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Question: Employee, a poorly controlled diabetic, accidentally stepped on a nail at work. Surrounding cellulitis and abscess formation set in, but because he was slow in getting to a doctor, the infection invaded the underlying bone, causing osteomyelitis. He ended up with a partial foot amputation. In a claim for workers’ compensation (WC) benefits, which of the following is best?
A. Employee has a claim under WC, a quasi no-fault system that requires an employer to compensate its employees only for accidents occurring in the workplace.
B. Employer may offer employee’s preexisting diabetic condition and his failure to promptly seek medical attention as substantial rebuttable evidence against compensability.
C. A similar no-fault system has been proposed as an alternative to medical tort litigation, but it has yet to be established in the developed world.
D. All are incorrect.
E. All are correct.
Answer: D. Fashioned after Europe’s Workers’ Accident Insurance system that was put into place by Germany’s Otto von Bismarck, workers’ compensation (WC) laws found their way into the United States by 1908. Today, all states have enacted such laws to effectuate the policy that work injuries are among the costs of production, which industry is required to bear. Such laws purport to do away with vexatious issues like contributory negligence, agency principles that negate an employment relationship, and assumption of risk defenses, all of which had previously been used to deny an injured worker compensatory benefits.
WC laws differ somewhat from state to state, both in statutory provisions and judicial interpretations. However, an illness or disease condition that is related to work conditions will suffice. The employer bears the burden of proof and is required to affirmatively rebut the presumption of compensability. This is usually a high bar to scale, and preexisting conditions and poor patient compliance are insufficient to negate a WC claim, although they are used in apportioning payments to the injured worker.
Take Hawaii, widely viewed as a proworker jurisdiction, as an example. Its key WC statutory language covers any employee who “suffers a personal injury either by accident arising out of and in the course of employment or by disease proximately caused by or resulting from the nature of the employment.”1 In Chung v. Animal Clinic Inc.,2 Dr. Chung suffered a heart attack after office hours while jogging around the Kalani High School track in Honolulu. One of the issues was whether his heart attack arose out of and in the course of his employment and, if so, whether the employer substantially rebutted the presumption that the heart attack was work connected.
The Supreme Court of Hawaii used the work-connection approach in interpreting the phrase “arising out of and in the course of employment,” thereby rejecting the necessity of establishing temporal, spatial, and circumstantial proximity between the injury and employment. It held that the work-connection approach simply requires the finding of a causal connection between the injury and any incidents or conditions of employment. The only relevant inquiry was whether Dr. Chung’s heart attack in fact was aggravated or accelerated by his work activity and whether there was substantial evidence to the contrary.
The employer provided expert testimony from a cardiologist attributing the heart attack to preexisting arteriosclerosis and physical exertion from jogging. On the other hand, another physician believed that Dr. Chung’s employment activities as principal veterinarian, administrator, and president of Animal Clinic, which engaged Dr. Chung for long hours, as well as his other business-related activities, generated a substantial amount of mental and emotional stress which was strongly linked to the production of heart disease. This was sufficient to establish a work connection. The Court also had this to say about legal versus medical causation: “... a medical man may give a generalized opinion that there was no connection between an incident at work and a heart attack, and, in his own mind, may mean thereby that a preexisting pathological condition was the overwhelming factor in bringing about the attack and that the part played by the work was insignificant. But, while it may be sound medically to say that the work did not ‘cause’ the attack, it may well be bad law, because, in general, existing law treats the slightest factor of aggravation as an adequate ‘cause.’ ”
In a recent seminal case,3 the same Court reiterated that, in order to be exonerated, the employer must adduce specific evidence to indicate why the work event did not or could not have caused, aggravated, or accelerated the injury. It ruled that the claim in question was compensable because all three experts had failed to explain why the industrial accident could not have caused the slightest aggravation or acceleration of an existing injury. The patient, previously asymptomatic, had sustained shoulder injuries at work. Notwithstanding X-ray evidence of preexisting degenerative changes, the Court found for the worker because the medical reports of the employer’s physicians did not provide a sufficient degree of specificity to constitute substantial rebuttable evidence since “under our workers’ compensation statute, the slightest aggravation or acceleration of an injury by the employment activity mandates compensation.”
WC’s quasi no-fault approach has been proposed as a model for adjudicating medical malpractice claims, which are currently decided by a fault-finding, adversarial system.4 The injured patient is randomly and unjustly compensated, and the combative nature of the proceedings traumatizes the doctor-patient relationship and promotes the wasteful practice of defensive medicine. In many instances, fault simply cannot be ascertained. Some of these same criticisms led to the introduction of the no-fault system for auto injuries and for workers’ compensation. However, injuries arising out of medical care differ in one essential aspect from all other injuries: They may be a natural and unavoidable consequence of the underlying illness or treatment. If all complications were deemed compensable, including those that are unavoidable, then a true comprehensive no-fault system would exist. However, it would prove prohibitively expensive.
No-fault medical injury systems are presently in place in countries like Sweden and New Zealand. The latter’s no-fault compensation scheme came into effect in 1974 under its Accident Compensation Act, which removed all accidental injuries including medical injuries from the tort system. Under the initial scheme, which has since undergone numerous major revisions, injured patients did not have to prove fault. All the claimant had to establish was “medical, surgical, dental, or first aid misadventure.” However, the revised Act of 1992 required the claimant to show “medical error,” which was defined (like negligence) as “the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.” Now renamed the Accident Compensation Act 2001, it covers medical injuries that are “not a necessary part, or ordinary consequence, of the treatment.” The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. Hawaii Revised Statutes (HRS) Section 386-3.
2. Chung v. Animal Clinic Inc., 636 P.2d 721 (1981).
3. Panoke v. Reef Development of Hawaii Inc., Supreme Court of Hawaii. No. SCWC–11–0000556. Decided: December 14, 2015.
4. Tan, SY. In Medical Malpractice: Understanding the Law, Managing the Risks. World Scientific Publishing Co. Pte Ltd., Singapore, 2006.
Question: Employee, a poorly controlled diabetic, accidentally stepped on a nail at work. Surrounding cellulitis and abscess formation set in, but because he was slow in getting to a doctor, the infection invaded the underlying bone, causing osteomyelitis. He ended up with a partial foot amputation. In a claim for workers’ compensation (WC) benefits, which of the following is best?
A. Employee has a claim under WC, a quasi no-fault system that requires an employer to compensate its employees only for accidents occurring in the workplace.
B. Employer may offer employee’s preexisting diabetic condition and his failure to promptly seek medical attention as substantial rebuttable evidence against compensability.
C. A similar no-fault system has been proposed as an alternative to medical tort litigation, but it has yet to be established in the developed world.
D. All are incorrect.
E. All are correct.
Answer: D. Fashioned after Europe’s Workers’ Accident Insurance system that was put into place by Germany’s Otto von Bismarck, workers’ compensation (WC) laws found their way into the United States by 1908. Today, all states have enacted such laws to effectuate the policy that work injuries are among the costs of production, which industry is required to bear. Such laws purport to do away with vexatious issues like contributory negligence, agency principles that negate an employment relationship, and assumption of risk defenses, all of which had previously been used to deny an injured worker compensatory benefits.
WC laws differ somewhat from state to state, both in statutory provisions and judicial interpretations. However, an illness or disease condition that is related to work conditions will suffice. The employer bears the burden of proof and is required to affirmatively rebut the presumption of compensability. This is usually a high bar to scale, and preexisting conditions and poor patient compliance are insufficient to negate a WC claim, although they are used in apportioning payments to the injured worker.
Take Hawaii, widely viewed as a proworker jurisdiction, as an example. Its key WC statutory language covers any employee who “suffers a personal injury either by accident arising out of and in the course of employment or by disease proximately caused by or resulting from the nature of the employment.”1 In Chung v. Animal Clinic Inc.,2 Dr. Chung suffered a heart attack after office hours while jogging around the Kalani High School track in Honolulu. One of the issues was whether his heart attack arose out of and in the course of his employment and, if so, whether the employer substantially rebutted the presumption that the heart attack was work connected.
The Supreme Court of Hawaii used the work-connection approach in interpreting the phrase “arising out of and in the course of employment,” thereby rejecting the necessity of establishing temporal, spatial, and circumstantial proximity between the injury and employment. It held that the work-connection approach simply requires the finding of a causal connection between the injury and any incidents or conditions of employment. The only relevant inquiry was whether Dr. Chung’s heart attack in fact was aggravated or accelerated by his work activity and whether there was substantial evidence to the contrary.
The employer provided expert testimony from a cardiologist attributing the heart attack to preexisting arteriosclerosis and physical exertion from jogging. On the other hand, another physician believed that Dr. Chung’s employment activities as principal veterinarian, administrator, and president of Animal Clinic, which engaged Dr. Chung for long hours, as well as his other business-related activities, generated a substantial amount of mental and emotional stress which was strongly linked to the production of heart disease. This was sufficient to establish a work connection. The Court also had this to say about legal versus medical causation: “... a medical man may give a generalized opinion that there was no connection between an incident at work and a heart attack, and, in his own mind, may mean thereby that a preexisting pathological condition was the overwhelming factor in bringing about the attack and that the part played by the work was insignificant. But, while it may be sound medically to say that the work did not ‘cause’ the attack, it may well be bad law, because, in general, existing law treats the slightest factor of aggravation as an adequate ‘cause.’ ”
In a recent seminal case,3 the same Court reiterated that, in order to be exonerated, the employer must adduce specific evidence to indicate why the work event did not or could not have caused, aggravated, or accelerated the injury. It ruled that the claim in question was compensable because all three experts had failed to explain why the industrial accident could not have caused the slightest aggravation or acceleration of an existing injury. The patient, previously asymptomatic, had sustained shoulder injuries at work. Notwithstanding X-ray evidence of preexisting degenerative changes, the Court found for the worker because the medical reports of the employer’s physicians did not provide a sufficient degree of specificity to constitute substantial rebuttable evidence since “under our workers’ compensation statute, the slightest aggravation or acceleration of an injury by the employment activity mandates compensation.”
WC’s quasi no-fault approach has been proposed as a model for adjudicating medical malpractice claims, which are currently decided by a fault-finding, adversarial system.4 The injured patient is randomly and unjustly compensated, and the combative nature of the proceedings traumatizes the doctor-patient relationship and promotes the wasteful practice of defensive medicine. In many instances, fault simply cannot be ascertained. Some of these same criticisms led to the introduction of the no-fault system for auto injuries and for workers’ compensation. However, injuries arising out of medical care differ in one essential aspect from all other injuries: They may be a natural and unavoidable consequence of the underlying illness or treatment. If all complications were deemed compensable, including those that are unavoidable, then a true comprehensive no-fault system would exist. However, it would prove prohibitively expensive.
No-fault medical injury systems are presently in place in countries like Sweden and New Zealand. The latter’s no-fault compensation scheme came into effect in 1974 under its Accident Compensation Act, which removed all accidental injuries including medical injuries from the tort system. Under the initial scheme, which has since undergone numerous major revisions, injured patients did not have to prove fault. All the claimant had to establish was “medical, surgical, dental, or first aid misadventure.” However, the revised Act of 1992 required the claimant to show “medical error,” which was defined (like negligence) as “the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.” Now renamed the Accident Compensation Act 2001, it covers medical injuries that are “not a necessary part, or ordinary consequence, of the treatment.” The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. Hawaii Revised Statutes (HRS) Section 386-3.
2. Chung v. Animal Clinic Inc., 636 P.2d 721 (1981).
3. Panoke v. Reef Development of Hawaii Inc., Supreme Court of Hawaii. No. SCWC–11–0000556. Decided: December 14, 2015.
4. Tan, SY. In Medical Malpractice: Understanding the Law, Managing the Risks. World Scientific Publishing Co. Pte Ltd., Singapore, 2006.
Question: Employee, a poorly controlled diabetic, accidentally stepped on a nail at work. Surrounding cellulitis and abscess formation set in, but because he was slow in getting to a doctor, the infection invaded the underlying bone, causing osteomyelitis. He ended up with a partial foot amputation. In a claim for workers’ compensation (WC) benefits, which of the following is best?
A. Employee has a claim under WC, a quasi no-fault system that requires an employer to compensate its employees only for accidents occurring in the workplace.
B. Employer may offer employee’s preexisting diabetic condition and his failure to promptly seek medical attention as substantial rebuttable evidence against compensability.
C. A similar no-fault system has been proposed as an alternative to medical tort litigation, but it has yet to be established in the developed world.
D. All are incorrect.
E. All are correct.
Answer: D. Fashioned after Europe’s Workers’ Accident Insurance system that was put into place by Germany’s Otto von Bismarck, workers’ compensation (WC) laws found their way into the United States by 1908. Today, all states have enacted such laws to effectuate the policy that work injuries are among the costs of production, which industry is required to bear. Such laws purport to do away with vexatious issues like contributory negligence, agency principles that negate an employment relationship, and assumption of risk defenses, all of which had previously been used to deny an injured worker compensatory benefits.
WC laws differ somewhat from state to state, both in statutory provisions and judicial interpretations. However, an illness or disease condition that is related to work conditions will suffice. The employer bears the burden of proof and is required to affirmatively rebut the presumption of compensability. This is usually a high bar to scale, and preexisting conditions and poor patient compliance are insufficient to negate a WC claim, although they are used in apportioning payments to the injured worker.
Take Hawaii, widely viewed as a proworker jurisdiction, as an example. Its key WC statutory language covers any employee who “suffers a personal injury either by accident arising out of and in the course of employment or by disease proximately caused by or resulting from the nature of the employment.”1 In Chung v. Animal Clinic Inc.,2 Dr. Chung suffered a heart attack after office hours while jogging around the Kalani High School track in Honolulu. One of the issues was whether his heart attack arose out of and in the course of his employment and, if so, whether the employer substantially rebutted the presumption that the heart attack was work connected.
The Supreme Court of Hawaii used the work-connection approach in interpreting the phrase “arising out of and in the course of employment,” thereby rejecting the necessity of establishing temporal, spatial, and circumstantial proximity between the injury and employment. It held that the work-connection approach simply requires the finding of a causal connection between the injury and any incidents or conditions of employment. The only relevant inquiry was whether Dr. Chung’s heart attack in fact was aggravated or accelerated by his work activity and whether there was substantial evidence to the contrary.
The employer provided expert testimony from a cardiologist attributing the heart attack to preexisting arteriosclerosis and physical exertion from jogging. On the other hand, another physician believed that Dr. Chung’s employment activities as principal veterinarian, administrator, and president of Animal Clinic, which engaged Dr. Chung for long hours, as well as his other business-related activities, generated a substantial amount of mental and emotional stress which was strongly linked to the production of heart disease. This was sufficient to establish a work connection. The Court also had this to say about legal versus medical causation: “... a medical man may give a generalized opinion that there was no connection between an incident at work and a heart attack, and, in his own mind, may mean thereby that a preexisting pathological condition was the overwhelming factor in bringing about the attack and that the part played by the work was insignificant. But, while it may be sound medically to say that the work did not ‘cause’ the attack, it may well be bad law, because, in general, existing law treats the slightest factor of aggravation as an adequate ‘cause.’ ”
In a recent seminal case,3 the same Court reiterated that, in order to be exonerated, the employer must adduce specific evidence to indicate why the work event did not or could not have caused, aggravated, or accelerated the injury. It ruled that the claim in question was compensable because all three experts had failed to explain why the industrial accident could not have caused the slightest aggravation or acceleration of an existing injury. The patient, previously asymptomatic, had sustained shoulder injuries at work. Notwithstanding X-ray evidence of preexisting degenerative changes, the Court found for the worker because the medical reports of the employer’s physicians did not provide a sufficient degree of specificity to constitute substantial rebuttable evidence since “under our workers’ compensation statute, the slightest aggravation or acceleration of an injury by the employment activity mandates compensation.”
WC’s quasi no-fault approach has been proposed as a model for adjudicating medical malpractice claims, which are currently decided by a fault-finding, adversarial system.4 The injured patient is randomly and unjustly compensated, and the combative nature of the proceedings traumatizes the doctor-patient relationship and promotes the wasteful practice of defensive medicine. In many instances, fault simply cannot be ascertained. Some of these same criticisms led to the introduction of the no-fault system for auto injuries and for workers’ compensation. However, injuries arising out of medical care differ in one essential aspect from all other injuries: They may be a natural and unavoidable consequence of the underlying illness or treatment. If all complications were deemed compensable, including those that are unavoidable, then a true comprehensive no-fault system would exist. However, it would prove prohibitively expensive.
No-fault medical injury systems are presently in place in countries like Sweden and New Zealand. The latter’s no-fault compensation scheme came into effect in 1974 under its Accident Compensation Act, which removed all accidental injuries including medical injuries from the tort system. Under the initial scheme, which has since undergone numerous major revisions, injured patients did not have to prove fault. All the claimant had to establish was “medical, surgical, dental, or first aid misadventure.” However, the revised Act of 1992 required the claimant to show “medical error,” which was defined (like negligence) as “the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.” Now renamed the Accident Compensation Act 2001, it covers medical injuries that are “not a necessary part, or ordinary consequence, of the treatment.” The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. Hawaii Revised Statutes (HRS) Section 386-3.
2. Chung v. Animal Clinic Inc., 636 P.2d 721 (1981).
3. Panoke v. Reef Development of Hawaii Inc., Supreme Court of Hawaii. No. SCWC–11–0000556. Decided: December 14, 2015.
4. Tan, SY. In Medical Malpractice: Understanding the Law, Managing the Risks. World Scientific Publishing Co. Pte Ltd., Singapore, 2006.