The thoracic spine runs from just below our neck down to just above our low back; it is our middle back. It is what anchors our rib cage. The rib cage along with the spine protects the internal organs located in the torso. When the thoracic spine is injured, it has an effect on other organs in your body.
The nerves of T1-T5 affect muscles of the upper chest, mid-back and abdomen which control the rib cage, lungs, diaphragm and the muscles that control breathing. Injuries to T1-T5 usually affect the abdominal and lower back muscles and legs, typically resulting in paraplegia. Arm and hand function usually remains normal.
T6-T12 nerves affect abdominal and back muscles. These are important for balance and posture, and they help you cough or expel foreign matter from the airway. Injury to T6-T12 usually results in paraplegia with little or no voluntary control of bowel or bladder.
Hands and fingers
Lungs (congestion, bronchitis, or difficulty breathing/swallowing)
Chest and abdominal muscles
Lower Thoracic Vertebrae
The prognosis and recovery from thoracic injuries differs from person to person based on the type of injury and level of severity. General overall health is also an important factor in determining level of independence achieved after injury.
Lateral lumbar interbody fusion (XLIF) is a minimally invasive option to lumbar surgery. This procedure is done from the side rather than the front or back resulting in reduced time for operation, fewer recovery days, minimal scarring, reduced blood loss, less post-operative pain, and quicker return to daily activities. It is an outpatient procedure which is not appropriate in every situation.
This procedure is performed with one or more tiny incisions and a medical device called a retractor that’s used to spread apart overlying tissue to give the doctor a clear view of the spine. The retractor and dilator system used in the lateral lumbar interbody fusion is called MaXcess™ which allows the surgeon to reach the spine via a lateral view from the side with minimal muscle and ligament tampering and no disruption to abdominal muscles.
The recovery process is quicker than with traditional surgery. The patient can get up and walk immediately following the procedure, minor pain afterwards, and the results are immediately apparent rather than having to wait for a gradual return to normalcy as in the traditional fusion surgery.
Over 400 published clinical studies support the procedure, documenting positive clinical outcomes as comparted to traditional posterior fusion procedures.
Spinal cord injuries are devastating. In the U.S. there are approximately 12,000 spinal cord injuries every year in which the injured person survives the initial accident. For those who survive the initial accident, the road forward is physically demanding, psychologically taxing, and financially burdensome. A spinal cord injury patient can expect to spend well over a month in hospitals and in-patient rehabilitation (sometimes considerably longer depending on the severity of the injury and whether there are simultaneous 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 of spinal cord injury claims are enormous and usually lifelong. Since the two most common causes of spinal cord injuries are motor vehicle crashes and falls, liability 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 athletes 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 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 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.
The thoracic spine (located between the cervical and lumbar spines) is your middle back, beginning right below your neck and ending at your low back. The main function of the thoracic spine is to anchor the rib cage and protect the spinal cord, heart and lungs. It is the longest and most complex region of the spine; made up of 12 vertebral bodies that hold disks (T1-T12). T1 connects with the cervical spine above at C7 and T12 with the lumbar spine below at L1.
Interestingly, the space between disks (intervertebral opening) is much larger in the thoracic spine as compared to both the cervical and lumbar spines. A bigger intervertebral opening and smaller nerve root allows more room for spinal nerves and reduces the chance of the nerve becoming pinched or inflamed. Recent research suggests this might be the reason disk degeneration of the thoracic spine is much less likely to cause pain or other symptoms, unless of course the degeneration causes a disk to push on a nerve. There are several other causes of thoracic spine pain.
Myofascial pain (muscular in nature) can be caused by poor posture, or any irritation of the large back or shoulder muscles, which would include strains or spasms. Joint dysfunction, thoracic herniated disk, compression fracture, kyphosis, scoliosis, arthritis or osteoporosis can also cause pain.
Symptoms of nerve damage in the thoracic spine include:
Whiplash is not really a medical condition. It is a term used to describe the sudden acceleration-deceleration mechanism of injury to the neck. A whiplash injury can range from a muscle sprain to spinal cord contusions to fractured vertebra. Spinal cord contusions and fractured vertebra can be easily detected, but a muscle sprain cannot. This means there is no way to prove or disprove most claims of whiplash injury where a muscle sprain is involved.
While a car accident victim can experience neck, head, and back pain following the accident, but can such an energy transfer cause chronic, long-lasting pain, and if so, how?
There is no proven physical reason why a whiplash injury would cause chronic pain. But, in fact, about 25% of whiplash injury patients suffer chronic pain. Additionally, whiplash injuries in the United States come with a price tag of about 2.7 billion dollars a year1. So, what we know about whiplash is important to lowering claim costs.
A concussion is the most common and least serious type of traumatic brain injury. The brain is the consistency of gelatin and is cushioned by cerebrospinal fluid inside the skull. A violent bump, blow or jolt to the head, neck or upper body can cause the brain to slide back and forth forcefully against the inner walls of the skull, or twist in the skull which can create a bruise on the brain. A concussion can sometimes create chemical changes in the brain, even stretching or damaging brain cells. A concussion is a traumatic brain injury that affects brain function and should be taken seriously.
Typically, a concussion is diagnosed through a physical exam and interview. The doctor will begin with questions about how the injury happened and its symptoms. A physical examination may follow to determine what symptoms. Some doctors use a special eye test to look for concussions. It assesses if any visual changes are related to concussion such as changes in pupil size, eye movements and light sensitivities. If there is a question of bruising or bleeding in the brain, an MRI or CT may be ordered. If there are seizures, an electroencephalogram (which monitors brain waves) may be performed.
Most concussions don’t require surgery or any major medical treatment; they are symptomatically treated. For example, over-the-counter pain relievers may be recommended for headaches. Rest, avoiding sports and other strenuous activities is also recommended. Driving a motor vehicle or bike should be avoided for 24 hours or longer. Consuming alcohol may slow recovery.
Concussions are usually not life-threatening but can cause serious symptoms requiring medical treatment. Symptoms include some or all of the following:
With more severe concussions, these symptoms may be more severe or worsen with time. Repeated concussions can cause problems such as lasting cognitive issues.
Rehabilitation is an important part of the recovery process for a TBI patient. The program should be customized to the person based on their strengths and capacities and modified over time to adapt to changing needs. This usually involves a team of rehabilitation specialists in multi-specialties. Individually tailored programs generally include physical therapy, occupational therapy, speech/language therapy, physiatry, psychology/psychiatry, and social support. There are several options for rehabilitation: home-based, hospital outpatient, hospital inpatient, comprehensive day programs, supportive living programs, independent living centers, club-house programs, school based programs for kids and others.
The overall goal is to improve the patient’s ability to function at home, work and in society. This is done through helping the patient adapt to disabilities or to modify their environment to make every day activities easier. Medications must be carefully prescribed because TBI patients are more susceptible to side effects and may react adversely to some pharmacological agents. It is also important for family members to provide support for the TBI patient through involvement in their rehabilitation program.
Here is an article that speaks to a personal experience one may have with TBI injured loved one: https://www.brainline.org/article/introduction-rehabilitation-healing-brain.
TBI recovery is slow, with a step-by-step course which progresses from coma, vegetative state, minimally conscious, conscious and then to a post-traumatic confusional state. The severity of a TBI cannot be determined in the first few days after injury it may take weeks – or even months – to determine how or if a person will recover over time. Many persons will eventually regain consciousness, but some will not.
Often improvement continues slowly over time. There is much variation of how people move through each stage and how long each stage lasts. Some people move quickly or skip stages while others may get stuck in a stage. Every injury is different and follows its own timeline. The longer a person remains in a coma or state of impaired consciousness, generally the more likely they will be severely disabled.
One of the first meaningful behaviors a severely brain-injured person shows is the ability to follow an object with their eyes (visual tracking), is a definite sign of moving toward consciousness. The earlier a person moves from a coma or vegetative state to a minimally conscious state, the better the long-term outcome. Even if the disorder of consciousness lasts for several months, improvement can still be shown. In this case specialized TBI rehabilitation may be beneficial.
Age plays a role in recovery outcome. Younger people are more likely to return to a more independent, productive life. Older persons don’t usually fair as well. However, an accurate diagnosis of level of consciousness is imperative because it helps predict the short and long term outcomes. This helps in making decisions concerning rehabilitation or whether to stop care altogether.
Throughout the recovery process TBI victims will undergo tests and procedures which will assist with diagnosis, prognosis, and treatment decisions.
Neurological monitoring/neuromonitoring: Intracranial pressure monitors track the amount of pressure in the brain to help manage brain swelling.
Neuroimaging studies: Computed tomography (CT scans) or MRI is used to identify bleeding and injured parts of the brain, and to determine if surgery is necessary.
Electroencephalogram (EEG): Measure electrical activity in the brain, show location/extent of injury and can be used to diagnose seizures.
Informal bedside neurological exam and formal behavior assessment scale: Used to determine a person’s level of impaired consciousness. Typically testing for basic reflexes, following a moving object with the eyes, performing basic commands and communication.
There are a few different systems that doctors use to diagnose the symptoms of TBI. The Glasgo Coma Scale measures motor response, verbal response and eye opening response. The Ranchos Los Amigos Scale measures levels of awareness, cognition, behavior and interaction with the environment. These tests are often used to determine whether the TBI is mild, moderate or severe.
A Mild Traumatic Brain Injury is the most common type of TBI which is often missed at the time of initial injury. 15% of persons with mild TBI have symptoms that last one or more years. It is classified as a loss of consciousness and/or confusion and disorientation is shorter than 30 minutes. MRI and CAT scans are often normal even though the individual may have cognitive problems such as headaches, difficulty thinking, memory problems, attention deficits, mood swings and frustration.
Other names for a mild TBI include:
Moderate Traumatic Brain Injury is defined as a brain injury resulting in a loss of consciousness from 20 minutes to 6 hours and a Glago Coma Scale of 9 to 12. The symptoms may be similar to a mild TBI but they do not go away or may even get worse.
Severe Traumatic Brain Injury describes a brain injury with a loss of consciousness of greater than 6 hours and a Glasgow Coma Scale of 3 to 8.
Traumatic Brain Injuries (TBIs) contribute to about 30% of all injury deaths; in fact 153 persons in the US die every day from injuries where TBI was a factor. Depending upon the severity of injury, survivors can face effects of TBI for a few days or the rest of their lives. TBI is an injury to the head that disrupts the normal function of the brain. Interestingly, not all head injuries result in TBI.
Males represent 78.8% and females 21.2% of all reported TBI accidents. The leading causes of TBI are: falls, being struck by an object, and intentional self-harm. 50-70% of all TBIs are the result of motor vehicle accidents.
Of all traumatic deaths, deaths from head injuries account for 34% of all traumatic deaths. Beginning at age 30, mortality risk after head injury begins to increase. Persons age 60 and older have the highest death rate after TBI, primarily because of falls.
Reference: “Facts About Traumatic Brain Injury” https://www.brainline.org/article/facts-about-traumatic-brain-injury.
Statistically speaking, TBI is an injury of young persons, since incidence rates peak between the ages of 16-25. It is estimated that there are more than 5 million people in the US with TBI. As a result of the young age of TBI onset and the sheer numbers of persons with TBI, the economic and personal cost is great.
Studies conducted show that 50% of persons with severe TBI do not return to the vocational roles they had before the injury. Additionally, 20% of those with what was categorized as mild-TBI were unemployed. It is estimated that $56 billion dollars annually are spent as a result of failure to return to work after TBI.
The challenge to return to work is great because the TBI person with more severe injury have emotional issues and problems with memory, sequencing and judgement. They may experience fatigue, be dependent on others for activities of daily living as well as transportation.
The following may aide in the return to work after TBI:
Unfortunately many people with TBI fail to return to work. It is hard to determine why that is as studies are not well-defined, do not use universal definitions for terms, and often do not define a specific path (or pathways) of success with regard to return to work.
Reference: “TBI Research Review: Return to Work After Traumatic Brain Injury.” https://www.brainline.org/article/tbi-research-review-return-work-after-traumatic-brain-injury
A skull fracture is defined as any break in the cranial bone. There are many types of skull fractures, but they all result from one major cause and that is an impact or blow to the head that’s strong enough to break a bone. The types include:
Skull fractures are not always easily seen. Following an impact or blow to the head some symptoms which may indicate fracture include: swelling and/or tenderness around the area of impact, facial bruising, bleeding from the nostrils or ears.
For mild fractures, pain medication may be the only necessary treatment, but neurosurgery may be required for more serious fractures.
Defined as an accumulation of blood within the brain or between the brain and skull. They form when a head injury causes blood to accumulate in the brain or between the brain and the skull.
Here are the different types of hematomas:
Diagnosing intracranial hematoma can be difficult because sometimes people with head injury can seem fine. And sometimes they are if the hematoma is small and produces no signs or symptoms. However, symptoms can appear or worsen days or even weeks after the injury, which is why following a head injury the person should be watched for neurological changes, to have intracranial pressure monitored, and undergo repeated head CT scans. Sometimes surgery is required to drain the blood.
For every 6 million occupants in Low Speed Rear Impact Collisions:
Information provided by the Spine Research Institute of San Diego
Tarsal Tunnel Syndrome is to the foot and ankle as what carpal tunnel syndrome is to the wrist and hand. Tarsal Tunnel Syndrome occurs when the posterior tibial nerve (running along the ankle and foot) becomes compressed or damaged, causing inflammation of the tarsal tunnel. This condition results from prolonged walking, running, standing or exercising, traumatic injury, or no apparent reason.
Often Tarsal Tunnel Syndrome responds well to conservative treatment. With the goal of treatment being to reduce inflammation and pain, rest, ice, compression and elevation are often recommended along with the use of over-the-counter non-steroidal anti-inflammatory medications (acetaminophen or ibuprofen). If this is not effective, injection therapy using corticosteroids and local anesthetics can be tried. Orthopedic devices and corrective shoes may assist in reducing foot pressure. Exercises learned in physical therapy can help reduce symptoms by stretching and strengthening connective tissues and mobilizing the tibial nerve and opening surrounding joint space reducing compression.
Surgery can be performed for severe or chronic cases that do not respond to any other forms of treatment. The procedure releases (or decompresses) the tarsal tunnel with a recovery period of 6 weeks up to several months. Surgery is successful in about 50%-90% of cases.
Fortunately, tarsal tunnel syndrome is a rare disorder.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.