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Understanding the Medico-Legal Implications of Causation in Workers’ Compensation Dr. James Talmage and Tim Kellum, Panelists Jeff Francis, Moderator.

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Presentation on theme: "Understanding the Medico-Legal Implications of Causation in Workers’ Compensation Dr. James Talmage and Tim Kellum, Panelists Jeff Francis, Moderator."— Presentation transcript:

1 Understanding the Medico-Legal Implications of Causation in Workers’ Compensation Dr. James Talmage and Tim Kellum, Panelists Jeff Francis, Moderator

2 Understanding the Medico-Legal Implications of Causation in Workers Compensation June 18, 2014 Text 754729 and your Questions to 22333

3 Legislative changes take effect on July 1, 2014, redefining injury/personal injury and creating new standards with respect to compensability. Text 754729 and your Questions to 22333

4  Injury by accident or occupational disease arising out of and in the course of employment causing either disablement or death of the employee.  Included mental injuries arising out of and in the course of employment.  Standard for compensability was essentially a two pronged test wherein the injured Employee had to prove by a preponderance of the evidence that the injury/condition  1) arose out of and  2) was incurred in the course of the employment. Text 754729 and your Questions to 22333

5  “Arising out of” refers to the cause or origin.  Requires causal connection between the employment conditions and the resulting injury.  “In the course of” refers to time and place.  In general, an injury occurs 'in the course of the employment if it occurred while the employee was performing a duty he/she was employed to do. Text 754729 and your Questions to 22333

6  An injury was considered to be “accidental” only if caused by  Specific incident or set of incidents arising out of and in the course and scope of employment  Identifiable by time and place of occurrence  Diseases “in any form” were not included  unless the disease arose out of and in the course and scope of employment  Cumulative trauma conditions, hearing loss, carpal tunnel, or any other repetitive motion conditions were not included  unless the condition “arose primarily out of and in the course and scope of employment.” Text 754729 and your Questions to 22333

7  In addition the legislature created a rebuttable presumption concerning the opinion of the authorized treating physician selected from the employer’s designated panel of physicians.  More specifically, the opinion of the authorized treating physician selected from the employer’s designated panel was to “be presumed correct on the issue of causation” rebuttable by a preponderance of the evidence (i.e. more likely than not). Text 754729 and your Questions to 22333

8 LEGISLATIVE REFORM OF 2013 Text 754729 and your Questions to 22333

9 Pursuant to Tenn. Code Ann. §50-6-102(12): Injury and personal injury means  An injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulative trauma conditions including hearing loss, carpal tunnel syndrome or any other repetitive motion conditions  arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee. Text 754729 and your Questions to 22333

10  An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents arising primarily out of and in the courses and scope of employmen t, and is identifiable by time and place of occurrence.  Does not include the aggravation of a pre- existing disease, condition or ailment unless it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment. Text 754729 and your Questions to 22333

11  Aggravation of a pre-existing condition or disease is not compensable unless shown “to a reasonable degree of medical certainty” that the aggravation arose primarily out of and in the course and scope of employment.  Reasonable degree of medical certainty requires a finding by the physician that the aggravation “more likely than not considering all causes, as opposed to speculation or possibility, arose primarily out of and in the course and scope of employment.” Text 754729 and your Questions to 22333

12  Pre-reform language: Loss of mental faculties or mental or behavioral disorder where the proximate cause is a compensable physical injury resulting in a permanent disability or an identifiable work-related event resulting in a sudden or unusual mental stimulus.  Post-reform language: Loss of mental faculties or a mental or behavioral disorder, arising primarily out of a compensable physical injury or an identifiable work- related event resulting in a sudden or unusual stimulus.  Neither definition includes a psychological or psychiatric response due to loss of employment or employment opportunities. Text 754729 and your Questions to 22333

13  No change in statutory definition  Change in language from “No disease in any form except when the disease arises out of and in the course and scope of employment”  To include “Occupational diseases including diseases of the heart, lung, and hypertension…arising primarily out of and in the course and scope of employment.  Change in standard from “arising out of…” to “arising primarily out of…” Text 754729 and your Questions to 22333

14  Injury/disease/condition must be one …”arising ‘primarily’ out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee.”  Again, no aggravation of pre-existing condition unless “shown to a reasonable degree of medical certainty” that the aggravation arose primarily out of the course and scope of employment  Again, no aggravation of pre-existing condition unless “shown to a reasonable degree of medical certainty” that the aggravation arose primarily out of the course and scope of employment. Text 754729 and your Questions to 22333

15  Injury/condition arises primarily out of and in the course and scope of employment  Only if it has been shown by a preponderance of the evidence that the employment contributed to more than 50% in causing the injury considering all causes.  Preponderance of the evidence = more likely than not.  Requires consideration as to causes of injury aside from employment  “Course and scope of employment” Text 754729 and your Questions to 22333

16  An injury causes death, disablement, or the need for medical treatment only if it has been shown to a reasonable degree of medical certainty that it contributed more than 50% in causing the death, disablement or need for medical treatment, considering all causes.  Shown to a reasonable degree of medical certainty shall mean that, in the opinion of the physician, it is more likely than not considering all causes as opposed to speculation or possibility.  Requires a finding by the physician that the injury “more likely than not considering all causes, as opposed to speculation or possibility, ” contributed more than 50% in causing the disablement, death, or need for medical treatment. Text 754729 and your Questions to 22333

17  The opinion of the treating physician, selected by the employee from the employer’s designated panel of physician, shall be presumed correct on the issue of causation, but this presumption shall be rebutted by a preponderance of the evidence. Text 754729 and your Questions to 22333

18  Injuries/conditions covered: Injury by accident, mental injury, occupational diseases, and cumulative trauma/repetitive motion conditions.  No aggravation of pre-existing condition unless shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment (i.e. employment contributed more than 50% in causing the aggravation of the pre-existing condition).  Employee must show by preponderance of the evidence that the employment contributed more than 50% in causing the injury/condition.  Employee must show to reasonable degree of medical certainty that the injury contributed more than 50% in causing death, disablement, or the need for medical treatment. Text 754729 and your Questions to 22333

19  In a workers compensation suit, the employee has the burden of proving all elements of his/her case by a preponderance of the evidence.  Employee must show that he/she suffers from an injury by accident, occupational disease, mental injury, cumulative trauma condition.  That the injury/condition  arose primarily out of and in the course of the employment and  caused death, disablement, or need for medical treatment  Preponderance of evidence = more likely than not Text 754729 and your Questions to 22333

20  Except in the most obvious, simple and routine cases, a claimant must establish by expert medical evidence the causal relationship between the alleged injury and the claimant’s employment activity. Text 754729 and your Questions to 22333

21  Currently: An award may be predicated on medical testimony that the employment activity or condition “could be” the cause of the injury where there is supplemental information from the employee or other evidence to establish causation.  Under new standard, “Shown to a reasonable degree of medical certainty shall mean that, in the opinion of the physician, it is more likely than not considering all causes, as opposed to speculation or possibility.”  “Shown to a reasonable degree of medical certainty” is required showing for aggravation of pre-existing conditions and to establish that the injury contributed more than 50% in causing death disablement or the need for medical certainty. Text 754729 and your Questions to 22333

22  Arising primarily out of and in the course and scope of employment  Last Injurious Exposure Rule?  Aggravation of pre-existing conditions?  No more “could be”?  Others? Text 754729 and your Questions to 22333

23  Pre-reform  Strict statutory construction in derogation of common law not applicable  Declared to be a remedial statute “which shall be given an equitable construction by the courts to the end that the objects and purposes of this chapter may be obtained.”  Any reasonable doubt as to whether an injury "arose out of the employment" is to be resolved in favor of the employee Text 754729 and your Questions to 22333

24  Post-reform: Tenn. Code Ann. 50-6-116  For any claim for workers compensation benefits for an injury when the date of injury is on or after July 1, 2014, this chapter shall not be remedially or liberally construed  Shall be construed fairly, impartially, and in accordance with basic principles of statutory construction and shall not be construed in a manner favoring either the employee or employer. Text 754729 and your Questions to 22333

25 25 Tennessee Division of Workers’ Compensation 17 th Annual Educational Conference June 18, 2014 Text 754729 and your Questions to 22333

26 Questions ? James B. Talmage MD, Occupational Occupational Health Center, 315 N. Washington Ave, Suite 165 Cookeville, TN 38501 Phone 931-526-1604 (Fax 526-7378) olddrt@frontiernet.net olddrt@occhealth.md Text 754729 and your Questions to 22333

27 Text 754729 and your Questions to 22333

28 James B. Talmage MD Adjunct Associate Professor Division of Occupational Medicine –Department of Family and Community Medicine Meharry Medical College, Nashville, TN 28

29 James B. Talmage MD Financial “Conflict of Interest” Disclosure “Reviewer”, AMA Guides, 5 th Edition Associate Editor, the Guides Newsletter –PAID Co-Editor & Co-Author, the Guides Casebook, 2 nd Edition –PAID Co-Editor & Co-Author, A Physicians Guide to Return to Work –PAID royalties Consultant: Guides Impairment Calculator software –PAID Text 754729 and your Questions to 22333

30 James B. Talmage MD Financial “Conflict of Interest” Disclosure Co-Author, AMA Guides, 6 th Edition – PAID Member, 6 th Edition Errata Committee –PAID PAID consultant: –Impairment & Disability Products Author: Guides Sixth Impairment Training Workbooks: –Spine PAID –Lower Extremity PAID –Neurology, Psychiatry, & Pain PAID Text 754729 and your Questions to 22333

31 31 AMA Publications AMA Press: 1-800-621-8355 or www.amapress.com

32 AMA Publications

33 2005 & 2011 2 nd Edition royaltiesI receive royalties

34 AMA Press: Royalties www.ama-assn.org www.ama-assn.org FINANCIAL CONFLICT OF INTEREST No role

35 Paid Consultant FederalFederal Motor Carrier Safety Administration –Physician Work Group –National Registry Certified Medical Examiner Item Writing Group and Test Development Group –Consultant on medical issues affecting commercial motor vehicle driver safety

36 Emergency Part/Full Time Job I was the TEMPORARY “Fill in” Medical Director, Tennessee Division of Workers’ Compensation: March to December 2013. Now part time Assistant Medical Director.

37 37 ACOEM’s Practice Guidelines, 2 nd Edition NO ROLE

38 UNPAID CHAIR: Spine Committee Legally presumed correct treatment for workers’ compensation utilization review in California and Nevada. Low Back Chapter 2007 – 366 pages – 1310 articles reviewed and referenced. Neck chapter 2011 – 332 pages – 895 articles reviewed and referenced 2007 Text 754729 and your Questions to 22333

39 www.mdguidelines.com www.mdguidelines.com I NO Longer Have a FINANCIAL CONFLICT OF INTEREST

40 40 www.mdguidelines.com WAS PAID CHAIR Musculoskeletal Advisory Committee 3 rd, 4 th, & 5 th Editions. WAS Paid CHAIR of the Medical Advisory Board 6 th Edition.

41 The speaker is a Past President of “ The premiere society for the prevention and management of disability” For more information, contact AADEP @ 1-800-456-6095 or visit the website @ www.aadep.org UNPAID Text 754729 and your Questions to 22333

42 CAUSATION: Sometimes simple, sometimes NOT There is more to causation analysis than the patient’s Statement: “I did not have this before …”

43 AFFECTS Causation Decision AFFECTS Outcome poorer treatment resultsFlawed causation analysis, and flawed statutory or regulatory definitions of “work related” lead to poorer treatment results. not –Workers’ Compensation Cases are not more severe medically, yet –Treatment results are worse –Thursday, 9 am Session on this topic

44 Causation

45 Causation “Analysis” as Currently Commonly Practiced or NOT.The employer/insurer schedules an appointment for an employee, assuming the physician will do causation analysis and state whether or not the case should be considered to be “work related” or NOT. 45 Text 754729 and your Questions to 22333

46 Causation “Analysis” as Commonly Practiced Many physicians assume since the employer or insurer made the appointment, the case has ALREADY BEEN DETERMINED to be work related, and they record just 1 sentence about causation to “orient” a reader Text 754729 and your Questions to 22333

47 And THEN The letter arrives from the employer – insurer asking for clarification of how the doctor arrived at the decision the complaint is work related.The letter arrives from the employer – insurer asking for clarification of how the doctor arrived at the decision the complaint is work related.

48 without Can Doctors Accurately Assess Causation in Cases without Major Obvious Traumatic Injury? NOT trainedMedical Students are NOT trained in this. NOT trainedFamily physicians, Orthopaedic Surgeons, Neurosurgeons, PM&R doctors, etc are NOT trained in this. NOT TrainedMany physician practices use a PA or NP to do the initial visit assessment, and PAs and NPs are NOT Trained in this. physicianNote: the law ASSUMES the patient will see a physician, but many clinics use PAs and NPs for the initial visit, or for many early visits Text 754729 and your Questions to 22333

49 never Problem: The doctor has never been trained in or studied causation analysis. not read Problem: The doctor has not read the scientific studies on possible work related causation for this diagnosis. Problem: Many doctors will almost NEVER change an opinion once it has been expressed. – “I made a mistake.” – “I made a mistake.” is VERY HARD for doctors to say. 49

50 Literature Exists But YOU Probably Don’t Read the Journals in which it is published American Journal of Epidemiology Annals of Rheumatic Disease Arthritis and Rheumatology Journal of Clinical Epidemiology American Journal Industrial Medicine British Journal of Industrial Medicine Epidemiology Ergonomics European Journal of Epidemiology International Archives Occupational and Environmental Health Journal of Occupational and Environmental Medicine Journal of Rheumatology Occupational Medicine Occupational and Environmental Medicine Osteoarthritis & Cartilage Rheumatology Scandinavian Journal of Work and Environmental Health Work Text 754729 and your Questions to 22333

51 Residency Trained Residency Trained Occupational Medicine Doctors USUALLY have had SOME training in CAUSATION MINORITYA MINORITY of doctors practicing Occupational Medicine are RESIDENCY TRAINED in Occupational Medicine –The majority were trained in some OTHER type of residency. Text 754729 and your Questions to 22333

52 What about CONSENSUS opinions by physicians? Can doctors in general be wrong? YES Probably about 1/3 (one-third) of the time Text 754729 and your Questions to 22333

53 Causation: Have We Been Wrong Before ? ? prospective RCTs have found vastly disparate results“Numerous examples can be found in the medical literature in which prospective RCTs have found vastly disparate results compared with the observational epidemiologic studies preceding them that had been accepted as the final answer.” –JAMA 2002; 288 (24): 3112 Cites HRT and secondary CAD prevention AND Vitamin E & Beta carotine and cancer prevention studies –Also see JAMA 2001; 286: 821-830, “Comparison of evidence of treatment effects in randomized and nonrandomized studies.”

54 Poor Studies Lead to False Conclusions “We Have Been Wrong Before” We Used to Say: Silicone Breast implants can cause connective tissue and auto-immune disease. –Based on observational case series, MD expert witnesses testified that causation was proven. –Dow Corning went bankrupt defending silicone lawsuits We Now Know: “On the basis of our meta-analyses, there was no evidence of an association between breast implants in general, or silicone-gel filled breast implants specifically, and any of the individual connective-tissue diseases, all definite connective- tissue diseases combined, or other auto-immune or rheumatic conditions.” –NEJM 2000; 342: 781-790 Text 754729 and your Questions to 22333

55 Silicone is Inert Does NOT Cause Disease All 20 good human epidemiologic studies > 100 Animal toxicology studies Everyday sources of silicone; –Chap stick, lip stick, deodorant, beer –Lubricant in syringes Diabetics inject themselves with grams of silicone over a lifetime, leaky breast implants may release milligrams. Text 754729 and your Questions to 22333

56 1980s Low Quality Case-Control Studies SUGGESTED Coffee Caused Pancreatic Cancer Later Prospective Cohort Studies that CONTROLLED FOR SMOKING Disproved the association Int J Cancer. 2013 Apr 1;132(7):1651-9.Int J Cancer. Clin Gastroenterol Hepatol. 2013 Nov;11(11):1486-92.Clin Gastroenterol Hepatol. Cancer Epidemiol Biomarkers Prev. 2012 Feb;21(2):305- 18. [14 prospective cohorts Pooled]Cancer Epidemiol Biomarkers Prev. Text 754729 and your Questions to 22333

57 Ann Oncol.Ann Oncol. 2012 Feb;23(2):311-8. A meta-analysis of coffee consumption and pancreatic cancer. Turati F, et alTurati F RESULTS:Considering only the smoking- adjusting studies, –the pooled RRs were 1.10 (95% CI 0.92-1.31) for the 22 case-control, –1.04 (95% CI 0.80-1.36) for the 15 cohort, and –1.08 (95% CI 0.94-1.25) for all studies. CONCLUSIONS: This meta-analysis provides quantitative evidence that coffee consumption is not appreciably related to pancreatic cancer risk, even at high intakes.

58 Contradicted and Initially Stronger Effects in Highly Cited Clinical Research JAMA 2005; 294: 218-228 Results Of 49 highly cited* original clinical research studies, 45 claimed that the intervention was effective. –Of these, 7 (16%) were contradicted by subsequent studies, 7 others (16%) had found effects that were stronger than those of subsequent studies, 20 (44%) were replicated, 11 (24%) remained largely unchallenged. –* All original clinical research studies published in 3 major general clinical journals or high-impact-factor specialty journals in 1990-2003 and cited more than 1000 times in the literature were examined. Text 754729 and your Questions to 22333

59 Persistence of Contradicted Claims in the Literature Conclusion: Claims from highly cited observational studies persist and continue to be supported in the medical literature despite strong contradictory evidence from randomized trials. –JAMA. 2007;298(21):2517-2526 Text 754729 and your Questions to 22333

60 Persistence of Contradicted Claims in the Literature Several YEARS after publication of high- quality definitive randomized controlled trials > 50% of articles still advocated Vitamin E for heart disease prevention and estrogen replacement for prevention of dementia. –JAMA. 2007;298(21):2517-2526 Text 754729 and your Questions to 22333

61 A “Relatively Objective” Answer Impairment Rating: Despite “Dr. Defense’s” and “Dr. Plaintiff’s” attempts to distort the intent of the Guides, the AMA Guides does provide a method of impairment rating that should be FAIRLY RELIABLE. Text 754729 and your Questions to 22333

62 Guides to the Evaluation of Disease and Injury Causation J. Mark Melhorn MD William Ackerman MD AMA Press 2008 BEST CURRENT TEXT ON CAUSATION 2013

63 Guides to the Evaluation of Disease and Injury Causation “Work relatedness, in the context of industrial injuries, involves concepts of medical and legal causation.” “Definitions of medical causation and legal causation arise from different sources-one from science and the other from the desire for social justice.” “For physicians treating injured workers, understanding the differences between the two concepts is essential.”P 14 Text 754729 and your Questions to 22333

64 Guides to the Evaluation of Disease and Injury Causation “The courts did not have their origins in science, and, therefore, the laws developed are not scientifically derived.”P 15 “Judges and legislatures have the power to substitute convenience for science. One common method for doing so in workers’ compensation cases is the establishment, by legislative or judicial decree, of presumptions that institutionalize societal choices.” P 17

65 Guides to the Evaluation of Disease and Injury Causation Example –Many states have laws that create the presumption that cardiovascular disease in a policeman or fireman was caused by work stress and/or chemical exposure, and thus any heart attack is covered by workers’ comp. –The presumption of work relatedness may, or MAY NOT be rebuttable.P 17

66 Guides to the Evaluation of Disease and Injury Causation Level of Proof needed to establish work relatedness by AGGRAVATION of a Pre-existing condition for workers’ compensation VARIES GREATLY among jurisdictions. –Kansas: one iota “Prevailing Factor” –Tennessee: any anatomic or physiologic change primarily out of and in course of employmentprimarily out of and in course of employment –California, Washington: 1% –Florida, Arkansas, Missouri: > 50% Text 754729 and your Questions to 22333

67 Causation: 3 Main Scenarios Major Trauma that injures MOST people –Example: Fall from the roof of a 2 or 3 story building. –Rarely a contested causation issue. Minor Event that does not injure most people, and that the individual usually has done before without injury. –Usually when symptoms began, but NOT why –NOT “primarily” the cause. No single incident: Exposure over time –Cumulative trauma ??? –Asbestos exposure

68 Two Causation: Two Ways to Think of It 1.Could this exposure or risk factor cause or be part of the cause of this condition in any person? DID ACTUALLY cause this person’s 2.In this particular person, DID THIS exposure ACTUALLY cause or contribute to this person’s condition?

69 Austin Bradford Hill (1897-1991) Professor –University of York President – Royal Statistical Society Smart dude !!! Text 754729 and your Questions to 22333

70 in general Hill’s Criteria for Causation (in general) Proc R Soc Med 1965; 58: 295-300 1.Strength of the association 2.Temporality 3.Consistency among studies 4.Biologic Gradient 5.Experimental evidence 6.Plausibility 6.Plausibility of a biologic mechanism 7.Coherence of evidence 8.Analogy to a similar effect, from a similar agent 9.Specificity of outcome. Text 754729 and your Questions to 22333

71 Causation: Work Related ? Unfortunately, many physicians jump to conclusions about causation, and therefore Work Risk, NOT by thinking ONLY about 2 of the 9, and the two that do NOT require a Knowledge of the medical literature. This developed AFTER I started this job, and I use my __ (shoulder, back) at work, so it’s possible …. Text 754729 and your Questions to 22333

72 Temporality Post hoc ergo propter hoc The rooster crows, then the sun rises. –Perfect temporal correlation –Therefore, the rooster crowing CAUSES the sun to rise. –ERROR: “When” does not equal “Why” –“As I turned into the discount store parking lot, a part broke on my 6 year old car; therefore, the store is liable for injuring my car. Text 754729 and your Questions to 22333

73 Temporal Correlation does NOT prove Causation Text 754729 and your Questions to 22333

74 MEDICALLY E How to MEDICALLY Determine Causation in a SINGLE Person NIOSH: 1979. –National Institute for Occupational Safety and Health. A Guide to the Work Relatedness of Disease (Revised). Washington, DC: US Department of Health, Education, and Welfare; 1979. –http://www.cdc.gov/niosh/pdfs/79-116-a.pdfhttp://www.cdc.gov/niosh/pdfs/79-116-a.pdf –Modified slightly by ACOEM for its Occupational Medicine Practice Guidelines

75 Step 1: Does the Person Have the Disease? 1.Evidence of disease. What is the disease? Is the diagnosis correct? Does the evidence (eg, history, physical examination findings, and results of diagnostic studies) support or fail to support the diagnosis as present in this person? Text 754729 and your Questions to 22333

76 Step 2: Epidemiology 2.Epidemiological data. What is the epidemiological evidence for the disease or condition? Does quality data support a relationship with work? To what extent is the condition idiopathic? Is the prevalence/incidence in the general population KNOWN? THIS IS THE FOCUS OF THE AMA CAUSATION BOOK Text 754729 and your Questions to 22333

77 Step 3: Exposure 3.Evidence of exposure. level of could cause What evidence, predominantly objective, is there that the level of occupational exposure in THIS PERSON (eg, frequency, intensity, and duration) could cause the disease? Text 754729 and your Questions to 22333

78 Step 4: Other Risk Factors 4.Other relevant factors. What other relevant factors are present in this case? Are there individual risk factors other than the occupational environmental exposure that could contribute to the development of the disease? For example, if the diagnosis is carpal tunnel syndrome, is the worker pregnant, obese, or diabetic? Text 754729 and your Questions to 22333

79 Step 5: Validity of Evidence 5.Validity of evidence. conflicting Are there confounding or conflicting data to suggest that information obtained in the assessment is inaccurate? Are other opinions in the case inaccurate? Text 754729 and your Questions to 22333

80 Conclusion(s) Step 6: Conclusion(s) 6.Evaluation and conclusions. Do the data obtained in the preceding assessment support the presence of a work- related disease?

81 Hypothesis Testing Methodology Hypothesis GENERATING Methodology Non-epidemiologic publications

82 Prospective Cohort Study Prospective investigation of the factors that might cause a disorder in which a cohort of individuals who do not have evidence of an outcome of interest but who are exposed to the putative cause are compared with a concurrent cohort who are also free of the outcome but not exposed to the putative cause. Both cohorts are then followed to compare the incidence of the outcome of interest. Best study design if subjects can NOT be randomized. –Suspected toxins (smoking or asbestos) –Caused by work?

83 “ Primarily” What Does “ Primarily” Mean? To a Physician Scientist this should be a mathematical question. Multiple relatively non-biased prospective cohort studies relative risk or hazard ratio of > 2.0Minimum Evidence: Multiple relatively non-biased prospective cohort studies find a relative risk or hazard ratio of > 2.0 Over half of the cases that occur are attributable to the exposure in question.

84 Relative Risk Usually the statistic reported in Prospective Cohort Studies. Risk (incidence) in the group with the risk factor DIVIDED by the Risk (incidence) in the group without the risk factor Text 754729 and your Questions to 22333

85 Relative Risk In statistics and mathematical epidemiology, relative risk (RR) is the risk of an event (or of developing a disease) relative to exposure. Relative risk is a ratio of the probability of the event occurring in the exposed group versus a non-exposed group RR = Probability in exposed Probability in NON-exposed “probability” = Incidence RateIn a prospective study “probability” = Incidence Rate

86 Relative Risk Prospective Cohort Consider an example where the probability of developing lung cancer among smokers was 20% and among non-smokers 1%.probability This situation is expressed in a 2 × 2 table. RR= a/(a+b) = 20/100 = 20 c/(c+d) 1/100 RiskLung CancerNO Lung Cancer SmokerA = 20B = 80 NON-smokerC = 1D = 99 Text 754729 and your Questions to 22333

87 Hazard Ratio Prospective Cohort Study Hazard ratios are cumulative over an entire study, “averaging” multiple outcomes at multiple times until a defined endpoint, while relative risk represents instantaneous risk over the ONE study time period. When graphs over time, like this, are in an article, there are usually Hazard Ratios reported Text 754729 and your Questions to 22333

88 Odds Ratio Case-Control studiesUsually reported in Case-Control studies The odds ratio is the ratio of the odds of an event occurring in one group to the odds of it occurring in another group. These groups might be men and women, an experimental group and a control group, or any other dichotomous classification. If the probabilities of the event in each of the groups are p 1 (first group) and p 2 (second group), then the odds ratio is:oddscontrol groupdichotomous OR = p 1 /(1-p 1 ) p 2 /(1-p 2 ) Text 754729 and your Questions to 22333

89 Odds Ratio Case Control 100 women only 20 drank wineSuppose that in a sample of 100 men, 90 drank wine in the previous week, while in a sample of 100 women only 20 drank wine in the same period. woman 1:40.25:1.The odds of a man drinking wine are 90 to 10, or 9:1, while the odds of a woman drinking wine are only 20 to 80, or 1:4 = 0.25:1. odds ratioThe odds ratio is thus 9/0.25, or 36, showing that men are much more likely to drink wine than women. Text 754729 and your Questions to 22333

90 Risk If in a factory with 1000 employees, –100 “Work related” cases –In the general non-factory working population 100 cases/1000 people –Relative risk is 1.0 notIncidence or prevalence (whichever the study measured) is not affected by work, but is the rate of illness in the general population. Text 754729 and your Questions to 22333

91 Risk If in a factory with 1000 employees, –200 “Work related” cases [Total cases] –In the general non-factory working population 100 cases/1000 people –Relative risk is 2.0 Half of the cases may have occurred because of the work exposure. the employer will pay for all 200 cases in workers’ comp. –NOTE: If this illness is officially considered to be work related, work caused 100 cases, BUT, the employer will pay for all 200 cases in workers’ comp. Text 754729 and your Questions to 22333

92 Work Related = Workers’ Comp 100 cases occur in 10,000 “white collar” office workers. 120 cases120 cases occur in 10,000 widget factory workers’ Relative risk is 1.2 Should WC cover all 120 cases? 100 cases occur in 10,000 “white collar” office workers. 1000 cases1000 cases occur in 10,000 widget factory workers’ Relative risk is 10.0 Should WC cover all 1000 cases?Should WC cover all 1000 cases? Text 754729 and your Questions to 22333

93 NOT A Question for SOCIETY NOT for Physicians

94 Occupational Illness Cumulative Exposure If the Relative Risk (or Hazard Ratio) of a work exposure in multiple studies is > 2.0, then over half of the cases are associated with the work exposure, and –“More likely than not” –“Within reasonable medical probability” –“Primarily” –PROVIDED THAT –PROVIDED THAT the individual does NOT have significant non-work related risk factors

95 Federal Tort Law relative risk of > 2.0Federal courts seem to have GENERALLY accepted that a relative risk of > 2.0 is the standard for liability (fault) in tort cases. > 50 % of cases are due to the exposure > 50% chance the exposure caused the disease in an individual [as in “primarily”] –In the AMA Causation book, Table 4-1, p 118-9 Text 754729 and your Questions to 22333

96

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99 Soooo… The individual has a workplace exposure with an accepted relative risk in prospective cohort studies of 2.5. The individual also has 3 non-work related risk factors with accepted relative risks of: –Family History RR= 5.0 –Obesity RR= 2.5 –Diabetes RR = 4.0 Should this be considered “Primarily” and thus work compensable???? Text 754729 and your Questions to 22333

100 Where Do You Find Relative Risks? Do your own literature search ? Use the AMA Guides to Causation? Text 754729 and your Questions to 22333

101 Change Mindset Trauma with Identifiable “Incident”

102 Causation: 3 Main Scenarios Major Trauma that injures MOST people –Fall from the roof of a 2 or 3 story building. –Rarely a contested causation issue. Minor Event that does not injure most people, and that the individual usually has done before without injury. –Usually when symptoms began, but NOT why –NOT “primarily” the cause. No single incident: Exposure over time –Cumulative trauma ??? –Asbestos exposure Text 754729 and your Questions to 22333

103 Legal Terms Course and Scope & Identifiable Injury Incident primarily out of and in the course and scope of employment identifiable by time and place of occurrence primarily out of and in the course and scope of employment(A) An injury is "accidental" only if the injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment, and is identifiable by time and place of occurrence, and shall not include the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment; Text 754729 and your Questions to 22333

104 Fragile Skull Doctrine In Workers’ Comp/Employment Law Employers “TAKE THEM AS THEY ARE”

105 Temporality: notERROR: “When” does not equal “Why” –“As I bent over to pick up a pencil at work, I felt a ‘pop’, and pain in my back; therefore, I have been injured at work, and my employer is liable for a workers’ comp claim. –BUT, what if I bent over to get a pencil in my neighbor’s house? Would I have a successful claim against his homeowner’s insurance? –What if I bent over to get a pencil in my lawyer’s office? Would I have a successful claim against his office liability and umbrella insurance policies? Text 754729 and your Questions to 22333

106 Temporality: bent over back “popped”.I bent over to pick up a pencil at work, and before I even lifted the pencil, my back “popped”. NOT behave like injuriesMany do NOT behave like injuries. lacks enough violence –“Incident lacks enough violence to cause human harm.” Get worse over time.Get worse over time. Pain never goes awayPain never goes away Text 754729 and your Questions to 22333

107 Bent Over to Pick Up a Temporality: Bent Over to Pick Up a Pencil –ERROR: “When” does not equal “Why” –“As I turned into the discount store parking lot, a part broke on my 6 year old car; therefore, the store is liable for injuring my car.

108 Example but not whyWhen the first ever episode of angina occurs when Joe walks up stairs at work, we recognize that this was when, but not why he had angina. –Not a worker’ comp claim if they understood it was not actually CAUSED BYYet, in the past, when the first episode of ___ (back pain, shoulder pain, knee pain, etc.) occurs with normal activity at work or minimal trauma at work, doctors have assumed this was intended to be “work compensable” even if they understood it was not actually CAUSED BY the work exposure. Text 754729 and your Questions to 22333

109 Risk Assessment BASED on Anecdotal Temporality Joe bent over at work to pick up a pencil and hurt his back ? What if I send Mary back to work despite her back pain? She might have to pick up a pencil at work ? Text 754729 and your Questions to 22333

110 Clues: Medically What’s Wrong? Family history of multiple cases of the same problem, think genetics. –Many prior “cumulative trauma” claims –Many OTHER body parts involved/symptomatic Is there a known genetic transmission of the condition? Co-morbidity, like osteoporosis, and vertebral compression fracture lifting a newspaper Signs of “Symptom Magnification” on Exam –Help from questionnaires in “History” –QuickDASH or DASH –Oswestry, PDQ –IEQ, PCS

111 43 year old lady with a light factory assembly job presents with left shoulder pain Prior Workers’ Comp Claims/Surgery includes: –2013: Right shoulder decompression –2012: Left lateral elbow tendon debridement –2011: Right lateral elbow tendon debridement –2010: Left ulnar nerve decompression –2009: Right ulnar nerve decompression –2008: Left carpal tunnel release –2007: Right carpal tunnel release –2006: Left deQuervains release –2005: Right deQuervains release Currently also has: –Bilateral plantar fasciitis –Bilateral trochanteric bursitis –Neck and Back pain Text 754729 and your Questions to 22333

112 So, IF Asked, What Can You Say?? “The level of violence in this incident seems insufficient (or GROSSLY insufficient) to cause human injury in normal people.” –Or the level of violence was actually sufficient to hurt many folks. no unusually susceptible“There is no evidence that Mr. X has a genetic condition, or a co-morbidity, rendering him (or this body part) unusually susceptible to injury from minor incidents” –Or,“There is evidence of a predisposing medical condition….” –Or, “There is evidence of a predisposing medical condition….”

113 If So, If Lifting 10 pounds CAUSES Human Injury, Then LOGICALLY… Tennessee Workers’ Compensation should CONTINUE to accept claims of workplace injury from lifting 10 pounds. AND …..AND ….. Text 754729 and your Questions to 22333

114 If So, If Lifting 10 pounds CAUSES Human Injury, Then LOGICALLY… Plaintiff Lawyers should file class action lawsuits against companies that make and sell unsafe products like: –10 pounds, Paint in 1 gallon cans, 12 pack of 12 ounce beverages –20 pounds, Grass seed, 1 case of “20 pound” copy paper –50 pounds, Dog food, fertilizer And Demand PUNATIVE damages for GROSS NEGLIGENCE in making products like car tires, furniture, refrigerators, stoves, clothes washers, etc. Text 754729 and your Questions to 22333

115 If So, If Lifting 10 pounds CAUSES Human Injury, Then LOGICALLY… stop acceptingDay care centers should stop accepting children who weigh 10 pounds and are not yet old enough to walk, and never trip and fall. –UNSAFE –UNSAFE for day care employees to lift children Text 754729 and your Questions to 22333

116 If So, If Lifting 10 pounds CAUSES Human Injury, Then LOGICALLY… refuseAirlines should refuse to check and handle or transport suitcases that weigh 10 or more pounds. UNSAFE –Lifting and Handling luggage weighing 10 pounds is UNSAFE for airline employees. Text 754729 and your Questions to 22333

117 If So, If Lifting 10 pounds CAUSES Human Injury, Then LOGICALLY… BANCongress and State Legislatures should BAN football, hockey, rugby, & soccer. –Junior High, Senior High, and Adult participants must lift >10 pounds to train for these sports. –The human on human collisions involve biomechanical forces that are 10 times to 100 times greater than the forces involved during lifting 10 pounds. –Bowling Balls should be limited to only 8 pounds or less Text 754729 and your Questions to 22333

118 If So, If Lifting 10 pounds CAUSES Human Injury, Then LOGICALLY… prohibitCongress and State Legislatures should prohibit any work being done either sitting or standing. comparable to the forces when lifting 10 pounds. –The biomechanical forces on the lumbar discs when sitting and standing are 10 times higher than when lying, and comparable to the forces when lifting 10 pounds. Text 754729 and your Questions to 22333

119 Spine 1999; 24 (8): 755-62 Nachemson lift was 10 kg or 22.5 pounds, This study 20 kg or 45 pounds Text 754729 and your Questions to 22333

120 Temporality Post hoc ergo propter hoc The rooster crows, then the sun rises. –Perfect temporal correlation CAUSES –Therefore, the rooster crowing CAUSES the sun to rise. –ERROR: “When” does not equal “Why” –“As I turned into the discount store parking lot, a part broke on my 6 year old car; therefore, the store is liable for injuring my car.

121 Temporal Correlation does NOT prove Causation

122 DIFFICULT This May be DIFFICULT Especially if you work for a large corporate Occupational Medicine Company, whose profit is primarily from its own Physical Therapy service, and your employer pressures you to declare everything work-related and to refer everything to Physical Therapy.

123 In Tennessee Workers’ Comp Surgeons are PAID MUCH MORESurgeons are PAID MUCH MORE for doing an Operation in Workers’ Comp than in Health Insurance. –275% of Medicare

124 Physician Advocacy In NON-legal matters, physicians are advocates for patients. In legal matters, we are to be neutral.

125 Doctor’s Role Role EXPECTED of physicians is to be a NEURTAL “umpire”, and to rate impairment “by the book”, NOT favoring either side. Paradigm Shift Not “at bat” for plaintiff/patient Not the defense Catcher

126 Law TRUMPS Medicine Remember Law TRUMPS Medicine Your Job is NOT to WIN

127 Law TRUMPS Medicine Remember Law TRUMPS Medicine Your Job is to TELL the TRUTH

128 Thank You for Your Attention


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