Steven G. McCloy, MD
Axiom Occupational Health, LLC100 Smithfield AvenuePawtucket, RI [email protected] Assistant Professor of Medicine,Brown University
Causation
• Dorland’s Medical Dictionary on-line– No entry
• AskOxford.com– noun 1 the action of causing. 2 the relationship
between cause and effect
• Merriam-Webster.com– the act or process of causing b: the act or agency
which produces an effect
• LegalLawTerms.com– CAUSE , contra torts, crim. That which produces an
effect (no “causation”)
What About Wikepedia?
• Causality denotes a necessary relationship between one event (called cause) and another event (called effect) which is the direct consequence (result) of the first
• Causation is the "causal relationship between conduct and result." That is to say that causation provides a means of connecting conduct, complete with actus reus, with the resulting harm or result element. It should be noted that causation is only applicable where a result has been achieved and therefore is immaterial with regards to inchoate offenses.
You Say “Tomatoes” and I say “Tomahtoes”
Patient developed knee pain while walking back to the cash register. Causality: work-related.
CLAIMANT'S KNEE STRAIN IS IPSO FACTO AN ON-THE-JOBINJURY. EMPLOYER FAILED TO REFUTE THE CAUSAL NEXUS,ESTABLISHED BY CLAIMANT'S EVIDENCE, THAT HER INJURY WAS NOT THE RESULT OF AN IDIOPATHIC EPISODE.
• We (clinicians and the legal system) have a different language.
• We have a different burden of proof.• We work in very different environments with
different cultures, rules of behavior, measures of success, etc.
• We share a bond of confidentiality.• We have common threads of advocacy.• We have multi-party obligations.
– Attorney to the client and the rules of law– Clinician to the patient and, in the case of the occupational
clinician, to the employer and insurer
• Clinical [scientific] “proof” is legal proof– P < 0.05– “Reasonable degree of medical certainty”
51%
IPSO FACTO
ON CERTIORARI
Petitioners
Respondents
Bill of particulars
Per se doctrine
Remittitur
Ipsilateral
idiopathic
trimalleolar
heparInternal derangement
Mucoidsternocleidomastoid
actus reus
prima facie case
PAULS VALLEY TRAVEL CENTER v. BOUCHER2005 OK 30 112 P.3d 1175 Case Number: 100169 Decided: 05/03/2005
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Claimant Boucher in Dec 2002 slipped on some grease on the floor of Paul’s Valley Travel Center. She did not fall. She was walking to put a gift with other personal belongings. She experienced pain and swelling, did not seek any medical attention and had not lost work time. May 2003 while walking to serve some customers her knee “gave out.” There was no obstacle and she was carrying nothing. She did not slip or fall. There was no undue physical effort. Because of severe pain, she sought medical attention.
She has a non-work-related injury in 1999, “possibly an internal derangement.” Her cross-examination testimony was “confusing as to whether she periodically encountered problems with that knee after the 1999 injury.”
The Jurisdiction Determines the Definitions
• In Rhode Island,
• “Injury” means and refers to personal injury to an employee arising out of and in the course of his or her employment, connected and referable to the employment.
§ 28-29-2 (7)(i)
• DID BOUCHER HAVE A PERSONAL INJURY? • Do pain and swelling constitute an injury?• Was walking to her personal belongings part of the
essential duties of her employment? Is this a “deviation”?• Is “giving out” of a knee an injury or a symptom?• Did Boucher has a pre-existing condition?
Causation—Occupational medicine practice guidelines. 2nd edition. LS Glass ed. OEM Press, 2004.
Medical Causation is physical or biological in nature.
The legal definition may vary from state to state and between states and the Federal law.
Medical Causation is physical or biological in nature.
The legal definition may vary from state to state and between states and the Federal law.
Legal Causation has two components:1.Cause in fact: the occurrence of an event brings about a result2.Proximate cause: relates to the predictability or remoteness of an event.
Boucher
Injury?Evidence: •Pain and Swelling (first time),•Second injury, giving way• MRI for medial meniscal tear•What about prior abnormal anatomy?
Injury?Cause in fact?Proximate cause?Arising out of and in the course of his or her employment?Connected and referable to the employment?
Case #2: The Leaky Secretary
Thanks to Dr. K Kimball (Dartmouth-Hitchcock)
A 50 y.o. school secretary with stress incontinence had an accident. She went to the restroom to change her underclothing. She reported that she had twisted her ankle in the restroom and that this was a work-related injury.
Case #3: Latex Paint Exposure
• A nurse with a history of latex allergy worked in a hospital where the walls were being painted. She saw her primary care physician who sent her home for a work illness of latex exposure.
• An occupational /environmental physician did a consultation and confirmed that she should not return to work until the exposure risk had ended.
•Work Illness?
[We should all groan at this point because low back pain is so common, so difficult and so important.]
Case #4: Low Back Pain
36 yo carpenter strained his back at work.•PCP puts him to bed with meds, then gets MRI•MRI shows a bulging disc along with disc desiccation•He is deemed an independent contractor with no workers’ comp forms and no lost wages •When he is about to lose his health insurance, he consults an attorney who suggests an orthopedic consult•Orthopedist starts physical therapy•Neither PCP nor orthopedist completes WC report papers or mentions causality•After six weeks of work absence, the employer advises the carpenter that “there is no work for “ him.
Case # 4
NIOSH process for determining work relatedness
1. Evidence of Disease2. Epidemiology.3. Evidence of exposure4. Consideration of
other relevant factors5. Validity of testimony.6. Conclusion
1. What is the disease? How certain are you? What evidence supports/does not support the diagnosis?
2. What is the epidemiologic evidence for that condition? Is there support for a relationship to work?
3. Is there evidence that exposure was of frequency, intensity and duration to support work-relatedness?
4. What other factors are present in this case?
5. Is there information to suggest that the history, etc. are inaccurate? Is there corroboration?
Source: Glass, p. 60.
Case #4
Is there evidence of disease?• Bulging discs are seen in MRI in
54% of normal subjects under the age of 60. This rises to 79% of normal subjects over the age of 60. In other words, these subjects had no back pain for did have bulging disks on MRI. Bulging discs by themselves do not mean that there is a surgical problem in the back.
• (Boden, SD, Davis DO, Dina TS et al. 1990. Abnormal MRIs of the lumbar spine in asymptomatic subjects. J Bone Joint Surgery 72A:403-8.
Is “degenerative disk disease” a “disease,” or is it a factor of normal aging processes in the spine?
• Studies of normal people with NO history of back pain lasting more than 24 hours show that one-third of people under age 39 have DDD. In those aged 40-59, 59% have DDD. Over age 60 shows DDD in 93% of MRIs. (Boden, SD, Davis DO, Dina TS et al. 1990. Abnormal MRIs of the lumbar spine in asymptomatic subjects. J Bone Joint Surgery 72A:403-8.
Case 4Is there evidence of exposure?
• Yes.– He had an event– His back hurt after that
event• No
– Is backache an injury?• Before the 1800’s and the
advent of the railroad industry it wasn’t
• Fast speed of the train inflames the spine
• Canadian study of 11,000 patients concluded that low back pain is generally not precipitated by a clearly defined injury
Hall, H, et al. Spontaneous onset of back pain. Clin J Pain 1995;14(2):129-133.
Are there other relevant factors that might affect causality?
• Prior injury? Prior back pain?
• Cigarette smoking• Psychosocial issues• Age and gender• Posture• Other spine disease• Low education and
income levels• Elevated Score of Scale
3 of MMPISmall JW and CM Kalina. Facilitating
return to work: Transitional duty and case management. In, Derebery J and JR Anderson. Low Back Pain. 2002 OEM Press.