Monday, November 5, 2012

That's Just the Way It Is

I just finished up several days of lecturing and attending classes at the annual American Academy of Orthopedic Surgeons (AAOS) workers' compensation course.

Physicians that belong to AAOS and in particular who attend the workers' compensation course are very concerned with "doing the right thing," which in many cases means discerning between "real" injuries and those that have other motivations behind them. I perceived difficulty in the physician trained mind rationalizing between lack of objective indications of disability and the rewards (i.e. indemnity) system.

One big theme that came across in my discussions with these physicians is their frustration with workers' compensation rewarding people who, in their opinion, were not justified in claiming a disability, and much of my lecture is about the legal fiction of disability and other elements of the system that, to the scientific mind, don't make sense or can not be rationalized, like presumptions.

A part of my lecturing is about evidentiary standards and how that affects cases as well as the work the physicians are asked to perform. I review with the physicians substantial evidence, preponderance of the evidence and clear and convincing evidence standards.

Another part of my training involves enlightenment on basic politically motivated legislated exceptions or presumptions that various jurisdictions implement in their systems to suit different special interests.

Take for instance cancer presumptions applicable to firefighters or other public safety workers.

A recent Colorado case combining the concepts of evidence and presumptions serves as a good review, and would likely cause these doctors some consternation.

In City of Littleton v. Industrial Claim Appeals Office of the State of Colorado, No. 10CA1494, 11/01/2012, (published) Jeffrey J. Christ worked as a firefighter for the City of Littleton. In 2007, doctors diagnosed him with glioblastoma multiforme, a type of brain cancer. He underwent surgery and was treated with chemotherapy and radiation. Christ then sought workers' compensation benefits to cover his treatment.

An administrative law judge denied Christ's claim. Although the judge acknowledged that Christ's cancer was statutorily presumed to have arisen from his employment, the judge concluded Littleton had carried its burden proving Christ's cancer was "not caused by his occupational exposures."

The Industrial Claim Appeals Office reversed the judge, and on remand, the judge issued Christ an award for medical and disability benefits.

While his benefits were being determined, Christ died. His widow, his daughter, and his daughter's mother then substituted in as claimants.

After the Industrial Claim Appeals Office upheld the judge's award of benefits, Littleton sought judicial review.

After reviewing the statutory presumption in favor of the firefighter, the Court of Appeals explained that to overcome this presumption, the employer must prove by a preponderance of the evidence that the firefighter's cancer did not result from, arise out of or arise in the course of the firefighter's employment.

The employer failed to do this. And while an employer may also attempt to rely on general causation evidence − such as epidemiological studies − to prove that the firefighter's disease did not occur on the job, the evidentiary standard, preponderance of the evidence, is a much higher standard than the general causation standard of substantial evidence.

While Littleton attempted to show that a firefighter's occupational exposures cannot cause any form of brain cancer, the court said this effort fell short of its burden of proof.

So what did we learn class?

1) Even if the workers' compensation system, or parts of it, may not make sense, it is what it is. We deal with it. We live within its confines and definitions and rules, including presumptions because... that's the law.

2) Substantial evidence isn't the same as preponderance of the evidence, and to overcome the higher standard requires a much greater degree of reliability and specificity in the evidence. In other words, an epidemiological study isn't worth anything - there must be solid, credible, scientific evidence that rises to the Daubert standard to meet the burden specific to the case at hand.

3) Presumptions are just part of the bargain. It's just the cost of doing business. If one does not like presumptions then one is free to lobby the legislature to change the state of the law.

And that's just the way it is.

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