Workers’ Comp Vol. 2: Questions & Answers
A Grants Pass physician asks, how can physician document causation and determine whether a specific activity/job is at least 51% responsible for a problem? This question is pertinent in Workers’ Compensation law. First, we must recognize the difference between an occupational injury and an occupational disease. An occupational injury is a specific event. An occupational disease occurs gradually, over time; it is a process, such as an over-use syndrome, resulting from repeated or prolonged exposure to trauma or substances at the work place.
The 51% (or “major cause”) rule works differently depending on whether we are talking about an injury or a disease. Only if a patient has a relevant or causal pre-existing condition at the time of the injury does the injury need to be at least 51% of the cause. For example, if a patient had some degenerative changes in the injury area (even if they did not require treatment before the injury), the question becomes, whether the injury or the degenerative changes are the major (51%) cause of the need for treatment after the injury.
If there is no pre-existing condition related to the injury, then an injury need not be the major (51%) cause, but only need be a “material contributing cause,” -that is, a substantial or important factor -of the need for treatment.
With regard to occupational diseases, however, – such as noise-related hearing loss, carpal tunnel syndrome, etc. – we must prove that the employment conditions are the major contributing cause, whether there is a pre-existing condition or not.
Since many things are being called pre-existing conditions (a hotly debated issue now), attorneys will often look to prove the work injury was the major cause of the resulting condition (strain, herniated disc, etc.) or of the need for treatment.
Taking specific note of the mechanics and bio-mechanics of the injury (or disease) helps to connect it to work events or activities. Rather than just stating, “John strained his back at work,” it is better to note that John “strained his back when he bent to lift a 50 lb. box, then twisted to load it onto a truck.”
By contrast, in the personal injury context (auto accidents, etc.), the medical evidence need only show that the accident was a significant factor in producing the injury and/or the condition requiring medical treatment. So, in all jury cases, the physician need only say that the accident was a significant factor. The major cause (i.e. 51%) standard does not apply.
This article was prepared by Robert L. Chapman
Posted in: Black Chapman Legal Articles