Monday, February 23, 2009

Major Cause Revisited ---- Again

No opinion yet from the Supreme Court on the American Airlines v. Crabb case dealing with "major cause," but a review of Dempsey v. Ballard Nursing Center may help us predict its ultimate outcome. Written by Judge (now Justice) John F. Reif, it predates the 2005 changes, but offers insight into the core question of how to determine the causal connection between workplace trauma and injury. Perhaps the approach to answering the new "major cause" issue is the same as the approach to the old "causation" issues addressed by Justice Reif.

Ladonna Dempsey's pre-existing spondylolisthesis became symptomatic after lifting patients at a nursing home. Employer's medical expert said that she was "in need of surgery to her back, but it is due to spondylolisthesis which is a pre-existing condition and not as a result of the injury she sustained on July 12, 2002, while working for [nursing home]." If these facts had arisen after July 1, 2005, employer would have used then to prove a "major cause defense."

Justice Reif held: "The problem with this opinion [of the medical expert] is that it essentially says claimant needs surgery for the effects of the spondylolisthesis, and the injury of July 12, 2002, did not cause the spondylolisthesis. The question which the doctor did not address is whether the injury of July 12, 2002, aggravated the spondylolisthesis so that it requires surgery now, as opposed to surgery being the general medical treatment that would have eventually been needed to correct this condition." Dempsey v. Ballard Nursing Center, id at ¶10.

Paraphrasing Justice Reif could we be on the verge of this standard: the test of major cause is whether work-related trauma aggravated a preexisting condition so that it requires treatment now, as opposed to treatment that would have eventually been needed to correct the condition.

If so, the test would not be unlike the former test for plain, old "causation." Both are intended to insure that there is a work connection between the trauma and the resulting injury or condition.

1 comment:

  1. While I believe in the "major cause" I question that it is the measuring stick we should use for EVERY claim. The original principle of insurance is to put the insured back where they were prior to the accident. However in the citation you have given today, we essentially are fixing all the health problems the claimant had prior to the incident. Pre existing conditions will become more of a major player, with our economy on the blink, and people working longer into the golden years, we will see more and more employees that will need medical care. Surgery is not always the answer, and once surgery is completed the PPD award is a sure followup. Before long, the theory of adverse selection will begin, and the only employees we can hire are ones with healthcare needs. They have no other way to have their healthcare paid for, other than Work Comp. Apportionment should be made in each case where medical documentation will substantiate the pre existing condition.