Tuesday, December 20, 2011

NH Case Illustrates Legal Fiction in Causation

In his book, Stabbed In the Back: Confronting Back Pain in an Overtreated Society, Nortin Hadler MD argues that much of what we consider an "injury" in our health care and workers' compensation systems are not really injuries.

Dr. Hadler's book specifically addresses regional back pain as a condition that has gone from a normal experience of the human body, the product of general aging for the most part, to an "injury" providing substance to a grand medical sub-industry attempting to treat something with very limited success, if any at all, from a statistical and scientific standpoint.

What Dr. Hadler bemoans is how the laws and legal systems in the United States turn what otherwise would not be medically an injury into a condition that not only increases medical costs but disability. The import of Dr. Hadler's work is that society has essentially created injuries where none exist.

Much of what Dr. Hadler writes about is the product of the law, whether statutorily expressed or interpreted through cases - the point is that we legally recognize an injury (or the inverse, DON'T recognize an injury) other than the fact that the law says so with no underlying medical basis.

Essentially, Dr. Hadler points to confusion on causation. There is medical causation, and then there is legal causation.

A condition may have a basis in medical science, but not be recognized for legal purposes, which is generally tied to some system of indemnity and/or reimbursement for expense.

A New Hampshire case that was reported this morning in WorkCompCentral News is a perfect example of why physicians have a difficult time understanding how the law impacts what is, or isn't an injury.

The Supreme Court of New Hampshire decided that the Legislature intended to exclude a former business owner's depression from the list of compensable injuries, in the case of In Re Appeal of Letellier.

In the months before the business closed, Letellier saw a nurse at Concord Psychiatric Associates because of stress. He was diagnosed with major depression and hypertension, and filed a workers' compensation claim with Chartis Insurance for mental stress and severe depression.

The state's Compensation Appeals Board (CAB) awarded Letellier reimbursement for medical bills and expenses, but did not award indemnity benefits. Both parties appealed, with Letellier arguing for indemnity benefits and Chartis contending that the injury was not compensable at all.

The state Supreme Court noted that while major depression arising from work-related stress can be compensable, state law specifically exempts mental injuries caused by "any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action, taken in good faith by an employer." In other words, the statutory language bars compensation for mental injuries caused by good faith personnel actions.

"Like the listed exclusions, the possibility of a business failure is a normal condition of employment," the court wrote. "It, too, is often precipitated by poor company performance or general economic conditions. A business failure is indistinguishable from the specifically enumerated exclusions. Viewing the plain meaning of the phrase 'any similar action' in light of this fact compels us to conclude that the phrase encompasses a business failure."

To add to a physician's confusion over causation, even the law can't agree sometimes! In this New Hampshire case, two of the five justices on the court's panel dissented.

Chief Justice Linda Stewart Dalianis wrote that the statute only excludes "mental injuries that result from a good faith personnel action." She explained that even if the Legislature did not intend to allow claims such as Letellier's, the statute's actual language appears to render his claim compensable.

"Moreover, I believe that because of our obligation to construe the Workers' Compensation Law liberally to give the broadest reasonable effect to its remedial purpose, we must interpret the statutory exclusion at issue narrowly," Dalianis wrote. "Thus, I would hold that the claimant's cumulative occupational stress and resulting depression, caused by the failure of his business, do not fall within the statutory exclusion from the definition of 'injury.'"

When I lecture to physicians, I tell them that many things which they see medically as measurable science is described legally in fictional terms. I think this case illustrates that point.workers compensation, work comp, injured worker 

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