Disease and Causation

Occupational disease is recognized as a foundation for entitlement to workers' compensation benefits, similarly to injury by accident. That has not always been the case in every jurisdiction, but as workers' compensation has evolved over the decades, the disease foundation has been established and refined.
It is very challenging to prosecute a claim for occupational disease in some settings. The topic is not new to these pages, see Occupational Disease and the Zagroda Act (December 2015), West Nile Disease in Comp (August 2020), Occupational Disease and the 1918 Flu (July 2020), and an overview of the Florida evidentiary challenges in Florida Occupational Disease Burden (December 2019).
These instances returned to memory with recent news of the "Havana Syndrome" and discussion of causation regarding a variety of symptoms described by members of the United States foreign service corps, according to the British Broadcasting Corporation (BBC) in a January 20, 2022 article: Havana Syndrome: Most Cases not Caused by Foreign Power - CIA. The complaints began in 2016 among those posted to Havana, Cuba. 
The name associates the malady with a geographic location, perhaps to that city's detriment. It is notable that similar geographic locators contributed to naming the 1918 "Spanish Flu," and many other outbreaks, but was deemed inappropriate for identifying our current pandemic. There has been discourse over whether such geographic labels are racist, see USA Today for one discussion of the debate, or google the topic to find an assortment of perspectives on geographic references to disease and illness.
The "Havana syndrome," according to the January BBC article  has been characterized by complaints of "dizziness, headaches and an intense and painful sound in their ears." And, after appearing in Havana, there have been reports of such symptoms in "Geneva, Berlin, and elsewhere." There were suspicions that the diplomats were victims of some form of attack by "Russia, China or another adversary." The final outcome regarding responsibility may never be public as they were investigated by the Central Intelligence Agency.
The The January BBC article states that the CIA has recently concluded that "a majority of 1,000 cases looked at . . . can be explained by stress or natural causes. However, "the CIA is still looking into a small number (about two dozen) of unexplained cases, where the role of a foreign power has not been ruled out." Despite this ongoing effort, officials have denied finding "evidence of a worldwide campaign by a foreign state." The conclusions regarding "stress or natural causes" is reportedly not very popular with some. That may be partially due to the potential for treatment and compensation through workers' compensation and similar programs that could result from a finding of foreign assault.
The January BBC article explains that the volume of cases has "ballooned in recent years," following a relatively minor volume of initial complaints from a government attitude change in which officials who had been skeptical "started to encourage people to come forward if they thought they might be suffering." When encouraged to come forward, people came forward. And, it is predicted that the CIA conclusions will not end the process; the BBC predicts "many victims will continue to make their case."
They will have assistance. There is an "Advocacy for Victims of Havana Syndrome," which pledges to strive on for explanation. It derides the recent CIA report as "neither definitive, nor comprehensive." This despite the CIA assurance that it is "pursuing this complex issue with analytic rigor, sound tradecraft, and compassion." That phrase somewhat urges the question, "show me the science," see Show me the Science (September 2021).
Decisions as to the diagnosis of disease, causation, treatment, amelioration, and residual capacity would seemingly be left to science; at a minimum, might one expect science to play a role? Possibly some degree of science is implied in the assurances of "analytic rigor?" Perhaps less so in "sound tradecraft?" Or, perhaps not. The efforts and preliminary conclusions of the CIA are perhaps illustrative of challenges any worker might face in proving an occupational disease? Most injured workers do not have an advocacy group, are not trained in "sound tradecraft," and are required to prove their allegations of causation with objective medical evidence. The foreign service corps members are perhaps at some advantage compared to other employees suffering symptoms. 
Coincidentally, fellow Blogger Jon Gelman of New Jersey recently addressed occupational disease in the realm of workers' compensation. In Another Hurdle to Prove an Occupational Disease Claim, he discusses the challenges of admitting evidence to prove a worker's compensation claim. He notes the constraints of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and laments such evidentiary constraints in workers' compensation. He notes that in contrast, New Jersey "risk need only be a contributing cause of the event," which is a far cry from the Florida disease standards discussed in Occupational Disease Standard (December 2019). Mr. Gelman is a serious student of the law, and he laments any change that would further heighten the injured worker's burden of proof.
Mr. Gelman notes that the Federal Courts are poised to make scientific proof more challenging than Daubert has been perceived as doing. See Daubert's New Day (May 2019) and Daubert Better Explained (May 2016). Mr. Gelman notes that proposed changes to Federal Rule of Evidence 702 may increase the burden for admitting scientific evidence under those rules. The proposal would require that a party seeking to introduce scientific expert testimony to "prove by a preponderance of the evidence that expert testimony is admissible." This sounds like a trial within a trial, and a more complex process that Florida currently engages. That is intriguing when one considers how much more challenging the Florida foundation is than what New Jersey currently abides. There is illustration here of the distinctions between jurisdictions. 
As the January BBC story aged, and this subject of scientific evidence persisted, yet another BBC article broke on February 2, 2022: Havana Syndrome may be Caused by Directed Energy. This is not (apparently) from the CIA sources cited in January. This story instead references a "new US intelligence community report." This purports to come from a "panel of experts" that has concluded the symptoms doubted and discounted for so long are "genuine and compelling." The "panel" contends that they "could . . . have been caused by" some device. 
The "panel of experts" report concludes that "psychological or social factors could not alone explain the symptoms," nor could "environmental or medical conditions." They have therefore "pointed towards an 'external stimuli" or source."  One "plausible" explanation is "pulsed electromagnetic energy," which might be deployed "to cause harm or carry out some kind of surveillance." The February article quotes "two of the most senior officials in the US intelligence community" who "vowed to continue the pursuit for the truth." 
The implications are interesting. It is difficult to demonstrate compensability of occupational disease. The frequency or constellation of symptoms or complaints alone is unlikely to win the day. Investigations into causation should take a scientific and medical approach, though there seems some inclination toward tradecraft from some perspectives. Admitting the scientific evidence has been becoming increasingly difficult and that trend may in fact continue in days to come, according to Mr. Gelman. 
The distinction of employees pursuing workers' compensation, and carrying a difficult burden of proof, is an interesting contrast to the engagement of a nations foreign service corps, "most senior officials," the CIA, and employer-sponsored investigatory "panel(s)." The distinctions in employer reaction, research, and responsibility are also noteworthy. Overall, the Havana Syndrome occurrences, employer reaction, and determinations offer a contrast to the posture in which an injured worker with such symptoms might find her/himself. It will be interesting to see what future revelations may come. 
By Judge David Langham
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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