4
or more years, pending final adjudication
of their claims. Treatment during these
waiting periods typically consisted of
marking time with superficial symptom
suppression until the desired escape from
the noxious work environment was
granted..’
Work Phobia and sickness leave certificates
Ewart- Smith, M:African J Psych:2009:12(4);249-53
• ‘..during long periods of absence from work, the
psychiatrist issues a monthly off work certificate, a lot of
certificates when the patient has been off for years.
• Or treating psychiatrist issues certificate stating patient
must have 6 or 12 months off, and then medical boarding
• Internationally, anyone off for more than 6 months is
unlikely to return to the open labour market
• Sick benefits are generous, and therefore there is no
incentive to return to the ‘noxious workplace’.
• Prolonged sick leave is associated with 6 fold increase in
suicide, decrease in psychological and physical health,
breakdown in interpersonal relationships and financial
hardship, ie. Deterioration in quality of life
Work Phobia and sickness leave certificates
Ewart- Smith, M:African J Psych:2009:12(4);249-53
Employment Equity Act
• Companies have to employ people with
disabilities
• Companies have to accommodate people with
disabilities
• Paradoxically many employees who develop a
disability apply for boarding and pensions
IMPAIRMENT VS DISABLITY
• “Impairment is the alteration of normal functional
capacity due to a disease, is assessed by medical
means after a diagnosis has been established, and
appropriate and optimal treatment applied”
• “Disability is the alteration of capability to meet
the personal, social or occupational demands due
to an impairment, and is assessed by non-medical
means”
» (Coetzer, Emsley et al; 2001)
ASSESSMENT OF IMPAIRMENT
• Differentiate between impairment and incompetence
• Impairment should represent a change in the person’s
previous level of functioning
• Can be specific for the actual demands of that job, or
global (eg. Psychiatrist now not even fit to serve tea at
La Perla)
• Equivalence between ADL and demands of job
• Occupational Therapy evaluation is usually useful to
establish the precise deficits and to provide
recommendations for accommodating the employee
TREATMENT-RESISTANCE
• All accepted methods of treatment have failed
to produce an adequate response
• Each method has been given reasonable
period to be effective (about 8-12 weeks)
• The longer the overall period, the more
convincing: Two years is yardstick period for
most psychiatric disorders!
CONFOUNDERS THAT ARE NOT
ROUTINELY CONSIDERED !!
• Personality Disorder (or strong traits)
– Narcissistic, Dependent, Borderline, Avoidant
• Alcohol & Substance Abuse
• Disciplinary problems at work
– Often advised by HR to apply for boarding or else be
fired
• Person is just plain INCOMPETENT
• Sociopolitical factors
– Equity, Racism, perception that pension is better than
salary
• Treatment is inappropriate, excessive (eg.
Polypharmacy), enhances sick role
ETHICAL RULE:
• The treating doctor should not apply for
disability
• The treating physician should refer to a
colleague for this purpose, or advise the
employer / insurer that an non-involved
psychiatrist should assess and advise on
impairment, prognosis, and management.
A 33 yr Old Teacher
• Nababeep High school 1998:
– Had been working there for 2 years
– problems with colleagues bcs of integration of
race groups
– They questioned his qualifications
– Drives to CT to consult with well known
Boardiologist
– After 3 consultations psychiatrist recommends
boarding bcs of depression and anxiety
– Boarded in that year.
• No further consultations with psychiatrist, and
stops medication
• 1999 enrolls at Technikion to do mechanical
engineering, leaves course when wife injured in
MVA
• For next 6 years has own restaurant in Springbok
• Builds a shop: sells food
• Assists friend with his local newspaper
• Wants to work as teacher on contract, but wants
to be appointed
• Returns to Boardiologist in 2008 who issues
certificate that he has recovered from his illness
and is fit to return to teaching
Case: 39 yr old Medical Technologist
• 20 yrs of treatment for OCD
– Checking behaviour: takes half an hour to get of car, 1
hour to get to bed, checks windows, doors etc
repeatedly. Sleeps from exhaustion
– At work can only do one slide in about half an hour as
checks the case number and culture result over and
over and over and over and over and over
– Has had every antidepressant etc at heroic doses
– Deep Brain stimulation suggested, but medical aid
refuses as it is considered experimental procedure
• Treatment resistant and cannot work (& barely
living)
Recommendations:
•
Keep people at work, almost at all costs
•
If the pt’s major cause of distress / stress is due to
circumstances in the workplace
•
•
•
•
Refer to OT for job coaching / supported employment
Advise resignation, and possibly re-training
Do not give certificate for more than 1-2 weeks
If pt has a serious mental illness
–
–
–
–
Provide limited sick certificate – not longer than 1 month
Advise PILAR process for longer – independent psychiatrist.
Provide latter with information about course, treatment (and
response)
Assist in trying to return person to work when better
Only after at least 2 years of optimal treatment (unless has
serious illness that will deteriorate) advise assessment for
permanent disability