Causation

1. Causation Dual Challenge for Clinicians

2. Gary J. Levine, Esq. • Attorney at Law • 369 South Main St • Providence RI 02903 • 401.521.3100 • glevine@garylevinelaw.com

3. Steven G. McCloy, MD Axiom Occupational Health, LLC 100 Smithfield Avenue Pawtucket, RI 02860 401.312.0545 Steven_McCloy@brown.edu Clinical Assistant Professor of Medicine, Brown University

4. Disclosures I/we have no financial interests relative to this presentation.

5. Causation • Dorland’s Medical Dictionary on-line • No entry • AskOxford.com • noun1 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”)

6. 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.

7. 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.

8. 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%

9. Mucoid Ipsilateral sternocleidomastoid ON CERTIORARI IPSO FACTO Respondents idiopathic actus reus Remittitur Petitioners Bill of particulars hepar Internal derangement Per se doctrine trimalleolar prima facie case

10. PAULS VALLEY TRAVEL CENTER v. BOUCHER2005 OK 30 112 P.3d 1175 Case Number: 100169 Decided: 05/03/2005THE 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.”

11. The Jurisdiction Determines the Definitions • In Rhode Island, • “Injury” means and refers to personal injury to an employeearising 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?

12. 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. Legal Causation has two components: Cause in fact: the occurrence of an event brings about a result Proximate cause: relates to the predictability or remoteness of an event.

13. 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?

14. Case #2 The Leaky Secretary

15. 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.

16. Case # 3

17. 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?

18. There is no latex in “latex” paint

19. [We should all groan at this point because low back pain is so common, so difficult and so important.]

20. 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.

21. Case # 4 NIOSH process for determining work relatedness What is the disease? How certain are you? What evidence supports/does not support the diagnosis? What is the epidemiologic evidence for that condition? Is there support for a relationship to work? Is there evidence that exposure was of frequency, intensity and duration to support work-relatedness? What other factors are present in this case? Is there information to suggest that the history, etc. are inaccurate? Is there corroboration? Source: Glass, p. 60. • Evidence of Disease • Epidemiology. • Evidence of exposure • Consideration of other relevant factors • Validity of testimony. • Conclusion

22. Case #4 Is there evidence of disease? 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. • 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.

23. Case #4 Is there epidemiologic evidence to support this diagnosis?

24. Case 4 Is there evidence of exposure? 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 MMPI Small 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. • 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.

25. Case 4 • Is the testimony valid? • Is there Cause in Fact? • Is there Proximate Cause?

26. Discussion, Argument, Debate, Thoughts? • Thank you for your attendance and attention.