17 th Annual Tennessee Workers compensation educational conference

1. Understanding the Medico-Legal Implications of Causation in Workers’ CompensationDr. James Talmage and Tim Kellum, PanelistsJeff Francis, Moderator

2. 17th Annual Tennessee Workers compensation educational conference Understanding the Medico-Legal Implications of Causation in Workers Compensation June 18, 2014 Text 754729 and your Questions to 22333

3. 2013 Legislative reform Legislative changes take effect on July 1, 2014, redefining injury/personal injury and creating new standards with respect to compensability. Text 754729 and your Questions to 22333

4. Injury and Personal Injury*Pre-2011 Amendment* • Injury by accident or occupational disease arising out of and in the course of employment causing either disablement or death of the employee. • Included mental injuries arising out of and in the course of employment. • Standard for compensability was essentially a two pronged test wherein the injured Employee had to prove by a preponderance of the evidence that the injury/condition • 1) arose out of and • 2) was incurred in the course of theemployment. Text 754729 and your Questions to 22333

5. Arising out of/In the course of Employment(Pre-2011 Amendment Cont.) • “Arising out of” refers to the cause or origin. • Requires causal connection between the employment conditions and the resulting injury. • “In the course of” refers to time and place. • In general, an injury occurs 'in the course of the employment if it occurred while the employee was performing a duty he/she was employed to do. Text 754729 and your Questions to 22333

6. Legislative Amendment 2011 • An injury was considered to be “accidental” only if caused by • Specific incident or set of incidents arising out of and in the course and scope of employment • Identifiable by time and place of occurrence • Diseases “in any form” were not included • unless the disease arose out of and in the course and scope of employment • Cumulative trauma conditions, hearing loss, carpal tunnel, or any other repetitive motion conditions were not included • unlessthe condition “arose primarily out of and in the course and scope of employment.” Text 754729 and your Questions to 22333

7. 2011 Amendment Cont. • In addition the legislature created a rebuttable presumption concerning the opinion of the authorized treating physician selected from the employer’s designated panel of physicians. • More specifically, the opinion of the authorized treating physician selected from the employer’s designated panel was to “be presumed correct on the issue of causation” rebuttable by a preponderance of the evidence (i.e. more likely than not). Text 754729 and your Questions to 22333

8. Out with the old and in with the new LEGISLATIVE REFORM OF 2013 Text 754729 and your Questions to 22333

9. New Definition Injury/Personal injuryfor injuries occurring on or after July 1, 2014 Pursuant to Tenn. Code Ann. §50-6-102(12): Injury and personal injury means • An injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulative trauma conditionsincluding hearing loss, carpal tunnel syndrome or any other repetitive motion conditions • arising primarily out of and in the course and scope of employment,that causes death, disablementor the need for medical treatment of the employee. Text 754729 and your Questions to 22333

10. Injury by Accident • An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents arising primarily out of and in the courses and scope of employment, and is identifiable by time and place of occurrence. • Does not include the aggravation of a pre-existing disease, condition or ailment unless it can be shown to a reasonable degree of medical certaintythat the aggravation arose primarily out of and in the course and scope of employment. Text 754729 and your Questions to 22333

11. Reasonable Degree of Medical Certainty (Aggravation of pre-existing conditions) • Aggravation of a pre-existing condition or disease is not compensable unless shown “to a reasonable degree of medical certainty” that the aggravation arose primarily out of and in the course and scope of employment. • Reasonable degree of medical certainty requires a finding by the physician that the aggravation “more likely than not considering all causes,as opposed to speculation or possibility, arose primarily out of and in the course and scope of employment.” Text 754729 and your Questions to 22333

12. MENTAL INJURY • Pre-reform language: Loss of mental faculties or mental or behavioral disorder where the proximate cause is a compensable physical injury resulting in a permanent disability or an identifiable work-related event resulting in a sudden or unusual mental stimulus. • Post-reform language: Loss of mental faculties or a mental or behavioral disorder, arising primarily out of a compensable physical injury or an identifiable work-related event resulting in a sudden or unusual stimulus. • Neither definition includes a psychological or psychiatric response due to loss of employment or employment opportunities. Text 754729 and your Questions to 22333

13. OCCUPATIONAL DISEASE • No change in statutory definition • Change in language from “No disease in any form except when the disease arises out of and in the course and scope of employment” • To include “Occupational diseases including diseases of the heart, lung, and hypertension…arising primarily out of and in the course and scope of employment. • Change in standard from “arising out of…” to “arising primarily out of…” Text 754729 and your Questions to 22333

14. Standard for compensable injuries occurring on or after July 1, 2014 • Injury/disease/condition must be one …”arising ‘primarily’ out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee.” • Again, no aggravation of pre-existing condition unless “shown to a reasonable degree of medical certainty” that the aggravation arose primarily out of the course and scope of employment. Text 754729 and your Questions to 22333

15. Arising primarily out of and in the course and scope of employment • Injury/condition arises primarily out of and in the course and scope of employment • Only if it has been shown by a preponderance of the evidence that the employmentcontributed to more than 50% in causing the injury considering all causes. • Preponderance of the evidence = more likely than not. • Requires consideration as to causes of injury aside from employment • “Course and scope of employment” Text 754729 and your Questions to 22333

16. Causing Death, Disablement or Need for Medical Treatment • An injury causes death, disablement, or the need for medical treatment only if it has been shown to a reasonable degree of medical certainty that it contributed more than 50% in causing the death, disablement or need for medical treatment, considering all causes. • Shown to a reasonable degree of medical certainty shall mean that, in the opinion of the physician, it is more likely than not considering all causes as opposed to speculation or possibility. • Requires a finding by the physician that the injury “more likely than not considering all causes, as opposed to speculation or possibility,” contributed more than 50% in causing the disablement, death, or need for medical treatment. Text 754729 and your Questions to 22333

17. Presumption as to opinion of panel physician remains unchanged • The opinion of the treating physician, selected by the employee from the employer’s designated panel of physician, shall be presumed correct on the issue of causation, but this presumption shall be rebutted by a preponderance of the evidence. Text 754729 and your Questions to 22333

18. Summary of Standard for compensable injury Post July 1, 2014 • Injuries/conditions covered: Injury by accident, mental injury, occupational diseases, and cumulative trauma/repetitive motion conditions. • No aggravation of pre-existing condition unless shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment (i.e. employment contributed more than 50% in causing the aggravation of the pre-existing condition). • Employeemust show by preponderance of the evidence that the employmentcontributed more than 50% in causing the injury/condition. • Employeemust showto reasonable degree of medical certainty that the injury contributed more than 50% in causing death, disablement, or the need for medical treatment. Text 754729 and your Questions to 22333

19. Burden of Proof • In a workers compensation suit, the employee has the burden of proving all elements of his/her case by a preponderance of the evidence. • Employee must show that he/she suffers from an injury by accident, occupational disease, mental injury, cumulative trauma condition. • That the injury/condition • arose primarily out of and in the course of the employment and • caused death, disablement, or need for medical treatment • Preponderance of evidence = more likely than not Text 754729 and your Questions to 22333

20. Proof of causal relationship • Except in the most obvious, simple and routine cases, a claimant must establish by expert medical evidence the causal relationship between the alleged injury and the claimant’s employment activity. Text 754729 and your Questions to 22333

21. Proof of causal relationship Cont. • Currently: An award may be predicated on medical testimony that the employment activity or condition “could be” the cause of the injury where there is supplemental information from the employee or other evidence to establish causation. • Under new standard, “Shown to a reasonable degree of medical certainty shall mean that, in the opinion of the physician, it is more likely than not considering all causes, as opposed to speculation or possibility.” • “Shown to a reasonable degree of medical certainty” is required showing for aggravation of pre-existing conditions and to establish that the injury contributed more than 50% in causing death disablement or the need for medical certainty. Text 754729 and your Questions to 22333

22. Implications of new standard • Arising primarily out of and in the course and scope of employment • Last Injurious Exposure Rule? • Aggravation of pre-existing conditions? • No more “could be”? • Others? Text 754729 and your Questions to 22333

23. Judicial Interpretation/Construction of Chapter • Pre-reform • Strict statutory construction in derogation of common law not applicable • Declared to be a remedial statute “which shall be given an equitable construction by the courts to the end that the objects and purposes of this chapter may be obtained.” • Any reasonable doubt as to whether an injury "arose out of the employment" is to be resolved in favor of the employee Text 754729 and your Questions to 22333

24. Judicial Interpretation/Construction of Chapter • Post-reform: Tenn. Code Ann. 50-6-116 • For any claim for workers compensation benefits for an injury when the date of injury is on or after July 1, 2014, this chapter shall not be remedially or liberally construed • Shall be construed fairly, impartially, and in accordance with basic principles of statutory construction and shall not be construed in a manner favoring either the employee or employer. Text 754729 and your Questions to 22333

25. Causation Tennessee Division of Workers’ Compensation 17th Annual Educational Conference June 18, 2014 Text 754729and your Questions to 22333

26. Questions ? James B. Talmage MD, Occupational Health Center, 315 N. Washington Ave, Suite 165 Cookeville, TN 38501 Phone 931-526-1604 (Fax 526-7378) olddrt@frontiernet.net olddrt@occhealth.md Text 754729and your Questions to 22333

27. Text 754729and your Questions to 22333

28. James B. Talmage MD Adjunct Associate Professor Division of Occupational Medicine • Department of Family and Community Medicine Meharry Medical College, Nashville, TN 28

29. James B. Talmage MDFinancial “Conflict of Interest” Disclosure • “Reviewer”, AMA Guides, 5th Edition • Associate Editor, the Guides Newsletter • PAID • Co-Editor & Co-Author, the Guides Casebook, 2nd Edition • PAID • Co-Editor & Co-Author, A Physicians Guide to Return to Work • PAID royalties • Consultant: Guides Impairment Calculator software • PAID Text 754729and your Questions to 22333

30. James B. Talmage MDFinancial “Conflict of Interest” Disclosure • Co-Author, AMA Guides, 6th Edition • PAID • Member, 6th Edition Errata Committee • PAID • PAID consultant: • Impairment & Disability Products • Author: Guides Sixth Impairment Training Workbooks: • Spine PAID • Lower Extremity PAID • Neurology, Psychiatry, & Pain PAID Text 754729and your Questions to 22333

31. AMA Publications • AMA Press: 1-800-621-8355 or • www.amapress.com 31

32. AMA Publications

33. 2005 & 2011 • 2nd Edition • I receive royalties

34. AMA Press: Royaltieswww.ama-assn.org FINANCIAL CONFLICT OF INTEREST No role

35. Paid Consultant Federal Motor Carrier Safety Administration Physician Work Group National Registry Certified Medical Examiner Item Writing Group and Test Development Group Consultant on medical issues affecting commercial motor vehicle driver safety

36. Emergency Part/Full Time Job • I was the TEMPORARY “Fill in” Medical Director, Tennessee Division of Workers’ Compensation: March to December 2013. • Now part time Assistant Medical Director.

37. ACOEM’s Practice Guidelines, 2nd Edition NO ROLE 37

38. UNPAID CHAIR: Spine Committee Legally presumed correct treatment for workers’ compensation utilization review in California and Nevada. Low Back Chapter 2007 366 pages 1310 articles reviewed and referenced. Neck chapter 2011 332 pages 895 articles reviewed and referenced Text 754729and your Questions to 22333 2007

39. www.mdguidelines.comI NO Longer Have aFINANCIAL CONFLICT OF INTEREST

40. www.mdguidelines.com WAS PAID CHAIR Musculoskeletal Advisory Committee 3rd, 4th, & 5th Editions. WAS Paid CHAIR of the Medical Advisory Board 6th Edition. 40

41. The speaker is a Past President of “The premiere society for the prevention and management of disability” For more information, contact AADEP @ 1-800-456-6095 or visit the website @ www.aadep.org UNPAID Text 754729and your Questions to 22333

42. There is more to causation analysis than the patient’s Statement: “I did not have this before …” CAUSATION: Sometimes simple, sometimes NOT

43. Causation Decision AFFECTS Outcome • Flawed causation analysis, and flawed statutory or regulatory definitions of “work related” lead to poorer treatment results. • Workers’ Compensation Cases are not more severe medically, yet • Treatment results are worse • Thursday, 9 am Session on this topic

44. Causation

45. Causation “Analysis” as Currently Commonly Practiced • The employer/insurer schedules an appointment for an employee, assuming the physician will do causation analysis and state whether or not the case should be considered to be “work related” or NOT. Text 754729and your Questions to 22333

46. Causation “Analysis” as Commonly Practiced • Many physicians assume since the employer or insurer made the appointment, the case has ALREADY BEEN DETERMINED to be work related, and they record just 1 sentence about causation to “orient” a reader Text 754729and your Questions to 22333

47. And THEN • The letter arrives from the employer – insurer asking for clarification of how the doctor arrived at the decision the complaint is work related.

48. Can Doctors Accurately AssessCausation in Cases withoutMajor Obvious Traumatic Injury? • Medical Students are NOT trained in this. • Family physicians, Orthopaedic Surgeons, Neurosurgeons, PM&R doctors, etc are NOT trainedin this. • Many physician practices use a PA or NP to do the initial visit assessment, and PAs and NPs are NOT Trained in this. • Note: the law ASSUMES the patient will see a physician, but many clinics use PAs and NPs for the initial visit, or for many early visits Text 754729and your Questions to 22333

49. Problem: The doctor has never been trained in orstudied causation analysis. • Problem: The doctor has not read the scientific studies on possible work related causation for this diagnosis. • Problem: Many doctors will almost NEVER changeanopinion once it has been expressed. • “I made a mistake.” is VERY HARD for doctors to say. 49

50. Literature ExistsBut YOU Probably Don’t Read the Journals in which it is published • American Journal of Epidemiology • Annals of Rheumatic Disease • Arthritis and Rheumatology • Journal of Clinical Epidemiology • American Journal Industrial Medicine • British Journal of Industrial Medicine • Epidemiology • Ergonomics • European Journal of Epidemiology • International Archives Occupational and Environmental Health • Journal of Occupational and Environmental Medicine • Journal of Rheumatology • Occupational Medicine • Occupational and Environmental Medicine • Osteoarthritis & Cartilage • Rheumatology • Scandinavian Journal of Work and Environmental Health • Work Text 754729and your Questions to 22333