Professional Documents
Culture Documents
Ama Guides To The Evaluation of Disease and Injury Causation Second Edition 2Nd Revised Ed Edition Ebook PDF All Chapter Scribd Ebook PDF
Ama Guides To The Evaluation of Disease and Injury Causation Second Edition 2Nd Revised Ed Edition Ebook PDF All Chapter Scribd Ebook PDF
2nd
Medical Director of
Occupational Orthopaedics
Waco, Texas
EDITION
SECOND EDITION
Naomi N. Shields, MD, David A. Fetter, MD, Matthew J. Dietz, MD, and
Hany Bedair, MD
Foot and Ankle Disorders/Dysfunction 357
The Knee 362
Hip Osteoarthritis 376
Avascular Necrosis of the Femoral Head 377
Acetabular Labral Tears 378
Edwin H. Klimek, MD
Introduction 457
Central Nervous System 457
Stroke 459
Parkinson’s Disease and Parkinsonism 460
Multiple Sclerosis 461
Peripheral Nervous System 462
Karl T. Rew, MD
Introduction 523
Genitourinary Cancers 523
Urinary Tract Stones 524
Acute Kidney Injury 525
Chronic Kidney Disease 526
Voiding Dysfunction 526
Male Infertility 526
Sexual Dysfunction 527
Gideon Letz, MD, MPH, Mark H. Hyman, MD, Harold E. Hoffman, MD,
Scott Phillips, MD, and Robert B. Palmer, PhD
Three-Step Process for Analyzing Exposure Causation 578
Biological Monitoring and the Establishment of Chemical Disease 582
Case Examples 586
Summary 590
Bruce E. Moore, JD
Introduction 627
What Is Proof? 630
Foundation 632
Relevance and Materiality 632
Substantial and Competent Evidence 633
Probative Evidence 634
Reasonable Inferences 635
Weight 635
Consistency 635
Credibility 636
Putting It All Together 637
Case Studies 638
Summary 643
Section 1 680
Section 2 688
Douglas W. Martin, MD
Traditional Causation Assessment (Bradford-Hill Criteria) 688
Modern Use of the Bradford-Hill Criteria 689
Practical Applications 691
Clement Leech, MD
Chapter 33 Evaluating Causation of Favoring for the Opposite Limb ������������������ 757
J. Mark Melhorn, MD, James B. Talmage, MD, Charles N. Brooks, MD, and
Christopher R. Brigham, MD
Example: Carpal Tunnel Syndrome 758
Causation Analysis 759
The Science 761
Shoulder 763
Elbow 766
Carpal Tunnel Syndrome 767
Summary 768
Index��������������������������������������������������������������������������������������������������������������������������������� 775
Causality explores the relationship between cause and effect. Physicians are trained to
determine the medical cause of symptoms and signs using history, clinical examina-
tion, laboratory results, and imaging tests. Usually the most likely source of a patient’s
symptoms and signs can be identified. Since treatment depends on the diagnosis and may
be expensive and sometimes invasive, it becomes important to accurately determine the
cause of the symptoms and signs. In fact, unless we think that a patient’s symptoms and
signs can be explained by a specific underlying pathology we cannot justify treatment,
which sometimes can result in complications. And on the other hand, an untreated source
of the patient’s symptoms and signs may have disastrous consequences in the future. We
require a high degree of certainty.
A different type of causation, which we may be less familiar with and often is not taught
as part of our education, is where a disease or injury is potentially caused by an external
event. This type of causation analysis is important when caring for patients with worker’s
compensation claims and other types of disability claims. In most state worker compen-
sation jurisdictions, the burden of proof concerning causation is “more likely than not,”
which is less rigorous than medical causation.
Determining injury causation is sometimes easy; take the patient who falls from a lad-
der and fractures his ankle. In other cases causation can be difficult, sometimes resulting
in different conclusions by different evaluators. Consider for example a patient with a
long history of a back problem who alleges an injury when lifting an object at work, or
a patient with carpal tunnel syndrome who alleges his or her problem was caused by fre-
quent or prolonged typing.
To cover this topic comprehensively the editors of this book have assembled a large group
of experienced medical professionals to guide us through this process. In addition, the
book provides the perspectives of attorneys, judges, employers, insurers, and commis-
sioners on this complex problem.
For these reasons, this is an important book. It provides the basis for the thought process
that has to go into disease and injury causation analysis and clarifies some of the differ-
ences between the medical and legal requirements with respect to probability and decision
making. I warmly recommend this book not only to those involved in disability evalua-
tion, but to the medical community at large. Enjoy.
xiv
By LuAnn Haley, JD
Administrative Law Judge for the Industrial Commission of Arizona
The issue of medical causation remains critical in disability determinations. It has become
more complex with the current widespread availability of information regarding medical
conditions and the move toward evidence-based medicine. Medical experts, no matter
how well credentialed, will find their medical opinions rejected in legal proceedings un-
less they can communicate that the opinion is supported with an adequate factual founda-
tion and backed by well-reasoned medical science. Understanding the issues addressed by
the experts in this edition regarding medical and legal causation is crucial to all involved
in assessing disability in injury claims.
Analyzing causation in disability cases is the most critical, yet difficult, issue to resolve
and requires input from both medical and legal experts. It is well accepted that legal
causation is established when there is evidence that the injury or disease arose out of the
employment, and medical causation requires showing that the accident or circumstances
of the employment caused the injury or condition. An understanding of the relationship
between work activities or exposures and a particular medical condition is essential for
medical and legal experts alike in the field of occupational injury medicine. Additionally,
the judges and administrators of these cases must provide a well-reasoned determination
of medical and legal causation as a foundation for their decisions.
The Second Edition of the AMA Guides® to the Evaluation of Disease and Injury Causa-
tion provides a comprehensive guide to understanding medical causation issues for every
evaluator. The expert’s analysis of medical causation, when supported by sound medical
evidence, is critical for a fair and just decision in every disability claim. The editors of
this text have provided an excellent resource for medical and legal professionals and it is
recommended reading for anyone asked to handle disability evaluations and injury cases.
I wish to personally thank the contributing authors for providing this informative guidance
and thank the American Medical Association for a job well done.
xv
There is a disability epidemic in the United States. Delays in treatment are often related
to the need for determining causation, which is required to establish financial responsi-
bility. Unfortunately, huge numbers of citizens remain off work after on-the-job events,
liability injuries, or other health conditions even when sufficient data concerning cau-
sation is readily available. These delays in treatment ultimately impact treatment and
outcomes. Early treatment and early return to work remain key components to improving
outcomes. Studies continue to show that the longer a person remains off work, the less
likely he or she is to ever return to work.
The disability epidemic is closely linked to the issues of return to work and is due to nu-
merous factors: workers who are dissatisfied with their jobs and would rather not return,
or who believe that the job caused their condition; well-meaning plaintiff attorneys who
feel that their clients deserve compensation, are convinced that remaining off work will
result in a larger settlement, and do not realize that by discouraging return to work they
may be contributing to the disability; employers who believe that the job holds little risk
and who do not want a worker that is not 100%; judicial systems that may slight the sci-
ence of causation in an effort to maintain social justice; and physicians who do not under-
stand the consequences of remaining off work and find it easier to certify being off work
than to take the time to explain to patients and employers why the worker should return
despite not being 100%.
Return-to-work issues are addressed in the AMA Guides® to the Evaluation of Work
Ability and Return to Work. This Second Edition of AMA Guides® to the Evaluation of
Disease and Injury Causation improves on the First Edition methodology and provides
up-to-date references supporting the scientific evidence of causation. Drs. Melhorn,
Talmage, Ackerman, and Hyman have gathered together truly knowledgeable experts in
the field of workers’ compensation and tort. The addition of chapters from multiple van-
tage points and perspectives is a significant addition to this volume. An understanding of
this text by all involved in causation and return-to-work decisions—patients, attorneys,
judges, employers, and physicians—will go a long way toward addressing the disability
epidemic and provide future approaches to prevention by reducing proven risk factors in
the workplace.
xvi
xvii
William E. Ackerman III, MD, is currently the Medical Director of the Pain Medicine
Consultants Group, PA, in Little Rock and Conway, Arkansas. He is a board-certified
anesthesiologist and completed a fellowship in pain medicine. Dr. Ackerman is also board
certified in pain medicine. He has been chief of anesthesiology at two Army medical
centers and an associate professor and director of an academic pain center. He has pub-
lished over 125 scientific articles in peer-reviewed journals and presented scientific
abstracts at international and national academic meetings. Dr. Ackerman has authored
one academic textbook, along with many chapters in others. He has also published his
research on complex regional pain syndrome involving worker’s compensation cases. He
presently evaluates bodily injury cases for injury causation and performs IMEs for pain-
related cases. He has lectured at claims adjustor meetings, nurse case manager meetings,
medical schools, and various scientific meetings. He has also been an expert witness on
chronic pain causation related to motor vehicle accidents. He has served on the editorial
board of two peer-reviewed medical journals. Dr. Ackerman has been nominated for the
Southern Medical Society Medical Research Award and the Bristol-Meyers Squibb award
for distinguished achievement in pain research. He was the recipient of the Karl Koeller
research grant from the American Society of Regional Anesthesia and Pain Medicine.
Mark H. Hyman, MD, is an associate professor on the clinical faculty at the University
of California—Los Angeles (UCLA). He was born in Detroit and attended the Univer-
sity of Michigan for undergraduate studies. He pursued medical school, internship, and
residency at UCLA. His internal medicine research and interests have expanded to in-
clude headaches, smoking cessation, spinal disorders, police arrest techniques, Tuberous
Sclerosis Complex, impairment, and workers’ compensation issues. Dr. Hyman is a fellow
of the American College of Physicians and the American Academy of Disability Evaluat-
ing Physicians. He is currently President of the National Board of Directors of AADEP.
He has published research on worker’s compensation patients for sleep disorders, addic-
tions, and obesity in professional football players. He has authored many articles and is
co-editor of the AMA GuidesTM to the Evaluation of Work Ability and Return to Work,
Second Edition (2011), a contributor to Guide to the Evaluation of Functional Ability
(AMA, 2009) and Transition to the AMA Guides Sixth (2009), the author of Guides Sixth
Impairment Training Workbook: Internal Medicine (AMA, 2008), and a contributing
editor to the Guides to the Evaluation of Permanent Impairment, Sixth Edition (AMA,
2008). Dr. Hyman also served as the chair for the internal medicine section of the Medical
Disability Advisor, Fifth Edition (Reed Group, 2005), and is currently co-editor for the
Seventh Edition. He has lectured extensively for legal groups and the insurance indus-
try and at national disability meetings. Dr. Hyman has testified before the United States
Congress as a national expert on disability issues. WebMD selected Dr. Hyman for their
annual Heroes of Health award.
We would like to acknowledge all of the individuals who have been instrumental in the
publication of this book. A special thank you to the chapter contributors and peer re-
viewers; to the AMA publication staff: Nancy Baker, Michael Ryder, Janet Thron, and
Meghan Anderson; to Yolanda Davis, Copyright/Library Services Coordinator, AMA, for
her extensive article research and professionalism; and Cheri Sellers and Cam Gentry, Via
Christi Library Services for their extensive article research and professionalism.
xix
xx
David Silver, MD
Executive Vice President for
Medical and Scientific Affairs
Targeted Medical Pharma
Associate Clinical Professor of Medicine
UCLA School of Medicine
Los Angeles, California
xxiii
Chapter 1
Introduction
J. Mark Melhorn, MD,
William E. Ackerman III, MD,
James B. Talmage MD, and Mark H. Hyman, MD*
Purpose
Background
Costs
Fraud
Definitions
Summary
*We thank Thomas Hales, MD, MPH, senior epidemiologist at the National Institute for Occupational
Safety and Health, Robert Taft Lab, Cincinnati, Ohio, for review and contributions to this chapter.
Why elusive? An Internet search on November 11, 2011, for “causation” resulted in
7,820,000 hits, which increased from 7,580,000 Web pages in 2008, while a PubMED
“all fields” search using “causation” returned 477,485 articles, compared to 388,461.
Wikipedia (http://en.wikipedia.org/wiki/Causation; accessed on June 27, 2012) defines
causation as a key component to establishing liability in both criminal and civil law;
in English law as the requirement for liability in negligence; in sociology as the belief
that events occur in predictable ways and that one event leads to another, in proximate
cause as “not too remote a consequence”; in philosophy as an event that is closest to, or
immediately responsible for causing, some observed result and is the basis of liability;
and as a key component in determination of negligence in the United States.
This Second Edition of AMA Guides® to the Evaluation of Disease and Injury Causation
is dedicated to updating the science, expanding the focus, and including additional
perspectives to improve the understanding of causation, which will eventually improve
the treatment outcomes for injured workers as they stay-at-work or return-to-work.
Why all the quotation marks in the above paragraphs? Because causation is often not
black and white. The science (evidence-based medicine) is often in conflict with the law
(derived from social justice) (Chapters 1 to 7). Recently, the gap between science and
law has been closing (Chapter 2, “Understanding Work-Relatedness,” and Chapter 3,
“Causal Associations and Determination of Work-Relatedness”). Furthermore, the
science of causation has increased yearly, although most of the publications remain
lower-quality hypothesis-generating epidemiologic studies, which cannot effectively
address confounders. (A confounding variable, or confounder, is an extraneous variable
in a statistical model that can correlate positively or negatively with a specific condition
or diagnosis.) The ideal hypothesis-testing prospective cohort studies are expensive and
difficult to complete. It is important to remember that a well-conducted retrospective
cohort study or case control study with stronger methodology can provide some insight,
and a poorly conducted prospective study can be misleading. Furthermore, case reports and
case series should not be viewed as epidemiological studies but more as sentinel events.
Again it is important to understand the source of the data (Chapter 4, “Methodology”).
Has science ever been wrong? The answer is yes. The information contained in
this book reflects our current best understanding of science that supports causation.
Therefore, sometimes the answer to a question concerning causation may be that the
evidence is insufficient to make a determination. Additionally, the difficulty of applying
epidemiological data to a specific individual must be understood; thus, the additional
chapters in the Second Edition to provide insight and guidance on this matter.
Chapter 1
Purpose
Health care providers are often asked whether a condition is work-related or attributable
to a specific event. It is incumbent on clinicians to give an opinion based on a careful
review of three critical pieces of information:
1. Individual clinical findings.
2. Individual workplace exposures.
3. The literature linking (or not linking) the exposure of concern and the condition in
question.
This book is designed to assist health care providers, ancillary service providers,
attorneys, workers’ compensation risk managers, workers’ compensation commissions,
judges, and legislatures in using this information, in conjunction with clinical and
exposure data, to make evidence-based decisions about whether a medical condition is
work-related or attributable to a specific event or exposure.
Background
There is a large body of literature about the causal relationship between non-work-related
factors (eg, genetic, dietary, age-related, anthropomorphic, and environmental) and
disease. The evidence basis used to determine causation as it relates to these factors has
generally already been well characterized, with the strengths and limitations of available
evidence well appreciated by experts in the relevant medical specialties.
This book attempts to fill the void by examining the evidence-based literature available
to better understand the relationship between selected medical conditions and exposure to
physical and environmental factors that occur in the workplace or as a result of a specific
exposure. Specific attention is given to analyzing the weight of the evidence for the
strength of the association between these medical conditions and work factors commonly
referred to as occupational exposure. Because the relationship between exposure to
physical work factors and the development and prognosis of a particular illness, disorder,
or medical condition may be modified by preexisting conditions and biopsychosocial
factors, the literature concerning nonoccupational risk factors and biopsychosocial factors
and their impact on symptoms will also be considered. Understanding the interaction of
these associations and relating them to the cause of symptoms is critical. Because the
final determination of work relatedness is established by legal definitions, a discussion of
jurisdictional statutes is included.
The US Congress recognized that statistics on workplace injuries and diseases were
essential to an effective national program of occupational disease prevention. Therefore,
when the Occupational Safety and Health Administration (OSHA) Act was passed in
1970 (Code of Federal Regulations, Title 29, Chapter XVII, Part 1910), employers were
required to maintain records on workplace injuries and illnesses using the OSHA 200 (or
now 300) log. The act delegated responsibility to the Bureau of Labor Statistics (BLS) for
collecting statistics on occupational injuries and illnesses. To comply with the OSHA Act,
the BLS conducts an annual survey of occupational injuries and illnesses in the United
States.2 The survey compiles the OSHA 300 logs from more than 200,000 establishments
grouped by industry codes established by the BLS in the North American Industry
Classification System (http://www.bls.gov/bls/naics.htm).
Exact figures for occupational injuries and illnesses are not available. The best data for the
United States are provided by the Annual Survey of Occupational Injuries and Illnesses
by the BLS, US Department of Labor.2 To understand the data, it is important to know the
definitions for injuries and illnesses. According to OSHA, an occupational injury is any
injury such as a cut, fracture, sprain, or amputation that results from a work accident or
from a single instantaneous exposure in the work environment.3 Minor injuries are defined
as injuries requiring only first-aid treatment (eg, not involving medical treatment, loss of
consciousness, restricted work, or transfer to another job) and are not recorded in the logs.
Although they are among the best sources for benchmarking occupational disease,
BLS data markedly underreport the extent of the problem. Why? In addition to the
unrecognized work-related conditions, both the employer and the employee have
incentives to underreport work-related injuries and illness. For the employer, this would
involve reduced workers’ compensation premiums and fewer OSHA inspections (fewer
entries on the OSHA 300 logs may limit the frequency and extent of OSHA workplace
inspections). For the employee, this would involve fear of employer retaliation,4 or
administrative obstacles,5 or lack of awareness that a condition could be work-related.
Chapter 1
employee’s job-related tasks or exposures did not create or contribute to the risk that such
an injury would occur. Therefore, a causal connection is established because the injury
or illness happened to take place in the workplace but was not a result of the actual work
activities the individual was performing as a part of his or her job.6
Examples of how these data are reported can be reviewed in the October 2011 update to
the BLS Workplace Injuries and Illnesses in 2009,2 which data update to October 20111
reported that, in 2010, nonfatal workplace injuries and illnesses numbered 3.5 million,
of which 3.1 million (approximately 88%) were injuries, resulting in an occurrence rate
of 3.5 cases per 100 equivalent full-time workers among private industry employers.
Compare this to the data in the first edition for 2005, when nonfatal workplace injuries
and illnesses numbered 4.2 million, of which 4.0 million (approximately 95%) were
injuries, resulting in an occurrence rate of 4.6 cases per 100 equivalent full-time workers
among private industry employers.7 This rate was a decline from the rate of 4.8 reported
for 2004.8 Incidence rates for injuries and illnesses combined declined in 2005 for most
case types, with the exception of 2.2 million cases with days away from work, transfer to
another job, or restricted duties. The rate for days away from work was 1.4 cases per 100
workers and for job transfer or restriction, 1.0 case per 100 workers.8
Statistics for nonoccupational injuries and illnesses are not as easily determined. There is
not a specific agency that tracks these injuries and illnesses. Knowing the rate at which
injuries and illnesses occur without workplace exposure is essential to determining
whether or not work activity increases the risk of the injury or illness in question. The
annual report by the National Safety Council provides some insight into these numbers.
However, care must be taken when interpreting these numbers. For example, if the rate
of arm amputation due to a chain saw in loggers (on the job) is lower than the rate of arm
amputations in homeowners, is the logger’s amputation not work-related? Determining
statistics for this group of injuries and illnesses is further complicated by the fact that the
injuries and illnesses may occur with the responsibility attributable to the person affected
or to someone else. When responsibility is attributable to another person, tort law may be
involved. A tort is a civil, not criminal, wrong or an injury against a person or property,
with the exception of breach of contract. Tort is derived from the Latin word tortus, which
was changed to tortious in English, which means twisted. Tort law is the body of the law
that permits an injured person to recover compensation from the injuring party, which may
occur when one person injures another, intentionally or by negligence. A court may award
money damages to the injured party as compensation for the injury. The requirement to
establish responsibility in tort law is a major reason that health care providers are asked to
provide an opinion concerning causation. The costs associated with torts are significant.
Several sources provide injury and cost data: the Centers for Disease Control and
Prevention (http://www.cdc.gov), the National Safety Council (http://www.nsc.org), the
National Library of Medicine at the National Institutes of Health (http://www.nlm.nih
.gov), insurance providers, and other sources on the World Wide Web. By using these
sources, several key documents were identified, as follows: The Economic Costs of
Injuries,6 Summary Health Statistics for the US Population: National Health Interview
Survey, 2002,7 and the National Safety Council’s 2007 edition of Injury Facts.9
The First Edition of the AMA Guides® to the Evaluation of Disease and Injury Causation
reported the total cost of nonoccupational injuries and illnesses (often labeled as
unintentional) in 2005 was $625.5 billion. Of this $625.5 billon, 50% was assigned to
wage and productivity losses, 18% to medical expenses, 18% to legal and administrative
costs, 10% to property damage, and 4% to uninsured costs. No data were available for
costs of punitive damages associated with unintentional injuries, when applicable.
Costs
Current cost data for workers’ compensation is provided by the 2009 National Academy
of Social Insurance report.10 Highlights include: benefits paid in the United States in
2009 were $58.3 billion, an increase of 0.4 percent from $58.1 billion in 2008; medical
payments decreased by 1.1 percent, to $28.9 billion; cash benefits to injured workers
increased by 1.9 percent to $29.4 billion; and costs to employers were $73.9 billion.
Workers’ compensation covered an estimated 124.9 million workers in 2009, a decrease
of 4.4 percent from the previous year due to the recession, which began in 2007, while
benefits paid to workers increased as a percentage of the wages of covered workers.
It has been suggested that these current figures do not include the total costs such as
productivity loss, administrative, property damages, or cost shifting. Cost shifting has
become an increasing concern, especially with the Affordable Care Act of 2012 or possible
future legislated “universal health insurance” requirements. LaDou suggests that cost
shifting is a more significant expense to the US economy than is commonly recognized.11
Using 2006 data, he reports the country’s total health care costs at over $2.3 trillion.11
LaDou suggests that workers’ compensation health care costs being shifted by employers
to Medicare/Medicaid and disability costs being shifted to the Social Security system far
exceed the total costs of all the state workers’ compensation programs. This has resulted in
most of the responsibility for compensating disabled workers now residing in the federal
government, not in the states’ workers’ compensation systems. Therefore, current federal
funding of workers’ compensation cost is at least four times that of state programs. This
concept was confirmed by a study of carpenters in 2009.12
Cost shifting is influenced by multiple factors. For example, increasing medical costs (co-
payments and higher deductibles) was positively and significantly linked to an increase in
the number of lost-time cases.13 Additionally, employer-provided health insurance did not
result in a reduction of workers’ compensation indemnity claims.14
Occupational exposures and their association with, or causation of, injuries and
illnesses are often debated because the science of causation may be limited.15 Because
a determination for association or causation is required to determine eligibility for
compensation and, therefore, financial responsibility for workers’ compensation or tort
cases, debates and disputed legal cases often ensue. The determination process is often
motivated by a desire to cost shift or to redirect the financial burden to another party.
The significance of such disputes is underscored by the reported direct health care costs
for the nation’s work force of more than $418 billion and indirect costs of more than
$837 billion. Reducing the more than $1.2 trillion workers’ compensation cost16 and
the $625.5 billion nonoccupational cost8 has become a national priority. Even though
the reported incidence of work-related injuries and illnesses is slowly decreasing, direct
and indirect costs, which include indemnity associated with the injuries and illnesses,
are increasing—especially in the illness group commonly described as musculoskeletal
disorders (such as carpal tunnel syndrome).17
Chapter 1
Although described as a single system, workers’ compensation is a complex set of
judicial and legislative rules and regulations that are different for each state and territory,
with separate systems for state and federal employers; railroad employers; and long-
shore and harbor workers. The causation threshold requirement in different state workers’
compensation systems varies from “iota,” “1% contribution,” to “more probable than not”
contribution. Some states have presumptive laws that consider a particular illness to be
work-related (eg, some specific types of cancer in fire fighters) versus other states that
have laws precluding a particular illness from being considered work-related (eg, carpal
tunnel syndrome or noise-induced hearing loss). Thus the type of cases that drive the cost
of care can be different in different jurisdictions, making universal cost control solutions
difficult.
The tort law system is even more varied. Because each state establishes case precedents,
the approach from state to state can vary widely in what is considered acceptable
evidence and how the evidence is to be applied.
Fraud
Statistics for fraud (defined in the broadest sense as deception made for personal gain)
are difficult to determine. Fraud can be intentional or unintentional and can be committed
by the employee, employer, physician, insurer, and others. The estimates provided by
insurance companies are general. The insurance industry estimates that nearly a quarter
of all workers’ compensation claims filed involve some degree of fraudulent activity.18
Of the 25% suspected fraudulent claims, most involve some type of malingering in
which the claimant may extend time off even though the injury has healed sufficiently
for return to work. Malingering is an abuse of the system and is fraud, but little time is
spent investigating it because of limited resources.18 The types of workers’ compensation
claims that are usually investigated involve injuries that did not occur at work and
claimants working second jobs while collecting benefits for injuries sustained on their
primary job. These types account for about 10% of all compensation claims filed.18
Fraud can also occur when the claimant tries to mislead the physician. One study reported
that 42% of subjects were not truthful on a test of memory. The authors concluded
that exaggeration of cognitive (brain) symptoms is widespread in disability-related
evaluations.19 It would be unwise to accept self-reported memory complaints at face
value. Criteria-normalized symptom validity testing should be done to rule out symptom
exaggeration.19 A physician can also contribute to fraud when granting unnecessary
time off work or, possibly, based on a misguided sense of social justice, attributing
causation when causation does not exist.20-26 This most often occurs when an individual
has an obvious injury or illness for which treatment is available, but he/she has no
health insurance. Fraudulently classifying the condition as work-related and eligible for
workers’ compensation treatment allows the individual to be treated (and the physician to
be compensated for the treatment).
Fraud is not limited to the employee or physician. The employer can also contribute to
fraud by denying claims and by submitting false injury and illness rates to obtain lower
WC premiums. There also opportunities for fraud by the other participants in work-
related injuries.
Definitions
The remainder of this chapter contains definitions used throughout the book.
Evidence-based medicine has become the standard for determining appropriate medical
care. The most common definition was provided by Sackett et al27: Evidence-based
medicine is the conscientious, explicit, and judicious use of current best evidence
in making decisions about the care of individual patients . . . integrating individual
clinical expertise with the best available external clinical evidence from systematic
research. Unfortunately, controlled, randomized clinical studies are uncommon and
difficult to perform in the workplace. Therefore, most of the information available is
from epidemiologic studies. Although epidemiologic studies can prove or disprove an
association, they cannot prove causation.28
Medical conditions are injuries or illnesses that meet the standard criteria for a diagnosis
in the International Classification of Diseases, Ninth Revision.30 (The Tenth Revision is
currently scheduled for use in the United States in 2013.)
Impairment is a significant deviation, loss, or loss of use of any body structure or function
in an individual with a health condition, disorder, or disease.31 Compare this to the AMA
Guides to the Evaluation of Permanent Impairment, Fifth Edition as a loss, loss of use, or
derangement of any body part, organ system, or organ function.32
Nonoccupational exposures include individual risk characteristics such as age, sex, hand
preference, hobbies, and comorbid medical conditions such as diabetes, body mass index,
depression.
Chapter 1
Work environment is defined by OSHA in paragraph 1904.5(b)(1) as the establishment
and other locations where 1 or more employees are working or are present as a
condition of their employment.35 The work environment includes not only physical
locations but also the equipment or materials used by the employee during the course of
work.6
Aggravation occurs when a preexisting injury or illness has been permanently and
significantly changed.
For purposes of OSHA record keeping, the concept of aggravation is incorporated into
the definition of a recordable injury and illness, which occurs when an event or exposure
in the work environment results in any of the following:6
1. Death, provided that the preexisting injury or illness would likely not have resulted in
death “but for” the occupational event or exposure
2. Loss of consciousness provided that the preexisting injury or illness would likely not
have resulted in loss of consciousness “but for” the occupational event or exposure
3. One or more days away from work, days of restricted work, or days of job transfer that
otherwise would not have occurred “but for” the occupational event or exposure
4. Medical treatment in a case in which no medical treatment was needed for the injury
or illness before the workplace event or exposure or a change in medical treatment was
necessitated by the workplace event or exposure
Reflecting the increasing legal use of the AMA Guides, Sixth Edition states:
Aggravation Permanent worsening of a preexisting condition. A physical, chemical,
biological, or other factor results in an increase in symptoms, signs, and/or
impairment that never returns to baseline, or what it would have been except for the
aggravation (the level predetermined by the natural history of the antecedent injury or
illness)31
Summary
We have come full circle with the above statement, “Hence, the first step in
apportionment is scientifically-based causation analysis.”
What is a cause? Rothman38 defined a cause as “an event, condition, or characteristic that
plays an essential role in producing an occurrence of the disease.” There is causation, in
other words, only when 1 factor necessarily alters the probability of a second. Causality
is the relating of causes to the effects they produce. Most of epidemiology concerns
causality, and several types of causes can be distinguished. It must be emphasized that
epidemiologic evidence by itself is insufficient to establish causality, although it can
provide powerful circumstantial evidence (association).
What is risk? Risk is the probability that an event will occur. In epidemiology, it is most
often used to express the probability that a particular outcome will follow a particular
exposure. A risk factor is an environmental, behavioral, or biologic factor confirmed by
temporal sequence, ideally in prospective, longitudinal studies, that if present directly
increases the probability a disease will occur, and if absent or removed, reduces that
probability. Risk factors are part of the causal pathway or the causal model, where the
individual can be exposed to multiple factors.39
Furthermore, the presence of 1 risk factor does not negate other pathways with other
causal roles. Causal models are complicated by differences in personal susceptibility
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.