CAUSATION
- INTRODUCTION
It has always firmly been the burden of the claimant to prove that the connection between damage or harm to the physical structure of the body and the event or activities that occurred within the course and scope of employment in order to prevail in establishing a compensable injury. With the recent cases of Crump and Garza, along with Appeals Panel decisions emphasizing and applying these lines of authority, the requirements to meet this burden have been seen as more strict and therefore less favorable to injured employees. Here I will attempt to revisit the doctrines surrounding the presence and causation of an injury in the course and scope of employment, going beyond merely discussing recent precedent to place those cases in the context of broader issues in the causation debate.
- CAUSATION: A BROAD OVERVIEW
In our practice environment, we are concerned with proving or rebutting allegations that medical conditions exist and are covered under the policy of workers' compensation. Causation questions are central to this work. Causation questions build upon a foundation of a diagnosed medical condition and move to link that diagnosis by credible testimony regarding its origin to a set of factual circumstances that would result in a legal conclusion of liability for benefits.
Causation analysis thus assumes a diagnosis. It involves medical questions, but properly concerns itself with the medical question that arises in the context of a diagnosis (how did we get here?) rather than the diagnosis itself (where are we?).
In the legal arena, we are concerned with what is necessary to establish the required link between the diagnosis and legal liability. This will involve massaging the message-- assembling and presenting the facts to fit the legal requirements of compensation.
In causation, we thus want to know (1) what is wrong-- is there an injury? What is the diagnosis? (2) Did this happen on the job, at least in substantial part, and if so, how? (3) If it didn't exactly happen on the job, how far downstream are we to what caused it, and can that be legally connected to an injury that did happen on the job?(4) What else was going on that might have brought about this diagnosis?
(A) Injury
The cardinal requirement in establishing compensability is the presence of an injury. Without injury there cannot even be a waiverof the right to contest the compensability of the claim. There must be an injury as a predicate finding to a secondary finding annexing that diagnosis to the course and scope of employment.
The statute defines injury as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease.”[1]
Over time this statutory requirement has admitted of various interpretive possibilities. The consistent position of the courts and the Appeals Panel has been to interpret this requirement very loosely such that anything cognizable as some sort of medical condition, no matter how self-limited or benign, could meet this criterion.
The common argument from insurance carriers has been to distinguish pain from a compensable injury, leading to the refrain that “pain is not a compensable injury.” The Appeals Panel[2]has met this head on in a series of cases, and has always concluded that this is accurate, but not really the point. While the Appeals Panel has made that statement, it is annexed to a qualifier:
Moreover, pain alone is not compensable absent some
debilitating condition resulting from an injury.
Thus, the fact that pain is, itself, not a compensable injury does not mean that pain is irrelevant as a factor in considering the injury element of the claimant's burden. It is relevant not as meeting it on its own, but as evidence of an injury, either a simple diagnosis that may be connected to common experience such as a contusion or strain, or a more complex diagnosis that requires expert medical evidence. On its own it is not an injury, but it is evidence of an injury that is within the realm of common experience.
The statute further outlines that the damage or harm must be to the physical structure of the body. The courts have long recognized that there can be some misunderstanding based on how this phrase has been set out by the legislature:
The phrase 'physical structure of the body', as it is used in the statute, must refer to the entire body, not simply to the skeletal structure or to the circulatory system or to the digestive system. It refers to the whole, to the complex of perfectly integrated and interdependent bones, tissues and organs which function together by means of electrical, chemical and mechanical processes in a living, breathing, functioning individual. To determine what is meant by 'physical structure of the body', the structure should be considered that of a living person-not as a static, inanimate thing.[4]
In that case, the Supreme Court used this expansive understanding of “injury” to find compensable the diagnosis of a “psychic trauma.”[5] Thus the clear instruction of the court has been to look at the functioning of a normal, whole, healthy person and to consider that person after an accident, or after the cumulative trauma of repetitive activities, and to examine therefore what has been subtracted out by the event or activities giving rise to the claim. And that even though the definition itself points to “structure,” it is necessary to look deeper than objectively broken or torn structural members to ascertain injury.
Building on this, the courts have affirmed their willingness to find fairly minor physical problems sufficient to constitute an injury. For example, swelling in the leg is enough. In Nat. Union Fire Ins. Co. of Pittsburgh v. Janes,687 S.W.2d 822, 824 (Tex.App. —El Paso 1985, writ ref'd n.r.e.), the court discussed that there was “probative evidence of swelling as well as the statement by Dr. Cochran of aggravation of previous injury.” This would be legally sufficient to support a finding of injury. In further development of this issue, it isolated the swelling and aggravation issues and took them in turn. It found the evidence at best equivocal-- neither the doctor nor the patient's testimony could pass a factual sufficiency test despite the legal sufficiency of the claimed medical conditions to constitute injury.
These points may be seen as very minor. Establishing the minimum bar to proof of a compensable injury is not a terribly thrilling inquiry. In essence, it asks: how close to notbeing injured can you get, while still showing eligibility for benefits? But that latter part is very much the point-- to clear the bar for recovery, no matter how ungracefully, in a system based on open medical, designated doctors, and piecemeal resolution of disputes.
The concept of injury also includes the aggravation of a pre-existing condition. In order:
to prove an aggravation of a preexisting condition there
must be some enhancement, acceleration, or worsening of the underlying condition from
the injury and not just a mere recurrence of symptoms inherent in the etiology of the
preexisting condition.
The concept of aggravation is distinguishable then from symptoms from a medical condition that wax and wane without regard to a specific outside stimulus such as the claimed injurious event.
III. DIFFERENTIAL DIAGNOSIS AND SUBSTANTIAL CONTRIBUTING FACTOR: CRUMP AND GARZA
The Crump[7]case's significance rests on two key holdings. One is the reliability and hence admissibility of differential diagnosis testimony. Two is the application of the substantial contributing factor test to the workers' compensation system.
(A) Differential diagnosis
First, the Court approved of the “differential diagnosis” method of arriving at an expert medical opinion. This method:
is a
routine diagnostic method used in internal medicine
whereby a treating physician formulates a hypothesis as
to likely causes of a patient's presented symptoms and
eliminates unlikely causes by a deductive process of
elimination.[8]
The insurance carrier challenged this method as unreliable and therefore constituting no evidence on which the trier of fact could reasonably rely. The Court held that it was reliable and a proper foundation for the expert's testimony, in consideration of, among other things, that (1) the process itself is generally accepted in the medical community (2) it is useful and produces results outside the context of litigation (that is, actually diagnosing and treating patients), (3) it is as a process subject to review and testing, even if, in the nature of the case, the application to this claim is not itself independently verifiable.[9]
(B) Substantial contributing factor
This substantial contributing factor test the Court defined as:
a substantial factor in
bringing about the injury or death and without which the injury or death would not have occurred
.[10]
To that, it seems necessary to add, “. . . in the time and manner in which it did.” Not to belabor the point, but for Crump, as everyone else, death is a certainty. It is the timing and manner that are up for debate.
The Court further defined what it meant by “substantial:”
The cause must be
more than one of the countless ubiquitous and
insignificant causes that in some remote sense may have
contributed to a given effect as, for example, simply
getting up in the morning. That the term substantial factor
is given to this commonsense aspect of legal causation
simply makes plain to jurors that more than causation in
this indirect, " philosophic sense" is required.[11]
In this, the Court applied the test it had definitively laid out for products liability a few years prior. First of all, the Court noted difficulty in how it had previously stated the doctrine.
To say that a producing cause is "an efficient, exciting, or contributing cause that, in a natural sequence, produces the incident in question" is incomplete and, more importantly, provides little concrete guidance to the jury. Juries must ponder the meaning of "efficient" and "exciting" in this context. These adjectives are foreign to modern English language as a means to describe a cause, and offer little practical help to a jury striving to make the often difficult causation determination in a products case.
From this one final thing is readily apparent: the Court sees the problem not in the nuts and bolts of the doctrine itself, but in the language. It is not at all that the idea is wrong, or even unhelpful. Rather, the language gets in the way of the jury fulfilling its role as trier of fact.
Defining producing cause as being a substantial factor in bringing about an injury, and without which the injury would not have occurred, is easily understood and conveys the essential components of producing cause that (1) the cause must be a substantial cause of the event in issue and (2) it must be a but-for cause, namely one without which the event would not have occurred. This is the definition that should be given in the jury charge.[12]
The Court therefore did not understand itself as elevating the burden for workers' compensation claimants, but merely simplifying the issue for juries. To apply this as a new and more rigorous standard is to misread the opinion.
(C) Attenuation factor and expert evidence in Garza
The Garza[13]case did not change the law regarding expert medical evidence, lay testimony, and causation. It did, however, apply that law definitively to workers' compensation claims and, even more specifically, to the sorts of claims that are commonly encountered within the system (in contrast with Crump, which is the sort of complex medical history resulting in death not seen every day).
In Garza, the San Antonio Court of Appeals reversed and rendered a judgment in favor of the plaintiff/claimant on extent of injury and disability based on the lack of expert evidence to support contentions that would be beyond the scope of ordinary experience.
There are several discernible reasons the Garza case drew scrutiny and then reversal. It is the combination of several factors present in Garza that suggests how practitioners may set up their claims for litigation without falling into the same trap.
First, as to the attenuation factor, the record was highly problematic for the plaintiff because of inconsistency. Not only was the claimant's testimony internally inconsistent, it was inconsistent with his doctor. The claimant's attorney had the unenviable task of harmonizing the claimant's testimony that he hurt his back in the initial injury and felt pain (but was not concerned enough to mention it to the adjuster or to his doctor) with expert evidence from the doctor that the injury would typically lead an individual to complain at most after one week.
The inference here is that, as much as the court suggests expert testimony is the solution, it is also part of the problem. On its face, the diagnoses for the disc injuries demand expert medical evidence. But leaving that aside, the testimony from the doctor regarding when the claimant would be expected to report such an injury is dangerous for the claimant either way.
This is a game that will always be difficult for the claimant to win. If the doctor's testimony regarding expected time period to report the injury varies from the claimant's actions, the doctor has sabotaged the claim. If it is consistent, even that is at best, suspect. For on what Havner-approved, tested, falsifiable, scientific basis can the doctor ever claim a particular time period as expected for reporting an injury? If challenged, the unavoidably anecdotal nature of the testimony would be apparent. Claimants may be better served by maintaining the question of why the claimant delayed reporting the injury as a distinct credibility question, not an element of the causation analysis.
(D) Applying Crump and Garza
(1) Differential diagnosis not required
The Appeals Panel has moved to apply these two recent critical cases while marking boundaries around their applicability. In a recent decision, the Appeals Panel reversed and remanded a case of extent of injury involving adjacent disc disorder, also called next mobile segment disease. This is disc pathology that arises in a disc adjacent to a previously fused disc, allegedly due to increased strain or pressure from the loss of mobility due to fusion. The hearing officer found that the diagnoses were not compensable because the claimant's doctor did not give a discussion of the effects of co-morbidities or disprove other causes. It held:
We note that an analysis of other possible causes of an injury or illness is a
factor to consider when determining causation. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) and E. I. du Pont de
Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). However, the Supreme
Court in Crump noted that “a medical causation expert need not ‘disprov[e] or discredit[] every possible cause other than the one espoused by him.’” The Supreme Court does
not hold that the only method to establish expert medical causation evidence is by
differential diagnosis.[14]
In other words, the expert is not required to use the differential diagnosis process in order to have a valid opinion on causation. The requirement that other causes be excluded arises in the context of evidence in the record of other known etiologies for the condition alleged, not in a vacuum.
The Appeals Panel reversed and remanded for another hearing officer on similar facts. That hearing officer wrote:
Dr. [DK] omits the term “acute chondromalacia” in his causation letter. He does
not rule out how other factors, such as [c]laimant’s athletic activities, are not a cause of
the contended injury, as required in [Transcon. Ins. Co. v. Crump, 330 S.W.3d 211 (Tex.
2010)]. Claimant has failed to provide this specific, required opinion.
The Appeals Panel remanded the case for two reasons: (1) because the hearing officer read Crumpas requiring a differential diagnosis and (2) because the doctor's report incorporated by reference the remaining treatment records. The hearing officer believed that both specifically ruling out other causes and explicitly listing the diagnosis in the causation letter was required. The Appeals Panel neither was a requirement.
(2) Not all diagnoses require expert evidence
The Garza case does not require all injuries be proven by expert medical evidence:
The hearing officer commented that the claimant failed to provide expert medical
evidence correlating the conditions/diagnosis, in this case a cervical and thoracic strain
with the compensable injury. However, we note that the Appeals Panel has long held
expert medical evidence is not required for strains. See APD 992946, decided February
14, 2000, where the Appeals Panel rejected the contention that a shoulder strain
requires expert medical evidence. The Appeals Panel has also declined to hold expert
medical evidence was required to prove a back strain. APD 952129, decided January
31, 1996.
It is important to note what this means and what it does not mean. It does mean exactly what the courts have said, including in the Garzaand Crump cases, that some things require expert testimony and others do not. This applies to medical conditions. Some will require expert medical evidence and others will not. The question is whether the conditions alleged are within the realm of common experience. What it does not mean is that medical records are dispensable. The “expert medical evidence” requirement is very specific. It does not refer to medical records or documentation that list a diagnosis, or even a more specific history, symptoms, physical examination, diagnostic testing, and other material that all culminate in a diagnosis. The requirement is for evidence by an expert that includes a definite opinion on causation of the diagnosis.
(3) What medical records are when they are not expert reports
Thus, all medical records that do not include such a definite opinion on causation are, by the standards of recent case law, not expert opinions on causation. They may be expert opinions on the existence of a diagnosis, symptoms, physical exam findings, or diagnostic testing results. But they are not expert opinions on causation. This is what the Appeals Panel has shown in, for example, Appeal No. 111738. There, the discussion of the claimant being seen for an injury, history and onset of complaints, and positive diagnostic testing are not enough, standing alone, to constitute legally sufficient evidence of causation.
(4) Reversals obliquely connected to Crump
The Appeals Panel has guarded the proper interpretation of Crump throughout its recent line of cases. It reversed and rendered a hearing officer's finding of compensable extent of injury:
Dr. D does not relate those conditions specifically identified in his letter to the
mechanism of injury but rather only acknowledges that the claimant’s “injury could have
exacerbated any pre-existing issues.” Dr. D does not rule out or consider other causes
of those same conditions.
The doctor thus (1) failed to relate specific diagnosesto the mechanism of injury (2) used could havelanguage and (3) failed to rule out other possibilities. A question then arises as to how to square this with other Appeals Panel precedent. As to the failure in (1), the Appeals Panel is not requiring that the doctor use a specific diagnosis in the causation report, but it must be clear from the doctor's causation opinion in the context of the patient's other records what the diagnosis is.
Here, it was not. The doctor said that some conditions were degenerative, others were not . . . and that the diagnostic testing was “positive,” but did not indicate how. As to (2), the Appeals Panel has not held that magic language need be used. This can be understood here as making a fact-specific determination that this (in the context of the vagueness of the diagnosis opinion) that it did not constitute an opinion based on reasonable medical probability. As to (3) this is relevant in that the doctor, in failing to provide a clear explanation of the medical opinion on causation, cannot be understood to be relying on a differential diagnosis process.
Another Hearing Officer's decision was reversed and rendered when the doctor's opinion on causation was conclusory.
The hearing officer, in the Background Information portion
of her decision, comments that the more persuasive evidence is from [Dr. Pr] who after
a recitation of the mechanism of injury and treatment, concluded that the claimant’s
“lumbar disc herniations and symptoms arise solely and directly from his work-related
incident.” A review of the letter from Dr. Pr dated May 16, 2011, referenced by the
hearing officer reflects Dr. Pr stated “it is impossible to comment on the potential shear
forces without having observed the incident itself.” Dr. Pr notes that the claimant was
working full time and was asymptomatic at the time of the accident. Dr. Pr further noted
the work-related injury was significant enough to warrant a trip to the emergency room
with subsequent objective diagnostic testing and that the lumbar MRI performed on
September 28, 2010, objectively documented lumbar disc herniations. Although he
references the lumbar MRI, Dr. Pr does not specifically mention the osteophyte at the
L4 level or explain how the mechanism of injury could have caused the lumbar disc
bulges at the specified levels at issue. Therefore, Dr. Pr’s opinion is conclusory and is
not sufficient to support the hearing officer’s lumbar extent-of-injury findings.
The glaring problem with the doctor's report then is that the doctor, although properly reciting the mechanism of injury and giving a clear opinion as to “lumbar disc herniations and symptoms,” then turned around and expressed agnosticism about the actual physical forces that would have been involved in the mechanism of injury. Then the letter itself fails to connect its diagnoses (herniations) with the disputed issue (bulges). Nor does it mention the osteophyte at L4 (although this would appear to be an isolated problem that should not contaminate the opinion on the disc injuries proper, if it were sufficient on its own). The doctor's opinion thus fails because it shrinks away from the issue of what the mechanism of injury would have done to the claimant's body, and how, on top of failing to link up the right diagnoses to the opinion.
The Appeals Panel has separated out clinical diagnoses from MRI findings when those are not explicitly linked by the expert:
In evidence is a medical report from the claimant’s treating doctor that answers
questions posed to him by the claimant’s attorney. Three of the questions in varying
forms specifically ask the doctor whether or not specific findings of the MRI were in the
doctor’s opinion based on a reasonable degree of medical probability caused or
aggravated by the compensable injury. The final question simply asks the treating
doctor to list his diagnoses. So, the treating doctor simply lists without further
explanation the following: intervertebral disc disorder with myelopathy of the lumbar
region, thoracic segmental dysfunction, myofascitis, and cervical segmental dysfunction (a condition which is not currently at issue). There are other medical records in
evidence that diagnose the claimant with some of these same conditions. However, no
doctor opines that the compensable injury caused or aggravated these conditions.
The Appeals Panel thus had in evidence before it a questionnaire. One part was legally sufficient: it had the doctor given an opinion based on reasonable medical probability as to whether certain specified MRI findings were caused or aggravated by the compensable injury. In contrast, the final question asked the doctor to list his diagnoses, but did not include any discussion of causation for those diagnoses. From the context, it would appear those were connected with MRI findings, but the Appeals Panel declined to make up that gap in the explanation on its own, emphasizing the need for explicit links between various aspects of the expert evidence in the record.
(5) Crump is not a mandate for an endless search
The courts are wary of interpreting Crumpas requiring an exhaustive search for all conceivable lost “causes” of the injury:
Concerning Charter Oak’s fourth subissue––its contention that Swanigan’s
expert opinion testimony is insufficient because it failed to exclude other possible
causes––Charter Oak points to and we have located no evidence in the record of
another cause for Swanigan’s RSD/CRPS. A medical causation expert need not
“disprov[e] or discredit[] every possible cause other than the one espoused by
him.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987). When
evidence of other plausible causes of the injury or condition is admitted, and that
evidence could be negated, then the proponent of expert causation testimony
should offer evidence negating the other plausible causes. See Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997). But here, no evidence
was admitted of other plausible causes of Swanigan’s RSD/CRPS.[20]
The court thus locates the requirement to rule out other possible causes as rooted in the factual record. If there is nothing in the record before the court as to what other possible causes of a medical condition may exist, it is not necessary for the provider to rule out those causes. And the reality of other causes for the disputed conditions need be located in the record, not merely in the argument of counsel.
(6) Post-hoc and substantial contributing factor
Among the perils in considering questions of causation is the post-hoc factor, which is the difficulty of considering the medical condition post-injury as anything other than caused by the accident itself. By this I presume there actually was an injury and distinguish cases where there is a dispute over the fact of an injury altogether. Rather, the point here is to note that, even in cases of acknowledged injury, it will always be difficult to sort out what aspects of the medical condition post-injury, especially considered six months or a year later after the event, are caused by the injury because it is always the case that other forces are constantly acting upon the body-- forces of illness, age, or trauma (which may include further injury caused by medical care itself).
The “substantial contributing factor” analysis is therefore a tool for determining the legal consequences when the medical evidence discloses that multiple forces were acting on the body in concert to produce the disputed medical condition.
(7) The attenuation factor
Following Garzaand subsequent cases, the Appeals Panel has made an effort to tighten the evidentiary requirements in cases where there is a time gap involved in the development of the facts underlying a claim of injury. This they have given the label of an “attenuation factor.” The essence is that of a delay, or attenuated period, between the occurrence of an injury, as alleged, and verification of an injury, as by a doctor.
The Appeals Panel outlined a typical “attenuation factor” scenario:
There is an attenuation factor in this case. Unlike other cases finding lay
testimony sufficient evidence of causation, there are no documented right biceps
muscle complaints close in time to the work injury of ___________. See generally, City
of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.-San Antonio 2009). There are no
medical records in evidence of abnormal right biceps musculature until April 2, 2010,
the date of the designated doctor’s examination. Therefore, the conclusion that the
claimant’s work injury of ___________, caused the diagnosis of a torn right long head of the biceps muscle is a matter beyond common knowledge or experience and would require expert medical evidence. See generally, Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007). Guevara went on further to state that “[c]ompetent proof of the relationship between the event sued upon and the injuries or conditions complained of has always been required.”
The “attenuation factor” can be a significant issue for analysis when there is a delay between the inciting event and recording evidence of the injury by a provider. A gap in time is really very common-- or at least, in disputed claims, almost ubiquitous. And not typically seen as terribly problematic. What renders the “attenuation factor” label difficult is not the burden of explaining a gap, but the burden of explaining it with expert evidence.
Not all “attenuation factor” cases should end up requiring expert medical evidence. We should recognize the difference between actualandapparentattenuation factor cases. Attenuation factor simply refers to a time gap. The question in distinguishing what kind of attenuation factor case is at bar relates to the question: a time gap in what? The commonly postulated time gap, as in the case cited above, is a gap between the injury date and “documented . . . complaints.” This assumes the simultaneity of symptom on set and documentation. But that may not be the case. So in order to figure out what the gap is, and what kind of proof is required, it is necessary to split this in two: documentation and complaints.
In some cases, a claimant may disclaim any symptoms relating to the alleged extent of injury for a period of time after the injury occurred. That is, the record, even with the claimant's testimony, lacks complaints. This raises a direct question for expert analysis: would the claimed condition lay dormant? If so, why? How can it then be connected back to the injury date?
This must be distinguished from a lack of documentation. A sloppy doctor may omit certain complaints, or fail to perform (or propertly perform) physical examination testing. Or a claimant may fail, intentionally or not, to relate those complaints to the doctor, thus creating an absence of documentation where, on the claimant's testimony, complaints existed. Examples may include where a patient declines to tell a physician about sexual dysfunction out of embarrassment or discomfort, ignorant of the possible neurological origin of the problem. It may occur when a claimant is brushed off by a doctor who focuses in on a particular body part and tells the claimant we'll deal with the rest of the injury later. These scenarios typically present more of a raw fact question than one refined and reserved for expert commentary, because it turns on the veracity of the claimant.
However, this may be attacked or defended with expert testimony. For example, expert testimony may confirm or deny that a disease or healing process is advanced enough at the time of detection to determine it should have been ascertainable or present at the time or prior medical treatment.
- CAUSATION IN FOLLOW-ON INJURIES: GENERALLY AND IN DEATH CLAIMS UNDER FERGUSON-STEWART
The question of “follow-on” injuries is an extension of the statutory provision for coverage of the “direct and natural result of the compensable injury.” The injury, by its nature, includes not only the immediate manifestations and effects of the injury, but those which follow in a direct and natural way from the injury itself.
The courts and the Appeals Panel have applied this to matters which, on their face, are not direct or natural results of an injury, but rather are the result of discrete acts made in situations far removed from the original site of the injury. Thus, injuries which are traceable to the acts of third parties can be compensable under certain circumstances. The most prominent is the example of injury resulting from treatment for the claimed injury.[21]
Given that our medical community relies heavily on pharmaceuticals to deal with the effects of injuries, it is not surprising that injuries resulting from the use or misuse of medications have become the subject of litigation. The general rule has been that injury caused by medication taken in accordance with the prescription is a direct and natural result of the compensable injury. In contrast, when injury results from overdose, the Appeals Panel and courts have declined to assess liability on the carrier.
In Texas Workers’ Compensation Commission Appeal No. 960574, decided May
3, 1996, the deceased expired as the result of a "mixed drug overdose," and the
Appeals Panel affirmed the hearing officer’s decision that his compensable injury
resulted in his death. However, we have stated in the context of damage resulting from
drugs taken for a compensable injury, damage or harm that results from the failure of a
claimant to comply with doctor's instructions is not included within the scope of the
original compensable injury. See Appeal No. 93612, supra, and Texas Workers’
Compensation Commission Appeal No. 94257, decided April 18, 1994. There was
evidence in the instant case to support the hearing officer’s determination that the
decedent was non-compliant with the use of the medications he was taking at the time
of death.
The general rule is therefore one of strict liability for injury or death occurring as a result of compliance with treatment and strict non-liability for non-compliance. These are typically the only two choices.
A case that traces out a different path for establishing a direct and natural result from medication overdose is Commerce & Industry Ins. Co. vs. Kimberly Ferguson-Stewart,13-10-00554-CV
(Tex. App.-- Corpus Christi 2012, pet. filed). There, the court upheld a finding of a compensable death as a direct and natural result of the compensable injury when the death was caused by an excess of medication in the system that had been prescribed for the compensable injury. The court relied upon one of the two theories advanced by the beneficiary: namely, that the death resulted when the disorienting effects of the medication resulted in the overdose and subsequent death.
First, the court discussed that its analysis was specific to the jury charge in this case:
The jury charge in this case instructed the jury that “[a] claimant’s death does not
result from medical treatment instituted to relieve the effects of his compensable injury if
the death results solely from a claimant intentionally or knowingly failing to comply with
his doctor’s instructions”. . . . Nevertheless, because neither party objected to the jury charge, we will
assess the sufficiency of the evidence in light of the instruction as given . . . .Accordingly, the question presented by this appeal can
be further narrowed to the following: was the evidence sufficient to support the jury’s
implicit finding that Stewart’s death did not “result[] solely” from his “intentionally or
knowingly failing to comply with his doctor’s instructions”?
Then, in discussing the two theories, the court focused on the notion that the medication caused the claimant to become disoriented, lose focus and memory, and thus be unable to know whether he was taking the medication as prescribed.
The court then tried to give itself some latitude in the evidentiary strictures that might be imposed on such a theory by emphasizing this would be a matter of common experience:
While we recognize that the expert testimony offered at trial was largely
hypothetical and speculative, we conclude that expert testimony was not required to
establish Ferguson-Stewart’s “side effects” theory.
This was because the ultimate issue consisted really in two parts. One was the medical predicate, that the claimant's death was the result of a lethal level of hydrocodone which had been prescribed for the compensable injury. Two was the factual predicate: the lethal level of hydrocodone came into his system by virtue of confusion and memory fog created by the medication itself. The former is a medical question about what the drug did when it entered his system; the second is arguably a fact question for a laymen as to why he caused that entry to occur.
In this case, there was no dispute as to the medical cause of Stewart’s death.
Each of the experts agreed that he died from ingesting a lethal amount of hydrocodone.
The jury was not asked to determine what caused Stewart’s death; rather, it was asked
to determine what caused Stewart to ingest a lethal amount of hydrocodone.
The
former question presents an issue of medical causation that must be supported by
expert testimony. See Guevara, 247 S.W.3d at 667. The latter question, however, is so
“basic” that it may be answered merely with reference to “the general experience and
common sense of laypersons.” Id. at 669. It takes no specialized knowledge for a juror
to conclude, for example, that a patient exhibiting symptoms of disorientation and
memory loss may unwittingly take an excessive amount of prescribed medication.
Rather, the “connection” between symptoms of disorientation and memory loss on the
one hand, and an overdose on the other, “is apparent to a casual observer.” Id.
It is clear from the opinion that the court, being among the most scrutinized appellate courts in the state, is emphasizing this as a holding limited to the record of this case based not only on the charge, on which no error was preserved, and the resulting judgment, which in light of the evidentiary record, was legally and factually supportable. But this seems to be unnecessary given how the analysis should play out. Or at least partly unnecessary.
The medical evidence was present from multiple experts that hydrocodone is known to cause confusion, disorientation, and memory difficulties. The court of appeals appears concerned (in a way that is not unfounded given the scrutiny the Supreme Court has sometimes given) that the Supreme Court would say that the experts must declare that in fact the claimantdid, to a reasonable degree of medical probability, ingest the fatal overdose out of confusion or memory fog in order to be competent evidence. But-- this is key-- the expert can never truly say what did happen. The expert is always reviewing and assuming facts presented to him (occasionally testifying to facts himself, but in no claim is the expert the source of 100% of the facts). The expert's testimony then is really not of whathappened but whether the facts, if believed, are consistentwith a particular understanding of what happened. By its nature, expert testimony is not there to reach the ultimate issues. It is designed to assist the trier of fact in interpreting the factual record.
Seen from this angle, the expert evidence should be enough to survive review. Its reliance on “speculation or surmise” is an illusion, because the surviving spouse as a witness provided testimony regarding the claimant's pre-death activities that corroborated his suffering the cognitive effects of the medication in a way the experts concluded was consistent with accidental overdose and death. The medical testimony was not conjecture. It was firmly grounded in scientific fact regarding the known effects of a drug. The lay testimony was not conjecture. It was straightforward observation of an intimately known individual's behavior. The combination of the two is not conjecture. It is plain vanilla work for a trier of fact.
But going beyond the maneuvering by the appellate court, this presents a fairly novel theory of how to deal with an increasingly common problem in death claims. Death claims are more often arising now from the results of treatment, especially medications. This is in a time when fatalities from direct occupational injury are falling. Medications are frequently the cause of death.
But this naturally pits the most likely expert for the whyquestion relevant to compensability against the beneficiaries, given that while death is a known possible side effect of many medications, it is not ordinarily expected, and certainly not welcome. The liability factor may induce the prescribing physician either not to be helpful at all, in view of the liability trap, or to blame the patient for medication abuse. This case outlines a theory that locates the cause, and thus the blame (as it were), on the medication itself, and therefore neither directly implicates the patient nor the provider.
This case coheres with prior case law in that precedents in the past which have held the effects of medications to be non-compensable trace the reason for a determination that the condition was not a direct and natural result of the compensable injury to the idea that the it was caused by an act of the claimant, either intentional or unintentional overdose, separable from the effects of the compensable injury and the prescription for treatment. In other words, the death by overdose is typically seen as being an act of the will or a negligent act that is outside the chain of causation inherent in a compensable injury. This is much like other cases, where the results of falls due to nerve damage or unstable joints are found not to be compensable.[23] There, the focus is placed not on the first steps in the chain of causation, the compensable injury and its symptoms, but on the final step, an impact with a surface that causes injury apart from a place the claimant is required to be by the injury itself.
- PROVING CAUSATION AFTER CRUMPAND GARZA
In the post-Crumpenvironment, proving causation is rendered somewhat more difficult as a matter of policy, more as a shockwave from the language change articulated in that case than from a wholesale doctrinal change, but even at that not as much as early returns indicated.
The Appeals Panel has settled into an understanding that physicians need not engage in snipe hunts, exhaustively combing medical references for that last obscure alternative theory of causation to refute. But claimants will be held to a standard requiring expert explanation of the theory behind the injury.
In the pre-Crump environment, this often entailed a mere recitation of the fact that a claimant was employed and working without difficulty until the injury, which caused an abrupt inability to continue working because of the onset of symptoms.
(A) The body before the injury
In some ways this basic outline still applies. But it is wise to consider additional elements in order to properly secure the burden of proof. The claimant should look to produce as much evidence as possible relating to pre-injury activities. A good starting point is the job description at the time of injury, along with the wage statement or pay stubs stretching back further in time. This is especially helpful if the claimant worked overtime. The combination of the wage records and the job description may strongl\y supplement the claimant's testimony of a symptom-free life before the injury and provide a solid footing for the doctor's opinion on causation. Crucially, doctors really often have little to say other than that they are doctors and everyone just needs to shut up and do what they say. Creating a robust set of pre-injury facts for an expert to draw from may offset this tendency.
Witness statements by co-employees may provide similar evidence, especially in cases where the job description is not available or is an item of dispute. Friends and family may also provide evidence of pre-injury activities.[24]
Along similar lines, insurance carriers have made it a standing policy to seek pre-injury medical records from all available providers. Given that those records will become part of the file during the discovery process, it will be increasingly relevant to introduce those records on behalf of the claimant as the dog that didn't bark.
(B) The body after the injury
The line of evidence should, for claimants, show an abrupt shift in the claimant's entire world when the injury occurred. Evidence should be presented of what the body was like after the injury: bruising, fractures, tenderness, numbness, pain-- any signs or symptoms of damage or harm. The job is not over because the carrier has accepted the claim a week after it happened. The time is still not too late to document all injured body areas and put the carrier on notice, not for waiver purposes, but to ward off a later attenuation factor argument in an extent dispute.
Post-injury physical activities are often adversely affected by the injury, and this will invariably include household chores and work; in rare cases, it may even affect hobbies and recreation. All of these losses or decreases in function can be corroborated by lay testimony to lay the foundation for the expert. Work restrictions, especially verified by a functional capacity evaluation, will help draw a distinction between pre-injury and post-injury conditions. This can be helpfully contrasted with the job description.
(C) Mechanism of injury
The mechanism of injury is the physics of how the damage or harm came to the employee's body. In a discrete injury case, it is how the accident happened. In a repetitive trauma case, it is a description of the activities in conjunction with frequency and duration.[25] In an occupational exposure case, it is the nature of the exposed substance, along with frequency and duration. The Texas Supreme Court has emphasized how crucial it is to get this information right. In discussing the factual underpinnings of expert testimony generally, it stated:
If the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable.[26]
In a case of discrete injury, there should be evidence of the sequence of events and the forces and objects involved. Distance, weight, velocity, and any other physical factors are precisely at issue.
Accuracy and specificity are at a premium, but it is a double edged sword. Without specifics, an expert's report can be rebutted for its vagueness, in addition to the perception that the expert has embraced the conclusion without regard for the underlying facts. Yet once the mattet gets specific, loosing a single thread of the factual narrative can unravel it in its entirety.
Repetitive trauma injuries can follow a similar track, but should be more subject to verification, being by their nature, repeatable (at least in terms of the constituent actions). Insurance carriers have employed those who analyze the actions of workers over the course of shifts and present hard data regarding the frequency, intensity, and duration of repetitive actions.
Claimants are usually unable to step back from mind-numbingly repetitive work to quantify the frequency and duration of what they do, or even the physical intensity required for lifting, pushing, or other actions. Claimants are often honestly unreliable as witnesses to specifics required for repetitive trauma cases. Very often they are just not the type to quantify anything they do at work other than in the most broad, widely ranging estimates, so it may be necessary to seek other sources to corroborate a claimant's account to avoid setting a trap for the expert due to a faulty factual setup. One are for which the is no substitute for the claimant is in answering how the claimant performed the work, and whether it is consistent with how (for example) a model employee performing the work while analyzed by an ergonomics specialist. Claimants may have ridiculously poor posture or ergonomic habits, as well a subtlely different workplace setup, each of which may increase the likelihood of injury.
With a factual predicate established, the legal requirement is that the claimant show that the activities were sufficiently repetitive and traumatic so as to caused the claimed injury:
To recover for an occupational disease of this
type, one must not only prove that repetitious, physically traumatic activities occurred on
the job, but also must prove that a causal link existed between these activities on the job and one's incapacity; that is, the disease must be inherent in that type of employment as
compared with employment generally. Davis v. Employer's Insurance of Wausau, 694
S.W.2d 105 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). At a minimum, such
proof should consist of some presentation of the duration, frequency, and nature of the
activities alleged to be traumatic.
Therefore, the key is establishing a factual predicate through lay testimony as to the nature of the activities, and then expert testimony regarding the dose/effect relationship between activities of that type and the claimed injury.[28]
Broader studies have been done in recent years to measure the dose/effect relationship in occupational environments. For quite some time the medical consensus appeared to settle nicely into the common understanding that, for example, carpal tunnel syndrome was virtually a disease that one could catch by working in close proximity to a keyboard. The pendulum now swinging back, it is now claimed that occupational factors are non-existent as risks for such injury, and that it can entirely be explained with reference to co-morbidities or predisposition.[29] Some have questioned these conclusions, noting some difficulty with study methodology and under-appreciated findings with respect to increased risk of carpal tunnel syndrome associated with mouse use.[30]
(D) Occupational disease and last injurious exposure
Dose/effect in occupational exposure cases is essential evidence to establishing causation. Additionally, the burden is on the claimant to show actual exposure to the claimed substance in the course and scope of employment as distinguished from employment or life generally. This has often been interpreted as a requirement that the claimant show that the injurious exposure was connected to the work with evidence linking the substance to the workplace. This evidence must be in fact, not in theory-- it must show actual exposure to the substance, not that exposure to that substance commonly occurs in that sort of environment.
For example, the Appeals Panel upheld a finding of compensability when an employee claimed exposure to bacteria in an attic and the record showed, besides the immediate onset of symptoms and no prior history of illness, testing of the injury site that was positive for bacteria.[31]
This requirement is often one that catches all parties off guard because, in a strict liability system, we are unaccustomed to moving quickly to preserve evidence at the scene of the injury for litigation purposes. But that is precisely what the case law requires in occupational exposure claims.
Finally, causation can directly affect coverage in occupational disease claims. Beyond the minimum dose/effect threshold, any exposure is legally sufficient to be injurious. Medical testimony may show various latency periods before a diagnosis related to the exposure is manifest. The question then arises as to which employer shall be liable for compensation. The statute answers that question in terms of “last injurious exposure.”
If an injury is an occupational disease, the employer in whose employ the employee was last injuriously exposed to the hazards of the disease is considered to be the employer of the employee under this subtitle.[32]
This creates a requirement that the dose/effect threshold be compared with the actual exposure level and duration at each employer, beginning with the most recent, and ending with the one that shows exposure above the minimum threshold.
(E) Mental trauma
As noted from early on in this article and the history of workers' compensation, mental (or above, “psychic trauma,” has been within the scope of compensable injuries in Texas. Over time, case law has strictly limited what can be covered in ways that do not apply to other types of injuries. The legislature, upon inauguration of the “new law,” kept in place old case law.[33]
The mental trauma claim is subject to all other requirements of causation, plus that (1) it must be proven by expert medical evidence (which presumes that mental trauma is never within the realm of ordinary experience)[34](2) the injury be traceable to a definite time, location, and event,[35]and (3) it must not be the result of a legitimate personnel action.[36]
The legitimate personnel action exception is read very broadly. Such actions are legitimate even when the supervisor was unprofessional and insensitive in conducting the activity[37]or the employee was wrongfully terminated.[38] However, the manner and subject of the personnel action should be considered.[39] Key is consideration of whether the action violated law or policy.[40]
Despite these limitations, there is room within the law for follow-on mental trauma diagnoses. Depression, anxiety, or other psychiatric conditions may be compensable if they naturally flow from either the pain and dysfunction from the compensable injury or its immediate relation, the loss of earning capacity due to the injury.[41] This is as distinguished from mental trauma due to denial of the claim or benefits, conduct of the insurance carrier, or the dispute resolution process.[42]
(F) Heart attack
Recovery in the case of heart attacks is limited by statute. The requirements outlined are:
A heart attack is a compensable injury under this subtitle only if:
(1) the attack can be identified as:
(A) occurring at a definite time and place; and
(B) caused by a specific event occurring in the course and scope of the employee's employment;
(2) the preponderance of the medical evidence regarding the attack indicates that the employee's work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; and
(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.
The requirements thus exclude heart attacks that are based on cumulative stress (because it must be based on a specific event) or any kind of emotional or mental stress without a “sudden stimulus.” This, coupled with the requirement of work pitted against natural progression of pre-existing disease as substantial contributing factor, severely limits scenarios for a compensable heart attack.
The connection here with the substantial contributing factor test discussed in Crumpshould make clear that both the work and pre-existing disease may be substantial contributing factors. But the statute demands that the work be the greater of the two factors if the pre-existing disease is substantial.
The definite time and place provision necessitates a showing of a specific occurrence traceable within the medical recordsto a particular time and event, not merely a range within a few days.[43]
- CONCLUSION
Causation in the workers' compensation system is a complex affair often requiring delicate interplay between lay testimony and expert evidence. Recent decisions have shaken old fault lines and caused new awareness among attorneys and judges alike of the requirements for proving injury in the course and scope of employment. All practitioners should be able to meet these burdens directly by preparing claims and defenses in light of recent formulations of established doctrines while emphasizing that the continuity with former case law has not altered the essential burdens that fall on the claimant.
[1] Tex. Lab. Code Sec. 401.011(26)
[2] Many citations are drawn from from the Appeals Panel Decision Manual, http://www.tdi.texas.gov/wc/idr/apdmanual.html, which is consulted as a guide to current doctrine. Where the Decision Manual is quoted it will be specifically cited.
[3] Appeal No. 94084r.
[4] Bailey vs. American General Ins. Co., 279 S.W.2d 315, 318 (Tex. 1955).
[5] Id.,at 317.
[6] Appeal No. 002967.
[7] Transcontinental Ins. Co. vs. Crump, 330 S.W.3d 211 (Tex. 2010)
.
[8] Id., at 216.
[9] Id.,at 215-218.
[10]Id.,at 227.
[11]Id.at 224.
[12]Ford Motor Co. v. Ledesma,242 S.W.3d 32 (Tex. 2007)
[13]City of Laredo v. Garza, 293 S.W.3d 625, 629-30 (Tex.App.-San Antonio 2009, no pet.)
[14] Appeal No. 120253.
[15]Appeal No. 120352.
[16]Appeal No. 120383.
[17]Appeal No. 120041r.
[18]Appeal No. 111881.
[19]Appeal No. 111262r.
[20] Charter Oak Fire Ins. Co. vs. Gene Swanigan, NO. 02-11-00147-CV
, (Tex. App.-- Ft. Worth, 2012)
[21]Hartford Accident & Indemnity Co. v. Thurmond,527 S.W.2d 180 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.)
[22]Appeal No. 050105sr.
[23]These sorts of facts are shoehorned into the doctrine of “lowered resistance” to injury. From the Decision Manual: “the fact that an injury may affect a person's resistance will not mean that a subsequent injury outside the work place is compensable, where the subsequent disease or infection is not one which flowed naturally from the compensable injury. Texas Emp. Ins. Ass’n v. Burnett, 105 S.W.2d 200 (Tex. 1937); Traders & Gen. Ins. Co. v. Keahey, 119 S.W.2d 618 (Tex. Civ. App.—Amarillo 1938writ dism’d).” http://www.tdi.texas.gov/wc/idr/apdmanual_liability.html#c06
[24]Although this may be of limited probative value to a hearing officer; as (now retired) HO Robert Richards remarked to me, anyone can get his family to lie for him.
[25]Appeal No 960929.
[26] Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997).
[27]Appeal No. 960929.
[28]See generally http://en.wikipedia.org/wiki/Dose%E2%80%93response_relationship.
[29] Briefly summarized at http://www.ctdmap.com/Information/News/631.aspx
[30]For a quick popular level response, see e.g.http://ergo.human.cornell.edu/JAMAMayoCTS.html
[31]Appeal No. 000651.
[32]Tex. Lab. Code Sec. 406.031(b).
[33]Tex. Lab. Code. Sec. 408.006(a).
[34]Appeal No. 061729-s.
[35]Appeal No. 060176.
[36]Tex. Lab. Code. Sec. 408.006(b).
[37]Appeal No. 931176.
[38]Appeal No. 93867.
[39]Appeal No. 93205.
[40]Appeal No. 951645.
[41]Appeal No. 002455.
[42]Appeal No. 012398.
[43]Appeal No. 93653.
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