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Changes to diagnostic manual will affect litigation

Changes in the latest edition of the American Psychiatric Association’s diagnostic manual are likely to have an effect in the courtroom.

The fifth iteration of the Diagnostic and Statistical Manual of Mental Disorders — better known as DSM-5 — updated existed diagnoses, including a broadened definition of post-traumatic stress disorder; added new diagnoses; and eliminated disorders that appeared in previous editions, like Asperger’s syndrome.

Lawyers, particularly employment and personal injury attorneys, should familiarize themselves with the changes, the first since 1994.

The DSM-5 “is likely to lead to more conditions being covered as disabilities under the [Americans with Disabilities Act] because it expanded the number of diagnosable mental disorders,” said James J. McDonald Jr., a management-side employment attorney in the Irvine, Calif., office of Fisher & Phillips.

In personal injury cases, Sommers Schwartz PC partner Richard L. Groffsky of Southfield said both sides of the bar could benefit from the changes. The inclusion of new diagnoses may support a claim for “an injury that didn’t have a name before,” he said, with DSM-5 adding credibility to a plaintiff’s claim.

Alternatively, the same scenario could provide the defense with the argument that a party had a prior existing condition, which just hadn’t been recognized until now, Groffsky said.

Sylvan Schaffer, a clinical forensic psychologist and attorney at Jackson Lewis in New York, agreed.

Schaffer worked on a case where an employee alleged racial discrimination by his employer. But when Schaffer reviewed the psychological data, he found that the employee had a paranoid personality.

“Not only was his employer biased, but he believed his friends, his doctor, everyone was biased,” Schaffer said. “That explained why he was having problems at work.”

He advised to “[l]ook beyond the acute for a pattern or some underlying cause” that may precede the legal action.

Fact-specific scenarios

Previously, a diagnosis of post-traumatic stress disorder, or PTSD, required that the individual experience or witness first-hand the traumatic event. Now, a husband who receives a phone call that his wife was killed in a car accident, or a sister who learns from a commanding officer that her brother was killed in battle, can receive a diagnosis of PTSD.

Other changes, like the recognition of new psychiatric conditions and more detailed diagnostic criteria, could provide support and credibility for plaintiffs diagnosed with the conditions, Groffsky noted. Being able to say that a client has a recognized psychiatric condition will certainly benefit a plaintiff’s case.

On the flip side, PI defendants may be able to point to one of the new conditions to argue that the plaintiff’s alleged claims result from a pre-existing injury, Groffsky said. And given the expansion of the manual, a plaintiff who cannot pinpoint his condition in DSM-5 will face a real challenge.

“A defendant could say, ‘Wow, so even with these bigger, broader, more inclusive definitions of psychiatric disorders, you still don’t fit?’ Which will strengthen [the defense’s] claim that the plaintiff doesn’t really have a condition,” Groffsky said.

Other advice for defendants: don’t roll over and accept a diagnosis, Schaffer said.

A big mistake that attorneys often make is to get a diagnosis of PTSD and then defend against it — without getting raw data like evaluation and therapy records. For example, when reviewing the notes from therapy sessions, a defense lawyer may find that a plaintiff who alleges she was traumatized by her employer spent the bulk of her time discussing how much she fights with her husband, Schaffer said.

The net result: the use of DSM-5 by PI attorneys “will be very fact-specific,” Groffsky predicted.

New diagnoses may challenge employers

While not all of the new diagnoses in DSM-5 are relevant to the workplace, McDonald highlighted two that may come up in the employment setting: social (pragmatic) communication disorder and mild neurocognitive disorder.

Essentially, an employee with social (pragmatic) communication disorder is extremely shy and “has difficulty in verbal and nonverbal communications, which affects the ability to interact socially or with co-workers in the workplace,” he explained.

The disorder may present a situation where an employee would require an accommodation or raise a challenge to an adverse employment action under the ADA where an employee receives a poor annual review or is demoted because of his inability to interact with others, for example.

Mild neurocognitive disorder describes a modest decline in learning, attention or memory, which is not so severe as to prevent a person from living independently, but in the words of DSM-5, may require “greater effort, compensatory strategies, or accommodation.”

Significantly, the Age Discrimination and Employment Act, which protects workers older than age 40 from workplace-related discrimination, does not require employers to accommodate the effects of aging, McDonald noted.

But “with the addition of this new diagnosis, I wouldn’t be surprised to see older employees diagnosed with this condition argue that they are entitled to accommodations,” he said. “I’m not quite sure how an employer is going to accommodate forgetfulness and attention to detail, so we will have to see where this goes.”

The PTSD changes also may have an impact in the workplace.

The broadened definition “is not so helpful for employers” by allowing third-party notice as opposed to personal experience, as well as no longer requiring that the individual experience “fear, helplessness or horror” at the time of the event. These changes “will lead to more diagnoses of PTSD that may require accommodations for an employee,” McDonald said.

However, another change could have a positive impact for employers facing discrimination and harassment litigation. The PTSD diagnosis in DSM-4 required that the traumatic event involve exposure to “actual or threatened death or serious injury, or a threat to the physical integrity of self or others.”

“That was not particularly clear and led to expert witness testimony because it was very subjective,” McDonald said. Some employees contended their “physical integrity” was seriously threatened by being terminated or sexually harassed, for example. But DSM-5 “tightened” the definition to read “actual or threatened death, serious injury, or sexual violence.”

“So just being discriminated against or called ugly names by the boss is not a valid basis for PTSD,” McDonald said.

To deal with the changes, employers must provide training on the new DSM-5, McDonald said.

“The employee responsible for handling accommodations has to be well-trained on what constitutes a disability,” including the new diagnoses found in the revised manual.

In addition, “employers should really focus on the interactive process for reasonable accommodations,” he added, soliciting suggestions from employees about what might work.

“Most of the litigation I am seeing today occurs because the employee claims the interactive process broke down. Make sure the process is well documented, with email or letter confirmations sent at each step,” McDonald suggested.

“Focus on the restrictions and not the conditions,” he added. “What’s really important from an ADA standpoint is not the diagnosis, but how it affects an employee’s ability to work.”

If an employee presents a diagnosis of mild neurocognitive disorder, for example, the employer should focus on gathering a clear understanding of what the employee’s work restrictions are, McDonald said.

“First get a statement from his physician indicating what the restrictions should be, if any, and then sit down and discuss with the employee whether and how he should be accommodated,” he said.


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