Occupational lung disease (OLD) is almost always compensable, either by application to workers' compensation agencies or via 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").
2. Echoing an unsupported diagnosis made by someone else.
3. Inadequate clarification of 'impairment' and 'disability.'
4. Ignoring or minimizing relevant medical history.
5. Arguing against yourself.
6. Ignoring the possibility of a rare or unusual diagnosis.
7. Not obtaining or reviewing independent chest x-rays and reports.
8. Attributing causation with certainty when it is unwarranted by the facts.
9. Relying on a claimant's own smoking history.
10. Mis-interpreting pulmonary function and arterial blood gas tests
11. Missing the real cause of a patient's complaint.
12. Diagnosing occupational lung disease without attempting to remove the patient from the cause.
13. Confusion over basic terminology and pathophysiology in OLD.
14. Using sloppy or incorrect language, including misspelling.
15. Not saying "I don't know," when you don't.
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 as 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 patients deserving compensation get it, 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 tying to help.
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) Workers' Compensation agency, for work-related illness or injury, or 2) civil court, for damages against an employer or other culpable business (Richman 1989; Oliver 1990).
Under workers' compensation laws the amount awarded 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. In any large city can be found several law firms specializing in "Workers' Comp." 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 court 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 applicable laws in civil court are usually those of products liability or negligence (Richman 1989; Oliver 1990). Compensation is awarded by the jury, whose decision is in part based on physician testimony given either live or via video deposition.
Because of potential for some type of compensation, the diagnosis of OLD almost always has non-medical ramifications. Through the 1970s ninety percent of respiratory claims were litigated (Richman 1982); the percentage is probably as high, if not higher, in the 1990s. Thus, any diagnosis of OLD will likely come under scrutiny 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 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 entails: other medical physician evaluations, more chest x-rays, tests of pulmonary function, administrative hearings, depositions, etc. By the time of trial the patient 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 sloppily made or is incorrect.
Given the adversarial consequences of most OLD claims, several pitfalls can trap the physician who takes a position (and, by extension, the claimant/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:
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. Cases cited originated in Ohio but the physicians quoted are from other states as well as Ohio. All names have been deleted for obvious reasons.