Law Times

Page 10 October 7, 2013 Law Times • FOCUS DSM-5 leaves employers bracing for disability claims BY MICHAEL McKIERNAN For Law Times E mployers are preparing themselves for a spike in disability insurance premiums after the reworked Diagnostic and Statistical Manual of Mental Disorders delivered a slew of new diagnoses. The American Psychiatric Association formally adopted the DSM-5, the first major revision of the text in almost two decades, in May after years of consultations and controversy. The manual often arises in medical reports to insurers and bodies such as the Workplace Safety and Insurance Board when making determinations about the validity of claims for psychological injury. Daniel Pugen, a management-side labour and employment lawyer and partner with McCarthy Tétrault LLP in Toronto, says his clients fear a wave what's to stop them from reof disability claims after the lying on some of these new updated manual recognized disorders for the purposes about 15 new disorders. of getting certain workplace "If there are more condibenefits?" tions that are now disabiliMost of the changes to the ties, you have to assume that manual involved technical more employees are going to revisions to symptoms and take advantage of that and checklists for existing condithe costs associated with tions. They also removed or dealing with them, whether consolidated some diagnothat's in accommodation or ses, such as the new autism group insurance, are going to spectrum disorder that enincrease," says Pugen. compasses four previously He says some of the headseparate conditions under line-grabbing additions to one banner. the manual, such as caffeine Other new additions inwithdrawal and hoarding clude cannabis withdrawal disorder, have enhanced emand skin-picking disorder, ployers' sense that the scope while changes to the criteria of mental disorders has widened significantly in the 'A lot of these are conditions that in day-to-day life for a diagnosis of attention DSM-5 compared with its we might not think of as mental disorders,' says deficit hyperactivity disorder will make it easier to attach 1994 predecessor. Daniel Pugen. the label to patients in adult "A lot of these are condilife. Another contentious altions that in day-to-day life but they see more conditions we might not think of as men- coming in. The main concern is teration involved the removal of tal disorders," says Pugen. "My that that will push costs up. . . . the "bereavement exclusion" that clients are not medical experts For clever employees or unions, potentially opens the way for a Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. Need more information? » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years Contact us at 1 800 387 1686 or baxterstructures.com » No fee to you or your clients Baxter_LT_Oct7_13.indd 1 www.lawtimesnews.com 13-10-01 4:03 PM diagnosis of a major depressive disorder in someone experiencing depressive symptoms for more than two weeks following the death of a loved one. And it's not just employers who fear the manual goes too far in embracing new and expanded definitions for disorders as controversy is rife within the psychiatric community about the latest DSM text. Allen Frances, who chaired the association's DSM-4 task force, was one of the louder dissenting voices. He called the DSM-5's ratification the "saddest moment" of his 45-year career in his regular Psychology Today magazine column. In it, he urged his colleagues to ignore large chunks of the updated manual, including the removal of the bereavement exclusion that he claimed trivializes normal grief. "My best advice to clinicians, to the press, and to the general public — be skeptical and don't follow DSM-5 blindly down a road likely to lead to massive over-diagnosis and harmful over-medication," wrote Frances. "The history of psychiatry is littered with fad diagnoses that in retrospect did far more harm than good. Yesterday's APA approval makes it likely that DSM-5 will start a half or dozen or more new fads which will be detrimental to the misdiagnosed individuals and costly to our society." Krista Prockiw, an insurance lawyer with Alexander Holburn Beaudin + Lang LLP in Vancouver, says in personal injury cases, courts have generally accepted the use of the DSM-4 in an expert's opinion on whether a plaintiff has sustained a psychological injury. But she says the divisiveness of the argument within the medical profession over DSM-5 could open a new line of attack when challenging reports. "This current controversy has highlighted that the DSM is not to be considered a bible but rather a tool to be used, among others, in the diagnosis of a mental disorder," she says. "Accordingly, counsel may be able to challenge the validity or weight to be given to an expert report which relies solely upon the DSM-5 as a checklist for the diagnosis of a mental disorder." In employment matters, Pugen says his clients may find it more fruitful to face up to and accept the new DSM-5 despite their reservations rather than trying to take part in the controversy in its adoption. "Although the debates amongst the academics are interesting, in terms of the WSIB and insurance providers, I think they will go with what the new manual says. It is the authoritative text and widely accepted. There was a really long consultation process that went into creating the DSM-5 and I don't think the WSIB sees it as its job to wade in on that," he says. LT

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