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The following excerpt from Substantial Evidence and Science, Law and Logic is reprinted with permission of getMedLegal.com

The en banc decision in Escobedo tells us what is required to establish apportionment. Like the yeti, there are rare sightings. Too often we see paragraphs such as this:

"With regard to the cervical spine, ninety (90) percent of the causation of the cervical spine disability would be due to the industrial injury and the remaining 10 percent of the causation of the cervical spine disability would be due to the preexisting nonindustrial conditions of the cervical spondylosis and neural foraminal stenosis."

How and why do these common spinal defects cause current permanent disability? What are the scientific underpinnings, if any, to this conclusion? Does the mere presence of pathology equate to disability?

In a previous article we discussed the science and fiction behind Labor Code § 4663.

In law, "causation" is a complex concept that often overlaps with general doctrines of analytic philosophy. In medicine, "causation" is also complex. Modern medicine is science-based. In science, there is a method for determining causality, with the gold standard being to prove cause and effect in a way that others can reproduce.

"In the context of disability evaluation, where a particular condition might be linked to the workplace; medical definition of causation requires valid scientific proof; legal definition requires either a probability of > 50% or that the event was more likely than not to be causative." (McGraw-Hill Concise Dictionary of Modern Medicine. © 2002)

For the worker's compensation practitioner, it is not practical, nor of great value, to study the voluminous literature in law, medicine, science and philosophy concerning causation. Here we focus on some practical concepts which can be directly applied to the medical reports we receive on a daily basis, where the forensic evaluator has speculated on apportionment and failed to explain the how and the why, as required by Escobedo, or has given an explanation which runs afoul of the concept of causation of permanent disability.

If an analysis of the apportionment language does not show that it complies with the major apportionment decisions, open your browser and start Googling. There is a wealth of information (and misinformation) online. Reputable sources include major medical clinics such as The Mayo Clinic, medical databases, and accepted medical textbooks such as Wheeless' Textbook of Orthopaedics.

Research the risk factors. Is the doctor apportioning to causation of the condition? That is not allowed when apportioning permanent disability. United Airlines v. WCAB (Milivojevich), 72 CCC 1415 (W/D-2007). If there are risk factors involved in causing a medical condition, a doctor might find industrial causation if it is more probable than not that the work caused or contributed substantially to the condition. The same reasoning, using risk factors, cannot apply to apportionment, as risk factors by themselves do not prove causation. The risk factors are determined by epidemiological studies, which by definition do not prove causation.

If the doctor's apportionment language cannot find shelter under a legal umbrella, and the medical umbrella is nonexistent or doubtful, then look to concepts of false causation to debunk the apportionment analysis.

Science or science fiction?

To separate science from fiction, be aware of what science regards as proof of causation versus correlation.

Clinical medicine is not a science, and evidence-based medicine may be more experience-based than science-based. On the other hand, when a doctor is a forensic evaluator, he or she needs to be held accountable to knowing rules of law, science, and logic. It is thus appropriate to query the doctor about the difference between scientific proof and the doctor's experience.

Click here for an extract from a deposition where the AME abandoned the apportionment given in a report when questioned about causation.

For more information on the scientific method, click here. To access the free "Reference Manual on Scientific Evidence, Third Edition, click here.

Remember to do some medical research. Use Google to find good questions to ask the evaluator. For example, if the doctor has apportioned to degenerative arthritis, ask how he is able to distinguish it from traumatic arthritis caused by a specific injury or cumulative trauma from past work. You might be able to convert some or all of the non-industrial apportionment to an industrial CT, so even if the case is "Bensonized" it is better than non-industrial apportionment.

Logic or logical fallacy? BOLO for fallacies that infest medical-legal reports

Be on the lookout for these common logical fallacies:

1. Ipse dixit ("he himself said it"). Something is true because the doctor said it was. Even if cloaked in "medical expertise" assertions, the attorney should question this and demand the doctor prove the assertions.

2. Cum hoc, post hoc and other fallacies of causation: "Timing is everything," it is said, but it is not per se proof of causation. Two things can happen at or around the same time but be unrelated. Just as we do not assume our client's high blood pressure was caused by his knee injury, we should not assume the forensic evaluator's apportionment to obesity proves causation of permanent disability.

3. Dicto simpliciter (a commonplace saying without qualification, or sweeping generalization): A common one is that degenerative arthritis causes permanent disability. It may take many questions to persuade the evaluator to abandon that fallacy

4. Circular logic: Arguing in a circle, or circular reasoning. This is when two conclusions are used as premises to support each other, but unless one accepts one of them as true at the outset, there is no reason to accept the conclusions. So, because someone with permanent disability has degenerative arthritis in a damaged joint does not mean that the degenerative arthritis is the cause of the permanent disability. It might be traumatic arthritis due to the work injury, or it might have no effect on function (compare to contralateral joint). If there is no evidence that is distinct from the conclusion, insist that the forensic evaluator provide that (the "how" and the "why").

There are numerous websites devoted to logical fallacies. An attorney can mine them, learning to recognize and question the forensic evaluator's errors of reasoning.

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