Diagnosis Or Disability

Compensation is only awarded if damage can actually be demonstrated (Epstein, 1995). Compensation is usually awarded on the basis of the degree of impairment that impedes the claimant's capacity to function in a range of domains. A common mistake, in compensation-related assessments, involves the distinction between diagnosis and impairment. It is important that the assessment of psychological injury goes beyond the simple level of diagnostic definitions and addresses how psychological injury is adversely affecting the individual. For example, an individual may not suffer sufficient symptoms to meet a particular diagnostic threshold but may, nonetheless, display marked impairment as a result of the psychological injury. Alternatively, although an individual may suffer a range of PTSD symptoms, the individual may be able to function very ably.

Establishing the level of damage secondary to psychological injury is not simple. In defining damages, different jurisdictions distinguish between compensation for direct results of the injury (e.g. lost wages, medical bills), losses that can be estimated in financial terms (e.g. financial remuneration for physical injury), and future damages (e.g. future loss of wages, medical wages). Whereas the loss of a limb can be quantified objectively, the quantification of damages secondary to psychological injury is difficult. Many jurisdictions refer to pain and suffering as a non-pecuniary damage in recognition of its unquantifiable nature (Douglas et al., 1999). A major issue confronting the field of compensation assessment is the development of reliable means to index psychological suffering. Whereas one can assess functioning, in terms of ability to work, perform family duties, and engage in leisure activities, measuring suffering as a result of PTSD or other psychiatric condition can be difficult. To achieve a defensible conclusion regarding impairment, one should use the claimant's prior level of functioning in occupational, academic, interpersonal, leisure and other domains as the baseline against which any impairment is to be judged. The evaluation of prior and current functioning should rely, to a large extent, on objective and documented evidence (e.g. work record, academic performance, etc.). It would be difficult to argue that marked suffering is occurring in the absence of any objective indices reflecting increased suffering since the injury.

One of the major changes associated with the influence of the Daubert decision was that courts were not limited to the general acceptance of prevailing views, as defined by Frye v. United States (1923, US S.Ct). Long-held opinions about matters can be challenged if appropriate scientific evidence is presented to the court. This is a critical development in the domain of PTSD, where many traditional views can be effectively challenged by recent evidence. For example, it has often been argued that PTSD cannot develop where the individual sustained a traumatic brain injury and lost consciousness. This position has been argued on the grounds that the loss of consciousness precludes encoding of the traumatic experience, and this precludes development of PTSD (Sbordone and Liter, 1995). In contrast, recent studies have demonstrated that PTSD symptoms can develop despite impaired consciousness as a result of brain injury (Bryant, 2001; Bryant et al., 2000). Through integration of one's assessment of the claimant with relevant research findings, the psychologist can effectively counter established views by mounting a strong case that is based in sound empirical research. When courts are weighing the evidence of different experts, the psychologist who offers their opinion on the basis of their professional experience will typically be regarded with less credibility than the psychologist who provides substantive research findings to support the opinion.

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