Wednesday, July 18, 2012

Medical Causation, Factual Causation & Compensability

Workers' compensation liability follows when an injury both arises out of employment and occurs within the course of employment.

The acronym for this is AOE/COE. Both must concur for there to be a workers' compensation claim to be "compensable." There's a lot of case law that tells us what AOE/COE means in relation to specific fact patterns.

Fact patterns revolve around the question of causation.

There are two types of causation in workers' compensation: factual causation and medical causation.

Factual causation is where the issue concerns a matter of general fact that can be witnessed by a lay person (i.e. someone who is not an expert). A fall off a ladder, trip over a floor mat, automobile accident, etc.: if any of these (and many other fact scenarios) occur while the employee was on the job, and while the employee was engaged in an act in furtherance of his/her job, then factual causation is generally resolved in favor of the employee for workers' compensation benefits.

Medical causation however requires expert opinion - someone with special medical training to determine if an injury or illness had some relation to the work of the employee. Cancer, disc herniation, mental illness, etc.: where the issue requires a medical expert to opine as to whether an injury or illness was possibly caused, and occurred during, employment is one of medical causation.

Texas is about to release new rules on their designated doctor process that has caused a bit of debate.

In Texas a designated doctor is a medical expert approved by the Division of Workers' Compensation (DWC) to render opinion on medical issues. For the most part such opinion revolves around impairment ratings or treatment requests.

But some in Texas don't like that designated doctors may also render opinion on medical causation - the new rules permit a hearing officer or benefit review officer to order a designated doctor examination to resolve a dispute as to whether the claimed injury resulted from the claimed incident.

Carriers have a problem with this process because the designated doctor "hears testimony" from only one witness - the injured worker, and may not have all of the medical evidence before him/her to render a completely impartial pronouncement of medical causation.

Steve Bennett, associate general counsel for the American Insurance Association (AIA), told WorkCompCentral that “designated doctors are not authorized by statute to provide opinions on compensability. Labor Code Section 408.0041(a) lists the specific issues that may be resolved by a designated doctor and neither causation nor compensability are listed.”

The AIA also said allowing the designated doctor “to perform an examination and opine on causation in a proceeding where compensability is in dispute not only violates the statutory provisions governing the scope of designated doctor examinations, but also impermissibly shifts the burden of proof.”

Trey Gillespie, senior workers’ compensation manager for the Property Casualty Insurers Association of America (PCI), told WorkCompCentral that there is no statutory authority allowing the DWC to delegate the agency’s duty to resolve compensability disputes to a designated doctor.

Bennett and Gillespie may correct about statutory authority - they are much more knowledgeable about Texas law than I am.

But in the grand scheme of things, a designated doctor is still only a witness - not a trier of fact.

Medical causation requires expert opinion. At some point in a litigated workers' compensation proceeding where there is a dispute about medical issues there has to be an expert opinion that presumably is based on science and/or knowledge and experience.

In litigation expert witnesses may be used for all sorts of causation issues, not just medical issues. Workers' compensation, because we are dealing with injury and/or illness, relies more heavily on medical expert witness testimony than any other expert.

Medical opinion is not perfect - I think everyone appreciates that. There are some times when a physician can not render an opinion with scientific certainty and must rely upon his or her experience and accumulated knowledge to form an opinion.

Even then the trier of fact must weigh whether the opinion is reasonable - that it is substantial evidence, i.e. that the opinion can be reasonably arrived at given the "facts" presented.

In some cases a hearing officer is not going to be able to make a determination on causation without the assistance of a medical expert. The new rules attempt to resolve this procedural issue.

I don't share carrier's concern that the new rules give designated doctors sole power to determine compensability. That is still the purview of the DWC. Causation is certainly a component of compensability, but there are many other issues, issues of fact and not medicine, that the DWC must consider before coming to a conclusion on compensability.


  1. David, I agree with your premise, unfortunately the reality is quite different. Besides the legal issues of Facts at hearings described, Des Docs are set by lower level admin's at DWC who don't seem to have the nuanced understanding about which you write. Thus, we get DDr's set for disputes which the Doctor has no expertise or business; late reporting , or wrong carrier disputes, for example. Even if the claim is disputed and the carrier prevails, they still have to pay for the ordered examination. It becomes a tax on disputed claims with little recourse.

  2. Thanks for the reality check RHG. That to me sounds like there is some serious deficiency in the system at the administrative level rather than the regulatory level and the processes that the administration is using to assign DD reviews needs to be ... reviewed...