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Workers Compensation Causation; Not a Guessing Game
Brad Harris, Attorney at Law
Most workers understand that when they are making a federal workers compensation claim it has to be supported by the professional opinion of a medical practitioner. What I mean by that is, it doesn’t matter what you say, if the medical evidence does not have the foundation of support from a qualified person in the practice of medicine you will not be successful in getting your claim approved. The Employing Agency (EA) rightfully has an obligation to controvert the claim where there is a dispute as to the stated facts.
Because the employee has the right to select a physician of his choice and because the willingness of the physician to connect the injury to work activity is critical to entitlement to benefits, this selection may be one of the most important decisions an injured employee can make. I suggest that the employee contact local plaintiff attorneys to find out which doctors are likely to be more responsive to the employee as opposed to the employer.
Moreover, I suggest that you take a special interest in this because, as you may soon learn, your medical evidence will be called “insufficient” if it not expressed correctly. Specifically, I think it is not only necessary but crucial that the medical care provider state that it is his opinion, within reasonable medical probability, that an incident at work, or the work conditions themselves, caused the need for your various medical treatments.
And the doctor should conduct a thorough examination, including diagnostic testing, because the OWCP and the ECAB have continually stressed the need for medical reasons. For example:
“A physician’s opinion supporting causal relationship between a claimant’s disability and a specific employment incident or factors of employment is not dispositive on the issue of causal relationship simply because it is rendered by a physician. To be probative value to an employee’s claim, the physician must provide rationale for the opinion reached. Where no such medical rationale is present the medical opinion is of diminished probative value.”
Because the concept of reasonable medical probability is often misunderstood, and because of its necessity I want to take a few minutes here to describe it to you at length. The law requires that an expert opinion, from a medical care provider, be expressed by him/her to a degree of certainty of at least 51% with regard to two basic issues:
- Does this person have an injury?
- What incident caused the injury?
It’s not really that difficult a concept, but many doctors are unaware of how simple it is. Does your doctor have any reason to believe that anything but your report of the injury is true? How closely connected in time are your symptoms to the incident? Are your symptoms the type the doctor would expect to see in a person that has had the type of trauma that you describe? Does his examination and testing indicate to him that you really have the problem you complain of? If your doctor doesn’t believe you, or won’t put it in writing, the workers compensation is not due.
He only needs to express that there is a 51% certainty that:
- The work incident (or work conditions) caused your injury
- The medical expenses are both reasonable and due to the injury
Simply put, if the only medical evidence from your doctor is no more than guessing:
- “It might have caused it” or
- “It could have caused it” or
- “It is a possibility that it caused it”
- “It was a factor that contributed to it”
The OWCP may very well decide that the doctor’s opinion isn’t important, the vagueness and uncertainty may kill your chances of successfully having your claim approved. The second opinion doctor hired by the OWCP to review your medical records may decide your problems are deemed to be of unknown etiology... like they might have come from outer space. That why I’m writing this letter to you. Most often, the doctor’s notes in your file aren’t sufficient to deal with these issues, and may therefore be essentially useless in terms of winning your case or convincing the OWCP they are legally liable for the condition your doctor treated.
This issue is what we call causation. The doctor should provide a 51% link between your symptoms, his diagnosis and the injury.
We are not asking that the doctor to say he knows this with 100% certainty, nor that he knows it beyond a reasonable doubt, but if he can’t honestly say that he has a degree of certainty of at least that it is more likely than not; 51%, there won’t be sufficient evidence to establish your claim.
If his opinion isn’t to a 51% certainty, then I would not recommend pursuing the case because my best guess is there is insufficient medical evidence to believe you will succeed. Let’s not make it a guessing game, let’s get causation in writing, and therefore more probable than not that we will be successful.
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