Objective v. Subjective in the New Workers' Compensation Act: Much Ado About Nothing
Michael A. Moroni1
I. Introduction
With the enactment of Senate Bill 1 & 130 in 2005, the Missouri Workers’ Compensation Act was dramatically changed — both in substance and perception. Definitely, significant changes were made in areas such as the definition of accident, means of notice, and judicial staff, among others.2 However, the perception of these changes is out of proportion to the actual impact upon the law. One example is the objective vs. subjective dichotomy. It is the author’s opinion that, when analyzed, the differences in the outcome of cases based upon two portions of the statute requiring objective criteria will be minimal. In essence the wailing and gnashing of teeth about this issue is much ado about nothing.
In analyzing the changes in the act, it is necessary to keep the following rules of construction in mind. “A court’s construction of statutory language becomes part of the statute as if it had been amended by the General Assembly.”3 Second, when an act is amended, the parts retained are considered to be a continuation of the prior law and are entitled to the same construction.4 Third, if a term is defined in the statute, that definition must be used.5 And fourth, when words are not defined, they “are given their plain and ordinary meaning as found in [a] dictionary.”6
II. Objective Requirements of Accident
The first portion of the act to use “objective” is the statutory definition of accident, which reads:
The word ‘accident’ as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.7
The “objective symptom” language is the same as was enacted in the original act:
The word ‘accident’ as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.8
While some of the particulars have changed, the phrase “producing at the time objective symptoms of injury” has been constant since the act was adopted. Applying the first two rules of construction above, the judicial definition placed upon the phrase is controlling.9 Had the legislature intended to change these definitions, it could have done so.10 Indeed, some of the earlier versions of the final act contained a more restrictive definition of “injury” that included “objective relevant medical findings,” which were defined as “those findings which cannot come under the voluntary control of the patient,”11 but this definition did not make it to the final version. 12
The meaning of “objective symptoms” was first addressed in Missouri by the Kansas City Court of Appeals in Guillod v. Kansas City Power & Light.13 The claimant sustained a hernia while lifting a 100-pound spool of wire into a truck. He felt an immediate sharp pain in his side, was nauseated that day (Saturday), was nauseated Sunday and Monday, and was diagnosed with a hernia by a doctor on Monday. The workers’ compensation commission found an accident and ordered medical treatment and “temporary total disability” benefits. Both the circuit court and the court of appeals affirmed the award. Because the Missouri act was based upon the Nebraska act, the Missouri court relied upon Nebraska law and quoted the Nebraska Supreme Court:
[T]he accident must produce “at the time objective symptoms of injury,” but the difficulty is as to what constitutes objective symptoms. Defendant’s idea is that by objective symptoms are meant symptoms of an injury which can be seen, or ascertained by touch. We are of the opinion that the expression has a wider meaning, and that symptoms of pain, and anguish, such as weakness, pallor, faintness, sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in bodily condition may constitute objective symptoms as required by the statute.14
The meaning of “at the time” and “objective signs” was later refined in Schroeder v. Western Union Telegraph Co.15 The claimant was a 17-year-old boy who suffered traumatically induced manic depressive syndrome. The claimant worked as a bicycle messenger. On the date of the accident, while returning from delivering a message in downtown St. Louis, a car struck him from behind. He was thrown from the bike and struck his head on a car bumper. The driver asked him if he was hurt. The boy said no, and proceeded to go home. At that time he showed no ill effects from the accident. The next day he “talk[ed] out of his head” (made strange statements).16 He was ultimately hospitalized and diagnosed with manic depressive syndrome. The employer-insurer argued that the claimant did not show at the time objective symptoms of injury. The court rejected this argument, stating:
The word “objective” has been defined medically to mean “perceptible to persons other than the patient.” Webster’s New Int’l Dictionary. The term “objective symptoms” has been held to mean those symptoms which a surgeon or physician discovers from an examination of his patient, while “subjective symptoms” are those which he learns from what his patient tells him. Dean v. Wabash R. Co., 229 Mo. 425, 129 S.W. 953, 957. The “crazy” actions and irrational “talk” of the claimant on the morning after he received the blow on the head were all “objective symptoms” of insanity following the injury arising out of and in the course of his employment. The mere fact that the claimant mistakenly said he was not hurt immediately after striking his head is not sufficient to warrant a holding that there were no objective symptoms of injury at the time in the face of the evidence showing that he was actually hurt in a very serious manner but that the effects were not manifested outwardly until the next morning when his mother found he was “crazy” and “talking out of his head.”17
Schroeder was later relied upon in Albert v. Krey Packing Co.,18 in which the court laid down the rule that “it satisfies the requirement that the symptoms be produced ‘at the time’ of the event if they manifest themselves according to the natural course of such matters without any independent intervening cause being shown to be responsible for their appearance.”19 In Albert, the claimant was injured when she was pinned between a large steel table and a post. The accident made the claimant so weak that she had to be bodily assisted to the first aid station and was later found at the hospital to have a nose bleed and be spitting blood. These were objective symptoms even though remote in time from the accident.
These concepts were expanded by the Missouri Supreme Court in Davies v. Carter Carburetor.20 A subsequent myelogram suggesting a bulging disc and a bulging disc found upon surgery were sufficient to meet the requirements.
Other objective symptoms are stiff and sore knees and eyeglasses broken from an auto accident.21 Becoming “deathly sick” and “nauseated,” and vomiting after a fall, were sufficient to support a back injury.22 Hysteria, irrationality, elevated blood pressure, rapid pulse, dilated eyes, tremor, abnormal posture and inability to walk were found to be objective symptoms.23 Of course the change in bodily condition can be death,24 even if there are no marks on the body.25
The key to objective symptoms is that at some point they must be observable to someone other than the claimant.26 However, it is not necessary that they actually be observed by another person. 27
In Schoenrock v. School Dist. of Nebraska City,28 the claimant was injured when he slipped and fell backward on steps. He felt pain immediately and thought that he had pulled a muscle. He had trouble sitting and getting out of his chair, the condition worsened over the next few days, and he went to a doctor who found muscle spasms in the back. X-rays showed a narrowing of the L-5 disc space. A myleogram showed a ruptured L-4 disc, which was surgically removed. In finding that these symptoms met the accident requirement, the court stated:
The evidence in this case is that the plaintiff commenced having difficulty immediately after the accident. When he went to the teachers’ room to correct papers and again at noon in the lunchroom the plaintiff had difficulty in sitting down and getting his chair to the table. The injury seemed to progress and he developed numbness in his right foot. His right hip felt as though it was catching and would not move. At the time the plaintiff went to see the doctor his right leg was numb and the ankle joint and knee joint would not bend. The plaintiff could climb stairs only one step at a time and had to walk very slowly. These are all symptoms which could have been observed by others and constitute objective symptoms.29
III. Objective Requirements in Proof of Disability with Conflicting Medical Opinions
The second place in the act that objective vs. subjective comes into play concerns proof of disability. The act states:
In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.30
Unlike “objective symptoms” in the definition of accident, the legislature defined “objective medical findings.” Because it has been defined, there is no need and no authority for the development of a judicial definition.31 By definition, objective medical findings are established by one or more of three methods: first, physical examination; second, appropriate tests; or third, appropriate diagnostic procedures. The question is not, “What is an objective medical finding?” but rather, “What is a physical examination, appropriate test or appropriate diagnostic procedure?” The latter terms are undefined, so dictionary definitions are useful.32
What constitutes a physical examination? In medicine the
[p]hysical examination or clinical examination is the process by which a health care provider investigates the body of a patient for signs of disease. It generally follows the taking of the medical history – an account of the symptoms as experienced by the patient. Together with the medical history, the physical examination aids in determining the correct diagnosis and devising the treatment plan. This data then becomes part of the medical record.”33
Other definitions are: “[E]xamination by means such as visual inspection, palpation, percussion, and auscultation to collect information for diagnosis[;]”34 or “[A]n examination of the bodily functions and condition of an individual.”35
What constitutes an appropriate test? First, “appropriate” is defined as “especially suitable or compatible; fitting,”36 or as “suitable for a particular person, condition, occasion, or place; proper or fitting.”37 It follows that the test or diagnostic procedure must be suitable for the particular patient. A test is variously defined as “a diagnostic procedure for determining the nature of a condition or disease or for revealing a change in function,”38 or as “[a] method of examination, as to determine the presence or absence of a definite disease or of some substance in any of the fluids, tissues, or excretions of the body, or to determine the presence or degree of a psychologic or behavioral trait,”39 or “a medical test is any kind of diagnostic medical procedure performed for health reasons. For example: • to diagnose diseases • to measure the progress or recovery from disease • to confirm that a person is free from disease.” 40
None of the sources cited so far specifically defines “diagnostic procedure.” Diagnostic is defined as “1a. of, relating to, or used in diagnosis, b. using the methods of or yielding a diagnosis;”41 or “1. Relating to or aiding in diagnosis. 2. Establishing or confirming a diagnosis.”42 Procedure is defined as “a sequence of activities, tasks, steps, decisions, calculations and processes, that when undertaken in the sequence laid down produces the described result, product or outcome,”43 or “a series of steps followed in a regular definite order <surgical procedure>,”44 or an “[a]ct or conduct of diagnosis, treatment, or operation.”45 Internet definitions of “diagnostic procedure” include: “A procedure followed in making a medical diagnosis,”46 and “A method used to see if a disease is present or not. It is also used to figure out what kind of disease is present.”47 It seems that “diagnostic procedure” is a specific inquiry regarding a body part done in a specific way.
Combining the definitions of test and diagnostic procedure, the test determines what is wrong with a person through a particular diagnostic procedure.
The new act ranks the physical examination and diagnostic tests and procedures over the subjective history. There is no difference from a statutory standpoint whether tests are objective or subjective. It merely matters that they are appropriate diagnostic tests. It also doesn’t matter from a statutory standpoint whether the condition is determinable on physical examination or by a sophisticated test. It follows that a diagnosis based solely upon pain without support in the physical examination or by tests or procedures will automatically be trumped by an opposite diagnosis based upon the same information if supported by physical examination, appropriate test or appropriate procedure. However, if the physician finds on the physical examination that the claimant has signs of pain, such as muscle spasm, tenderness to palpation, limitation of motion, etc., that opinion will not automatically fall to an opinion based upon findings, or lack thereof, on tests such as an MRI, CT scan, etc.
IV. Potential Considerations had the Act Actually Required Objective Evidence
If the statute actually required objective tests or objective evidence to make a case, there would have been justification for the wailing and gnashing of teeth. For example, in New York a plaintiff has to prove a “serious injury” to maintain a civil action for non-economic damages under the no-fault automobile insurance system.48 The statutory purpose is weeding out of frivolous claims and the restriction of recovery to significant injuries. In keeping with the legislative intent, New York courts have required that “serious injuries” be proven with objective proof and not merely subjective complaints.49 That being said, objective evidence has not been defined in New York’s law – the lack of which has lead to considerable litigation. Such controversy is exemplified in Brown v. Achy.50 The majority and dissent argue over whether a straight leg test is objective evidence. Both sides point to precedent for their positions. Further, the sides even argue whether the findings of an MRI are objective when one expert finds a disc herniation and another expert reviewing the same film finds nothing wrong.51 The whole process is termed by the majority as “once again present[ing] us with the sometimes frustrating task of deciding when evidence presented on a motion for summary judgment meets the ‘serious injury’ threshold (cite omitted), an elusive standard that all too frequently escapes facile and final resolution.”52
While it appears simple on its face to require objective evidence, in actuality the application of the standard is tedious. After all, it is particularly frustrating to dig through the stacks to find whether a particular test has been found to be objective or subjective, only to find that it has been determined to be both by different courts.53
V. Conclusion
As the law now stands, nothing as complicated as the New York system is required. All the claimant must show is that an accident causes some sort of pain, the reaction which would have been observable by another person if present, or some sort of disheveled appearance, supported by a physician saying that something was found upon a normal physical examination to support the claimant’s complaints. The question then remains as it always has – one of credibility and common sense for the judge. 54
Footnotes
1 The author practices with the firm of Burns, Taylor, Heckemeyer & Green, LLC in Cape Girardeau. He was an associate administrative law judge with the Missouri Division of Workers’ Compensation from January 2000 through December 2005. He has a B.S. and M.A. from Southeast Missouri State University and a J.D. from Southern Illinois University. He is currently the vice-chair of The Missouri Bar Workers’ Compensation Law Committee and an adjunct professor of law at American Justice School of Law in Paducah, Kentucky. The views expressed are his own.
2 While the effect of the elimination of legal advisors and total reduction of the legal staff is far from certain, a study conducted by Missouri Lawyers Weekly saw a reduction of 16% in pro-se permanent partial disability settlements. An internal headline in the article stated: “Cutting legal advisers accounts for 16 percent drop in case value.” S. Lauck, “Pro se claimants feel brunt of workers’ compensation reforms.” Missouri Lawyers Weekly Vol. 20, No. 50, December 11, 2006.
3 Hardesty v. City of Buffalo, 155 S.W.3d 69, 75 (Mo. App. S.D. 2005).
4 Id.
5 Johnson v. Mo. Dept. of Health and Senior Services, 174 S.W.3d 568, 581 (Mo. App. W.D. 2005).
6 BHA Group Holding, Inc. v. Pendergrast, 173 S.W. 3d 373, 379 (Mo. App. W.D. 2005).
7 Section 287.020.2, RSMo Supp. 2006 (emphasis added).
8 1927 Mo. Laws § 7(b) (emphasis added).
9 Hardesty v. City of Buffalo, 155 S.W.3d at 75.
10 Section 287.020.10, RSMo, has minimal effect on this section because it only abrogates later case law beginning with Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. banc 1999).
11 Proposed § 287.020.3(5), Senate Committee Substitute for Senate Bills Nos. 1 & 130, 93rd Gen. Assem., 1st Reg. Sess. (Mo. 2005).
12 The terms “injury” and “personal injuries” shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.
Section 287.020.3(5), RSMo Supp. 2006.
13 18 S.W.2d 97 (Mo. App. W.D. 1929).
14 Id. at 100 (quoting, Manning v. Pomerene, 162 N.W. 492, 493 (Neb. 1917)).
15 129 S.W.2d 917 (Mo. App. E.D. 1939).
16 Id.
17 Id. at 922.
18 195 S.W.2d 890, 893 (Mo. App. E.D. 1946).
19 Id.
20 429 S.W.2d 738, 750 (Mo. 1968).
21 Avery v. City of Columbia, 966 S.W.2d 315, 321 (Mo. App. W.D. 1998).
22 Harrington v. Missouri Valley Constr. Co, 155 N.W.2d 355, 359 (Neb. 1967).
23 Bekeleski v. O. F. Neal Co, 4 N.W.2d 741, 743 (Neb. 1942).
24 Schulz v. Great Atl. & Pac. Tea Co., 56 S.W.2d 126, 128 (Mo. 1932); Moyer v. Orek Coal & Mining Co., 82 S.W.2d 924, 929-30 (Mo. App. W.D. 1935).
25 Brewer v. Ash Grove Lime & Portland Cement Co., 25 S.W.2d 1086, 1088-89 (Mo. App. S.D. 1930) (employer argued that there were no marks of injury on the body).
26 Schulz, 56 S.W.2d at 128.
27 Schoenrock v. School District of Nebraska City, 139 N.W. 2d 547 (Neb. 1966).
28 Id.
29 Id. at 550.
30 Section 287.190.6(2), RSMo Supp. 2006. This is significantly less strenuous than that originally proposed by the House. As proposed, § 287.190.6(2) read:
Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. When determining physical or anatomical impairment, a physician, medical provider, administrative law judge, the division, the commission, or a reviewing court shall not consider subjective complaints of pain which are not certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings.
House Comm. Substitute for Senate Substitute for Senate Comm. Substitute for Senate Bill Nos. 1 & 130, 93rd General Assem., 1st Reg. Sess. (Mo. 2005).
31 Johnson, 174 S.W.3d at 581. Had the House version become law, the debate over objective and subjective evidence would have been relevant because those terms were not defined. See, Note 27.
32 BHA Group, 173 S.W.3d at 379.
33 Wikipedia,available at http://en.wikipedia.org.
34 Stedman’s Medical Dictionary, available at www.stedmans.com.
35 Merriam Webster’s Medical Desk Dictionary (Revised ed. 2006) available at www.M-W.com/dictionary.
36 Merriam Webster’s Collegiate Dictionary 61 (11 ed. 2005).
37 The American Heritage Dictionary of the English Language 64 (New College Ed. 1976).
38 Merriam Webster’s Medical Desk Dictionary (Revised ed. 2006), available at www.M-W.com/dictionary.
39 Stedman’s Medical Dictionary (27th ed. 2006), available at www.stedmans.com.
40 Wikipedia, available at http://en.wikipedia.org.
41 Merriam Webster Medical Desk Dictionary (Revised ed. 2006), available at www.M-W.com/dictionary.
42 Stedman’s Medical Dictionary (27th ed. 2006), available at www.stedmans.com.
43 Wikipedia, available at http://en.wikipedia.org
44 Merriam-Webster Medical Desk Dictionary (Revised ed. 2006), available at www.M-W.com/dictionary.
45 Stedman’s Medical Dictionary (27th ed. 2006), available at www.stedmans.com.
46 See http://www.freedictionary.org (last visited Dec. 18, 2006).
47 See http://www.Breastcancer.org/dictionary (last visited Dec. 18, 2006).
48 See, Toure v. Avis Rent A Car Systems, 98 N.Y.2d 345 (N.Y. 2002).
49 Id.
50 776 N.Y.S.2d 56 (N.Y. App. Div. 2004).
51 Id
52 Id.
53 The New York Court of Appeals wrote the following: “Although medical testimony concerning observations of a [back muscle] spasm can constitute objective evidence in support of a serious injury, the spasm must be objectively ascertained. This requirement was not satisfied by the testimony of plaintiff’s expert that he detected a spasm, where he did not, for example, indicate what test, if any, he performed to induce the spasm.” Toure, 98 N.Y.2d at 357. The court continued: “[A]n expert’s conclusion based on a review of MRI films and reports can provide objective evidence of a serious injury. In this case, however, the witness merely mentioned an MRI report without testifying to the findings in the report. Moreover, the MRI report was not introduced into evidence, thus foreclosing cross-examination.” Id. at 358. The MRI evidence was insufficient. Id.
54 In litigating and deciding these issues, it is appropriate to keep in mind that this argument is nothing new. Take, for example, the nearly century-old admonition of the Supreme Court of Missouri. In the debate over objective vs. subjective medical evidence, the Court noted:
Objective symptoms are those which the surgeon discovers from a physical examination of his patient; subjective symptoms are those he learns from what his patient tells him. When a surgeon is called to serve a patient who has received an injury, the full extent of which he is unable to learn by his own sense of seeing, feeling, or hearing, he puts questions to the patient and learns from him what he can of the hidden injury; he asks him what pains he feels or what other sensations he experiences, and from those sources he forms his opinion on which he prescribes for his patient. A surgeon is not always bound to take as truth what his patient tells him, because sometimes the facts which his own physical examination has shown may in his mind prove that the patient’s statement is incorrect; sometimes he may shrewdly detect a willful suppression or misrepresentation, sometimes a delusion. But when he has no cause to suspect untruth or delusion he takes what his patient says and weighs the subjective symptoms with those he has discovered and on them he bases his diagnosis and proceeds to his prescription. . . . Objective symptoms are no more realities than subjective symptoms if both are true. Objective symptoms depend for their proof as much on the candor and capability of the witness testifying in regard to them as do subjective symptoms; a witness testifying to an objective symptom is as liable to be mistaken as one testifying to a subjective symptom and perhaps more so, because one searching in the body of another to discover if there is a broken bone so deeply imbedded in flesh and muscle as to put it beyond the sense of touch, may fail to hear the grinding of the broken bone although there might be a broken bone, but the man himself could scarcely be mistaken if he felt an acute pain in a certain part of his body.
Dean v. Wabash R. Co., 129 S.W. 953, 957-58 (Mo. 1910).