Presented by:

Attorney Leonard M. Hickey, Hickey Combs PLC

Michigan Occupational Health Conference (MOHC)

2014

October 17-18, 2014

Michigan Occupational & Environmental Medicine

Association’s

89th

Annual Scientific Meeting

and

Michigan Association of Occupational Health Nurses

Annual Scientific Meeting

IMPROVING THE OCCUPATIONAL MEDICINE

IMAGE IN THE LEGAL ENVIRONMENT

The workers’ compensation

community – Potential

occupational medicine service

users

Injured workers.

Employers.

Claims professionals.

Lawyers.

The workers’ compensation

community – Potential

occupational medicine service

users

The Board of Magistrates.

The Michigan Compensation Appellate

Commission.

The Michigan Court of Appeals.

The Michigan Supreme Court.

Who is an expert

witness?

MRE 702-“qualified expert opinion”.

Judge or Magistrate determines

whether a witness is “qualified” to give

expert opinion testimony.

Who is an expert

witness?

What qualifies a physician as an expert

witness?

Licensure

Medical degree

Internship

Residency

Fellowship

Who is an expert

witness?

Board certification

Experience in practice area

Continuing medical education

Research

Publications

Presentations

Teaching

Prior court recognition as an expert witness

Who is an expert

witness?

When is expert opinion admissible?

When the court determines:

It will be helpful to the trier of fact.

If it is based on sufficient facts.

If it is the product of reliable principles and

methods that the witness has reliably

applied to the facts of the case (Daubert).

Who is an expert

witness?

The facts on which an expert’s opinion

is based must be admitted into evidence

(MRE 703).

An expert may testify either on

established facts or on personal

knowledge.

In a pre-trial deposition, facts may be

presented in a hypothetical question.

Practical Application

Actual involvement in treatment vs.

delegation or oversight.

Bias (e.g., family medicine provider vs.

employer’s occupational medicine

provider)

Practicing without or outside of specialty

training.

Board certification is “gold standard”

among judges and magistrates.

Practical Application

Treater vs. one time evaluator.

Hierarchy of expertise (e.g.,

neurosurgeon vs. primary care

physician).

Weight accorded opinion testimony.

Other providers as expert witnesses?

Physician’s Assistants?

Nurse Practitioners?

Employer Perception of

Occupational Medicine

Providers

Quality of care.

Communication/service.

Employer Perception of

Occupational Medicine

Providers

Familiarity with employer.

Return to work policy.

Accommodation of restrictions.

Plant visit – knowledge of operations.

Job descriptions.

Employer Perception of

Occupational Medicine

Providers

Availability/hours of service/weekends.

Getting injured workers back to work

ASAP with or without restrictions.

Selection of specialists.

Quality of outcomes?

Philosophy on return to work?

Treatment &

Documentation

Occupational medicine provider as

threshold provider.

Good and complete charting.

Repeated template information?

Detailed history and complaints.

Detailed description of physical findings.

Follow-up on prior complaints and findings.

Treatment &

Documentation

Consistency of providers.

Diagnostic tests.

Gatekeeper role/specialty consults.

Objective vs. subjective findings.

Inconsistencies in complaints or

findings.

Evidence based medicine.

Comparison with Other

Medical Providers

Other providers who treat injured

workers.

Primary care providers

Internists

Physical medicine and rehabilitation

specialists

Orthopedic surgeons

Neurologists

Neurosurgeons

Comparison with Other

Medical Providers

Advantages of treating with OEM

specialists

Experience and expertise in treating

injured workers

Earliest medical contact with injured worker

Efficacious early diagnosis and treatment

Knowledgeable gatekeeper for specialist

referrals.

Distinguishing OEM

Providers From Other

Providers & Specialists

Sees patient most contemporaneous

with injury.

Gets best history while fresh in patient’s

mind and not tainted by a lawyer or

misstated or recorded erroneously.

Records initial complaints: location,

nature and intensity.

Distinguishing OEM

Providers From Other

Providers & Specialists

Records initial physical examination

findings.

Directs initial diagnostic work-up.

Directs initial treatment.

Evaluates need for and makes

specialists referrals

Distinguishing OEM

Providers From Other

Providers & Specialists

Establishes initial post-injury work

restrictions/work capacity.

Utilizes evidence based medicine.

LAST EMPLOYER LIABILITY FOR

“CUMULATIVE TRAUMA” CONDITIONS

• Requirement to prove new pathology in

addition to similar exposures?

• Rakestraw.

LAST EMPLOYER LIABILITY FOR

“CUMULATIVE TRAUMA” CONDITIONS

• Statatutory amendment (12/19/11):

MCL4 18.301(1): Employee must prove

that “work causes, contributes to, or

aggravates pathology in a manner so as

to create a pathology that is medically

distinguishable from any pathology that

existed prior to the injury.”

LAST EMPLOYER LIABILITY FOR

“CUMULATIVE TRAUMA” CONDITIONS

• “The date of injury . . . in the case of a

disease or in the case of an injury not

attributable to a single event is the

last day of work in the employment in

which the employee was last subjected

to the conditions that resulted in the

employee’s disability . . ..” MCL

418.301(1)

LAST EMPLOYER LIABILITY FOR

“CUMULATIVE TRAUMA” CONDITIONS

• A recent decision of Mag. Ognisanti

held that, where employee had

preexisting carpal tunnel syndrome, the

employee has the burden to prove that

his/her job at the last employer caused

a new pathology or an increase in the

preexisting pathology. McLean v

Nexteer Automotive Corp. (No change

in EMGs before and after employment

with Nexteer).

LAST EMPLOYER LIABILITY FOR

“CUMULATIVE TRAUMA” CONDITIONS

• Carpal tunnel syndrome: if employee

can prove post-employment EMG’s

show electrical evidence of worsening

of carpal tunnel syndrome as compared

to prior EMG, employee can prevail.

• In a pulmonary disability case, compare

post and pre-employment pulmonary

function studies and chest x-rays to

determine increase in pathology.