Major Cause --- What Does It Mean?

The March 13 issue of the Oklahoma Bar Journal is devoted to workers' compensation. One of the articles (written by yours truly) analyzes the "major cause" requirement for compensability of a work injury. My regular readers know that there are no published cases addressing the meaning of this term. If you decide to read it, remember that the conclusions are only a best guess of what the Supreme Court ultimately will say about major cause.

Major Cause --- What Does It Mean? can be viewed at my website.

All articles can be accessed at the OBA website or by clicking here. They include:

1. Revisiting the Vortex: The Collision of the Oklahoma Workers' Compensation Act, FMLA, ADA by Madelene A.B. Witterholt and  Tyson D. Grayson;
2. Mediation and Workers' Compensation by Michael G. Coker;
3. The Evolution of Workers' Compensation in Indian Country by Jay Jones;
4. The Eight-Week Soft Tissue TTD Limitation by James M. Wirth;
5. Illegal Aliens, Immigration Policy and Workers' Compensation by Pam Cornett; and
6. Medicare Considerations for the Workers' Compensation Practitioner by Valerie Evans.

Major Cause --- Boy Was I Wrong!

Major cause is the most puzzling of the new terms in the 2005 legislative reforms. "Major cause means the predominate [sic] cause," and the employment must be the major cause of the injury. Predominate [sic] is a synonym for major, and we have a term defined in terms of itself. What I call a circular definition which is no definition at all. That's the problem, and we traditionally look to the appellate courts for clarity.

The COCA tried to make sense of the term and establish guidelines for its application in the case of American Airlines v. Crabb. The Supreme Court then agreed to review the opinion. Originally I posted the unpublished COCA case, and then made a stab at predicting the ultimate outcome. I was one of those who unfortunately concluded that the Supreme Court would clarify the nebulous verbiage. Boy was I wrong!

The Supreme Court avoided the issue. Released yesterday, the opinion holds that the claimant's date of injury preceded the 2005 amendments; thus making it unnecessary to address the major cause dilemma. Crabb alleged a cumulative trauma injury with date of awareness in 2004. The Court held that the date of awareness is the date of injury, and therefore 2004 substantive law applies. Since the major cause requirement adds a new element of proof which must be viewed as substantive, it cannot be applied because it was enacted after the injury date.

Judge Buettner, author of the COCA opinion, held that the date of injury was the date of last exposure based on 85 O.S. §11(B)(5) and CNA Insurance v. Ellis. I agreed. How did we get it wrong? Ellis was an apportionment case and Crabb was not. Is that the distinction? Or not? More on this in a later post.

In the meantime what do we do now? For now I (meaning one of ten judges at the WCC) will follow the reasoning of my previous posting on this question. Would the claimant's current injury-producing need for medical treatment have occurred but for the workplace trauma? And so it goes.

Major Cause Revisited ---- Again

No opinion yet from the Supreme Court on the American Airlines v. Crabb case dealing with "major cause," but a review of Dempsey v. Ballard Nursing Center may help us predict its ultimate outcome. Written by Judge (now Justice) John F. Reif, it predates the 2005 changes, but offers insight into the core question of how to determine the causal connection between workplace trauma and injury. Perhaps the approach to answering the new "major cause" issue is the same as the approach to the old "causation" issues addressed by Justice Reif.

Ladonna Dempsey's pre-existing spondylolisthesis became symptomatic after lifting patients at a nursing home. Employer's medical expert said that she was "in need of surgery to her back, but it is due to spondylolisthesis which is a pre-existing condition and not as a result of the injury she sustained on July 12, 2002, while working for [nursing home]." If these facts had arisen after July 1, 2005, employer would have used then to prove a "major cause defense."

Justice Reif held: "The problem with this opinion [of the medical expert] is that it essentially says claimant needs surgery for the effects of the spondylolisthesis, and the injury of July 12, 2002, did not cause the spondylolisthesis. The question which the doctor did not address is whether the injury of July 12, 2002, aggravated the spondylolisthesis so that it requires surgery now, as opposed to surgery being the general medical treatment that would have eventually been needed to correct this condition." Dempsey v. Ballard Nursing Center, id at ¶10.

Paraphrasing Justice Reif could we be on the verge of this standard: the test of major cause is whether work-related trauma aggravated a preexisting condition so that it requires treatment now, as opposed to treatment that would have eventually been needed to correct the condition.

If so, the test would not be unlike the former test for plain, old "causation." Both are intended to insure that there is a work connection between the trauma and the resulting injury or condition.

Supreme Court To Consider Arguments on Major Cause Issue

In May, 2008, the COCA addressed the issue of major cause in the case of American Airlines v. Crabb, _ OK CIV APP _, _ P.3d _. The trial court ruling for the claimant was reversed, and the Supreme Court has accepted a request to review the COCA decision.

When the legislature adopted the 2005 major reforms, it inserted the term "major cause" into the Act. The provision states "[m]ajor cause means the predominate [sic] cause of the resulting injury or illness." An injury is compensable if it causes harm to the body and if the employment is the major cause of the specific injury or illness. 85 O.S. §3(13)a.

"Major cause" is a seemingly simple yet inscrutable term that defies definition using traditional analysis. Major cause is predominate cause; and predominant is a synonym for major. Thus use of a dictionary or thesaurus is futile and leads to circular reasoning.

I will not describe the details of the COCA case or its conclusions. If the Supreme Court issues an opinion, it will supercede the COCA opinion and become the controlling law on major cause. But if you are really interested, I have posted the COCA opinion on Scribd, the online document repository.

Stay tuned for breaking news. In the meantime we can wrestle with the questions: what does it mean? what did the legislature intend? will our decision-making be altered? I will post an update as soon as the Supreme Court opinion is posted.