Visit my website:

Tuesday, November 1, 2011

Be careful about the standard of causation

The clever term "tort reform" has been used by insurance companies and corporations to press their agenda of stripping Americans of the traditional protections found in the law and creating many situations where those responsible for injuries escape liability and leave the taxpayer responsible for paying public assistance to those suffering from what should be considered work related injuries. To this end, many state workers compensation laws have been amended to make it more difficult for injured workers to receive workers compensation benefits for injuries that were once considered work related. One way of doing this is to change the traditional standard of causation to one that is less inclusive.

I recently saw this effect in the case of a client from Florida whose FECA benefits were rejected by OWCP based upon a directed medical examination report. Florida has enacted many rules that have stripped injured workers of the the traditional protections once thought to be basic concepts of workers compensation by making it more difficult to establish that a medical condition is related to factors of employment.

The standard of causation utilized by OWCP in a FECA case is whether a work factor contributes in any way or to any degree to a medical condition. In Florida, that traditional black letter standard was tossed aside by requiring a work factor to be a “major contributing cause.” My client was sent to a directed examination by OWCP with a physician who claimed his work factors were not a "major contributing cause" of his medical condition.

On review, OWCP agreed that the physician had erroneously applied the much more limited standard of causation under Florida's workers compensation law rather than the traditional standard of causation that is applicable in a FECA case.