In Texas, the law distinguishes between an insurance carrier accepting that an injury occurred on the job, and accepting that a specific diagnosis or medical condition resulted from that.
In other words, an insurance carrier, at almost any time in the claim, can say: yes, we understand and agree you were hurt on the job. But we disagree that your back was injured. We think it was only your knee. Or, we agree that your back was injured, but we think it was just a sprain or a strain, nothing serious. Your herniated disc is not from this accident-- it's just part of the normal aging process. Never mind that you have never had back problems before, or that you are only 25.
In order to overcome this denial, it is necessary to present expert medical evidence of "causation" of the medical condition in dispute. This must be specific documentation from a doctor not just that you have the condition, but that the total circumstances are consistent with the condition being work-related to the event that gave rise to your claim.
It all starts with the mechanism of injury.
MECHANISM OF INJURY
The doctor must explain how the mechanism of injury in this case caused, or in the alternative, aggravated/accelerated/worsened these medical conditions.
The mechanism of injuryis simply the accident or repetitive activities that allegedly gave rise to the medical conditions at issue.
The doctor must accurately recite/describe that mechanism.
Details are important (how heavy was the box the patient lifted? How far down the stairs did the patient fall? If the patient fell, how much does he weigh? If the injury was a repetitive trauma, how much physical force, in which directions, do tasks require of the patient? How many times are those tasks repeated in an hour, and over the course of a shift? How many months did the claimant do that repetitive work?
If the statement in early records differs from what the patient reported to the doctor, it is important indicate that in the report, and state whether any differences are material to the opinion.
CAUSATION
In terms of causation, the issue is whether the mechanism of injury is a “but for” cause of the resulting medical condition. As the Texas Supreme Court has defined the matter, the issue is whether the mechanism of injury was “a substantial factor in bringing about the injury . . . and without which the injury . . . would not have occurred.” The Court said further:
we held that what had been “a frequently submitted definition of ‘producing cause’ should no longer be used.” Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 35 (Tex.2007). The trial court in that case had given the products liability pattern jury charge definition: “ ‘Producing cause’ means an efficient, exciting, or contributing cause that, in a natural sequence, produces the incident in question. There may be more than one producing cause.” Id. at 45.8 Because we held that the trial court committed reversible error in a separate part of the charge, we reversed on that ground and remanded the case for new trial. Id. at 44. But to assist the parties and the court on remand, we further held that producing cause should be correctly defined as “a substantial factor in bringing about an injury, and without which the injury would not have occurred.” Id. at 46.
As many medical conditions (for example, arthritis in the knee, lumbar spine disc degeneration) can and do occur merely with the passage of time, this is meant to encompass a time element-- in other words, that the mechanism was a substantial factor in bringing about the injury, and without which the injury would not have occurredin the time and manner in which it did.
So, for example, a person with degenerative knee arthritis may have that asymptomatic condition prior to an injury, but have that condition aggravated (it is suddenly symptomatic when it was not before), accelerated (the degenerative process has advanced further than the normal aging timetable would indicate, resulting in pain, disability, and an immediate or near future need for surgery).
The doctor must be specific as to the physiological processes associated with this medical condition and how the outside forces acting on the body through the mechanism of injury bring about this injury.
DELAY IN SYMPTOMS OR DOCUMENTATION
If there was a delay either in manifestation of the symptoms (e.g., the subjective complaints did not begin in close proximity to the mechanism of injury) or the documentation of the symptoms (the symptoms are not recorded in the medical records promptly, either because the patient or provider chose not to mention the symptoms promptly), then this should be discussed also. For example, if the patient admits that the symptoms did not begin until some lengthy period of time following the event or activities in question, whether that timeline is consistent with the event or activities being a cause of the condition should be discussed. Similarly, if there is a failure to document the condition in a timely fashion, explanations for that should be mentioned (e.g. oversight on the part of the provider, it being outside that specialist's purview, masking of the pain by narcotic medication or whole body pain following a severe injury, subjective minimizing of the symptoms by the patient who believes it will all go away with time, etc.).
Please note that if there is a delay regarding manifestation or documentation of symptoms, most judges will consider that a strong barrier to ruling in favor of the patient without an adequate explanation.
ALTERNATIVE CAUSES
Under the case law, it is important to consider alternative causes for the medical condition. For example, some medical conditions can be caused by diabetes, excessive weight, hormonal factors, and other non-occupational medical problems. It may be obvious to the provider that none of these are a factor. Regardless, if any such causes are EVER connected to that diagnosis, they should be discussed and ruled out. Failure to do so can be fatal to the claim.
Example: the literature discusses that carpal tunnel syndrome has a high prevalence in diabetics, women (especially middle-aged), those who are overweight, and those with thyroid problems. For patients with such conditions, it should be discussed why it is believed those are not a factor in the injury, or perhaps why they are only a small factor with the injury being the predominant “but for” cause.
AGGRAVATION
Some key considerations regarding aggravation:
1. Whether the medical condition, if aggravated, was asymptomatic prior to the occupational event or activities in this case.
2. What activity level the patient had that would substantiate that the condition was asymptomatic prior to the injury. For example, if an employee was an active jogger before the injury, and would not have been able to do so with the knee in its state post-injury, that should be discussed. Or if the patient was a good and productive worker in a factory before the onset of repetitive trauma symptoms, but could not reasonably have been so productive if the symptoms had been there all along, that should be mentioned.
3. Aggravation is not a “get out of jail free” card. A doctor cannot simply say, “aggravation” and walk away. A persuasive case for aggravation needs to take into account the prior medical history (or absence thereof), activity levels on and off the job pre-injury, whether the condition/symptoms show any signs of being acute in diagnostic testing, and how the condition can be distinguished from a mere progression of degenerative processes.
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