Causation and Effect: Workers’ Comp Experts Discuss Impact of Rising Costs on Causation Standards

By John Stahl, Esq.

Widespread confusion regarding the difference between medical causation and legal causation, and why one claim of compensable harm may be accepted while a virtually identical claim or other seemingly “clear cut” case is denied, motivated a November 8 session entitled “Causation: Medical Versus Legal Impairment and Mental Trauma” at the 21st Annual National Workers’ Compensation and Disability Conference.  

Matt Schiff, Esq., of the law firm Schiff and Hulbert, Chicago, IL, moderated the session.  The panel consisted of defense attorney Stuart Colburn, Esq., from Downs Stanford, Austin, TX, applicant’s attorney Robert Rassp, Esq., Sherman Oaks, CA, and Larson’s Workers’ Compensation Law staff writer Thomas Robinson, J.D. from Durham, NC.

Schiff identified “the battle that we [workers’ compensation professionals] constantly face” as understanding the difference between causation, which is a prerequisite to determining that harm is compensable, and correlation. He stated very clearly that “correlation does not imply causation.”

The distinction boiled down to causation relating to one event being the reason that a subsequent event occurred and correlation relating to two events that “happen to be temporally close.” An example of the difference would be a fall from a ladder most likely being the cause of a sprained ankle that an employee experienced immediately after that fall contrasted with the cases in which it was shown that exposure to harmful substances in the workplace did not result in the subsequent illnesses for which employees sought compensation.

Conflicts Regarding Causation Standards

Rassp identified much of the difficulty regarding determining “causation” as workers’ compensation involving both medicine and law. He explained that the medical definition of causation was scientific based, which involved probabilities that reflected medical research, and that the legal definition was law based, which reflected “the burden of proof” and “something created by politics.”

The panel further commented on the concept of probability related to determining causation from a medical perspective in a discussion regarding “reasonable medical probability.” They described this as “a physician has to state his or her conclusions based on reasonable medical probability and explain the rationale for those conclusions including how and why.” The term “probability” refers simply to it being more likely than not that an identified factor caused the relevant harm.

The outcome that Rassp advocated regarding the conflict between law and medicine related to causation was “to improve the evidence that lawyers and claims examiners and employers rely on in determining benefits for injured workers.” An element of this ideal was “a marriage between a doctor and a lawyer.”

Acknowledging the roles of stakeholders in determining causation for workers’ compensation purposes and the numerous types of causation, Colburn stated at the outset that “it is a question that moved people since the beginning of time.” He added that “we are not going to resolve things today.”

Colburn also introduced the topic of “political causation” in reference to state lawmakers “changing the definitions of causation [for workers’ compensation purposes] in order to achieve a desired result” in response to unusually high workers’ compensation insurance rates or other challenges.  As a side note, the different (and possibility conflicting) standards that political causation created among states caused much of the confusion with which workers’ compensation professionals contend.

Robinson essentially observed that lawmakers did not exercise proper finesse when amending definitions of causation for workers’ compensation purposes. He stated that “results are not good and have not been good throughout the United States. What you tend to find in these areas are almost a ping-pong match where the legislature overreacts ... because things are too high.”

California Example

Related to the topic of legislative action, Rassp shared that California has experienced eight reforms during the 33 years that he has practiced law in that state. He commented that “we fixed the problem and created more” every time that California enacted a reform but noted that the California legislature invented the well-known concept of “major contributing cause.”  

The described standard of proof in all California cases is “so low all you have to prove there is 1% of industrial causation. And if there is 1% of an industrial factor that is contributing to the … medical condition, no matter what it is, the employer is responsible for 100% of nonapportioned benefits to include medical treatment, temporary total disability, things that cannot be split apart such as permanent disability.”

Rassp further commented that “the worst part, you can prove causation by virtually anything as long as you show it had a risk that was greater than that of a nonworking person under that circumstance.” A provided example was “if 99% was preexisting and 1% is caused by work, it is 100% paid for as a work-related injury.”

Burdens of Proof

The panel also discussed the applicable standard of proof when an administrative or judicial body was required to determine whether a claimant satisfied the relevant threshold for proving causation. Rassp stated that an April 2004 reform established the standard in California as “permanent medical objective findings” in contrast to the prior standard of “subjectives” that provided for awards based on a physician verifying a claimant’s subjective complaints.

Rassp described the goal of the 2004 reform as “to objectify proving that an injured worker has permanent objective findings that are industrially related and … that it is reasonably medically probable that the industrial exposure caused that impairment or disability.”

Robinson observed regarding the new standard that “claims have gotten much more complex to the stage now where lay persons’ understandings of injuries … has been deemed to be insufficient to explain this causation. This is one of the areas where the nation as a whole is generally following the California methods.” A case in which a butcher’s finger is separated from his hand immediately after a meat slicer passed through the finger contrasted with a case in which an office worker developed severe migraine headaches and presented proof of enormous work-related stress illustrates the relatively new challenge that Robinson described.

Colburn noted that the higher burdens of proof also related to recent increases in the number of surgeries and other medical treatment associated with work-related incidents. He stated that “as the business of medicine wants to perform more of these surgeries, we need to respond to that.”

Armchair Analysis

The primary lesson from the discussion in which the genuinely distinguished panel engaged was that the self-interest of doctors, attorneys, and lawmakers determined whether a claimant proved the causation on which his or her right to compensation depended. In demonstrating this, the experts showed that the workers’ compensation system had deviated from the objective dating back to the era of the Triangle Shirtwaist factory fire of providing reasonable and necessary care for harm arising out of the course and scope of employment.

The panel also suggested that an employee who sustained a work-related injury in a state with a strong pro-labor outlook will most likely receive much better workers’ compensation benefits than a similarly situated employee in a state in which the business community has a strong lobby.

The other lesson is that applying the “reasonable man” standard that theoretically applied in many legal disputes might be the best solution to establishing a proper definition of causation.

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