Perhaps the most vexing problem with IMEs is the conflation of correlation with causation.  Nowhere is this more frustrating than in the case of symptomatic aggravation of (usually) degenerative arthritis of the shoulder, knee, and back.  The classic scenario is something like this:  employee is at work, suffers some sort of traumatic injury.  Employee goes to the doctor and is diagnosed with a strain.  Employee continues going to the doctor and says my shoulder/knee/back still hurts and it never hurt before the accident.  Doctor then concludes that the accident caused a symptomatic aggravation of a preexisting degenerative condition.  In Wisconsin parlance, the injury precipitated, aggravated, and accelerated a definitely preexisting, degenerative condition beyond its normal progression.  Illinois, being less inclined to the prolix than its northern neighbor, simply would say the injury aggravated a preexisting condition.  Either way, such claims are challenging because the ALJ or the Arbitrator sees an employee without symptomatic complaints before a work injury and symptomatic complaints after a work injury, causing her to conclude that the work injury aggravated the preexisting condition which is causing the ongoing symptoms.  Frankly, it is normal for anyone faced with such facts to conclude that the correlation of reported symptom onset with a work injury means that the work injury caused the symptom onset.  This is simply the way our minds process and make sense of the world:  evolutionarily, it would have been better not to eat the fruit that you got sick shortly after eating than to question whether the fruit was in fact the cause of the illness.

The trick, of course, is how to combat this natural tendency to conflate correlation and causation.  Often the only chance to do so is through the independent medical examination.  Many physicians, when they look at a case objectively from the perspective of an independent third party, will conclude that a minor work injury causing only a strain to a joint and its surrounding structures cannot cause the symptomatic aggravation of preexisting arthritis.  Regardless, the crucial factor is how the doctor explains the reason or reasons for his opinion.  And independent expert who simply states that a minor injury was of an insufficient magnitude to cause permanent, symptomatic aggravation of preexisting arthritis is not likely to carry the day.  It may be perfectly clear to the expert as to why the minor injury could not have caused the ongoing symptoms, but it will not be similarly clear to the ALJ or the Arbitrator without a more detailed explanation.     

To convince the ALJ or the Arbitrator, the expert must provide a sufficient explanation of why the injury could not have caused the ongoing symptoms.  This is where claims and legal professionals can make a substantial difference.  All persons have experiences that render them especially competent in various aspects of their lives.  For some it may be simply in the personal, i.e. facility with one’s social network and the vast amount of information necessary to negotiate it fluidly and with limited effort.  For others, like independent medical experts, it may be highly targeted and professional, i.e. the neurosurgeon with expertise in syringomyelia.  In either case, when a person speaks about a topic on which he possesses a wealth of knowledge that is both current and relevant, he often forgets to detail the assumptions or facts on which his opinion is based when speaking with strangers, the uninitiated, or laypersons.  For example, a person may say to another that Sarah would never be interested in Brendan.  To the friend, it may be perfectly understandable why:  both parties know Sarah is conservative and values financial stability in a partner while Brendan is an underemployed artist for whom there can never be too much body art and modification.  The stranger who does not know Sarah and Brendan would wonder why.  The only thing that could possibly support the opinion is the trustworthiness of the speaker.  The stranger would not know why Sarah would never be interested in Brendan unless the speaker explained the facts on which his opinion is based.

The mechanics of IME credibility work similarly.  Medical experts are used to speaking about patients with other medical experts.  These experts share a common education and professional background acquired over thousands and thousands of hours of training and practice.  Hence, when an orthopedic surgeon sees a patient with a minor knee strain and concludes the injury was of an insufficient magnitude to cause permanent, symptomatic aggravation of arthritis, other orthopedic surgeons will immediately understand why based on their training, experience, and review of the medical records.  No further information is required to make the opinion more intelligible or more credible.

The problem is that ALJs and Arbitrators are not trained orthopedic surgeons.  They may have read hundreds of IME reports and countless medical records, but they are not physicians, do not have the same level of knowledge, and have not actually treated actual patients with arthritis.  Hence, ALJs and Arbitrators lack the requisite level of knowledge to automatically fill in the blanks that the statement leaves open.  Like the Sarah and Brendan case, the speaker (our medical expert), must explain why the opinion is accurate.

And this is where the claims and legal professionals come in:  one of the best ways to ensure that the expert provides at least some explanation for her opinion is simply to ask for an explanation of why in the cover letter.  We frequently encounter the following question or a near variation:

If the work incident did not directly cause the condition, did the work injury precipitate, aggravate, and accelerate a definitely preexisting, degenerative condition beyond normal progression?

We rarely, however, encounter any follow-up such as:

If you conclude the work incident did not directly cause the condition or aggravate a preexisting condition beyond normal progression, please explain why the current condition is unrelated to the work incident.

At a minimum, this follow-up typically results in the physician offering something more than a conclusory statement.  And if specific information is sought, one could probe further and ask, for example, whether any peer-reviewed, Level I studies support the expert’s conclusion.  Regardless, even asking the basic “why” question is likely to result in a more detailed, credible explanation of the expert’s opinion than not asking the question.

So what is the answer to how to convince an ALJ or an Arbitrator that a strain followed by symptomatic arthritis reflects correlation but not causation?  The best reports we have seen address the issue head-on and contain some, if not all, of the following explanations.  First, arthritic pain complaints often do not prompt independent medical visits until the condition becomes relatively severe.  In the case of a work injury, the patient is in a treatment setting and is asked as a part of each visit, “How does your knee/shoulder/ back feel?”  Once the strain has healed, a person with underlying symptomatic arthritis will report ongoing pain.  This doesn’t mean that the same pain or discomfort was not present before the work injury, but now patient and treating physician alike associate the ongoing symptoms with the work injury, even though the association, absent further evidence is fallacious, an example of post hoc ergo propter hoc.

Second, the best reports explain that the injury resulted in no structural damage to the joint and that the available imaging studies demonstrate degenerative changes that would have taken many months and more likely years to develop.  The experts then explain that a traumatic injury causing a permanent aggravation of the condition would most likely have resulted in different findings on the imaging studies.  Further, the most effective opinions will cite to relevant medical literature demonstrating that symptomatic arthritis usually develops insidiously and almost certainly unrelated to a minor, temporary injury.

Third, most permanent aggravation claims arise in workers who are in their 40s, 50s, and 60s.  The best opinions will identify age alone as the single biggest risk factor in developing arthritis.  The most effective opinions will also explain that the onset of symptomatic arthritis was highly likely given the person’s age and, as is often the case, the person’s weight, deconditioning, and sedentary lifestyle.  If possible, the best opinions will point to and explain how other individual characteristics such as an excessive valgus alignment in a knee case that predisposes the worker to arthritis.  The expert will then explain why all of these characteristics (age, weight, etc.) are responsible for causing the symptomatic arthritis and how the appearance of symptoms after a work injury is purely coincidental.

Finally, the best reports will explain what causes arthritis (erosion of cartilage) and how a minor strain without evidence of structural damage cannot cause further erosion of cartilage that leads to the onset of symptoms.  When cartilage erodes, the articulating surface of the bones in the joint rub together.  The damaged joint tissue and associated inflammation cause arthritic pain.  It is then explained that a minor strain causing no discernible changes in the joint tissues affected by arthritis cannot have caused the arthritic symptoms.

In this way, the expert report explains how the correlation of symptomatic arthritis with a work injury is coincidental and not causal.   Even so, not every such expert report will carry the day.  Nevertheless, if one is to have a chance, the medical expert cannot simply state her opinion but must explain why it is her opinion based on the relevant medical records, her experience, and any supporting medical literature.  Otherwise, like per capita mozzarella cheese consumption and civil engineering degrees awarded, we could mistakenly believe that correlation is causation.  So ask the expert “why”, there is a good chance it will pay dividends.

Medical News Today has an article on exciting research in the pharmacological management of chronic pain.  The research, published in Neuron, found that persons with a particular genetic profile experience considerably less low back pain than the general population.  Such persons have a gene variant that causes them to produce less of the protein BH4 than normal.  Researchers postulated that BH4 is at least partly responsible for the development of chronic nerve pain.  To test the hypothesis, they engineered mice to overproduce BH4 and found these mice were hypersensitive to pain even without injury.  They then engineered mice that produced no BH4 and found those mice to have considerably less sensitive to pain than normal. 

The real breakthrough, however, was in the researchers’ next step:  pharmacological control of BH4.  "We wanted to use pharmacologic means to get the same effect as the gene variant," says Alban Latremoliere, PhD, of Boston Children's Kirby Center, who led the current study.  As Medical News Today reports, the researchers caused a peripheral nerve injury in laboratory mice and then “blocked BH4 production using a specifically designed drug that targets sepiapterin reductase (SPR), a key enzyme that makes BH4. The drug reduced the pain hypersensitivity induced by the nerve injury (or accompanying inflammation) but did not affect nociceptive pain--the protective pain sensation that helps us avoid injury.”  This could be a hugely important development in the pharmacological management of chronic pain in people as the method would offer an option that could effectively manage pain without any of the addictive or other deleterious effects of narcotic pain medication.  

Anyone who has spent any time in worker’s compensation claims knows that many, many claims are fraught with problems that aren’t wholly medical or psychological, but that are problems arising out of the workplace injury that nonetheless impact the claim.  An apt term for these sorts of problems is “psychosocial difficulties.”  Psychosocial difficulties “refer to impairments of body functions under central nervous system control, activity limitations, and participation restrictions such as concentrating, sleeping, maintaining energy levels, anxiety, making and maintaining relationships and keeping a job.”  When we encounter a worker’s compensation claim we tend to focus on “medicals and indemnity” because worker’s compensation laws require insurers and self-insurers to pay medical expenses and indemnity expenses and not much else.  The problem with this narrow focus is that a worker’s compensation claimant is a human being that lives in a particular psychosocial milieu.  Psychosocial difficulties arise because of the “interaction of the health condition, environmental and personal factors.”  The fact is that when a worker’s compensation claim is made, claims administrators may be authorizing payments for medical expenses and indemnity expenses, but the path that the claim takes is driven by the interaction of the health condition, the personal, and the environmental, which may include factors beyond the strict purview of worker’s compensation laws.  Although extralegal, these other factors may have a profound impact on the nature of the claim and whether it can be administered effectively.

Common examples of “extralegal” factors include such things as financial security, access to secondary income, family stability, addiction, intelligence, etc.  In the world of brain injuries and conditions, caregivers and medical practitioners have begun to realize psychosocial difficulties “are common across brain disorders” which “challenges the premise that the medical diagnosis has to be the driver or care.”  In the context of brain injuries and disorders, “what people really care about is to be able to continue with their lives.”  Hence, approaches to care which focus on helping them “continue with their lives” have been found to be effective.  The bottom line is that “the difficulties people with health conditions face in their lives do not only relate to their health conditions but also to personal factors and the context in which they live.”  The experience of injury and disability is likewise personal and driven by individual circumstances rather than being uniform across injury types.  This impacts everything from treatment response to recovery to motivation to return to work.  Hence, in two otherwise similarly situated persons with work-related meniscus tears, one returns to work within a few weeks of surgery while the other person takes many months to recover and experiences progressively increasing complaints ultimately leading to a total knee replacement.

When a person is injured, we consider the condition to be a medical one.  When operating from the cognitive modality, we then assume that treating the injury will heal the person.  However, the medical aspect of an injury is just one aspect.  Injury, though physical or mental in nature, has myriad aspects that affect the life of the injured person.  Often the psychosocial aspects of injury are more difficult for an injured person to manage or get over than the actual physical injury itself.  When this is the case, claims become difficult because doctors tend to throw up their hands and say they can do nothing more for the person.  From a claims perspective, this often triggers an attempt to shut the claim down, or at least end payment of medical expenses.  The problem is that even when “medical interventions are exhausted…, interventions targeting [psychosocial disorders] can contribute tremendously to achieving a fulfilled life…”  Thus claims administrators often find themselves in the difficult and unenviable position of not having anything to offer to an injured worker who clearly has problems related (in their mind or in reality) to the work injury.  The position is difficult because the injured worker will often blame their condition on the worker’s compensation carrier and seek further benefits out of the belief, misguided or not, that continued receipt of worker’s compensation benefits can somehow make her whole again or at least offer the hope of remedy from the effects of the workplace injury.  Frequently these “effects” are not primarily medical but instead are a result of the cascade of psychosocial problems that follow injury, interruption of employment, and diminished physical functioning. 

One way to address the psychosocial difficulties is to allow injured worker’s to provide narratives of what is going on in their lives as part of the claims process.  While this information, or at least pieces of it, often comes out during the course of a claim, it is usually the product of defensive behavior most commonly uttered in frustration, i.e. “but how am I going to pay my rent?”  Instead, it might be beneficial to seek out the information actively, to ask claimants what is going on in their lives and how the injury is affecting them.  Certainly it will provide good will and may assuage some of the claimant’s anger, but it also could have the benefit of figuring out what is really going on and how that will impact the life of the claim.  If a person is frustrated because they can no longer perform an activity, perhaps a claims administrator would be able to direct her to a simple and cost-effective means by which the person can improve or restore their level of function.  It can only help a claims administrator to understand what really matters to the injured worker. 

It very well may be that the claims administrator will not be able to do much about issues that fall outside the purview of worker’s compensation; nevertheless, it cannot hurt to find out what all of the issues a claimant is facing and learning this information may help a claims administrator arrive at creative and effective solutions in what otherwise seem to be intractable claims.  In addition, the earlier the discussion of psychosocial difficulties takes place, the earlier the claimant, with or without help from the claims administrator, can begin to address the difficulties.  The sooner psychosocial difficulties are addressed, the sooner claimants are likely to accept their physical condition and move forward in adapting to it.  This has the potential to reduce recovery times and to mitigate against the worst effects of disability, thereby potentially lowering both perceived and actual levels of permanent impairment.  The law tells us what we have to do, but sometimes doing a little more can go a long way to making potentially problematic claims manageable.