Pitfalls in diagnosis of occupational lung disease for purposes of compensation - one physician's perspective.

• Author: Martin, Lawrence

I. SUMMARY

Occupational caused lung disease (OLD) is almost always compensable, either by application to workers' compensation agencies or by a civil lawsuit. For this reason the diagnosis usually comes under close scrutiny. Several pitfalls can occur when a physician diagnoses a patient as having lung disease of occupational origin, especially when compensation is at issue. These pitfalls can trap both the attorney advocate and his client, and lead to a result opposite of that intended (e.g., the claim one supports can be denied). For purposes of discussion I have categorized the pitfalls as follows:

1. Making an unsupported medical diagnosis (looking for a "quick fix"). B. Echoing an unsupported diagnosis made by someone else. C. Inadequate clarification of `impairment' and `disability.' D. Ignoring or minimizing relevant medical history. E. Arguing against yourself. F. Ignoring the possibility of a rare or unusual diagnosis. G. Not obtaining or reviewing independent chest x-rays and reports. H. Attributing causation with certainty when it is unwarranted by the facts. I. Relying on a claimant's own smoking history. J. Misinterpreting pulmonary function and arterial blood gas tests K. Missing the real cause of a patient's complaint. L. Diagnosing occupational lung disease without attempting to remove the patient from the cause. M. Confusion over basic terminology and pathophysiology in OLD. N. Using sloppy or incorrect language, including misspelling. O. Not saying "I don't know," when you don't know. Pitfalls in diagnosis generally arise from either physician bias or inadequate evaluation. Although most pitfalls seem to be made by physicians on the plaintiff's side, they are also made by physicians on the defendant's side, as when bias interferes with recognizing a condition that is occupational in origin.

   Ideally, the fact that diagnosis of OLD involves the legal profession should not affect a physician's objectivity or clinical approach. Physicians have an obligation to help assure that deserving patients receive compensation, and that claimants without a compensable occupational illness are not unjustly rewarded. However, the attorney's need to prove a diagnosis "with medical certainty," and the defendant's need to refute that diagnosis with equal certainty; often skew what would otherwise be a straightforward diagnostic process. Resulting pitfalls in diagnosis can, in the end, trap the physician advocate and the side he is trying to help.

   II. INTRODUCTION

   Pulmonary physicians routinely encounter patients seeking monetary compensation for occupational lung disease (OLD). The claims cover a variety of problems, including asbestos-related diseases, silicosis, occupational asthma, coal worker's pneumoconiosis, berylliosis, industrial bronchitis and many others. Most occupational claims are handled in one of two venues: 1) by a Workers' Compensation agency, for compensation of work-related illness or injury, or 2) in a civil suit, for damages against an employer or other culpable business.(2)

   Under workers' compensation laws the amount awarded by a Workers' Compensation agency is determined by a fixed schedule that is based on the worker's wages and degree of impairment. Claims are adjudicated by lay administrators, with physician input via written reports. The complexity of pursuing a claim to resolution usually mandates the need for legal counsel. Several law firms specializing in "Workers' Comp." can be found in any large city. The claimant's attorney receives a percentage of any lump sum awarded.

   In contrast to the `no-fault' nature of workers' compensation statutes, the plaintiff in civil suit must convince a jury that he or she was injured because of some action or negligence by the employer or other business (e.g., a supplier of asbestos materials). The legal theories raised in a civil suit are usually those of products liability or negligence.(3) Compensation is awarded by the jury, whose decision is in part based on physician testimony given either live or via video deposition.

   Because of the potential for some type of compensation, the diagnosis of OLD frequently has non-medical ramifications. Through the 1970s, ninety percent of respiratory claims were litigated.(4) The percentage is probably as high, if not higher, in the 1990s. Thus, an OLD diagnosis will likely be scrutinized by many others, including administrators, lawyers, and physicians who have never seen the patient. A diagnosis that may seem straightforward clinically can become extremely controversial when someone is asked to actually pay for it.

   For example, "asbestosis" in an asymptomatic individual signifies certain chest x-ray abnormalities for which no therapy is warranted. From a strictly medical standpoint, since the person has no symptoms, the diagnosis may have no impact whatsoever on his lifestyle or longevity. However, because the diagnosis implies occupational causation, it frequently (if not invariably) leads to a legal claim and all that it entails: other medical evaluations, more chest x-rays, tests of pulmonary function, administrative hearings, depositions, etc. By the time of trial the claimant may have developed "symptoms" of shortness of breath and be able to honestly testify how worried he is of developing lung cancer or some other serious respiratory problem.

   Similarly, the adjective "occupational" attached to a diagnosis of asthma can open up a Pandora's box of claims, counterclaims and, often, a lawsuit. As with asbestosis, harm can come both to the patient and to the defending business, assuming a claim is filed, if the diagnosis is sloppy or incorrect.

   Given the adversarial consequences of most OLD claims, several pitfalls can trap the physician who takes a position (and, by extension, the claimant or defendant and the respective attorney). In this article `pitfall' is used to denote some statement or conclusion, oral or written, about the diagnosis that should not have been made because it is incorrect, improper or unwarranted by the facts. I will not discuss any specific legal pitfalls, since that subject is outside my area of expertise.

   Diagnostic pitfalls can occur in: conversations with patients; office or chart notes; letters to the plaintiff's attorney; reports to independent agencies (e.g., Bureau of Workers' Compensation); and sworn testimony.

   The following examples include pitfalls by both office practitioners and academic physicians; the latter include statements from board-certified pulmonary specialists (pulmonologists) and nationally-recognized experts in some aspect of occupational lung disease. The cases cited originated in Ohio but the physicians quoted are from several states, including Ohio. All names have been deleted or changed for obvious reasons.

   III. PITFALLS

1. Making an unsupported medical diagnosis (looking for a `quick fix')

   Settlement of an occupational lung disease claim takes time. The treating physician may want to oblige his or her patient by making a quick, unsupported, diagnosis in the chart or in a letter to plaintiff's attorney. Although an unsupported diagnosis may help initiate a claim it will only get in the way if the claim is contested. For example: A 56 year-old man with a long smoking history was being treated for exacerbation of chronic obstructive pulmonary disease (COPD). Noting that the patient "works in a foundry;" his family physician wrote in the chart: "Dx. COPD - occupational asthma." A worker's compensation claim was filed, supported solely by the physician's statement (reiterated on the claim form without any supporting information). Ultimately the claim was disallowed, but only after two years of legal wrangling and after several experts had independently evaluated the patient.

   If the treating physician cannot be the patient's advocate all the way through a claim, the patient should be referred to someone who can. The above claim might not have been filed had the treating physician initially referred the patient to a specialist.

   The "quick fix" pitfall sometimes occurs when the claimants physician is asked by an attorney to certify OLD "so Mr. C. can pursue his claim." Even though the physician never considered OLD in Mr. C., he feels an obligation to help and, with some prompting by the attorney, writes: "It is more probable than not that my patient, Mr. C, has occupational asthma." If uncontested, such a statement may be all that is needed to pursue a scheduled award. If contested, however, the following facts will emerge: (1) the doctor is not an expert in the field; (2) he has treated the patient on numerous occasions but never made any connection between asthma symptoms and OLD before the claim; and (3) his first mention of OLD appears in his letter to the claimant's attorney. The result in such a situation is usually nullification of the treating doctor's testimony and delay in resolving the patient's claim.

   This type of pitfall also occurs when a physician is hired specifically to certify a diagnosis in multiple claimants with similar exposure history. To save time the physician may adopt a "uniform" approach, in which every letter reads the same, irrespective of the specific facts of the case. Here is one such instance.

   A large number of ex-foundry workers were sent to one physician to certify that they had OLD from remote foundry work. Since most of the workers had no lung disease of any type, certification required the creation of a quick-fix diagnosis. Thus, every letter from the physician included the following boilerplate statement, irrespective of the evidence: "His symptoms, clinical examination, employment history, and chest x-rays are consistent with the diagnosis of Asbestosis and or Asbestos exposure-related disease." In fact, in almost every case nothing about the patients' exams, test results or chest x-rays were consistent with the stated diagnoses. Each claim was rejected at the administrative level due to the lack of...