Medical News Today reported on a piece in Neurology (subscription required) in which researchers conducted memory studies on retired French workers who had been exposed to solvents during their working years. The specific solvents included benzene, chlorinated solvents, and petroleum solvents. The retirees had been out of work for an average of 10 years and the average age of study participants was 66. The results demonstrated that only 18% of the persons tested had no memory impairment. This statistic is more troubling in context: only 16% of the persons tested had no exposure to solvents. Another troubling aspect of the study is that it found that persons with high but distant solvent exposure (31-50 years prior to testing) still demonstrated measurable cognitive deficits.
While it would be too early to draw definitive conclusions from the report, it seems likely that the findings will prompt further investigation. If subsequent studies confirm the researchers’ conclusions, it certainly could prompt claims by those exposed to the offending solvents through their employment. This is significant because chlorinated solvents and petroleum solvents are found in such common items as cleaners, degreasers, and paint. Exposure to these products is regulated, but if new information becomes available that demonstrates the level of exposure that causes harm is lower than previously thought then employees in such occupations as commercial housekeeping and painting who suffer cognitive decline that would have been attributed to other factors may now connect the cognitive decline to solvent exposure on the job. Obviously the effect on worker’s compensation claims would be significant as would the likely third party claims against the manufacturers of the solvents.
In the last post, we discussed a paper Jeffrey Brewer wrote regarding strategies for overcoming cognitive biases and emotions. Brewer identified 10 specific strategies to overcome biases and emotion. His first strategy advocates consciously raising the questions:
But how does this help us? Don’t we already essentially do this when we analyze claims?
Not exactly. First, asking the questions immediately changes one’s state of mind from its natural, emotionally reactive state, to one in which reason is brought to the forefront. Consciously asking the questions forces us to slow down, search for, and contemplate the possible answers. Second, answering the questions quickly demonstrates whether something is an objectively verifiable fact, an inference, hearsay, opinion, or pure conjecture. Once the questions are answered and the information is categorized, the process will have naturally organized the claim in a rational way. Third, knowing what category the information falls into can provide a roadmap for developing the claim. Fourth, asking and answering the questions is likely to result in a more accurate assessment of liability, damages, exposure, and further investigation needed.
How can this strategy be applied to claims? The place to start is at the beginning of the process. When a claim comes in, we are given information asked to apply the information to a metric for assessing exposure. The formality of the metrics will vary, but the best companies and firms mechanize this process to the greatest extent possible to streamline the process and to make it as consistent as possible. This is of course why all case assessment reports, forms, and letters look roughly the same for each entity that generates them regardless of who actually wrote them. This predictability and uniformity is a virtue, not a vice. Nevertheless, individual claims professionals must judge where each piece of information goes and its significance.
The two most important parts of a case assessment report, form, or letter will generally be the statement of facts or narrative summary. It is from this that the conclusions regarding liability, damages, and exposure will be drawn. In preparing the statement of facts, it can be a useful exercise to distinguish between facts, opinion, hearsay, and assumptions to better understand the support for the claim or its defense. For example, take a claim where an employee X injures his hand on a piece of equipment. In conducting the investigation, the employer obtains a statement from employee Y who has observed X using the equipment for personal use in the past.
In this example, the only thing that is a fact is that Y observed X using the equipment for personal use in the past. If the statement is used to support the defense that the employee was not performing work for the benefit of the employer at the time of injury, then an inference is being made that X’s behavior at the time of injury was consistent with X’s past behavior. With no additional information or support, the inference is weak at best. In order to strengthen it, one could find out if X used the equipment for personal purposes at certain times of his shift or after certain jobs and whether the injury occurred at a similar time of day or after the same kind of job. In addition, the inference would be stronger if Y observed X using the equipment for personal use regularly or on many occasions, especially if the most recent uses were near in time to the accident. The bottom line is that the fact of the observation only affects the injury at issue if it can be inferred from the observation that the behavior leading to the injury likely conformed to the observed past behavior.
In another example, worker’s compensation investigations often discover a coworker who overheard the injured employee complaining about his job or the company or both. Specifically, assume employee X alleges he hurt his low back lifting a heavy object at work. The investigation discovers that employee Y heard employee X say that he was fed up with his manager and couldn’t take much more. What is fact? The only fact is that on one date X complained about his manager and said he couldn’t take much more. That is it. X’s statement does not mean that X feigned injury or exaggerated its severity. To move from X’s statement to that conclusion is an inference that requires additional information for it to be believable. The inference is that X reached some sort of breaking point and is using the work injury (or feigning injury altogether) as a means of avoiding his manager.
When judging the significance of the statement, several factors must be considered. Obviously if the injury is relatively near in time to the statement, it would appear more likely that they are related. Other factors could make the inference stronger as well, such as similar, repeated comments, a discernible change in performance, a discernible change in attendance, or any overt conflicts with his manager. On the other hand, if X was a generally good employee who was having a bad day and significant time elapsed between the remark and the injury with no further overt evidence of conflict with the manager, then the inference is weak. Likewise, in judging the likelihood that X is avoiding work based on the prior statement, one must consider the benefit to X of being absent (avoiding the manager, not having the responsibilities of the job) with the costs of being absent (wage loss, benefits loss, loss of social contact with coworkers, etc.). In this case, if X only made one statement and the injury involves an extended absence with significant financial consequences, the inference will be weaker.
In order to effectively determine the strengths and weaknesses of any claim, we must be able to ask and answer the right questions. Simply recording a narrative of events without asking whether each component is a fact, an inference, hearsay, or opinion will skew the analysis badly. For every piece of the narrative, we should ask how we know it, why do we believe it, and what evidence supports the belief. Once we take this step, we will understand the extent of our knowledge, whether our knowledge is based in fact, the inferences that can be drawn from our knowledge of the facts, how strong those inferences are, and what additional evidence or information should be obtained to strengthen inferences or eliminate ambiguity and uncertainty. When we know this, we can effectively assess liability, damages, and further claims investigation necessary.
Medical News Today reports on a recent finding from Johns Hopkins that most spine surgeons do not follow recommendations for presurgical screening for depression and anxiety. This is significant because depression and anxiety are known to increase recovery times and reduce the likelihood of a successful outcome. According to one researcher quoted in the Medical News Today article,
Interestingly, the study found that surgeons in private practice and at community hospitals were more likely to provide presurgical screening than were surgeons affiliated with university hospitals. In addition, surgeons with more than 15 years of practice and those performing 200+ spinal surgeries per year were more likely to provide screening.
Considering the enormous expense of spine surgery, it would seem wise for claims handlers to exert whatever influence or control available to ensure that claimants receive proper presurgical psychological screening before undergoing recommended spine surgery. This also seems to be an area in which the insurance industry (including group health carriers) could and should exert its influence to make presurgical psychological screening mandatory in spine surgery cases.
Many of us are in the business, directly or indirectly, of employee health and well-being. From a purely economic standpoint, employee health and well-being is a significant cost driver in any business. In the medico-legal world we are often at the intersection of disease status/health and employment. Historically, businesses have analyzed health and injury claims made to assess employee health, which was then used as a predictor of worker productivity.
Claims made is an easy but de facto method of measuring employee health. In addition, claims made do not capture other stressors that may impact productivity such as financial problems, family strife, etc. Claims made also fail to capture disease status/health that could result in claims made but are, for myriad reasons, not. For example, an employee with a chronic health condition may be on her spouses insurance and hence have claims that would otherwise be made but instead go unreported. Also, an employer with poor or no insurance is likely to have a claims history that does not accurately reflect the health status of its employees and how this impacts productivity.
Recent research suggests that employee well-being is a more accurate and dynamic metric for predicting employee productivity. In a compelling article, “Comparing the Contributions of Well-Being and Disease Status to Employee Productivity,” Gandy et al. found that “physical health is not sufficient to represent the vicissitudes of productivity in the modern workplace, but that the more global measure of individual well-being has a more important role in explaining productivity variance among workers.” The report specifically concluded that individual well-being status was “more predictive [of on-the-job productivity] compared to other factors, including disease status.” The study reported that well-being status was more predictive than disease status even among those with a positive disease status (diabetes, in this case). In other words, a worker with diabetes but with a positive well-being score was likely to be more productive than a healthy worker with a lower well-being score.
Gandy et al.’s findings dovetail with the general attitude shifts that have swept across the business world which has caused businesses to view employees as dynamic parts of and integral to corporate success. As Gandy et al. note, “In the new globally competitive marketplace, human capital has become the competitive advantage that employers can no longer afford to take for granted.” This paradigm shift has been borne out in the marketplace. For example, “A large international survey by the World Economic Forum found that organizations viewed as actively promoting health and well-being were at least 2.5 times more likely to be rated a best performer and to encourage creativity and 4 times less likely to lose talent.” One reason for the survey’s salience is “because well-being is many times a cause of other valued outcomes, such as worker productivity and rewarding relationships.”
This disconnect between health and well-being frequently plagues worker’s compensation claims. Surely we have all been dogged by the employee whose behavior seems considerably more impaired than the objective physical findings suggest. Frequently we look to issues like symptom magnification, malingering, or secondary gain to explain this perplexing behavior. Perhaps, we should instead be asking targeted questions to get at the person’s overall well-being. If the root cause of the disconnect between behavior and objective physical findings can be identified, at a minimum the behavior will be less perplexing and it may offer the opportunity to solve an otherwise vexing claim.
Medical News Today has an article about exciting research from the United Kingdom regarding management of back pain. The article notes that:
To accomplish the targeted care, general practitioners participating in the study gave patients a 9 part questionnaire to evaluate the severity of their back problems. Patients were then placed low risk, medium risk, and high risk categories, with treatment individualized based on the level of risk. Importantly, the low risk patients were not given intensive treatment but were simply reassured about their back pain and given strategies for managing it. Medium and high risk patients received "more intensive treatments led by [physical therapists]."
Prior research found that targeted treatment of back pain was effective, but this is the first evidence that targeted care is effective at the family practice level of care. Medical News Today quotes Professor Alan Silman, medical director of Arthritis Research UK:
Critically, the research found that the targeted approach to back pain does not increase costs. Whether the results can be duplicated remains to be seen, but the study offers a promising method for early, cost-effective intervention in persons suffering from back pain. The fact that the protocol resulted in a 50% reduction in workplace absence is remarkable and reason enough to attempt to replicate the findings so they can be implemented as standard care in general medical practices. Professor Silman put it to Medical News Today best:
One of the hardest things for anyone to understand is that two things occurring near in time and sequentially does not imply a causal relationship between them. This is a particularly difficult problem in the IME because often no evidence of a preexisting condition or an intervening cause can be found. Assuming that the condition is legitimate and there is no intervening, traumatic cause, convincing the trier of fact that the condition is unrelated to the accident is challenging. No solution to this problem is perfect; however, a combination of linguistic framing and stealth education through analogy offers a possible opportunity to change the trier of fact’s perception of how causation works.
“Cause,” when used as a transitive verb, means, “to make (something) happen or exist.” The legal definition of “cause” is similar, “something that precedes and brings about an effect or a result.” The medical definition of “cause” cannot be reduced to a simple statement because medicine has classes of cause, which includes direct causes, indirect causes, endogenous causes, exogenous causes, necessary causes, etc. In fact, as the understanding of disease has advanced, the notion that there is a direct cause-and-effect relationship between an event and a disease state has often been abandoned in favor of looser notions of causation such as “disease determinants” or “causal association.”
So how do we convince a trier of fact who is conditioned to view causation in simple, linear terms to understand and embrace a more nuanced view? First, it is useful to address the causation fallacy with the trier of fact. The fallacy ascribes cause to events simply because they occur sequentially in time. A good example is the recent series of television commercials that aired during football games that posited, “It’s only weird if it doesn’t work.” The commercials had persons doing variously goofy things because they experienced a good outcome once when doing the same thing. Hence, a guy consigns himself to the basement during a football game because once when he was getting beer downstairs the team scored. Obviously, walking downstairs to get a beer has no impact on an NFL game. This is the causation fallacy in action: despite occurring sequentially in time, getting a beer from the basement does not cause a football team to score.
A good example that can be raised before a trier of fact is arthroscopic treatment of knee arthritis. For many years orthopedic surgeons performed arthroscopic surgery to treat osteoarthritis of the knee. The surgery involved smoothing the fibrillated (ragged) cartilage lining the surface of the knee joint. The reason surgeons performed the operation is that when a joint surface is free of arthritis, it is smooth. When osteoarthritic change occurs, the joint surface becomes fibrillated or frayed. The assumption was that if a non-arthritic knee is smooth and an arthritic knee is fibrillated, the arthritic knee will become better (and less painful) if it is made smooth. The error in causation was ascribing pain to the fibrillation.
A number of studies eventually demonstrated that arthroscopic smoothing of knee cartilage is no better than conservative management for treating symptomatic osteoarthritis of the knee. It turned out that while pain and fibrillation are both symptoms of osteoarthritis, fibrillation does not cause arthritic pain. In fact, we have learned that many persons have degenerative changes present in their knee, such as meniscal tears and fibrillated cartilage, without having any symptoms of osteoarthritis. The same is often true of degenerative conditions that appear to arise in the context of a traumatic incident. Simply because a traumatic incident occurred and a degenerative condition manifested itself some time afterwards does not mean that the incident caused that condition to manifest any more than fibrillated cartilage causes arthritic knee pain. This offers a powerful example of the errors that can arise out of conventional, linear thinking on causation for the trier of fact.
Second, embrace the impossible, or at least accept the fact that even if you can’t conceive of it doesn’t mean it didn’t happen. I used to lament the lack of a preexisting condition or an intervening cause with my worker’s compensation defense clients. In a nutshell, our complaint went like this: The claimant has no symptoms, the accident occurs, and then there are symptoms so of course the ALJ is going to find the condition is work-related. Unfortunately I subscribed to the causation fallacy and, to the extent that triers of fact make this (il)logical leap, triers of fact are wrong. The problem, though, is that the causation fallacy’s logic is intuitive and difficult to overcome. To prevail in such a situation, you must convince the judge that the intuitive is not necessarily correct. Like the artist or the director, you must convince the trier of fact to willingly suspend their disbelief, not because you are asking them to accept a falsehood but rather because you are asking them to accept a truth that runs counter to their intuition.
Is this possible? Can you convince someone to accept something that seems to them intuitively to be wrong? Yes it is possible to convince someone to accept what seems intuitively to be wrong to them. A fertile place to start is with optical illusions. We know that moon is the same size and distance from the earth when it is low to the horizon as it is when it is high in the sky. Nevertheless, the moon appears smaller to us as it rises higher in the sky. We are willing to accept that our senses deceive us in this instance.
Other famous optical illusions include the arrow/inverse arrow (Muller-Lyer illusion), the growing person/shrinking room (Ames room illusion), the shifting color/brightness phenomenon (Chubb illusion), etc. The list goes on. The point being that our intuition can and does deceive us. What we think of as a normal relation between cause and effect can instead be the product of an illusion, of our mind searching for and imposing the order in which it perceives the world to unfold onto the world, even where no causal relationship exists, where the actual order of things is not what we think.
This is essentially the nature of the relationship between degenerative conditions, symptoms, and accidents. We want to believe that something (other than simply getting older) causes conditions to become symptomatic. We want the world to be rational, for B to flow from A, for injury to be the product of accident rather than genetics and time.
This being the case, what do we do about it? Remind the trier of fact of the Ames room; that she sees the room and she sees the identical twins. She knows the twins are identical, but it looks like they are not. She knows the room is not a cube, but her brain tells her it is. She accepts that the message her brain is getting from her perception is wrong. We can learn to overcome our biases and perceptual assumptions. The trier of fact can too, but only if the evidence is framed properly to offer a clear, concise, and cogent explanation of why what is real does not seem real and what seems real is not. The IME can help lay the foundation for this argument. Ask the doctor to explain how, despite appearances to the contrary, the injury and accident are not related despite occurring sequentially in time. A persuasive and coherent explanation from a medical expert with thousands of hours of experience can at least begin to get the trier of fact to think differently about medical causation, which is the first step to bringing her to accept your point of view.
An Australian study published in JAMA Psychiatry (subscription required) found that "compensation claimants who have stressful claims recover more slowly than those who have less stressful experiences." This probably comes as no surprise to those involved in worker's compensation and liability claims. Interestingly though, the lead author's take was unexpected. “Reducing the stress claimants experience in claims processes has the potential to help to improve their recovery, and result in better outcomes,” said Dr. Genevieve Grant. The question for those involved in worker's compensation and personal injury claims is how to balance the benefits of streamlining claims (and hence reducing stress and costs) with the obligation to accept only legitimate claims. While there is no easy answer to this problem, the results of the Australian study, if replicated, will at least add objective evidence to the calculation. And objective decision-making is always better than the alternative.
Whiplash-caused neck injuries are some of the most highly contested personal injury claims. Properly understood, 'whiplash' is used to describe the mechanism of injury to the occipital region of the head and the cervical region of the spine that occurs to a seated occupant of a motor vehicle that is struck from behind by another motor vehicle. Whiplash does not occur in front-end collisions and does not describe low back or other injuries that also may occur in rear end collisions. Whiplash-caused neck injuries are highly contested because the resulting injuries often do not show up on standard diagnostic imaging tests. In addition, whiplash injuries often occur in low speed collisions where the involved vehicles are undamaged or minimally damaged. For this reason, claims professionals and defense attorneys view these claims with almost universal skepticism. On the plaintiffs' side, the lack of objective imaging studies and the [often] low speeds involved can make convincing juries to award even nominal damages difficult.Unfortunately, science has not reached common consensus regarding how whiplash causes injury or what precise forces are necessary to cause whiplash neck injuries in low speed collisions. However, researchers have come to a consensus on how the body reacts in rear-end collision which is important to understand when prosecuting or defending whiplash claims.When a rear end collision occurs, the head, neck, lower torso/pelvis, and upper torso actually act independently of one another. When the collision first occurs, the lower torso and pelvis are pushed forward relative to the upper torso, neck, and head. This motion causes "an initial flexion of the neck, even though the head is still effectively stationary…" Then the upper torso accelerates forward before the head begins moving. This is called "retraction" and "causes the lower vertebrae of the cervical spine to extend." At this point, the cervical spine and its musculature is not sufficiently strong to overcome the forces of the lower and upper torso movement so the upper cervical spine segments flex. The flexion and extension of the cervical spine allows it "to support the horizontal forces, and these forces both accelerate the base of the skull forward and set up a rearward rotation (extension) of the head." Interestingly, when the lower torso moves forward, the "upward thrust of the trunk compresses the cervical spine." Also noteworthy is that peak strains on the neck occur before the human body is able to activate the neck muscles in response.The manner in which the human body moves during a rear-end traffic accident is significant for a number of reasons. First, the forces generated on the cervical spine and occipital regions happen before the human body reacts to them. This means that a person who is in a rear-end collision cannot accurately describe what happened to their body during the collision. To occupants, it will feel like their head snapped forward and then back when in effect, the head remained stationary relative to the forward translation of the body. The difference in acceleration between upper and lower torso causes the upper and lower cervical spine to react by flexing and extending before the person is aware that anything is happening. In addition to horizontal shearing (forward motion of the torso vis-à-vis the stationary head), the upward motion of the torso also compresses the anterior portion of the cervical vertebrae (against which "the facet joints offer little or no protection") before the human body is capable of being aware of the motion. No claimant will be able to describe the mechanics accurately because sense data are generated and processed in the brain slower than the body's actual physical response. What a person in a rear-end collision feels is markedly different than what actually happens to the body.Second, the motion of the head and neck during a rear-end collision will more than likely be within the normal range of tolerance for the human neck if the occupant is belted with a normal and operable shoulder/lap belt combination. Hence, evidence of tissue disruption is unlikely to appear on diagnostic imaging studies. For claim handlers and attorneys (on both sides), the lack of objective imaging evidence creates enormous difficulties. Although the lack of objective evidence seems to favor the defense, the commonplace nature of whiplash injuries (and the fact that large portions of the medical and scientific communities accept that whiplash is a mechanism that can legitimately cause injury) would seem to favor the plaintiff. The bottom line is that these cases end up in a medico-legal morass because of the seemingly contradictory nature of the evidence which does not necessarily favor one side or the other.A key to managing whiplash claims successfully is understanding the biomechanics involved. For example, there is general consensus that gender matters in whiplash accidents: female gender increases the likelihood of injury. In addition, height is predictive of injury. Taller persons are likelier to be injured than shorter persons of the same gender because taller persons are less likely to have the headrest set at the proper height. Many other factors such as body positioning and pre-impact awareness influence the likelihood of neck injury in whiplash accidents. It behooves the parties to understand how the facts of the claim fit into the biomechanics.Stay tuned as we will address strategies for using biomechanics to your advantage in whiplash claims in our next whiplash post. [Attention: shameless plug warning!] Also, two internationally renowned experts in the biomechanical analysis of whiplash, Raj Rao, M.D., Ph.D and Brian Stemper, Ph.D. (who happen to be located at the Medical College of Wisconsin right in our backyard) will be speaking at the upcoming Medical Systemspersonal injury conference. Anyone interested in a detailed analysis of factors that influence injury in automotive rear impacts and the medical aspects of whiplash syndrome should consider attending.
Researchers at the University Of Texas Health Sciences Center at Houston, Rice University, and Shriners Hospital for Children-Houston recently published findings in the Journal of Bone and Joint Surgery (subscription required) regarding use of antibiotic-containing microspheres that could lead to their use in joint replacement surgeries. Researchers found that antibiotic-containing microspheres could significantly reduce the rate of infection in joint replacement surgery:
Porous metal implants that were coated with the microspheres prevented infection in 100 percent of the 11 specimens. In the tissue and bone surrounding implants that were not coated with the antibiotic delivery system, infection occurred at a rate of 64 percent. (Emphasis added).
According to a press release announcing the findings, the infection rate in joint replacement surgery is between 1% and 3%. While this is a low figure, one million persons per year undergo hip and knee replacements alone. This means that between 10,000 and 30,000 patients develop an infection after joint replacement surgery. As anyone who has been involved with a claim in which a joint replacement became infected knows, the costs of infection can be staggering. Often the original prosthesis will have to be removed to treat the infection. Sometimes patients end up effectively undergoing three joint replacements because an antibiotic-impregnated temporary prosthesis is used to treat the infection, which will then be taken out when the infection is cleared and replaced with a second permanent prosthesis. The lead researcher, Catherine Ambrose, Ph.D., noted:
[m]ade of biodegradable polymers, the antibiotics are gradually released over a period of weeks and eventually the microspheres dissolve, allowing sufficient time to prevent or treat an infection while reducing the likelihood of additional surgeries.
Better preventing and controlling infections in joint replacement surgeries would greatly decrease both costs and human suffering.The use of microspheres is exciting for reasons other than simply reducing the rate of infection. When persons develop an infection after a joint replacement, they are typically given systemic antibiotics. Microspheres offer a significant advantage when it comes to side effects because they are administered directly at the surgical site. According Ambrose, "[t]he microspheres could be administered directly at the surgical site, eliminating the need for systemic antibiotics that impact the entire body." Systemic antibiotics are hard on the body. They often cause gastrointestinal problems (and in extreme cases can lead to the development of infection with clostridium difficile, or c diff). Systemic antibiotics can also cause fever, rash, and potentially more extreme, though rare, side effects.It will be interesting to follow the use of antibiotic-containing microspheres in joint replacement surgery. If they prove as effective in practice as they have in the preliminary, preclinical trial, they will eliminate much suffering while reducing costs and improving outcomes in joint replacement surgeries.
We have all heard IME's referred to pejoratively as "insurance medical exams" or "defense medical exams." Given that many triers of fact are cynical about the independence of IME's, how can you defend against a charge of bias in an IME? First, you can choose an IME company that is independent – that is not beholden to shareholders or larger corporate interests. Second, you can choose a doctor that is independent - that has no contractual relationship or exclusivity agreement with the IME vendor. Third, you can choose an IME vendor that will work with you to find the doctor that is right for your claim or case.Why should you care about who owns the IME vendor you use? Quite simply because you value independence. While everyone who schedules an IME, whether plaintiff or defense, employer or employee, hopes the report will come back favorable to their position, the most important thing about an IME is that it is credible with the trier of fact. When an IME vendor is beholden to shareholders or larger corporate interests, the vendor's first responsibility is to their shareholders or corporate owners. While every IME vendor is attempting to be profitable, you want a vendor whose only responsibility is to the client: to deliver credible, independent reports in a timely fashion. Then the vendor is not beholden to any third party.Why should you care about the doctors' affiliations with an IME vendor? Once again, because you value independence. You want an IME vendor that is beholden only to being objective, the only true form of independence. Physicians that have contractual or exclusive relationships with IME vendors may compromise their independence because they take on an obligation to fulfilling the terms of an agreement with the vendor; they may become beholden to something other than absolute objectivity. This, at a minimum, compromises the appearance of impartiality. A physician that has no formal relationship with an IME vendor has the primary (and sole) obligation to prepare an objective report. Hence, no formal relationship between the IME vendor and the medical expert can taint the appearance or fact of the expert's independence.You also want an IME vendor that will work with you to find the medical expert that is right for your case. Perhaps it is important that your IME doctor be in active practice or that the doctor testifies for both plaintiff and defense. You want your IME vendor to meet your requirements. You want your vendor to have a well-developed network of physicians and contacts that can be mined for the right expert. You want an IME vendor that understands your needs and can recommend the doctor that is the best fit for you. You can't take a "one size fits all" approach when managing your files. Your IME vendor shouldn't take a "one size fits all" approach in finding an expert for you. An IME vendor with a network of truly independent physicians guarantees that your IME vendor will put your interests first.At Medical Systems we are beholden to no corporate overseers. We refuse to establish exclusivity or other contractual relationships with the physicians on our panel (in fact we require that our doctors are not exclusive to us or anyone else). We have the network and the staff to be responsive to your needs so that you get a medical expert that is unbiased and right for your case. In short, Medical Systems is independent so your expert will be too.
Although this report has been all over the news for the last few days, it bears repeating. In Finland a group of 146 candidates for partial arthroscopic meniscectomy agreed to participate in a trial in which half would receive a meniscectomy and half would receive sham surgery, in which arthroscopic portals would be incised but no procedure performed. The candidates all had degenerative meniscus tears and no evidence of osteoarthritis. The study, which was published in the New England Journal of Medicine, found that,
In this trial involving patients without knee osteoarthritis but with symptoms of a degenerative medial meniscus tear, the outcomes after arthroscopic partial meniscectomy were no better than those after a sham surgical procedure.
Although the study did not determine who might actually benefit from meniscectomy, it "included patients with mechanical symptoms such as catching or locking of the knee," according to a physician that NPR interviewed regarding the results. As The Wall Street Journal noted, the study estimated that the annual cost of arthroscopic meniscectomy in the U.S. is $4 Billion.While the study size is small, "[t]he implications are fairly profound," according to Jeffrey Katz, a professor of medicine at Brigham and Women's Hospital in Boston who wasn't involved in the Finnish study. It will be interesting to see how the study affects worker's compensation claims as work-related knee injuries in which a meniscus tear is alleged are relatively common. One of the authors of the study was not optimistic that it would change clinical practice, noting that a prior study which found physical therapy was as effective as surgery for patients with osteoarthritis and a meniscus tear did not. Regardless, I expect that the best medical experts will raise this issue when addressing the reasonableness of treatment in the context of meniscus tears, which should give additional weight to their opinions.
The short answer is that yes, job videos are worth obtaining. However, the circumstances in which job videos are useful are limited. Typically, job videos work well in two circumstances. First, job videos are often critical in cases where an occupational injury is alleged due to an occupational exposure over time (i.e., repetitive motions). In those cases, the independent medical expert will be asked to form an opinion on medical causation based on the job activities that the injured person performed; hence, a job video is often critical. Second, job videos are useful when there is a question as to whether an injured person can return to her former employment. In that case, the independent medical expert will be asked to form an opinion on the injured person's capacity to safely perform her job. In either case, a job video can be a crucial tool to ensure that the independent medical expert's opinion is credible.Although job videos can be critical in the right circumstances, a job video has to be accurate to carry any weight. The biggest problem with job videos is that they are often perceived to represent a cursory sample of what an injured person does rather than a thorough depiction of the injured person's actual job. From the defense perspective, this causes problem at deposition or hearing when the injured person testifies that the job video does not accurately represent their job duties. If the injured person testifies credibly about the frequency and duration of job duties not shown in the video, it will impugn the independent medical expert's opinion because the opinion will have been based on inaccurate information.In order to remedy potential shortfalls, job videos should do a number of things. First, if the employer has a written job description, the job video should accurately portray the duties described, including accurately depicting the physical demands for each duty described. It is difficult to convince a judge to adopt the opinion of an independent medical expert when the opinion is based on a job video showing a worker lifting 5-pound boxes when the injured person testifies that the majority of the boxes she lifted were 50-pounds. Second, job videos that depict the injured person performing her job duties tend to be more effective than those depicting another worker. These videos are especially effective if the videographer asks the injured person if there are any activities they do in their job that they have not demonstrated. If the injured person answers "no," she will have a tough time trying to say that the video was not accurate later. Third, if the injured person cannot be depicted in the video (which is more common than not), the video should depict a co-employee that has an identical job or as close to as identical job as possible. The co-employee should also be of a similar size and build if possible. If a similarly sized co-employee with an essentially identical job is depicted, he or she is more likely to portray the job duties accurately. Again, the videographer should ask the employee if there are any activities they do in their job that they have not demonstrated. It should go without saying, but the employer should identify co-workers for the video that are indifferent to the injured person. Otherwise it is too easy for bias to seep into the video and destroy its credibility.Some job videos will depict a manager or supervisor performing the job duties. This is not ideal because the trier of fact will almost invariably assume that the manager or supervisor is biased against the injured person. In addition, such videos often have an artificial feel to them, especially when the manager or supervisor is not a working manager. In these cases the person depicted in the video often does not look like the injured person and her co-workers and does not perform the job duties fluently. A trier of fact who views such a video is likely to consider it suspect if not outright spurious simply because of its appearance (even if the job duties are faithfully depicted and the manager or supervisor acts entirely without bias). There are circumstances in which the only way to have the job video completed is to use a manager or supervisor to perform the injured person's job. In these circumstances, the job video will be most effective if the person performing the job duties maintains a neutral appearance, not exaggerating the ease with which a particular duty is performed. Human beings are incredibly good at reading body language and facial expressions. Triers of fact will know if the person performing the job duties on the video is genuine or not and will judge the video's credibility accordingly.When obtaining an independent medical examination, a job video can be a critical tool in establishing the credibility of the medical expert. However, job videos are only effective if they are credible. Taking a few simple steps such as ensuring that the video captures the same duties identified on the written job description and getting the employee depicted to state on the video that it accurately represents the job duties will help bolster the credibility of the video. And a credible job video will likely mean a credible independent medical evaluation report.
Christopher Tidball has a quality article on choosing medical bill review vendors at propertycasualty360.com. While not directly related to the IME world, Tidball makes a number of good points. Salient to all aspects of the claims process, he notes that cost should be judged as a net performance metric rather than a simple quote in a bidding process. In his words, "[t]he most important aspect of pricing is not what the vendor is quoting, but what the carrier will actually pay." The discrepancy between these two "prices" can be quite large. In choosing an IME vendor, the same is true. "Price" should be judged by the net cost to the bottom line, including the level of service received, and not just by the upfront quote.
A medical expert's role in legal claims is vital. Medical experts are gatekeepers of the worker's compensation, tort, and disability systems because without medical causation, there are no claims. The role of independent medical examiners in this process is critical. Independent medical examiners are often the only experts who have the full picture: all current medical records, all past medical records, accident reports, the claimant's history, and relevant witness statements.In our adversarial system, the value of independent experts cannot be overstated. The parties are not responsible for discerning "the truth," whatever that may be. They are only responsible for prosecuting or defending the claim. Trial judges, administrative law judges, and juries are responsible for deciding which party's position is more credible. As independent medical evaluators are the only experts with the complete picture of the case, they are uniquely capable of providing an opinion based on an objective assessment of facts and science. It is critical to the sound functioning of the system that independent medical examiners' opinions are given adequate weight.What are the barriers to independent medical examinations being given adequate weight? The most obvious and frequently encountered barrier involves simple errors such as typographical mistakes or obvious misstatements (i.e., stating "left" when "right" was clearly intended). While claims and legal professionals understand that a typographical error or an obvious misstatement should not affect the credibility of the report, the unfortunate truth is that they do. In our society doctors are rightly held in high esteem. This means that they are also held to unrealistic standards of perfection. When reading an independent medical examination report, judges and juries expect the report to be technically perfect. If a report does not meet this standard, it can cause the trier of fact to devalue the doctor's opinion, even if the technical error has no effect on the opinion's substance.To avoid having an independent medical examiner's opinion lose credibility points for technical errors, several steps can be taken. First and foremost, providing clear information and instructions to the examiner is critical. Second, choosing an independent medical examination vendor that will carefully edit reports to eliminate technical errors of grammar and reference is important. Third, reading through the report carefully on receipt is necessary. Independent medical examination vendors will have the information on the claim that is given to them, but they will never have the depth of understanding of the claim and the relevant medical records that claims professionals and attorneys have. Carefully reviewing the independent medical examination report and communicating with the vendor to address any obvious technical errors shortly after receiving the report will help ensure that the report is technically sound and so is viewed entirely on its substance. As gatekeepers to the compensability of claims, it is critical that independent medical examiners' reports are judged on substance and not style.
Researchers recently discovered that persons suffering from lumbago (low back pain) alter their movements because they fear possible back pain. Researchers believe that this behavior can contribute to acute low back pain becoming chronic. Essentially, "[t]hey are trapped within a vicious circle: fearing the suffering linked to movement, they lose their mobility, and the pain persists." Most interesting was the fact that patients in the study felt less pain when researchers told them they were going to feel less pain even when the pain stimulus being applied was higher. As the author of the article points out, "it seems that the first pain-reliever to be administered to a patient suffering from acute lumbago should be a generous dose of reassuring words, in order to prevent the illness from becoming chronic."This is potentially an important development for the medico-legal world because the costs of surgical intervention on worker's compensation and personal injury claims are staggering and any method for helping patients manage acute low back pain to prevent it from becoming chronic would represent a huge cost savings.
