New Yorker Magazine Article Reinforces the Need for a Causation Standard in Workers’ Comp
Nearly ten years ago the San Antonio Court of Appeals decided City of Laredo v. Garza, 293 S.W.3d 625, 632 (Tex. App.— San Antonio 2009, pet. denied), a workers’ compensation case in which the court held that an injured worker needed to produce more than lay testimony to prove that his on-the-job accident caused his disc herniations, radiculopathy, and complex regional pain syndrome (CRPS). Because there was no expert causation evidence offered by the claimant in that case, the court held that the evidence was legally insufficient to support a judgment for the claimant on an extent-of-injury issue. The court rendered judgment for the self-insured municipality.
Garza has been cited in a dozen appellate decisions and more than 70 times by the Appeals Panel. In most of those cases the Appeals Panel has concluded that the claimant failed to extend the compensable injury to a different body part. By requiring a claimant to prove the existence of a causal connection between the accident and the claimed conditions Garza impacts the duration of disability, the date of MMI, and the impairment rating ultimately assigned to a case. This is one reason so many MMI, IR and disability cases turn into extent-of-injury cases too. The claimant tries to extend the injury to other body parts or conditions – not necessarily because she wants additional treatment to those areas of her body – but primarily because she wants to prolong TIBs, delay MMI, or increase her impairment rating. And raising an extent-of-injury dispute is the best tool available to the claimant under the circumstances.
Adherence to the Garza standard would not be fair to injured workers if most extent-of-injury disputes were litigated over conditions that were more than likely to have resulted from the compensable accident. But that is not the case. A recent article in the New Yorker Magazine highlights why this is so.
In Overkill, Dr. Atul Gawande examined the phenomena of overtreatment that has resulted from the medical community’s ability to identify physical imperfections in the body using powerful (and usually expensive) diagnostic testing. The result, according to Dr. Gawande, often produces more harm than good.
Another powerful force toward unnecessary care emerged years after Arrow’s paper: the phenomenon of overtesting, which is a by-product of all the new technologies we have for peering into the human body. It has been hard for patients and doctors to recognize that tests and scans can be harmful. Why not take a look and see if anything is abnormal? People are discovering why not. The United States is a country of three hundred million people who annually undergo around fifteen million nuclear medicine scans, a hundred million CT and MRI scans, and almost ten billion laboratory tests. Often, these are fishing expeditions, and since no one is perfectly normal you tend to find a lot of fish. If you look closely and often enough, almost everyone will have a little nodule that can’t be completely explained, a lab result that is a bit off, a heart tracing that doesn’t look quite right.
Excessive testing is a problem for a number of reasons. For one thing, some diagnostic studies are harmful in themselves—we’re doing so many CT scans and other forms of imaging that rely on radiation that they are believed to be increasing the population’s cancer rates. These direct risks are often greater than we account for.
What’s more, the value of any test depends on how likely you are to be having a significant problem in the first place. If you have crushing chest pain and shortness of breath, you start with a high likelihood of having a serious heart condition, and an electrocardiogram has significant value. A heart tracing that doesn’t look quite right usually means trouble. But, if you have no signs or symptoms of heart trouble, an electrocardiogram adds no useful information; a heart tracing that doesn’t look quite right is mostly noise. Experts recommend against doing electrocardiograms on healthy people, but millions are done each year, anyway.
Resolving the uncertainty of non-normal results can lead to procedures that have costs of their own. You get an EKG. The heart tracing is not completely normal, and a follow-up procedure is recommended. Perhaps it’s a twenty-four-hour heart-rhythm monitor or an echocardiogram or a stress test or a cardiac catheterization; perhaps you end up with all of them before everyone is assured that everything is all right. Meanwhile, we’ve added thousands of dollars in costs and, sometimes, physical risks, not to mention worry and days of missed work.
Joe Paduda, at Managed Care Matters, suggests that these problems are even worse in the workers’ compensation arena:
Our health care system is very, very good at finding physiological and anatomical “problems”. Unfortunately, it is also very good at assuming those findings actually indicate an underlying and significant pathology.
Which brings us back around to Garza, and its progeny. A judge who requires an injured worker to meet his burden of proof of causation according to the Garza standard is not simply erecting an artificial roadblock to a workers’ recovery of benefits; the judge is policing the line between ordinary health conditions (which do not belong in the workers’ compensation system) and compensable injuries (which do). The same is true of the claims professional.
FOLIO
