There are several areas of research that may prove successful; stem cell injections, a Collagen Meniscal Implant (CMI), and 3-D research.
In a clinical trial of stem cell injections for meniscal tears, only 15% of participants experienced an increase in meniscal tissue at one year following treatment. This could be because without healthy cartilage to pad the bones that meet in the knee joint, the bones become battered and misshapen and a new meniscus can’t fix that damage. So, it would make sense to try stem cell medicine on people with new injuries who do not have the damage to their bones.
The Collagen Meniscal Implant, a biological completely absorbable implant made from highly purified collagen with a porous structure showed some promise. This device is attached arthroscopically to fill the void resulting for damaged or lost meniscal tissue and makes use of the body’s own ability to re-populate the structure with its own cells over time to regenerate the normal structure of the meniscus. There is data showing benefit in chronic meniscal injuries for the right patient.
In a study successfully conducted on sheep, a meniscus was regenerated with a 3-D printer, infused with human growth factors that prompt the body to regenerate the lining on its own. It begins with MRI scans of the intact meniscus in the undamaged knee. The scans are converted into a 3-D image which is used to drive a 3-D printer. A scaffold in the exact shape of the meniscus down to a resolution of 10 microns (less than the width of a human hair) is produced within 30 minutes. This research is preliminary but it demonstrates potential for meniscus regeneration.
However, the reality is at present there’s little that orthopedists can do to regenerate a torn knee meniscus. Small tears can be sewn back in place, but larger tears have to be surgically removed which helps with pain and swelling, but leaves the knee without its natural shock absorber. There are three viable options on the horizon, but they are still in the research stages and it could be years before they are offered to the general population.
The best way to obtain a good recorded statement is to have a predetermined process for planning and preparation of the interview. Here are some tips to conduct a thorough interview:
The success of the investigation depends on the adjuster’s ability to gather accurate and reliable information.
In order to resolve claims quickly and cost-effectively, it is necessary to recognize red flags, pre-existing conditions such as health concerns and degenerative issues at the onset. This allows you to determine what tools are necessary to move the claim to closure.
The single most important key factor in keeping claims moving forward is communication, with the claimant, insured, treating doctor(s), and if appropriate your defense attorney.
Numerous studies show that the workplace is the major source of stress for American adults. 77% of people regularly experience physical symptoms caused by stress. 73% regularly experience psychological symptoms caused by stress. 33% feel they are living with extreme stress and 48% feel their stress has increased over the past five years.
We may not be able to control much of what happens in the workplace, but we can control how we respond to it. Here are a couple of tips for controlling stress at work:
Carpal tunnel syndrome (CTS), the most common entrapment neuropathy, is caused by chronic compression of the median nerve as it enters the carpal tunnel. In fact, it is thought that between 3%-6% of US adults have or will develop CTS. It normally develops between the ages of 45-64 years and the prevalence increases with age. It is more common in women than men. Carpal Tunnel Syndrome has been around for a long time; reports of CTS date back to the 1800’s.
Interestingly, after all this time there is still no consensus for a treatment plan for mild to moderate CTS. A 2007 Cochrane review found treating CTS with corticosteroid injections appears to have an unknown affect and effects appear to be temporary with no benefit beyond one month. This study also found two injections of corticosteroids did not provide any additional benefit over one injection. More recently research has indicated that the benefit may last up to 10 weeks, some studies showed up to one year, with less chance of surgical intervention at one year. The problem in studying CTS is it has a tendency to have spontaneous remissions, which may also be partially responsible for a high 20%-34% “Placebo Effect.” The Placebo Effect is a beneficial effect produced by a fake drug or treatment.
A new procedure using ultrasound-guided perineural injection of 5% dextrose (D5W) showed a significant reduction in pain and disability and improved electrophysiological responses. The procedure is still in the testing stages, but could prove to be a much more cost-effective approach to treating CTS. The minimally invasive injections can be performed in a doctor’s office resulting in virtually no recovery period, and a much quicker return to work and other activities of daily living.
The subacromial bursa is a small fluid filled sac located at the top, outer aspect of the shoulder designed to reduce friction between the acromion and the tendon of the supraspinatus muscle. While elevating the arm, rotating the shoulder, lifting, pushing, pulling or lying on the shoulder forces are placed on the subacromial bursa. This can also occur with a direct impact or fall onto the point of the shoulder. Irritation and/or inflammation of the bursa can occur over time with repetitious movements or suddenly with a direct blow to the point of the shoulder or a fall onto the shoulder.
Symptoms include pain at the top, front, back or outer aspect of the shoulder, which can sometimes radiate into the upper arm as far as the elbow. Less severe cases may experience an ache or stiffness in the shoulder which increases with rest following activities that placed strain on the bursa. However, as the condition progresses symptoms may increase during the activity or sport.
Although the condition can be diagnosed through a thorough subjective and objective physical examination, an ultrasound is usually used to confirm the diagnosis. Further diagnostics such as x-ray, CT or MRI can assist in the diagnosis of other conditions which may be present and assess the severity of the condition.
Generally, Subacromial Bursitis can be treated conservatively beginning with rest to the shoulder and diligently performing exercises. Physical therapy using ultrasound and cryotherapy to reduce inflammation is also helpful. If that didn’t provide adequate pain relief, then steroid injections could be tried. Surgery is a “last resort” type of care in the form of an arthroscope to visualize and repair any damaged structures.
Subacromial bursitis often occurs in conjunction with other shoulder conditions such as rotator cuff tear, tendinopathy, shoulder impingement or shoulder instability. These are usually of slow onset because the result of repetitive activities at work, but subacromial bursitis can also come about acutely, for example as the result from a direct blow to the shoulder or a fall on the shoulder.
These types of injuries are slow to heal and for that reason can result in high treatment costs and increased employee missed time from work. Often whether or not the claimant heals completely or at all is subjective and the success of treatment falls strongly on the claimant’s compliance. This makes surveillance a great option in cases of high suspicion because if you catch your guy in the middle of 18 holes with no apparent shoulder problems, then you really have something!
Thank you to our guest blogger, J. Jay Goodman, MD, General and Vascular Surgery. It is highly unlikely that the development of an abdominal wall hernia can be attributable to a single strenuous event. A specific type of abdominal wall hernia referred to as an epigastric hernia (fatty hernia of the linea alba) is defined as a fascial defect of the midline and represents a congenital defect in the fascia between the rectus abdominal musculature. These hernias must lay in the midline between the lower edge of the sternum (xiphoid) and the umbilicus. An umbilical hernia is a separate type of anatomic defect.
The linea alba is embryologically formed by the midline junction of the rectus abdominis sheaths. Epigastric hernias begin as small protrusions of preperitoneal lipomas. An epigastric hernia tends to have small defects (less than 2.0cm) and are difficult to palpate in an obese individual. The hernia can appear spontaneously, and many are asymptomatic. Pain may develop from entrapment of preperitoneal fat or the omentum.
Work activities do not affect the onset or progression of epigastric hernias. If preperitoneal fat or intraabdominal tissue enter these small defects, the pre-existing anatomic pathology may manifest itself. If the hernia strangulates during work activities and emergency surgery is needed, one should relate the emergency need for surgery to the work activity. The work activity does not cause the hernia defect and does not accelerate the deterioration of the hernia.
Once an epigastric has been identified regardless of symptoms, it should be repaired surgically so that a complex emergency repair is avoided.
Dr. Goodman is available to do IMEs in the Milwaukee and Fox Valley areas. Contact Medical Systems for more information or to schedule.
Lack of support is the most difficult and critical problem to address because it is often a major factor in an ALJ’s decision that an IME report was not credible. Unfortunately, not all doctors agree on what constitutes adequate support. Thus, the cover letter writer may receive an IME report and conclude that the expert did not support her answers sufficiently, but be faced with a headstrong expert who disagrees. Although difficult, this scenario can be overcome.
First, the IME vendor should work with the writer to explain to the expert the importance of citing relevant evidence, professional experience, and medical literature in the report. The IME vendor should be able to explain to the expert that a conclusory answer without any sort of explanation as to how and why the expert reached the conclusion will not pass muster with the “trier of fact” (ALJ). In truth, experts want to write effective, credible reports because they know that good reports generate more business opportunities. Thus, experts will often be receptive to requests to strengthen their conclusions if the evidence and literature supporting their opinion is obvious and available.
Second, the cover letter writer is typically the person who is most familiar with the claim being addressed, which puts the cover letter writer in the best position to point to the hard evidence and literature that supports the expert’s conclusions. While no IME vendor will tell an expert what to write or what evidence to use, the IME vendor should convey the writer’s concerns to the expert. This would include asking the expert to consider specific relevant evidence or literature in their answers. Ultimately what the cover letter writer and the expert consider to be important evidence may differ, but in cases where the expert’s answer is wholly unsupported they are likely to be receptive to requests to clarify or amplify if the cover letter writer can explain why the answer is problematic unless the expert provides additional support.
No IME vendor can guarantee a perfect report. However, we should expect responsive, consistent, and well-supported IME reports. In judging the report, we should not ask whether the report is favorable but instead whether the expert reached a reasonable and well-supported conclusion from the available evidence. If they did not, your IME vendor can and should work with you to repair deficiencies in the report. Ultimately, those requesting IME reports have the right to expect to receive a reasonable and credible report based on the evidence made available to the expert.
Do you have any ideas on how to strengthen the cover letter so these types of problems are minimized?
Although there is no cure-all that can make every IME report perfect, some things do make a difference. For example, IME experts are more likely to give more weight to the history that is given closest in time to the injury. Hence, it is vital to take recorded statements as soon as possible after an injury is reported. IME experts are also more likely to be suspicious of an injury’s legitimacy if contradictory histories of injury are given. In addition, evidence of prior problems involving the same body part increases the likelihood that the expert will conclude that the examinee experienced a mere manifestation of a preexisting condition or a temporary aggravation. Diagnostic imaging studies often can be used to predict whether the expert will conclude that the condition is traumatic or preexisting and chronic.
One underappreciated factor in predicting the outcome of a report is mechanism of injury. Often how the examinee claims the injury happened is critically important. We can reliably predict that an orthopedist will find a meniscus tear to be non-industrial if the examinee does not report a twisting mechanism of injury. Also, in cases of significant acute injury and disability, a delay in treatment increases the likelihood that the expert will find that the injury did not occur as alleged and represents the mere manifestation of a preexisting degenerative condition. For example, an expert is more likely to conclude a massive rotator cuff tear has a non-industrial origin if the examinee claims a traumatic episode cause the injury but he nonetheless waited a week to report it because the expert is likely to conclude that a massive acute tear would be so painful and disabling that the examinee could not continue working and would have reported the injury immediately.
Mechanism of injury is important in occupational exposure claims as well. An accurate job description, job video, and physical demands analysis tailored to the examinee can go a long way toward predicting whether the expert will find the work exposure to be a cause of the condition. Finally, the examinee’s personality will have some bearing on the expert’s opinion. Experts tend to be less sympathetic toward hostile and unpleasant persons then friendly and straightforward persons.
What is your technique to substantiate mechanism of injury? Does it work and why?
OSHA has made some changes to how employers track work injuries that brings drug policies into question. The new final rule, passed in May of 2016 and goes into effect January 1, 2017, states that employees have a right to report work-related injuries and illnesses free from retaliation. That is to say an employer’s procedure for reporting work injuries must be reasonable and not deter or discourage employees from reporting. The concern is if an employer has a mandatory drug test following a work injury, an employee under the influence of drugs or alcohol when their work injury occurred may not report it.
Interestingly, OSHA feels that this rule will prevent injuries, illnesses and death. Their thinking is that all work injuries will be reported and workplace hazards will be better identified and eliminated. This makes good sense if drugs or alcohol didn’t play an active role in the actual occurrence of injury. Of course, the exception would be drug testing following an accident for the purpose of complying with state or federal law or regulation.
While the rule doesn’t specifically prohibit drug testing of employees, it does prohibit employers from using drug testing as a form of retaliation against employees who report injuries or illnesses. So, beginning in January of 2017, employers will need a compelling reason for post-accident drug testing. The view on this is it will be very difficult for employers to prove it was “reasonable” for them to do any kind of post-incident testing on a worker reporting injury without having another law to point to. OSHA says that employer policies should limit post-accident testing to situations where drug use is likely to have contributed to the incident. For example, it would not be appropriate to drug-test an employee reporting a repetitive strain injury or bee sting. Employers do not have to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee contributed to the injury. So the million dollar question becomes, what is the definition of “reasonable possibility?”
Claim handlers often have access to medical records from the beginning of the claim and can identify references to prior treatment or inconsistencies that suggest the claim is problematic. Claim handlers also have the opportunity to present the injured worker with a release that can potentially allow the claim handler to obtain records that are outside of the scope of the claim but that could otherwise prove useful for the independent medical expert. As is often the case, when a claimant hires counsel the attorney typically revokes or otherwise limits the authorizations. Thus, it is important for claim handlers to obtain broad releases early on to increase the likelihood that the whole story will be told. Once an attorney is involved with the claim, she will exercise “editorial” control over the claim that will limit the claim handler’s ability to administer the claim effectively. Access to purportedly “unrelated” records can often be a critical point of analysis for the independent medical expert.
One key role the claim handler plays is editor. During the course of any case, claim handlers can spot areas of concern as they arise and take actions to shape how any concerns affect the claim. A problem in a claim may trigger an IME or, if the claim handler flags it, can be useful for an expert who subsequently performs an IME. While claim handlers are not physicians, they have a wealth of experience in dealing with myriad injuries and the normal course of treatment and healing for the injuries. Thus, the claim handler knows that a person with a low back strain without objective evidence of tissue yielding or definite breakage typically heals in 6-8 weeks with conservative treatment. That same claims handler is likely to know that something isn’t right when 12 weeks have elapsed and the injured person shows little or no signs of improvement. Claim Handlers are also in the best position to catch doctor shopping, narcotics abuse, and significant inconsistencies as they occur. Scheduling an IME that flags problems and delineates the claim handler’s suspicions as soon as they arise is significantly more likely to yield a credible IME than doing so a year or more after the fact when the claimant has undergone costly medical procedures or developed a poorly managed chronic pain problem. Again, the claim handler can exercise “editorial” control over how the claim plays out so that problems are headed off before they can become intractable.
Claim handlers are also like investigative journalists. Claim handlers develop a relationship with injured parties that puts them in a unique position to gauge the credibility of a claim. The claim handler will know if a particular injured party is evasive, defensive, honest, etc. and can take advantage of this personal knowledge to adopt the most effective strategy for managing the claim. This personal knowledge can also be useful for claims that move into litigation because the claim handler will be able to convey their knowledge of the claimant and other witnesses to counsel (which is especially important in worker’s compensation jurisdictions that do not have discovery). As everyone who has been involved with litigated claims knows, the claimant’s credibility is always important and often is the most important aspect of the claim. Claim handlers can use their regular contacts with claimants not only to fulfill the technical functions of adjusting the claims but also to learn about the claimant and assess whether he or she is likely to make a credible witness if the case goes to trial or hearing. Such insights into credibility may also be relevant to the analysis of the independent medical expert.
The advantages of being involved with a legal claim from its inception are legion. Every claim essentially involves competing narratives. Whether a claim is paid; how much is paid; whether it is litigated or settled; and for how much it is settled are really just functions of how believable each side’s story is. Following some simple steps in the claim handling process can help shape the story from the beginning to help control whose version is most believable. It can also lead to information, be it medical records, witness statements or employment records, which may be critical to the analysis and conclusions of the independent medical expert. As the outcome of a case often turns on the credibility of the independent medical expert, these early steps can have an important impact on the overall outcome of the claim.
The IME report can serve several functions, but there is one thing common to every IME: the doctor makes the difference.
So how do you choose the best doctor for your case? The reason for seeking the IME will be an important consideration. If causation alone is the issue, then you may want an expert who is skilled at analyzing mechanisms of injury or physical job demands analysis. Let’s say it is indisputable that the examinee needs a knee replacement and the only issue is whether repetitive job activities contributed to the claimant’s knee condition. In this case, you may want an occupational medicine specialist who has experience with job demand analysis and has studied the effects of repetitive activities on the development of osteoarthritis.
On the other hand, if the reasonableness and necessity of treatment is a major issue in the case then you will want to have a specialist qualified to address treatment. Let’s say a lumbar fusion has been recommended but seems likely to fail for some identifiable reason. In this case you will want a spine surgery specialist who can credibly explain the reasons why the proposed surgery is likely to fail and is thus contraindicated.
Once the purpose of the IME has been identified, what are other considerations in determining the best expert? Several strategies can be used. First and foremost is the requester’s experience. Each claims and legal professional will have her own idiosyncrasies and practical experiences when it comes to IME experts. This combination of experience and preference is the chief guide most claim professionals do and should use in choosing an expert. You don’t want to reinvent the wheel: if you had a good experience with an expert on a similar claim in the recent past, you probably don’t need to expend mental energy and productive time searching for another expert. Use the one you already know.
Unfortunately, we run into unique or otherwise unusual situations for which an expert is not immediately obvious to the claim or legal professional. In this case, the investigation should start closest to home and gradually expand outward. Thus, the next step would be to consult one’s colleagues. In any claims department or law firm, the chance of encountering a wholly novel claim is relatively small, which means someone in the department or the office has probably dealt with a similar situation in the past. Consulting with peers is an efficient way to find the right doctor for an unusual claim. This step, when it is successful, has the built in advantage of having evidence to support the decision. For example, if a complicated neurological condition such as syringomyelia is alleged to have arisen from an accident, the appropriate expert may not be immediately obvious. Most orthopedic spine specialists and even the majority of neurosurgeons are unlikely to have experience with this condition. Nevertheless, in a large claims department or a law firm there is a decent possibility that someone has encountered a similar condition in a prior claim and used an IME. If a similar claim exists and the IME was good, then the query should probably be over.
If a survey of one’s peers still does not give the claims professional a satisfactory recommendation for an IME specialist, one may wish to consider the nature of the case and contact an attorney. In most claims, the ultimate disposition would be a trial, whether in an administrative or court setting. Hence, there will be issues to consider that relate to the possibility that a claim will not settle and will end up before a judge, jury, or administrative law judge. In this case, an attorney can provide valuable guidance with respect to qualified experts that will be credible in the particular litigation forum. An expert that might be well-suited for a personal injury claim could be ill-suited for a worker’s compensation claim or vice-versa. Practicing attorneys with whom you have a relationship can be an enormously valuable resource to use when deciding on what IME expert to use.
Your IME vendor can also be an excellent source of information regarding what doctors specialize in or have a clinical interest in a particular condition. Your IME vendor should have the tools necessary to identify the right expert. The best vendors actively recruit doctors to offer the widest range of specialists possible. In addition, when the best vendors vet their experts, they identify and note each expert’s specialties and areas of clinical interest to make the choice easier for you. The best vendors also schedule countless IME’s for many different clients, so there is a good chance that the vendor has run into a similar condition in the past and can recommend a physician based on the earlier case. Finally, the best vendors will be sensitive to your requirements and will tailor any recommendations so that the doctors put forward will prepare a report that meets your requirements.
At Medical Systems we strive to be a resource for you. We have a wealth of knowledge and experience that we put at your disposal. If you have a claim, chances are we’ve seen one like it before. We know what’s worked in the past and we share that information with our clients. And we get to know our clients so that we can match the expert that not only has the right experience but also meets your specific needs, be it turnaround time, style of writing, or type of analysis. While there are no guarantees, we will do our part to ensure that you choose the best and most qualified expert for your claim.
Choosing the medical expert is a critical decision in the life of your claim or case. This is true in every case, but can be especially true in some situations where you may be bound to your selected expert through the entire case. Regardless, be sure to consider all the issues on your case, the medical questions, and the purposes of the report, and also use all available resources to ensure that your choice of medical expert is the best possible option.
A command of the facts is essential to managing claims effectively. Equally important is the ability to understand what the facts mean in context. Deer hunting is still a popular pastime in Wisconsin. As such, one avenue for investigating whether a person’s condition is as disabling as they claim is to find out if they hold a deer hunting license. The idea being that a person who is able to hunt for deer is probably less disabled than they claim. The inference is strongest in the case of hunting with a bow and arrow because compound bows require significant strength to use and their shorter range (compared to a gun) generally requires the hunter to climb into a tree stand to hunt. Deer are also heavy, which would make it difficult for a lone hunter to deal with the animal after a successful kill. You will note that several assumptions are required to make the leap from the premise “claimant possesses a deer hunting license” to the conclusion that “the claimant is less disabled than alleged.”
The assumptions need to be teased out before the fact of possessing a hunting license can be used to infer less disability than alleged. Take the following hypothetical: a relatively young person who is right-handed alleges a disabling work-related right shoulder injury (rotator cuff and SLAP tear) that prevents him from returning to his former occupation that requires he be able to lift up to 100 pounds to his waist occasionally and 15-25 pounds above his shoulder frequently. In the course of the investigation, the claims professional discovers that the employee obtained a license enabling him to hunt deer in Wisconsin with a crossbow. The claims professional considers this to be a red flag and evidence that he is not as disabled as he claims. She sets up an independent medical examination and informs the expert of this fact, expecting it to be significant.
The question we must consider is whether the employee’s crossbow hunting license is in fact evidence that he is not as disabled as he alleges. The first thing we need to know is a bit about crossbow hunting in Wisconsin. Until 2014, the only persons who could obtain a crossbow license to hunt deer were persons with a physical disability that prevented them from being able to use a vertical (and typically compound) bow. This should immediately give us pause in our analysis since it suggests that the employee’s license very well may have been obtained because his right shoulder condition prevents him from using a standard vertical compound bow. This possibility is bolstered when one considers that the draw weight (how many pounds of force are required to draw the string back) on a compound bow for an average-sized man will be around 60 pounds. For a right-handed shooter this puts a tremendous amount of stress on the right, or draw-hand shoulder.
But what about dealing with a deer that has been shot and killed? Wouldn’t that be physically difficult? It is true that most whitetail deer killed in Wisconsin will weigh over 100 pounds, with some bucks tipping the scales at well over 200 pounds. Obviously field dressing, dragging a deer out of a field or woods, and lifting into a vehicle would require significant effort. However, we are again making assumptions about what physical activity the employee is doing. We must consider the possibility that the employee uses a four wheeler to get to his hunting location, as many hunters now use four wheelers. We must also consider the possibility that a hunter with a four wheeler also has a power lift on the vehicle to help get the carcass off the ground and onto the four wheeler. In addition, we must consider the possibility that the employee hunts with other people and will have assistance if he makes a kill. The point is that we cannot infer from the employee’s license to hunt deer with a crossbow that he will engage in physical activity exceeding his alleged level of disability.
The above scenario demonstrates the importance of not only knowing the facts of a claim but also of knowing what those facts mean. Without a clear understanding of what the facts mean, one can misinterpret how the facts effect the claim. In the above scenario, it is possible that the claim could be considered suspect based on the assumption that a person seeking a hunting license is probably less disabled than they claim to be. However, knowing a bit more about hunting suggests the fact that a person who claims to have a disabling shoulder injury and seeks a crossbow hunting license is probably behaving consistently with the alleged disability. Not drawing out the most reasonable inferences from the known facts could very well compromise one’s ability to effectively administer a claim. Investigate carefully, but know what the facts turned up in the investigation really mean.
The language we use to describe various medical conditions impacts how the conditions are viewed in the medicolegal context. Some of the common culprits include “tear,” “herniation,” and “edema.” The everyday understanding of these words suggests to readers of medical reports that they are the result of acute injuries rather than the normal result of aging. Take for example the word “tear,” which is frequently used to describe the condition of tendons, ligaments, and meniscuses. To the ordinary reader, if some says that they “tore” a tendon or have a tendon “tear,” the immediate image is something akin to paper being torn. In many tendon “tears,” nothing could be further from the truth. Instead, many tendon “tears” are actually degenerative in nature, resulting from the normal effects of time and aging on the body. Medical experts and claims professionals should be more precise in describing such conditions so that it is clear to the ordinary reader that the condition is degenerative rather than the result of an acute injury.
How can this be done? A good example is found in a Wisconsin Labor and Industry Review Commission decision. There, the Commission quoted Dr. Paul Goodman:
MRI scan reports and common medical lingo frequently utilize the words 'tear' when describing the disruption of tissues and structures found on diagnostic imaging or at times of surgery. However, for the most part such language is misleading, manipulating the mind of the reader to understand that some sort of traumatic event is responsible for the 'tear' or 'torn' rotator cuff, event in the absence of any objective evidence of trauma having occurred. In the examinee's case, although her diagnostic reports indicate such language, I find it better to use the word 'disruption' which avoids a traumatic connotation. Over time, tendon structures deteriorate, breakdown, and become disrupted as a usual and normal consequence of the aging process. This is what has occurred in the examinee's case. No injury per se is medically determined.
The proof that this careful attention to language matters: the Commission concluded the employee’s condition was not work-related and dismissed her claim.
“Did the accident (or exposure) cause the condition?” is usually the crux of most IME reports. We expect the expert to answer “yes” or “no” and explain why and how she came to that conclusion. The worst answer is some variation of “I’m not sure.” This is enormously frustrating. The person asking the question rightfully expects to receive a definitive answer and “I’m not sure” is tantamount to no opinion. As a practical matter, “I’m not sure” functions only marginally better than having no report at all.
We have all seen variations of “I’m not sure” in IME reports. But what can be done to avoid it? A carefully worded cover letter specifically explaining the standard that the writer is asking the expert to meet can help. One simple way to explain the expectations for answering basic causation questions is through a coin flip analogy. Every physician understands that a coin flip is a 50/50 proposition, meaning that whenever a coin is flipped the likelihood that it will come up heads is exactly equal to the likelihood that it will come up tails. It is easy to explain that you are asking the expert to determine whether the likelihood that the accident (or exposure) caused the condition is greater than a coin flip based on the available information. If so, then the causation question should be answered “yes.” If the likelihood that the accident (or exposure) caused the condition complained of is equal to or less than a coin flip, then the causation question should be answered “no.” The vast majority of experts will understand this analogy and it often helps prevent them from equivocating on causation.
Experts also are prone to conflating medical diagnostic impression and causation in an IME report. The diagnostic impression as reflected in chart notes is often blurry and by necessity uncertain. This is why chart notes frequently reflect more than one diagnostic impression. For example, a person who presents with carpal tunnel-like symptoms my carry a differential diagnosis of carpal tunnel syndrome versus cervical spine nerve root impingement versus shoulder impingement. The doctor will keep the competing diagnoses in the chart until tests are performed to rule out (or confirm) causes. It would be unwise to establish a definitive diagnosis in the clinical setting if there is not definitive medical evidence supporting one diagnosis over the others, even if the doctor believes, based on the available evidence, that one diagnosis may be more likely than the others.
This is the precise issue that experts performing IMEs must overcome. Again, the cover letter can help them. An effective way to help doctors move away from the medical diagnostic impression model is to explain to them that answering the causation question ‘yes’ or ‘no’ neither precludes the accident (or exposure) as a cause nor fixes the expert’s opinion for all of time. Definitively answering the question is the equivalent of stating that based on the available information, it is more likely than not that the accident (or exposure) did not cause the condition. This opinion does not preclude other causes or state that is 100% certain with respect to the cause of the condition. The opinion also does not lock the expert into her opinion in the future. The opinion is based on information available at the time the opinion was rendered. If additional information becomes available in the future, the expert should be assured that it is permissible and expected that her opinion will conform to the new information, even if that means her opinion on causation does a 180° flip. Explicitly explaining the nature of the opinion expected, its limited effect, and the possibility of changing it in light of new information will help the expert be more comfortable with stating a definitive opinion on causation.
Taking these steps in the cover letter can go a long way toward eliminating ambiguous, vague, or equivocal opinions on causation in IME reports. We don’t expect perfection out of our experts, but we do expect that they will provide clear answers to the questions that we ask them. Helping the expert understand exactly what those expectations mean will help her fulfill them.
Low back problems are a necessary evil of being human due to our anatomy and physiology. This is of great importance in many medicolegal claims in which an injury or repetitive stress exposure is alleged to have caused low back problems, thereby attempting to shift responsibility for the costs imposed by low back problems from the individual and his or her health insurance (if applicable) to the liability policyholder/employer and the liability/workers compensation insurance carrier. The high prevalence of low back problems in the general population makes differentiating between idiopathic problems and those caused by an accident or repetitive stress exposure extremely difficult. It is also complicated by the fact that the idea of a manifestation of a preexisting condition is at odds with our folk understanding of temporal proximity and causality, i.e. if two things happen near in time, we tend to assume they are causally related, with the first thing causing the second thing.
Human beings perform many cognitive tasks exceptionally well. Accurately assigning causation is not one of them. In particular, we are prone to making a priori assumptions about how things work and then confirming our assumptions (confirmation bias) post hoc (post hoc ergo propter hoc fallacy). Low back pain is a notable example: we often associate low back pain with lumbar disc pathology discovered on post-injury MRI despite the fact that we know from the medical literature large percentages of the general population have similar MRI findings but no low back pain. We make the assumption based on our assessment of human anatomy and physiology that lumbar discs work in a certain way and when they are compromised it must cause discernible effects such as low back pain. We then see evidence of compromised lumbar discs in persons who complain of low back pain following an injury or exposure and we leap to the bias-confirming post hoc conclusion that the pathology or compromised condition is causing the pain. So strong is this impulse that we ascribe causation even though we are well-aware of the medical literature demonstrating that disc pathology is an exceedingly poor proxy for low back pain. The coup de grace of this faulty reasoning is the post hoc association between disc pathology and pain: physicians will regularly conclude that a specific event or long term exposure caused a herniated disc despite the person being in a population cohort in which it is at least as likely than not that herniated disc was present before the injury or exposure. The only reasonable way one could reach this conclusion is with a pre-injury MRI showing there was not a herniated disc.
The problem with this sort of faulty reasoning is that it can lead to treatment that is extraordinarily expensive but ineffective. In a low back pain claim with post-injury evidence of a herniated disc, the treatment is often a discectomy/laminectomy with or without fusion. If the herniated disc was not causing the pain, the surgery will have been unnecessary. While the placebo effect will almost certainly result in some short term improvement, the long term outcomes are likely to be, at best, no different than they would have been with conservative therapy because the treatment will have been aimed at discal pathology that was benign. The triers of fact in the medicolegal systems will, however, require the workers compensation or liability carriers to absorb the costs of surgery, including non-medical costs that are recoverable under the different systems (such as indemnity payments in worker’s compensation or wage loss and pain and suffering in personal injury), because they are likely to believe the opinion that the herniated disc is the problem. This belief is based on the folk (mis)understanding of cause and effect.
There is an expression in statistics that has been borrowed by cognitive psychologists: regression to the mean. It simply holds that unusual states, events, or findings tend to be temporary and regress over time to the average or status quo. This is true with many non-malignant medical conditions as well. This is both profound and somewhat dispiriting because it means that most of these conditions will get better over time regardless of treatment. It is hence a fallacy to ascribe efficacy to treatment or causation based on recovery following treatment when a condition simply regresses to the mean because it would have regressed to the mean regardless of treatment.
Much attention has been paid to this phenomenon in the context of overusing antibiotics. Most people who go the doctor for upper respiratory infections wait to seek treatment until the condition has been present for some time. They then go to the doctor, ask for antibiotics, take antibiotics, and recover from the condition. These persons then assume that the antibiotics caused the improvement. The problem with the assumption is that most of these persons almost certainly had viral infections that simply got better according to the natural course of the condition. ANTIOBIOTICS DO NOT AFFECT VIRUSES AT ALL. The fact that the condition improved after starting antibiotics was due to the simple fact that the person started the antibiotics at about the time the condition would improve on its own. The antibiotics had nothing to do with the condition improving because ANTIBIOTICS ARE 100% INEFFECTIVE AGAINST VIRUSES.
The same holds true for many persons with low back pain who undergo surgery to remove a herniated disc. Low back pain usually stabilizes over time after an acute exacerbation regardless of treatment. Given enough time, it is highly likely that the person would have gotten better or at least recovered to the same extent regardless of the treatment received (including no treatment). The fact that the person improved after surgery does not indicate that the surgery caused the improvement. Instead, the relation of surgery and improved low back pain is almost certainly coincidental. We regress to the mean. That the surgery occurred and improvement subsequently happened is not evidence that the surgery was effective or that the herniated disc was causing the low back pain.
How do we know this? The medical literature is replete with evidence to that end. Take for example the study, “Influence of Low Back Pain and Prognostic Value of MRI in Sciatica Patients in Relation to Back Pain.” The study was undertaken to evaluate the correlation between MRI findings and outcomes in patients with sciatica alone versus patients with sciatica and back pain. As the authors note, “it remains unclear to what extent morphological changes seen on MRI in sciatica patients are associated with back pain, rather than being a representation of irrelevant differences between individuals.” The study found “that herniated discs and nerve root compression on MRI were more prevalent among patients with predominantly sciatica compared to those who suffered from additional back pain.” Interestingly, patients with sciatica and low back pain but without a herniated disc or nerve root compression fared worse after one year than those patients with a herniated disc or nerve root compression. And “remarkably large disc herniations and extruded disc herniations were … equally distributed between the two groups,” causing the authors to conclude that “the worldwide accepted mechanical compression theory therefore seems not to offer a sufficient explanation for the cause of the disabling back and leg symptoms in sciatica.”
Other studies demonstrate similar findings that call into question our ability to assign causation of low back pain to herniated discs and nerve root compression. The well-known twin study demonstrates the difficulty in linking specific activities with low back pain. As the authors in that study report, “disc degeneration appears to be determined in great part by genetic influences. Although environmental factors also play a role, it is not primarily through routine physical loading exposures (eg, heavy vs. light physical demands) as once suspected.” As noted above, other studies have found that large portions of the general population have disc pathology on MRI, but no low back pain. Still other studies find low back pain in the absence of disc pathology on MRI. Despite this evidence, triers of fact routinely base liability decisions on medical opinions that conclude an injury or exposure caused a herniated disc based on a post-injury MRI (which is almost impossible to conclude from a rational, evidentiary perspective in the absence of a pre-injury or exposure MRI) and that the herniated disc is causing low back pain (which runs contrary to the received scientific evidence).
What does this mean for medicolegal claims? It suggests that every claim for injury- or exposure-related back pain based on post-injury MRI scans demonstrating a herniated disc should be carefully scrutinized. In addition, worker’s compensation and liability carriers should take every opportunity to educate triers of fact regarding the lack of a causal nexus between herniated discs and low back pain. Independent medical examiners should point to the relevant literature to begin convincing triers of fact that there is no evidentiary link between low back pain and herniated lumbar discs. In this regard, insurance carriers can look to how the relationship of carpal tunnel syndrome to repetitive keyboard use evolved over time. When these claims first started arising, triers of fact in worker’s compensation accepted the link based on treating physician opinions seemingly without question. This was based on the fact that claimants reported experiencing symptoms while using computer keyboards. The medical literature did not support this association. Independent medical examiners began citing to research finding the opposite: that repetitive keyboarding is not a risk factor for or a cause of carpal tunnel syndrome. In at least some jurisdictions, the triers of fact and treating physicians eventually listened and stopped finding a relationship between repetitive keyboarding and carpal tunnel syndrome.
A similar shift ought to occur in the context of herniated discs and low back pain. While this does not suggest that low back pain itself is unrelated to an injury or exposure, it would radically reduce costs because it would limit surgery for herniated discs to cases where there is discernible nerve impingement causing motor and sensory deficits rather than in cases of low back pain alone. Although human beings are not very good at accurately assessing causation, we can learn to go against our instincts if there is high quality evidence denying causation and experts willing to hammer that point home. It is time to hammer home the point that disc pathology on MRI is poorly correlated to low back pain and limit expensive surgical procedures the efficacy of which is not supported by the medical literature. The simple fact of the matter is that costs for treating a condition that cannot be reliably related to an accident or repetitive stress exposure should not be borne by a liability or worker’s compensation carrier (especially when the condition is poorly correlated with the alleged health effects).
We have written about the potential to use stem cells to regenerate articular cartilage in this space before. Now researchers at Washington University in St. Louis have grown articular cartilage using a person’s own stem cells in a moldable 3D synthetic scaffold. The development is exciting because the scaffold can be molded around the shape of an arthritic femoral head, thus potentially replacing a person’s damaged articular cartilage with healthy cartilage. If this potential treatment becomes a reality, it could offer an alternative to total hip replacement surgery. This would be particularly beneficial for patients under 50 years of age with advanced hip arthritis since most prostheses last less than 20 years and replacing a prosthetic hip carries with it greater complications than the original replacement. While the research is preliminary and has not yet been tested in animals (let alone humans), it is exciting and worth following, especially considering the fact that 322,000 hip replacements are performed annually in the United States alone.
What do a 2,200 year-old Egyptian mummy and many Americans have in common? Sedentary lifestyles. And the effects are not pretty in either case. Scholars who examined the mummy using CT scans determined that the man suffered from osteoporosis and tooth decay despite only being 30-40 years old when he died and having lived at a time when both ailments were rare. They believe his poor health is explained by the fact that he was a priest, which allowed him to be sedentary, avoid manual labor in the sun, and eat a carbohydrate-heavy diet.
A recent study published in the European Journal of Preventative Cardiology and reported on in numerous news outlets demonstrates how perilous the effect of a sedentary lifestyle is even today: researchers concluded that the effect of being unfit “on mortality was a strong predictor in our population, second only to smoking.” So deleterious were the effects of unfitness that researchers found men who were fit but suffering from high blood pressure and high cholesterol were less likely to die prematurely than men with normal blood pressure and normal cholesterol who were unfit.
The study involved 792 men who were followed for 45 years starting when they were 50 years old. Researchers measured the participants’ maximum oxygen uptake capacity, known as VO₂ max, to establish baseline fitness. VO₂ max is a useful proxy for fitness because it is partly influenced by genetics but increases with increasing aerobic fitness. The men were divided into three groups: low VO₂ max, mid VO₂ max, and high VO₂ max. The men were followed every 10 years, with analysis of cause of death among participants who passed away. Researchers concluded that the mid VO₂ max group was 21% less likely to die of premature causes than the low VO₂ max group and that the high VO₂ max was 42% less likely to die of premature causes than the low VO₂ max group. The results remained even when controlling for blood pressure and serum cholesterol. Lead author Dr. Per Ladenvall summarized the findings thus:
We found that low aerobic capacity was associated with increased rates of death. The association between exercise capacity and all-cause death was graded, with the strongest risk in the tertile with the lowest maximum aerobic capacity. The effect of aerobic capacity on risk of death was second only to smoking.
The findings should give us pause to consider how we approach health care and maintenance. Rather than relying on pharmaceutical or surgical interventions to control the effects of unfitness, perhaps we ought to insist on interventions that increase fitness. If being unfit causes premature death and disease, it would seem wise to treat the cause rather than the effects. As a corollary benefit, the treatment for being unfit, i.e. being physically active, is certainly cheaper than treating the effects, i.e. weight-loss surgery, prescription statins, diabetes medications, blood pressure medications, cardiac bypass surgery, joint replacement surgery, etc. No doubt increasing fitness in the general population would also have a positive effect on medico-legal claims, since some injuries would likely be prevented and recovery from those that occur would be better in a fit population than an unfit one.
Employment-related meniscus tears are among the more common worker’s compensation claims. The reasons are myriad but are influenced by the fact that most people develop degenerative meniscus tears as they age and the mechanism of injury for an acute tear merely involves twisting the knee, which can occur in even the lightest and most sedentary occupations because all workers who are not wheelchair-bound walk which means all workers are at risk of twisting their knee in a slip, trip, or fall at the workplace. Setting aside the possibility that such an event is idiopathic, if a worker seeks medical treatment for knee pain following an industrial event and a meniscus tear is discovered on an MRI the treating physician usually relates the tear to the event. Standard treatment in most such cases is usually surgical excision of the loose or torn meniscal tissue, more commonly known as a meniscectomy. The assumption driving the surgery is that the meniscus tear is causing the knee pain and resecting the tear will eliminate the pain. The problem with this scenario is that most meniscus tears are degenerative and there is no high quality research demonstrating that meniscectomy is an effective treatment for degenerative meniscus tears. In fact, when researchers recently studied the question they found that exercise was equally effective as meniscectomy to treat knee pain in the presence of a degenerative meniscus tear, according to results published in the British Medical Journal (“BMJ”).
In the worker’s compensation setting, the argument is often made that an industrial event extended a preexisting degenerative meniscus tear in order to justify the surgical intervention (and coverage of the procedure under a worker’s compensation insurance policy). The cost of meniscectomies to the worker’s compensation system is substantial. The medical expenses alone are significantly higher for surgery than for conservative care. In addition, meniscectomies often result in some permanent partial disability. For example, a meniscectomy in Wisconsin carries with it a 5% minimum PPD rating to the lower extremity at the level of the knee and under the AMA Guides a meniscectomy typically results in at least a 1% impairment rating. Surgery also typically necessitates a period of temporary total disability in non-sedentary workers. The findings of the BMJ study should give every employer and worker’s compensation insurer pause and an editorial advocating systemic prohibition of using arthroscopy to treat knee pain that appears in the same issue should spur change.
First, a few things about the study itself. The BMJ study is a level 1, properly designed randomized controlled trial. This is the highest category of medical studies and is considered to produce the best and most reliable evidence available. The BMJ study was conducted in Norway and was a randomized control trial with two parallel intervention groups of 70 patients per group. One group received exercise alone and the other group received partial meniscectomy alone. The participants were 35-60 year old persons of both sexes with a 2+ month history of unilateral knee pain without a major trauma but with a verified medial meniscus tear verified on MRI and no worse than grade 2 arthritic changes on x-ray. The study found that there was no difference in outcomes between the two groups at 3 months and 24 months post-intervention. The meniscectomy group reported better function and greater participation in sports and recreation at 12 months post-intervention, but the effect was gone by 24 months. The authors could “not exclude the possibility that the greater placebo effect from surgery on patient outcomes” may have “mask[ed] the ‘real’ difference in treatment between the groups,” which they postulated could explain the temporary effects observed in the meniscectomy group.
More striking even than the study findings is the accompanying editorial. The authors of the editorial call for a systemic level rule to prevent unnecessary knee arthroscopies from being performed to treat knee pain. As they note, in the last decade:
A series of rigorous trials, summarized in two recent reviews and meta-analyses, provide compelling evidence that arthroscopic knee surgery offers little benefit for most patients with knee pain. The latest nail into what should be a sealing coffin appears in a linked paper by Kise and colleagues (doi:10.1136/bmj.i3740): a rigorous comparison between exercise alone and arthroscopic partial meniscectomy alone (without any postoperative rehabilitation) in adults with degenerative meniscus tear. The authors found no between group difference in patient reported function at the two year follow-up…
The editorial authors note there has never been high quality research supporting meniscectomy in an older population with degenerative meniscus tears, but that the procedure was extended to this population based on unverified assumptions:
With no support aside from biological rationale, the indication crept from locked knees in young patients to all patients of all ages with knee pain and meniscus tears of any sort; tears which, on magnetic resonance imaging, have proved poorly associated with symptoms.
The conclusion they reach is both astonishing and harsh:
We are at the point where any careful scrutiny, by, for instance, public health administrators or officials of an insurance company, would conclude that the estimated two million arthroscopic partial meniscectomies undertaken globally each year at a cost of several billion US dollars is potentially nothing but medical waste. Because frontline practitioners and local commissioners have not responded appropriately to the evidence, it follows that system level measures that result in more appropriate use of scarce medical resources are necessary—and perhaps urgently required.
In short, the authors believe the evidence against arthroscopy to treat knee pain is so strong and the evidence for it is so weak that health systems as a whole should stop paying for these procedures. Such a rule would have a significant impact on worker’s compensation claims where meniscectomies are routinely performed to treat degenerative meniscus tears.
Choosing the right IME doctor can be challenging, especially in complex claims or those with unusual injuries. Numerous factors influence the decision-making process. However, two of the most important factors include familiarity with the injury or condition at issue and knowing the precise claims at issue. These factors are particularly important because many injuries or conditions can be treated by different specialists and it can be difficult in these cases to figure out which specialist is truly the most qualified and credible for the claim at hand. In simple terms, merely knowing the diagnosis is not enough.
For example, an orthopedic surgeon may amputate toes in a diabetic foot infection claim, but if the cause of the infection is themain issue an endocrinologist, infectious disease specialist, or podiatrist may be better able to write a detailed, credible report as to what caused the infection. The reason is simple: orthopedic surgeons do not treat diabetic foot problems unless amputation is required. The treatment of diabetes, infection risk, and diabetic foot infection management are handled by other specialists. On the other hand, if permanent impairment is the main issue then an orthopedic surgeon may well be the best expert to use because they are uniquely qualified to evaluate the effects of surgeries they perform.
A similar situation arises in the context of moderate to severe traumatic brain injury. A neurosurgeon will typically treat the initial injury, but once the condition has stabilized and requires no further surgical management care is usually transferred to a rehabilitation specialist (or more than one). Once rehabilitation and recovery are complete, care is transferred again, often to a neurologist and a psychiatrist. In addition, neuropsychologists are often involved in the rehabilitation and recovery process to assess mental functioning. If the main issue in the claim is the extent of permanency and the type and nature of future care, a neurosurgeon would be of limited value. However, if the issue is the appropriateness of care in the critical post-traumatic period, a neurosurgeon would obviously be the most qualified expert. Yet another iteration may involve questions over the extent of mental impairment, in which case a neuropsychologist would be the most qualified expert.
Facial injuries involving the eye can be difficult also. The initial treatment may involve an ophthalmologist and a plastic surgeon. Once the emergency treatment is completed, care may be transferred to a different ophthalmologist for treatment and management of long term vision issues. Severe ocular injuries can precipitate neurological issues as well, especially headaches. Sinus and nasal problems can also be present. In such complicated cases, the actual issues must be examined to assess which experts to use. For example, in a penetrating eye injury where the patient claims he cannot return to work an ophthalmologist may not be the best choice where the failure to return to work is unrelated to vision loss. In penetrating eye injuries, the loss of intraocular pressure can precipitate headaches with position changes. If the claimant was a laborer who routinely has to bend over or look up, a neurologist may very well be the best expert to assess whether the work conditions would in fact precipitate headaches that would prevent the claimant from returning to his employment. Again, knowledge of both the injury and the actual claim being made are necessary to make the best doctor choice.
Choosing the right doctor is often vexing. Making the most informed doctor choice not only requires knowledge of the type of injury or condition, but also the precise issues or claims being made in relation to the injury or condition. To make an informed doctor choice, it is important to recognize that the seemingly obvious specialist might not actually be the best choice depending on what exactly is at issue. Hence, being familiar with both the injury or condition and the precise issues involved in the claim are necessary to make the best doctor choice.
Claims for worker’s compensation benefits or personal injury damages require a health condition and a mechanism of injury that caused it. Too often the connection between the health condition complained of and the alleged injury is weak and unscientific. A large part of the problem is that we don’t perform large-double-blinded prospective studies on what occupational movements, activities, or exposures cause injuries and adverse health conditions. As a result, most medical experts have little academic literature to rely on when determining whether a particular mechanism caused a particular injury or health condition. Instead, most experts rely on their experience and training alone to evaluate causation. In so doing, most experts make logical analyses that would be considered common sense conclusions drawn from the available facts. This is problematic because what we intuitively believe to be correct based on logical analysis is often incorrect.
How do we know that our intuition is often wrong? We know because the medical literature is replete with instances in which commonsense, logical assumptions were proven wrong once they were actually tested. One example is the long-held and erroneous belief that running is bad for one’s knees. For many years, there was near consensus among medical professionals that long distance running would cause arthritic changes in the knees because of the increased load that running placed on them. Logically this makes sense because running does radically increase the load on the knees and many things respond to increased load by wearing faster. A car engine that constantly revs higher than another will wear out faster. Rapid, hard braking wears brake pads faster than gentle braking from slower speeds. The problem is that studies found that long distance running does not cause premature arthritic changes in the knees. How do we know this? Studies have been done which demonstrate that the incidence of osteoarthritis of the knee is the same in long distance runners as it is in non-runners. Commonsense logic was wrong.
The link between consuming butter and heart disease is another example of how commonsense logical analysis and intuition proved to be wrong. We know and have known for a long time that serum cholesterol (the cholesterol in our blood) is associated with a higher incidence of heart disease. What we assumed is that foods high in cholesterol would cause an increase in serum cholesterol. Why did we make this assumption? Because it is logical. We assumed that serum cholesterol had to come from somewhere and the logical source must be our diets. Unfortunately, this assumption was wrong. According to the Scientific Report of the 2015 Dietary Guidelines Advisory Committee (Advisory Report), “Available evidence shows no appreciable relationship between consumption of dietary cholesterol and serum (blood) cholesterol.” A more recent study concluded that butter had no effect on heart disease. So what does cause high cholesterol? According to Dr. Steven Nissen, Chair of Cardiovascular Medicine at the Cleveland Clinic, “Most circulating cholesterol is produced by the liver. Dietary cholesterol accounts for only about 15 to 20 percent of blood cholesterol. Changing the diet typically has only a modest effect on serum cholesterol levels.” The bottom line is that commonsense logic was wrong, again.
The challenge is how to change the way medical experts evaluate medical causation. To the extent that medical literature does exist, it would seem that developing standards consistent with sound scientific evidence is appropriate. For example, “The Twin Study” (subscription required) analyzed degenerative lumbar disc changes among twins with different environmental exposures. The study was multinational and multidisciplinary, taking place at research centers in Canada, Finland, and the United States. The study concluded that,
The once commonly held view that disc degeneration is primarily a result of aging and “wear and tear” from mechanical insults and injuries was not supported by this series of studies. Instead, disc degeneration appears to be determined in great part by genetic influences. Although environmental factors also play a role, it is not primarily through routine physical loading exposures (eg, heavy vs. light physical demands) as once suspected. (Emphasis added)
In essence, the research found that occupational exposure to lifting does not cause lumbar disc degeneration. Nevertheless, medical experts routinely attribute degenerative lumbar disc changes to wear and tear due to an occupational history of heavy lifting. Commonsense logic suggests this should be so, the actual science does not.
Many claims, however, fall outside areas in which there is clear scientific evidence. In these cases, it would seem appropriate to demand medical experts issue opinions that go beyond mere conclusion. For example, in many rotator cuff tear claims there is a significant degenerative component. Frequently the medical experts simply state that the alleged mechanism of injury caused the tear or conversely that the tear is solely related to a preexisting degenerative condition. These opinions are not particularly useful. Instead, one would like to see the medical expert offer an explanation based on how the alleged injury would impact the anatomy of a shoulder with a degenerated rotator cuff. This would ideally involve an analysis of the forces involved and how they would stress the tendon fibers that actually tear. The rotator cuff is made up of four tendons that surround the humeral head. Presumably specific forces to specific parts of the shoulder would be required to cause injury to the different tendons. If the supraspinatus is torn, which is the usual suspect, then it would be helpful to have an explanation of how the alleged injury caused the tear or conversely how the alleged injury could not have caused the tear.
So how do we get such an opinion? The simplest answer is to ask for it. Instead of simply asking whether an alleged injury caused a condition, ask for an explanation as to why the mechanism of injury was sufficient or insufficient to cause the condition, including an explanation of the anatomical forces involved. Not every medical expert will give the best answer, but at least if they are asked for an explanation one will typically be given. Also, it makes sense to ask the expert to identify support for his or her conclusion in the relevant medical literature. This way, we can inject reason into the process instead of dealing purely with assumptions and conclusions.
In many claims, the recorded statement is the first and only time a claims professional has to hear what the claimant has to say about the incident precipitating the claim without the presence of counsel. As such, it provides a unique opportunity to gather information and develop a record of sorts against which the facts of the claim can be judged. Unfortunately, recorded statements are often cursory, covering a checklist of questions without securing much in the way of detail about the incident and the claimant’s level of functioning pre- and post-incident. Part of the reason is the checklist of questions. They are often slavishly adhered to rather than used as a guide for areas that the claims professional wants the claimant to discuss. In addition, the checklist often becomes an unnecessary attentional anchor for the interviewer, causing him to interrupt the claimant and direct her answers toward staying on script. This is problematic because most of the academic literature and the most cutting edge law enforcement practices find that the best form of questioning is open-ended, allowing the person being interviewed to describe things in at most a lightly interrupted narrative form.
Wired Magazine recently published an article on the changes being implemented at the federal level and in some local police departments to the traditional mode of interrogation. The article holds insights for conducting recorded statements. Obviously the stakes are higher in capital criminal cases such as the one profiled in the article, but the lessons apply to all forms of interviewing witnesses. The author reports that a huge problem with modern interviewing is that “standard interrogation technique can be an ineffective tool for gathering lots of useful and accurate information” because many witnesses “clam up.” If the person being interviewed feels like they are being interrogated, they will offer as little information as possible. This is problematic because the purpose of a witness interview, whether of a claimant in a civil case, a suspect in a criminal case, or a third party witness in either case, is to gather as much information as possible. As the article puts it, the more a witness says, “the more that can be checked against the record.”
So how would you go about doing this? It is really quite simple. The gist “is this: If you want accurate information, be as non-accusatorial as possible.” In other words, build rapport with the witness and remember that the purpose of the interview should be “ geared … toward the pursuit of information.” Other interesting findings from current research is that asking witnesses to describe events in reverse chronological order is harder to do when they are lying. It is believed that the increased cognitive load of fabricating a story or facts makes descriptions in reverse chronological order particularly difficult. In addition, when witnesses lie or fabricate they are not able to provide the same level of detail as truth tellers. According to Steven Kleinman, who works with the High Value Detainee Interrogation Group, a joint effort between the FBI, CIA, and Pentagon, “No matter how good the cover story is, it’s not going to be as rich as a real-life story.”
The article explains how the new interrogation techniques were put to use to solve a crime in Los Angeles. In that case, a man, Gabriel Campos-Martinez, was suspected of killing his partner, but the evidence was too circumstantial to allow for charges to be brought against him. Just over two years after the crime was committed, two LA detectives again interviewed Campos-Martinez, this time using non-accusatory, rapport-building interview techniques. As a result, the suspect spent 5 hours with the detectives after telling them he only had a short time to speak with them. It seemed “almost like [the suspect] appreciated the chance to talk. As the hours went on, the conversation started to go in unpredictable directions.” He eventually revealed critical details that ultimately led to charges and his conviction for the murder. During the course of the interrogation, the suspect “started to reminisce” about walks he and his partner used to take in the area where the body was discovered, which was new information. In addition, the suspect described a plant that is used to make herbal tea but in greater quantities can be used to incapacitate, which proved crucial to his conviction.
It is possible for claims professionals to accomplish the same thing when taking recorded statements. Build rapport and let the witness talk. There will always be time for wrap-up questions to ensure that the basic identifying information makes it onto the statement. But instead of going through a checklist from the start, it might be better to ask open-ended questions that let the witness open up. Instead of asking a witness if they have hobbies, which is sort of an antiquated term anyway, ask her what does she like to do? Try having the witness start from a point away from the incident and ask them to describe what happened working backwards. Pay attention to the detail provided. The point is that people like to talk when they don’t feel like they are being interrogated. Build rapport. Don’t accuse. Get to the truth (or ferret out the lie).
We are inundated with messages about the opioid crisis in America. According to the CDC 28,000 people died due to opioid overdose in 2014, at least half of which occurred while using prescription painkillers. There is also evidence that heroin use is increasing as prescription opioids become harder to obtain. In fact, the CDC reports that prescription opioid painkiller use is strongest risk factor for heroin addiction. Those in the worker’s compensation field have seen firsthand the devastation addiction to prescription opioids can cause. In addition to the tragic human costs, cases involving long term prescription opioid painkiller use often have high economic costs that include significant lost time and failure to return to work in addition to the cost of the prescriptions themselves. And this doesn’t begin to touch on the cost that are imposed on the social safety net when long term opioid painkiller use turns into permanent disability. The bottom line is that an effective alternative to prescription opioid painkiller use in chronic pain cases would improve lives, improve society, and most importantly save lives.
The Journal of the American Medical Association (“JAMA”) recently published a report addressing whether mindfulness-based stress reduction might be that effective alternative. The report notes that the CDC recommends physicians “try nonpharmacologic and nonopioid therapies first,” before using opioid painkillers. Hence, it is becoming imperative for physicians to explore alternatives to simply prescribing painkillers. According to the report, “limited research indicates that mindfulness meditation for pain management therapy has promise.” For example, a recent study found that adding mindfulness meditation to a standard pain treatment program increased the percentage of patients who reported meaningful pain reduction from 26.6% to 44.9%. Obviously this is a significant finding. Unfortunately, there are no studies that compare mindfulness-based stress reduction directly with opioid use. The report stresses the importance of performing direct comparison, double-blinded, randomized studies to measure the effectiveness of mindfulness-based stress reduction compared to prescription opioid painkillers.
So why does mindfulness-based stress reduction appear to help at all? There are a number of reasons, but chief among them is the understanding that “pain is a complex phenomenon involving more than a direct nerve impulse from the affected tissue or limb to the somatic sensory cortex” and that “a person’s thoughts and emotions also play a role in pain perception.” This has helped physicians to focus on treatment modalities that “shift chronic pain treatment from a ‘biomedical disease model’ to a ‘patient-centered’ model focused on ‘patient engagement in daily self-management.’” The key is shift between improved quality of life versus elimination of pain, which is often impossible. This turns the patient’s attention away from pain and disability and toward behavioral and psychological interventions and techniques to improve her quality of life. In the words of a mindfulness meditation study participant, “I felt the pain was there, but I was able to let it go. I didn’t dwell on it so much.”
Whether mindfulness-based stress reduction will prove to be a substitute or an effective alternative to prescription opioid painkillers remains to be seen. Nevertheless, the growing awareness that chronic pain is different from and needs to be treated differently than acute pain is positive. The trend is moving toward interventions in chronic pain patients that focus on learning strategies to cope with their pain which in turn increases their ability to function at higher levels. And higher levels of functioning mean less catastrophizing, less disability, and ultimately, less death. A happy coincidence is that it also means a reduction in worker’s compensation costs.
Compound or compounded medications, especially those used to “treat” pain, have been on the rise in medico-legal claims for several years. Often compounded medications use ordinary and inexpensive drugs in a topical solution but cost an extraordinary amount when compared to their pill-form counterparts. A CBS News investigation examined the cost of compounded medications. One patient, Michael Picard, received a one month supply of compounded creams for pain, migraines, and scar reduction. The total cost for a 30 daily supply of the creams was $18,680. The scar gel alone cost over $12,500 and contained ordinary medications such as fluticasone proprionate (Cutivate, a corticosteroid), gabapentin (Neurontin), prilocaine HCL (a topical anesthetic), and levocetirizine dihydochloride (a third generation antihistamine). Only one medication, Freedom silomac anhydrous gel, is actually medication targeted to lessen the appearance of scars. Inclusion of anti-seizure medication (gapabentin), an antihistamine, a topical anesthetic, and a corticosteroid for scar reduction strains credulity. Charging over $12,500 for these medications in cream form simply shocks the conscience.
Before delving further into the problems of compounded medication in medico-legal claims, it helps to know a bit of background on what compounded medications are, why they were developed, and why they fall outside of the FDA’s regulatory purview. The terms “compound” or “compounded” medications refer to medications that pharmacies or pharmacists create which use nonstandard formulations of drugs tailored to individual patient needs. The original purpose for compounded medications was to provide medication in a form or formulation for patients that otherwise could not use standard formulary drugs. For example, a medication may need to be compounded for a patient who is allergic to an ingredient in the standard formulary drug or a medication might need to be produced in liquid form for a patient who cannot swallow the standard pill formulary. Compounded medications in these situations obviously make sense and serve an undoubtedly legitimate purpose. Unfortunately, compounded medications have come to be used in cases where their utility and necessity are questionable.
The FDA does not regulate compounded medications because the medications are supposed to be formulated on a patient-by-patient basis to be specifically tailored to individual needs. This means that compounded medications are not standardized. Hence, the FDA simply lacks the resources to evaluate compounded medications because there is no standard formulary to be evaluated. When the FDA evaluates a drug for approval, the testing process goes through a number of phases all of which are designed to determine that the drug is both safe and effective. This is a complicated, labor-intensive process that only works in the case of standard formularies. It would not be feasible for the FDA to test or require compounded medications to go through this process because the agency could never test all the compounded medications and the pharmacies making them would never be able to afford running the drugs through the approval process.
This lack of oversight has been exploited as an opportunity by some pharmacies and physicians as a way to increase profits by using compounded medications, for which they can charge more than if they prescribed standard formularies, without being subject to the same oversight for efficacy that would be the case if they were attempting to create a new standardized formulary drug. The medico-legal world, especially worker’s compensation, is especially vulnerable to the increasing costs of compounded medication because many worker’s compensation laws do not allow for preapproval of medical treatment, including prescription medication. In California, worker’s compensation billing for compounded medications increased from $10 million in 2006 to $145 million in 2013, an increase of 1,400%. In some cases, the temptation to reap exorbitant profits has been so great as to spawn criminal conspiracies. The prosecutor in a California case noted that “workers’ compensation insurers would be billed in ‘the $1,500 to $3,000 range’ for creams that had a resale value of about $70.” The markup prompted a sophisticated kick-back scheme in which $25 million was paid out to pharmacists, doctors, and chiropractors. The conspiracy was estimated to have resulted in $100 million overbilling to the California worker’s compensation system.
California is not alone. The U.S. Military’s health insurance plan, Tricare, paid $1.75 billion for compounded drugs during its 2015 fiscal year (subscription required). According to a Wall Street Journal, this was “18 times the amount paid three years earlier.” Certainly we are seeing increased questions about compounded medications here at Medical Systems as well. Part of the problem is the way bills are processed in many worker’s compensation cases. According to Phil Walls, chief clinical and compliance officer with myMatrixx, a pharmaceutical management company in Florida, compounded creams are common in worker’s compensation cases “because other systems – such as Medicare – have built in controls such as deductibles and preauthorizations for medications, and worker’s compensation doesn’t.” To combat the problem, Express Scripts stopped covering many of the creams because there is no evidence that they actually work. Dr. Steve Miller, Express Scripts chief medical officer told CBS News, “If you talk to almost any pain expert, they'll tell you these things are working strictly through a placebo response and not through a physiological response through the pain receptors.”
So what can be done about compounded medications and creams in worker’s compensation cases? Independent experts could be engaged early in the process to review the reasonableness and necessity of the medication early on. In addition, if the compounded creams do not result in any functional improvement, an independent evaluation may be useful. Employers and insurers that use pharmacy benefit services such as Express Scripts may have some leverage in compounded medication claims. The bottom line is that the earlier in the process that compounded medications can be dealt with, the better.
Any person who spends time in claims has run into files in which a patient with back pain has undergone “provocative discography.” The procedure involves injecting intervertebral discs suspected of causing the claimant’s pain with fluid along with “healthy control” discs. Purportedly, if the claimant feels an increase of pain in the suspected disc compared to the “control” discs, then the suspected disc is confirmed as being the cause of the claimant’s back pain. The problem is threefold. First, studies have determined that provocative discography cannot do what it is supposed to do. It cannot identify “discogenic pain.” Second, studies have definitively concluded that not only is provocative discography an ineffective diagnostic tool but also that it causes the degeneration of injected intervertebral discs to accelerate. Third, a recent study published in The Spine Journal (subscription required) found in a 10 year study that provocative discography performed on persons without back complaints actually led to back pain and surgical intervention. Healthnewsreviews.org has an outstanding piece about the study and the lack of coverage in the health news media. This is important because even today, with knowledge that provocative discography is an ineffective diagnostic tool, 70,000 procedures are performed annually in the United States. Anyone involved in medico-legal claims should read the Healthnewsreviews.org piece. Here are some of the highlights:
Experts say that provocative discography has no proven benefit for identifying symptomatic discs and has previously been shown on magnetic resonance imaging to be associated with faster degeneration of injected discs. The new study followed 75 patients who received the injections and compared them to 75 matched controls. The point of the new study was to see whether the disc degeneration seen on MRI would translate into clinically important back pain symptoms.
There was no significant history of back pain in either group when the study began. But the new 10-year data showed that there were more back pain surgeries (16 vs. 4); more frequent sciatica and back pain syndromes, and greater work loss and doctor visits for low back pain in the punctured discs compared to controls.
Such is the import of this study that an orthopedic surgeon interviewed as part of the article flat out stated:
“But readers should be aware that a trial of this sort with 10 years of follow up is very compelling evidence of discography’s potential problems,” Rickert says. “Such long term studies are rare,” he adds, and this one should tell readers: “Do not go undergo provocative discography.”
Perhaps the best summary was provided by another doctor consulted for the article. Steven Atlas, MD, MPH, told Healthnewsreviews.org:
So, not surprisingly, results are not very reliable. We also know that patients who have fusion based upon findings of provocative discography don’t do any better than individuals who have surgery but don’t undergo this test. We also know that patients can report more pain after the procedure, including pain they didn’t have before the procedure. And now we know that there are long-term risks associated with discography.
The article is worth reading in its entirety. One hopes that discography and its costs, both direct and indirect, will soon disappear from the health care landscape. In the meantime, claims professionals should expect their IME doctors on back pain cases to be familiar with the study and use it in their reports when treating physicians recommend or actually perform provocative discography and use it to diagnose the cause of back pain and the need for surgery.
Medical Systems recently held a lunch and learn at Lombardi’s Steakhouse in Appleton, Wisconsin at which hand surgery expert Jan Bax, M.D. discussed common hand injuries. During his presentation, Dr. Bax alerted attendees to a recent white paper from the American Academy of Orthopaedic Surgeons (“AAOS”) that reports a moderate level of medical evidence links computer use to the development of carpal tunnel syndrome (see p. 222). As Dr. Bax pointed out, the paper was published in the last couple of months so its ultimate effect in the worker’s compensation arena is undetermined. Nevertheless, Dr. Bax expressed concern that the paper will lead to renewed carpal tunnel syndrome claims based on repetitive computer use (keyboarding and mouse use). He noted this is especially troublesome because the hand surgery section of the AAOS considers it a settled issue that computer use does not cause carpal tunnel syndrome.
The white paper assigns levels of evidence supporting the various factors that are sometimes alleged to cause carpal tunnel syndrome. The highest level of evidence is “strong,” which requires consistent evidence from two or more high quality studies. The second highest level of evidence is “moderate,” which requires consistent evidence from two or more moderate quality studies or evidence from a single high quality study. This is the level of evidence the AAOS finds for the position that computer use causes carpal tunnel syndrome. The second lowest level of evidence is “limited,” which requires consistent evidence from two or more low quality studies, one moderate study, or insufficient/inconsistent evidence recommending for or against the diagnosis. The lowest level of evidence is “consensus,” which requires that there is no reliable evidence but rather is based on unsupported clinical opinion.
As Dr. Bax noted, finding that moderate evidence supports the link between computer use and carpal tunnel syndrome is troubling because it is actually is a high level of evidence and may sway triers of fact despite the nearly uniform position of actual hand surgery specialists that there is no such causal link. This is especially true given the findings in some of the research cited. Coggon, et al., specifically stated that there was an “absence of association with the use of computer keyboards” and noted this “is also consistent with the findings overally from other research.” The researchers concluded that “obesity and diabetes, and the physical stresses to tissues from the use of hand-held vibratory tools and repeated forceful movements of the wrist and hand, all cause impaired function of the median nerve” but that computer keyboard probably only focuses attention on symptoms without being injurious to the tissues of the wrist. Coggon, et al. seem to support a more nuanced relationship between computer keyboard use and carpal tunnel syndrome than is portrayed in the AAOS white paper. Likewise, Eleftheriou, et al. studied the link between computer keyboard use and carpal tunnel syndrome but related the following disclaimer:
One limitation is related to [the study’s] cross-sectional design which does not allow us to conclude if the association between cumulative exposure to key-board use is of causative nature. The study included workers present when the study was formed, which implies a possible selection bias as is the case in all cross-sectional studies, especially if the study population was affected by high turn-over. It’s a limitation of our study that we don’t have data on actual turn-over of the staff…Further, we didn’t control for possible confounding factors like anthropometric characteristics of the wrist…
Eleftheriou, et al. reported only “a possible association between cumulative exposure to keyboard strokes and the development of [carpal tunnel syndrome]…” They specifically noted that additional studies need to be done to verify their results and to address causality.
The AAOS white paper is a troubling development in carpal tunnel syndrome worker’s compensation cases since it potentially throws into question the settled opinion among hand surgery specialists that keyboard use does not cause carpal tunnel syndrome. As Dr. Bax noted at the recent Medical Systems lunch and learn, it is too early to tell exactly what the effects of the paper will be, though they are not likely to be positive. In the event that the AAOS white paper is cited to support work-related carpal tunnel syndrome cases among keyboard users, it will be critical to choose experts who understand and can explain the limitations of the evidence on which the paper relies. Without an expert who will vigorously question and thoroughly refute the evidence, the AAOS white paper is likely to carry more weight in keyboard-related carpal tunnel syndrome claims than it otherwise should.
It hurts. Yes it does. But what does that mean? Does it mean that I shouldn’t do it? Perhaps not. In fact, the inhibitory effects of pain can actually be deleterious to our health. Ordinarily, pain is a mechanism that helps us avoid injury, i.e. the classic nociceptive response to touching something that is hot. However, there are many cases in which pain can prevent us from doing things that are actually good for us. One such example is leg pain in peripheral artery disease.
The New York Times recently ran an article about leg pain and peripheral artery disease (“PAD”). PAD is essentially atherosclerosis in the extremities as opposed to the cardiac arteries. It causes many problems, including leg pain. Ironically, exercise is one of the recommended treatments for PAD (and the leg pain it causes), but many never pursue exercise because when a person with PAD starts exercising it causes more leg pain. Eventually, the leg pain diminishes, but the start of exercise precipitates an increase in pain. As the Times article reports, those who work through the pain generally experience both a decrease in pain and an increase in function. This is instructive for those of us involved in medico-legal claims, where complaints of pain often thwart a return to normal function.
Pain is often an intractable part of medico-legal claims. A person is involved in an accident or alleges an occupation-related condition, receives treatment (often surgery), and recovers physiologically from the injury. Unfortunately, this is not the end of the story. Instead of returning to full functionality, the person remains impaired and cites “pain” to explain the ongoing loss of function. For everyone involved in medico-legal claims, the problem of “pain” causing ongoing loss of function is incredibly frustrating. Pain does not, however, have to be an intractable problem.
The biggest hurdle to overcoming residual pain in the context of an injury claim is overcoming the normal response to nociceptive pain, which is the nervous system’s way of limiting physical harm. Think of the proverbial hand on a hot stove: the nerves send a pain message to the brain, you move your hand to avoid getting burned. Although the nociceptive response is marvelous for such acute tissue insults, it is not particularly useful for dealing with pain related to atrophy, deconditioning, or surgical changes to tissues. Nociception is not useful in this circumstances because pain is not a signal of the tissue-yielding associate with injury, but rather with the tissue-yielding necessary to rebuild strength and function that is lost with atrophy, deconditioning, and surgical changes to tissues. As everyone knows, increasing one’s activity level after periods of deconditioning results in soreness; however, everyone also knows that being sore should not prevent further workouts. If every person who lost fitness and wanted to regain it allowed pain to dictate their activity levels, few if any would ever become fit again. The same process obtains after the atrophy, deconditioning, and surgical changes that occur following injury and convalescence. Hence, it is perfectly normal for a person with an injury to experience pain with the rehabilitation that occurs after the injured or repaired tissues have healed. This pain is not injurious but instead is a normal part of the rehabilitation process.
Convincing persons with injury claims that the pain associated with atrophy, deconditioning, and surgical changes is normal during rehabilitation can be challenging but it is not impossible. A large part of the challenge lies in overcoming the natural human tendency to conserve energy. Put simply, basic survival requires that all living organisms (including humans) expend less energy than they take in. For contemporary Americans this is problematic because we do not have to expend much energy to meet our basic survival needs and we have access to a surfeit of relatively cheap calories. In other words, the contemporary American economy makes it easy for most Americans to be sedentary. If a person is accustomed to being sedentary, she already exists in a deconditioned state. Whether or not she intentionally avoids activity-related soreness matters little because she doesn’t experience it either way. Absent injury, she can maintain an inactive lifestyle and will, as we normally do, avoid doing things that cause pain. This state of deconditioning and pain avoidance, which are normal consequences of being human in much of America today, predisposes persons to have problems when rehabilitating an injury.
As noted above, the problem can be solved. First, treating practitioners should explain from the earliest opportunity that recovery requires effort and the effort itself with hurt. It is absolutely critical that injured persons understand recovery requires hard work and is almost always painful. Fair or not, this is normal and injured persons should expect it. Second, treating practitioners ought to have frank discussions about the role deconditioning will play in their injured patients’ recoveries. Doing so is not paternalistic, it is instead being honest. It is also critical in an era in which healthcare practitioners are increasingly being judged by patient outcomes. For example, being 50 pounds overweight will make recovery from an ACL tear harder because the rehabilitation will be physically taxing to many uninjured parts of the injured person’s body. Rehabilitation will tax the person’s cardiovascular system and the uninjured joints of the person’s back, hips, opposite knee, and ankles. Being deconditioned means rehabilitation will hurt more and be more difficult. Injured persons need to understand this going into rehabilitation.
Merely knowing pain will be part of rehabilitation is necessary but not sufficient to overcome the inhibitory effects of pain. Healthcare providers should demand that injured persons who undergo treatment demonstrate the ability to differentiate between pain associated with acute injury or harm and pain associated with rehabilitation, i.e. pain associated with increasing fitness. Surely knowledgeable physical therapists and other rehabilitation specialists should be able to demonstrate the difference in addition to explaining it. Healthcare providers should also demand that patients acknowledge that recovery from injury requires determination and that patients pledge to give full effort, even when experiencing the normal pain or discomfort associated with rehabilitation. Obviously there are limits to the binding effects of such a pledge, but it would help to put injured patients into the right mindset to tackle rehabilitation effectively and with full effort. Patients could also be told that their ability to receive rehabilitation services will depend on the effort level they give in therapy and in performing all recommended home exercises. This could easily be measured with periodic functional testing such as range of motion measurement, strength testing, and endurance testing. This would be no different than a spine surgeon refusing to perform a fusion on patients with a history of smoking until the patients can demonstrate that they have stopped smoking.
Obviously there are other issues that impact a medico-legal claimant’s ability to deal with residual pain from the claimed accident or occupational exposure. Dealing with all of these aspects would require more space and time than this blog allows. For example, everyone acknowledges that psychosocial factors play a large role in many claimants’ recoveries. In addition, motivation to return to work or full functionality plays a similarly large role. Nevertheless, the healthcare profession can do much to educate claimants on the difference between pain that signals injury and pain that signals recovery. As in peripheral artery disease patients who start to exercise, patients rehabilitating from an injury are almost certain to experience pain during rehabilitation. It is critical that the therapists and other healthcare providers involved in the rehabilitation process do everything in their power to prevent patients from giving anything less than full effort due to non-injurious and amorphous complaints of “pain.” Doing so will set claimant-patients on the right track to recovery and will help get them out of the mindset that pain justifies inactivity. Like the peripheral artery disease patients, claimants who get past the initial pain will find their condition to be much improved. And that is what everyone in medico-legal claims really wants.
Last week psychiatrist Jeffrey Zigun, M.D. and psychologist Brad Grunert, Ph.D. spoke at Medical Systems’ 2016 Advanced Medical Topics in Civil Litigation Symposium on mild traumatic brain injury. Three topics came up repeatedly during the individual experts’ presentations and in the follow-up panel discussion:
The answers to the first two of the three issues are surprisingly simple, while the answer to the third is, or at least can be, much more complicated.
With respect to the question of whether mild traumatic brain injuries can get worse over time, the simple answer according to the experts is “no.” Both Dr. Zigun and Dr. Grunert were clear in their statement that recovery from mild traumatic brain injury follows a predictable recovery. The physical injury to the brain itself reaches maximum medical improvement within a year and all expected improvements in functioning occur within two years of the injury. This is significant because a number of participants in the seminar reported scenarios in which a claimant/plaintiff experienced a precipitous decrease in functioning 12, 18, or even 24+ months after the initial injury. In at least some cases, the decrease in functioning was measured on neuropsychiatric testing and was deemed not to be malingering. Both Dr. Zigun and Dr. Grunert were clear in their presentations and in the panel discussions that such a decrease in functioning would not be due to an underlying mild traumatic brain injury, even if the injury were permanent. Brain injuries get better over time; they don’t yo-yo up and down or suddenly get worse after a period of improvement. Unfortunately, a decrease in functioning after a period of improvement can still be related to the accident. More on this later.
One of the more interesting aspects of the symposium was the discussions about the role of intelligence in recovery from a mild traumatic brain injury. The experts both stressed that intelligence is enormously important in assessing how individuals will recover from permanent mild traumatic brain injury. The reason is that those with more intelligence have more to lose before the loss of function becomes a significant impairment. The example Dr. Grunert used was an academic researcher: she may have some memory impairment following a mild traumatic brain injury, but it may only mean that she has to look up citations she previously had memorized. This will obviously add some time to her research, but it will not impair the quality of the research itself or her ability to write. On the other hand, a factory worker who has to follow a specific procedure when operating a dangerous machine will have no margin for error. If her memory was on the lower end of average to begin with, losing any amount of memory function could cause her to be unable to follow the specific procedure when operating machinery. Since there is no margin of error, the factory worker’s memory impairment would cost her the ability to do her job. Hence, one point both Dr. Zigun and Dr. Grunert made was that impairment following mild traumatic brain injury is often different for persons of high intelligence than it is for persons of lower intelligence.
The trickiest question the experts dealt with is how to determine the fact of a traumatic brain injury. In many cases a person hits their head and the symptoms of concussion are obvious. These might include brief loss of consciousness, dizziness, retrograde and/or anterograde amnesia, headache, wooziness, etc. In other cases the fact of injury might be less obvious. Perhaps the person did not strike their head in a motor vehicle crash, but reported some symptoms consistent with mild traumatic brain injury. Further complicating matters are cases where there is a preexisting history of psychological problems such as depression, anxiety, or other psychological diagnoses. In all cases, Dr. Zigun and Dr. Grunert stressed the importance of early neuropsychological testing. Dr. Grunert noted that neuropsychological testing has a high degree of reliability and specificity. In addition, neuropsychological testing is good at ferreting out malingering from legitimate claims. Early testing also establishes a baseline from which test results should not decline in mild traumatic brain injury.
As the experts and the audience discussed, often the fact of injury is not an issue at the beginning of a claim, though. Instead, the fact of injury becomes an issue after a year or more. Usually, this seems to occur as a result of a decline in functioning, whether supported through neuropsychiatric testing or not. As the experts agreed, simply because a person declines in functioning after a mild traumatic brain injury should have stabilized does not mean that they are not continuing to suffer from a permanent brain injury or that the decline in function is not legitimate or related to the accident. Both Dr. Zigun and Dr. Grunert agreed that a decline in functioning a year or more after a mild traumatic brain injury only means that the brain injury itself is probably not responsible for the decline in functioning. Instead, they pointed to psychological conditions as often being the culprit.
When the audience heard this, many persons wanted to know if the psychological conditions would be related to the accident, especially if there was a preexisting history. As Dr. Zigun noted numerous times, it depends. For example, Dr. Zigun addressed the simple fact that many of the drugs used to treat psychological conditions also have positive effects on the sequelae from traumatic brain injury. Take SSRIs, commonly used to treat depression. Dr. Zigun pointed out that one symptom of depression is memory impairment, which is also a symptom of mild traumatic brain injury. SSRIs help alleviate memory impairment in both depression and mild traumatic brain injury. Dr. Zigun noted that if a person is diagnosed with mild traumatic brain injury, they may very well end up on an SSRI. Once the brain injury stabilizes, the person may be weaned off the SSRI. However, if the person has simultaneously developed depression, weaning her from the SSRI may cause a decrease in functioning related to the depression, including worsening memory impairment. Both experts agreed that the decrease in functioning in such a case could be legitimate but that it would not be related to the mild traumatic brain injury.
How, then, can we determine if a decline in functioning relates to the accident? The answer, unfortunately, is not clear cut. The experts stressed that to evaluate whether a decline in functioning, once determined to be legitimate and not malingering, relates to an accident, the analysis essentially looks to the totality of the circumstances to attempt to parse out the causal factors. The case a number of audience members brought up was the situation in which there is a preexisting history of a psychological condition such as depression which is determined to be the reason for the post-accident decline in functioning. Dr. Zigun and Dr. Grunert agreed that it is exceptionally difficult to determine whether the development of a psychological condition is accident-related. They noted that many factors could cause the onset of depression episode that would be related to the accident. For example, if the mild traumatic brain injury caused a memory impairment that prevents the injured person from returning to work, it would not be unusual for the person to develop depression. The depression would not be caused by the brain injury itself, but rather would be the result of the job loss, which resulted from the brain injury. On the other hand, if the injured person has recovered well and is coping with any residual impairments from the brain injury, the depression is likely to be independent of the brain injury. The bottom line is that declines in psychological functioning in the context of a permanent mild traumatic brain injuries present challenging cases for experts in which causation can only be determined by assessing the totality of the circumstances.
Mild traumatic brain injuries can present vexing cases for claims professionals. As Dr. Zigun and Dr. Grunert discussed, mild traumatic brain injuries can be diagnosed and treated effectively, even in the case of concomitant psychological conditions. We are grateful for their participation in Medical Systems’ 2016 Advanced Medical Topics in Civil Litigation Symposium and for the many insights they shared with our audience.
On February 29, 2016 Governor Walker signed the agreed upon worker’s compensation bill. Of particular importance to the IME process is a provision (Wis. Stats. §102.175(3)) that requires all healthcare providers, whether treating providers or independent evaluators, to apportion permanency in accidental injury cases between permanent disability that the injury caused and permanent disability caused by other factors, whether pre- or post-injury. Wis. Stats. §102.175(3)(b) states:
A physician, podiatrist, surgeon, psychologist, or chiropractor who prepares a certified report under s. 102.17(1)(d). relating to a claim for compensation for an accidental injury causing permanent disability that was sustained in the course of employment with the employer against who compensation is claimed SHALL address in the report the issue of causation of the disability and SHALL include in the report an opinion as to the percentage of disability that was caused by other factors, including occupational exposure with the same employer, whether occurring before or after the time of injury. (Emphasis added)
The statute does not apply to occupational injuries and specifically holds the employer responsible for “previous permanent disability… attributable to occupational exposure with the same employer.” Wis. Stats. §102.175(3)(a). The statute does, however, require injured workers, at the request of the employer, to “disclose all previous findings of disability or other impairments that are relevant to that injury.” Wis. Stats. §102.175(3)(c). This should help make the implementation of the provision more effective.
The new statutory provision requires all independent medical examiners to apportion permanent disability (when the expert concludes the injury resulted in permanent disability) in accidental injury claims. The effective date of the statute is March 2, 2016. Medical Systems is working with our experts to ensure that their opinions comply with the new statutory provision and apportion permanency when applicable starting March 2, 2016.
Pain. We all experience it, but what is pain? Certainly pain has a nociceptive component, meaning when we experience injury our nerves send a message to our brain that results in the state of awareness that may be best characterized by the word “ouch.” This is the type of pain that seems best controlled with traditional analgesics such as prescription opioids. Pain may also be neuropathic, meaning it is not the resulted of an injured tissue sending a classic pain signal to the brain but rather is the result of a damaged nerve that is sending abnormal signals to the brain due to the injured state of the nerve itself. This is why persons with neuropathic pain experience paresthesia and hyperesthesia rather than the typical stabbing or aching pain that would associated with physical injury to a muscle, bone, or joint. Chronic pain also differs from neuropathic and nociceptive pain in that it appears to be a learned cognitive response to a patho-anatomic abnormality that may or may not be causing actual nociceptive pain. Further complicating the range of pain that we experience is psychological pain; that is the somatization of psychological distress.
A new Psychological Science study (subscription required) throws a new wrench into the pain picture: persons in financial distress who are also in pain feel higher levels of pain than those are not experiencing economic distress. According to the study,
The link between economic insecurity and physical pain emerged when people experienced the insecurity personally (unemployment), when they were in an insecure context (they were informed that their state had a relatively high level of unemployment), and when they contemplated past and future economic insecurity.
Interestingly, the authors concluded that “the psychological experience of lacking control helped generate the causal link from economic insecurity to physical pain.” This offers some hope that addressing the feeling of lacking control could help to lower the perceived experience of pain.
In the claims context, the experience of pain is a major cost-driver. Persons who experience pain will continue to seek treatment for injuries that have otherwise resolved or stabilized. In addition, persons who experience pain often miss time from work and have other disability-related costs. What complicates the apparent relationship of economic insecurity and pain in the claims context is that persons with claims often experience economic insecurity related to the claimed injuries. For example, an employee suffers a work-related knee injury and has to miss time from work. Even a conceded claim can cause financial distress as compensation benefits are paid out at 2/3 of average weekly wage and the injury may force the employee to miss overtime they expected to work. Matters get worse when a claimant is cut off from benefits but claims ongoing injury and an inability to return to work. In many such cases, claimants lack the savings or other sources of income replacement to weather the economic storm.
The problem from a claims perspective is that the economic situation of the claimant is outside the purview of the claim. For example, if a claimant alleges a work-related low back injury and the insurer questions whether the condition is in fact related to the employment, the insurer will have the claimant undergo an independent medical examination. If the independent medical expert concludes that the claimant’s condition is not related to her employment, the insurer will stop paying benefits to the claimant. At the same time, if the claimant is under work restrictions from her treating physician, she will not be able to return to work. As a result, she will lose her temporary total disability benefits while simultaneously having no recourse to income from her employment. If the Psychological Science study tells us anything, it is that losing temporary total disability benefits without other sources of income or income replacement will likely make the claimant’s physical condition worse. This can be a particularly fraught situation if the claimant is suffering from a degenerative condition that would wax and wane in severity even without economic distress. The study suggests that such a condition could be appreciated as being significantly worse in a claimant who is in economic distress. From a cost perspective, this is a problem because it will almost certainly lead the treating physician to conclude that conservative therapy failed to treat the condition. Concluding that conservative therapy failed often leads to a referral to a surgeon or the recommendation of surgery. All of a sudden, a condition that should be manageable with periodic noninvasive treatment and over-the-counter analgesics, becomes an intractable problem for which surgery is seen as the only option. And surgery is expensive.
If a claim reaches this point, it may be fairly stated that the reason conservative therapy failed and that surgery is being proposes is not due to the condition itself, but rather to the claimant’s financial distress which renders a normally tolerable condition into an intolerable one. The claimant’s financial distress is obviously related to the claim, but is not something over which the claims professional has control. The claims professional is not obliged to follow the recommendations of the IME doctor, but it would be highly unusual for a claims professional to continue to award benefits when she does not have to. The claims professional is not responsible for the claimant beyond the four corners of the claim. Except the decisions of the claims professional within the claim can have, as the study shows, consequences outside the four corners of the claim that can seep back into the claim. As such, it seems prudent for claims handlers to be aware, even if they have little control or choice, that the decision to deny benefits to a claimant can have the perverse effect of making the claim worse (from a cost perspective) than it would otherwise have been. At least then it will not be a surprise when the person with ordinary degenerative disc disease ends up with a fusion, failed back syndrome, and a claim for permanent total disability benefits.
When we think of traumatic brain injury, we typically think of symptoms primarily related to cognition and executive function. Hence, we expect to see memory deficits, difficulty concentrating, and difficulty regulating emotions. We associate the brain with thinking so we often focus on the symptoms related to thinking despite the fact that traumatic brain injury can cause a host of physical symptoms as well.
One of the most troubling physical symptoms is the potential for traumatic brain injury to disrupt the body’s circadian rhythm, or its normal sleeping/waking cycle. According to a 2012 Public Library of Science study, traumatic brain injury, “disrupts the oscillatory expression pattern of several circadian clock and clock-associated genes” in the areas of the brain primarily responsible for regulating the sleep/wake cycle (the suprachiasmic nuclie, or SCN, and hippocampus). In short, traumatic brain injury interferes with our ability to sleep normally. Interestingly, this sleep-impairing aspect of traumatic brain injury has effects on our cognition:
Since the hippocampus mediates learning, memory and cognition, and diurnal regulation by the SCN is essential for proper hippocampal function, disruption of the oscillatory gene expression patterns in these two brain areas seems likely to play a role in the long-term cognitive effects of TBI.
In short, if you don’t sleep normally you don’t think normally. This is problematic for other reasons also since sleep disruption is known to increase the likelihood of developing depression, bipolar disorder, diabetes, hypertension, and metabolic disorders.
The wide-ranging and myriad effects of traumatic brain injury make it essential to obtain an accurate diagnosis early in the process to ensure that the best available treatment is offered. While at least 80% of persons with mild traumatic brain injury will experience a complete recovery, there is small but nontrivial subset of patients whose symptoms will persist as chronic problems. If we are going to administer traumatic brain injury claims effectively, it is imperative that we understand many of the effects from traumatic brain injury are not primarily cognitive in nature but rather are physical.
To learn more about how the physical, cognitive, and psychological aspects of traumatic brain injury relate, check out Medical Systems’ 2016 Advanced Medical Topics in Civil Litigation Symposium on April 7, 2016.
There are certain medical procedures that are so common in worker’s compensation that we don’t give them a second thought. Partial meniscectomy is among them. Most people assume that an employee with a torn meniscus who is experiencing catching and locking in their knee should have a partial meniscectomy to treat the symptoms, regardless of whether we think the meniscus tear is work-related. Turns out that our assumption might be wrong.
The Annals of Internal Medicine published results from a study (subscription required) which found that arthroscopic partial meniscectomy is ineffective for relieving catching and locking symptoms in the knee. The study was conducted on a group of patients with medial knee pain who had confirmed meniscus tears without evidence of arthritis. The participants in the study were randomly assigned to either the treatment group, which received the partial meniscectomy, or a control group, who received a sham arthroscopy. Participants were not aware of which group they were in to control possible bias.
The results of the study were surprising because in every reported measure, the patients undergoing the sham procedure reported fewer mechanical symptoms post-surgery. The most impressive results were among those patients reporting that they were symptom free following the procedure. Among this group, only 28% of the participants undergoing the actual partial meniscectomy reported being symptom-free while 41% of the participants who underwent the sham procedure reported being symptom-free. The study’s authors were quick to note, however, that trauma-related meniscus tears causing mechanical symptoms in persons under 35 do respond well to partial meniscectomy. On the other hand, they pointed out that “in a degenerative knee, seemingly similar symptoms may not even be caused by the meniscal tear - more likely they are a reflection of the overall deterioration of the knee and prone to increase as arthritis develops further.”
In the worker’s compensation context, the dispute is typically whether a meniscus tear is traumatic or degenerative. Regardless, the ineffectiveness and the possibility that the symptoms might be “a reflection of the overall deterioration of the knee and prone to increase as arthritis develops further” is a good reason to tread cautiously when an employee is diagnosed with a meniscus tear. If the employee’s meniscus tear is degenerative in nature, there is a strong likelihood that a partial meniscectomy will have a temporary benefit at best and in the long run will not ameliorate or slow the progression of degenerative arthritis. Hence, a meniscus tear in an older worker that is deemed to be work-related is highly likely to become an arthritic knee that will need to be replaced. And despite the fact that it is bad medicine and bad science, the arthritis is likely to be blamed on the meniscus tear even though the arthritis was probably the problem in the first place. Hence, it behooves every claims professional to take a serious look at meniscus claims and to defend them vigorously now that we know the proposed surgery may very well not work and may very well lead to additional (more costly) claims.
A Journal of the Royal Society of Medicine article analyzed paintings of Michelangelo and concluded that the famous artist suffered from degenerative arthritis. In related news, Michelangelo’s estate filed a claim against the Vatican in Wisconsin for TTD and PPD benefits, alleging the arthritis was due to repetitive trauma from the many painting and sculpture commissions the artist received from the Roman Catholic Church during his life. Regarding the reason for filing in Wisconsin, lawyers for the estate said “We’re pretty sure the Wisconsin statute of limitations on this one hasn’t expired yet.” As to whether Wisconsin is an appropriate venue, the lawyers noted “We’ll figure out a way to keep it here. The Milwaukee Art Museum holds a Michelangelo sketch, Studies of the Medici Madonna. We think that will be enough.”
Biting my truant pen, beating myself for spite, “Fool,” said my Muse to me, “look in thy heart, and write.”
-Sir Philip Sydney
The advent of word processing began to change the way we write. The coordination of word processing software with internet search engines, web browsers, and websites has, in some ways, transformed writing. The chief manner in which digital coordination has done so is through the immediate access to sources of information that can be copied and pasted or linked to in written texts. Gone are the days (for most of us) when writing was a monastic experience typified by time spent holed up in a library or an office with sheets of paper and source material strewn across a table top or desk while a piece was constructed by actually putting pen to paper. Owing to the difficulty of altering a piece of writing once it was started, the writer needed to have a clear idea as to what she was going to write before putting pen to paper. A writer composing on a typewriter faced the same challenges.
Writing no longer need be a monastic experience: any place with an electric outlet and a Wi-Fi connection with do. In addition, writing can be more ad hoc and free-flowing because digital text is easily and endlessly emendable and source material is instantly available from anywhere. Copy and paste is always there to add information to any piece of writing. There are obvious benefits to the technological change that makes this type of writing possible: writing is more accessible to more people, research is (usually) easier, and the process of writing feels less daunting as matters of both dedication and cognitive load. However, the technological changes have detriments as well. Much writing is less polished because it is produced so rapidly. Much writing also seems less thoughtful and more reactive. Interestingly, the technological changes have seen a concomitant rise in plagiarism which may be due in part to the way in which writing is composed and source materials are integrated, i.e. by copying and pasting.
Often technological change is cast in binary terms as an either/or proposition: either technological change is good and must be embraced in its entirety or technological change is bad and must be rejected in its entirety. This is unfortunate because technological change is almost never a binary erasure of past forms. Neither is life generally an either/or proposition (whatever certain Danish existentialists may say to the contrary). Rather, technologies coexist as does our ability to use them. One way to improve writing in the current technological milieu is to incorporate older methods of composition into the way we write. In short, we are likely to become more careful and polished writers if we compose at least a portion of what we write using pen and paper.
Handwriting has several advantages over composing at a keyboard. First, there is evidence that writing by hand “may trigger more sophisticated processing: the relative slowness of handwriting seems to promote ‘mental lifting’, a process of comprehending, mulling and digesting ideas…” Second, writing by hand is generally less distracting because the page is not part of a gadget. It is easier to think deeply about a subject when one is not bombarded by pings and notices (or is even working on a device that is tantalizingly close to all them). Third, there is anecdotal evidence that students who wrote responses to questions by hand “produced better writing than those who typed them.”
It must be said that no reasonable person would advocate drafting all communication by hand. This would be stultifying, inefficient, and foolish. Nevertheless, if handwriting can be integrated into some forms of written communications, the benefits to the overall quality of one’s writings will outweigh any minor efficiency costs. Also, to the extent that writing a portion of one’s communications by hand improves the quality and clarity of one’s communication in general, handwriting can actually serve to make one more efficient in the aggregate.
To take advantage of handwriting’s benefits, one should look to communications that by their nature require more time, thought, and coherent organization. A cover letter is a good example. It is easy to copy and paste from records and prior correspondence to cobble a cover letter together quickly; however, the end result will often be disjointed, inconsistent, and confusing. Composing the first draft by hand will force the writer to organize the letter thoughtfully and to stay consistent in the presentation of the relevant facts and in the questions to be answered. Not every cover letter will lend itself to being written by hand, but some do and taking the time to create the first draft by hand will help produce a better cover letter and will help the writer to become a more effective communicator. And more effective communications get the best results.
Pain is a problem that is frequently treated with painkillers. As we are all aware, this has led to a significant problem with addiction to and overdose from opioid painkillers in this country. The reasons for the crisis in prescription opioid addiction and overdose are myriad and have been discussed extensively here and elsewhere. This post is not about the problem, but instead about an opportunity to address it.
The NY Times recently posted an article about the potential to harness the placebo effect to help treat pain which offers an intriguing possibility in the struggle to treat pain without causing addiction and overdose. As Jo Marchant reports, “even when we take a real painkiller, a big chunk of the effect is delivered not by any direct chemical action, but by our expectation that that drug will work. Studies show that widely used painkillers like morphine, buprenorphine and tramadol are markedly less effective if we don’t know we’re taking them.” In fact, placebo effects are so powerful “that drug manufacturers are finding it hard to beat them.” Hence, Marchant suggests that more research should be done to figure out if “prescription” placebos could be used to treat pain.
Marchant recognizes the difficulty with placebos: namely that the effect is generally observed in clinical trials where individuals don’t know if they are getting the active drug or a placebo. In controlled studies, patients expect they will receive a drug that will improve their condition even though they know they might in fact get a placebo. This, as Marchant notes, appears to be a key component of the placebo effect: “[t]he greater our belief that a treatment will work, the better we’ll respond.” There have, however, been studies in which patients knowingly taking placebos still reported statistically significant improvement in their reported level of pain. This leads Marchant to ask the eminently reasonable question, “[w]ith placebo responses in pain so high – and the risks of drugs so severe – why not prescribe a course of ‘honest’ placebos for those who wish to try it, before proceeding, if necessary, to an active drug?”
Pain is ubiquitous in our society and, when chronic, often proves disabling. We know from experience that prescribing opioid painkillers is not the answer to the problem of pain. Perhaps it is time for those of us in the medico-legal world to use whatever muscle we have and advocate for change. A good place to start would be the use of “honest” placebos to treat pain.
Worker’s compensation claims involving chronic pain are typically difficult and expensive to administer. We know that simply putting a person on prescription painkillers doesn’t work, yet that is often the treatment claimants end up on. In these cases, the end result is usually an employee who doesn’t return to work and ends up filing a long term disability or SSDI claim. Either way, the result is not good for the employee, the employer, or the worker’s compensation insurance carrier.
Fortunately, the medical research community is tackling the issue head-on. As a result, the medical community is making some exciting strides in understanding how chronic pain works and, accordingly, what treatments are likely to be the most effective. Researchers at Northwestern University Feinberg School of Medicine reported on one such stride. In an animal study, researchers discovered that chronic pain looks a lot like addiction in the brain. As one author put it, “chronic pain actually rewires the part of the brain controlling whether you feel happy or sad.” In other words, "The study shows you can think of chronic pain as the brain getting addicted to pain," said another author. "The brain circuit that has to do with addiction has gotten involved in the pain process itself."
With this knowledge, the study combined a Parkinson’s drug and an NSAID that target the brain area chronic pain affects. Remarkably, the combined drugs “completely eliminate chronic pain behavior when administered to rodents with chronic pain.” Yes, you read that right: the drugs completely eliminate chronic pain in rodents. Unfortunately, the study involved rodents. Still, the authors are optimist that the effect will translate to humans and have already begun designing human trials.
This development bears following. As those of us in the worker’s compensation world know, chronic pain is debilitating and expensive. Also, it often devolves into chronic use of opioid pain medication that has deleterious psycho-social effects and almost guarantees injured workers will develop a disability mindset. Any new treatment that can stop the downward spiral often associated with chronic pain claims would be a remarkable development.
Most of us have New Year’s resolutions and most of us follow them for a couple of weeks or even a month. Many of the abandoned resolutions focus on improving our health. Usually the reason we abandon the resolutions is that they require us to change our daily routines and habits too much. This is unfortunate because if we, as a nation, improved our health even modestly the results would be enormous. For example, the CDC reports that “the estimated annual medical cost of obesity in the U.S. was $147 billion in 2008 U.S. dollars.” Reducing the obesity rate by 25% would produce a $37 billion savings. This is not small change.
Employers would benefit greatly if Americans became healthier. After all, employers provide the lion’s share of health insurance benefits and bear the brunt of our unhealthy habits in the form of workplace absence, reduced productivity, and disability-related costs. But what can employers do if most of us can’t keep the promises we make to ourselves to become healthier?
According to a new study, employers probably can do more than they think. Medical News Today reported on a recent study presented at the American Heart Association Scientific Sessions 2015 which found that just three minutes of light exercise every 30 minutes has significant blood pressure-lowering effects in overweight and obese persons with Type 2 diabetes. Bronwyn Kingwell, PhD, one of the study’s coauthors noted that "It appears you don't have to do very much. We saw some marked blood pressure reductions over trial days when people did the equivalent of walking to the water cooler or some simple body-weight movements on the spot." This is where employers can make a difference: develop policies that encourage employees to get up and move. As Kingwell notes, even movements done at a person’s workstation have blood-pressure-lowering effects. And the effects of lowering blood pressure are profound both in direct medical costs and indirect employment costs. So dump the resolutions and get your employees to move. Even 3 minutes helps.
Geography determines many things. It should not, however, determine how likely you are to survive cardiac arrest. Unfortunately, geography does just that. According to a New York Times article, persons suffering out-of-hospital cardiac arrest treated by emergency medical service (“EMS”) providers in Seattle have a 19.9% survival rate while persons in Detroit have only a 3% survival rate. It appears that the wide variation in survival rates is due primarily to the quality of the training EMS providers receive and to “spreading awareness that cardiac arrest is a treatable condition, so citizens are quick to perform bystander CPR.”
Survival rates vary widely even for hospitalized patients treated for cardiac arrest. For example, CPR should be attempted for a minimum of 45 minutes but is usually only performed for 15-20 minutes in clinical settings. In addition, clinicians often fail to use more powerful interventions available to them such as extra corporeal membrane oxygenation, in which a patient’s blood is artificially oxygenated. According to one expert interviewed for the article, extra corporeal membrane oxygenation is more common in Japan and South Korea where “they routinely bring people back to life who would remain dead here.” Unfortunately, even in hospitals “it’s a lottery of what you will get” that largely “depend[s] on which doctor happens to receive you, since none of these treatments are regulated.”
It is tragic that 17 out of every hundred people who could survive out-of-hospital cardiac arrest will not simply because they live in Detroit. While cardiac arrest is not a medico-legal issue of the sort we normally address here, it is a human issue. And at this time of year, many of us ask ourselves what we can do to help our fellow human beings. Taking a CPR course that teaches up-to-date techniques is one place to start. Another place is to spread awareness that out-of-hospital cardiac arrest is treatable with immediate bystander CPR. As the article notes, “if Seattle’s innovations could be implemented nationwide for out-of-hospital cardiac arrests…as many as 30,000 lives annually could be saved.” That is a gift worth giving.
Mild traumatic brain injury claims may well be the most vexing for claims professionals. They usually involve comparatively minor incidents for which little objective testing exists and they are frequently entangled with psychological co-morbidities which further complicate matters. In addition, the chief method to diagnose and assess mild traumatic brain injury involves subjective reports and evaluations of cognitive symptoms and functioning, making these claims particularly susceptible to exaggeration, malingering, and fraud.
The mild traumatic brain injury paradox is that those who are often at greatest risk of reinjury are often the most eager to return to the risky activity while those with the lowest risk of reinjury are most concerned about returning even to the activities of everyday life. Hence, the competitive athlete will mask symptoms in an effort to return to the playing field as quickly as possible while the truck driver who pulled an overhead trailer door onto his head may complain of cognitive symptoms for weeks or even months to avoid returning to work. The subjective nature of diagnosis and assessment makes it difficult for medical professionals to know when the athlete is not ready to return to competitive play and simultaneously when the truck driver is ready to return to work.
Unfortunately, recent research muddies the water and makes the development of an objective test for traumatic brain injury all the more important. In a study presented to the American Radiological Society, researchers from the Medical College of Wisconsin found that persons suffering from mild traumatic brain injuries demonstrated neuropathology on MRI scans days after their cognitive functioning returned to baseline. This is a potential problem because it is generally accepted that injured neurons subjected to a second trauma before they are healed are at risk of significant and permanent injury; further, the traditional mechanism for assessing when a mild traumatic brain injury has resolved is a subjective assessment that the injured person’s cognitive functioning has returned to baseline.
And as noted above, those who are most eager to return to the activity that caused the mild traumatic brain injury are often the most susceptible to suffering another head injury. If they return before they are fully healed from the first injury, the second injury could have devastating effects. This further exemplifies why it is so critical to develop a reliable and rapid objective test to assess the presence of mild traumatic brain injury. As an added bonus, a reliable and rapid objective test would have the felicitous effect of being able to catch those trying to use a mild traumatic brain injury to stay out of work or to collect a financial windfall in a personal injury action.
Sometimes the old adage rings true and you do get what you pay for. Other times, it does not. According to the American College of Physicians, the adage does not ring true for prescription medications. Medical News Today reports on a recent meta-analysis from the American College of Physicians Clinical Guidelines Committee which concluded that “the majority of peer-reviewed studies found that generic equivalents to brand-name drugs produced similar clinical outcomes.” In addition, the report’s authors found that patients adhered to their prescriptions better when receiving generics because of their lower costs, noting that “prescriptions for branded medications are almost twice as likely to go uncollected after being filled than generic medications.” Further, the cost of choosing branded medications over generics is significant. Substituting generic prescription drugs for brand name ones “combined with therapeutic interchange” would save $1.4 billion just among Medicare beneficiaries with diabetes.
Health insurers and employers bear a huge amount of the unnecessary direct costs of prescribing brand name drugs instead of generic equivalents. They also bear many of the indirect costs when an insured/employee doesn’t fill a brand name prescription due to lost time and increased medical intervention costs when the condition for with the brand name prescription was written is not controlled. Thus, health insurers and employers should staunchly advocate that physicians receiving reimbursement from group health or worker’s compensation plans prescribe the lowest cost drug or therapeutic equivalence rather than a brand name drug that adds no therapeutic value. They should also aggressively educate employees so they understand that with many prescription drugs you do not, in fact, get what you pay for.
Researchers have developed a blood test that holds promise to detect traumatic brain injury with greater sensitivity than even CT scans, according to this report from Medical News Today. Equally significant, the blood test appears also to be able to measure the severity of the traumatic brain injury accurately. The test measures glial fibrillary acidic protein (GFAP), which is released when the brain suffers an injury. Although the test was performed on children, researchers note that it is likely to be equally valid for adults.
A blood test with sensitivity on par or better than a CT scan would be an improvement in diagnosis for at least a couple reasons. First, CT scans use x-ray radiation, and any ability to reduce the amount of radiation to which we are exposed is a good thing, especially in children. Second, portable detection devices similar to blood sugar monitors persons with diabetes use could be developed for the brain injury-measuring blood test. A portable detection device would be a boon to monitoring traumatic brain injury in sports like football or hockey. It would also be enormously useful to measure brain injury in the workplace. Third, a blood test would provide an objective means to diagnose traumatic brain injury with considerably greater sensitivity and ease than current concussion/traumatic brain injury protocols which rely chiefly on subjective interpretation of spoken or computer-based cognitive tests.
We recently wrote about how stunningly ineffective opioid pain medications are at treating chronic pain in women. A new study provides a perfect example of why prescribing opioids to treat chronic pain in women is a bad idea. Researchers at McMaster University in Ontario, Canada found that 52% of women treated at a methadone maintenance clinic for opioid dependency developed their addiction while taking prescription painkillers, according to a report from Medical News Today. The study’s authors concluded that women are more susceptible to become addicted when prescribed opioid pain medication, but they are not sure why. Regardless of the reason, women’s apparent increased susceptibility should further caution prescription opioid use to manage long-term or chronic pain in women.
Arthritis is the bane of many lives and many claims. How many claims hinge on whether symptomatic arthritis is wholly preexisting or was aggravated by a work injury or a non-work-related accident? But what if there was a way to combat arthritis from developing in the first place? Perhaps there is. As Medical News Today reports, a team of engineers from the University of Delaware recently presented research suggesting that staying physically active appears to prevent arthritis from developing. Specifically, researchers found that hydrodynamic pressurization caused by normal joint movement causes synovial fluid back into cartilage.
To understand why this is significant, it helps to understand how joints are made and how arthritis develops. Synovial fluid is the viscous substance that lubricates the hyaline cartilage lining the surface of most joints. This enables the joint to move smoothly and without pain. Synovial fluid also constitutes 80% of hyaline cartilage. Arthritis develops when the hyaline cartilage deflates. The cartilage deflates when it loses synovial fluid. This is a normal process because hyaline cartilage is porous, which allows synovial fluid to leak into the joint space. Unfortunately, the cartilage does not reabsorb as much synovial fluid as it leaks out. Hence, the cartilage thins and eventually wears out, causing the pain that occurs in arthritis when exposed bone rubs against the opposite surface of the joint. As lead presenter David Burris stated,
We observed a dynamic competition between input and output [of synovial fluid]. We know that cartilage thickness is maintained over decades in the joint, and this is the first direct insight into why. It is activity itself that combats the natural deflation process associated with interstitial lubrication. (emphasis added)
The bottom line is that joint activity, i.e. moving, keeps the cartilage thicker longer, forestalling or preventing the onset of arthritis.
This is good news for employee wellness programs, especially those that help employees achieve an active lifestyle. The potential reduction in the occurrence of arthritis from such programs could benefit employers in many ways. First, arthritis saps productivity because it is painful, reduces mobility, and can cause absences. Second, arthritis will increase employers’ group health-related costs. Put another way, every joint replacement that can be avoided will have a positive impact on health insurance premiums. Third, arthritis is often alleged to be work-related, increasing worker’s compensation costs. Helping employees stay or become active makes sense for myriad reasons. Reducing employees’ arthritis is a powerful one both for employees’ well-being and employers’ bottom line.
At Medical Systems, we don’t often see separated shoulder cases, known to medical professionals as acromioclavicular (“AC”) joint dislocations, because the injuries are acute and painful. Hence, there usually isn’t much dispute about whether the injuries are work/accident-related or not. Still, these injuries happen at workplaces and in personal injury accidents. They are painful and, if severe, usually treated surgically (read, “expensively”).
New research suggests that this is probably the wrong approach. A recent study in the Journal of Orthopaedic Trauma found that surgical repair of moderate and severe AC joint dislocations did not result in improved outcomes versus non-surgical repair, bucking what has been considered common knowledge among doctors. Not only did surgery not improve patient outcomes, but patients that did not have surgery actually recovered faster. In fact, 75% of the non-surgical patients returned to work within 3 months of the injury while only 43% of the surgical patients did. According to the study’s author, "For severe AC joint dislocations, surgery is the common practice but there's not much evidence to suggest this is actually the best treatment." An additional benefit is that those treated non-surgically (use of a sling and rehabilitation) suffered much lower rates of complication. The only noticeable benefit to surgery was that the AC joint appeared more normal after surgery.
One hopes that the medical community will pay attention to the findings and stop recommending surgery for every moderate to severe AC joint dislocation. It would seem that this would be the best result for both claimants with AC joint dislocations and claims professionals managing their claims.
We have all seen the statistics on the explosion of nonmedical opioid use, abuse, and overdose that occurred with the proliferation of opioid use to treat chronic pain conditions. A new study further calls into question the wisdom of using opioids to treat chronic pain in women. According to research published in the Journal of Women’s Health, only 20% of women using opioids over the long term to treat chronic pain reported low levels of pain and high levels of function. In other words, using opioids over the long term to treat chronic pain is ineffective for 8 out of every ten women using them for that purpose. With the risk of opioid addiction, misuse, and overdose as high as it is, it is frankly mind-boggling that they continue to be prescribed to treat chronic pain in a population for whom the drugs are overwhelmingly ineffective. One hopes that continued research such as Journal of Women’s Health study and growing awareness of the ineffectiveness of long-term opioid use to treat chronic pain will eventually lead to more sensible prescription guidelines and more judicious behavior among prescribing physicians.
Ankle fractures are not the most common injury in worker’s compensation or personal injury claims, but they do happen. The standard protocol for uncomplicated ankle fractures is immobilization (casting) followed by a supervised exercise program (physical therapy). Results from a recent JAMA study question whether supervised exercise improves outcomes for patients with uncomplicated ankle fractures. In the study, the control followed the standard protocol (supervised exercise after cast removal) while the experimental group received instructions on home exercises but did not participate in a supervised exercise program. The results demonstrated that the control group had no better outcomes in terms of activity limitations or quality of life. The authors conclude that “findings do not support the routine use of supervised exercise programs after removal of immobilization for patients with isolated and uncomplicated ankle fracture.”
Eliminating unnecessary physical therapy from uncomplicated ankle fracture claims presents a good opportunity to reduce claim costs. If treating physicians are unwilling to follow the recommendations of the JAMA study’s authors, setting up an IME or a record review could be a smart move, especially if it can be done before the cast comes off.
Everyone seeks the talisman that will mysteriously cause every claim to be resolved favorably. Sometimes we want the IME report to be that talisman. Unfortunately, IME reports do not possess supernatural influence over the outcome of claims; however, well-written reports are key elements to successfully administering claims. And fortunately, claim administrators can take steps to help ensure they receive well-written IME reports. Most importantly, claim administers should take care in drafting IME cover letters because well-written cover letters lead to well-written IME reports.
The goal in obtaining an IME report is to have the expert clearly and persuasively resolve specific issues or questions about the claim. It follows from this that communicating the issues or questions to be answered in a clear and coherent manner to the expert is necessary for the expert to understand the claim and the specific matters that need to be addressed. Claim administrators communicate this information to the expert via the cover letter. Hence, the cover letter must be well-written to achieve the goals of clearly communicating the specific matters to be addressed to the expert.
But what does it mean for a cover letter to be well-written? First, a well-written cover letter must be consistent. For example, a cover letter should not ask about the possibility of an occupational injury or disease if the only claim being alleged is a specific, traumatic, acute injury. If the cover letter is inconsistent, it can create ambiguity or vagueness that may confuse the expert as to the precise issues that need to be addressed. In the occupational injury or disease example, the expert may conclude that the alleged acute injury did not cause the condition complained of, but that the job activities generally caused the condition. Hence, the claim administrator will buy a claim that would otherwise have remained dormant. The cover letter should be both internally consistent and consistent with the actual claim being made. Otherwise, the expert may very well issue a confusing opinion or, worse yet, find an injury compensable that the claimant didn’t even raise.
Second, cover letters should be organized in a standard format. Using a standard form for cover letters benefits both the writer and the expert. The writer benefits because the standard form acts as an implicit checklist of the information that needs to be communicated to the expert. This reduces the likelihood that necessary information will be left out. Using a standard form also increases the writer’s efficiency because the writer does not have waste mental energy thinking about how he is going to format or structure every letter he writes. Finally, the expert benefits because she will know where to look to find information on what the case is about, the noteworthy medical records, and the specific questions to be answered. Thus, if the expert has a question about the date of injury, she will know precisely where to look in the cover letter to find it. Likewise, the standard form will minimize the likelihood that the expert will leave questions unanswered because she will know exactly where to look to the questions being asked.
Third, cover letter writers should use clear, direct, and simple language whenever possible. You may need to know what a ‘calumny’ is if you are taking the SAT, but you are probably better off describing the claimant’s version of events as ‘difficult to believe’ in an IME letter. The goal of the cover letter is to communicate to the expert exactly what she needs to know and what questions she needs to answer. The goal is most effectively accomplished with simple and direct language.
This was driven home for me recently in an IME that arose out of a claim with multiple respondents. The cover letter writer explained to the expert that they were ‘impleaded’ into the case by one of the insurance companies. The expert was confused and had to ask us what the cover letter writer meant by ‘impleaded.’ The client was fortunate that the expert was not afraid to ask the question and that we knew the answer. The problem is the cover letter writer used legal jargon that is commonly understood among attorneys and claims administrators, but is not a concept that a medical expert would have any reason to know. A more simple and direct way to explain the case to the doctor would have been to state:
We represent XYZ. The employee claims she hurt her right shoulder while working for ABC; however, ABC got an IME report from Dr. Doe who concluded that the employee injured her shoulder while working for our client XYZ. As a result of Dr. Doe’s opinion, ABC claims that XYZ is responsible for the employee’s right shoulder condition and brought us into the case.
If the cover letter writer used simple and direct language, the expert would have understood exactly what the claim was about and why he was being asked for his opinion. Failing to use straightforward language greatly increases the risk that the expert will be confused and issue a confusing report.
Fourth, good writing is good editing. Time is always at a premium for claims professionals and attorneys, but every IME cover letter writer should take the time to reread and edit the letter before sending it to the expert. Editing the cover letter is the only way to ensure that the cover letter is clear and coherent. When we are busy, we may be tempted to release IME cover letters without editing them, but the cost of doing so far exceeds the benefit of the time saved. For example, it is easy to misstate the side of the body to which an injury occurred when hurrying to get out a cover letter. While experts will often correct the mistake when they review the records, sometimes the impression from the cover letter sticks in the expert’s mind and she perpetuates the mistake in the IME report. An IME report that misstates the side of the body actually injured loses credibility, even if it appears that the mistake was one of nomenclature rather than intent.
As noted above, there are no talismans in claims administration. Nevertheless, claims administrators can take steps to improve the likelihood that they will be able to resolve claims favorably. Crafting a well-written cover letter is one such step. A well-written cover letter will insure that the expert will understand the case, know what issues need to be addressed, and will be aware of the writer’s role in the case. As a result, the expert will be able to address all the relevant issues from a position of knowledge and understanding. And when good questions are answered by knowledgeable experts, good IME reports result.
Few things are as frustrating as preparing an IME cover letter and getting a report back that doesn’t answer all of the questions. Most people drafting IME cover letters use a standard form letter that starts by explaining the case then summarizes the relevant records and finishes with a section setting out the specific questions the expert is to answer. The purpose of using standardized form letters is to communicate as effectively as possible. Form letters have a number of qualities that make them effective. Chief among these qualities are form letters’ consistency and predictability. In the case of an IME cover letter, the expert knows where to look to find the case summary, a recitation of relevant records, and the specific questions the writer wants answered. The letter is drafted in this predictable and stylized way so the expert doesn’t have to waste any time figuring out what is going on and what they are being asked to do about it.
Problems ensue when cover letter writers depart from the standard form because the expert cannot rely on finding the relevant information where she expects to find it. This is especially problematic when writers intersperse questions for the expert throughout the cover letter rather than placing all of the questions in the specific questions section. The main problem in placing questions outside the specific question section is that experts often overlook or forget to answer questions buried in the body of cover letters.
It can be frustrating when a question in the IME cover letter goes unanswered, but the process of how most experts prepare IME reports explains how and why this happens. Most experts receive a cover letter with the relevant records attached to it. Usually the expert will read the cover letter to learn about the case and why they are being retained. Some experts will go through and dictate the record review portion of the report when they receive the records, especially if the records are voluminous. At a later date, the expert will meet with and examine the subject. Only after the expert examines the subject will she dictate the history, examination, impressions, and specific interrogatives portion of the report. When the expert gets to the specific interrogatives, she will typically review the specific questions section of the cover letter to determine what questions the client wants answered. Ordinarily the expert will not reread the entire cover letter before answering the specific questions asked. Finally, the expert will dictate her answer to the specific questions and with that the report is completed.
Experts tend to miss questions posed in the body of cover letters because they follow a specific method of preparing reports that relies on the assumption that cover letters, as standardized form letters, will stay true to the form. In particular, experts assume that if a cover letter has a section in which specific questions are asked, all the specific questions they are expected to answer will appear there (a reasonable assumption given the fact that a separate section is being devoted specifically to the questions the writer wants answered). The very purpose of the form is to make clear to the expert what the case is about and what questions need to be answered. Departures from the form defeat its purpose.
To minimize the likelihood that a question will go unanswered, the cover letter writer should include all questions in the specific questions section of the letter. For example, if the writer summarizes an MRI scan report that demonstrates no evidence of an acute injury process despite the scan being taken within 48 hours of the alleged injury, the writer may point to this and ask the expert about the significance of the MRI findings. However, to limit the possibility that the question will go unanswered, the writer should repeat the question in the specific questions section. Doing so may seem like overkill, but repeating the question in the specific questions section of the cover letter will practically guaranty that the expert will answer the question. The standardized form of cover letters puts all the questions in a specific questions section in large part so that the expert neither has to guess at what opinions the client wants nor reread the cover letter numerous times to be sure she has answered all the questions the client wants answered.
Cover letters are effective when they are consistent and predictable. Asking every question the writer wants answered in the section devoted to the specific questions hews to this consistency and predictability. Interspersing questions throughout cover letters makes them inconsistent and unpredictable, which creates a significant risk that some of the questions will go unanswered. Avoid the risk. Put the questions where the expert expects to find them.
Last week we reported on research finding that taking short breaks to move during the day have beneficial effects on blood pressure. Even more encouraging is research published in the American Journal of Preventative Medicine finding that simply fidgeting during the day has similar and beneficial health effects. While this may be bad news to our least favorite elementary school teachers who seemingly equated intelligence with the ability to sit still, it is good news for all of us who find ourselves working in sedentary jobs. And there are a lot of us working sedentary jobs. The American Heart Association estimates that less than 20% of U.S. jobs can be characterized as “physically active.” According to the study’s authors, “there was no increased mortality risk from longer sitting time” among study participants who reported fidgeting a moderate or high amount during the day. So don’t sit still! It appears that all movement is good for us, even such trivial types as fidgeting. While everyone can benefit from regular exercise, don’t count out the little things we can do during the day to counteract the negative effects of being sedentary. They might be just as important as the big things.
Hearing that exercise is good for us is worse than a broken record. Sometimes it actually feels painful to read it, as if the purveyors of this information are on some sort of sadistic quest to make their readers feel bad. Fortunately, this post will actually tell you that less is more and that you don’t have to kill yourself to not kill yourself. The New York Times wellness blog has a short piece worth reading on just what kind of exercise helps reduce blood pressure. This is important information because high blood pressure is a precursor to a vast array of conditions and diseases that shorten lifespans and reduce quality of life. What is also significant about the information is that it should actually make exercise easier. First and foremost, the article points to research finding that “’exercise intensity does not appear to play any significant role’ in helping people control blood pressure.” This is good news for anyone who blanches at the notion that exercise has to be strenuous to be beneficial. According to the article, “movement is what matters” and improvements in blood pressure readings were seen in persons who engaged in such simple activities as taking standing breaks or walking 1 mph for 10 minutes an hour at desk treadmills. In addition, the article pointed to research demonstrating that small movement breaks during sedentary periods are more beneficial than extended periods of exercise. This should be encouraging for all of us who have demands on our time that make scheduling an extended period of time for daily exercise difficult. At a minimum, most of us can manage to find 10 minutes here and there where we can simply stand while we work. And the good news is that even this modest intervention has been proven to substantially improve blood pressure readings. And employers should take note because this simple strategy could have significant effects on the health of employees, which is good for just about everything, including the bottom line.
I do beguile the thing I am by seeming otherwise.
-Iago in Othello, II.2.122-3.
Shakespeare’s Othello, while ostensibly about the titular character and his wife, Desdemona, centers on English literature’s most notorious and effective liar, Iago, a character so perplexingly foul as to cause Samuel Taylor Coleridge to describe him as “motiveless malignity,” evil for only evil’s sake. Since most of us have long since forgotten our high school and college lit classes, a brief recap: Othello saves Venice from a Genoan invasion and is elevated to general. He also wins the heart of the Doge’s daughter, Desdemona, and marries her. Iago ostensibly hates Othello because he passed him over for a promotion to lieutenant. He hatches a plan to convince Othello that Desdemona is unfaithful, which he successfully executes through a series of lies and half-truths, manipulating the other characters like a puppeteer. Iago ultimately convinces Othello that Desdemona is unfaithful, whereupon he kills her and commits suicide (the play being, after all, a tragedy).
To Coleridge, the greatest imaginable horror is not the overtly hostile brute, but rather the deceiver. The reason is that the challenge of the hostile brute, while perhaps significant, is open and obvious. We know what to expect and can prepare to deal with it. The deceptive person is exponentially worse because we often have no idea that we are being deceived or that the person is deceptive. We have no chance to prepare because we have no expectation of malfeasance or misbehavior. Hence, in the play Othello unwittingly considers Iago to be his truest friend while Iago leads him to his demise.
Human biology suggests Coleridge was right to fear liars. We became spectacularly successful because of our ability to cooperate and trust one another. It is how we went from hunter-gatherers to denizens of today’s massive and massively complex technological society. Deceit directly assaults our social nature and causes us to question the motives of everyone with whom we interact. This is particularly harmful for social beings whose existential success depends on cooperation. As a result, our inherently social nature makes us particularly poor at detecting deception.
Despite the fact that we are not very good lie detectors, we often think that we are. While liars are popularly depicted as either furtive bundles of nerves and sweat or overconfident and suave psychopaths, in truth all persons lie to varying degrees and there is no one personality type that is particularly adept at being deceitful. Studies generally find that we are poor lie detectors. We often think that traits like Machiavellianism, psychopathy, or narcissism make a person a more effective liar; however, research finds that persons having these personality traits are neither particularly effective liars nor particularly effective lie detectors. About the only things we know for sure about lying are that, “the ability to lie well correlates with an ability to better detect deception in others; and the control of response latency difference when lying may be the key to producing successful lies and detecting those lies in others.” Contrary to media portrayals, liars cannot be stereotyped. Also, the popular belief that persons lying give off telltale signs of deception is simply untrue. If a person wants to lie, chances are no one will notice.
The problem of deceit in traumatic brain injury is particularly vexing since there are limited objective measures available to differentiate between legitimate claims and malingering or symptom magnification. To give an idea of the scope of the problem, research has demonstrated symptom magnification or malingering likely occurs in about 40% of mild head injury claims. This presents difficulties for both insurers and legitimately injured claimants. Insurers are understandably wary of paying claims for which little or no objective evidence exists and high rates of symptom magnification and malingering exist. Claimants get frustrated when insurers question their claims because they suffered an injury for which limited diagnostic tests are available. Both insurers and claimants would be served best if there was a reliable way to differentiate legitimate traumatic brain injury from malingering or symptom magnification. The question is whether there is such a reliable way to do so.
The good news is that advances in neuroimaging are beginning to differentiate how physically injured brains function versus uninjured brains and brains of persons with psychological conditions. For example, a July 2015 study published at PLoS ONE described differences in single photon emission computed tomography (“SPECT”) scans between persons suffering from traumatic brain injury versus posttraumatic stress disorder. The study specifically concluded that “hypoperfusion in the orbitofrontal cortex, temporal poles, and anterior cingulum are consistent with the most frequent findings in the TBI literature” while “increases in the limbic structures, cingulum, basal ganglia, insula, thalamus, prefrontal cortex, and temporal lobes” were noted in subjects with PTSD. The authors report that SPECT scans may be able “to differentiate TBI from PTSD with sufficient sensitivity, specificity and accuracy to incrementally enhance clinical decision-making.”
The bad news is that we are just at the cusp of the neuroimaging revolution. This means doctors cannot simply order a SPECT scan (or any other imaging study) and state to a reasonable degree of medical certainty whether a particular patient is suffering from a particular condition based on the results of the scan. More research will be needed before imaging studies can be relied on to differentiate between the fact of injury and the type of injury being claimed. Though the news on the neuroimaging front is encouraging, until it becomes medically accepted as a diagnostic tool we will have to rely on clinical examination and testing to assess whether a particular patient is suffering from a TBI, a psychological injury, or is attempting to deceive us.
So can we determine if a claimant is trying to deceive us with clinical examination and testing? First, it is useful to define exactly what malingering is. According to the American Psychiatric Association, malingering is “the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives…” In the case of malingering in a personal injury claim, the external incentive is to obtain compensation from the tort system. It is also useful to know that the vast majority of mild traumatic brain injury resolves within 6 months. Most mild traumatic brain injuries are unremarkable events that are self-limiting and require little active care. In most cases, a person suffering a mild traumatic brain injury will get better no matter what they do and whether they seek treatment or not.
The symptoms of traumatic brain injury are nonspecific and include memory loss, attention deficits, mood changes, anxiety, and headache. These symptoms are also present in psychological conditions such as depression and PTSD and are so nonspecific as to be easily feigned. Fortunately, neuropsychological testing “can identify those who exaggerate or fake with moderately high levels of sensitivity and specificity.” One of the chief ways of detecting feigners is through the use of tests or indices that measure effort or intentional failure. These include the Test of Memory Malingering (“TOMM”), the Word Memory Test, the Computerized Assessment of Response Bias, the Portland Digit Recognition Test, and the Victoria Symptom Validity Test. For example, the TOMM has been found to have a 100% positive predictive power (the likelihood that a person has the condition when a test detects the condition) and a 90% negative predictive power (probability that a person does not have the condition when a test does not detect the condition). Researchers noted that “these statistics indicate that we can be 90% confident that a person gave good effort when he or she scored above the suggested cutoff value (for suboptimal performance). On the other hand, when a participant scored below the cutoff, we can have 100% confidence that he or she performed suboptimally.”
Interested in learning more about traumatic brain injuries and how to tell legitimate claims from illegitimate ones? Attend Medical Systems’ Advanced Medical Topics in Civil Litigation Symposium where Dr. Marc Novom and Dr. Brad Grunert will tackle traumatic brain injury from medical and psychological perspectives to give you their insights on how they analyze these claims and what you can do to manage them more effectively.
We have written many times about the pitfalls of conventional, linear thinking. Another development in the world of biomedical science confirms the peril of this type of thinking. In this case Ruth Massey, a biologist and biochemist at the University of Bath, describes research she performed with colleagues on staphylococcus aureus bacteria (the SA in MRSA), the found, contrary to conventional wisdom, that staph infections causing bacteremia in humans, the worst and most deadly staph infection (up to a 40% mortality rate), produce relatively few toxins. For decades, scientists thought “the more toxins a bacteria produces, the worse infection it causes.” Massey’s research demonstrates that the exact opposite is true: the worst infections in humans are caused by bacteria that produce less toxins.
How Massey and her colleagues discovered this information is a good example of why it is perilous to apply assumptions across categories without testing them. In this case, the problem had to do with how bacteremia research was conducted. Generally, bacteremia experiments are conducted on rodents. Massey et al. discovered that this is problematic because staph bacteria have much more difficulty establishing infection in rodent blood than in human blood. As Massey notes, as few as 100 staph bacteria can cause bacteremia in humans while 10-100 million staph bacteria must be injected into the rodent blood stream to establish infection. It turns out that this difference is crucial to how infections develop humans versus rodents. In humans, the way staph causes bacteria is by overwhelming the body’s defenses numerically. In order to do this, the bacteria need to be most efficient at reproducing. Having fewer toxins allows the bacteria to reproduce more efficiently than if the bacteria had many toxins, which requires energy be siphoned away from reproduction. In rodents this is less of an issue because bacterial loads large enough to overwhelm the rodent immune system are being injected into the blood stream. Human staph infections follow a typical organic course that starts with seeding by significantly fewer bacteria cells.
What is most significant is that untested assumptions often have real deleterious consequences. In the case of the bacteria staphylococcus aureus, research directed at treating and preventing staph infections, especially antibiotic resistant MRSA infections, has focused on staph bacteria that produce high levels of toxins. And this research was conducted because scientists assumed staph that secreted higher levels of toxins caused the worst infections. The problem is that Massey and colleagues have found that these strains of staph are not the ones that cause severe and deadly infections. The assumption was perilously wrong. As Massey writes, “identifying the limitations to our knowledge, rather than blindly pursuing hypothesis based on misleading animal experiments has got to be a better starting point for the future of infectious disease research.”
The same can be said of medico-legal claims: blindly pursuing claims strategies based on conventional wisdom can lead to bad results. Identify what you know and what you need to know. Gather the evidence. Ask what conclusions can be drawn from the facts? Form a claims strategy from the conclusions drawn from the facts, even if the strategy runs afoul of conventional wisdom. And if you find ignoring conventional wisdom uncomfortable (even when the facts of the claim are telling you to do so), ask yourself: Would I rather be comfortable or right?
We have written about the beneficial effects of getting enough sleep in this blog before. Yet again, researchers demonstrate that sleep is a vital component of health (and productivity). Science reports that a recent study published in the journal SLEEP confirming that people who don’t get enough sleep are more susceptible to the common cold. Scientists conducting the study inoculated healthy volunteers with rhinovirus, the most commonly implicated virus in causing colds, then quarantined the participants on a segregated hotel floor for 5 days after inoculation to limit the possibility of picking up rhinovirus from the environment. The study’s authors found that participants who slept less than 5 hours per night were 4.5 times more likely to get sick than participants who slept seven hours or more per night, proving once more that getting adequate sleep is crucial for maintaining health. And as any employer during cold and flu season can attest, maintaining health is crucial for productivity (and attendance).
Decorated New York Times Science reporter Gina Kolata recently reported on a large (100,000 women over 20 years) study published in JAMA Oncology on ductal carcinoma in situ (“DCIS”), a form of abnormal cells found in the milk ducts of breast tissue. Some medical experts call DCIS stage 0 breast cancer. Other medical experts do not even consider DCIS to be cancer. Kolata’s article and the study on which it reports illustrates a problem with viewing medicine as a static field to which fixed assumptions apply: the human body is a dynamical system that is unpredictable and confounds assumptions.
Cancer is a particularly good example of the problems with making fixed assumptions about disease. As Kolata notes:
Over the years, investigators have come to conclude that the old model of cancer – that a few aberrant cells will grow, spread and inevitably become a deadly cancer if not destroyed – is wrong. Small clumps of abnormal cells may just stop growing, scientists now know. Even invasive cancers do not always grow. Some regress or disappear. That is especially true in prostate cancer, where as many as half of all cancers found with screening will not progress is they are simply left alone. But it also seems true in breast cancer, researchers say.
Doctors used to assume that DCIS was an incipient form of cancer that, if not treated, would grow into a tumor and eventually metastasize. The use of mammograms greatly increased the diagnosis of DCIS, which led to greatly increased treatment of it. Early on, mastectomy was the preferred method of treatment. The reason was based on applying the rules of a different cancer to DCIS. Studies had demonstrated that excising early neoplastic lesions on the cervix that were discovered in Pap tests prevented deaths from cervical cancer; hence, doctors reasoned that cutting out DCIS lesions would prevent deaths from breast cancer. As lumpectomy became an accepted alternate treatment to mastectomy in breast cancer, doctors began treating DCIS with lumpectomy also. The problem is that the JAMA study found there was no difference in the death rate from breast cancer of women diagnosed with DCIS (regardless of the form of treatment they received or whether they received no treatment) and the death rate from breast cancer in the general population of women. The study also found that despite aggressively treating DCIS, there was no impact on the incidence of invasive breast cancer in the general population. This would not be expected: “if treating DCIS was supposed to fend off invasive breast cancer, the incidence of invasive breast cancer should have plummeted once DCIS was being found and treated.”
The JAMA Oncology study can teach those of us in the medico-legal world a valuable lesson about the perils of making assumptions without testing them. In the medico-legal world, we need to pay attention to the evidence around us and to the impact the evidence has on the claim, especially impacts that are unexpected or run counter to our assumptions about the claim. Failure to do so will inevitably result in error.
The DCIS case is instructive. Surgeons began performing mastectomies and later lumpectomies to treat DCIS with the rise of mammogram screening. They did so on the advice of oncologists and gynecologists who assumed that the abnormal cells of DCIS were like the abnormal cervix cells found on Pap tests. Despite growing evidence that certain neoplasms do not metastasize and that different cancers behave and respond to treatment differently, oncologists and gynecologists kept recommending that DCIS be excised (and general surgeons dutifully performed the excisions). And even after years of excision being standard treatment for DCIS, no one bothered to gauge whether the treatment in fact lowered death rates from breast cancer because the medical community did not question the assumption that DCIS would lead to breast cancer if not excised. The assumption, based on an analogy instead of medical evidence, was so deeply embedded in the medical profession that few practitioners thought to question it. As a result, thousands and thousands of unnecessary mastectomies and lumpectomies were performed over the last three decades which caused physical injury, physical pain, psychological distress (not to mention massive medical costs), and did not prevent breast cancer. And all of this was caused by a failure to pay attention to the actual evidence accruing and instead relying on an untested assumption.
DCIS offers a sobering example of why we cannot rest our claims analyses on untested assumptions. Instead, we must constantly test our assumptions against the available evidence to determine whether the inferences drawn therefrom support the assumptions. While the assumptions made in individual claims are not likely to have as deleterious consequences as the assumptions the medical community made about DCIS, they can have a negative impact on our ability to resolve claims efficiently and effectively. And if the assumptions are repeated over time, the skewed results we achieve in resolving claims could have a significant negative monetary impact in the aggregate. Instead, we should constantly be testing our assumptions against the actual evidence; further, we should be prepared to abandon our assumptions if the available evidence does not support them. Claims are not static but rather change over time as they are developed and new evidence is obtained. To manage claims effectively, we must adapt to those changes and develop a strategy that is responsive to them. If we do so we will not be surprised when the unexpected arises and we will respond to it nimbly. We will also avoid the pitfall of untested assumptions that, like was the case with DCIS, can cause us to pursue strategies that may not only be ineffective but also harmful.
Pulmonary claims in worker’s compensation can be difficult if there is not a discrete release of harmful airborne particulate matter or chemicals that is well-documented. In cases with longer exposure time or with exposure to common particulate matter such as ‘dust’ or other materials that may cause pulmonary irritation, finding a plausible non-industrial cause for the pulmonary injury or condition can be both challenging and vital to the claim’s defense. However, a UK study reveals a potential source for non-industrial exposure to harmful particulate matter and vapors: home improvement projects. According to Medical News Today, the study found that “peak concentrations of potentially harmful ultrafine particles reach up to 4,000 times local background levels when undertaking building activities such as drilling.” The authors note that do-it-yourself (“DIY”) home improvement has increased in recent years and continues to grow in the United Kingdom, a trend also common to the United States.
In the United States, OSHA mandates worker’s on construction sites be provided with personal protective equipment such as respirator masks when necessary to protect employees from harmful particulate matter and vapors. OSHA also requires that employers use effective engineering controls such as confinement and ventilation to limit workers’ exposure to harmful particulate matter. Unfortunately, individuals who engage in home improvement projects are not required to use personal protective equipment or engineering controls to protect themselves. Thus, home improvement projects, especially those involving drilling, cutting, sanding, or solvent use can be a significant source of pulmonary exposure to harmful airborne particulate matter or vapors.
In the worker’s compensation context, the rise in DIY home improvement is a potential non-industrial cause of pulmonary injuries and conditions. Claim handlers in pulmonary claims should ask claimants about DIY home improvement project history to see if there is a potential exposure source outside the workplace for their problems. Also, claim handlers may wish to consider interviewing co-workers since many people who engage in DIY home improvement projects like to talk about them. Prompt surveillance could also be useful because larger scale DIY projects often generate construction waste that is at least temporarily stored at the home and is often visible from the street. Finally, independent pulmonary experts should be instructed to ask claimants about their DIY home improvement project history if they are not already doing so. Dry-walling a bedroom surely would be more likely to cause pulmonary problems than exposure to the everyday amount of dust present on a loading dock in a warehouse (or wherever the exposure is alleged to have occurred).
Spinal cord injuries are devastating. The U.S. experiences approximately 12,000 spinal cord injuries per year in which the injured person survives the initial accident. For those who survive the initial accident, the road forward is physically arduous, psychologically taxing, and financially burdensome. A spinal cord injury patient can expect to spend well over a month in hospitals and in-patient rehabilitation (and sometimes considerably longer dependent on the severity of the injury and whether there are concomitant cognitive impairments or other comorbidities). In addition, the lifetime costs of spinal cord injuries are extensive, having a present day value ranging from $4,540,000 for a 20-year-old patient with high tetraplegia (spinal cord injury at C1-C4) to $1,460,000 for a 60-year-old patient with paraplegia. The occupational effects are profound, with only 35% of spinal cord injury patients able to achieve a similar pre-injury level of employment 20 years post-injury. Obviously, the costs to employers and worker’s compensation carriers in work-related spinal cord injury claims are enormous and usually lifelong. The costs of spinal cord injuries are massive in the liability context as well. Since the two most common causes of spinal cord injuries are motor vehicle crashes and falls, liability and worker’s compensation claims are relatively common when spinal cord injuries occur.
Certainly no one did more to raise awareness of spinal cord injuries than Christopher Reeve, who suffered a spinal cord injury causing high tetraplegia (C1-C2) after falling from a horse in 1995. Periodically high profile athlete suffer spinal cord injuries that thrust the issue back into the national spotlight. In 2010, Rutgers football player Eric LeGrande sustained a spinal cord injury during a game against army that initially left him paralyzed from the neck down. In October 1995, Travis Roy was just 11 seconds into his first shift in his first game as a hockey player for Boston University when he crashed head-first into the boards and suffered a spinal cord injury that also paralyzed him from the neck down. More recently, Olympic swimmer and multiple gold medal-winning swimmer Amy Van Dyken suffered a spinal cord injury away from athletics in June 2014 when she fell off the all-terrain vehicle she was driving and down a 5-7 foot embankment. The accident injured her spinal cord at T11 and left her paralyzed from the waist down.
These famous athletes and celebrities periodically remind us of both the risk and devastating consequences of spinal cord injury. Fortunately, progress is being made in managing the post-injury effects of spinal cord injury. The most frequently reported-on developments typically involve bionic exoskeletons that help the paralyzed person move their limbs. However, recently medical researchers have been making strides in using electrical stimulation to allow the injured patient voluntarily move paralyzed limbs. In recently reported research, external electrodes were placed over 5 patients’ spinal columns who have suffered from paraplegia for at least two years. The electrodes in combination with the drug buspirone allowed the patients to move their limbs under stimulation, which was not unexpected. What was remarkable is that the patients retained the ability to move their legs even without electrical stimulation after 4 weeks of treatment. As lead researcher Prof. V. Reggie Edgerton noted, "The fact that they regained voluntary control so quickly must mean that they had neural connections that were dormant, which we reawakened." The findings are considered remarkable because the medical and scientific community had accepted that persons with complete paralysis “no longer had any neural connections in the spinal area.;” suggesting that it may be possible to regain motor function without regenerating spinal neurons or using an exoskeleton system.
This research along with the mind-boggling progress that is being made with patient-controlled exoskeleton devices is changing the landscape for spinal cord injury patients. These developments are welcome news for patients, their families, and society alike. As noted above, the occupational and medical costs of spinal cord injuries are enormous. Anything that can return function to patients has the potential to minimize the occupational impact and long-term medical expenses of spinal cord injuries, which is good news for the worker’s compensation and civil liability systems as well. Spinal cord injuries are among the most costly injuries to everyone involved. Improving outcomes in spinal cord injuries will benefit an extraordinary number of individual lives and also the institutions set up to absorb the costs.
Some problems are bigger than others. Consider the case of Archimedes and the water screw: how do you get lots of water uphill when you live in the 3rd century BCE and don’t have a pump? While the origin of Archimedes’ screw is subject to debate, the fact is that sometime between 700 BCE and 200 BCE the Assyrians or the Greeks figured out a way to move water uphill efficiently without having mechanical, machine powered pumps. The solution was to enclose a double or triple helical surface, more commonly known as a screw, inside a pipe. One end of the pipe is placed in water and as the screw shaft is turned, the bottom scoops up water, which slides up on the tube until it reaches the top and spills out. The screw was used to move water to and from irrigation ditches and to drain water from low-lying areas or mines. Part of the genius of the screw was that the seal between the screw edge and the pipe did not need to be watertight since it would work as long as the volume of water being scooped up was larger than the volume of water leaking down. Regardless, Archimedes’ screw was able to move significantly more water uphill both faster and at lower energy costs than using buckets and pails.
Archimedes’ screw is remarkable when you think about it: in a pre-industrial society without electric or other non-manual power sources, someone figured out a way to move water uphill with efficiency comparable to a mechanical pump using a screw. Not exactly the method that would come to mind for most of us when thinking about how to move water uphill. This sort of unconventional, out-of-the box thinking is an example of what business and cognitive science experts call “distant search”; which has been neatly defined as “problem solving outside the neighborhood of what is already known.” Distant search contrasts with “local search,” which is the most common way we solve problems. Local search is “problem solving that focuses only on the neighborhood of what is already known, drawing on the pre-existing knowledge base and on how the problem (or similar problems) had been solved in the past.”
The fact that most problem solving is accomplished using local search is not surprising. Most of us are familiar with the idea that specialization and expertise are important factors in achieving high levels of competence in most fields. Most have probably heard about Malcolm Gladwell’s argument that expertise arises after 10,000 hours of practice in any given field. Some may also be familiar with research demonstrating that the single biggest factor predicting a surgeon’s success rate at a particular procedure is the frequency with which the surgeon performs the procedure. All of this may leave us with the impression that the key factor to achieving success is practice, repetition, and familiarity. The bottom line is that for most problems, expertise is useful because most problems arise out of and can be solved using “the neighborhood of what is already known.”
Undoubtedly practice, familiarity, and repetition help build the fund of knowledge available for local searches and are useful for solving most of the day-to-day problems we encounter; however, these factors are insufficient for solving the biggest and most difficult problems we encounter. The reason is fairly simple: local searches are cognitively rigid. Unfortunately, cognitive rigidity acts as a bar to creative and unconventional thinking, which often makes the difference between whether a seemingly intractable problem gets solved or not. For the most difficult problems, innovative and unexpected solutions are usually needed but local search is narrow, predictable, and based on existing knowledge of the status quo. Local search is not particularly creative or innovative. For more difficult problems, a different type of solution is needed and the solution is found through distant search.
In distant search, a solution is sought that is significantly different from what might be considered the intuitive or logical starting point. The Archimedes screw is a classic historical example of distant search. Others would include Copernicus, who did not continue the refinement of Ptolemaic solutions to the problems caused by the geocentric model (i.e. the need for epicycles) but instead proposed the wholly different and (it would turn out) correct solution of a heliocentric model. Copernicus had, at some point, to abandon the idea of the geocentric model in order to conceive of a different solution to the problem. This move away, this search for a solution different in quality and kind, is distant searching. Einstein’s conception of relativity is a similar example of distant search: a wholly novel solution to cosmological questions that differed in quality and kind from Newton’s solution. Simply refining or correcting the flaws in Newton’s mechanics would not have led to a correct model, but would have only further refined an incorrect model. The model would have still been incorrect. The flaws would have remained.
Contemporary examples of distant search include e-books and the iPhone. Publishers’ use of CD-ROM in response to the digitization of information storage and transmission was the result of local search. This is in contrast to Amazon’s distant search which resulted in the development and adoption of e-books. The iPhone touchscreen is another great example of distant search. Rather than putting a keyboard on a phone, a la Blackberry, Apple developed a more elegant and unexpected solution to the interface between user and PDA. In the annals of history, we know who which innovations will be remembered and which will be forgotten. It is often this way with distant search. Distant search is the Eureka moment, the breakthrough that changes everything, the revolution that changes industries and societies.
The problem most of us have with distant search is that it essentially requires us to stop thinking about the problem. Usually this is a matter of happenstance. We get so frustrated with a difficult problem that we simply walk away from it. The solution then comes to us at an unexpected moment (if it comes to us at all). Consider the case of a musician who can’t complete a partially formed melody. Local search would involve playing the fragment over and over, maybe adding to it or varying it a bit. The problem is that the musician has reached what could be termed an arrest of thought (she’s stumped, in other words). Continuing to repeat the fragment that led to the arrest of thought is only likely to deepen its hold on her brain and increase her frustration. Eventually she will abandon the fragment and move on. If she is to complete the melody, she will most likely find the solution when she is not thinking about the problem. Perhaps the sound of subway doors closing triggers a connection previously unavailable to her and causes her to find a solution. Or maybe the susurration of the wind shaking leaves triggers the connection that leads to the solution. The point is that the musician is most likely to solve the problem with information “from outside the neighborhood of what is already known” about the problem and this information will only become available when she is not thinking about the problem.
Unfortunately, happenstance is inefficient, unpredictable, and not always successful. The process of happenstance is a distant search whereby the musician is confronted with something, however trivial or mundane, that causes her to think of the problem in a novel way which offers a hitherto inaccessible solution to the problem. However, the connection or solution that presents itself is wholly dependent on the chance that something in the musician’s daily life will trigger the connection. Perhaps she never rides the subway at the moment when her mind is clear and receptive. Perhaps she needs to hear the sound of leaves rustling in the wind but never takes a walk in the woods. Regardless, happenstance is a poor method to rely on for performing distant search.
Fortunately, we can train ourselves to use distant search more efficiently. The key is to become self-aware of our thought process and how we are thinking about the problem. The term that has sway in the cognitive sciences right now is mindful metacognition. In layperson’s terms this simply means self-aware thinking about thinking. Rather than dive into the problem, mindful metacognition would have us think about the problem, but then would have us abandon the thought rather than follow it. Then we would allow other thoughts to form in the cognitive space vacated by our initial solution to the problem. Mindful metacognition offers a more targeted method to achieve distance search. The process allows the musician in our example to consciously shut off the ruminative stream of thought that has got her stuck and to open her field of consciousness to new thoughts in close enough proximity to the melody fragment problem that the new thoughts become available as possible solutions or modes of thought that can precipitate a solution to the melody fragment. The likelihood of reaching a distant solution in a shorter time is thereby increased versus happenstance alone.
Hence, when a roadblock arises, try to use mindful metacognition to explore distant search solutions. In a sense, using mindful metacognition to trigger distant search is like an internal email to colleagues or an online query: rather than sending out a question to a few or many others, mindful metacognition essentially lets you float the question to your whole mind a memory store. Thus, the free associations that you allow to form and retrieve thoughts and memories that increase the likelihood that somewhere in our amazing, complex, and data-filled brain a solution or way of seeing the problem that will lead to the solution already exists and just needs to be brought out for the connection to the problem to be established. These thoughts and memories are like the vast array of potential individuals available to us when we crowdsource the solution to a problem. Not every problem requires distant search, but when one arises it is certainly better to use a targeted method that offers a reasonable chance at a solution than to use local search and beat one’s head against the wall over and over or to rely on happenstance, which may never, in fact, happen.
The outcome of most claims, whether worker’s compensation or personal injury, often boils down to which side tells the most credible story. And the story starts with the claimant and other eyewitness interviews. How and when these interviews are conducted can have a significant impact on what story gets told and how believable that story is. Fortunately, cognitive science has taught us a great deal about how memory works and what interview techniques are most likely to yield the most complete and accurate eyewitness accounts.
Before we get to the actual strategies for conducting better interviews, a brief primer on human memory formation and recall is in order. Human memory is not, as many assume, like video footage that is stored and can be replayed at will. Instead, memory formation and recall “is a constructive process influenced by knowledge, beliefs, expectations, and schemas.” Many people also believe that we are like video cameras that encode everything that enters the visual field, regardless of where our attention was being directed. This is simply not how memory works: “Events can only be incorporated into explicit memory if they are noticed, and attention plays a central role in the encoding process.” In addition, when people are asked to remember things from the same event on multiple occasions, they often remember different things because the different retrieval attempts “make different aspects of the memory accessible.” Laypersons and legal professionals find this counterintuitive, but “repeated interviews can be a means to improve recall performance.” (The recall of additional information about the same event at subsequent interviews is called reminiscence. ) Finally, most researchers agree that the most important way to avoid corrupting memory during an interview is to ask open-ended questions that are not suggestive.
To start with our discussion of strategies for interviewing, the timing of the first interview is critical. Odinot, et al. (2013) found that test subjects interviewed immediately after watching videos of a crime being committed provided more new details in a second interview than test subjects whose first interview after watching the video was delayed. As the authors note, “this research shows for the first time, how critical the timing of a first interview is and it supports the use of interview protocols where information can be gathered from witnesses as soon as possible after an event is witnessed.” The authors reason that “because more information is retrieved in the initial interview (than would otherwise be recalled) there may be a greater chance that these details will be used as memory cues in future interviews and/or that an earlier cognitive interview reduces forgetting of details.” The research demonstrates that if you want to get the most complete account of an event from witnesses, the first interview should be completed shortly after the event is witnessed, when possible.
In the worker’s compensation setting, this often will require the employer to conduct the first interview since there is typically a delay between when the employer reports the injury to the insurer and the time when the claim handler assigned to the case begins her investigation. Hence, it is critical that employers be provided with the tools to conduct an effective interview. This could come in the form of employee training or use of a thorough interview checklist or both. In addition, given the importance of the timing of the first interview, insurers may be wise to institute procedures that ensure a claim handler or investigation specialist is available on the same day a claim is received to conduct the necessary interviews if the insurer cannot rely on the employer.
Unfortunately, insurers in personal injury claims are often at a disadvantage compared to insurers in worker’s compensation claims because they do not have a surrogate, like an employer, who is “on the ground” and can act in their stead. Insurers in personal injury claims are generally at the mercy of the parties involved in the accident to promptly report the claim. A personal injury insurer thus cannot conduct any interviews until after a claim has been submitted and only then if the parties have exchanged accurate information. Otherwise the insurer may experience a delay in getting enough witness information to conduct interviews. In the personal injury setting, insurers should have a policy of proactively securing witness information and conducting interviews within 24 hours of the occurrence when possible.
Another useful finding from Odinot, et al. is that “a repeated interview yielded on average, 21% of previously unreported details…” Of note, Odinot, et al. did not find that reminiscence reduced study participants’ accuracy and specifically reported that “contradictory testimonies were extremely rare…” The results of the study demonstrate that “two cognitive interviews can elicit more information than just one.” Other studies have also found that multiple interviews elicit more information than a single interview and that the additional information, though technically inconsistent, was nonetheless accurate.
These findings suggest that to obtain the most accurate and complete witness testimony, two interviews should be conducted rather than just one. We tend to think that reminiscence is an inconsistency that should be viewed with suspicion; however, Odinot, et al. (and other studies) show that reminiscence is in fact accurate. If we want the fullest and most accurate witness statements, we should accept that a second interview will likely produce more information than just one interview and that so long as the additional information is not contradictory, it is likely to be accurate. As noted above, Odinot, et al. concluded that “there may be a greater chance that these details [from the first interview] will be used as memory cues in future interviews and/or that an earlier cognitive interview reduces forgetting of details.” Fisher, et al. demonstrate that reminiscence shoud generally be considered accurate: “No matter how we scored the data, there was no evidence to support the ‘Courtroom’ theory that reminiscence is predictive of inaccuracy of the overall testimony.” Remarkably, even witnesses who made many contradictory statements were found to have an overall accurate recollection when taking out the contradictory statements.
To get the most out of the interview process, some simple rules should be followed. First, at least two interviews should be conducted. This is the best way to guarantee the most complete information will be obtained. Second, the first interview should be completed as soon as possible after the event, preferably on the same day. The second interview should occur after a delay of at least one day but no more than seven days. Third, all questions should be open-ended and non-suggestive. The reason is that numerous studies demonstrate that asking closed questions such as “did the suspect have facial hair?” produce inaccurate witness recollection when compared to open questions such as, “what did the person look like?” Studies also demonstrate that suggestive questioning causes witness inaccuracy by cuing the witness into a detail or answer that may not reflect what the witness actually saw. Suggestive questions cause witnesses to think that the suggested answer is the correct one and so they will blend or bend their memory to accommodate the suggestion and hence provide an inaccurate answer. Fourth, the first and second interview should be conducted by the same person. For reasons not entirely understood, both reminiscence and accuracy increase when both interview are conducted by the same person. Following these steps will help ensure that you obtain the most complete and accurate information possible, which will ensure that the story you tell is the most credible one.
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.
Claims with chronic whiplash symptoms that develop after a low-speed motor vehicle accident are often difficult. The defense points to imaging studies that do not demonstrate evidence of pathology. The plaintiff points to a prior history of normal health without any neck problems or pain complaints. Each side points to their evidence and asks the jury (if the case goes to trial) to reach their preferred conclusion:
The defense will point to the low speed of the impact to demonstrate that their position is more credible, i.e. the speed was so low no person could have suffered more than a minor, temporary neck strain. The plaintiff will try to counter this with evidence that the speed of the striking vehicle at impact cannot accurately convey the forces transmitted to the plaintiff’s cervical spinal column and musculature. In truth, there is little direct evidence that supports either side’s position in these claims.
That may be changing, though. Researchers at the Feinberg School of Medicine at Northwestern University have uncovered what may be objective evidence supporting the claims of chronic whiplash injuries that arise in approximately 25% of all rear-end motor vehicle accidents. Specifically, the researchers found evidence of fatty deposits that accumulated in persons who went on to suffer chronic whiplash injuries in fat and water MRI scans taken within one to two weeks after the initial injury. Specifically, the MRI scans demonstrated “large amounts of fat infiltrating the patients’ neck muscles, indicating rapid atrophy.” Lead Investigator James Elliott stated that “we believe this represents an injury that is more severe than what might be expected from a typical low-speed car crash.”
The significance of the findings, if replicated, could be great for personal injury claims involving allegations of chronic whiplash injuries. If the water-fat ratio in neck muscles becomes an accepted objective test of whiplash injury chronicity, it could take the guesswork out of these claims. This of course seems like it would be a boon to plaintiffs’ claims; however, the defense would benefit also because it would limit chronic whiplash injury claims to those with objective evidence of injury. In short, it could potentially provide definitive evidence of which claims are legitimate and which claims are not. A residual beneficial effect for both sides would be more effective treatment. As Elliott notes, chronic whiplash patients “may require a more concerted effort for pain management from their physician and help from a psychologist.” Better treatment started sooner would be good for everyone involved in whiplash claims.
Lately it seems like we are stuck in a feedback loop: yet another study has found a common treatment modality for acute low back pain to be much less effective than assumed. In this case, medical researchers found that low dose oral corticosteroids (i.e. prednisone) did not improve pain and offered only modest functional improvement among patients suffering from acute sciatica due to a herniated lumbar disk. According to lead author Harley Goldberg, DO, a spine care specialist at Kaiser Permanente's San Jose Medical Center, "[t]hese findings suggest that a short course of oral steroids (prednisone) is unlikely to provide much benefit for patients with sciatica due to a herniated disk in the lower back.” Researchers also found that “oral steroids did not reduce the likelihood of undergoing surgery in the year following steroid treatment.” Given the apparently modest benefits of oral steroid treatment for acute sciatica and the known deleterious effects of negative treatment history, it would seem prudent for researchers to verify the results of the study as soon as possible. Otherwise we will all be stuck paying for treatment that doesn’t work and could possibly render later treatment modalities less effective.
Cogito ergo sum. These words of Descartes are more commonly known to English speakers as “I think therefore I am.” But what have they to do with medical treatment or medico-legal claims? Quite a bit actually. Descartes is famous among philosophers (a relative sort of fame) for arguing that the mind and the body are distinct entities. We see evidence of this intellectual approach in our distinction between the biological and the psychological. Take brain injuries as an example. We distinguish between what we consider to be organic, neurological injuries from the psychological effects of injury. Hence the distinction between post-concussion syndrome and post-traumatic stress disorder. The belief in dualism is extended into the legal realm also, where we have higher standards for proving mental only worker’s compensation injuries than mental injuries in worker’s compensation that arise out of a physical trauma. But is our insistence on this dualism, that mind and body are separate entities, valid?
Much research suggests that our conception of mind and body as separate entities is not so clear cut as we would like to believe. A good example of why we should be wary of separating the psychological from the physical involves the placebo effect. Another example involves treatment history. A group of researchers from German universities and Oxford University authored a 2014 study in which they found that treatment history experience has an astonishingly large effect on subsequent treatment, even when the type of treatment changed. In their study they gave patients analgesic medication delivered through a patch and then later switched to a different analgesic medication delivered through a topical cream. They found that those who responded positively to the first treatment also responded positively to the second treatment. More significantly, the authors found that those who responded negatively to the first treatment also responded negatively to the second treatment despite being given a different medication with a different delivery mechanism.
The findings are significant because the study “results may … challenge step care approaches in which treatment failure has to precede the prescription of next-in-line interventions.” The treatment carryover effect could have a big impact on problematic claims where acute injuries become chronic condition and nothing seems to help. As the authors note, “treatment experiences are ubiquitous in clinical care, particularly in patients suffering from chronic diseases. Carry-over effects might therefore be particularly relevant in chronic conditions where treatments often fail repetitively and negative treatment experiences accumulate along the course of the disease.” The authors suggest that targeted therapy, whether explicit psychological counseling or more implicit methods, could be used to address and attempt to overcome negative treatment history.
The study demonstrates that our minds and bodies are not as separate as we sometimes like to think they are. This can be frustrating when administering medico-legal claims because we want concrete answers. We want diagnostic images to have a one-to-one correlation with physical complaints. We want to know that if someone is prescribed a medicine, that it will work. Unfortunately, medical science tells us that the healing and treatment process is more complicated. While the treatment history study demonstrates the unpredictability of the healing process, it does offer learning opportunities. At a minimum, if we see a failed treatment history we then know that the likelihood of the next intervention working is diminished. In addition, knowing the effects of treatment history can provide a reason to have claimants undergo independent medical examinations. Once a pattern of failed treatment history develops, an independent medical examination may be worthwhile to attempt to halt the seemingly endless spiral of failed treatments.
The business of sorting out what is organic or biological from what is psychological is messy and probably futile. Perhaps it is time that we put Descartes to rest and start thinking of the mind and body as inextricably linked, so inextricably linked that they are not in effect different. Ego sum. That’s it. In the claims experience, this should help us deal with and understand the myriad responses to similar injuries that different claimants have.
One of the most difficult things involved in analyzing claims is the difference between inductive and deductive reasoning. Many of us remember the most basic form of deductive reasoning in the form of the classic syllogism presented in high school and college composition classes:
The essence of deductive reasoning is starting with a general premise or hypothesis and using specific or particular examples to reach a conclusion. An example in the medico-legal world is the general consensus that keyboard use does not cause or aggravate carpal tunnel syndrome. This would be a general premise. To support our argument we would then cite the relevant medical literature that demonstrates the correlation between keyboard use and carpal tunnel syndrome symptoms is coincidental and not causal. We would also want to cite the relevant medical literature demonstrating the types of motions and forces necessary to cause carpal tunnel syndrome. In addition, we would cite to medical literature demonstrating common risk factors for developing idiopathic carpal tunnel syndrome. Finally, we would conclude that in our case the employee’s carpal tunnel syndrome bears no relationship to her employment because her keyboarding could not have caused the carpal tunnel syndrome, her other job duties do not involve the type of repetitive motions or forces that would be necessary to cause or aggravate the carpal tunnel syndrome, and that she demonstrates X number of factors that predispose her to idiopathic carpal tunnel syndrome.
Inductive reasoning is the opposite: we take many specific instances to reach a general conclusion or hypothesis. For example, when an IME doctor says something to the effect of, “I have performed 10,000 total knee replacements and I have never seen osteoarthritis of the knee caused or aggravated by standing,” the doctor is engaged in inductive reasoning. Likewise, all peer-reviewed, randomized, controlled medical studies use inductive reasoning because they measure the effects of individual outcomes in test and control group subjects and draw general conclusions therefrom.
In one of the more famous clinical trials, Kirkley, et al. concluded that using arthroscopy to treat osteoarthritis of the knee produced no better outcomes than treating the condition with physical therapy and medical management alone. To reach this conclusion, the researchers randomly assigned patients with osteoarthritis of the knee to two groups, one which received arthroscopy, optimized physical therapy, and medical management and the other (control) group which received optimized physical therapy and medical management alone. The researchers ensured that the subjects in each group were sufficiently similar so that unrelated factors (large bucket handle meniscus tears, extreme varus or valgus alignment) would not influence the outcomes. Blinded nurses then followed both groups to measure the outcomes in each (patients in both groups wore neoprene knee sleeves so the nurses could not tell which persons had arthroscopy and which did not). The researchers measured the results and found that there was no difference between the two groups with respect to physical function, pain, or health-related quality of life at 6, 12, 18, and 24 month intervals. Based on the findings, the researchers concluded that “arthroscopic surgery provides no additional benefit to optimized physical therapy for the treatment of osteoarthritis of the knee.”
The question for us is how to apply this to the world of medico-legal claims. Much of what we do when we analyze claims is inductive reasoning. We look at particular behavior and argue that the claimant is not credible because he did X, Y, and Z, suggesting he isn’t being honest. The hidden premise is that when we have observed others doing X, Y, and Z, we have found that they were being dishonest. In order for inductive reasoning to be sound, we have to be able to demonstrate that the claimant in our case is sufficiently similar to the claimants in other cases that comprise the sample against which we are comparing our claimant in order for the conclusion to be valid. Perhaps the X in our claimant’s case is employees who claim they were injured on a Friday while at work but do not report it until the following Monday. In general, this fact pattern may suggest a credibility problem. However, what if our claimant was a salesperson not expected to report to the office until Monday who was leaving after making his last call for the day who slipped while leaving the client’s house and suffered a head injury that required him to be transferred by EMS to a hospital. Would this employee’s failure to report the injury on Friday still be a red flag regarding his credibility or honesty?
The point is that for inductive reasoning to be persuasive and accurate, it needs to be concrete and consistent. Change the sample or the instance to which you are comparing it and the argument becomes less persuasive. When analyzing a claim it is critical to recognize when you are using inductive reasoning to reach a conclusion so you can determine if there is actual evidence that supports your reasoning or if your conclusion is based on shaky assumptions about either the sample or the particular instance.
In essence, claims often involve a dance of inductive and deductive reasoning. We frequently use inductive reasoning techniques to establish the minor premise of our deductive argument. Let’s return to the carpal tunnel syndrome example. We know that keyboarding does not cause carpal tunnel syndrome. This is our general premise. We also know what types of forces have been proven to cause carpal tunnel syndrome. Our job, if we represent the employer, is to demonstrate that that claimant’s chief occupational exposure is through keyboarding and that she does not engage in other occupational activities that are known to cause carpal tunnel syndrome. This is our minor premise. Establishing that our claimant fits into the minor premise is an inductive process. We gather all relevant information available to us: job description, job video analysis, recorded statement, witness statements, etc. to demonstrate what the claimant does in her job to the highest degree of probability possible. Then we make the inductive leap and state that the claimant engages primarily in keyboarding and does not engage in any occupational activities known to cause carpal tunnel syndrome. We are then able to argue to the ALJ that the claimant’s carpal tunnel syndrome is not work-related based on the medical consensus that keyboarding does not cause carpal tunnel syndrome because her only occupational exposure is keyboarding. We might also wish to gather evidence that the claimant has characteristics common to those who develop idiopathic carpal tunnel syndrome to be able to provide the ALJ with an explanation for why she developed carpal tunnel syndrome, though strictly speaking this is not necessary to our deductive argument.
In this way, we integrate inductive and deductive reasoning to establish a strong argument. The key, though, is to understand when we are engaging in each type of reasoning so that we are gathering the appropriate evidence for each type of reasoning. If we understand this our reasoning will be sound and persuasive and we will be more effective in administering claims.
Gender. It’s all over the news for a variety of sensational reasons that have nothing to do with independent medical examinations. Nevertheless, gender can be important in independent medical examinations. For example, a study published online in Radiology finds women who sustain mild traumatic brain injuries have significantly greater working memory impairment which persists for longer periods than men who suffer mild traumatic brain injury. In managing a claim file with a mild traumatic brain injury, this information is important for at least a couple of reasons. First, it should help gauge when a claim has gone from an expected recovery pattern to an unexpected one. If we know that men typically do not experience working memory impairment in mild traumatic brain injuries beyond 4 weeks and a claimant is still complaining of memory problems beyond that time, we should certainly be asking questions of the provider and may wish to consider setting up an IME to get a second opinion. Conversely, if a woman who suffers a mild traumatic brain injury complains of working memory problems 8 weeks after the injury, we should not necessarily be alarmed.
Second, knowing the differences in the way persons of each gender respond to common injuries and conditions can help us tailor our questions to the IME doctor. Certainly in the mild traumatic brain injury example involving a male claimant we would want to specifically ask whether claimed working memory impairment past four weeks post-injury would be unusual for a male. In this way, we can use a question to alert the IME doctor as to why we think something is remiss in the claim and to elicit a specific explanation that will bolster the basis for the doctor’s opinion. Another example of a gender-specific response involves whiplash injuries. The medical literature demonstrates that female gender is associated with greater risk of whiplash injuries resulting in chronic or permanent complaints. If we have a male claimant alleging permanent whiplash-type injuries without objective evidence of ongoing injury, we would want to direct the IME doctor’s attention to whether this is consistent with the literature on how male bodies respond to whiplash.
Beyond medico-legal claims, gender matters also. A lot. Take heart attacks. Most people know that squeezing chest pain is a symptom of heart attacks, often described “like an elephant” sitting on the chest. Far fewer people know that “women can experience a heart attack without chest pressure.” Also, according to the American Heart Association, “women are somewhat more likely than men to experience some of the other common symptoms, particularly shortness of breath, nausea/vomiting and back or jaw pain.”
Why is this significant? First, heart disease kills more men and women than all forms of cancer combined. Second, the key to surviving heart attack is early intervention. If we do not differentiate heart attack symptoms by gender and educate people accordingly, more than half the population is at increased risk of death from the leading cause of mortality simply because they lack basic, simple knowledge. This increased risk has nothing to do with age, wealth, health insurance, race, etc. The only reason for the increased risk is that the former one-size-fits-all-genders approach to medicine forgot a simple truth: men and women are different.
In the medico-legal world we administer claims of both male and female claimants. To fulfill our responsibilities most effectively, we must recognize that men and women are biologically different in ways that can affect the outcome of a claim. We must be aware of the physical conditions and injuries to which men and women respond differently so we can differentiate between what is normal and what is not, so we can know when to get an IME, and so we can ask the right questions once we schedule an IME. Injuries are not “one-size-fits-all-genders” any more than heart attacks are. Knowing this will make us better claims handlers, nurse case managers, paralegals, and attorneys (and it might help save a life, perhaps even yours).
We have posted before about the benefits of standing during the workday. New research suggests that standing while working is not only physically better for you, but it also leads to improved cognitive performance. Researchers from Texas A&M University equipped classrooms with standing desks and compared student performance to a control group using traditional, seated desks. Researchers found that students using standing desks had improved academic performance when compared to their peers using seated desks. The main advantage of standing desks appears to be that students who were standing maintained their focus better than seated students. The results should not be altogether surprising because “previous studies have shown that physical activity, even at low levels, may have beneficial effects on cognitive ability”, according to lead researcher Mark Benden, Ph.D.
Although the study focused on children in the classroom, adults have been shown to benefit physically from using standing desks. There is no reason to believe that adults would not also benefit cognitively from standing desks. Myriad health problems arise from sitting for extended periods of time for which employers ultimately pay a hefty price in the form of increased health insurance premiums, lost time, and disability claims. Reducing the amount of time employees have to spend sitting makes sense from this standpoint alone. However, employers are also likely to derive performance benefits from employees who stand more and sit less in the form of an increased ability to focus and stay on task.
I spend a lot of time reading news about medical advancements so I can post interesting and useful (I hope) things to this blog. However, sometimes reading about medical advancements can be dispiriting because we frequently are told that what we thought we knew is wrong. Take the recent news that acetaminophen (Tylenol®) is not effective for treating low back pain or knee and hip osteoarthritis. Acetaminophen has been around since 1955 as an analgesic and antipyretic (fever reducer). In addition to its other uses, the American College of Rheumatology recommends acetaminophen as an option to treat knee and hip osteoarthritis. The American College of Physicians and the American Pain Society recommend acetaminophen as a first line treatment for low back pain. One must wonder how many millions of dollars consumers and insurance companies have spent on a drug that essentially doesn’t work to treat low back pain and knee and hip arthritis pain based on the recommendations of doctors, pharmacists, and nurses. And this is just the most recent example.
Naturally, we can be led to believe that there is something nefarious or avaricious about the medical profession and the pharmaceutical industry when we learn of developments like the recent findings about acetaminophen’s ineffectiveness. As someone who in the past defended employers and insurance companies against many carpal tunnel syndrome worker’s compensation claims allegedly related to keyboard use, I have gotten extremely upset at the amount of money spent to cover carpal tunnel syndrome claims that virtually no credible physician would consider to be work-related today because research now demonstrates definitively that repetitive keyboard use does not cause or aggravate the progression of carpal tunnel syndrome. Ditto performing arthroscopic chondroplasty to treat knee osteoarthritis. I have certainly entertained thoughts of greedy physicians eager to cash in on patients and the worker’s compensation system, especially when we learn that what they thought was true was in fact erroneous. I think we have this impulse because we know that medicine is based in part on science; hence, we expect medicine to be reliable and its practitioners to possess accurate knowledge. Any experience to the contrary makes us feel like we are being duped.
The problem is that our understanding is only partially correct: medicine is, in part, based on science; however, the conclusions that we draw from our understanding is incorrect: scientific fields of study are, by the very nature of science, in perpetual flux. Scientists form hypotheses based on observations. They then perform experiments to test the hypotheses. The experiments may confirm a hypothesis or refute a hypothesis or fall somewhere in between. Scientists try to isolate outside variables and eliminate bias from the experiments, but they are not always successful in doing so. Hence, the results from an experiment that seem to be valid may be found to be problematic or invalid at a later date if the results cannot be duplicated or if unappreciated confounding variables are discovered.
The placebo effect of sham arthroscopy exemplifies how this can happen. The initial investigators into the effectiveness of using arthroscopic chondroplasty to treat knee osteoarthritis could not conceive of a placebo effect in a surgical setting, so they did not even consider the possibility that arthroscopy could have a placebo effect. Early studies demonstrated that arthroscopic chondroplasty was effective in treating knee osteoarthritis. However, after years of treating knee osteoarthritis with arthroscopic chondroplasty, a number of doctors began to suspect that it was not particularly effective based on the results they were observing. Some noted the initial positive results and subsequent lack of expected improvement were similar to a placebo effect. These doctors began hypothesizing that the arthroscopy itself was having a placebo effect. Two studies were performed to reevaluate the long term effectiveness of treating knee osteoarthritis with chondroplasty, including one that used a control group that received sham arthroscopy. Both studies concluded that treating knee osteoarthritis with chondroplasty is no more effective than treating knee osteoarthritis without surgery. The study using sham arthroscopy further concluded that arthroscopy has a significant and measurable placebo effect which accounted for the perceived success of using arthroscopic chondroplasty to treat knee osteoarthritis in earlier studies.
The fact that science requires constant questioning of the status quo is a profound virtue, despite our natural desire for settled and secure knowledge to the contrary. Consider that if medical researchers had not critically observed patients undergoing arthroscopic chondroplasty for knee osteoarthritis and questioned earlier research, doctors would be continuing to perform a useless procedure at great cost to patients and third party payers. Similarly, if we didn’t constantly question our knowledge based on our observations, we would still consider smoking cigarettes to be beneficial to pulmonary health (as many once believed) and would consider bloodletting to be an effective treatment for myriad conditions and diseases. Science is hard and sometimes exasperating because scientists never rest or accept the status quo; however, this is its genius.
In many ways, constantly questioning and not accepting the status quo is useful in the claims world also. One way to bring the constant reexamination of assumptions from science to claims is to question some assumptions that we rely on to see if they have a legitimate basis in reason and fact. A perfect example is the list of standard red flags that are cited as increasing the likelihood that a claim is not legitimate. Some standard red flags include:
It may be that these red flags are based on legitimate assumptions, but if they are not it is a waste of time for claims professionals to devote extra time to a file based on them. Let’s examine them one-by-one to see if the red flag assumptions bear out.
First, we want to question a claim because we didn’t get notice of the injury until after the employee was laid off. The assumption is that if the injury was legitimate the employee would have reported it when it happened. The conclusion drawn is that the late reporting is done either to obtain continued wages in the form of TTD (and perhaps medical coverage as well) or to spite the employer. Consider another assumption though: the employee did not report the injury while he was working because he feared he would lose his job if he did so. Once the job was gone, he no longer faced the same economic or psychological constraints. This assumption may seem strange, but we know people regularly engage in such counterintuitive behavior. For example, it is established fact that a significant percentage of innocent persons who are investigated for and accused of committing a crime will falsely confess or plead guilty to a crime they did not commit. The reasons people do so are myriad, but it is beyond debate that this behavior regularly occurs. Before we make the assumption that reporting injury after termination or lay off suggests a claim is not legitimate, we should at a minimum have other reasons supporting the assumption since there are equally plausible reasons that suggest late reporting is in fact a legitimate behavior. Better still, we should examine claims in a scientific manner to determine if there is actual support for our assumption that claims reported after termination or lay off are baseless more often than claims not reported after termination or layoff.
Second, we are told that unwitnessed accidents are suspicious. By itself this statement must be admitted to be practically incoherent. The assumption is that for an accident to be legitimate it must have been witnessed. Absent context, this is nonsensical. Can we really equate the legitimacy of an inventory clerk who spends 85% of her day alone and suffers an unwitnessed injury with a line worker who spends 98% of her day in the presence of co-workers and suffers an unwitnessed injury? Also, the context of the injury itself is important. The facts are considerably more likely to suggest legitimacy (or lack thereof) than whether or not someone else saw the injury happen.
Third, we are told to be suspicious when an injury related to the same body part affected by a preexisting condition. The assumption seems perfectly legitimate: the preexisting condition is causing the problem and the worker is claiming worker’s compensation to avoid wage loss, out-of-pocket medical expenses, etc. However, is it not equally plausible that a preexisting condition means that the body is in a weakened state and is therefore more susceptible to injury than if it were healthy? Obviously other factors will determine the likelihood of the injury’s legitimacy, but that is the point. The red flag and the assumption on which it is based gets us no nearer the truth, and possibly farther from it, than if no red flag assumption was made.
By questioning whether the assumptions we use to evaluate claims are true, we can weed out those which have no reasonable basis in fact from those that do. And making claims decisions based on reason and fact will lead to more accurate and efficient claims analysis. We no longer practice bloodletting because it rested on faulty assumptions about human physiology. It is important that we examine our assumptions so that we don’t practice bloodletting in our claims.
Over the past year, we have been periodically publishing posts about strategies to improve decision making that are based on an article Jeffrey Brewer wrote on the topic. Our prior posts addressed the first nine of the ten individual strategies Brewer outlined:
At long last, we have come to Brewer’s tenth and final step, where we put all the prior steps together:
Before we address the final step in detail, we must review why we are concerned with decision making in the first place. The chief reason is that a plethora of scientific research tells us that detrimental cognitive biases and heuristics infect our decision making if we do not adopt a systematic approach to control and limit their effects. Brewer’s strategies for improving our decision making offers just such a systematic and rational approach to limiting the effects of cognitive biases and heuristics.
A short review of how cognitive biases and heuristics detrimentally effect decision making is also in order before we get to the final step. One heuristic that often arises in the medico-legal context is the association of correlation with causation. Thus, we frequently are faced with ALJs, circuit court judges, and juries who conflate correlation with causation and assign legal causation based on temporal proximity rather than actual causation. Hence, in the worker’s compensation setting ALJs often conclude that employment activities caused or aggravated a low back problem simply because the worker experienced pain while working. It is incumbent on us to understand this casual but unconscious heuristic so that we can introduce persuasive evidence to attack it and demonstrate that it is fallacious reasoning.
One cognitive bias that often arises in the medico-legal context is the confirmation bias, which causes us to overweigh information consistent with our position (i.e. that the employee’s complaints are not related to the workplace accident) and to under weigh information that is inconsistent with our position (i.e. the employee’s complaints are related to the workplace accident). Failing to have a strategy to reduce the effect of the confirmation bias will cause us to persistently and unconsciously overestimate the strength of our position. This in turn is likely to persistently compromise our ability to settle claims and lead to bad results. Of course the good news is that both sides are subject to the same cognitive biases and heuristics. Thus, if we can limit their effects on our decision making, we will be at a comparative advantage.
So now that we know why developing a consistent decision making strategy is important, let’s get back to Brewer’s final step: to develop self-consciousness concerning one’s own thinking and reasoning process. This step involves reflecting upon the decision making processes one is using, deliberately invoking those steps that are most appropriate to the given circumstances, and consciously transferring those reasoning methods from familiar to novel contexts. In other words, the final step is to internalize the decision making process so that we automatically follow it in every case, new or old.
In essence, Brewer wants us to have a method for problem-solving that is second nature, which will ensure that we will reason well and thoroughly when thinking on our feet. For example, we may be familiar with rotator cuff claims but may be faced with a claim involving an alleged SLAP lesion, with which we are considerably less familiar. The claim’s relative novelty should not faze us if we have mastered the process of rational decision-making. If we lack expertise, the process of analyzing, investigating, and judging will take more time than it otherwise would; however, the process itself should not be daunting because it should be the same regardless of our expertise. Evidence and assumptions are subject to the same testing and analysis. Our conclusions are evaluated in the same way to determine internal consistency. We will need to learn what the rules governing the new problem are and how they are applied to particular cases. Once we have this information, the actual decision-making process is the same regardless of whether we are familiar with the type of claim or not.
Take the diagnosis of SLAP lesions. Often a claim involving a SLAP lesion will be made based on MRI findings. We have, for whatever reason, a tendency to reflexively accept MRI as being accurate diagnostically and as accurately establishing a causal link between a patient’s physical complaints and the findings on the scan. In truth, MRIs are neither accurate in all instances nor can an MRI alone establish that the patient’s physical complaints are related to the findings on the scan. For some orthopedic conditions, MRI is the diagnostic gold standard; however, for other orthopedic conditions MRI is not an effective diagnostic tool. For example, studies have shown that MRI is more sensitive for diagnosing posterior collateral ligament (“PCL”) tears in the knee than arthroscopy because of the ligament’s anatomical position. On the other hand, diagnosing SLAP lesions on MRI is exceedingly difficult with false positive rates of over 20% and false negative rates that can exceed 50%. The American Academy of Orthopedic Surgeons reiterates that MRI is not considered reliable in diagnosing SLAP lesions:
Although other diagnostic tools—such as radiographs, computerized tomographic arthrography, and magnetic resonance imaging—are frequently used, the results are not considered reliable enough to make a definitive diagnosis of a SLAP tear.
Further, the Mayo Clinic reports that:
As imaging continues to improve and more people undergo MRI studies, physicians are finding that a significant percentage of people within the general population have labral changes that do not cause symptoms or need repair. In particular, there are age-related changes that can cause degenerative splits and tears in the labrum. While they may not be symptomatic, visually they can mimic a SLAP lesion. When these appear in MRI studies, misleading assumptions may be made between the images and the patient symptoms.
If we are self-conscious about our own thinking and reasoning, we will know that the first question we should be asking when we face a diagnostic imaging study, MRI or otherwise, with which we are unfamiliar (due to the body part or the actual test itself) is the rate of false positives and false negatives for the imaging test. From there we will know that we should ask what is the diagnostic gold standard and how does the current test compare to other diagnostic techniques, including physical examination? What does the medical community recognize as the definitive test or tests for establishing the diagnosis? What is the consensus on the relationship between particular physical complaints and the findings on diagnostic imaging studies? Before we accept test results or acquiesce to a request for testing, we will be able to determine if the results or a request are likely to be considered reasonable as a matter of medical necessity and whether we should be considering a second opinion record review (at the very least) to evaluate the results of the a request.
With respect to SLAP lesions, the increase in SLAP lesion repairs and the rather dismal success rate offers a good example of why adopting and adhering to a rational decision-making process is so important. Between 2004 and 2009, the rate of SLAP lesion repair increased 105% despite the fact that the incidence of SLAP lesions in the general population did not appear to increase. This should give us pause to ask a few questions in keeping with our decision-making strategy. First, was a diagnostic tool developed that demonstrated an increasing amount of symptomatic SLAP lesions in the general population? Answer: no. Second, was a new surgical technique developed that allowed previously unrepairable, symptomatic SLAP lesions to be successfully repaired? Answer: no. Third, was a surgical technique developed that greatly increased the rate at which SLAP lesions could be repaired successfully? Answer: no. Fourth, was there a change in the general population that caused substantially more people to suffer from symptomatic SLAP lesions? Answer: no. So why, then, are so many more surgeries to repair SLAP lesions being performed? Perhaps there wouldn’t be such a precipitous increase if an internalized process of rational decision making were applied to these claims.
Ultimately, using a rational decision making approach will cause us to get beyond the bias we have toward overweighting MRI findings and to develop a strategy for managing the claim based on fact as opposed to bias and assumption. And when we do this, when we are self-conscious about our thinking and reasoning process, we will know that just because an MRI finds evidence of labral changes and an orthopedic surgeon says the employee needs surgery to repair the labrum doesn’t mean we should accept the findings or the recommendation at face value. Instead, we will get a second opinion and potentially spare ourselves the cost of a surgery that is likely to be unnecessary and ineffective. In the end, this is the essence of good decision making.
Risk Management Consultant Barry Thompson has an interesting post at his blog, www.claimanswer.com, in which he argues that all worker's compensation medical claims should be processed through Medicare from day one. The gist of his argument is that:
1) It [processing worker's compensation medical claims through Medicare] provides a nationally accepted level of care to injured workers.
2) It brings clinical common sense to an otherwise specious and manipulated system.
3) It ends the oppressive impact of MSA’s.
4) It saves an incredible amount of direct costs, frictional costs and resources while reducing litigation.
To be clear, Thompson proposes that worker's compensation carriers would reimburse Medicare for claims deemed to be wholly or partially related to a work injury and that the indemnity system would remain intact. It is his argument that Medicare has better, more uniform standards for assessing medical causation and is much better at keeping treatment costs under control. Food for thought.
Prescription pain medication overuse and abuse is and has been a national problem for many years now. We have previously written about the issue in Second Opinions. Among the common suggestions that experts make for curbing the problem are more stringent dosing guidelines, creation of and active prescriber participation in state prescription drug monitoring programs, and greater provider education about the problem. Recent data from Washington State shows how effective these interventions can be. Medical News Today reports on a study published in the American Journal of Public Health that while prescription opioid death rates have remained steady for the nation as a whole from 2008 to 2012, Washington State saw a 28% decline. The article specifically notes that:
New state laws on prescription opioid use, including one that mandated the adoption of new dosing guidelines; a statewide Prescription Drug Monitoring Program; and telemedicine and on-line programs for health care providers have all been key to the turnaround.
Provider participation in telemedicine online programs was seen as a key factor in educating providers on appropriate dosing, medication changes, and dangerous drug interactions to avoid. The electronic programs also have the advantage of allowing providers to discuss difficult cases with specialists to help craft solutions that avoid dangerous opioid use, decrease patient suffering, and preserve the doctor-patient relationship.
Here in the Midwest, we should demand that our clinicians, university medical centers, and legislators work together to craft an effective program to curb prescription pain medication overuse and abuse. The Washington State example demonstrates that substantial, cost-effective improvement in prescription pain medication practices can be achieved when all concerned parties come to the table and work together. And for those of us in the medico-legal world, curbing prescription pain medication overuse and abuse would be a welcome development in helping control the monetary and human costs of many claims.
Chronic pain devastates sufferers and those close to them. When it arises in the context of a worker’s compensation or personal injury claim, chronic pain complicates claims management and invariably increases costs, making a satisfactory resolution to all parties difficult to achieve. The most heartbreaking context in which chronic pain arises is, however, military veterans injured in combat. Unfortunately, veterans returning from Iraq or Afghanistan suffer higher rates of chronic pain than veterans of any other U.S. Military conflict. The good news is that the VA is aggressively researching the problem and recently made some headway (that could alter the standard treatment protocol for all chronic pain sufferers, regardless of etiology).
VA researchers published the results from the ESCAPE trial (which stands for “Evaluation of Stepped Care for Chronic Pain”) in which they found that a specialized stepped care program resulted in participants reporting a “decrease in pain severity and 30 percent improvement in pain-related disability.” The results are significant because “we know that medications alone are only modestly successful in helping [chronic pain sufferers]” and that “current pain treatments haven’t made much of a dent,” according to Dr. Matthew Bair, who led the study.
The stepped program involved an initial 12 weeks of treatment with analgesic medication and self-management using such strategies as relaxation techniques. The second step involved 12 weeks of cognitive behavioral therapy. The second step helped participants “counter maladaptive thought” and to learn what activities they could substitute for pre-deployment activities to decrease pain and remain physically active. This second phase would seem critical in the claims context where the greatest challenge is often simply overcoming the disability mindset, or turning the ingrained and almost pathological attitude of “I can’t” to “I can.” In many cases, the issue is not that the chronic pain sufferer cannot perform an activity so much as it is that they convince themselves that they cannot before even attempting the activity. The exciting thing about the study results and using targeted cognitive behavioral therapy in general is that it can help reorient the way chronic pain sufferers view activity in general. Just because an injured worker can no longer train for and participate in marathons due to chronic low back pain does not mean that she cannot complete an 8-hour day as a delivery driver. If cognitive behavioral therapy can help chronic pain sufferers to start looking at the world from the psychological perspective of “I can,” it would seem to go a long way toward improving both the lives of chronic pain sufferers and the outcomes of chronic pain claims.
The ESCAPE study is an exciting development in managing chronic pain patients. Given the difficulty of managing chronic pain claims and the explosion in prescription opioid drug abuse related to treatment of chronic pain, it will be worth following the ESCAPE study to see if its results can be replicated. Even a 30 percent reduction in disability level would likely be significant in a chronic pain claim and could easily represent the difference between partial impairment (and a return to work) and total disability.
Perhaps the most difficult challenge in orthopedics is articular cartilage. You know, the white, pearlescent stuff that covers our joints and makes them operate smoothly and without pain (before arthritis sets in, that is). And why is articular cartilage so difficult? Well, it’s pretty simple: we can’t regrow it when it breaks down and wears away. Hence, the only options for treating worn articular cartilage or osteoarthritis are, once the pain and dysfunction become unbearable, to fuse the worn joint or to replace it with artificial components. Despite advances in orthopedic components and surgical techniques, joint replacement is a suboptimal option for treating worn articular cartilage. Fusion is even less optimal, the point of joints being articulation (or motion).
If we could figure out a way to regrow articular cartilage, calling it game-changing would be an understatement. It would be revolutionary, especially for those in the worker’s compensation world where countless musculoskeletal injury claims involve allegations that work injuries or occupational exposure caused or worsened osteoarthritis. Can you imagine a world where a claimant with debilitating knee pain goes to the doctor and rather than walking out with a knee replacement, the claimant goes to a gene therapist who treats the knee by growing new articular cartilage? No surgery, no infection, no rehab, no disability, just a new knee.
Turns out this dream is closer to reality than you might think. Researchers in Manchester, England recently published research in which they used embryonic stem cells to regrow articular cartilage in the damaged knee joints of rats. Remarkably, "[a]fter 12 weeks, the cartilage surface was smooth and similar in appearance to normal cartilage.” In contrast to earlier efforts which produced abnormal and disorganized tissue, including tumors, the Manchester scientists were able to grow wholly normal, functioning cartilage in the rats’ knee joints.
These findings from the Manchester study are exciting (almost beyond exciting, truth be told). The research is worth monitoring as it advances toward testing in human subjects, which is still probably several years away. Nevertheless, this development gives us a glimpse of a potentially arthritis-free future. Imagine that.
Test your own line of reasoning for internal consistency.
Much of the point of Brewer’s preceding rules or decision heuristics was to remove assumptions and emotion out of the claims evaluation process. This step is where we put the prior steps to work for us to evaluate whether we have in fact successfully analyzed the claim before us in an unbiased and logical fashion.
Let us assume that we are analyzing a claim involving an acute foot injury followed by years of occupational exposure in an obese, 46-year-old, female claimant. When the claimant was 37, she suffered a calcaneal fracture while on the job. She is employed as an assembler doing light work, but stands for the duration of her shift. She was not issued final restrictions after reaching an end of healing following the first injury, but was issued a 15% PPD rating based on loss of motion. The employer did not offer any accommodations to limit the amount of standing the claimant would have to do, but the claimant never requested an accommodation or complained about standing too much. The claimant subsequently developed arthritis and is scheduled to undergo a subtalar fusion. Medical opinions support three possible causes for the claimant’s current condition and the need for the fusion:
In our case, we represent the carrier on the risk for the subsequent occupational exposure date of injury. Our IME doctor concluded that the claimant developed the arthritis due to her age and weight and supports his conclusion by arguing that the claimant would have become symptomatic much sooner if the arthritis were posttraumatic. The IME doctor for the carrier on the risk for the acute fracture date of injury concluded that the arthritis is posttraumatic but that the subsequent period of occupational exposure caused the arthritis to progress faster than it otherwise would have. Finally, the treating surgeon concluded that the acute fracture is the sole cause of the arthritis and the need for the surgery.
During the course of our investigation we learned several things:
Based on the information obtained in the investigation, we developed a litigation plan and completed our investigation. Now we have our litigation plan in place and are preparing to roundtable the claim with our supervisor. Before heading to the roundtable, we have decided to run through the claim again to judge whether we are still comfortable enough with our analysis to present and defend it at the claims roundtable.
We reached the following conclusions about the claim:
To prepare, we need to analyze our conclusions to see if they are internally consistent. First, we concluded that the injury is likely to be deemed work-related. In examining the claims file, two strong facts support our conclusion. One, the employee’s uninjured foot shows no evidence of arthritis. This is significant because the claimant’s occupation stresses the subtalar joints of both feet equally (or nearly so). Hence, if the arthritis were idiopathic we would expect to see the arthritis in both subtalar joints. Two, subtalar arthritis is a well-known and relatively common complication of calcaneal fractures.
Second, we concluded that the ALJ is more likely to conclude that the original fracture is the appropriate date of injury for the claimant’s current condition. Our basis for concluding this is that the treating physician who treated the original injury and the current condition is the same; therefore, he has had the best chance to observe the claimant over time which renders his opinion most credible. This is not as solid a position as the first one is. In a sense, the argument is a non sequitur because it does not necessarily logically follow that the treating physician is better able to determine causation based on familiarity with employee’s condition over time. In making this argument, we have at least one unstated premise that needs to be articulated and explored before we can determine if the argument is in fact internally consistent and valid. The unspoken premise is a common one in worker’s compensation: all things being equal, ALJs consider treating physicians to be more credible than IME physicians. As far as I know, this assumption is based on experience and anecdote and not actual objective data. Hence, we need to be cautious in applying the assumption to our argument and should not consider it necessarily to be dispositive. The reason for our caution is that the assumption is based on the overarching view that most ALJs will, all things being equal, apply the Worker’s Compensation Act liberally and grant benefits to employees making claims. If this view is true, and at least it is reinforced by statute and state Supreme Court pronouncements, then it actually may weaken our assumption that an ALJ will find the treating physician most credible in this case. The reason is that if an ALJ were to find the treating physician most credible, the employee would be stuck with benefits at a considerably lower rate than if the ALJ found the IME doctor for the original date of injury to be most credible. Remember: the IME doctor for the original date of injury insurance carrier finds the claim is work-related and his opinion establishes a date of injury 9 years later, with the corresponding increase in the temporary total disability and permanent partial disability rates that would obtain. If the primary motivating factor of an ALJ in a close case is giving benefits to a claimant then it is reasonable to assume that the ALJ will also be motivated to give a claimant the highest benefit rate when there is a credible opinion allowing her to do so. Thus, we may wish to adjust our opinion and note that the date of injury is likely to be a closer call than we at first posited.
Obviously this is simplistic and something of an exaggeration intended for illustrative purposes. Presumably, we would have considered the problematic assumptions about the date of injury as soon as we had all the relevant medical opinions. Nevertheless, the example serves a purpose: when evaluating a claim, you must test the line of reasons that led you to the conclusions you reached for internal consistency. In doing so, you will stand the best chance of discovering non sequiturs and other logical reasoning problems or errors that may cast doubt on the validity and strength of the conclusions you reached.
Reason #1: Employers shall not use doctors “employed on a regular basis by the employer” when seeking FMLA second opinions. We have a large number of doctors to choose from and can track how many times you have used the same doctor.
Medical Systems, Inc., we’re not just for worker’s compensation any more.
The University of Texas Southwestern Medical Center released information critical to the success of cardiopulmonary resuscitation (more commonly referred to as “CPR”) efforts. Specifically, medical researchers reviewed research and found that persons applying chest compressions to those in cardiac arrest often compress the chest too deeply and too rapidly. Researchers say there is a “sweet spot” between the depth of compressions and the rate of compressions that optimizes the chances for a patient’s survival. For chest compressions to have the best chance of working, they need to be performed to a depth of between 5 and 5.5 centimeters (about two inches) and at a rate of between 100-120 compressions per minute. The researchers found that compressing the chest greater than 5.5 inches reduces the likelihood of survival and speculate that such deep compressions probably cause injury to the patient which counteracts the resuscitative effects. In addition, researchers found that many responders perform chest compressions at rates of about 140 compressions per minute, which is too fast and reduces the effectiveness of the resuscitation attempt. To achieve the right rate of compression, researchers noted that timing the compressions to the beat of “Row, Row, Row Your Boat” is effective and used by many well-trained first responders.
First responders and others trained in CPR should be aware of this new information. Chest compressions that are too soft are ineffective as are compressions that are too hard. Ditto compressions that are too slow or too fast. Instead, chest compressions need to be just right. Apparently Goldilocks was on to something.
Medical News Today reports on a significant new study (fee or subscription required) of what causes episodes of acute low back pain. Critically, the study’s authors concluded that most physical and psychosocial triggers of acute low back pain can be modified. Per Medical News Today, some of the findings include:
Unusually, the study “also found that age was a factor in triggering back pain when lifting heavy loads - with younger people being significantly more likely to suffer an episode of acute low back pain after such activity than older people.” This certainly will be counterintuitive for claims administrators and attorneys in the worker’s compensation field as conventional wisdom suggests older age is directly proportional to low back injuries rather than the inverse as was found in the study. Regardless, the most important thing is to utilize knowledge from the study to reduce episodes of acute low back pain in the workplace. Manuela Ferreira, lead author stated the matter succinctly:
Our findings enhance knowledge of low back pain triggers and will assist the development of new prevention programs that can reduce suffering from this potentially disabling condition.
What is it about shoulders? They seem to cause an inordinate amount of problems, especially when the rotator cuff is involved. And invariably, there is a question as to whether a shoulder claim involves an acute injury, an acute aggravation of a preexisting condition, an occupational injury, or the mere manifestation of a preexisting condition. One of the biggest challenges in claims is determining whether and to what extent a shoulder condition is work-related. Unfortunately, this task is often difficult for physicians too.
The hallmark of an acute rotator cuff injury is an asymptomatic shoulder, a discernible traumatic event, and immediate pain and weakness. Unfortunately, this type of presentation accounts for less than 10% of all rotator cuff tears according to some literature. In addition, the medical literature suggests that acute rotator cuff tears are underdiagnosed in emergency departments and often attributed to tendonitis, bursitis, arthritis, or some combination of all three. To further complicate matters, many other conditions of the shoulder, cervical spine, and peripheral nerve system can produce symptoms that are similar to symptoms occurring in rotator cuff tears. And finally, a somewhat sizable percentage of the population has asymptomatic rotator cuff tears which makes the determination of the etiology of the cuff defect difficult to determine.
The best way to assess whether a rotator cuff tear is acute or traumatic is with diagnostic imaging. Numerous studies have found that mid-substance tears are more likely to be acute than insertional tears. The presence of swelling and joint fluid or a hematoma also suggest that a tear is acute. To the contrary, the absence of joint and bursal fluid suggests a chronic tear. The presence of fatty infiltration and the degree of rotator cuff atrophy are also useful findings to assess the chronicity of the tear. Interestingly, at least one study found that the “injury mechanism and the activity at the moment of injury did not correlate with the presence of a rotator cuff lesion,” but also found “a strong age correlation, with a prevalence of RCTs above 50% in patients aged over 50 years…” This study suggests a shockingly high rate of rotator cuff injury resulting from shoulder trauma in persons over 50.
The strong correlation between age and rotator cuff tear caused one study’s authors to postulate that “it is even likely that there [is] no such thing as an acute cuff tear without some previous tendon degeneration.” The authors of another study address the complicated relationship between the chronicity and symptomatic nature of rotator cuff tears and note that the “duration of symptoms does not necessarily reflect the duration a patient has had a rotator cuff tear… It is not understood why full-thickness tears become symptomatic in some individuals and not others.” How then, can any physician determine to a reasonable degree of medical certainty if a particular rotator cuff tear relates to the patient’s employment in the absence of diagnostic imaging that suggests a tear is acute?
In truth, the answer is that any physician who attributes a symptomatic rotator cuff tear to a workplace injury is most likely engaging in speculation if there is no acute traumatic event and no diagnostic imaging evidence demonstrating that the tear is acute. This doesn’t mean that the tear can’t be acute and work-related, simply that there is no reasonable basis for a physician to determine the exact etiology of the tear to a reasonable degree of medical certainty. In handling claims, it is important to recognize these situations and pose the question to the IME doctor directly as to there is any way, given the current state of evidence-based medicine, to determine what caused a rotator cuff tear (or caused it to become symptomatic) to a reasonable degree of medical certainty in the absence of an acute traumatic event, diagnostic imaging evidence that a tear is acute, or occupational risk factors such as repetitive overhead work. If there are no specific risk factors, no precipitating injury, and no diagnostic imaging evidence of an acute tear, the answer should always be “no.”
From a claims perspective, there are several useful things that can be gleaned from the medical literature addressing rotator cuff conditions. First, a definitive assessment of causation in the absence of a discrete, acute precipitating event with imaging evidence demonstrating the presence of an acute tear or an occupational risk factor should be considered impossible. Of course treating surgeons will attempt to relate rotator cuff conditions to workplace injuries that do not meet the above criteria, but it is incumbent from a claims perspective that the IME physician points to the relevant medical literature and explains why it is not possible, to a reasonable degree of medical certainty, to determine the etiology of a rotator cuff tear in the absence of the above criteria.
Second, it should not come as a surprise if an employee over 40 who says they hurt their shoulder and is told that it is just a strain or tendinitis when they go the ER later discovers she has a rotator cuff tear. The medical literature suggests that clinical examination in the emergency setting underestimate the presence of rotator cuff tears. The relevant study found that in the patient population complaining of an acute shoulder injury who have an inability to perform active abduction above 90° and normal radiographs, more than 50% will have rotator cuff tears. In establishing reserves, if the medical records show normal radiographs coupled with an inability to actively abduct the shoulder above 90°, it may be wise to consider the likelihood of a rotator cuff tear requiring surgical intervention to be 50%.
Finally, knowing the different shoulder, neck, and peripheral nerve conditions that have similar symptom constellations to rotator cuff tear will help to assess what the likely diagnosis will be based on the clinical history, examination, and positive findings. Thus, a shoulder complaint that can be localized to the acromioclavicular joint, is more likely to be a shoulder separation or acromioclavicular arthritis than a rotator cuff tear. In another example, a complaint of gradual onset of shoulder pain with weakness that is especially noticeable during sleeping hours is likely to be a chronic rotator cuff tear or advanced impingement syndrome than an acute rotator cuff injury.
The bottom line is that shoulder injuries are often difficult claims, especially when they involve rotator cuffs. Knowing the medical literature about how rotator cuff tears occur and what suggests acute versus chronic tears can help guide the claims analysis. To learn more about the diagnosis, management, and prognosis of rotator cuff tears, join us on February 26, 2015 for the Medical Systems Advanced Medical Topics in Worker’s Compensation in Brookfield, Wisconsin at which Dr. Bartlett will give an in-depth presentation on acute shoulder injuries. Claim handlers and legal professionals alike will gain valuable information on what claims will likely be compensable and what medical information can be used to defend against those which should not be compensable.
Sit. Type. Sit. Read. Sit. Talk on the phone. Sit. Sit. Sit. Go to a meeting. Sit. This is what many of us do for the vast majority of our workday. We know that sitting all day is bad for our physical health. We also know that breaking up the day with short walks can help counter the deleterious physical effects of sitting all day. Now, it appears that a simple lunch time walk can also help with our outlook, energy, and focus at work.
The New York Times reports on a study conducted in Sweden in which researchers used real time reporting of mood and emotion in a group of office workers assigned to walk at lunch and a control group of office workers who did not walk at lunch. As the Times notes, “on the afternoons after a lunchtime stroll, walkers said they felt considerably more enthusiastic, less tense, and generally more able to cope than on afternoons when they hadn’t walked…” The lead author noted that despite the study not addressing workplace productivity, “there is now quite strong research evidence that feeling more positive and enthusiastic at work is very important to productivity…so we would expect that people who walked at lunchtime would be more productive.” Interestingly, most workers who were part of the walking group said they would not continue walking at lunchtime when the study was over because “they were expected by management to work through lunch.”
Employers should seek ways in which to encourage employees to engage in less sedentary behavior during the work day. Employees would be psychologically stronger and more resilient which will almost certainly increase their productivity. Contrary to popular belief, stepping away from the desk at lunch will actually help you get more done. Encouraging employees to take a lunchtime walk seems like a simple, cost-effective way to improve employee mood and increase productivity. That being said, I better put on my running shoes…
The employee is a delivery driver and is in a rollover accident. Miraculously she suffers only minor injuries in the crash. However, she hits the inside part of her right leg near her knee in the rollover and now, 18 months after the rollover, she still can’t go back to regular duty because she has a permanent foot drop. Another employee gets his hand stuck in the machine he works on. The broken bones heal and the tendons are repaired. Unfortunately, it has been difficult returning him to work because he complains of burning pain every time he touches anything with the injured hand and his doctor has permanently restricted him to one-handed work.
What do these claims have in common? Peripheral nerve injuries. Peripheral nerve injuries are complicated, slow-healing, and often result in permanency. Why are they so complicated and what you can do to make peripheral nerve injury claims go as smoothly as possible? In this short primer, we hope to answer some of these questions.
To understand why nerve injuries are so challenging, it helps to know some basic nerve physiology. Nerve cells (neurons) are essentially made up of little factories (axons) that produce chemicals (neurotransmitters) which mediate the electrical signals each nerve cell sends (axon) and receives (dendrite). Nerve cells are not physically connected to each other and must send the electrical signals across a gap (synapse) to the next nerve cell (dendrite). The axon of each nerve cell is encased in fatty cells (myelin) that increase the rate at which electrical signals are transmitted between nerve cells. Branching extensions of the nerve cells (dendrites) receive the electrical signal from the axon of an adjacent nerve cell and transmit the signal to the axon for further transmission. A failure of any part of this process will disrupt the nerve cell’s functioning and cause sensory or motor problems or both.
Unfortunately, nerve injuries take a long time to heal and often heal poorly because of the complex, compound, and disconnected nature of nerve cells. Nerve injuries are categorized according to the degree to which the nerve cells are compromised. There are two classification systems – one use three categories and one using six categories. This post will use the simpler, three part system because it is more concise (the six part system breaks second degree injuries into four subcategories based on the seriousness of the injury). In first degree injuries, or neurapraxia, the nerve remains intact but its signaling ability is damaged. Ordinarily persons suffering first degree injuries recover completely without residual sensory or motor impairment. In second degree injuries, or axonotmesis, the axon is damaged but the surrounding connective tissues remain intact. Recovery takes longer than in first degree injuries, but complete recovery without residual sensory or motor impairment is still the general rule. In third degree injuries, or neurotmesis, both the axon and the surrounding connective tissue are damaged. Recovery is exceptionally long in third degree injuries and typically results in some residual sensory or motor impairment. In addition, surgery is often necessary to restore function in third degree injuries. The alternate classification system essentially divides the axonotmesis category into four parts based on the severity of the insult to the axon.
We will focus on third degree injuries because they are the most difficult to treat and usually result in permanency. In a third degree nerve injury both the axon and supporting connective tissue are injured. This means that the nerve cell must regenerate both the axon and its supporting structure. The regeneration is complicated by a post-injury process called Wallerian degeneration. Approximately 24-36 hours after the initial injury, the axonal injury disintegrates, the myelin sheath degrades, and macrophages and Schwann cells remove the cellular debris from the injury. In third degree injuries, the supporting connective tissue (endoneurium), which is a tubular structure containing individual axonal fibers, is severed. This causes problems because regenerating axonal fibers may meander into surrounding tissue or inappropriate neural tubes, thus failing to reinnervate their proper end organs. The resulting loss of function is analogous to what would happen in a marionette show if the strings to the marionette controllers are cut and then randomly reattached, sometimes to the correct controller, sometimes to the incorrect controller. Nothing really works right.
When nerve cells start regenerating after Wallerian degeneration, the process is slow. Within four days of the injury, the injured axons start sending sprouts toward the neurolemma (tube comprised of Schwann cells surrounding the axon). Schwann cells produce growth factors that attract the sprouts. If a sprout reaches a neurolemma, it grows into the tube and advances approximately 1 mm per day until it reaches and reinnervates the target tissue. Surgery may be necessary to guide the sprouts into the neurolemma when the gap is too wide or scar tissue has formed. This regeneration and repair phase can last many months. Human peripheral neurons are capable of initiating a regenerative response for at least 12 months after an injury. Hence, it can be well after a year from the date of injury before a treating physician or an IME doctor will be able to place a patient who sustained a peripheral nerve injury at maximum medical improvement.
Further complicating matters, third degree injuries do not usually heal completely. Several factors can contribute to an incomplete recovery. First, intramuscular fibrosis (scarring) may hinder the muscle contraction a nerve impulse produces. Erroneous cross-reinnervation may result in impaired functioning (the marionettes with crossed strings). The imperfect regeneration also results in sensory deficits, especially in proprioception (how the body perceives itself in space), that rarely go away completely. Even in first and second degree nerve injuries, sensory recovery often takes 6-12 months, so determining whether and to what degree permanent sensory impairment has resulted can take a year or more post-injury.
The site of the injury itself and the regeneration process can result in the development of neuromas or gliomas, which can increase pain and disability. If surgical realignment or stump approximation does not occur, the migration of axoplasm may form a neuroma, which is an errant scaffolding (structure) for axonal migration. Essentially, the strands of axonal fibers get tangled as they seek the distal nerve stump, forming a ball of connective tissue and axonal fibers. While some neuromas cause no problems, many are painful and impair functioning.
Treatment and rehabilitation following peripheral nerve injury present their own challenges. For example, in nerve injuries with extensive damage a graft may be needed to connect the two ends of viable nerve. Using a graft will leave the patient with a large area of numbness that the donor nerve previously innervated. The size of this area of numbness will shrink over time, but will not go completely away resulting in residual permanency for loss of sensation at a site remote from the injury. In addition, nerve regeneration itself can be uncomfortable and accompanied by paresthesia (pins and needles) as the target tissue is reinnervated.
Some of the direct consequences of peripheral nerve injury included:
Unfortunately neuropathic pain is not well-understood and is difficult to treat. Anticonvulsants and tricyclic antidepressants are the most popular drugs for neuropathic pain. “Complete relief is very difficult and only 40-60% of patients achieve partial relief.” The persistence and refractory nature of neuropathic pain causes psychological distress and is difficult to understand for persons who are accustomed to the way more typical musculoskeletal pain responds to conventional analgesic medications. From a claims standpoint, neuropathic pain presents great impediments to returning claimants to work because claimants are conditioned to equate pain with physical disability and loss of function, but neuropathic pain frequently does not impair function and is only disabling from a psychological perspective (not to diminish the psychological distress that neuropathic pain causes). It is critical for return to work efforts that the treating physicians and occupational/physical therapists convey the distinction between neuropathic and musculoskeletal pain to the claimant to avoid protracted disability beyond the period of actual physical impairment caused by the injury.
Weakness and loss of function are common complications of third degree nerve injuries because even in the best case scenario nerve regeneration is imperfect. As noted above, weakness and loss of function result from many complicating factors including slow regrowth causing irreparable muscle atrophy, imperfect regrowth resulting in loss of function, and the presence of scar tissue in the muscle preventing normal contracture. This presents challenges to the claim handler who must attempt to gauge return to work, appropriate rehabilitation, and permanent partial disability. EMG can determine the rate at which nerves are growing and muscles are reinnervating, but functional use/restoration will lag behind reinnervation. The reinnervated muscles have been without innervation for a time, so the body must relearn how to use the muscles again which takes time. In addition, the muscles are usually reinnervated imperfectly, so the body is not only relearning how to use the newly innervated muscles, but it is also learning a new neural pattern of action. The body cannot rely on muscle memory to speed the relearning process because the newly configured reinnervation is different than it was before, meaning muscle memory itself is altered or lost.
Some studies have found that conservative therapies can be used alone or in conjunction with surgery to help restore function in peripheral nerve injuries. Laser phototherapy “maintains functional activity of the injured nerve for a long period, decreases scar tissue formation at the injury site, decreases degeneration in corresponding motor neurons of the spinal cord and significantly increases axonal growth and myelinization.” In addition, acupuncture has been found to be an effective treatment modality in improving the rate of recovery. In managing nerve injury claims, it is important to know what therapies work and what do not. Effective claim handlers should be conversant in treatment modalities that can hasten recovery and improve ultimate function so they can ensure patients with peripheral nerve injuries receive the treatment that will get them to an end of healing the fastest and will minimize the inevitable permanent partial disability rating.
Even with effective conservative treatment modalities such as laser phototherapy or acupuncture, recovering function and building strength in peripheral nerve injuries are long and arduous processes that require skilled therapy and a motivated patient. If either variable is lacking, recovery is likely to be compromised. A supreme difficulty for claim handlers is managing the nerve injury case where either the employee lacks motivation or their choice of treating therapist appears to be wanting in some fashion. Early engagement in the claim can help foster a “can do” attitude in the injured worker and a positive relationship with the therapist so that he or she pushes the worker and provides the highest and best evidence-supported rehabilitative care.
The Medical Systems, Inc. “Advanced Topics in Worker’s Compensation Symposium” will address these and other issues related to severe, acute industrial injuries to the hand and wrist with Dr. Jan Bax. Join us to learn why severe hand and wrist injuries present such difficult challenges, what the best medical and surgical treatments of these injuries are, and what strategies you can utilize to help claimants get the best physical recovery and (in the process) lower your costs.
Headaches are such a headache. This will hardly be news to anyone working in claims or human resources. Whether the headaches are wholly personal (FMLA), work-related, or accident-related, employees and claimants with permanent and persistent headaches pose a unique challenge. A new study reported on in Medical News Today suggests that instead of taking a conservative approach to managing headaches, which is the most effective and lowest cost treatment modality, many medical providers are instead opting to order expensive and typically useless advanced neuroimaging tests for their headache patients. The study specifically found that, “rather than talking to patients about the causes and potential sources of relief from headache pain, clinicians are increasingly ordering advanced imaging and providing specialist referrals, both of which are considered to be of little value in the treatment of routine headaches.”
Generally speaking, conservative treatment such as stress-relief counseling and avoiding dietary triggers are the preferred treatment modalities for managing most routine headaches. As John N. Mafi, M.D., lead author of the study, notes, “the assessment of headaches depends on identifying the relatively rare instances where serious underlying causes are suspected” and that “despite the publication of numerous practice guidelines, clinicians are increasingly ordering advanced imaging and referring to specialists while less frequently suggesting first-line lifestyle modifications to their patients.”
The problem with the overusing imaging studies rather than treating conservatively is multifold. First, and most obviously, ordering unnecessary imaging studies unnecessarily increases costs. Second, overusing imaging studies may result in incidental findings that “provoke unnecessary patient anxiety, can lead to more invasive procedures and often require follow-up testing," as Dr. Mafi stated, further increasing costs unnecessarily. Third, ordering unnecessary imaging may in fact delay recovery from acute episodes and hamper control over chronic headaches because most patients are not being offered the most effective treatment for most headaches. This invariably will lead to greater absenteeism and greater levels of perceived disability.
The truth is, by and large most headaches do not require any type of neuroimaging or laboratory testing. For example, “in the absence of neurologic findings, episodic migraine does not require imaging studies…” Also, “[p]atients who have had a stable headache pattern for at least six months rarely have significant intracranial pathology” and “in the absence of worrisome features, these patients do not require imaging.” One reason that imaging studies are usually not required for headache is that “[i]n adults, it is unusual for headache to be the presenting symptom of an underlying systemic disease in the absence of other symptoms.” This is why additional testing, including neuroimaging, is not recommended in the absence of red flag signs and symptoms that suggest an underlying dangerous pathology might be causing the headache. According to the American Academy of Family Physicians, red flag signs and symptoms in the evaluation of acute headaches that require additional testing (and the testing recommended) include:
Fortunately, headache management is surprisingly simple and requires little “medicine” in the conventional sense. Perhaps this is part of the problem: patients expect high tech, advanced imaging to “figure out what is wrong” with them when high tech, advanced imaging will do no such thing for the vast majority of headache patients. Instead, the more pedestrian truth is that physicians do not know why most patients with chronic or episodic headaches have them and that the most effective management techniques often involve lifestyle choices to reduce stress and avoid headache triggers:
Behaviors that help to prevent headache flares include establishing a habit of regular mealtimes, sleep and awake times, and exercise. It is useful to help the patient identify any connection between psychosocial stressors and headache flares. Most headache patients can benefit from basic stress-reduction techniques such as yoga and meditation. There is compelling evidence for the efficacy of biofeedback, relaxation techniques, and cognitive-behavior therapy for headache prophylaxis.
Headaches are not all that difficult to treat. The results of the above study are disappointing because advanced imaging studies (and other diagnostic tests) are contraindicated in the vast majority of patients with episodic and chronic headaches. Episodic and chronic headache are difficult because the etiology is usually unknown and the treatment is dispiritingly low tech for a patient population accustomed to seeing fancy drug ads and hearing about exciting technological breakthroughs on a regular basis. The key to treatment is for patients to accept responsibility for their condition and to take steps to manage the condition effectively. From a claims or an employee management perspective, knowing the evidence-based treatment guidelines for episodic and chronic headache will help keep a handle on what treatment is being proposed and authorized and will help ensure that doctor and patient alike are following the guidelines.
We previously began a series on how to improve decision making while managing claims. The series was based on a paper by Jeffrey Brewer. In the paper, Brewer identifies 10 strategies for improving decision making:
Prior entries addressed strategies 1-6. This entry will examine Brewer’s seventh strategy for improving decision making:
Perform hypothetico-deductive reasoning, that is, given a particular situation, apply relevant knowledge of principles and constraints and visualize, in the abstract, the plausible outcomes that might result from various changes one can imagine being imposed on the system.
In this directive, Brewer challenges us to remove emotion and bias when we examine claims. It is easy to make assumptions based on first impressions and intuitions when you first receive a claim. Hence, one may think a claim is bogus or fraudulent because of the claimant’s long history of unwitnessed soft tissue injury claims instead of analyzing the claim and what the likely outcomes will be based on the available evidence. The claimant’s history of making dubious claims is relevant, but focusing on that history without first examining the available objective facts and the inferences to be drawn from them would be a mistake. The claimant’s history impacts her credibility; the claimant’s credibility impacts the likelihood of the claimant succeeding at hearing or trial, which is nothing more than a probability function that helps determine the dollar value of the claim. Even if evidence of actual fraud arises, the information will reduce the claim to a zero or negative value. [By negative value I mean that the claimant could owe penalties or restitution that would inure to the benefit of the employer or insurance carrier.] Regardless, even in a case of outright and uncontested fraud, the ultimate effect is an economic one despite the moral outrage one may personally feel about the claimant’s fraudulent (and probably criminal) behavior.
If we cannot separate our personal feelings about a claim or a claimant from our analysis of the claim, we are likely to make poor decisions regarding both the value of the claim and how the claim should be managed. For example, in our fictitious claimant with a long history of dubious claims, we may be inclined to put more resources into surveillance than the facts and exposure on the claim would otherwise suggest is appropriate. Also, we may be prone to understate the claim’s value because we are likely to transfer our suspicion into our calculation of the exposure and our likelihood of successfully defending the claim at hearing or trial. In both the management and valuation of the claim, we may potentially set ourselves up for an unpleasant surprise if we judge a claim based on our visceral response to the claimant’s history rather than the actual demonstrative evidence.
A better way to address claims is to run it through “hypothetico-deductive reasoning” to visualize the possible outcomes based on the actual demonstrative evidence. This process of analysis has the virtue of forcing us to consider possible outcomes that may run counter to our emotions and intuitions (which are unlikely to be based on the actual demonstrative evidence before us). The process of dissociating ourselves emotionally from claims to engage in this reasoning process helps ensure that the decisions we are making are based on objective evidence and not on unsupported evidence or personal bias.
Let’s consider an example based on the above discussion. Let’s say Hank has worked for the Acme Corporation for 22 years assembling road runner retention and destruction devices for a certain loyal, if misguided, customer who happens to be a member of the species canis latrans, more commonly known as a coyote. In 13 of his 22 years at Acme, Hank has made a worker’s compensation claim. Remarkably, in 8 of the 13 claim years Hank suffered an unwitnessed soft tissue injury within weeks of the opening of gun deer hunting season. (The Acme Corporation happens to be located in Wisconsin where some consider the opening of gun season to be a bona fide sacred holiday). In 4 of the remaining 5 claim years, Hank suffered unwitnessed soft tissue injuries in suspiciously close proximity to various legally recognized holidays. In short, Hank and his claim history are sources of enormous frustration for his employer who rightfully regards the claims with more than a modicum of suspicion.
Now entering his 23rd year of service for the Acme Corporation, Hank claims to have injured his shoulder assembling a pair of roller skates that are fitted with expandable jet engines for the misguided coyote. In what is a running joke among the human resources and risk management departments, the injury occurred while Hank was working alone and a mere 3 days before the opening of gun hunting season, during which Hank has neglected to take any vacation days. Aside from rolling eyes and jokes at Hank’s expense, the employer is sincerely and understandably frustrated with the amount that the claim will cost the company. Accordingly, they have communicated their suspicion regarding the veracity of this claim to their insurer. Such is the employer’s level of frustration that the employer has demanded that their insurer take a scorched earth policy in investigating and, they have no doubt, in denying and subsequently litigating the claim. Included in this demand is the employer’s “suggestion” that surveillance be performed.
The claims handler assigned to the case reviews Hank’s claims history and discusses the current claim with the employer and, understandably, is left with the distinct impression that the claim is suspicious at best. Based on the information from the employer, the claims handler is inclined to believe that Hank is undoubtedly faking the injury to get off work for deer hunting season and that she should arrange, post haste, for surveillance to catch him enjoying his worker’s compensation-funded vacation.
However, the claims handler has additional information available at the time she ordered surveillance. First, the employer had a physical demands analysis conducted on the job Hank was performing when he claims to have injured his shoulder. The occupational medicine specialist performing the analysis concluded that the job Hank was performing put employees at a moderate-to-high risk of sustaining shoulder injuries because of the combination of the forces involved and the awkward, overhead positioning. Second, the injury report documents that Hank reported the injury two thirds of the way through his shift on a Wednesday, that he reported the injury immediately, and that he went to the emergency room immediately after reporting the injury.
At this point, if we apply hypothetico-deductive reasoning to the available facts we have essentially two likely scenarios. First, Hank’s claims history suggests that he may be using an unwitnessed “accident” to get time off from work with TTD benefits to go deer hunting. Second, the physical demands analysis, the fact that it occurred mid-shift/mid-week, Hank’s prompt reporting, and Hank’s prompt treatment suggest that perhaps the claimed injury may be legitimate. Under the principles of hypothetico-deductive reasoning, we should at this point consider what information we would need to make one scenario more plausible than the other.
We know that Hank went to the emergency room. We should find out, if possible, what diagnostic tests were done, the results of the physical examination, whether a definitive diagnosis of an objective injury was established, whether the diagnosis was wholly based on subjective complaints, etc. We would also want to know if other employees suffered similar injuries doing the same or similar jobs. We should interview Hank before conducting surveillance. Perhaps his claims history suggests that he has not been credible in the past, but we want to base our judgment on present information. We would want to know how he described the incident he claims caused an injury. We would want to know whether the incident was acute, definable, and resulted in immediate pain versus a more nebulous scenario in which pain arose gradually and was not attributed to a specific motion or incident. We would want to know what the emergency room doctor or PA told him was the diagnosis. We would want to ask him about his deer hunting plans.
Let’s start with the emergency room visit. If the diagnosis is shoulder instability/subluxation (also known as a partial dislocation) based on x-ray evidence, this would probably trump any suspicions we might have based on his prior claims history. On the other hand, normal imaging studies and a shoulder strain diagnosis based wholly on subjective complaints would bolster our suspicion that Hank is acting consistently with his prior questionable claim history. The same analysis would apply to the other pieces of information obtained in the investigation. Our gut instinct might tell us the Hank or any other employee is manipulating the system and fabricating an injury, but we should test our assumptions and instincts using hypothetico-deductive reasoning so that we engage in the most thorough investigation possible, are unsurprised when the investigation follows a plausible path (even if it conflicts with our gut instinct), and make our claims decisions based on reason rather than emotion. In this way, we can make the best decisions when managing claims, even if that decision is at odds with our gut.
On a related note, one of Hank’s co-workers completed the roller skates with the expandable jet engines. The roller skates were successfully shipped to the coyote in an otherwise nondescript wood box stamped all over with “Acme Corporation” in bright red letters. Fortunately for the coyote, the skates worked precisely as expected. After hiding behind a large cactus conveniently located next to a long stretch of single lane highway in Monument Valley, the coyote heard the approaching “Beep, beep” of his longtime avian prey and foe. As the roadrunner sped by, the coyote activated the jets and took off with remarkable alacrity after the bird. Unsurprisingly, the jet-powered roller skates soon brought coyote even with and then past the roadrunner who, in typical form, gave out a nonplussed “Beep, beep” as the coyote wooshed by.
The coyote realized too late his error in not requesting from Acme Corporation that some sort of braking mechanism be added to the skates/jet engines. Specifically, the immense power and speed of the jet-powered skates propelled him the entire length of the straightaway and quickly brought him to a 90 degree turn in the road at the apex of which stood the rock face of a mesa. With roller skate wheels lacking the necessary friction coefficient to execute the turn and 375 miles an hour, the coyote surrendered himself to inevitability with a resigned and slightly plaintive look, and struck the rock face with a “poof,” causing a rather large cloud of dust to appear. Miraculously, coyote walked away from the crash. He had, however, reached a breaking point. Instead of contacting Acme Corporation for a new and ridiculous contraption for catching the roadrunner, he contacted a products liability attorney in Phoenix…
Christopher Tidball has a good piece at propertycasualty360.com on strategies to curb the rising cost of bodily injury claims. As Tidball notes, bodily injury claims continue to rise at rates faster than inflation. He focuses on taking proactive steps on the front end of claims to ensure that a complete investigation is performed so that damages do not get out of hand without the claims professional’s awareness. A few suggestions are particularly useful as these investigation techniques sometimes fall under the radar:
Perhaps the most useful suggestion is to pay exceptionally close attention to the actual medical bills. Specifically, Tidball notes that coding is frequently used to increase reimbursement. In a telling example of how coding can be manipulated to drive up costs,
Consider a basic lumber MRI with and without contrast. A provider may bill 72148 and 72149, which would be appropriate for these as individual diagnostic tests. However, when they are conducted together, the appropriate code should be 72158, which is the bundled code [and will result in a lower overall bill]. (Parenthetical and emphasis added).
In addition, Tidball reports that using fee schedules or benchmarks to evaluation medical bills will help to contain costs and keep bodily injury expenses reasonable and under control.
The article is short, but provides some useful strategies for controlling costs in bodily injury claims. As is the case with most claims management, the key is to get in front of the claim from the beginning. Conducting thorough background checks on all parties involved and carefully examining billing codes and reimbursement rates are some strategies that will help claims professionals get in front and stay in front.
A recent development finds an alternative to postoperative pain management in knee replacement surgery that appears to offer more effective pain relief and potentially speedier recovery. Researchers found that when they injected “a newer long-acting numbing medicine called liposomal bupivacaine into the tissue surrounding the knee during surgery…[p]atients had pain relief for up to two days after surgery and better knee function compared with the traditional method." One of the study’s authors noted that “many patients were able to walk comfortably within hours after surgery.”
It is estimated that more than half of American adults diagnosed with knee arthritis will have a knee replacement at some point. Given the prevalence of knee replacement surgery both in the general patient and worker’s compensation patient populations, any development that can improve pain relief and increase early knee function could have a profound impact. Prescription pain reliever abuse continues to vex society and intraoperative techniques that can reduce the need for postoperative narcotic pain relief can only help the problem. In addition, faster restoration of knee function has the potential to speed rehabilitation and end of healing. If this new technique fulfills its early promise, it could have a significant and positive effect on reducing costs and recovery time of knee replacements. In the worker’s compensation setting, this would be a welcome development.
Andreas Goebel, a lecturer in molecular and clinical pharmacology at the University of Liverpool, has an article at The Conversation about an exciting development in the understanding of how chronic pain works, which offers possible insight into treating Complex Regional Pain Syndrome (“CRPS”), among other chronic pain conditions. Historically, CRPS has been considered primarily a brain problem. The article points out that recent research suggests autoantibodies are implicated in CRPS by “binding to peripheral tissues, prompting sensory nerves to misfire.” The working theory is that trauma, even minor trauma, induces inflammation which causes the binding/misfiring sequence and this in turn causes the central nervous system to become “wound up.” Once the central nervous system is wound up, it malfunctions, causing the unusual and often intractable symptoms of CRPS. As Goebel reports, the discovery of autoantibodies’ role in pain development is important because “there are treatment methods … designed to reduce or remove antibodies,” which may well prove effective in treating CRPS, especially if treatment is initiated early in the progression of the disease. These findings could prove important as claims involving CRPS typically have high disability and medical expenses and are difficult to process and close in a timely manner. Any effective treatment options would have the potential to change CRPS claims processing radically for the better.
Cognitive psychology and behavioral economics have taught us that our unconscious biases matter. In numerous preceding posts, I have discussed the problems that these biases can cause in our decision-making process and have offered strategies to overcome many of those biases. One common factor in the discussion of biases has been the incredible strength and persistence of our beliefs, especially those that our unconscious biases shape. Previously I have discussed our biases and beliefs as negative cognitive tendencies to be overcome. Fortunately, our beliefs have a positive aspect as well.
One area in which our beliefs have a positive effect on our cognition involves how we think about willpower. Despite what can seem like a deluge of research arguing that we have less control over ourselves and our environment than we think, there is a significant body of research developing that demonstrates that our beliefs about willpower, regardless of the factual accuracy of the belief, can impact our ability to perform on cognitively demanding tasks that happen over time, such as learning new things. In short, the research demonstrates that if we believe that willpower is important, we perform better on tasks requiring us mentally focus over an extended period of time.
For example, Miller et al. conducted a study of students who were given a tasks requiring sustained engagement with “a strenuous mental task that taxes working memory.” One group was primed to believe that willpower was limited and easily depleted while the other was primed to believe that willpower was unlimited and not easily depleted. The authors found that students who were primed to believe that willpower was unlimited “increased in accuracy” of the second half of the test while students primed to believe that willpower was limited and easily depleted did not improve their performance over the second half of the test. As a result, the authors concluded that, “only participants in the non-limited willpower condition sustained learning for the entire duration of the task.” As they note, “this experiment suggests that people’s beliefs about the nature of willpower can also limit or facilitate the acquisition of a cognitive skill.”
These findings demonstrate that our beliefs can make a positive difference on performance. While I am personally given to skepticism, I recognize that how we approach problems is different than how we judge the information we receive. In the case of approaching tasks or problems at work that require sustained attention such as learning or problem-solving, it is important that we tell ourselves that willpower matters, that sustained engagement is energizing, and that difficult problems strengthen our focus. In short, we should be optimists when we need to get the job done.
Too often we associate health and well-being with physical, or bodily, health, forgetting that we are creatures of mind. In many ways our mental health and well-being are more important than our physical health. Not long ago we reported on research demonstrating that well-being was more important in predicting workplace absence than physical health. Now Employers Health, an Ohio-based employer coalition,has data demonstrating just how significant mental health and well-being is to the workplace: 2 in 5 U.S. worker’s report missing work due to depression. Each episode costs employers an average of 10 workdays due to depression. Medical researchers estimate that depression costs employers $100 billion annually, including $44 billion in lost productivity. This really is a staggering figure when one considers that the total costs to employers related to musculoskeletal disease has been estimated to be approximately $130 billion.
Of course the million, or in this case, billion dollar question is what, if anything, can employers do to lower the costs of employee depression? Most importantly, research “suggests every one dollar invested by employers in enhanced depression care yields approximately three dollars for the company in the form of productivity gains by employees.” Hence, employers will likely reap economic benefit from ensuring that employees have access to adequate mental health care and support. In addition, mental health diagnoses, including depression, continue to carry a stigma that makes it harder for many employees to admit when they are having a problem and to seek appropriate treatment, which in turn affects performance negatively and leads to workplace absences. Employers can, and many do, have proactive programs to ensure that employees are aware of the confidential support services available to them and that employees understand that there is no stigma attached to using such support services. Continuing to promote the psychological health of employees and to publicize the programs available to help employees maintain their psychological well-being can go a long way to reducing the stigma of mental health issues and reduce the associated costs for employers.
Yet another reason to quit smoking: smokers are three times more likely to suffer chronic back pain than non-smokers (subscription required), according to Northwestern University Feinberg Medical School researchers. Interestingly, the researchers found the link between smoking and increased back pain is in the brain and not the back. The lead author of the study noted that smoking “affects the way the brain responds to back pain and seems to make individuals less resilient to an episode of pain.” Researchers found that two areas of the brain are critical in to developing chronic pain (nucleus accumbens and medial prefrontal cortex, NAc-mPFC). As researchers reported, “That circuit was very strong and active in the brains of smokers … but we saw a dramatic drop in this circuit's activity in smokers who … quit smoking during the study, so when they stopped smoking, their vulnerably to chronic pain also decreased.”
Smoking is frequently a vexing component of claims involving back problems. We know smoking can predispose persons to back problems and significantly reduces the likelihood that back surgery will succeed. This study demonstrates that smoking also changes the way the brain behaves, which appears to make the physical problems worse. Claim handlers and medical professionals should exercise whatever power they have to convince persons with back problems or injuries to quit smoking immediately. While smoking is a personal choice, worker’s compensation premiums should not underwrite the costs of that choice when, for example, a minor back strain becomes chronic, intractable, and expensive to treat because of a person's decision to smoke.
Chronic and terminal pain cause myriad personal, interpersonal, and socioeconomic problems. In what can only be described as sadly ironic, the most effective pain relievers currently available, all of which are opioids, have side effects that can cause problems that are as bad as the pain the drugs are administered to control. The most troublesome and well-known side effects include altered mentation/sedation, physical dependence, respiratory depression, constipation, and androgen deficiency. For example, cancer pain can be managed effectively with powerful opioids, but at the expense of rendering the person suffering from the pain nearly comatose. In non-terminal, chronic pain patients, physical dependency can lead to job loss and ultimately death by respiratory failure from overdose.
Our current ability to manage chronic and terminal pain puts many sufferers in a catch 22: treat the pain but get the side effects, avoid the side effects but live with the pain. The ideal solution to the chronic and terminal pain conundrum would be to develop or discover methods to control pain that are as effective as opioids but without the systemic side effects. In short, new pain relief treatments should only target that which is generating the pain. Fortunately, a group from Flinders Medical Centre in South Australia is doing just that. Medical News Today reports that lead researcher, Associate Professor Nick Spencer, and his team have developed a technique to identify precisely which nerve endings detect painful stimuli. They then developed a method to inject a harmless virus into the site from which the pain originates that travels to the spinal cord and shuts off a channel to the affected nerve endings that is essential for pain perception. As Spencer noted, “shutting off the pain is not instant, it can take days to weeks, but the big advantage is that pain can be suppressed for long periods without the classic side effects of current pain therapies.”
The team’s current research focused on incurable pain located in the stomach and intestines, but Spencer believes the technique will have broader applications. This would be exciting news for everyone and would be especially welcome in the claim handling community as chronic pain cases are often vexing, expensive, and resource intensive. Any development that could eliminate or at least reduce the use of opioid pain medications in the chronic pain context would have a significant and positive effect on the management of claims involving chronic pain.
Choice architecture is the idea that the way in which choices are framed influences the actual choices that are made. The idea arose out of findings in psychology of persistent and pervasive cognitive biases and decision-making heuristics. The thought behind choice architecture was something like this: if we know how biases affect decision-making, then we should be able to structure choices to “nudge” or push people toward the choices we want them to make by taking advantage of people’s cognitive biases.
Cognitive psychology has given us numerous examples of the way in which framing choices influences what choices are actually made. An interesting example involves default options and organ donation. In countries where the default option is to donate and persons must affirmatively check off a box to show one does not want to donate, the vast majority of persons opt for the default (85-99%). To the contrary, in countries where the default option is to not donate and one must affirmatively check a box to show one wants to donate, the vast majority of people opt for the default (80-95%). The conclusion from this finding is that we can take advantage of the status quo bias (the default option) to achieve a result we want.
Some of the findings regarding cognitive biases are relevant to claims administration. For example, the anchoring bias is the common human tendency to give too much weight to the first piece of information one receives when making subsequent decisions. In the claims setting, this bias could suggest when to make a settlement offer and how much that offer should be. I know many people express frustration at the negotiation process (and I was one such person) and think, shouldn’t we just offer what the claim is worth and be done with it? Unfortunately, the answer is probably “no.” While it may seem easier to price a settlement like it was a piece of merchandise on the shelf at Target, the effect of doing so would likely be deleterious. Even if the offer is fair, it will likely have the effect of convincing the other side that they can get a higher or better settlement because they will judge the settlement value in part based on the first offer they receive which by habit they will consider to be your floor. To take advantage of the anchoring bias, initial offers to settle claims should be sufficiently low so that the other side’s calculation of settlement value is influenced downward. Although this results in the typical tit-for-tat negotiations, it is probably the best way to handle an initial settlement offer given what we know about the anchoring bias.
Another cognitive bias that could potentially be used to one’s advantage in settlement negotiations is the endowment effect. This bias is the tendency of people to value giving something up more than they value acquiring the same thing. The clearest example in cognitive psychology involved basketball ticket prices. When Duke University students were told they won tickets to the NCAA basketball tournament Final Four they valued them considerably higher than students who were told that they had to buy the tickets. In that experiment, students who won the basketball tickets said they would sell the tickets at an average price of $2,400. Students who were told they would have to buy the same tickets said they would buy the tickets for an average of $170. Obviously this is an extreme example, but other research consistently finds that persons value a thing they own 2.5 times higher than the identical thing that they have to purchase.
In the settlement context one might be able to influence outcomes by framing the discussion not as something being given up but rather as something being gained. When claims are settled, employees (for example) tend to think that “I have a claim worth X dollars” so that any settlement is a reduction in the value of “their” claim. Perhaps the discussion could be reframed to suggest that the employee has a claim worth zero dollars because of an IME or a factual defense. In this way, the claimant is not giving anything up but is rather acquiring something, which could potentially lower the value at which they accept a settlement. Obviously represented claimants have an attorney to get through, but still this has the potential to be an effective negotiating strategy. Certainly it is something that one could use at mediation to tell the mediator how one would like any settlement offers to be presented.
So is choice architecture real? It appears to be a legitimate method to influence decision-making under the right circumstances. While nothing can guarantee that using choice architecture will lead to better results, it is a tool that claims professionals can use in situations where cognitive biases are present to try to shape the decision-making process. Choice architecture will generally have little or no cost and potentially has significant benefits. Hence, it is a strategy worth considering the next time you are trying to settle a claim.
Medical News Today reports on an interesting development in treatment of noise-induced hearing loss. Researchers from the University of Michigan and Harvard Medical School used gene therapy to reverse partial hearing loss in mice. The mice’s genes were manipulated to increase production of a protein (NT3) necessary to keep the connection between the ear’s hair cells and the nerve cells that communicate with the brain “super-fast,” also called a “ribbon synapse.” Exposure to noise and normal aging can damage the ribbon synapse, leading to hearing loss. By increasing production of the protein NT3, researchers were able to repair damage to ribbon synapses and restore hearing.
This is exciting news for anyone handling worker’s compensation claims because hearing loss claims plague myriad employers. Researchers noted that rather than pursuing gene therapy in human subjects, the most likely way to increase production of NT3 in humans would be through the use of drugs, a number of which researchers have already identified as candidates. From a worker’s compensation perspective, the possibility of reversing hearing loss would represent a substantial development in what has previously been a permanent condition manageable only through the use of hearing aids. However, the use of pharmaceuticals to treat hearing loss would have costs. How substantial those would be is impossible to guess. Regardless, it is worth monitoring the research to see if the same finding can be reproduced in human subjects.
The Wisconsin Safety Council has an excellent piece on men's mental wellness. As the article points out, although suicide is the leading cause of death among men between the ages of 25 and 34, men's mental health is too infrequently discussed because of the stigma we attach to it. The focus of the piece is on mantherapy.org, a site devoted to helping men confront mental health issues and concerns using humor and a "man-centered" approach. Wellness is too often associated with physical health. The article and mantherapy.org remind us that being well requires both mental and physical wellness.
Cardiovascular disease kills almost 600,000 Americans annually. It also has a huge impact the American economy, costing $444 billion annually in healthcare services, medications, and lost productivity. Once cardiovascular disease sets in, management options can be limited and usually include long term medication management and often surgical intervention. However, the easiest and most cost-effective way to manage cardiovascular disease is to prevent it from occurring in the first place. We know that exercise, diet, and weight loss all help prevent cardiovascular disease. What is becoming more well-known is the profound effect that being sedentary has on cardiovascular health, even in persons who regularly exercise, eat well, and maintain a healthy weight. Being sedentary can precipitate cardiovascular disease and even counteract positive lifestyle changes that persons make in an effort to prevent cardiovascular disease.
Recent research reported on in this site demonstrated that sitting for long periods of time has significant, deleterious health consequences. Other research has found that simply standing for greater periods during the workday both counteracts the effects of sitting and has independent positive health effects. Now researchers have found that walking just 5 minutes per hour at an easy pace can eliminate the negative effects of sitting. In the study, reported in Medicine and Science in Sports & Exercise, participants sat for three hours without moving their legs. On another occasion, the same participants sat for 3 hours but walked for 5 minutes at the 30, 90, and 150 minute marks. In each session, researchers measured femoral artery function to gauge whether walking had any cardiovascular effects. Astonishingly, “the researchers found that, while sitting, the dilation and expansion of the participants' arteries were impaired by up to 50% after just the first hour.” Equally remarkable is the fact that no decline in arterial functioning was observed when the participants walked for 5 minutes every hour. The findings are significant because, as one researcher stated,
"There is plenty of epidemiological evidence linking sitting time to various chronic diseases and linking breaking sitting time to beneficial cardiovascular effects, but there is very little experimental evidence. We have shown that prolonged sitting impairs endothelial function, which is an early marker of cardiovascular disease, and that breaking sitting time prevents the decline in that function."
So what can employers and employee’s do? Perhaps walking for 5 minutes every hour is not entirely feasible for every workplace, but certainly standing as much as possible during the day will help. In addition, taking a short walk at least once an hour to get a drink of water (or something similar) and not immediately sitting afterwards would likely make a difference. And if incorporating standing and moving during the day seems like a burden to employers, they should keep in mind that cardiovascular health improves brain health which in turn improves productivity. In addition, employers should keep in mind the costs of being sedentary on cardiovascular health because, in our system of employer-provided healthcare, the employer bears most of them either directly or indirectly. Figuring out how to get employees moving for 5 minutes and hour seems to be a small cost in comparison.
Pain is a difficult and an amorphous concept. The most common understanding of pain is what we feel when our nociceptors are stimulated. A nociceptor is a receptor on a sensory nerve that responds to damaging or potentially damaging stimuli and sends a signal to the brain that is interpreted as pain. When a child falls down and is asked, “does it hurt?” they are referring to nociception. One of the problems we encounter in relation to pain is that not everything that we might classify or categorize as “pain” is wholly or even partially related to nociception. Grief, for example, can be painful but obviously does not implicate nociception, despite the fact that psychic pain can be described in somatic terms or be physically felt or manifested.
The problem with pain is that we have a medical model for addressing concerns related to the body that tends to subsume everything suboptimal as pathological. One of the tenets of the medical model is that a certain level of physical function is optimal and that everything that is not optimal is somehow pathological and amenable to cure. This idea ignores the reality of physical diversity and can turn normal human experience into a medical condition to be treated rather than a normal aspect of life to be lived through or with. The physical changes that occur with aging are a good example of how we medicalize normal human development and attempt to “cure” that which is not pathological. As a culture, we seem to have fallen into the trap of thinking that every medicalized problem has a cure, including the physical changes that occur with age. Hence, we pathologize normal aspects of growing old as “chronic” pain and treat them as if a cure were possible.
Human bodies have tissues that degrade over time; human bodies are also less resilient over time. This is not to say that age-related physical changes do not vary widely in their effects based on individual experience or that lifestyle has no effect on the changes, but rather is an observation that human bodies do not function as well in the 6th decade of life as they do in the 3rd decade of life, all things being equal. In short, we get old.
Getting old is a fact over which we have some influence. We can maintain a healthy weight, eat a diet rich in fiber and fruits and vegetables, maintain an active lifestyle, get adequate sleep, etc. These things will help us to avoid accelerating the aging process within our tissues. In addition, our genetic makeup plays a significant role in how our bodies’ age. Unfortunately, the influence we have does not stop aging or the physical effects of aging. No matter how healthy our weight or our diet or our lifestyle, collagen becomes less elastic, spinal discs desiccate, articular cartilage wears. In the claims world we often feel the effects of medicalizing age because claimants will try to link the normal effects of aging with a worker’s compensation claim or a personal injury claim. Unfortunately, the effects are often exceedingly expensive as such claimants seek seemingly unending treatment to cure the incurable: age. Both claimants and claims administrators would be better served if treating physicians identified age-related degenerative changes and gave patients options to help them cope with the changes better rather than promising panaceas (usually in the form of surgery) that do not help.
Most people who think of worker’s compensation fraud picture an employee faking an injury to collect disability benefits. Some people might also picture an unscrupulous doctor “working the system.” In truth, however, the biggest single fraud in the worker’s compensation system is employers misclassifying their employees. A recent grand jury report in New York City concluded that in the construction industry alone, misclassifying employees (usually as independent contractors) costs the state $500 million annually in lost premiums, cost-shifting to group health insurance, and in lost tax revenue. This is a staggering figure when one considers that the annual cost of the entire worker’s compensation system in New York State is $6 billion.
The reason that fraudulently classifying employees does not spring to mind when one thinks of worker’s compensation fraud is that it seems boring and blasé. When you see a video of an employee who claims to be totally incapacitated splitting and stacking logs for 2 hours, it makes your blood boil. Naturally, we want to punish the offender and see justice done. On the other hand, fraudulent classification consists of merely of misrepresenting how many persons are on the payroll and what those persons do. It is a wholly digital fraud, conducted at a keyboard or in a conversation with an insurance agent. Everything about it seems nondescript and ordinary. Unfortunately, nothing could be further from the truth.
Pain. Just writing it conjures up unpleasant memories of illness and injuries. And whether we like it or not, we all experience pain. In many cases, pain is present for a very good reason: it is the body’s way to tell the brain to stop, that something bad happened or is about to happen. Hence, it hurts when we touch a hot burner on the stove so we yank our hand back. A sprained ankle hurts when we put weight on it so we stay off it (or at least limp). Pain is, at least in part, a protective mechanism.
Pain can also be debilitating. When it is not nociceptive (i.e., when it is not caused by a pain-inducing stimulus as in the examples above), pain immobilizes us even though it often does not serve a protective function. This frequently has deleterious consequences for our health. We become sedentary. We gain weight. We become depressed. We lose confidence.
When it comes to pain, we typically are dealing with two related but different phenomena: threshold and tolerance. Threshold refers to the point at which a person feels pain. Different persons have different pain thresholds. Also, it appears that a person’s pain threshold appears not to change over time (though chronic narcotic usage can lower a person’s pain threshold). Tolerance refers to how much pain a person can handle. Common tolerance measurements would include things such as how much pain can a person tolerate before they seek medication, or how much pain can a person tolerate before they seek to remove the painful stimuli.
We know that pain which serves no nociceptive purpose often immobilizes us. But what if there was a way to make the pain more tolerable, to increase our ability to handle the pain and be more active? According to research (subscription required) reported on in the New York Times, there is something that can increase our tolerance of pain: exercise. Not a two billion dollar drug or expensive surgery, just good old-fashioned exercise. In the study, one group of healthy but sedentary individuals was placed on an exercise plan while the control group of healthy but sedentary individuals was not. The two groups were then subject to testing throughout the study that measured both pain threshold and tolerance. As Gretchen Reynolds notes, “volunteers in the exercise group displayed substantially greater ability to withstand pain.” Interestingly, the study found that the participants’ pain threshold did not change, only their tolerance did. As Matthew Jones, one of the researchers stated, “to me…the participants who exercised had become more stoical and perhaps did not find the pain as threatening after exercising, even though it still hurts as much…”
This could have important implications in the worker’s compensation and personal injury settings. Pain presents a particularly difficult conundrum in the medico-legal context because we are frequently dealing with persons who have (or allege) an injury overlaying a significant degenerative disease processes like osteoarthritis or degenerative disk disease that, to put it simply, hurts. In an effort to improve functionality, it seems like the goal of treatment is often to eliminate or reduce pain, which has predictably poor results in the context of a chronic, degenerative condition like degenerative arthritis. The Reynolds article and the study on which it is based suggest a different approach may be in order. Rather than telling patients that pain is bad and needs to be eliminated, perhaps patients need to be told that pain isn’t so bad and that they can take it. According to Mr. Jones, “the brain begins to accept that we are tougher than it had thought, and it allows us to continue longer although the pain itself has not lessened.”
This validates the advice we frequently see from independent medical experts who frequently note that patients suffering from progressively deteriorating degenerative conditions such as osteoarthritis need more activity not less and less treatment not more in order to maximize function and to learn how to live with the realities of a degenerative condition. It will be a positive development if the study’s results can be replicated and exercise can become a standard, first line treatment for conditions causing chronic pain. Instead of downward spirals into depression and dependence, perhaps we will see more patients take control and increase their independence and engagement. This alone would have an enormously positive impact on worker’s compensation and personal injury claims.
“Draw inferences from data, observations or other evidence and recognize when firm inferences cannot be drawn.”
What is data? “Factual information (as measurements or statistics) used as a basis for reasoning, discussion, or calculation.” It is useful to keep this in mind when assessing claims. Observations are, “act(s) of recognizing and noting … fact(s) or occurrence(s) often involving measurement with instruments.” Evidence can be described as, “an outward sign.”
What data, observations, and evidence have in common is that they are things that demonstrate a particular state of affairs without requiring inferential reasoning. In other words, they are things that stand for other things. To make sense of evidence, which I shall use as shorthand to describe data, observations, and evidence, inferential reasoning is necessary. In other words, evidence only means something if we connect the dots between multiple pieces of evidence and what those pieces stand for. For example, in the forensic setting DNA evidence simply means that a biologic sample from a particular person was found at a particular location. This in itself does not allow us to draw an inference that the person whose DNA is found at the scene of a crime committed the crime. Instead, we use inferential reasoning based on additional factors to conclude that the DNA evidence means that the person being accused of the crime and whose DNA was found at the scene committed the crime. Typically, forensic experts and attorneys make the inference based on one of two possible factual scenarios. First, that the suspect’s DNA is the only DNA present other than the victim’s and there is no connection between the two persons. Second, the suspect has a connection to the victim but is the only person whose DNA was present and who did not have a plausible alibi. In essence, the DNA places the person at a location and the background information allows us to infer that the person was at the location at a particular time i.e., when the crime was being committed. The evidence is important, but only insofar as strong inferences can be drawn from it.
In the context of claims, the disconnect between evidence and inference arises frequently. For example, we often assume that adverse employment actions precipitate claims when there is some proximity between event and claim. Essentially, we assume that an adverse employment event triggers an emotional response in the claimant that causes her to want to punish the employer for the adverse event. Our assumption is based on a socio-culturally transmitted understanding of human psychology and behavior. What we do not in fact know is whether there is an actual link between our assumptions about how people respond to bad news on the job and specific behavior, in this case making a worker’s compensation claim. In short, we do not know in fact if upset workers make more claims.
The problem with making weak inferences from evidence is that we have little idea as to the validity of the inference; hence, we could be making strategic claim handling decisions based on what amounts to little more than a superstition masquerading as a fact. Instead of connecting an adverse employment event and a subsequent claim, we should note the two occurrences and investigate to determine if there is additional evidence to make the inference strong. Some factors that would help us determine the strength of our inference would include:
So if we have an employee who is written up for punching out too early and a week later falls off a platform and breaks his leg, no one could reasonable suggest the two occurrences are related. On the other hand, if an employee is suspended without pay for a week because he doctored a time card and claims an unwitnessed low back injury on his first day back after having been overheard by two co-workers shouting, “You’ll never get away with this!” at his supervisor when leaving after being suspended, the adverse employment action and the injury appear to have a relationship that is more than coincidental.
The point of this discussion is that we need to evaluate what inferences the evidence allows us to make and whether those inferences are strong or weak. To the extent possible, strategic decisions should only be made based on strong inferences. In addition, we should explore weak inferences to determine if we are likely to find evidence in an investigation that will strengthen the inference. It is only in the context of strong or firm inferences that we can make rational decisions the outcomes of which are predictable. Otherwise our decisions will not be based on reason and will have unpredictable outcomes, which bears all the hallmarks of decision making based on superstition rather than fact.
The medico-legal world is strewn with landmines for the unwary when it comes to language use. Perhaps the most famous and public example of this was then President Bill Clinton’s insistence that a decidedly unambiguous two letter word, “is,” is in fact ambiguous. Fame and political machinations notwithstanding, the language we use in claims is important to the outcome of the claim and any slack, vague, or ambiguous usage can wreak havoc on defending or prosecuting a claim.
One example we see regularly at Medical Systems arises in the context of motor vehicle personal injury claims. During and IME, examinees frequently tell the physician that the vehicle was “totaled” in the accident. Presumably, the examinee states that the vehicle was “totaled” to demonstrate to the physician that the impact was significant (with the unspoken premise that the physical damages to the vehicle were significant.
The problem with using “totaled” in this way is that total loss is an economic concept arising out of an insurance policy that does not have anything to do with damage per se but instead refers to the relationship of the cost of repairing the damage sustained in the accident to the cost of replacing the vehicle i.e., does the cost of repairing the damages exceed the replacement value of the vehicle. This is significant because two accidents could have damages causing identical repair value estimates in which one vehicle is declared a total loss and the other is not.
If two accidents caused $2,500 damage to different vehicles but one is a 2014 Ford F150 and the other is a 1996 Ford F150, the 2014 vehicle would not be a total loss but the 1996 vehicle would be. This demonstrates that total loss is not a proxy for the severity of physical damage to a vehicle but rather is a measure of whether the cost of repair exceeds the value of the vehicle given such factors as such factors as the age, condition, make, and model of the vehicle. In both cases, the damage may not suggest the impact was severe, yet the examinee’s use of the word “totaled” is undoubtedly designed to suggest a severe impact. If the physician has access to photos or an accident report demonstrating the actual appearance of the damages, the examinee’s bold assertion that the vehicle was “totaled” will in fact make him seem less credible than he would otherwise be.
The example above is but one small demonstration of why it is important to use precise language in prosecuting and defending claims in the medico-legal universe. When the two worlds come together, it is crucial that we, as the inhabitants, speak precisely so that everyone, including the experts, understands exactly what we are saying. If we fail to do so, we run risks from misunderstanding to impaired credibility to confusion to much more.
“Probe for assumptions (particularly the implicit, unarticulated assumptions) behind a line of reason.”
This is one of the more interesting and critical strategies that Brewer identifies. Too frequently we accept statements as fact without considering whether they are supported by facts and solid inferences or are instead based on assumptions that are ad hoc and contingent.
One area fraught with difficulty in this regard is surveillance footage. Consider a claimant who has a 10 pound lifting restriction due to an alleged low back injury. He is observed on a surveillance video transferring multiple bags of groceries and a gallon of milk from a cart to his car and then from his car to his house. Let us assume that we want to use the surveillance footage to argue that the claimant’s low back condition is not as disabling as he and his doctors claim it is. If we conclude that the footage supports or otherwise proves our argument, we must ask ourselves:
In our example we must first step back and ask what, in fact, are physician-imposed restrictions? Are they absolute limits or rough guides? What do they mean and what does it mean if someone does not strictly follow them? We frequently (and erroneously) assume in the context of physical restrictions that they limit performance absolutely or act as an absolute reinjury threshold. Unfortunately, as many IME physicians are wont to point out, medicine is both an art and a science. When a physician assigns physical restrictions, she is making an educated guess as to what level of physical activity the injured person can tolerate with an acceptably small risk of reinjury. Her guess is based on her general experience, training, education, and her particular experience with the patient. No physician can do better than make an educated guess and every honest physician would agree that physical restrictions are an approximation or guide. The individual variables between patients are so great as to make certainty impossible. Hence, restrictions do not mean that a person is physically incapable of lifting more than the limitations the physician sets. Neither does it mean that a person who lifts in excess of the restrictions will necessarily suffer injury. One simply cannot make the assumption based on a limited observation that an injured person lifting in excess of physician-imposed physical restrictions is not as disabled as the physician concludes.
Second, we have no idea whether the observed behavior exceeds the physician-imposed physical restrictions in the first place. We know that a gallon of milk weighs approximately 8.5 pounds, with minor variations depending on the fat content (whole milk is heaviest, skim or fat-free milk is lightest). This is clearly within the claimant’s restrictions. The rest of the groceries in our example are in bags. Unless the bags are clear and the surveillance video is particularly good, we will only be able to guess as to the weight of the contents of the bags. It may appear that the contents of the bags weigh more than 10 pounds if they are larger bags that appear full or if they are reusable bags that appear full. Even then, we are making an assumption based on a limited observation of tenuous support. The point is that we must examine our assumption before concluding the surveillance footage supports our argument that the claimant is exaggerating his disability based on transferring grocery bags from cart to car and car to house.
Third, we must ask ourselves what the impact of the footage will be on the trier of fact, not merely based on the footage itself, but on the probable testimony that the claimant will offer about the footage. I will restrict my comments to the worker’s compensation setting, which will undoubtedly be different than the personal injury setting. Consider what the ALJ will see: an adult shopping for groceries. While it is tempting to view such footage as a “gotcha” moment when we believe the claimant is exaggerating or fabricating disability, the ALJ is more likely to respond to the footage by thinking (and sometimes saying out loud), “so what?” From an ALJ’s perspective, the footage is not likely to be perceived as particularly nefarious because of the simple fact that shopping for groceries is an activity in which the vast majority of self-sufficient adults must engage regardless of their physical condition or whether a physician has imposed activity restrictions based on an alleged work-related condition. In my experience, some common ALJ responses to this type of footage include (with considerable smarm in most circumstances):
This is not to say that surveillance footage cannot be useful. Even in our example, the footage could be useful if there was additional evidence or information that supports the inference we want to make. If the footage was just one example among many showing the claimant moving easier or lifting more than his reported level of disability suggests he is capable of, the footage supports the inference we want to make. Also, if the claimant reports extreme disability and we have evidence that the grocery bags contain far more than 10 pounds, the footage would support our inference if he lifted and moved them with appreciable ease. The bottom line is that we do ourselves and our claims a disservice when we see what we want to see instead of examining the assumptions behind our conclusions.
This post continues our discussion of strategies to eliminate cognitive biases and improve strategic decision making. Brewer’s fourth strategy is interesting and does not seem, at first, to be intuitively important or useful:
Recognize that words are symbols of ideas and not the ideas themselves. Recognize the necessity of using only words of prior definition, rooted in shared experience, in forming a new definition and in avoiding being misled by technical jargon.
This seems abstruse and postmodern, the worst sort of crypto-theoretical drivel… However, it makes sense when you think about it for a moment. As part of the medico-legal world, words are our currency. The value of a claim may be expressed in dollars based on percentages estimating the likelihood of success, but the way we get there is through words. Even when a claim is rife with photos, videos, diagnostic imaging studies, etc. the images lack meaning without narrative support, which is established through the use of language. Words create, establish, color, taint, destroy, or bolster what the images mean. Words are the firmament out of which the images of a claim shine (or are obscured).
A good example of the critical need to differentiate between word and idea and to use words of prior definition is the presence of subchondral bone marrow edema in knee injury cases. “Subchondral bone marrow edema,” also referred to as “subchondral edema,” “bone marrow edema,” and “bone marrow edema syndrome” is the term used to describe fat cell changes to the subchondral bone marrow observed on MRI that suggest swelling in the bone below the articular cartilage. When this phenomenon was first observed during the introduction of MRI machines to hospitals in the mid-1980s, the phenomenon was referred to as a “bone bruise” and was thought to be the result of acute trauma. As the use of MRI machines became ubiquitous in orthopedic practices a funny thing happened: radiologists and orthopedists began observing subchondral bone marrow edema in a significant number of patients with no history of knee trauma. This group of patients broke down into roughly two categories: those with degenerative changes (osteoarthritis) and those with inflammatory conditions (rheumatoid arthritis, septic arthritis). The new findings demonstrated that the term “bone bruise” was not an apt term for subchondral bone marrow edema because in most cases the finding was not related to trauma and hence could not be described as “bruising” in any conventional or commonly understood sense.
When considering the importance of using words of prior definition, consider an administrative law judge dealing with an alleged work-related knee injury and MRI findings that demonstrate the presence of subchondral bone marrow edema. If one does not establish a clear definition of what “subchondral bone marrow edema” is and what its presence on an MRI scan suggests, an administrative law judge could conflate the MRI evidence with the concept of bruising and use that erroneous understanding to find that the employee sustained a traumatic, work-related knee injury. Instead, when handling a claim with MRI evidence of subchondral bone marrow edema, the claim administrator may wish to take the opportunity that the independent medical examination affords to establish the limits of what the MRI evidence means. A series of targeted questions and references to academic consensus on subchondral bone marrow edema can help set the parameters for what conclusions can be drawn from the presence of subchondral bone marrow edema.
For example, a well-regarded study from researchers and the University of Wisconsin Hospitals and Clinics noted:
This finding is one of general consensus among radiologists. Others with even more concision report, “[t]he pathophysiological event that triggers BMES (bone marrow edema syndrome) is still a complete enigma.” Still other researchers report, “[b]one marrow edema is non-specific and can be seen in degenerative disease or traumatic injury.”
Despite the difficulty of determining the etiology of subchondral bone marrow edema, there are, however, some characteristics specifically associated with traumatic injury. “If the cartilage defect has well-defined right angle margins, with marrow edema deep to the defect, this suggests a traumatic etiology.” Also, traumatic changes tend to be focal. “Characteristic changes include focal cartilage defect or fissure, subchondral linear-branching pattern, focal edema, and cortical impaction or bowing.” Non-focal changes suggest a degenerative condition rather than a traumatic cause.
From a claims administration perspective, this information can be used to establish what MRI findings of subchondral bone marrow edema mean in the context of our hypothetical knee claim. When crafting an IME letter, a claim administrator may wish to point out to the independent medical expert that the MRI evidence demonstrates subchondral bone marrow edema and then ask a series of targeted questions such as the following to demonstrate that the MRI findings suggest a degenerative rather than traumatic etiology:
Obviously, the form of the question may need to be altered based on local evidentiary standards and the facts of the claim, but the bottom line is that claims are handled more effectively when we recognize that words and the ideas they represent can often pose problems if we allow the relationship of work and idea to be loose, ambiguous, or vague. Instead, we should carefully limit definitions to established fact whenever possible so that decisions, whether our own in handling claims or those of the trier of fact, are based on terms of consensus and limited definition. The independent medical examination represents an excellent opportunity to use an expert to establish the limits of medical terms that could otherwise be used to justify the compensability of a claim when the actual medical records and imaging studies do no such thing.
We have previously reported on a study that found sitting less is independently "associated with excellent health and excellent quality of life." Apparently sitting is not just good for the body, but it is also good for the mind according to a study published in Social Psychological and Personality Science. In the study, researchers from the Washington University’s Olin Business School found that standing during business meetings led to greater collaboration and more openness to the ideas of others among participants. The report notes, “in addition to the physiological benefits of non-sedentary work designs, getting people out of their chairs at work may increase their capacity for collaborative knowledge work.” According to the authors, the reasons for the findings are two-fold: increased arousal of the sympathetic nervous system (which prepares a person to act on her environment) and reduction in territoriality.
The authors acknowledge that there are limitations to the study in that the findings have not been replicated and the meeting length in the study was limited to 30 minutes (which represents the average meeting length for 75% of organizations). Nevertheless, one of the lead authors, Andrew Knight, PhD, assistant professor of organizational behavior at Olin Business School, recommends that, “organizations should design office spaces that facilitate nonsedentary work.” In addition to fighting the negative health effects of being sedentary, “Removing chairs and adding whiteboards are low-cost options that encourage brainstorming and collaboration.” In a knowledge economy, any move to encourage brainstorming and collaboration should provide tangible benefits to an organization’s bottom line. To the extent that a minor tweak to the working environment can also decrease the amount of time workers spend sitting is a double bonus.
The trend in medical research suggests that modifying work spaces to limit the amount of time we spend sitting can have significant effects on the physical health of workers. It only makes sense that the same effects would translate to workers’ cognitive health and abilities. From a claims perspective, these findings represent an opportunity to work with employers to encourage workplace designs that foster both physical health and mental acuity (and hopefully fewer claims).
Medical News Today reports on a study published in the Journal of Bone and Joint Surgery (subscription required) which found that patients whose opioid use was increasing prior to spine surgery had worse outcomes than those whose opioid use was not. As Medical News Today notes, studies have shown that opioid use prior to spine surgery frequently leads to worse outcomes, but "the studies did not account for differences in opioid consumption among patients." In this new study, the authors concluded that, "increased preoperative opioid use was a significant predictor of worse health outcomes at 3 and 12 months following surgical treatment..." While this news is not particularly surprising to those in the medico-legal world, it does offer an opportunity to ask IME physicians a targeted question about the appropriateness of spine surgery in claimants with a demonstrated history of opioid dose escalation which should ensure that the physician's opinion explicitly relies on evidence-based medicine and hence is more credible.
Returning to our discussion of strategies to eliminate cognitive biases and improve strategic decision making, we arrive at Brewer’s third strategy: discriminate between observation and inference, between established fact and subsequent conjecture. The last post in this series touched on this issue, but it is worth revisiting in greater detail. One of the things that plagues strategic decision making is our frequent tendency not to discriminate between observation and inference and between established fact and subsequent conjecture. This tendency is normal and virtually everyone exhibits it to some degree. However, when making strategic decisions, we want our judgments to be based on observation and fact to the maximum extent possible. When making inferences, we want observation and established fact to support our inferences. We want our inferences to be likely, not merely conjecture or possibility. But how do we do that?
The first step is to train oneself to identify when an inference or conjecture is being made. One way to do this (among many) is to ask whether the information is the product of a sense impression. Do we have the information because we saw it, heard it, felt it, touched it, smelled it? To return to a first report of injury, the existence of a first report with writing that states the employee reported the injury on Y date is an observation because we saw the report. When we see the report and hold the report and examine the report, it becomes and established fact. Whether the employee actually reported the injury on Y date is not a fact. Instead, if we posit that the employee actually reported the injury on Y date, we are making an inference based on a variety of facts and assumptions (such as the employer is reliable in reporting injuries, has never had an employee dispute the date the injury was reported, etc.). It is important to recognize that the fact of the first report of injury is different from the state of affairs it purports to represent, which is an inference, however strong.
This distinction even arises in diagnostic imaging studies, which we typically think of as “objective” evidence of injury or the lack thereof, conflating “objective” with “fact.” The image is a fact, what it signifies is an inference that an interpreting physician makes. For example, a person complains of a knee injury that suggests a meniscus tear to a treating orthopedist. The treating orthopedist orders an MRI which does not appear to demonstrate a meniscus tear. When we evaluate the medical records in the claim, we frequently conclude that if an MRI (or more properly the radiologist’s report interpreting the images) does not show pathology then none exists. This is an assumption. The only fact is the images the MRI scan generates. The simple fact that a radiologist concluded that the images do not show the presence of a meniscus tear does not mean that a meniscus tear is not present. We know for a fact that MRIs do not demonstrate every meniscus tear. However, we assume that an MRI is accurate because we know or have been told that MRIs accurately demonstrate the presence of most meniscus tears. Again, this is an assumption, not a fact. In our example, the treating orthopedist may perform a diagnostic arthroscopy and find that a meniscus tear is present. A physician in an IME report recently summed up the problem of conflating what an MRI scan actually demonstrates (observation) with the inference of pathology or lack thereof:
I would stress to the reader that diagnostically the arthroscopic evaluation of the knee is far more likely to be the gold standard of accuracy versus that of an MRI scan… I would note that there are, of course, instances wherein it can indeed be difficult to differentiate a recurrent tear from a picture of a meniscus that has been previously operated on. Furthermore, this case is a stellar example of how MRI scans can in fact be inaccurate despite expert interpretation.
In our MRI example, another assumption is being made: if an MRI reveals pathology, the pathology must be causing dysfunction. We know this is a questionable assumption based on numerous studies showing that large portions of the population have conditions ranging from rotator cuff tears to “herniated” discs that are present on MRI scans but asymptomatic. Whether the presence of pathology causes dysfunction is a separate question that the physician makes based on many factors including physical examination, history/mechanism of injury, medical records, and diagnostic imaging studies. The strength of the inference that a particular pathology is causing dysfunction is determined by reviewing all factors. The imaging study alone may be enough to make a strong inference, but often more support is needed before an inference can or should be made.
Another example that arises frequently in both the worker’s compensation and liability settings is the conflicting report of injury. For example, let’s assume that an employee reported to the employer that she did not remember a specific event but had been lifting heavy pipes all day and noticed shoulder was getting sore. The employee seeks treatment with her primary care physician who refers her to an orthopedic specialist several weeks after the date of injury because the shoulder condition did not improve. In the initial notes from the orthopedist, the employee is reported to have stated that she was lifting a heavy pipe and noted the immediate onset of shoulder pain. Obviously there is a discrepancy between the records, but what does the discrepancy mean? Does the discrepancy mean that the employee is untruthful or that the condition is less likely to have occurred at work?
The established facts in this scenario are that the first report of injury states the condition arose gradually during the course of a work day and did not follow a specific traumatic event while the orthopedist’s notes state that condition arose acutely, following a specific lifting event. These are the only facts we know. Any statement about what the facts mean is an inference and is not a fact. Before drawing any conclusions, I would want to obtain more information. For example, did the doctor’s office press the employee to identify a specific event? It would not be unheard of for a member of a physician’s staff to ask the injured worker something along the lines of, “Well, if you had to guess, what incident would have caused your shoulder pain?” I would also want to know how the injury was reported. Perhaps the employee said something along the lines of, “I lifted a pipe and felt something in my shoulder. I kept lifting heavy pipes all day and it just got worse and worse.” Either piece of information would make the discrepancy in reporting appear less significant. On the other hand, if there is no indication that the first report is inaccurate or that the orthopedist’s office asked the employee to identify a specific traumatic event, then the inferences that A) the employee appears to be unreliable or dishonest and B) the condition may not have arisen out of the employment are stronger. The point is that the discrepancy in the records only reflects a discrepancy in the records. This is our observation and the only established facts. To the extent that we infer that the employee is dishonest or that the work-relatedness is questionable from the discrepancy, we are making an inference that is not fact. When making such an inference, must be mindful that other information is necessary before we can decide whether the inference is strong or weak.
When evaluating claims, it is critical that we distinguish between observation and inference, between established fact and conjecture. Failing to do so will cause us to estimate the strength and weaknesses of our arguments inaccurately. If we do not accurately estimate our arguments, we cannot effectively administer our claims. One way to help ensure that we are accurate in our assessments is to discriminate between observation and inference, to ensure that our conjecture is supported by established fact and to recognize when we lack support for our inferences and conjectures.
Interesting new research from the University of Manchester finds that current smoking increases risk of hearing loss by 15.1%. Researchers were not sure whether "toxins in tobacco smoke affect hearing directly, or whether smoking-related cardiovascular disease causes microvascular changes that impact on hearing, or both." Regardless, current smokers or those exposed to passive smoking could could provide employers and insurance carriers with a potential new defense in occupational hearing loss cases if the study's results are replicated or otherwise confirmed.
What do we do when we have a conversation? Turns out, we do a lot of anticipating and predicting about what the other person is going to say. This predictive process makes our normal conversations better, or at least more readily intelligible. In an interesting study published in The Journal of Neuroscience, researchers found that “language processing is comprised of an anticipatory stage and a perceptual stage: both speakers and listeners take advantage of predictability by ‘preprocessing’ predictable representations during the anticipatory stage, which subsequently affects how those representations are processed during perception.” This would seem to have implications for the medico-legal world because of the reliance on oral statements, whether recorded or not, formal or informal in claims administration. Specifically, the quality of the answers one gets in a statement can potentially be manipulated when either party understands the predictive process involved in conversation. For example, when speakers introduce unexpected words or phrases, listeners become more prone to error: “When subsequently confronted with unpredicted words, listeners/readers typically show a prediction error response.” A clever interviewer could use this information to keep the interviewee off guard, which may help elicit information the interviewee had been consciously trying not to reveal. Conversely, a clever interviewee will be conscious of her tendency to answer based on both prediction and cognition and will take steps to limit the affect prediction has on her answers.
One simple technique interviewees can use is to (silently) repeat every question that is asked of them back to themselves before answering. This focuses the interviewee on comprehension and cognition rather than prediction, which will help the interviewee limit her response to what was in fact asked and not on what her predictive mind assumed was asked. This also may be effective because the prediction happens so quickly and over such a short period of time. According to the authors of the study, “[A]nticipation may precede perception by as little as 200 milliseconds…” This is an incredibly short time interval and any device that an interviewee can employ to slow cognition down will allow her to limit the tendency to anticipate where the speaker is going with a question and instead to hear the actual question that is asked.
One of the things that our brains do brilliantly well is to construct order of the world around us. This predictive aspect of speech is part of that. We are hard-wired to recognize patterns and make connections; hence, we gravitate to coherent narrative versions of events. It is difficult for our brains to process events without linking them together causally. Our conversations reflect this tendency as well. In fact, when people do not conform to the normal way conversation works in this regard it is noticeable and such speakers often seem odd, idiosyncratic, or eccentric.
The problem with the predictive process of speech and our tendency to turn our conversations into coherent narratives is that it inhibits our ability to ask the right questions and give the best answers. When taking a statement, the interviewer should keep in mind that the process is not a conversation in the ordinary sense of the word. That is why, for example, it is imperative to wait until the interviewee completes her response to each question before moving on to the next one. While normal conversation works better when we allow the predictive aspect of conversation to fulfill its function, in a statement the predictive aspect can lead the interviewer away from valuable areas of inquiry simply by virtue of dovetailing the interviewer’s thoughts about what to ask next with the interviewee’s response. Instead, interviewers should be mindful of the process and ask questions that occasionally interrupt the narrative flow to keep her attention focused on what the interviewee is actually saying. One such strategy could involve interjecting questions about an unrelated topic periodically. For example, during questions about the facts of an accident the interviewer might want to ask a question about current prescriptions that the interviewee takes. The question will feel strange when asked, but it is surprising how quickly this jars the interviewer back to the kind of focused attention that is necessary to obtain an effective statement. And that, after all, is the goal.
Evidence continues to mount that arthroscopy to treat osteoarthritis of the knee is no better than sham surgery or conservative care. The German Institute for Quality and Efficiency in Health Care (IQWiG) published a final report (executive summary available here) on May 12, 2014 that consisted of a meta-analysis of various studies comparing arthroscopy to various modalities, including sham surgery and strengthening exercises. The report’s authors concluded that:
The benefit of therapeutic arthroscopy (with lavage and possible additional debridement) for the treatment of gonarthrosis is not proven. There was no hint, indication or proof of a benefit of therapeutic arthroscopy for any patient-relevant outcome in comparison with no active comparator intervention. There was also no hint, indication or proof of a benefit of therapeutic arthroscopy for any outcome in the comparisons with lavage, oral administration of NSAIDs, intraarticular hyaluronic acid injection or strengthening exercises under the supervision of a physical therapist.
While this information is not new, it bolsters the conclusion that arthroscopy to treat osteoarthritis of the knee is no more effective than other modalities, including conservative care and doing nothing. The standard of care does appear to be shifting toward the abandonment of arthroscopy to treat osteoarthritis of the knee; however, the procedure is still performed occasionally. In managing claims, it is important to ensure that approval for any arthroscopic knee procedure be based on evidence-based medicine. Insurance carriers should not be expected to bear the cost of procedures the benefit of which “is not proven.” In addition, injured plaintiffs and employees should not be expected to bear the risks of surgical complications and extended recovery periods for procedures the benefit of which “is not proven.”
One of the problems we face in claims administration is that many of our decisions are made in the context of uncertainty. For example, we may know that the plaintiff is credible, but that the mechanism of injury is questionable and the defense has a strong IME report. The claims and legal professionals must determine (among other things) the plaintiff’s likelihood of succeeding on the question of whether an injury occurred based upon the available information. The problem is that this judgment is a guess (though hopefully an educated one) based on experience and the available information. There is no definite or fixed answer. In order to make such decisions effectively, we need to know what is fact, what is inference, what is loose conjecture, and what information is likely to be discoverable or otherwise available that will make the guess more educated. Once we have this information, we can determine what aspects of the claim are uncertain or ambiguous and develop a strategy to deal with them.
This brings us back to Brewer’s strategies for combating cognitive biases and making effective decisions. His second strategy asks us to:
“Be clearly and explicitly aware of gaps in available information.”
We normally live with and tolerate an enormous amount of ambiguity and uncertainty in our lives without paying much attention to it. In fact, imperfect knowledge is the general and pervasive condition of human life. However, when we assess claims, we become acutely aware of ambiguity and uncertainty and recoil from it. Why? We recoil because ambiguity and uncertainty foil our attempts to predict the outcome of claims and hence drive us crazy. Nonetheless, it is critical that we be able to make effective claims decisions against a background of ambiguity and uncertainty. And the key to making effective decisions in the context of ambiguity and uncertainty is to specifically and accurately identify what is known (and hence certain) and what is not known (and hence uncertain). Doing so will help us accurately evaluate the strength of our current position, reveal what we can do to obtain more information, and allow us to make rational decisions without ignoring or being paralyzed by ambiguity and uncertainty.
Once we have asked the “how do we know…” questions, we are in a position to organize what we know. What we know in any claim falls into several categories.
To accurately judge the claim, it is important to understand the gaps in available information and to understand when our conclusions are not supported by factual knowledge. Take the dictum that a delay in reporting an injury increases the likelihood that the injury is fraudulent. To believe this, one must make assumptions that may or may not be supported by actual evidence. It is important when evaluating a new claim that we understand what these assumptions are before we make a judgment regarding the validity of the claim.
First, accepting the dictum as true assumes that there is statistical support for it. If there is not, the dictum is the equivalent of an old wives tale. This is not to say that it may not be true, but without statistical support for it then it is equally plausible that the dictum is false. Thus, the dictum should not be taken to demonstrate the strength or weakness of a claim without the existence of additional supporting evidence such as the softball tournament example above. Despite the lack of statistical support for the dictum that delayed reporting increases the likelihood that a claim is fraudulent, numerous insurance professionals, companies, and even state agencies continue to hold the dictum out as if it had some sort of predictive significance.
Second, accepting the dictum can actually create a selection bias in which late reported claims receive a higher level of scrutiny and more intense investigation than claims with contemporaneous reporting. If one believes based on experience that late reported claims are more frequently bogus than timely reported claims, one must actually investigate her claim handling history and measure the level of scrutiny given to the separate claims to determine if there is any truth to the dictum. In order to determine if there is a probable statistically significant effect in a retrospective investigation, at a minimum you would have to include only those timely reported claims that receive the same or similar level of scrutiny and investigation to late-reported claims for comparison to at least attempt to eliminate selection bias. Without making this investigation, the dictum that late-reported claims are more likely to be fraudulent has no basis in fact and is likely to skew results in a way that confirms the dictum.
When managing claims, it is important to consider why a decision is being made and whether the decision is based on factual knowledge, an inference, or an assumption that has been “taken on faith.” Any claim will have ambiguity and uncertainty. This is normal. When the ambiguity and uncertainty are identified, they can be factored into the assessment of the claim and will help generate the strategy for developing the claim (which will be the topic of the next post in this series). When deciding to give a claim heightened scrutiny or making any other tactical decision, the decision will be more effective and will likely yield better results if it is based on factual knowledge than if it is based on an unsupported assumption. The only way to ensure that the decision is based on factual knowledge is organize what you know. Once the knowledge in a claim has been organized, it is easy to identify if something is being taken on faith rather than fact.
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.
We recently published a couple of posts about the impact of cognitive biases and emotion on decision making. In the posts, we offered some suggestions on how to limit biases and emotions in order to make better decisions. Recently, we came across a paper by Jeffrey W. Brewer, a member of the Risk and Reliability Department at Sandia National Laboratories, that discusses strategies for overcoming cognitive biases and irrational risk perception. Brewer’s specific discussion deals with overcoming biases in the context of explaining the benefits of nuclear power; however, his general discussion offers a number of strategies that can be applied in any business setting.
Brewer reduces the strategies to a simple statement that focuses on thinking carefully, question assumptions, and using the best available evidence:
Techniques to counter the undesirable tendencies [of cognitive biases] include a strong commitment to reflect on one’s biases in a specific decision making situation, to make decisions using the most valuable quantitative data available, and to carefully map out what one considers important in the decision making setting.
He then offers ten specific strategies that can be used to overcome our biases when we make critical decisions:
While not every decision in the medico-legal-claims environment requires such careful attention, we do make high stakes decision involving significant monetary sums that can have profound impacts on employers, employees, and health care providers. When we are tasked with making such important decisions, we should make an effort to ensure that we are making the best decision possible based on reason and the best available evidence. Following Brewer’s strategies can help us do just that.
Although some of Brewer’s strategies are self-explanatory, some of them are not and all would benefit from a more extended individual treatment. Over the course of the next few posts, we will address Brewer’s strategies in more detail, explaining exactly what each strategy means, why each strategy is important, and how each strategy can be implemented, using practical examples.
Patients often confuse positive findings on diagnostic imaging studies and what the findings mean for their personal health. For example, many studies demonstrate that asymptomatic persons who undergo MRI scans of their shoulder, knee, neck, or back frequently demonstrate positive findings, especially in persons over 40. In the case of a shoulder this may be in the form of shoulder impingement or rotator cuff pathology. A knee scan may demonstrate a torn meniscus. A neck or back scan may show a herniated disk. The question for the healthcare market generally is whether positive findings in asymptomatic individuals lead to increased healthcare costs.
Unfortunately but not surprisingly, much research finds that positive findings on diagnostic imaging scans of asymptomatic persons lead to increased medical interventions and costs. This is particularly problematic in the context of back and neck pain. According to the Journal of the American Board of Family Medicine, spine surgery rates are highest where spine imaging rates are highest. www.jabfm.org/content/22/1/62.full.pdf. As the authors note
One problem with inappropriate imaging is that it may result in findings that are irrelevant but alarming. Positive findings, such as herniated disks, are common in asymptomatic people. In a randomized trial there was a trend toward more surgery and higher costs among patients receiving early spinal MRI than those receiving plain films, but no better clinical outcomes.
Another study (subscription required) compared early MRI use versus no MRI use in low back pain patients and found significantly higher costs among those receiving early MRIs. “The early-MRI groups had similar outcomes regardless of radiculopathy status: much lower rates of going off disability and, on average, $12,948 to $13,816 higher medical costs than the no-MRI groups.” As a result of studies such as these that demonstrate increased interventions and costs following positive findings on diagnostic imaging, the American College of Physicians and the American Pain Society “recommend against routine imaging in patients with nonspecific back pain …”
In addition to the costs associated with a positive finding on MRI in an asymptomatic person, the actual cost of the MRI may itself be unnecessary. A study published in the American Journal of Sports Medicine (subscription required) compared the effectiveness of standard clinical examinations versus MRI scans for various conditions. Remarkably, the clinical examination outperformed the MRI in diagnosing ACL pathology, meniscal pathology, and articular cartilage pathology (osteoarthritis). With respect to diagnosing articular cartilage pathology, clinical assessment was 100% sensitive while MRI was only 33% sensitive. This study seems to suggest that MRI would not even be necessary for knee pain without a correspondingly positive clinical finding.
A large part of the problem may be due to a misunderstanding of pain and an overconfidence in the abilities of medicine to manage it. Most people who suffer from chronic or recurrent pain assume that if a specific cause of the pain can be identified and once identified the specific cause can be ‘fixed,’ which will remove the pain. Unfortunately, chronic or recurrent conditions often do not work this way. For example, degenerative arthritis is not susceptible to easy fixes and requires a strategy of management and tolerance rather than futile and expensive searches for cures. As the JABFM article points out, “there are no ‘magic bullets’ for chronic back pain, and expecting a cure from a drug, injection, or operation is generally wishful thinking.”
The fact of life is that there are often no panaceas for age-, genetic-, or disease-related degenerative conditions. “Patients need realistic expectations despite product marketing, media reports, and medical rhetoric that promise a pain-free life.” It is hard to keep expectations realistic when being besieged by marketing, media reports, and medical rhetoric. Our desire for efficiency, to find the fastest, easiest solution to any problem, further complicates the ability to maintain realistic expectations. Not only are we inundated with messages that tell us the answer to our problem is easy, we are also biologically programmed to seek the easiest solution. This is most unfortunate because with chronic conditions like joint pain or back pain, the most effective treatment is usually one that requires lifestyle changes, which indubitably is not the easiest solution. Hence, losing weight, increasing activity, pursuing a targeted home exercise program, and psychologically conditioning oneself to deal with persistent pain will bring the most relief but is probably the last option most persons will want to pursue.
The medicolegal world often confronts the difficulty of imaging studies creating problems where none previously existed. This can be devastating in the context of chronic pain because, as noted above, increased imaging tends to lead to increased surgical intervention. And if the imaging study finds an asymptomatic lesion, operating on an asymptomatic lesion or condition will not fix the chronic pain. It is important that we in the medicolegal world ask healthcare professionals to follow evidence-based standards for performing imaging studies in the context of musculoskeletal complaints. If imaging studies are not indicated, they should not be performed for the simple reason that the likelihood of an asymptomatic lesion or pathology being discovered is substantial, which is likely to merely induce the patient to fixate on the lesion or pathology as causative of his or her problem. This fixation often results in increased medical expenses, unnecessary interventions, and increased disability. To the extent that medicolegal professionals can require treating physicians follow evidence-based treatment guidelines, they should. One mechanism for doing this is through the IME. To be most effective in this regard, it may be advisable to ask the IME physician a specific question related to what evidence-based treatment guidelines apply and should be followed.
Stratified or targeted care of back pain implemented by family doctors leads to 'significant' improvements for patients and a 50% reduction in work absence - without an increase in healthcare costs...
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:
This exciting research shows that stratified or targeted approach to managing back pain in primary care is effective, and challenges the 'one-size fits all' strategy that is currently recommended by national guidelines in which everyone with nonspecific back is offered the same treatment, irrespective of their risk of persistent problems.
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:
Back pain is one of the leading causes of work place absence, and to be able to reduce this burden on society by getting more people back to work, as well as giving benefit to individuals is a fantastic outcome.