PART 1
This article is part one in a four-part series regarding legal and medical causation in workers’ compensation cases.
I. Prologue – What Is at Stake in All Aspects of Utah’s Workers’ Compensation Act (WCA) and Occupational Disease Act (ODA)?
“And some things that should not have been forgotten were lost. History became legend. Legend became myth. And for two and a half thousand years, the ring passed out of all knowledge.” Galadriel in The Lord of the Rings, by J.R.R. Tolkien.
As the Commission would now like to say:
“And some things that should not have been forgotten were lost. History became legend. Legend became myth. And after 100 years of neglect, nicks and cuts, the WCA, as it once equitably existed, passed out of all existence.”
II. What are the Dynamics at Play in Causation Findings?
A. These are Highly Complex and Scientifically Technical Decisions.
A review of the cases demonstrates that a determination of legal and medical causation is a highly difficult process that requires an evaluation of disputed facts, the aid of and often absence of technical information and expertise, and the application of the inexact “art” of medicine. In such a highly disputed area of legal analysis, when decision makers do not have an undisputed set of extensive facts explaining every aspect of an injured worker’s prior medical history, prior pre-existing conditions, and a detailed understanding of all the forces and mechanics involved in the injured worker’s mechanism of injury, it is understandable that the gaps will be filled by supposition, uncommon-common sense, prejudice, capriciousness, and junk science.
Or, there may just be a reasonable difference of opinion within which lines must be drawn, leaving both sides with the assurance that they will just have to learn to live with a healthy degree of bedeviling uncertainty in analyzing how legal and medical causation will be determined.
B. Corruption – Filthy Lucre v. Honest Earnings Making a Living by Filling a Need.
It has been more than anecdotally – and in fact, scientifically – demonstrated that when an alleged expert has a significant monetary incentive to support one side of a highly contentious, factually ambiguous, and scientifically unsupported dispute, such experts quickly learn that the path to riches is paved by disregarding any and all information that detracts from their position and by focusing on only those facts and sources of information that support the position of the entity that stands to pay them the most money. This is especially the case when the alleged experts are required to take a position between those two sides. Because of this, it is without dispute that despite their high socioeconomic status, the medical evaluation industry is filled with the most highly educated and polished charlatans, fraudsters, and scoundrels that money can buy.
On the other hand, who can blame them? Legislators, administrators, judges, and lawyers have created a system in which these charlatans are compelled to act badly. Despite this, our system has taken no action whatsoever to try to bring any kind of reliability to this system. The sad fact is that because of our inaction and indolence, they perform the role we require of them.
C. The Junk Science of Medical Causation and Disability Findings.
The basic components of a well-designed, scientific study require:
1-2) Question and Observations. The “question” is a concrete inquiry about what the experiment is trying to answer. The “observations” are a memorialization of what is observed throughout the course of the experiment. For example, an appropriate question would be this: Can a ground-level fall cause a permanent derangement? An appropriate observation would be this: While conducting an experiment in which subjects are tripped at ground level, accurate detailed observations must be kept for each fall, along with the consequences thereof.
3) Hypothesis. This is a prediction of the outcome of the particular experiment. For instance, a hypothesis could be stated as: 1) A ground-level fall cannot cause a permanent injury; 2) Repetitive, prolonged typing over many years cannot cause carpal tunnel syndrome; or 3) A person who sustains a sprain, strain, or tear of a muscle, tendon, or ligament always returns to baseline.
4) Method. This is the description of the methods, protocols, and materials used in an experiment. This allows the experiment to be replicated to determine if the same results can be produced and verified. For instance, an experiment could identify 100 human test subjects between the ages of 40 to 45 who were vetted to establish that they had no impairments or diseases, and who were all of the same sex, height, and weight with approximately the same conditioning. All 100 subjects could then be blindfolded and required to walk at a brisk, six-mile-an-hour pace on a concrete surface. At some random time, when the test subjects had reached the required velocity, they could then all be tripped by using the same steel rod and deployment method. Furthermore, to simulate unanticipated workplace accidents, the subjects would not be told that they are going to be tripped. This experiment could be repeated with 100 additional subjects with different controlled variables.
5) Results. The researcher then is required to describe the results of the experiment with particularity. For instance, the above-noted experiments could document the following results: Out of the 100 test subjects, 96 had injuries. Of that 96, 13 required medical treatment and care. Of that 13, 8 sustained a permanent derangement of a body part or system, etc.
Furthermore, a proper medical experiment should have independent and dependent variables. An independent variable is the part of the experiment, chosen by the researcher, that is independent of the participant’s control, such as the type, height, and activation of the steel rod that trips the subject in the hypothetical experiment, noted above. The dependent variable is the behavior that the experiment observes or measures. In this case, the dependent variable is how each subject reacts when tripped, and what injuries result therefrom. The experiment must also select a particular sample from the population, and a sufficient number of test subjects, for the experiment to produce reliable results. Since in this particular experiment we are trying to determine whether or not a ground-level fall – independent of all other variables – can cause an injury, it is indispensable that all the test subjects are of similar body composition and do not have other contributing factors that could combine with the fall and cause an injury (which would also be an important thing to explore, to determine how certain maladies or conditions combine with the fall to increase the likelihood of a permanent injury).
Why is this important?
Now that it is clear what is required in a proper experiment to produce valid scientific evidence, it compels the question: How much of what we are being told by treating physicians, medical evaluators, FCE evaluators, and medical panels have any scientific validity, whatsoever? Alarmingly, the vast majority of opinions we get from these sources – especially regarding medical causation and restrictions and limitations – have no scientific validity or reliability, whatsoever. Why? They are not amenable to scientific study. The fact is, our experts are simply guessing.
At Commission seminars, many of the most vocal medical experts often indicate that correlation is not causation. However, when you read and analyze the sources and epidemiological studies they are using to make their medical cause determinations, you must realize that those sources are not proper scientific studies and are merely anecdotal observations that are often no more than establishing a correlation. Moreover, the extrapolations they draw from those studies are faulty and don’t account for numerous other explanations for the results they are trying to use as examples of medical causation.
An injured worker is more knowledgeable than the experts about what injuries he/she sustained from an accident, and about what his/her limitations are. Moreover, in analyzing that information, our collective common sense and common experience is more helpful than eliciting opinions dressed up by medical experts in the trappings of medical jargon. Some medical expert opinions are similar to amassing a pile of moist dung, dressing it in a several-thousand-dollar designer evening gown, and then calling it a supermodel.
D. Forensic vs. Treatment-Based Medical Care.
Because the treatment given to an injured worker is often not guided by the forensics of proving that the injured worker has sustained a permanent derangement, and because physicians treating injured workers are paid by, and controlled by, insurance companies, there is no motivation to request testing that can show what injuries were pre-existing, acute, or do not return to baseline. For some injuries, there is a limited window of time during which it can be categorically established that the workplace accident caused a particular injury, like a herniation, for example. Hence, because of the passage of time, without forensic testing, it cannot be determined if the work-related injury caused a permanent derangement. This often makes it impossible for an injured worker to prove that what caused a permanent or serious injury was what a panel has discounted and labeled to be a “usual and ordinary,” or “mild” to “medium” work-related mechanism of injury.
E. Wolf Packs vs. Snow Leopards.
Industrial commissions, workers’ compensation insurers, employers and their defense counsels share these interests: reducing premiums, minimizing the expense of providing benefits to injured workers, and maximizing profits. This can be achieved by promulgating arbitrary policies that terminate benefits, reduce litigation expenses, limit the cost of medical care, and limit the amount of indemnity benefits. This can be achieved by taking advantage of our absence of medical knowledge. These entities have no economic incentive, whatsoever, to pursue protocols and policies that help better establish the science of medical causation and the science of disability, and to establish the actual economic costs of workplace injuries to the injured worker. Consequently, since they act as a group and can coordinate strategies as a group, they dominate the workers’ compensation arena.
On the other hand, the United States workforce is mostly non-union, and their attorneys do not pool resources, as do their more well-healed and powerful counterparts. Other than through litigation and political advocacy, injured workers and their attorneys do not engage in concerted efforts to advance medical knowledge and understanding about medical causation and disability, or to take measures to unmask the rampant fraud in medical evaluations. In short, petitioners and their attorneys act like snow leopards in that they “hunt” alone and often in the dark. Industrial commissions, employers, insurance companies and their attorneys act like wolf packs that prey upon the individual injured worker and his/her groveling attorney, who cling like a flea upon the injured worker’s back.
F. Universalism vs. Particularism.
In the Great Courses series, presenter and author, Professor David Livermore, Ph.D., created a treatise on “Customs of the World: Using Cultural Intelligence to Adapt, Wherever You Are.” This treatise highlights what makes cultures different. Most of those differences concern balancing equally important but competing interests. One such cultural difference is how cultures and the individuals within a culture apply societal norms, rules, and laws. He divided cultures into those that are Universalists and those that are Particularists.
Universalist cultures ascribe to the principal that rules and law should be strictly applied, irrespective of the situation, status, or relationships between peoples, governments, and entities. Particularist cultures ascribe to the principle that rules and laws should be softened, bent, or disregarded based upon those same factors. That may seem foreign to some of you, but even in our Universalist culture, we make exceptions to the rule of law in our granting of legal privileges and in our imposition of burdens and presumptions.
In a Particularist culture, it has been demonstrated that the degree to which a particular organization or individual will be honest regarding a conflict or dispute, either as a party or witness, depends upon factors such as the circumstances, the relationships between the witnesses and parties, and the status of the parties. For instance, in Brazil, there is the saying, “For my family everything, for my friends nothing, and for my enemies the law.” In some countries, when individuals were surveyed regarding whether or not they would testify against close friends or family members who had caused another person an injury in an automobile accident, it was, first, important for them to know: “How bad was the person hurt?” They asked this because unless there was a serious issue at stake, such as a serious injury or death, they generally would not testify against the family member or a friend.
While no one working at the Commission – representing insurance companies and employers, and acting as defense medical experts or medical panelists – would admit behaving in a Particularist fashion, I submit that they often do, both consciously and subconsciously. It is especially the reality of the current political culture in which we operate. These dynamics make it indispensable that we and our clients do everything right to fight against this current, cultural reality. If we do not, our clients will sometimes be denied workers’ compensation coverage due to their situations, circumstances, relationships, and often their national origins, races, colors, religions, educational-socioeconomic status, disabilities, and sexes.
The purpose of the article is not to establish the basis for my opinion. Therefore, I will simply state that my clients and I have experienced it. On the other hand, I do intend to give you the tools to prove your case, outright, and in a “close” case, when such biases are in play, to prevent it from happening.
Footnote:
1) Galadriel in The Lord of the Rings: The Fellowship of the Ring, The Lord of the Rings
Read more quotes from J.R.R. Tolkien.
This article is part one in a four-part series regarding legal and medical causation in workers’ compensation cases.
I. Prologue – What Is at Stake in All Aspects of Utah’s Workers’ Compensation Act (WCA) and Occupational Disease Act (ODA)?
“And some things that should not have been forgotten were lost. History became legend. Legend became myth. And for two and a half thousand years, the ring passed out of all knowledge.” Galadriel in The Lord of the Rings, by J.R.R. Tolkien.
As the Commission would now like to say:
“And some things that should not have been forgotten were lost. History became legend. Legend became myth. And after 100 years of neglect, nicks and cuts, the WCA, as it once equitably existed, passed out of all existence.”
II. What are the Dynamics at Play in Causation Findings?
A. These are Highly Complex and Scientifically Technical Decisions.
A review of the cases demonstrates that a determination of legal and medical causation is a highly difficult process that requires an evaluation of disputed facts, the aid of and often absence of technical information and expertise, and the application of the inexact “art” of medicine. In such a highly disputed area of legal analysis, when decision makers do not have an undisputed set of extensive facts explaining every aspect of an injured worker’s prior medical history, prior pre-existing conditions, and a detailed understanding of all the forces and mechanics involved in the injured worker’s mechanism of injury, it is understandable that the gaps will be filled by supposition, uncommon-common sense, prejudice, capriciousness, and junk science.
Or, there may just be a reasonable difference of opinion within which lines must be drawn, leaving both sides with the assurance that they will just have to learn to live with a healthy degree of bedeviling uncertainty in analyzing how legal and medical causation will be determined.
B. Corruption – Filthy Lucre v. Honest Earnings Making a Living by Filling a Need.
It has been more than anecdotally – and in fact, scientifically – demonstrated that when an alleged expert has a significant monetary incentive to support one side of a highly contentious, factually ambiguous, and scientifically unsupported dispute, such experts quickly learn that the path to riches is paved by disregarding any and all information that detracts from their position and by focusing on only those facts and sources of information that support the position of the entity that stands to pay them the most money. This is especially the case when the alleged experts are required to take a position between those two sides. Because of this, it is without dispute that despite their high socioeconomic status, the medical evaluation industry is filled with the most highly educated and polished charlatans, fraudsters, and scoundrels that money can buy.
On the other hand, who can blame them? Legislators, administrators, judges, and lawyers have created a system in which these charlatans are compelled to act badly. Despite this, our system has taken no action whatsoever to try to bring any kind of reliability to this system. The sad fact is that because of our inaction and indolence, they perform the role we require of them.
C. The Junk Science of Medical Causation and Disability Findings.
The basic components of a well-designed, scientific study require:
1-2) Question and Observations. The “question” is a concrete inquiry about what the experiment is trying to answer. The “observations” are a memorialization of what is observed throughout the course of the experiment. For example, an appropriate question would be this: Can a ground-level fall cause a permanent derangement? An appropriate observation would be this: While conducting an experiment in which subjects are tripped at ground level, accurate detailed observations must be kept for each fall, along with the consequences thereof.
3) Hypothesis. This is a prediction of the outcome of the particular experiment. For instance, a hypothesis could be stated as: 1) A ground-level fall cannot cause a permanent injury; 2) Repetitive, prolonged typing over many years cannot cause carpal tunnel syndrome; or 3) A person who sustains a sprain, strain, or tear of a muscle, tendon, or ligament always returns to baseline.
4) Method. This is the description of the methods, protocols, and materials used in an experiment. This allows the experiment to be replicated to determine if the same results can be produced and verified. For instance, an experiment could identify 100 human test subjects between the ages of 40 to 45 who were vetted to establish that they had no impairments or diseases, and who were all of the same sex, height, and weight with approximately the same conditioning. All 100 subjects could then be blindfolded and required to walk at a brisk, six-mile-an-hour pace on a concrete surface. At some random time, when the test subjects had reached the required velocity, they could then all be tripped by using the same steel rod and deployment method. Furthermore, to simulate unanticipated workplace accidents, the subjects would not be told that they are going to be tripped. This experiment could be repeated with 100 additional subjects with different controlled variables.
5) Results. The researcher then is required to describe the results of the experiment with particularity. For instance, the above-noted experiments could document the following results: Out of the 100 test subjects, 96 had injuries. Of that 96, 13 required medical treatment and care. Of that 13, 8 sustained a permanent derangement of a body part or system, etc.
Furthermore, a proper medical experiment should have independent and dependent variables. An independent variable is the part of the experiment, chosen by the researcher, that is independent of the participant’s control, such as the type, height, and activation of the steel rod that trips the subject in the hypothetical experiment, noted above. The dependent variable is the behavior that the experiment observes or measures. In this case, the dependent variable is how each subject reacts when tripped, and what injuries result therefrom. The experiment must also select a particular sample from the population, and a sufficient number of test subjects, for the experiment to produce reliable results. Since in this particular experiment we are trying to determine whether or not a ground-level fall – independent of all other variables – can cause an injury, it is indispensable that all the test subjects are of similar body composition and do not have other contributing factors that could combine with the fall and cause an injury (which would also be an important thing to explore, to determine how certain maladies or conditions combine with the fall to increase the likelihood of a permanent injury).
Why is this important?
Now that it is clear what is required in a proper experiment to produce valid scientific evidence, it compels the question: How much of what we are being told by treating physicians, medical evaluators, FCE evaluators, and medical panels have any scientific validity, whatsoever? Alarmingly, the vast majority of opinions we get from these sources – especially regarding medical causation and restrictions and limitations – have no scientific validity or reliability, whatsoever. Why? They are not amenable to scientific study. The fact is, our experts are simply guessing.
At Commission seminars, many of the most vocal medical experts often indicate that correlation is not causation. However, when you read and analyze the sources and epidemiological studies they are using to make their medical cause determinations, you must realize that those sources are not proper scientific studies and are merely anecdotal observations that are often no more than establishing a correlation. Moreover, the extrapolations they draw from those studies are faulty and don’t account for numerous other explanations for the results they are trying to use as examples of medical causation.
An injured worker is more knowledgeable than the experts about what injuries he/she sustained from an accident, and about what his/her limitations are. Moreover, in analyzing that information, our collective common sense and common experience is more helpful than eliciting opinions dressed up by medical experts in the trappings of medical jargon. Some medical expert opinions are similar to amassing a pile of moist dung, dressing it in a several-thousand-dollar designer evening gown, and then calling it a supermodel.
D. Forensic vs. Treatment-Based Medical Care.
Because the treatment given to an injured worker is often not guided by the forensics of proving that the injured worker has sustained a permanent derangement, and because physicians treating injured workers are paid by, and controlled by, insurance companies, there is no motivation to request testing that can show what injuries were pre-existing, acute, or do not return to baseline. For some injuries, there is a limited window of time during which it can be categorically established that the workplace accident caused a particular injury, like a herniation, for example. Hence, because of the passage of time, without forensic testing, it cannot be determined if the work-related injury caused a permanent derangement. This often makes it impossible for an injured worker to prove that what caused a permanent or serious injury was what a panel has discounted and labeled to be a “usual and ordinary,” or “mild” to “medium” work-related mechanism of injury.
E. Wolf Packs vs. Snow Leopards.
Industrial commissions, workers’ compensation insurers, employers and their defense counsels share these interests: reducing premiums, minimizing the expense of providing benefits to injured workers, and maximizing profits. This can be achieved by promulgating arbitrary policies that terminate benefits, reduce litigation expenses, limit the cost of medical care, and limit the amount of indemnity benefits. This can be achieved by taking advantage of our absence of medical knowledge. These entities have no economic incentive, whatsoever, to pursue protocols and policies that help better establish the science of medical causation and the science of disability, and to establish the actual economic costs of workplace injuries to the injured worker. Consequently, since they act as a group and can coordinate strategies as a group, they dominate the workers’ compensation arena.
On the other hand, the United States workforce is mostly non-union, and their attorneys do not pool resources, as do their more well-healed and powerful counterparts. Other than through litigation and political advocacy, injured workers and their attorneys do not engage in concerted efforts to advance medical knowledge and understanding about medical causation and disability, or to take measures to unmask the rampant fraud in medical evaluations. In short, petitioners and their attorneys act like snow leopards in that they “hunt” alone and often in the dark. Industrial commissions, employers, insurance companies and their attorneys act like wolf packs that prey upon the individual injured worker and his/her groveling attorney, who cling like a flea upon the injured worker’s back.
F. Universalism vs. Particularism.
In the Great Courses series, presenter and author, Professor David Livermore, Ph.D., created a treatise on “Customs of the World: Using Cultural Intelligence to Adapt, Wherever You Are.” This treatise highlights what makes cultures different. Most of those differences concern balancing equally important but competing interests. One such cultural difference is how cultures and the individuals within a culture apply societal norms, rules, and laws. He divided cultures into those that are Universalists and those that are Particularists.
Universalist cultures ascribe to the principal that rules and law should be strictly applied, irrespective of the situation, status, or relationships between peoples, governments, and entities. Particularist cultures ascribe to the principle that rules and laws should be softened, bent, or disregarded based upon those same factors. That may seem foreign to some of you, but even in our Universalist culture, we make exceptions to the rule of law in our granting of legal privileges and in our imposition of burdens and presumptions.
In a Particularist culture, it has been demonstrated that the degree to which a particular organization or individual will be honest regarding a conflict or dispute, either as a party or witness, depends upon factors such as the circumstances, the relationships between the witnesses and parties, and the status of the parties. For instance, in Brazil, there is the saying, “For my family everything, for my friends nothing, and for my enemies the law.” In some countries, when individuals were surveyed regarding whether or not they would testify against close friends or family members who had caused another person an injury in an automobile accident, it was, first, important for them to know: “How bad was the person hurt?” They asked this because unless there was a serious issue at stake, such as a serious injury or death, they generally would not testify against the family member or a friend.
While no one working at the Commission – representing insurance companies and employers, and acting as defense medical experts or medical panelists – would admit behaving in a Particularist fashion, I submit that they often do, both consciously and subconsciously. It is especially the reality of the current political culture in which we operate. These dynamics make it indispensable that we and our clients do everything right to fight against this current, cultural reality. If we do not, our clients will sometimes be denied workers’ compensation coverage due to their situations, circumstances, relationships, and often their national origins, races, colors, religions, educational-socioeconomic status, disabilities, and sexes.
The purpose of the article is not to establish the basis for my opinion. Therefore, I will simply state that my clients and I have experienced it. On the other hand, I do intend to give you the tools to prove your case, outright, and in a “close” case, when such biases are in play, to prevent it from happening.
Footnote:
1) Galadriel in The Lord of the Rings: The Fellowship of the Ring, The Lord of the Rings
Read more quotes from J.R.R. Tolkien.
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