Thursday, March 22, 2012

TX Proposed Doctor Rules Confuse Causation Roles

The role of physicians and other health care professionals in workers' compensation is complex, with a fuzzy dividing line between the two major medical activities: treatment and expert opinion (aka medical-legal).

Every workers' compensation system struggles with these two roles, and each role requires specific skill sets that sometimes are under-appreciated, and at other times are grossly misinterpreted.

Texas is struggling with some new rules for "designated doctors".

A designated doctor in Texas is the equivalent of a Qualified Medical Examiner in California, or an Independent Medical Examiner in other states - i.e. an occupational injury expert whose duty is to opine on medical issues.

One of those medical issues is medical causation.

Causation is one of those areas in medicine where there is quite a bit of confusion in the medical profession about just where the physician's role is. The reason is that there is a difference between medical causation and legal causation - these areas of concern are different, but get confused often.

So it is not without good reason that some in the Texas system object to the Division of Workers' Compensation's (DWC) proposed designated doctor rules, which they say, would improperly allow designated doctors to resolve compensability issues – something the insurers say is the division’s responsibility.

The crux of the issue is that the proposed regulations provide that the division is required to give "presumptive weight" to the opinion of the designated doctor on medical issues, unless the "great weight of the other evidence" is to the contrary.

The concern is that because designated doctors aren't required to follow the procedures used in a contested case hearing for determining compensability (i.e. causation) that the great evidentiary weight given to the doctor's opinion undermines due process and delegates to physicians what should be the responsibility of the DWC.

Compensability requires a determination of causation at two levels - a medical level and a legal level. The two are different.

In medicine the practitioner is trained to rule out various factors in determining how an injury or disease occurred for the purpose of a diagnosis - the diagnosis then guides the treatment of the injury or disease. The diagnosis also determines the medical causation of an injury or disease.

In medicine an accurate diagnosis is everything. If a diagnosis is wrong, then the treatment protocol likely will be ineffective, wasting time and resources, and perhaps aggravating the injury or disease process which could lead to either a worsening condition or even perhaps death to the patient.

The diagnosis drives the medical causation determination. For example, if a patient presented with a broken leg, the diagnosis might be a fractured tibia. It would be absurd to then to say the tibia fracture was caused by asthma. That is not scientifically reasonable as there is no connection between the tibia and the asthma. Not a great example but illustrative enough.

In law, the practitioner is trained to examine all potential factors in determining how an injury or disease occurred for the purpose of ascribing blame - proscription of blame then permits allocation of liability.

In addition, medical causation generally is based upon precepts of statistical probabilities or within a scientific certainty.

In contrast, legal causation involves a lower standard of statistical probability than medical causation, usually in terms of “reasonable medical probability” or “more likely than not” which can be thought of as a balance of a little more than 50% probability or likelihood. Legal causation involves a standard of proof and the weight of evidence in favor of, or against, proving that a factor causes an injury, illness or disease process.

And that is exactly what the opposition is to the proposed Texas DWC designated doctor rules - the standards of proof and evidentiary test system would be supplanted by a single determination from a person who is trained in medical causation but not legal causation.

The DWC proposed the rules to implement House Bill 2605, the “sunset” legislation passed by the Legislature last year to continue operation of the division for another six years. The legislation included provisions for selecting doctors qualified to consider complex medical cases. The rules include proposed requirements for designated doctors who are appointed to review complex medical conditions or injuries, to ensure that a doctor with the necessary expertise is selected to perform the review.

The designated doctor system was set up by the Legislature to assist the DWC in resolving medical issues “that may arise in adjudicating a compensable workers’ compensation claim.”

DWC should take another look at the proposed regulations to make sure that expert roles are properly delineated and that contested claims retain fundamental characteristics of due process.

The public hearing on the rules is set for 9:30 a.m. Monday at the DWC's central office at 7551 Metro Center Drive in Austin.

The public comment period on the rules closes at 5 p.m. on Monday. Comments may be submitted by mailing or delivering them to the Texas Department of Insurance, Division of Workers’ Compensation, Maria Jimenez, Workers’ Compensation Counsel MS-4D, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744-1645, or by email

The proposed rules can be found here.

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