SCOPE OF PRACTICE ISSUES IN DIAGNOSIS AND EVALUATION
The Appeals Panel has held that a chiropractor may assign impairment for a mental trauma injury such as post-traumatic stress disorder.[46]Recent changes to the Labor Code affecting assignment of designated doctors warrant a visit to this area of the law to lay out some potential pitfalls for claimants. The expansion of designated doctor roles to include chiropractors once again on a widespread basis, in addition to the rise in need for alternative certifications (typically by chiropractors), raise the issue of how psychological conditions should be handled across the disciplines.
First, a look at licensed professional counselors. A licensed professional counselor is not a doctor, cannot be a treating doctor, and cannot assign impairment. But is the opinion of a counselor evidence?
The statute provides that a licensed professional counselor may perform:
the assessment, evaluation, and treatment of a person with a mental, emotional, or behavioral disorder.[47]
It defines assessment as follows:
"Assessment" means the selection, administration, scoring, and interpretation of an instrument designed to assess an individual's aptitudes, attitudes, abilities, achievements, interests, personal characteristics, disabilities, and mental, emotional, and behavioral disorders, and the use of methods and techniques for understanding human behavior that may include the evaluation, assessment, and treatment by counseling methods, techniques, and procedures for mental and emotional disorders, does not include the use of standardized projective techniques or permit the diagnosis of a physical condition or disorder.
So the statute uses the term "assess" rather than "diagnose," but the distinction appears slight, since it is contrasted not with diagnosis of mental, emotional and behavioral disorders, but "diagnosis of a physical condition or disorder." The legislature appears to be making the point that licensed professional counselors cannot range beyond the mental and emotional aspects of any person's health condition, not that they are precluded from determining the existence and nature of mental and emotional conditions.
Chiropractors are authorized, as of 1989, to
use (1) "objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body" and (2) "adjustment, manipulation, or other procedures in order to improve subluxation or the biomechanics of the musculoskeletal system."
In recent litigation, this was challenged by the Texas Medical Association as a violation of the Texas Constitution's provision limiting the practice of medicine. The TMA was, in part, challenging whether chiropractors could (in part) diagnose anything without violating the Texas constitution. The Austin Court of Appeals found that chiropractors may diagnose within their limited field.[49] Although not litigated, their ability to do impairment ratings should be secure with this, but it would be perilous to have any chiropractor certify impairment without relying solely upon psychiatric evidence produced by another provider.
This would seem to be a requirement for chiropractors-- to rely on outside medical expert opinion and evidence to support an assignment of impairment. The chiropractor could not, on his own, diagnose and assign impairment for the mental trauma injury. This would violate relevant scope of practice limitations. It would appear a chiropractor could not truly evaluate the underlying data, either, and should rely on explicit findings by a qualified expert as to the appropriate level of impairment, and only then exercise the administrative function of formally certifying a rating.
A psychologist is not a doctor under the Workers' Compensation Act, cannot be a treating doctor, and cannot assign an impairment rating. But a psychologist's work:
addresses normal behavior and involves evaluating, preventing, and remediating psychological, emotional, mental, interpersonal, learning, and behavioral disorders of individuals or groups, as well as the psychological disorders that accompany medical problems, organizational structures, stress, and health . . .[50]
This would be consistent with a psychologist providing expert opinion on causation and the existence of impairment, though not performing the rating itself. “Evaluation” would include determination of the nature and etiology of psychological disorders. The Appeals Panel has confirmed this:
We have held, however, that the reports of a clinical psychologist are medical evidence,
and such reports have been considered in establishing causation of a claimant’s
psychological condition.
- CONCLUSION
Mental trauma claims in the workers' compensation system create opportunities-- for claimants to learn how to cope with disability and pain, and ultimately to recover. They also create a means of maximizing the effectiveness of medical care and the benefits available.
[1] Bailey vs. American General Ins. Co., 279 S.W.2d 315, 318 (Tex. 1955).
[2] Tex. Lab. Code Sec. 408.006(a).
[3] Transportation Insurance Company v. Maksyn, 580 S.W.2d 334 (Tex. 1979)
[4] Tex. Lab. Code Sec. 408.006(b).
[5] Appeals Panel Decision No. 950168
.
[6] Appeals Panel Decision No. 980583r.
[7] Appeals Panel Decision No. 060176
r.
[8] Appeals Panel Decision No. 960026.
[9] Appeals Panel Decision No. 92189.
[10]Appeals Panel Decision No. 93867.
[11]Appeals Panel Decision No. 93844.
[12]Appeals Panel Decision No. 93137.
[13]Appeals Panel Decision No. 93364.
[14]Appeals Panel Decision No. 93747.
[15]Appeals Panel Decision No. 951073.
[16]Appeals Panel Decision No. 950788.
[17]Appeals Panel Decision No. 951777.
[18]See e.g. Krueger vs. Atascosa County, 04-04-00242-CV (Tex.App.--San Antonio 2004, no pet.) (dispatcher who sent officers to an ambush and heard them killed over radio, but remained at work afterwards, denied compensation for failure to file within one year).
[19]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[20]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[21]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[22]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[23]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 125.
[24]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. 126.
[25]Appeals Panel Decision No. 010321.
[26]Appeals Panel Decision No. 012398.
[27]GTE Southwest Inc. vs. Bruce, 98-0028 (Tex. 1999).
[28]Baker vs. Cook Children's Physician Network, 2-07-174-CV (Tex. App.--Fort Worth 2012).
[29]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. x.
[30]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xviii.
[31]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xi.
[32]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xiv.
[33]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xviii.
[34]F.A. Hayek, The Counter-Revolution of Science: Studies on the Abuse of Reason (1980).
[35]Joel Paris, MD; The Intelligent Clinician's Guide to the DSM-5® (2013), p. xiii.
[36]Vesecky vs. Vesecky, 94-0856 (Tex. 1996).
[37]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), p.300.
[38]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), p. 301-302.
[39]Appeals Panel Decision Manual, https://www.tdi.state.tx.us/wc/idr/apdmincome.html#I07.
[40]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), p. 295.
[41]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), p. 295.
[42]AMA Guides to the Evaluation of Permanent Impairment, 4thEd. (1993), pp.295-296.
[43]Tex. Lab. Code Sec. 408.161(a)(6).
[44]National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950, (Tex. App.—Texarkana 1998, no pet.)
[45]National Union Fire Insurance Company vs. Burnett, 06-97-00089-CV (Tex.App.--Texarkana 1998), no pet.
[46]Appeals Panel Decision No. 002946.
[47]Tex. Occ. Code. Sec. 503.003(b)(4)(c).
[48]Tex. Occ. Code Sec. 503.003(b)(1).
[49]Texas Board of Chiropractic Examiners, et al vs. Texas Medical Association, et al, 03-10-00673-CV (Tex.App.--Austin 2012).
[50]Tex. Occ. Code Sec. 501.003(c)(2).
[51]Appeals Panel Decision No. 030966.
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