Employment Issues

Employment issues, including worker's compensation and disability law, supervisory negligence, workplace discrimination, and wrongful termination can benefit from a forensic neuropsychiatric evaluation. Such an evaluation begins with a review and analysis of medical records, depositions and supporting documents. Initial working hypotheses may be supplemented by a forensic psychiatric examination of the plaintiff or the insured. This process can result in the formulation of an expert opinion as to the validity, nature, and extent of the claims at issue. Areas of interest include risk factors for misdiagnosis, misattribution, malingering, or motivation for secondary gain.

Accommodation Claims

Forensic neuropsychiatric evaluation regarding reasonable accommodation claims and causation of emotional harm is among Dr. Bursztajn's areas of special forensic interest. In this regard he has been retained by both plaintiff's and defense counsel, and has advised the judiciary and psychiatrists in training. Dr. Bursztajn has served as an examining expert and also as an expert on the methodological reliability of employment-related forensic opinion formulation by mental health experts (i.e., as an "expert on experts"). The issue of misattribution of causation in employment-related cases (e.g., as when the job becomes a passive and convenient focus for misattribution of causation of deep-rooted problems in a person's life) is of parallel special interest.

Beginning with his internship at Harvard Medical School at Children's Hospital in 1978, as acting director of the Metropolitan State Hospital Concord Unit in 1979, and during the course of his residency in psychiatry at the Massachusetts Mental Health Center (1979-1982), Dr. Bursztajn has a special interest in the treatment and forensic evaluation of developmentally related impairments. These have included communication-related impairments such as deafness -e.g., evaluating reasonable accommodations making health care accessible for deaf patients and selecting jobs which, with reasonable accommodation, could be made suitable for deaf employees. Academically, Dr. Bursztajn teaches The Harvard Medical School Intensive Diagnostic Interviewing course for psychiatrists preparing for the American Board of Psychiatry and Neurology certification examination, with a special emphasis on learning to observe and report nonverbal communication by the mentally and developmentally communication-impaired patient.

Right to Privacy

Employment at Will Protection in NY May Extend to Physicians

Sheila E. Horn, Plaintiff, v. New York Times, Defendant. In Horn, the New York Supreme Court applied, to an entirely different profession, the same justification that enabled the Court of Appeals to create the narrow exception to the employment-at-will doctrine for the legal profession. The crucial factor in Horn was not the profession itself, but whether there was an overriding rule or ethical standard that serves to protect both the employee and innocent third parties. Accordingly, before disciplining professionals working under ethical or legal standards, employers may wish to look carefully at the type of discipline or reason for discharge.

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act shields disabled persons from discrimination in the workplace. Claims of having a protected disability status and allegations of disability related discrimination in hiring, firing, or workplace practices must be supportable. A forensic neuropsychiatric evaluation and investigation into the discrimination claim can help to determine whether the alleged discrimination actually arose from the employee's claimed disability.

Disability & Workers' Compensation

Questionable claims of pain or impairment are sometimes presented in workers' compensation or disability laws. An expert in medical decision analysis and forensic neuropsychiatry can evaluate the following factors: that a treating physician maintained established reliability standards in the diagnostic process; emotional factors that could complicate physical illness have been addressed; and the ruling out of common psychiatric mimics of physical illness (e.g., Somatization, Conversion Disorders, substance abuse, and personality traits such as malingering, exaggeration, misattribution of pain and impairment).

Chronic Pain

Can Employers' Long Term Disability For People With Mental Disabilities Be Limited?

U.S. Supreme Court last month let stand a federal appeals court decision allowing health plans to limit long-term disability payments for people with mental disabilities but not physical disabilities. Parker v. Metropolitan Life Insurance and Schering-Plough Corp. [Mental Health Law Reporter, Feb. 1998: Vol. 16 No. 2, p.9.]

Chronic pain can also occur either as a result of a preexisting psychiatric condition or a complicating psychiatric comorbidity to physical injury. In the course of litigation, it always need to be forensically evaluated to rule out misattribution, exaggeration, or secondary gain.


Sexual Discrimination & Harassment

The Supreme Court decisions in Oncale which focused on "reasonableness" of perception, and employer and employee response, have expanded the role of a forensic psychiatric consultation and evaluation in both preventing and responding to sexual harassment claims.

Both true and false allegations of sexual harassment are made in the workplace. The presence or absence of psychological trauma is not enough to prove sexual harassment. False memories, desire for attention or revenge, and later reconsideration of consent can all lead to false allegations. At the same time, true allegations may not initially be considered credible. While a treating psychiatrist's goal is to help alleviate the presenting emotional and psychological pain and trauma without necessarily determining the facts of the incident, a forensic psychiatrist is trained to objectively evaluate claims such as that of sexual harassment. Such an evaluation yields more accurate testimony regarding the grounds on which the claim of sexual harassment is made, and potential emotional and physical damages.

"In 1991 the Equal Employment Opportunity Commission (EEOC), the federal agency that deals with such complaints, handled 6,127 of them (sexual harassment cases) and settled cases worth $7.7m in damages to victims. In 1997, it handled 15,889 complaints and won $49.4m for victims." The Economist, February 14, 1998, p. 25

Among the phenomena noted when there is a valid or even pending accusation of sexual abuse or harassment against an authority figure, is the me too phenomena. Under these circumstances individual histories have to be carefully evaluated to rule out Hystories. (following a book by that title by Elaine Showalter, Columbia University Press: New York: 1997). Under these circumstances one has to avoid the misleading heuristics of "where there is smoke there is fire." If one accusation is true each accusation must be true and multiple accusations by friends of one figure are the gold standard for proof (i.e. The Salem Witchcraft Trials). There are a variety of Personality Traits ranging from Narcissistic or Borderline to Hysteronic or Dependent which are risk factors for Me tooitis.

See also:

The cases below bring up issues and questions which an expert can address in the course of a forensic psychiatric evaluation.

Are there any conditions which may have limited or influenced the reasonableness of employee perception of harassment in the specific organizational context?

Did the employer take reasonable steps to prevent sexual harassment?
Did the employee take reasonable steps to prevent sexual harassment?
Did the employer take reasonable steps to correct (i. e. post-vention)?
Did the employee take reasonable steps to complain about sexual harassment?

Additional Articles and Cases of interest:

Genetic Discrimination

Recent Supreme Court Decision Highlights

Recommended Reading:

Dr. Bursztajn has an active patient care practice and consults to physicians, institutions, judges, and plaintiff and defense counsel nationally.