Causation Issues in Workers Comp
How the Workers Compensation System Determines Legal and Medical Causation
Medical causation is a critical element in workers compensation, disability, and even automobile accident cases. And it is one of the most disputed issues.
Sometimes injury causation is easy to determine and unquestioned by the insurer. For example, the person who suffers a broken hand when a machine crushes it, a traumatic brain injury (concussion) when assaulted by a patient, or a torn rotator cuff when lifting heavy material overhead will have no problem.
But determining disease and injury causation is more challenging in other situations. A person with preexisting arthritis who hurts their back when moving a box or develops carpal tunnel syndrome from repetitive typing or driving on the job will have more trouble getting benefits. This is also true for persons with preexisting depression or anxiety who develop Post Traumatic Stress Disorder (PTSD) or have increased mental health symptoms after a workplace injury.
Delays and disputes over injury causation often result in delays in treatment.
And delays in treatment impact outcomes. The data shows that the longer you remain off work, the less likely you will ever return to work and the greater the likelihood that you will have a permanent impairment affecting your career options.
Fortunately there are steps you can take after a work-related injury to establish medical and legal causation – strengthening your workers compensation case and improving the likelihood of a full physical and mental recovery.
This article’s purpose is to explain legal and medical causation issues to injured workers and medical professionals (surgeons, doctors, nurses, chiropractors, psychologists) who treat patients hurt on the job. It discusses the differences between medical and legal causation (one of the biggest reasons doctors are hesitant to get involved in litigation or provide helpful opinions) and what you – the injured worker – can do to get supportive evidence from your treating physicians.
I hope you find this information helpful.
Call me if you think there are other issues the article should discuss. Or if you would like a free consultation with a top-rated workers compensation lawyer who has helped hundreds of injured employees and accident victims prove legal and medical causation: (804) 251-1620 or (757) 810-5614. My firm is here to help you and your family during this difficult time.
What is Causation?
Merriam-Webster Dictionary defines a “cause” as “something that brings about an effect or a result.”
And though this definition seems straightforward and easy to apply, it rarely is. This because different fields and industries (law, medicine, mathematics, and philosophy) view causation differently.
The different interpretations of causation between the medical and legal fields contribute to many of the evidence disputes in tort law and the difficulties getting some physicians to conclude a causal connection between a patient’s work accident and medical condition.
Medical Causation
In medicine, causation matters because it determines the diagnosis.
Your diagnosis determines your treatment.
The Fifth Edition of the AMA Guides points out that the term causation has multiple meanings in the medical field: constitutional, exciting, immediate, local, precipitating, predisposing, primary, proximate, remote, secondary, specific, and ultimate.
The American Medical Association then integrates these different meanings to state one definition: “causation means an identifiable factor (eg, accident or exposure to hazards of a disease) that results in a medically identifiable condition.
The AMA Guides (Fifth Edition) also states: “Medical or scientifically based causation requires a detailed analysis of whether the factor could have caused the condition, based upon scientific evidence and, specifically, experienced judgment as to whether the alleged factor in the existing environment did cause the permanent impairment.”
Physicians and other health care professionals determine the medical cause of an ailment using statistical probabilities and:
- Patient history (this is why it is important to tell all your doctors about the workplace incident)
- Reported symptoms
- Clinical examinations
- Physical signs (including Waddell signs)
- Laboratory results
- Diagnostic imaging tests (X-rays, CT scans, and MRIs)
- Nerve conduction studies
- A patient’s response to various treatment methods
Causation under the Law
In workers comp law, the sole purpose for determining causation is to assign blame and financial responsibility for treatment, wage loss, and impairment or disability from a work injury or condition.
Workers compensation is a no-fault insurance system. You do not need to prove that someone else’s negligence caused you damages to recover benefits.
But being hurt on the job is not enough to recover workers comp benefits.
You have to show a relationship between the workplace and the injury. Specifically – the injury or disease must arise from a particular employment risk. You will receive lifetime health care for an on-the-job injury, wage loss payments, and reimbursement for functional loss of the injured body part (permanent impairment/permanent partial disability) only if you meet this legal threshold for causation.
There are two types of causation in personal injury law (including workers comp): cause-in-fact (factual cause) and proximate cause (legal cause). And though the courts typically do not distinguish between the two in their judicial opinions, knowing the difference can help you understand what evidence you need to win.
Cause in Fact: The “But For” Test (Sine Qua Non Rule)
The best way to explain the factual causation requirement is through the “but for” test. In court opinions the “but for” test is also called the sine qua non rule.
You must show that “but for” the work incident, you would not have suffered an injury, worsening of a preexisting condition (aggravation, exacerbation, acceleration, or flare), or disability.
For example, you would not have suffered a concussion or hurt your neck but for the work-related car crash. Driving for work was a cause of the resulting injuries
Legal Causation: Tracing the Injury to a Specific Risk Connected with Your Employment (Arising Out Of the Workplace Conditions)
Proving factual causation is usually the easy part. Legal causation under workers comp (known as proximate cause under negligence law) is more complicated.
In workers compensation cases, legal causation depends on whether the injury arises out of the employment. You are entitled to benefits when you establish that your job exposed you to the risk that produced the damage or that a significant work-related exertion caused the harm.
The United States Supreme Court has commented on the difficulty of defining the phrase “arising out of and in the course of employment – calling it “deceptively simple and litigiously prolific.” It wrote: “The few and seemingly simple words ‘arising out of and in the course of the employment’ have been the fruitful (or fruitless) source of a mass of decisions turning upon nice distinctions and supported by refinements so subtle as to leave the mind of the reader in a maze of confusion.”
Many states (including Virginia) apply the Actual Risk Test to determine if a workplace injury arises from the employment.
Under this test, you must show a causal connection between the injury and your employment conditions to get coverage under the Workers Compensation Act.
If there is a causal relationship between the injury and your work responsibilities, you may still recover benefits even if the risk is common to the general public. For example, I have won cases for nurses who struck their heads on desk shelves, truck drivers hurt in motor vehicle crashes, and office workers who fell because of defective chairs – all things to which the general public is exposed.
It likewise does not matter if the exertion that caused the injury seems minor or insignificant. The courts have held that a workplace accident arises out of the employment “if the exertion producing the accident is too great for the man (or woman) undertaking the work, even though the degree of exertion is usual and ordinary.”
The question is not whether the exertion would affect the ordinary person but whether it affected you.
There are, however, exceptions to this rule.
Workplace violence and assault cases are the most notable. You must show a sufficient relationship between the job and the attack. If someone you know comes to your workplace and attacks you because of a disagreement outside of work, you will not recover benefits. But if someone strikes you because they are robbing your workplace or a coworker attacks you because of a disagreement on how to do the job, you can recover benefits.
Other states use the Positional-Risk Doctrine to determine legal causation in workers comp. This test is more straightforward than the Actual Risk Test – you are eligible for benefits if you would not have received the injury but for your employment conditions and obligations.
Who Determines Causation in Workers Comp?
The Workers Compensation Commission is the fact finder in work injury and occupational illness claims.
And causation is a factual determination. The Commission, therefore, decides causation disputes.
The Court of Appeals will not disturb (reverse or remand) the Commission’s causation determination if credible evidence supports it or if the Commission could draw reasonable inferences from the evidence presented at trial. This is true even if the record has enough evidence to support a contradictory finding.
What Evidence Can I Use to Prove Causation in Workers Compensation?
You bear the burden of proving that your work accident caused your injury or condition.
You establish causation by presenting evidence. Evidence is any testimony or item that proves or tends to prove a fact that is relevant and material (including medical records, documents, reports, photographs, deposition testimony, and more).
The Workers Compensation Commission may consider all factual evidence from whatever source when determining whether a workplace incident caused an injury.
I recommend developing three types of evidence to establish a causal connection between your employment and the injury: medical evidence, your testimony, and testimony from other witnesses.
Medical Testimony About Causation (Including Your Health Care Providers’ Records and Reports)
Causation between a work accident and an injury is a medical determination that the Workers Compensation Commission typically resolves by evaluating and weighing the medical reports and testimony.
I recommend obtaining a causation statement from your treating physician soon after you begin treatment. Then, ask for causation opinions from every doctor, orthopedic surgeon, mental health provider, physician’s assistant, chiropractor, or nurse practitioner who later evaluates or treats you for the work injury. The more supportive causation opinions you have, the stronger your case on this point.
Later in this article I give tips on what your doctor should include in a workers comp causation letter or questionnaire.
A treating doctor’s favorable opinion does not guarantee victory. But it does strengthen your case’s settlement value significantly. Judicial precedent states that the Commission should ordinarily give greater weight to a treating doctor’s opinion when there are conflicting opinions on causation. Conflicts in the medical evidence are common – especially when the insurer requests that you attend an Independent Medical Examination (IME).
Your Testimony (The Claimant’s Hearing Testimony on Causation)
Sometimes the medical evidence is unclear, and no physician has addressed causation. In these cases the Commission may rely on your testimony about the job-related incident and your diagnosed medical condition to determine causation.
Judicial precedent also allows the Commission to use your testimony when a doctor has stated an opinion on causation. However, in practice, I have never seen the Commission base its opinion on a claimant’s testimony in this situation.
Direct and Circumstantial Evidence from Other Witnesses (Lay Witness Testimony)
Lay witness testimony can also help you prove causation in a workers compensation case. A lay witness is a person who testifies from personal knowledge, observations, and life experiences.
Examples of lay witness testimony to prove a causal relationship between your employment and injury include:
- Testimony from supervisors, co-workers, and neutral third-parties who witnessed the work incident or the immediate aftermath
- Testimony from friends, family members, and co-workers comparing your pre-injury abilities with your post-injury abilities. The goal is to show that the work incident is the most likely cause of your disability and decline in functional capacity.
Evidence Standards: What is the Causation Threshold in Workers Comp?
Two standards of proof apply to causation evidence:
- The level of certainty required before the judge finds an expert medical opinion is legally competent. This level is called the causation threshold.
- The overall burden of proof you must satisfy to win your case.
The Reasonable Degree of Medical Certainty Standard
In many states (including Virginia, Maryland, Florida, New York, and California), expert medical witnesses must state their opinion on causation within a reasonable degree of medical certainty or probability.
The Jones Act, Federal Employers’ Liability Act for railroad workers (FELA), the Longshore and Harbor Workers Compensation Act (LHWCA), and the Federal Employees Compensation Act (FECA) also use similar causation criteria.
What Does “To a Reasonable Degree of Medical Certainty” Mean?
The term “to a reasonable medical certainty” has no precise meaning under Virginia law.
Judicial opinions indicate that “reasonable medical certainty” is interchangeable with “reasonable probability.”
A medical statement given to a reasonable degree of medical probability permits an expert witness to state a professional opinion beyond conjecture and in the realm of affirmative, confident likelihood – and the court will accept the evidence for evaluation.
Is Possibility Enough to Prove Injury Causation?
No.
The courts have stated that a medical opinion based on a possibility and not probability or certainty is irrelevant, speculative, and inadmissible at trial.
The Burden of Proof for Workers Comp Causation
“Preponderance of the evidence” is the standard of proof generally applied in civil actions at law in Virginia. It is also the burden of proof in workers compensation cases.
Preponderance of the evidence is the lowest burden of proof. Under this standard, you need only prove that the work accident more likely than not caused your injury. As a percentage, you must demonstrate a 50.1% likelihood that your work-related incident caused the injuries or conditions diagnosed.
You do not have to establish the connection between work and the injury with absolute certainty or clear and convincing evidence. However, the more demanding clear and convincing evidence standard applies to some occupational disease claims
What if the Workplace Injury Causes a New Injury or Aggravates a Preexisting Condition?
Workers comp law includes a “chain of causation” rule.
This rule, also known as the doctrine of compensable consequences, states that when “the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to the claimant’s own intentional conduct.”
The law treats the subsequent injury as though it happened in the initial workplace accident.
You only need to prove that your compensable work injury contributed, at least in part, to the onset of your new condition. It does not need to be the primary cause.
Additionally, the aggravation of a preexisting condition by the effects of a work accident may be a compensable consequence.
For example, a torn ACL may affect how you walk (altered gait), resulting in overuse of the other leg. If the overuse causes a knee injury (torn meniscus, osteoarthritis, etc.) in the once-healthy leg, you may be entitled to benefits for that leg as a compensable consequence of the initial injury.
What if My Medical Condition and Disability Have Two Causes? Understanding Workers Comp’s Two Causes Rule
Sometimes a medical condition has two causes, only one of which is related to a work injury.
Here is an example:
You have preexisting arthritis in your lumbar spine from years of playing sports (a herniated disc confirmed by MRI), but you can still do your job.
Then, one day at work, you suffer intense back pain when lifting a heavy box and are forced to stop working.
An orthopedic doctor tells you that you have spinal stenosis, that you need to undergo a spinal fusion surgery, and that you are disabled from all work.
The work injury did not cause the stenosis, and it is not the sole reason you need surgery. But it flared your condition and accelerated the need for surgery.
Under the “two causes” rule, your employer is responsible for treating the condition, even though one cause is not related to a compensable work injury.
Similarly, your employer must pay wage loss benefits even though your disability has two causes – one work-related and the other not.
Asking Your Medical Providers for Help: The Doctor’s Workers Comp Causation Letter and Statement of Causality
Some health care professionals discuss causation and disability from work in their medical records and office notes, especially if they know that workers comp is involved. In these situations, you might not need to ask your doctor for a causation statement – it is better not to stir up a potential dispute if there is none.
But other doctors fail to mention causation or disability in their reports or make vague or inaccurate statements. This is understandable. Many physicians are more focused on treating the injury than determining its cause.
You will need to ask your doctor to write a causation letter (also known as the Medical-Legal Report, Doctor Disability Letter, or Attending Physician Report) if your office notes do not contain a statement of causation. This medical-legal report is often the most crucial document in a workers compensation case.
Below are my tips for helping your doctor write an effective workers comp causation letter:
- Discuss the purpose of the report and what questions you want the doctor to answer (focus on unsettled issues)
- Tell the doctor the details of your work accident. Include the date of the injury and where and what happened.
- Tell the doctor about any past work injuries or medical care you have received for the injured body part. A doctor’s opinion must be based on an understanding of the relevant facts. Lack of knowledge of a preexisting condition could result in the judge giving your treating doctor’s opinion little or no weight. You can use your doctor’s causation statement and testimony about changes in abilities and symptoms to prove your claim.
- Give a job description (written or verbal) to your doctor. Include each task your job required – even if you performed it only rarely. This information is necessary if you need evidence on disability and whether you can work full duty or light duty with restrictions.
- Provide a summary of the treatment received before coming under the doctor’s care
- Tell the doctor that you will be submitting the report to the Workers Compensation Commission and the insurance company
.
- Explain the difference between medical and legal causation and the burden of proof in workers comp. Some doctors who are hesitant to provide a causation statement will do so when they realize that legal causation requires less certainty than medical causation.
- Describe the definition of “injury by accident” under workers comp – “an identifiable incident; that occurs at some reasonably definite time; an obvious sudden mechanical or structural change in the body; and a causal connection between the incident and bodily change.” The structural change can be visible (bruising, laceration, blood) or invisible (only seen through surgery or diagnostic imaging).
- Explain the lower burden of proof in civil actions – “more likely than not.”
- Explain that the extent or degree to which the work-related cause contributed is not essential. It matters only that the work-related injury contributed in some part to the diagnosed condition or disability. A physician’s opinion that a workplace accident contributes “one iota” and to “a minute (small) degree” is sufficient for causation.
- Ask the doctor to describe what objective and subjective findings support his or her opinion. This includes clinical evidence, reported symptoms, and diagnostic imaging tests.
- Ask the doctor to cite evidence-based medicine or studies supporting their opinion. This is especially helpful in post-concussion syndrome claims.
- Ask the doctor to list the dates their medical practice examined you (including the first date of treatment and the most recent office visit).
- Ask the doctor to state that they are giving their opinion to a reasonable degree of medical certainty. This satisfies the admissibility threshold.
A causation letter or doctor’s questionnaire that includes all this information puts you in a strong position.
Get Help Proving Disease and Injury Causation
Has your employer (or its insurer or third-party claim administrator such as Sedgwick CMS, Gallagher Bassett, Corvel, etc.) questioned causation and denied your claim? Then you have the right to a workers compensation hearing.
My law firm has helped hundreds of workers win their cases and negotiate fair work injury settlements – even when there were legal or medical causation disputes.
Call now for a free consultation: 804-251-1620. See why colleagues and past clients have voted me one of the top workers comp attorneys and a Top 100 High Stakes Litigator.
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