Employee injuries and medical conditions can have a serious impact on any employer, whether they developed as a result of something that happened in the workplace or outside of it. However, do you know which components of your employee's injury are directly related to his or her on-the-job accident?

On August 22, as the Workers' Compensation Educational Conference had just begun, attendees were immersed in science for the breakout entitled “Using Health Science to Resolve Workers' Compensation Claims: Why Evidence-Based Medicine is Important.” Discussion revolved around the ways in which science can help ensure that an employee is not overpaid for a work-related injury through the teaching of which elements of a patient's condition may be unrelated to his or her on-the-job accident. Attendees heard from physicians, defense attorneys, and more while learning how to be objective.

“The full-day breakout for evidence-based medicine issues is a tribute to the impact of evidence-based medicine in the practice of medicine and claims handling,” said Steve Tipton, an attorney with Flahive, Ogden & Latson out of Austin, Texas who was involved in the breakout. “This is where medical practice and the law is—or should be—going.”

Evidence-based medicine can be used by medical providers to achieve best practices; by risk managers in exploring predictive outcomes and controlling medical costs; by claims handlers in determining what questions to ask and issues to pursue; and by attorneys in crafting valid evidence that can withstand legal attack—who then identify and exploit the limitations of opposing evidence.

“Establishing causation is a crucial medicolegal element of proof for a workers' compensation claimant and his or her medical providers,” Tipton said. “It is an important research activity affecting the delivery of good medical care.”

Tipton explained that only recently has there been a broad, aggressive move to make this a routine and truly scientific exercise on the state level in the workers' compensation context. One example of this is the state of Texas, which, among other states, provides an invaluable evidence-based tool for medical providers and carriers in evaluating causation and treatment issues after having adopted the Official Disability Guideline (ODG) as the official treatment guideline applicable to workers' compensation claims.

Texas law now requires the use of and defines “evidence-based medicine,” “best evidence,” and “evidence-based standards” as the proper and preferred sources for medical and scientific evidence. The state also defines an expert opinion as “a belief or an interpretation by specialists with experience in a specific area about the scientific evidence pertaining to a particular service, intervention, or therapy.” Essentially, the dominant portion of expert testimony must be about scientific evidence rather than personal opinion.

The final presentation during this multi-session breakout was entitled “How to Examine a Doctor Using Evidence-Based Medicine,” and included a panel discussion in which Tipton participated. He described it as a “nuts and bolts”-type presentation of specific, real fact scenarios. Amidst discussion of causation, diagnosis, and treatment was conversation regarding what information should be elicited from opposing experts while questioning their credibility and validity of their conclusions as well as using the tools available in various states to reinforce the testimony of a friendly expert opinion.

Tipton pointed out that as U.S. Supreme Court Justice Stephen Breyer once said, “In this age of science, science should expect to find a warm welcome, perhaps permanent home” in U.S. courtrooms. Breakthroughs in the field of science will no doubt continue to confirm the need for evidence-based medicine in the insurance industry, especially for those dealing with workers' compensation cases.

Special Reports /

WCEC 2011: Using Science in the Courtroom

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