We hope you enjoy this quick read!
Fall has arrived and so has our October Newsletter! Learn about Yoshi, a rescue dog, our featured team member is Ashley in Medical Records and this month's highlighted doctor is Wellington Hsu, MD, Orthopedic Surgeon. Click here to enjoy this short read with lots of pics!
This month's newsletter features Brad Grunert, PhD, a popular psychologist specializing in PTSD. Find out more about Diana, our Scheduling Assistant who loves helping our clients. We have a cute recuse dog from Amber in Records. To view the September Newsletter click here.
Contact us at Schedule@MedicalSystemsUSA.com to schedule a case with Dr. Grunert.
This month's newsletter features Christopher Long, MD, a popular Board Certified Otolaryngologist. Find out more about Keri, our Account Executive who loves helping our clients. We have more cute rescue pets for you to look at from Diana in Scheduling. Click here for your very own copy!
Laura serves as Medical Systems’ Operations Manager, joining the team 8 years ago. She brings a background in customer service, human resource management, and a strong belief in putting people first. At Medical Systems, she has helped foster a culture of inclusion, teamwork, and loyalty within the work. She understands that to get great results out of the team, each individual needs to be seen and appreciated. Laura consistently monitors our processes to ensure our clients have an excellent customer experience with every single case. For more background on Laura (and a pic) and our featured doctor, Sara Swanson, PhD, a Board Certified in Clinical Neuropsychology, American Board of Professional Psychology, click here for your very own copy of our July Newsletter.
Twenty-nine years ago, Deb opened MSI after years of managing another IME company. Her goal was to provide IME service users with a higher-level of customer service and more than one vendor choice. She accomplished this by offering larger doctor selections and the ability to quickly fulfill a hard to find doctor or specialty need. She also envisioned a company that provided higher quality, credible evaluation reports and actively sought out like minded doctors. Making MSI a great workplace is important to Deb as it allows us to acquire and retain the highest quality team members in the industry. For more information about Deb and a pic click here to view our July Newsletter which also includes a short bio on Shekar Kurpad, MD, a popular Neurosurgeon.
Medical Systems has been monitoring the news about the Coronavirus (COVID-19) closely. The safety and wellness of our clients, team members, their families and our community is of utmost importance to our company. As such, we are evaluating on a daily basis the best steps to take so we can continue to serve our clients to the best of our abilities while assuring the wellness of our team members.
This coming week, Medical Systems will remain open, but our employees have been encouraged to work from home. Our phone lines have been forwarded to a team member, however, since there is currently only one phone line available, we ask for your patience and understanding if your call should happen to forward to voicemail.
The quickest way to contact us may be to directly email the person you would like to reach or email Central Scheduling at Scheduler@MedicalSystemsUSA.com. If it is a matter you prefer to discuss over the phone, please feel free to send an email asking that we call you, so we can make sure the appropriate person contacts you right away!
Scheduled IMEs have not been canceled at this time. We have not been notified that doctors plan to cancel IMEs, but that may ultimately be a concern we are faced with. We also anticipate that claimants may have their own concerns about appearing for an IME. If you have an IME currently scheduled and would prefer to proceed with a record review instead to safe guard against costly no shows or late cancels, please let us know as soon as possible so we can cancel the appointment and ask the doctor to proceed with reviewing the records as a starting point, to keep your case on track. If you have upcoming IMEs without urgent deadlines that you would like to push back a few weeks, we’d be happy to assist with rescheduling those to a later date as well.
Business remains as usual at MSI. Our dedicated team is working to make sure our process remains seamless to our clients and doctors throughout the Coronavirus crisis. While many of our team members are working remotely, the level of service our clients and doctors receive from us hasn’t changed.
We will continue to update our business plan as more information becomes available. In the meantime, you can expect seamless service from Medical Systems as we navigate through these uncharted waters together.
Thank you for your continued support!
Your Medical Systems Team
Medical Systems is dedicated to the safety and well-being of our team and clients and want to assure you that we will continue to remain open for business and are ready to assist with whatever needs may arise. We know that we are all entering uncharted waters in light of growing Coronavirus concerns and are doing everything possible to be proactive so we are prepared to respond appropriately during a health crisis if one should arise locally with Coronavirus (COVID19). We share your concerns and have clear and deliberate actions we are taking now to ensure we are doing everything we can to protect our team, their families and our communities while still meeting your needs.
With taking proactive steps in mind, while we have not been notified that doctors plan to cancel IMEs, that may ultimately be a concern we are faced with. We also anticipate that claimants may have their own concerns about appearing for an IME. If you have an IME currently scheduled and would prefer to proceed with a record review instead to safe guard against costly no shows or late cancels, please let us know as soon as possible so we can cancel the appointment and ask the doctor to proceed with reviewing the records as a starting point, to keep your case on track. If you have upcoming IMEs without urgent deadlines that you would like to push back a few weeks, we’d be happy to assist with rescheduling those to a later date as well.
As an added precaution, we are prepared to work from home in the coming weeks should the need arise, to avoid service disruptions. In that event, the quickest way to receive a response may be to email the person you would like to reach or email central scheduling at Scheduler@MedicalSystemsUSA.com. We will have phone lines forwarded to a team member, but please note, due to having only one phone line, your call may forward to voicemail if the line is busy. If it is a matter you prefer to discuss over the phone, please feel free to send us an email asking that we call you, so we can have the appropriate person contact you right away!
We assure you that Medical Systems is prepared to work with you and shares your vigilance to address any and all issues associated with the outbreak of the Coronavirus. We’ll continue to monitor the Center for Disease Control and guidance from the World Health Organization in order to properly inform our responses moving forward.
As always, thank you for your trust and partnership!
The Medical Systems Team
Surveys show that two out of every three employers viewed prescription drug abuse as a bigger workplace problem than illegal drugs. One in five reported an injury or near-miss related to prescription drug use. A quarter indicated employees borrowed or sold prescription drugs at work and 40% indicate that they have an employee who misses work because of prescription drug abuse. The Centers for Disease Control report that 44 persons die each day as a result of prescription opioid abuse. Everyone is at risk for addiction, but here are some factors that increase the risk:
How can you tell if someone you know is abusing drugs? It may be difficult to notice first thing in the morning or upon return from break because the employee may appear to be relaxed and functioning well. But, as the day goes on and more time passes between breaks you may notice mood swings or major changes in energy level. They may nod off or even fall asleep at their workstation, in their car, or while using the bathroom. Withdrawal symptoms often appear to be like the flu with nausea, diarrhea, sweating, shaking, aches and a runny nose, and the employee may become irritable and anxious. This cycle may repeat itself several times throughout the day. Other signs might include the development of financial problems, social withdrawal and a once outgoing worker may become quiet and grim.
What can employers do to prevent drug abuse in the workplace? Conduct pre-employment and random drug screenings (but make sure opioid screening is included). Create a clearly written Drug-Free Workplace Policy which provides employee education, supervisor training, and an employee assistance program.
The problem of opioid abuse in the workplace is staggering. In Wisconsin 80% of worker’s compensation claims involve pain medications, including opioids. One good way to make sure addiction doesn’t occur in the first place is to closely monitor injured workers who are prescribed opioids by their treating doctors. For worker’s compensation cases, Involving nurse case managers after opioids are prescribed may be beneficial to assuring that drug use is monitored and treating physicians are being held accountable for the prescriptions they write.
The topic for the 2017 Advanced Topics in Worker’s Compensation Symposium will be Opioid Abuse in the Workplace. For more information or to register, click here.
OSHA has made some changes to how employers track work injuries that brings drug policies into question. The new final rule, passed in May of 2016 and goes into effect January 1, 2017, states that employees have a right to report work-related injuries and illnesses free from retaliation. That is to say an employer’s procedure for reporting work injuries must be reasonable and not deter or discourage employees from reporting. The concern is if an employer has a mandatory drug test following a work injury, an employee under the influence of drugs or alcohol when their work injury occurred may not report it.
Interestingly, OSHA feels that this rule will prevent injuries, illnesses and death. Their thinking is that all work injuries will be reported and workplace hazards will be better identified and eliminated. This makes good sense if drugs or alcohol didn’t play an active role in the actual occurrence of injury. Of course, the exception would be drug testing following an accident for the purpose of complying with state or federal law or regulation.
While the rule doesn’t specifically prohibit drug testing of employees, it does prohibit employers from using drug testing as a form of retaliation against employees who report injuries or illnesses. So, beginning in January of 2017, employers will need a compelling reason for post-accident drug testing. The view on this is it will be very difficult for employers to prove it was “reasonable” for them to do any kind of post-incident testing on a worker reporting injury without having another law to point to. OSHA says that employer policies should limit post-accident testing to situations where drug use is likely to have contributed to the incident. For example, it would not be appropriate to drug-test an employee reporting a repetitive strain injury or bee sting. Employers do not have to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee contributed to the injury. So the million dollar question becomes, what is the definition of “reasonable possibility?”
As you know, we at Medical Systems strive to practice the highest degree of honesty, truthfulness, reliability and fairness in every aspect of our work and our client relationships. It’s what you have come to expect from us and we continue to seek out and deliver our best work because our relationships matter to us. We continually practice quality measures through every aspect of our process; from hiring the best people, consistently focusing on ethics and excellence, and routinely practicing “quality control” reviews of work produced to ensure the best work is presented. This work ethic has, and will continue to be our commitment to our customers, our doctors and our staff.
You know we produce quality work, but you may not know we constantly put ourselves through a checks and balances system throughout our work process to deliver the best results. This is true from the very beginning of scheduling to the quality assurance of end result reports. It is important to all of us that you are receiving the very best work product we are capable of giving because our relationships with you, our doctors and our staff are held in highest regard.
When it comes to the quality assurance with doctor reports, we work meticulously to preserve the integrity of the reports and the doctor’s opinions because we know getting it right builds trust. Our detailed quality control system involves review of work product by the doctor and multiple Medical Systems personnel to assure the highest degree of quality is maintained to produce the results our customers need and rely on.
Providing you with honest, truthful, accurate IMEs is our top priority and our continued commitment. We pride our reputation for accurate, reliable work product and work hard each and every day to make sure we’re getting it right and earning your trust. Earning that trust is the driving force for all of us at Medical Systems to do our best. We will always put ourselves to the test in order to deliver results that are fair, truthful and reliable. Because at the end of the day, we know you count on us to get it right. Our commitment is to do everything we can to deliver quality results because we value you and all our relationships.
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.
We have written about the potential to use stem cells to regenerate articular cartilage in this space before. Now researchers at Washington University in St. Louis have grown articular cartilage using a person’s own stem cells in a moldable 3D synthetic scaffold. The development is exciting because the scaffold can be molded around the shape of an arthritic femoral head, thus potentially replacing a person’s damaged articular cartilage with healthy cartilage. If this potential treatment becomes a reality, it could offer an alternative to total hip replacement surgery. This would be particularly beneficial for patients under 50 years of age with advanced hip arthritis since most prostheses last less than 20 years and replacing a prosthetic hip carries with it greater complications than the original replacement. While the research is preliminary and has not yet been tested in animals (let alone humans), it is exciting and worth following, especially considering the fact that 322,000 hip replacements are performed annually in the United States alone.
What do a 2,200 year-old Egyptian mummy and many Americans have in common? Sedentary lifestyles. And the effects are not pretty in either case. Scholars who examined the mummy using CT scans determined that the man suffered from osteoporosis and tooth decay despite only being 30-40 years old when he died and having lived at a time when both ailments were rare. They believe his poor health is explained by the fact that he was a priest, which allowed him to be sedentary, avoid manual labor in the sun, and eat a carbohydrate-heavy diet.
A recent study published in the European Journal of Preventative Cardiology and reported on in numerous news outlets demonstrates how perilous the effect of a sedentary lifestyle is even today: researchers concluded that the effect of being unfit “on mortality was a strong predictor in our population, second only to smoking.” So deleterious were the effects of unfitness that researchers found men who were fit but suffering from high blood pressure and high cholesterol were less likely to die prematurely than men with normal blood pressure and normal cholesterol who were unfit.
The study involved 792 men who were followed for 45 years starting when they were 50 years old. Researchers measured the participants’ maximum oxygen uptake capacity, known as VO₂ max, to establish baseline fitness. VO₂ max is a useful proxy for fitness because it is partly influenced by genetics but increases with increasing aerobic fitness. The men were divided into three groups: low VO₂ max, mid VO₂ max, and high VO₂ max. The men were followed every 10 years, with analysis of cause of death among participants who passed away. Researchers concluded that the mid VO₂ max group was 21% less likely to die of premature causes than the low VO₂ max group and that the high VO₂ max was 42% less likely to die of premature causes than the low VO₂ max group. The results remained even when controlling for blood pressure and serum cholesterol. Lead author Dr. Per Ladenvall summarized the findings thus:
We found that low aerobic capacity was associated with increased rates of death. The association between exercise capacity and all-cause death was graded, with the strongest risk in the tertile with the lowest maximum aerobic capacity. The effect of aerobic capacity on risk of death was second only to smoking.
The findings should give us pause to consider how we approach health care and maintenance. Rather than relying on pharmaceutical or surgical interventions to control the effects of unfitness, perhaps we ought to insist on interventions that increase fitness. If being unfit causes premature death and disease, it would seem wise to treat the cause rather than the effects. As a corollary benefit, the treatment for being unfit, i.e. being physically active, is certainly cheaper than treating the effects, i.e. weight-loss surgery, prescription statins, diabetes medications, blood pressure medications, cardiac bypass surgery, joint replacement surgery, etc. No doubt increasing fitness in the general population would also have a positive effect on medico-legal claims, since some injuries would likely be prevented and recovery from those that occur would be better in a fit population than an unfit one.
Employment-related meniscus tears are among the more common worker’s compensation claims. The reasons are myriad but are influenced by the fact that most people develop degenerative meniscus tears as they age and the mechanism of injury for an acute tear merely involves twisting the knee, which can occur in even the lightest and most sedentary occupations because all workers who are not wheelchair-bound walk which means all workers are at risk of twisting their knee in a slip, trip, or fall at the workplace. Setting aside the possibility that such an event is idiopathic, if a worker seeks medical treatment for knee pain following an industrial event and a meniscus tear is discovered on an MRI the treating physician usually relates the tear to the event. Standard treatment in most such cases is usually surgical excision of the loose or torn meniscal tissue, more commonly known as a meniscectomy. The assumption driving the surgery is that the meniscus tear is causing the knee pain and resecting the tear will eliminate the pain. The problem with this scenario is that most meniscus tears are degenerative and there is no high quality research demonstrating that meniscectomy is an effective treatment for degenerative meniscus tears. In fact, when researchers recently studied the question they found that exercise was equally effective as meniscectomy to treat knee pain in the presence of a degenerative meniscus tear, according to results published in the British Medical Journal (“BMJ”).
In the worker’s compensation setting, the argument is often made that an industrial event extended a preexisting degenerative meniscus tear in order to justify the surgical intervention (and coverage of the procedure under a worker’s compensation insurance policy). The cost of meniscectomies to the worker’s compensation system is substantial. The medical expenses alone are significantly higher for surgery than for conservative care. In addition, meniscectomies often result in some permanent partial disability. For example, a meniscectomy in Wisconsin carries with it a 5% minimum PPD rating to the lower extremity at the level of the knee and under the AMA Guides a meniscectomy typically results in at least a 1% impairment rating. Surgery also typically necessitates a period of temporary total disability in non-sedentary workers. The findings of the BMJ study should give every employer and worker’s compensation insurer pause and an editorial advocating systemic prohibition of using arthroscopy to treat knee pain that appears in the same issue should spur change.
First, a few things about the study itself. The BMJ study is a level 1, properly designed randomized controlled trial. This is the highest category of medical studies and is considered to produce the best and most reliable evidence available. The BMJ study was conducted in Norway and was a randomized control trial with two parallel intervention groups of 70 patients per group. One group received exercise alone and the other group received partial meniscectomy alone. The participants were 35-60 year old persons of both sexes with a 2+ month history of unilateral knee pain without a major trauma but with a verified medial meniscus tear verified on MRI and no worse than grade 2 arthritic changes on x-ray. The study found that there was no difference in outcomes between the two groups at 3 months and 24 months post-intervention. The meniscectomy group reported better function and greater participation in sports and recreation at 12 months post-intervention, but the effect was gone by 24 months. The authors could “not exclude the possibility that the greater placebo effect from surgery on patient outcomes” may have “mask[ed] the ‘real’ difference in treatment between the groups,” which they postulated could explain the temporary effects observed in the meniscectomy group.
More striking even than the study findings is the accompanying editorial. The authors of the editorial call for a systemic level rule to prevent unnecessary knee arthroscopies from being performed to treat knee pain. As they note, in the last decade:
A series of rigorous trials, summarized in two recent reviews and meta-analyses, provide compelling evidence that arthroscopic knee surgery offers little benefit for most patients with knee pain. The latest nail into what should be a sealing coffin appears in a linked paper by Kise and colleagues (doi:10.1136/bmj.i3740): a rigorous comparison between exercise alone and arthroscopic partial meniscectomy alone (without any postoperative rehabilitation) in adults with degenerative meniscus tear. The authors found no between group difference in patient reported function at the two year follow-up…
The editorial authors note there has never been high quality research supporting meniscectomy in an older population with degenerative meniscus tears, but that the procedure was extended to this population based on unverified assumptions:
With no support aside from biological rationale, the indication crept from locked knees in young patients to all patients of all ages with knee pain and meniscus tears of any sort; tears which, on magnetic resonance imaging, have proved poorly associated with symptoms.
The conclusion they reach is both astonishing and harsh:
We are at the point where any careful scrutiny, by, for instance, public health administrators or officials of an insurance company, would conclude that the estimated two million arthroscopic partial meniscectomies undertaken globally each year at a cost of several billion US dollars is potentially nothing but medical waste. Because frontline practitioners and local commissioners have not responded appropriately to the evidence, it follows that system level measures that result in more appropriate use of scarce medical resources are necessary—and perhaps urgently required.
In short, the authors believe the evidence against arthroscopy to treat knee pain is so strong and the evidence for it is so weak that health systems as a whole should stop paying for these procedures. Such a rule would have a significant impact on worker’s compensation claims where meniscectomies are routinely performed to treat degenerative meniscus tears.
In many claims, the recorded statement is the first and only time a claims professional has to hear what the claimant has to say about the incident precipitating the claim without the presence of counsel. As such, it provides a unique opportunity to gather information and develop a record of sorts against which the facts of the claim can be judged. Unfortunately, recorded statements are often cursory, covering a checklist of questions without securing much in the way of detail about the incident and the claimant’s level of functioning pre- and post-incident. Part of the reason is the checklist of questions. They are often slavishly adhered to rather than used as a guide for areas that the claims professional wants the claimant to discuss. In addition, the checklist often becomes an unnecessary attentional anchor for the interviewer, causing him to interrupt the claimant and direct her answers toward staying on script. This is problematic because most of the academic literature and the most cutting edge law enforcement practices find that the best form of questioning is open-ended, allowing the person being interviewed to describe things in at most a lightly interrupted narrative form.
Wired Magazine recently published an article on the changes being implemented at the federal level and in some local police departments to the traditional mode of interrogation. The article holds insights for conducting recorded statements. Obviously the stakes are higher in capital criminal cases such as the one profiled in the article, but the lessons apply to all forms of interviewing witnesses. The author reports that a huge problem with modern interviewing is that “standard interrogation technique can be an ineffective tool for gathering lots of useful and accurate information” because many witnesses “clam up.” If the person being interviewed feels like they are being interrogated, they will offer as little information as possible. This is problematic because the purpose of a witness interview, whether of a claimant in a civil case, a suspect in a criminal case, or a third party witness in either case, is to gather as much information as possible. As the article puts it, the more a witness says, “the more that can be checked against the record.”
So how would you go about doing this? It is really quite simple. The gist “is this: If you want accurate information, be as non-accusatorial as possible.” In other words, build rapport with the witness and remember that the purpose of the interview should be “ geared … toward the pursuit of information.” Other interesting findings from current research is that asking witnesses to describe events in reverse chronological order is harder to do when they are lying. It is believed that the increased cognitive load of fabricating a story or facts makes descriptions in reverse chronological order particularly difficult. In addition, when witnesses lie or fabricate they are not able to provide the same level of detail as truth tellers. According to Steven Kleinman, who works with the High Value Detainee Interrogation Group, a joint effort between the FBI, CIA, and Pentagon, “No matter how good the cover story is, it’s not going to be as rich as a real-life story.”
The article explains how the new interrogation techniques were put to use to solve a crime in Los Angeles. In that case, a man, Gabriel Campos-Martinez, was suspected of killing his partner, but the evidence was too circumstantial to allow for charges to be brought against him. Just over two years after the crime was committed, two LA detectives again interviewed Campos-Martinez, this time using non-accusatory, rapport-building interview techniques. As a result, the suspect spent 5 hours with the detectives after telling them he only had a short time to speak with them. It seemed “almost like [the suspect] appreciated the chance to talk. As the hours went on, the conversation started to go in unpredictable directions.” He eventually revealed critical details that ultimately led to charges and his conviction for the murder. During the course of the interrogation, the suspect “started to reminisce” about walks he and his partner used to take in the area where the body was discovered, which was new information. In addition, the suspect described a plant that is used to make herbal tea but in greater quantities can be used to incapacitate, which proved crucial to his conviction.
It is possible for claims professionals to accomplish the same thing when taking recorded statements. Build rapport and let the witness talk. There will always be time for wrap-up questions to ensure that the basic identifying information makes it onto the statement. But instead of going through a checklist from the start, it might be better to ask open-ended questions that let the witness open up. Instead of asking a witness if they have hobbies, which is sort of an antiquated term anyway, ask her what does she like to do? Try having the witness start from a point away from the incident and ask them to describe what happened working backwards. Pay attention to the detail provided. The point is that people like to talk when they don’t feel like they are being interrogated. Build rapport. Don’t accuse. Get to the truth (or ferret out the lie).
We are inundated with messages about the opioid crisis in America. According to the CDC 28,000 people died due to opioid overdose in 2014, at least half of which occurred while using prescription painkillers. There is also evidence that heroin use is increasing as prescription opioids become harder to obtain. In fact, the CDC reports that prescription opioid painkiller use is strongest risk factor for heroin addiction. Those in the worker’s compensation field have seen firsthand the devastation addiction to prescription opioids can cause. In addition to the tragic human costs, cases involving long term prescription opioid painkiller use often have high economic costs that include significant lost time and failure to return to work in addition to the cost of the prescriptions themselves. And this doesn’t begin to touch on the cost that are imposed on the social safety net when long term opioid painkiller use turns into permanent disability. The bottom line is that an effective alternative to prescription opioid painkiller use in chronic pain cases would improve lives, improve society, and most importantly save lives.
The Journal of the American Medical Association (“JAMA”) recently published a report addressing whether mindfulness-based stress reduction might be that effective alternative. The report notes that the CDC recommends physicians “try nonpharmacologic and nonopioid therapies first,” before using opioid painkillers. Hence, it is becoming imperative for physicians to explore alternatives to simply prescribing painkillers. According to the report, “limited research indicates that mindfulness meditation for pain management therapy has promise.” For example, a recent study found that adding mindfulness meditation to a standard pain treatment program increased the percentage of patients who reported meaningful pain reduction from 26.6% to 44.9%. Obviously this is a significant finding. Unfortunately, there are no studies that compare mindfulness-based stress reduction directly with opioid use. The report stresses the importance of performing direct comparison, double-blinded, randomized studies to measure the effectiveness of mindfulness-based stress reduction compared to prescription opioid painkillers.
So why does mindfulness-based stress reduction appear to help at all? There are a number of reasons, but chief among them is the understanding that “pain is a complex phenomenon involving more than a direct nerve impulse from the affected tissue or limb to the somatic sensory cortex” and that “a person’s thoughts and emotions also play a role in pain perception.” This has helped physicians to focus on treatment modalities that “shift chronic pain treatment from a ‘biomedical disease model’ to a ‘patient-centered’ model focused on ‘patient engagement in daily self-management.’” The key is shift between improved quality of life versus elimination of pain, which is often impossible. This turns the patient’s attention away from pain and disability and toward behavioral and psychological interventions and techniques to improve her quality of life. In the words of a mindfulness meditation study participant, “I felt the pain was there, but I was able to let it go. I didn’t dwell on it so much.”
Whether mindfulness-based stress reduction will prove to be a substitute or an effective alternative to prescription opioid painkillers remains to be seen. Nevertheless, the growing awareness that chronic pain is different from and needs to be treated differently than acute pain is positive. The trend is moving toward interventions in chronic pain patients that focus on learning strategies to cope with their pain which in turn increases their ability to function at higher levels. And higher levels of functioning mean less catastrophizing, less disability, and ultimately, less death. A happy coincidence is that it also means a reduction in worker’s compensation costs.
Compound or compounded medications, especially those used to “treat” pain, have been on the rise in medico-legal claims for several years. Often compounded medications use ordinary and inexpensive drugs in a topical solution but cost an extraordinary amount when compared to their pill-form counterparts. A CBS News investigation examined the cost of compounded medications. One patient, Michael Picard, received a one month supply of compounded creams for pain, migraines, and scar reduction. The total cost for a 30 daily supply of the creams was $18,680. The scar gel alone cost over $12,500 and contained ordinary medications such as fluticasone proprionate (Cutivate, a corticosteroid), gabapentin (Neurontin), prilocaine HCL (a topical anesthetic), and levocetirizine dihydochloride (a third generation antihistamine). Only one medication, Freedom silomac anhydrous gel, is actually medication targeted to lessen the appearance of scars. Inclusion of anti-seizure medication (gapabentin), an antihistamine, a topical anesthetic, and a corticosteroid for scar reduction strains credulity. Charging over $12,500 for these medications in cream form simply shocks the conscience.
Before delving further into the problems of compounded medication in medico-legal claims, it helps to know a bit of background on what compounded medications are, why they were developed, and why they fall outside of the FDA’s regulatory purview. The terms “compound” or “compounded” medications refer to medications that pharmacies or pharmacists create which use nonstandard formulations of drugs tailored to individual patient needs. The original purpose for compounded medications was to provide medication in a form or formulation for patients that otherwise could not use standard formulary drugs. For example, a medication may need to be compounded for a patient who is allergic to an ingredient in the standard formulary drug or a medication might need to be produced in liquid form for a patient who cannot swallow the standard pill formulary. Compounded medications in these situations obviously make sense and serve an undoubtedly legitimate purpose. Unfortunately, compounded medications have come to be used in cases where their utility and necessity are questionable.
The FDA does not regulate compounded medications because the medications are supposed to be formulated on a patient-by-patient basis to be specifically tailored to individual needs. This means that compounded medications are not standardized. Hence, the FDA simply lacks the resources to evaluate compounded medications because there is no standard formulary to be evaluated. When the FDA evaluates a drug for approval, the testing process goes through a number of phases all of which are designed to determine that the drug is both safe and effective. This is a complicated, labor-intensive process that only works in the case of standard formularies. It would not be feasible for the FDA to test or require compounded medications to go through this process because the agency could never test all the compounded medications and the pharmacies making them would never be able to afford running the drugs through the approval process.
This lack of oversight has been exploited as an opportunity by some pharmacies and physicians as a way to increase profits by using compounded medications, for which they can charge more than if they prescribed standard formularies, without being subject to the same oversight for efficacy that would be the case if they were attempting to create a new standardized formulary drug. The medico-legal world, especially worker’s compensation, is especially vulnerable to the increasing costs of compounded medication because many worker’s compensation laws do not allow for preapproval of medical treatment, including prescription medication. In California, worker’s compensation billing for compounded medications increased from $10 million in 2006 to $145 million in 2013, an increase of 1,400%. In some cases, the temptation to reap exorbitant profits has been so great as to spawn criminal conspiracies. The prosecutor in a California case noted that “workers’ compensation insurers would be billed in ‘the $1,500 to $3,000 range’ for creams that had a resale value of about $70.” The markup prompted a sophisticated kick-back scheme in which $25 million was paid out to pharmacists, doctors, and chiropractors. The conspiracy was estimated to have resulted in $100 million overbilling to the California worker’s compensation system.
California is not alone. The U.S. Military’s health insurance plan, Tricare, paid $1.75 billion for compounded drugs during its 2015 fiscal year (subscription required). According to a Wall Street Journal, this was “18 times the amount paid three years earlier.” Certainly we are seeing increased questions about compounded medications here at Medical Systems as well. Part of the problem is the way bills are processed in many worker’s compensation cases. According to Phil Walls, chief clinical and compliance officer with myMatrixx, a pharmaceutical management company in Florida, compounded creams are common in worker’s compensation cases “because other systems – such as Medicare – have built in controls such as deductibles and preauthorizations for medications, and worker’s compensation doesn’t.” To combat the problem, Express Scripts stopped covering many of the creams because there is no evidence that they actually work. Dr. Steve Miller, Express Scripts chief medical officer told CBS News, “If you talk to almost any pain expert, they'll tell you these things are working strictly through a placebo response and not through a physiological response through the pain receptors.”
So what can be done about compounded medications and creams in worker’s compensation cases? Independent experts could be engaged early in the process to review the reasonableness and necessity of the medication early on. In addition, if the compounded creams do not result in any functional improvement, an independent evaluation may be useful. Employers and insurers that use pharmacy benefit services such as Express Scripts may have some leverage in compounded medication claims. The bottom line is that the earlier in the process that compounded medications can be dealt with, the better.
Any person who spends time in claims has run into files in which a patient with back pain has undergone “provocative discography.” The procedure involves injecting intervertebral discs suspected of causing the claimant’s pain with fluid along with “healthy control” discs. Purportedly, if the claimant feels an increase of pain in the suspected disc compared to the “control” discs, then the suspected disc is confirmed as being the cause of the claimant’s back pain. The problem is threefold. First, studies have determined that provocative discography cannot do what it is supposed to do. It cannot identify “discogenic pain.” Second, studies have definitively concluded that not only is provocative discography an ineffective diagnostic tool but also that it causes the degeneration of injected intervertebral discs to accelerate. Third, a recent study published in The Spine Journal (subscription required) found in a 10 year study that provocative discography performed on persons without back complaints actually led to back pain and surgical intervention. Healthnewsreviews.org has an outstanding piece about the study and the lack of coverage in the health news media. This is important because even today, with knowledge that provocative discography is an ineffective diagnostic tool, 70,000 procedures are performed annually in the United States. Anyone involved in medico-legal claims should read the Healthnewsreviews.org piece. Here are some of the highlights:
Experts say that provocative discography has no proven benefit for identifying symptomatic discs and has previously been shown on magnetic resonance imaging to be associated with faster degeneration of injected discs. The new study followed 75 patients who received the injections and compared them to 75 matched controls. The point of the new study was to see whether the disc degeneration seen on MRI would translate into clinically important back pain symptoms.
There was no significant history of back pain in either group when the study began. But the new 10-year data showed that there were more back pain surgeries (16 vs. 4); more frequent sciatica and back pain syndromes, and greater work loss and doctor visits for low back pain in the punctured discs compared to controls.
Such is the import of this study that an orthopedic surgeon interviewed as part of the article flat out stated:
“But readers should be aware that a trial of this sort with 10 years of follow up is very compelling evidence of discography’s potential problems,” Rickert says. “Such long term studies are rare,” he adds, and this one should tell readers: “Do not go undergo provocative discography.”
Perhaps the best summary was provided by another doctor consulted for the article. Steven Atlas, MD, MPH, told Healthnewsreviews.org:
So, not surprisingly, results are not very reliable. We also know that patients who have fusion based upon findings of provocative discography don’t do any better than individuals who have surgery but don’t undergo this test. We also know that patients can report more pain after the procedure, including pain they didn’t have before the procedure. And now we know that there are long-term risks associated with discography.
The article is worth reading in its entirety. One hopes that discography and its costs, both direct and indirect, will soon disappear from the health care landscape. In the meantime, claims professionals should expect their IME doctors on back pain cases to be familiar with the study and use it in their reports when treating physicians recommend or actually perform provocative discography and use it to diagnose the cause of back pain and the need for surgery.
Medical Systems recently held a lunch and learn at Lombardi’s Steakhouse in Appleton, Wisconsin at which hand surgery expert Jan Bax, M.D. discussed common hand injuries. During his presentation, Dr. Bax alerted attendees to a recent white paper from the American Academy of Orthopaedic Surgeons (“AAOS”) that reports a moderate level of medical evidence links computer use to the development of carpal tunnel syndrome (see p. 222). As Dr. Bax pointed out, the paper was published in the last couple of months so its ultimate effect in the worker’s compensation arena is undetermined. Nevertheless, Dr. Bax expressed concern that the paper will lead to renewed carpal tunnel syndrome claims based on repetitive computer use (keyboarding and mouse use). He noted this is especially troublesome because the hand surgery section of the AAOS considers it a settled issue that computer use does not cause carpal tunnel syndrome.
The white paper assigns levels of evidence supporting the various factors that are sometimes alleged to cause carpal tunnel syndrome. The highest level of evidence is “strong,” which requires consistent evidence from two or more high quality studies. The second highest level of evidence is “moderate,” which requires consistent evidence from two or more moderate quality studies or evidence from a single high quality study. This is the level of evidence the AAOS finds for the position that computer use causes carpal tunnel syndrome. The second lowest level of evidence is “limited,” which requires consistent evidence from two or more low quality studies, one moderate study, or insufficient/inconsistent evidence recommending for or against the diagnosis. The lowest level of evidence is “consensus,” which requires that there is no reliable evidence but rather is based on unsupported clinical opinion.
As Dr. Bax noted, finding that moderate evidence supports the link between computer use and carpal tunnel syndrome is troubling because it is actually is a high level of evidence and may sway triers of fact despite the nearly uniform position of actual hand surgery specialists that there is no such causal link. This is especially true given the findings in some of the research cited. Coggon, et al., specifically stated that there was an “absence of association with the use of computer keyboards” and noted this “is also consistent with the findings overally from other research.” The researchers concluded that “obesity and diabetes, and the physical stresses to tissues from the use of hand-held vibratory tools and repeated forceful movements of the wrist and hand, all cause impaired function of the median nerve” but that computer keyboard probably only focuses attention on symptoms without being injurious to the tissues of the wrist. Coggon, et al. seem to support a more nuanced relationship between computer keyboard use and carpal tunnel syndrome than is portrayed in the AAOS white paper. Likewise, Eleftheriou, et al. studied the link between computer keyboard use and carpal tunnel syndrome but related the following disclaimer:
One limitation is related to [the study’s] cross-sectional design which does not allow us to conclude if the association between cumulative exposure to key-board use is of causative nature. The study included workers present when the study was formed, which implies a possible selection bias as is the case in all cross-sectional studies, especially if the study population was affected by high turn-over. It’s a limitation of our study that we don’t have data on actual turn-over of the staff…Further, we didn’t control for possible confounding factors like anthropometric characteristics of the wrist…
Eleftheriou, et al. reported only “a possible association between cumulative exposure to keyboard strokes and the development of [carpal tunnel syndrome]…” They specifically noted that additional studies need to be done to verify their results and to address causality.
The AAOS white paper is a troubling development in carpal tunnel syndrome worker’s compensation cases since it potentially throws into question the settled opinion among hand surgery specialists that keyboard use does not cause carpal tunnel syndrome. As Dr. Bax noted at the recent Medical Systems lunch and learn, it is too early to tell exactly what the effects of the paper will be, though they are not likely to be positive. In the event that the AAOS white paper is cited to support work-related carpal tunnel syndrome cases among keyboard users, it will be critical to choose experts who understand and can explain the limitations of the evidence on which the paper relies. Without an expert who will vigorously question and thoroughly refute the evidence, the AAOS white paper is likely to carry more weight in keyboard-related carpal tunnel syndrome claims than it otherwise should.
Osteoarthritis of the knee is the bane of many worker’s compensation claims. Frequently, an injured worker demonstrates evidence of arthritis but claims an acute event aggravated the condition to the point that it was symptomatic. What can be frustrating for the employer or insurance carrier is the fact that in most cases the arthritis itself was not caused by the employment. Thus, the employer or insurance carrier laments the fact that they are being held responsible for 100% of a condition that would have almost certainly become symptomatic regardless of the acute work-related event. Unfortunately, to date there has been no reliable method to measure whether this is accurate or, if so, when the arthritis would have become symptomatic. However, a recent study suggest we may have technology to do just that.
A group of Finnish and Swedish researchers released “A Novel Method to Simulate the Progression of Collagen Degeneration of Cartilage in the Knee” in which they developed a “degeneration algorithm … combined with computational modeling” that accurately predicted the rate at which knee cartilage would deteriorate based on the weight of patients. The study was conducted on 429 patients under 65 years of age who initially had no radiographic evidence of osteoarthritis (cartilage thinning) in their knees. The subjects were divided into a study group, consisting of patients with a BMI of 35 or higher, considered to be at high risk of developing weight-related osteoarthritis of the knee, and a control group, consisting of patients with a BMI lower than 25, considered to be of low risk for developing weight-related osteoarthritis of the knee. As noted, neither group demonstrated radiographic evidence of osteoarthritis at the beginning of the study nor had any member of either group sustained a knee injury that either prevented them from walking for more than 2 days or required surgical intervention. The 2 groups were then followed for 4 years.
The researchers developed an algorithm to predict the rate at which cartilage loss associated with osteoarthritis would occur based on BMI and other physiological characteristics. In their words, “[t]he algorithm was based on cartilage overloading so that cumulatively accumulated excessive stresses (above failure limit) caused alterations in tissue properties with time.” The researchers then developed a computational program to simulate the expected cartilage loss over four years based on the baseline status of knee cartilage from MRI readings. The accuracy of the algorithm and computational modeling was measured against x-rays taken at the beginning of the study and after 4 years. The results demonstrated the ability of the algorithm and modeling to accurately predict which subjects would experience loss of cartilage associate with osteoarthritis and how much loss each subject would experience. According the study, “[t]he simulated onset and development of osteoarthritis agreed with experimental baseline and 4-year follow-up data.” This lead researchers to conclude that, “[t]he present work provides…an important and groundbreaking step toward developing a rapid and subject-specific diagnostic tool for the simulations of the onset and development of knee osteoarthritis and cartilage degeneration related to excessive chronic overloading due to overweight [sic].”
The implications of this individualized ability to predict the onset of knee arthritis could be significant for worker’s compensation. If the method proves to be accurate and reliable in subsequent studies, it could be used in the same manner as occupational hearing tests to measure a baseline condition and determine if the subsequent condition is related to the normal progression of the disease versus an occupational aggravation. Likewise, the method would offer the potential to calculate, based on an employee’s physical condition on the date of injury, the likelihood that the alleged employment-related event aggravated the underlying arthritis and if so how much the employment-related event is responsible for. This would finally allow for an accurate accounting of what portion of a preexisting degenerative condition is related to an industrial event and what portion is due to the natural progression of the condition. While this would admittedly be at best a distant possibility, it is nevertheless a possibility. Hence, the study and its future applications are worth following.
On February 29, 2016 Governor Walker signed the agreed upon worker’s compensation bill. Of particular importance to the IME process is a provision (Wis. Stats. §102.175(3)) that requires all healthcare providers, whether treating providers or independent evaluators, to apportion permanency in accidental injury cases between permanent disability that the injury caused and permanent disability caused by other factors, whether pre- or post-injury. Wis. Stats. §102.175(3)(b) states:
A physician, podiatrist, surgeon, psychologist, or chiropractor who prepares a certified report under s. 102.17(1)(d). relating to a claim for compensation for an accidental injury causing permanent disability that was sustained in the course of employment with the employer against who compensation is claimed SHALL address in the report the issue of causation of the disability and SHALL include in the report an opinion as to the percentage of disability that was caused by other factors, including occupational exposure with the same employer, whether occurring before or after the time of injury. (Emphasis added)
The statute does not apply to occupational injuries and specifically holds the employer responsible for “previous permanent disability… attributable to occupational exposure with the same employer.” Wis. Stats. §102.175(3)(a). The statute does, however, require injured workers, at the request of the employer, to “disclose all previous findings of disability or other impairments that are relevant to that injury.” Wis. Stats. §102.175(3)(c). This should help make the implementation of the provision more effective.
The new statutory provision requires all independent medical examiners to apportion permanent disability (when the expert concludes the injury resulted in permanent disability) in accidental injury claims. The effective date of the statute is March 2, 2016. Medical Systems is working with our experts to ensure that their opinions comply with the new statutory provision and apportion permanency when applicable starting March 2, 2016.
Pain. We all experience it, but what is pain? Certainly pain has a nociceptive component, meaning when we experience injury our nerves send a message to our brain that results in the state of awareness that may be best characterized by the word “ouch.” This is the type of pain that seems best controlled with traditional analgesics such as prescription opioids. Pain may also be neuropathic, meaning it is not the resulted of an injured tissue sending a classic pain signal to the brain but rather is the result of a damaged nerve that is sending abnormal signals to the brain due to the injured state of the nerve itself. This is why persons with neuropathic pain experience paresthesia and hyperesthesia rather than the typical stabbing or aching pain that would associated with physical injury to a muscle, bone, or joint. Chronic pain also differs from neuropathic and nociceptive pain in that it appears to be a learned cognitive response to a patho-anatomic abnormality that may or may not be causing actual nociceptive pain. Further complicating the range of pain that we experience is psychological pain; that is the somatization of psychological distress.
A new Psychological Science study (subscription required) throws a new wrench into the pain picture: persons in financial distress who are also in pain feel higher levels of pain than those are not experiencing economic distress. According to the study,
The link between economic insecurity and physical pain emerged when people experienced the insecurity personally (unemployment), when they were in an insecure context (they were informed that their state had a relatively high level of unemployment), and when they contemplated past and future economic insecurity.
Interestingly, the authors concluded that “the psychological experience of lacking control helped generate the causal link from economic insecurity to physical pain.” This offers some hope that addressing the feeling of lacking control could help to lower the perceived experience of pain.
In the claims context, the experience of pain is a major cost-driver. Persons who experience pain will continue to seek treatment for injuries that have otherwise resolved or stabilized. In addition, persons who experience pain often miss time from work and have other disability-related costs. What complicates the apparent relationship of economic insecurity and pain in the claims context is that persons with claims often experience economic insecurity related to the claimed injuries. For example, an employee suffers a work-related knee injury and has to miss time from work. Even a conceded claim can cause financial distress as compensation benefits are paid out at 2/3 of average weekly wage and the injury may force the employee to miss overtime they expected to work. Matters get worse when a claimant is cut off from benefits but claims ongoing injury and an inability to return to work. In many such cases, claimants lack the savings or other sources of income replacement to weather the economic storm.
The problem from a claims perspective is that the economic situation of the claimant is outside the purview of the claim. For example, if a claimant alleges a work-related low back injury and the insurer questions whether the condition is in fact related to the employment, the insurer will have the claimant undergo an independent medical examination. If the independent medical expert concludes that the claimant’s condition is not related to her employment, the insurer will stop paying benefits to the claimant. At the same time, if the claimant is under work restrictions from her treating physician, she will not be able to return to work. As a result, she will lose her temporary total disability benefits while simultaneously having no recourse to income from her employment. If the Psychological Science study tells us anything, it is that losing temporary total disability benefits without other sources of income or income replacement will likely make the claimant’s physical condition worse. This can be a particularly fraught situation if the claimant is suffering from a degenerative condition that would wax and wane in severity even without economic distress. The study suggests that such a condition could be appreciated as being significantly worse in a claimant who is in economic distress. From a cost perspective, this is a problem because it will almost certainly lead the treating physician to conclude that conservative therapy failed to treat the condition. Concluding that conservative therapy failed often leads to a referral to a surgeon or the recommendation of surgery. All of a sudden, a condition that should be manageable with periodic noninvasive treatment and over-the-counter analgesics, becomes an intractable problem for which surgery is seen as the only option. And surgery is expensive.
If a claim reaches this point, it may be fairly stated that the reason conservative therapy failed and that surgery is being proposes is not due to the condition itself, but rather to the claimant’s financial distress which renders a normally tolerable condition into an intolerable one. The claimant’s financial distress is obviously related to the claim, but is not something over which the claims professional has control. The claims professional is not obliged to follow the recommendations of the IME doctor, but it would be highly unusual for a claims professional to continue to award benefits when she does not have to. The claims professional is not responsible for the claimant beyond the four corners of the claim. Except the decisions of the claims professional within the claim can have, as the study shows, consequences outside the four corners of the claim that can seep back into the claim. As such, it seems prudent for claims handlers to be aware, even if they have little control or choice, that the decision to deny benefits to a claimant can have the perverse effect of making the claim worse (from a cost perspective) than it would otherwise have been. At least then it will not be a surprise when the person with ordinary degenerative disc disease ends up with a fusion, failed back syndrome, and a claim for permanent total disability benefits.
There are certain medical procedures that are so common in worker’s compensation that we don’t give them a second thought. Partial meniscectomy is among them. Most people assume that an employee with a torn meniscus who is experiencing catching and locking in their knee should have a partial meniscectomy to treat the symptoms, regardless of whether we think the meniscus tear is work-related. Turns out that our assumption might be wrong.
The Annals of Internal Medicine published results from a study (subscription required) which found that arthroscopic partial meniscectomy is ineffective for relieving catching and locking symptoms in the knee. The study was conducted on a group of patients with medial knee pain who had confirmed meniscus tears without evidence of arthritis. The participants in the study were randomly assigned to either the treatment group, which received the partial meniscectomy, or a control group, who received a sham arthroscopy. Participants were not aware of which group they were in to control possible bias.
The results of the study were surprising because in every reported measure, the patients undergoing the sham procedure reported fewer mechanical symptoms post-surgery. The most impressive results were among those patients reporting that they were symptom free following the procedure. Among this group, only 28% of the participants undergoing the actual partial meniscectomy reported being symptom-free while 41% of the participants who underwent the sham procedure reported being symptom-free. The study’s authors were quick to note, however, that trauma-related meniscus tears causing mechanical symptoms in persons under 35 do respond well to partial meniscectomy. On the other hand, they pointed out that “in a degenerative knee, seemingly similar symptoms may not even be caused by the meniscal tear - more likely they are a reflection of the overall deterioration of the knee and prone to increase as arthritis develops further.”
In the worker’s compensation context, the dispute is typically whether a meniscus tear is traumatic or degenerative. Regardless, the ineffectiveness and the possibility that the symptoms might be “a reflection of the overall deterioration of the knee and prone to increase as arthritis develops further” is a good reason to tread cautiously when an employee is diagnosed with a meniscus tear. If the employee’s meniscus tear is degenerative in nature, there is a strong likelihood that a partial meniscectomy will have a temporary benefit at best and in the long run will not ameliorate or slow the progression of degenerative arthritis. Hence, a meniscus tear in an older worker that is deemed to be work-related is highly likely to become an arthritic knee that will need to be replaced. And despite the fact that it is bad medicine and bad science, the arthritis is likely to be blamed on the meniscus tear even though the arthritis was probably the problem in the first place. Hence, it behooves every claims professional to take a serious look at meniscus claims and to defend them vigorously now that we know the proposed surgery may very well not work and may very well lead to additional (more costly) claims.
A Journal of the Royal Society of Medicine article analyzed paintings of Michelangelo and concluded that the famous artist suffered from degenerative arthritis. In related news, Michelangelo’s estate filed a claim against the Vatican in Wisconsin for TTD and PPD benefits, alleging the arthritis was due to repetitive trauma from the many painting and sculpture commissions the artist received from the Roman Catholic Church during his life. Regarding the reason for filing in Wisconsin, lawyers for the estate said “We’re pretty sure the Wisconsin statute of limitations on this one hasn’t expired yet.” As to whether Wisconsin is an appropriate venue, the lawyers noted “We’ll figure out a way to keep it here. The Milwaukee Art Museum holds a Michelangelo sketch, Studies of the Medici Madonna. We think that will be enough.”
Pain is a problem that is frequently treated with painkillers. As we are all aware, this has led to a significant problem with addiction to and overdose from opioid painkillers in this country. The reasons for the crisis in prescription opioid addiction and overdose are myriad and have been discussed extensively here and elsewhere. This post is not about the problem, but instead about an opportunity to address it.
The NY Times recently posted an article about the potential to harness the placebo effect to help treat pain which offers an intriguing possibility in the struggle to treat pain without causing addiction and overdose. As Jo Marchant reports, “even when we take a real painkiller, a big chunk of the effect is delivered not by any direct chemical action, but by our expectation that that drug will work. Studies show that widely used painkillers like morphine, buprenorphine and tramadol are markedly less effective if we don’t know we’re taking them.” In fact, placebo effects are so powerful “that drug manufacturers are finding it hard to beat them.” Hence, Marchant suggests that more research should be done to figure out if “prescription” placebos could be used to treat pain.
Marchant recognizes the difficulty with placebos: namely that the effect is generally observed in clinical trials where individuals don’t know if they are getting the active drug or a placebo. In controlled studies, patients expect they will receive a drug that will improve their condition even though they know they might in fact get a placebo. This, as Marchant notes, appears to be a key component of the placebo effect: “[t]he greater our belief that a treatment will work, the better we’ll respond.” There have, however, been studies in which patients knowingly taking placebos still reported statistically significant improvement in their reported level of pain. This leads Marchant to ask the eminently reasonable question, “[w]ith placebo responses in pain so high – and the risks of drugs so severe – why not prescribe a course of ‘honest’ placebos for those who wish to try it, before proceeding, if necessary, to an active drug?”
Pain is ubiquitous in our society and, when chronic, often proves disabling. We know from experience that prescribing opioid painkillers is not the answer to the problem of pain. Perhaps it is time for those of us in the medico-legal world to use whatever muscle we have and advocate for change. A good place to start would be the use of “honest” placebos to treat pain.
Worker’s compensation claims involving chronic pain are typically difficult and expensive to administer. We know that simply putting a person on prescription painkillers doesn’t work, yet that is often the treatment claimants end up on. In these cases, the end result is usually an employee who doesn’t return to work and ends up filing a long term disability or SSDI claim. Either way, the result is not good for the employee, the employer, or the worker’s compensation insurance carrier.
Fortunately, the medical research community is tackling the issue head-on. As a result, the medical community is making some exciting strides in understanding how chronic pain works and, accordingly, what treatments are likely to be the most effective. Researchers at Northwestern University Feinberg School of Medicine reported on one such stride. In an animal study, researchers discovered that chronic pain looks a lot like addiction in the brain. As one author put it, “chronic pain actually rewires the part of the brain controlling whether you feel happy or sad.” In other words, "The study shows you can think of chronic pain as the brain getting addicted to pain," said another author. "The brain circuit that has to do with addiction has gotten involved in the pain process itself."
With this knowledge, the study combined a Parkinson’s drug and an NSAID that target the brain area chronic pain affects. Remarkably, the combined drugs “completely eliminate chronic pain behavior when administered to rodents with chronic pain.” Yes, you read that right: the drugs completely eliminate chronic pain in rodents. Unfortunately, the study involved rodents. Still, the authors are optimist that the effect will translate to humans and have already begun designing human trials.
This development bears following. As those of us in the worker’s compensation world know, chronic pain is debilitating and expensive. Also, it often devolves into chronic use of opioid pain medication that has deleterious psycho-social effects and almost guarantees injured workers will develop a disability mindset. Any new treatment that can stop the downward spiral often associated with chronic pain claims would be a remarkable development.
Most of us have New Year’s resolutions and most of us follow them for a couple of weeks or even a month. Many of the abandoned resolutions focus on improving our health. Usually the reason we abandon the resolutions is that they require us to change our daily routines and habits too much. This is unfortunate because if we, as a nation, improved our health even modestly the results would be enormous. For example, the CDC reports that “the estimated annual medical cost of obesity in the U.S. was $147 billion in 2008 U.S. dollars.” Reducing the obesity rate by 25% would produce a $37 billion savings. This is not small change.
Employers would benefit greatly if Americans became healthier. After all, employers provide the lion’s share of health insurance benefits and bear the brunt of our unhealthy habits in the form of workplace absence, reduced productivity, and disability-related costs. But what can employers do if most of us can’t keep the promises we make to ourselves to become healthier?
According to a new study, employers probably can do more than they think. Medical News Today reported on a recent study presented at the American Heart Association Scientific Sessions 2015 which found that just three minutes of light exercise every 30 minutes has significant blood pressure-lowering effects in overweight and obese persons with Type 2 diabetes. Bronwyn Kingwell, PhD, one of the study’s coauthors noted that "It appears you don't have to do very much. We saw some marked blood pressure reductions over trial days when people did the equivalent of walking to the water cooler or some simple body-weight movements on the spot." This is where employers can make a difference: develop policies that encourage employees to get up and move. As Kingwell notes, even movements done at a person’s workstation have blood-pressure-lowering effects. And the effects of lowering blood pressure are profound both in direct medical costs and indirect employment costs. So dump the resolutions and get your employees to move. Even 3 minutes helps.
Geography determines many things. It should not, however, determine how likely you are to survive cardiac arrest. Unfortunately, geography does just that. According to a New York Times article, persons suffering out-of-hospital cardiac arrest treated by emergency medical service (“EMS”) providers in Seattle have a 19.9% survival rate while persons in Detroit have only a 3% survival rate. It appears that the wide variation in survival rates is due primarily to the quality of the training EMS providers receive and to “spreading awareness that cardiac arrest is a treatable condition, so citizens are quick to perform bystander CPR.”
Survival rates vary widely even for hospitalized patients treated for cardiac arrest. For example, CPR should be attempted for a minimum of 45 minutes but is usually only performed for 15-20 minutes in clinical settings. In addition, clinicians often fail to use more powerful interventions available to them such as extra corporeal membrane oxygenation, in which a patient’s blood is artificially oxygenated. According to one expert interviewed for the article, extra corporeal membrane oxygenation is more common in Japan and South Korea where “they routinely bring people back to life who would remain dead here.” Unfortunately, even in hospitals “it’s a lottery of what you will get” that largely “depend[s] on which doctor happens to receive you, since none of these treatments are regulated.”
It is tragic that 17 out of every hundred people who could survive out-of-hospital cardiac arrest will not simply because they live in Detroit. While cardiac arrest is not a medico-legal issue of the sort we normally address here, it is a human issue. And at this time of year, many of us ask ourselves what we can do to help our fellow human beings. Taking a CPR course that teaches up-to-date techniques is one place to start. Another place is to spread awareness that out-of-hospital cardiac arrest is treatable with immediate bystander CPR. As the article notes, “if Seattle’s innovations could be implemented nationwide for out-of-hospital cardiac arrests…as many as 30,000 lives annually could be saved.” That is a gift worth giving.
Mild traumatic brain injury claims may well be the most vexing for claims professionals. They usually involve comparatively minor incidents for which little objective testing exists and they are frequently entangled with psychological co-morbidities which further complicate matters. In addition, the chief method to diagnose and assess mild traumatic brain injury involves subjective reports and evaluations of cognitive symptoms and functioning, making these claims particularly susceptible to exaggeration, malingering, and fraud.
The mild traumatic brain injury paradox is that those who are often at greatest risk of reinjury are often the most eager to return to the risky activity while those with the lowest risk of reinjury are most concerned about returning even to the activities of everyday life. Hence, the competitive athlete will mask symptoms in an effort to return to the playing field as quickly as possible while the truck driver who pulled an overhead trailer door onto his head may complain of cognitive symptoms for weeks or even months to avoid returning to work. The subjective nature of diagnosis and assessment makes it difficult for medical professionals to know when the athlete is not ready to return to competitive play and simultaneously when the truck driver is ready to return to work.
Unfortunately, recent research muddies the water and makes the development of an objective test for traumatic brain injury all the more important. In a study presented to the American Radiological Society, researchers from the Medical College of Wisconsin found that persons suffering from mild traumatic brain injuries demonstrated neuropathology on MRI scans days after their cognitive functioning returned to baseline. This is a potential problem because it is generally accepted that injured neurons subjected to a second trauma before they are healed are at risk of significant and permanent injury; further, the traditional mechanism for assessing when a mild traumatic brain injury has resolved is a subjective assessment that the injured person’s cognitive functioning has returned to baseline.
And as noted above, those who are most eager to return to the activity that caused the mild traumatic brain injury are often the most susceptible to suffering another head injury. If they return before they are fully healed from the first injury, the second injury could have devastating effects. This further exemplifies why it is so critical to develop a reliable and rapid objective test to assess the presence of mild traumatic brain injury. As an added bonus, a reliable and rapid objective test would have the felicitous effect of being able to catch those trying to use a mild traumatic brain injury to stay out of work or to collect a financial windfall in a personal injury action.
Sometimes the old adage rings true and you do get what you pay for. Other times, it does not. According to the American College of Physicians, the adage does not ring true for prescription medications. Medical News Today reports on a recent meta-analysis from the American College of Physicians Clinical Guidelines Committee which concluded that “the majority of peer-reviewed studies found that generic equivalents to brand-name drugs produced similar clinical outcomes.” In addition, the report’s authors found that patients adhered to their prescriptions better when receiving generics because of their lower costs, noting that “prescriptions for branded medications are almost twice as likely to go uncollected after being filled than generic medications.” Further, the cost of choosing branded medications over generics is significant. Substituting generic prescription drugs for brand name ones “combined with therapeutic interchange” would save $1.4 billion just among Medicare beneficiaries with diabetes.
Health insurers and employers bear a huge amount of the unnecessary direct costs of prescribing brand name drugs instead of generic equivalents. They also bear many of the indirect costs when an insured/employee doesn’t fill a brand name prescription due to lost time and increased medical intervention costs when the condition for with the brand name prescription was written is not controlled. Thus, health insurers and employers should staunchly advocate that physicians receiving reimbursement from group health or worker’s compensation plans prescribe the lowest cost drug or therapeutic equivalence rather than a brand name drug that adds no therapeutic value. They should also aggressively educate employees so they understand that with many prescription drugs you do not, in fact, get what you pay for.
Researchers have developed a blood test that holds promise to detect traumatic brain injury with greater sensitivity than even CT scans, according to this report from Medical News Today. Equally significant, the blood test appears also to be able to measure the severity of the traumatic brain injury accurately. The test measures glial fibrillary acidic protein (GFAP), which is released when the brain suffers an injury. Although the test was performed on children, researchers note that it is likely to be equally valid for adults.
A blood test with sensitivity on par or better than a CT scan would be an improvement in diagnosis for at least a couple reasons. First, CT scans use x-ray radiation, and any ability to reduce the amount of radiation to which we are exposed is a good thing, especially in children. Second, portable detection devices similar to blood sugar monitors persons with diabetes use could be developed for the brain injury-measuring blood test. A portable detection device would be a boon to monitoring traumatic brain injury in sports like football or hockey. It would also be enormously useful to measure brain injury in the workplace. Third, a blood test would provide an objective means to diagnose traumatic brain injury with considerably greater sensitivity and ease than current concussion/traumatic brain injury protocols which rely chiefly on subjective interpretation of spoken or computer-based cognitive tests.
We recently wrote about how stunningly ineffective opioid pain medications are at treating chronic pain in women. A new study provides a perfect example of why prescribing opioids to treat chronic pain in women is a bad idea. Researchers at McMaster University in Ontario, Canada found that 52% of women treated at a methadone maintenance clinic for opioid dependency developed their addiction while taking prescription painkillers, according to a report from Medical News Today. The study’s authors concluded that women are more susceptible to become addicted when prescribed opioid pain medication, but they are not sure why. Regardless of the reason, women’s apparent increased susceptibility should further caution prescription opioid use to manage long-term or chronic pain in women.
Arthritis is the bane of many lives and many claims. How many claims hinge on whether symptomatic arthritis is wholly preexisting or was aggravated by a work injury or a non-work-related accident? But what if there was a way to combat arthritis from developing in the first place? Perhaps there is. As Medical News Today reports, a team of engineers from the University of Delaware recently presented research suggesting that staying physically active appears to prevent arthritis from developing. Specifically, researchers found that hydrodynamic pressurization caused by normal joint movement causes synovial fluid back into cartilage.
To understand why this is significant, it helps to understand how joints are made and how arthritis develops. Synovial fluid is the viscous substance that lubricates the hyaline cartilage lining the surface of most joints. This enables the joint to move smoothly and without pain. Synovial fluid also constitutes 80% of hyaline cartilage. Arthritis develops when the hyaline cartilage deflates. The cartilage deflates when it loses synovial fluid. This is a normal process because hyaline cartilage is porous, which allows synovial fluid to leak into the joint space. Unfortunately, the cartilage does not reabsorb as much synovial fluid as it leaks out. Hence, the cartilage thins and eventually wears out, causing the pain that occurs in arthritis when exposed bone rubs against the opposite surface of the joint. As lead presenter David Burris stated,
We observed a dynamic competition between input and output [of synovial fluid]. We know that cartilage thickness is maintained over decades in the joint, and this is the first direct insight into why. It is activity itself that combats the natural deflation process associated with interstitial lubrication. (emphasis added)
The bottom line is that joint activity, i.e. moving, keeps the cartilage thicker longer, forestalling or preventing the onset of arthritis.
This is good news for employee wellness programs, especially those that help employees achieve an active lifestyle. The potential reduction in the occurrence of arthritis from such programs could benefit employers in many ways. First, arthritis saps productivity because it is painful, reduces mobility, and can cause absences. Second, arthritis will increase employers’ group health-related costs. Put another way, every joint replacement that can be avoided will have a positive impact on health insurance premiums. Third, arthritis is often alleged to be work-related, increasing worker’s compensation costs. Helping employees stay or become active makes sense for myriad reasons. Reducing employees’ arthritis is a powerful one both for employees’ well-being and employers’ bottom line.
At Medical Systems, we don’t often see separated shoulder cases, known to medical professionals as acromioclavicular (“AC”) joint dislocations, because the injuries are acute and painful. Hence, there usually isn’t much dispute about whether the injuries are work/accident-related or not. Still, these injuries happen at workplaces and in personal injury accidents. They are painful and, if severe, usually treated surgically (read, “expensively”).
New research suggests that this is probably the wrong approach. A recent study in the Journal of Orthopaedic Trauma found that surgical repair of moderate and severe AC joint dislocations did not result in improved outcomes versus non-surgical repair, bucking what has been considered common knowledge among doctors. Not only did surgery not improve patient outcomes, but patients that did not have surgery actually recovered faster. In fact, 75% of the non-surgical patients returned to work within 3 months of the injury while only 43% of the surgical patients did. According to the study’s author, "For severe AC joint dislocations, surgery is the common practice but there's not much evidence to suggest this is actually the best treatment." An additional benefit is that those treated non-surgically (use of a sling and rehabilitation) suffered much lower rates of complication. The only noticeable benefit to surgery was that the AC joint appeared more normal after surgery.
One hopes that the medical community will pay attention to the findings and stop recommending surgery for every moderate to severe AC joint dislocation. It would seem that this would be the best result for both claimants with AC joint dislocations and claims professionals managing their claims.
We have all seen the statistics on the explosion of nonmedical opioid use, abuse, and overdose that occurred with the proliferation of opioid use to treat chronic pain conditions. A new study further calls into question the wisdom of using opioids to treat chronic pain in women. According to research published in the Journal of Women’s Health, only 20% of women using opioids over the long term to treat chronic pain reported low levels of pain and high levels of function. In other words, using opioids over the long term to treat chronic pain is ineffective for 8 out of every ten women using them for that purpose. With the risk of opioid addiction, misuse, and overdose as high as it is, it is frankly mind-boggling that they continue to be prescribed to treat chronic pain in a population for whom the drugs are overwhelmingly ineffective. One hopes that continued research such as Journal of Women’s Health study and growing awareness of the ineffectiveness of long-term opioid use to treat chronic pain will eventually lead to more sensible prescription guidelines and more judicious behavior among prescribing physicians.
Last week we reported on research finding that taking short breaks to move during the day have beneficial effects on blood pressure. Even more encouraging is research published in the American Journal of Preventative Medicine finding that simply fidgeting during the day has similar and beneficial health effects. While this may be bad news to our least favorite elementary school teachers who seemingly equated intelligence with the ability to sit still, it is good news for all of us who find ourselves working in sedentary jobs. And there are a lot of us working sedentary jobs. The American Heart Association estimates that less than 20% of U.S. jobs can be characterized as “physically active.” According to the study’s authors, “there was no increased mortality risk from longer sitting time” among study participants who reported fidgeting a moderate or high amount during the day. So don’t sit still! It appears that all movement is good for us, even such trivial types as fidgeting. While everyone can benefit from regular exercise, don’t count out the little things we can do during the day to counteract the negative effects of being sedentary. They might be just as important as the big things.
Hearing that exercise is good for us is worse than a broken record. Sometimes it actually feels painful to read it, as if the purveyors of this information are on some sort of sadistic quest to make their readers feel bad. Fortunately, this post will actually tell you that less is more and that you don’t have to kill yourself to not kill yourself. The New York Times wellness blog has a short piece worth reading on just what kind of exercise helps reduce blood pressure. This is important information because high blood pressure is a precursor to a vast array of conditions and diseases that shorten lifespans and reduce quality of life. What is also significant about the information is that it should actually make exercise easier. First and foremost, the article points to research finding that “’exercise intensity does not appear to play any significant role’ in helping people control blood pressure.” This is good news for anyone who blanches at the notion that exercise has to be strenuous to be beneficial. According to the article, “movement is what matters” and improvements in blood pressure readings were seen in persons who engaged in such simple activities as taking standing breaks or walking 1 mph for 10 minutes an hour at desk treadmills. In addition, the article pointed to research demonstrating that small movement breaks during sedentary periods are more beneficial than extended periods of exercise. This should be encouraging for all of us who have demands on our time that make scheduling an extended period of time for daily exercise difficult. At a minimum, most of us can manage to find 10 minutes here and there where we can simply stand while we work. And the good news is that even this modest intervention has been proven to substantially improve blood pressure readings. And employers should take note because this simple strategy could have significant effects on the health of employees, which is good for just about everything, including the bottom line.
We have written many times about the pitfalls of conventional, linear thinking. Another development in the world of biomedical science confirms the peril of this type of thinking. In this case Ruth Massey, a biologist and biochemist at the University of Bath, describes research she performed with colleagues on staphylococcus aureus bacteria (the SA in MRSA), the found, contrary to conventional wisdom, that staph infections causing bacteremia in humans, the worst and most deadly staph infection (up to a 40% mortality rate), produce relatively few toxins. For decades, scientists thought “the more toxins a bacteria produces, the worse infection it causes.” Massey’s research demonstrates that the exact opposite is true: the worst infections in humans are caused by bacteria that produce less toxins.
How Massey and her colleagues discovered this information is a good example of why it is perilous to apply assumptions across categories without testing them. In this case, the problem had to do with how bacteremia research was conducted. Generally, bacteremia experiments are conducted on rodents. Massey et al. discovered that this is problematic because staph bacteria have much more difficulty establishing infection in rodent blood than in human blood. As Massey notes, as few as 100 staph bacteria can cause bacteremia in humans while 10-100 million staph bacteria must be injected into the rodent blood stream to establish infection. It turns out that this difference is crucial to how infections develop humans versus rodents. In humans, the way staph causes bacteria is by overwhelming the body’s defenses numerically. In order to do this, the bacteria need to be most efficient at reproducing. Having fewer toxins allows the bacteria to reproduce more efficiently than if the bacteria had many toxins, which requires energy be siphoned away from reproduction. In rodents this is less of an issue because bacterial loads large enough to overwhelm the rodent immune system are being injected into the blood stream. Human staph infections follow a typical organic course that starts with seeding by significantly fewer bacteria cells.
What is most significant is that untested assumptions often have real deleterious consequences. In the case of the bacteria staphylococcus aureus, research directed at treating and preventing staph infections, especially antibiotic resistant MRSA infections, has focused on staph bacteria that produce high levels of toxins. And this research was conducted because scientists assumed staph that secreted higher levels of toxins caused the worst infections. The problem is that Massey and colleagues have found that these strains of staph are not the ones that cause severe and deadly infections. The assumption was perilously wrong. As Massey writes, “identifying the limitations to our knowledge, rather than blindly pursuing hypothesis based on misleading animal experiments has got to be a better starting point for the future of infectious disease research.”
The same can be said of medico-legal claims: blindly pursuing claims strategies based on conventional wisdom can lead to bad results. Identify what you know and what you need to know. Gather the evidence. Ask what conclusions can be drawn from the facts? Form a claims strategy from the conclusions drawn from the facts, even if the strategy runs afoul of conventional wisdom. And if you find ignoring conventional wisdom uncomfortable (even when the facts of the claim are telling you to do so), ask yourself: Would I rather be comfortable or right?
We have written about the beneficial effects of getting enough sleep in this blog before. Yet again, researchers demonstrate that sleep is a vital component of health (and productivity). Science reports that a recent study published in the journal SLEEP confirming that people who don’t get enough sleep are more susceptible to the common cold. Scientists conducting the study inoculated healthy volunteers with rhinovirus, the most commonly implicated virus in causing colds, then quarantined the participants on a segregated hotel floor for 5 days after inoculation to limit the possibility of picking up rhinovirus from the environment. The study’s authors found that participants who slept less than 5 hours per night were 4.5 times more likely to get sick than participants who slept seven hours or more per night, proving once more that getting adequate sleep is crucial for maintaining health. And as any employer during cold and flu season can attest, maintaining health is crucial for productivity (and attendance).
Decorated New York Times Science reporter Gina Kolata recently reported on a large (100,000 women over 20 years) study published in JAMA Oncology on ductal carcinoma in situ (“DCIS”), a form of abnormal cells found in the milk ducts of breast tissue. Some medical experts call DCIS stage 0 breast cancer. Other medical experts do not even consider DCIS to be cancer. Kolata’s article and the study on which it reports illustrates a problem with viewing medicine as a static field to which fixed assumptions apply: the human body is a dynamical system that is unpredictable and confounds assumptions.
Cancer is a particularly good example of the problems with making fixed assumptions about disease. As Kolata notes:
Over the years, investigators have come to conclude that the old model of cancer – that a few aberrant cells will grow, spread and inevitably become a deadly cancer if not destroyed – is wrong. Small clumps of abnormal cells may just stop growing, scientists now know. Even invasive cancers do not always grow. Some regress or disappear. That is especially true in prostate cancer, where as many as half of all cancers found with screening will not progress is they are simply left alone. But it also seems true in breast cancer, researchers say.
Doctors used to assume that DCIS was an incipient form of cancer that, if not treated, would grow into a tumor and eventually metastasize. The use of mammograms greatly increased the diagnosis of DCIS, which led to greatly increased treatment of it. Early on, mastectomy was the preferred method of treatment. The reason was based on applying the rules of a different cancer to DCIS. Studies had demonstrated that excising early neoplastic lesions on the cervix that were discovered in Pap tests prevented deaths from cervical cancer; hence, doctors reasoned that cutting out DCIS lesions would prevent deaths from breast cancer. As lumpectomy became an accepted alternate treatment to mastectomy in breast cancer, doctors began treating DCIS with lumpectomy also. The problem is that the JAMA study found there was no difference in the death rate from breast cancer of women diagnosed with DCIS (regardless of the form of treatment they received or whether they received no treatment) and the death rate from breast cancer in the general population of women. The study also found that despite aggressively treating DCIS, there was no impact on the incidence of invasive breast cancer in the general population. This would not be expected: “if treating DCIS was supposed to fend off invasive breast cancer, the incidence of invasive breast cancer should have plummeted once DCIS was being found and treated.”
The JAMA Oncology study can teach those of us in the medico-legal world a valuable lesson about the perils of making assumptions without testing them. In the medico-legal world, we need to pay attention to the evidence around us and to the impact the evidence has on the claim, especially impacts that are unexpected or run counter to our assumptions about the claim. Failure to do so will inevitably result in error.
The DCIS case is instructive. Surgeons began performing mastectomies and later lumpectomies to treat DCIS with the rise of mammogram screening. They did so on the advice of oncologists and gynecologists who assumed that the abnormal cells of DCIS were like the abnormal cervix cells found on Pap tests. Despite growing evidence that certain neoplasms do not metastasize and that different cancers behave and respond to treatment differently, oncologists and gynecologists kept recommending that DCIS be excised (and general surgeons dutifully performed the excisions). And even after years of excision being standard treatment for DCIS, no one bothered to gauge whether the treatment in fact lowered death rates from breast cancer because the medical community did not question the assumption that DCIS would lead to breast cancer if not excised. The assumption, based on an analogy instead of medical evidence, was so deeply embedded in the medical profession that few practitioners thought to question it. As a result, thousands and thousands of unnecessary mastectomies and lumpectomies were performed over the last three decades which caused physical injury, physical pain, psychological distress (not to mention massive medical costs), and did not prevent breast cancer. And all of this was caused by a failure to pay attention to the actual evidence accruing and instead relying on an untested assumption.
DCIS offers a sobering example of why we cannot rest our claims analyses on untested assumptions. Instead, we must constantly test our assumptions against the available evidence to determine whether the inferences drawn therefrom support the assumptions. While the assumptions made in individual claims are not likely to have as deleterious consequences as the assumptions the medical community made about DCIS, they can have a negative impact on our ability to resolve claims efficiently and effectively. And if the assumptions are repeated over time, the skewed results we achieve in resolving claims could have a significant negative monetary impact in the aggregate. Instead, we should constantly be testing our assumptions against the actual evidence; further, we should be prepared to abandon our assumptions if the available evidence does not support them. Claims are not static but rather change over time as they are developed and new evidence is obtained. To manage claims effectively, we must adapt to those changes and develop a strategy that is responsive to them. If we do so we will not be surprised when the unexpected arises and we will respond to it nimbly. We will also avoid the pitfall of untested assumptions that, like was the case with DCIS, can cause us to pursue strategies that may not only be ineffective but also harmful.
Pulmonary claims in worker’s compensation can be difficult if there is not a discrete release of harmful airborne particulate matter or chemicals that is well-documented. In cases with longer exposure time or with exposure to common particulate matter such as ‘dust’ or other materials that may cause pulmonary irritation, finding a plausible non-industrial cause for the pulmonary injury or condition can be both challenging and vital to the claim’s defense. However, a UK study reveals a potential source for non-industrial exposure to harmful particulate matter and vapors: home improvement projects. According to Medical News Today, the study found that “peak concentrations of potentially harmful ultrafine particles reach up to 4,000 times local background levels when undertaking building activities such as drilling.” The authors note that do-it-yourself (“DIY”) home improvement has increased in recent years and continues to grow in the United Kingdom, a trend also common to the United States.
In the United States, OSHA mandates worker’s on construction sites be provided with personal protective equipment such as respirator masks when necessary to protect employees from harmful particulate matter and vapors. OSHA also requires that employers use effective engineering controls such as confinement and ventilation to limit workers’ exposure to harmful particulate matter. Unfortunately, individuals who engage in home improvement projects are not required to use personal protective equipment or engineering controls to protect themselves. Thus, home improvement projects, especially those involving drilling, cutting, sanding, or solvent use can be a significant source of pulmonary exposure to harmful airborne particulate matter or vapors.
In the worker’s compensation context, the rise in DIY home improvement is a potential non-industrial cause of pulmonary injuries and conditions. Claim handlers in pulmonary claims should ask claimants about DIY home improvement project history to see if there is a potential exposure source outside the workplace for their problems. Also, claim handlers may wish to consider interviewing co-workers since many people who engage in DIY home improvement projects like to talk about them. Prompt surveillance could also be useful because larger scale DIY projects often generate construction waste that is at least temporarily stored at the home and is often visible from the street. Finally, independent pulmonary experts should be instructed to ask claimants about their DIY home improvement project history if they are not already doing so. Dry-walling a bedroom surely would be more likely to cause pulmonary problems than exposure to the everyday amount of dust present on a loading dock in a warehouse (or wherever the exposure is alleged to have occurred).
Spinal cord injuries are devastating. The U.S. experiences approximately 12,000 spinal cord injuries per year in which the injured person survives the initial accident. For those who survive the initial accident, the road forward is physically arduous, psychologically taxing, and financially burdensome. A spinal cord injury patient can expect to spend well over a month in hospitals and in-patient rehabilitation (and sometimes considerably longer dependent on the severity of the injury and whether there are concomitant cognitive impairments or other comorbidities). In addition, the lifetime costs of spinal cord injuries are extensive, having a present day value ranging from $4,540,000 for a 20-year-old patient with high tetraplegia (spinal cord injury at C1-C4) to $1,460,000 for a 60-year-old patient with paraplegia. The occupational effects are profound, with only 35% of spinal cord injury patients able to achieve a similar pre-injury level of employment 20 years post-injury. Obviously, the costs to employers and worker’s compensation carriers in work-related spinal cord injury claims are enormous and usually lifelong. The costs of spinal cord injuries are massive in the liability context as well. Since the two most common causes of spinal cord injuries are motor vehicle crashes and falls, liability and worker’s compensation claims are relatively common when spinal cord injuries occur.
Certainly no one did more to raise awareness of spinal cord injuries than Christopher Reeve, who suffered a spinal cord injury causing high tetraplegia (C1-C2) after falling from a horse in 1995. Periodically high profile athlete suffer spinal cord injuries that thrust the issue back into the national spotlight. In 2010, Rutgers football player Eric LeGrande sustained a spinal cord injury during a game against army that initially left him paralyzed from the neck down. In October 1995, Travis Roy was just 11 seconds into his first shift in his first game as a hockey player for Boston University when he crashed head-first into the boards and suffered a spinal cord injury that also paralyzed him from the neck down. More recently, Olympic swimmer and multiple gold medal-winning swimmer Amy Van Dyken suffered a spinal cord injury away from athletics in June 2014 when she fell off the all-terrain vehicle she was driving and down a 5-7 foot embankment. The accident injured her spinal cord at T11 and left her paralyzed from the waist down.
These famous athletes and celebrities periodically remind us of both the risk and devastating consequences of spinal cord injury. Fortunately, progress is being made in managing the post-injury effects of spinal cord injury. The most frequently reported-on developments typically involve bionic exoskeletons that help the paralyzed person move their limbs. However, recently medical researchers have been making strides in using electrical stimulation to allow the injured patient voluntarily move paralyzed limbs. In recently reported research, external electrodes were placed over 5 patients’ spinal columns who have suffered from paraplegia for at least two years. The electrodes in combination with the drug buspirone allowed the patients to move their limbs under stimulation, which was not unexpected. What was remarkable is that the patients retained the ability to move their legs even without electrical stimulation after 4 weeks of treatment. As lead researcher Prof. V. Reggie Edgerton noted, "The fact that they regained voluntary control so quickly must mean that they had neural connections that were dormant, which we reawakened." The findings are considered remarkable because the medical and scientific community had accepted that persons with complete paralysis “no longer had any neural connections in the spinal area.;” suggesting that it may be possible to regain motor function without regenerating spinal neurons or using an exoskeleton system.
This research along with the mind-boggling progress that is being made with patient-controlled exoskeleton devices is changing the landscape for spinal cord injury patients. These developments are welcome news for patients, their families, and society alike. As noted above, the occupational and medical costs of spinal cord injuries are enormous. Anything that can return function to patients has the potential to minimize the occupational impact and long-term medical expenses of spinal cord injuries, which is good news for the worker’s compensation and civil liability systems as well. Spinal cord injuries are among the most costly injuries to everyone involved. Improving outcomes in spinal cord injuries will benefit an extraordinary number of individual lives and also the institutions set up to absorb the costs.
Some problems are bigger than others. Consider the case of Archimedes and the water screw: how do you get lots of water uphill when you live in the 3rd century BCE and don’t have a pump? While the origin of Archimedes’ screw is subject to debate, the fact is that sometime between 700 BCE and 200 BCE the Assyrians or the Greeks figured out a way to move water uphill efficiently without having mechanical, machine powered pumps. The solution was to enclose a double or triple helical surface, more commonly known as a screw, inside a pipe. One end of the pipe is placed in water and as the screw shaft is turned, the bottom scoops up water, which slides up on the tube until it reaches the top and spills out. The screw was used to move water to and from irrigation ditches and to drain water from low-lying areas or mines. Part of the genius of the screw was that the seal between the screw edge and the pipe did not need to be watertight since it would work as long as the volume of water being scooped up was larger than the volume of water leaking down. Regardless, Archimedes’ screw was able to move significantly more water uphill both faster and at lower energy costs than using buckets and pails.
Archimedes’ screw is remarkable when you think about it: in a pre-industrial society without electric or other non-manual power sources, someone figured out a way to move water uphill with efficiency comparable to a mechanical pump using a screw. Not exactly the method that would come to mind for most of us when thinking about how to move water uphill. This sort of unconventional, out-of-the box thinking is an example of what business and cognitive science experts call “distant search”; which has been neatly defined as “problem solving outside the neighborhood of what is already known.” Distant search contrasts with “local search,” which is the most common way we solve problems. Local search is “problem solving that focuses only on the neighborhood of what is already known, drawing on the pre-existing knowledge base and on how the problem (or similar problems) had been solved in the past.”
The fact that most problem solving is accomplished using local search is not surprising. Most of us are familiar with the idea that specialization and expertise are important factors in achieving high levels of competence in most fields. Most have probably heard about Malcolm Gladwell’s argument that expertise arises after 10,000 hours of practice in any given field. Some may also be familiar with research demonstrating that the single biggest factor predicting a surgeon’s success rate at a particular procedure is the frequency with which the surgeon performs the procedure. All of this may leave us with the impression that the key factor to achieving success is practice, repetition, and familiarity. The bottom line is that for most problems, expertise is useful because most problems arise out of and can be solved using “the neighborhood of what is already known.”
Undoubtedly practice, familiarity, and repetition help build the fund of knowledge available for local searches and are useful for solving most of the day-to-day problems we encounter; however, these factors are insufficient for solving the biggest and most difficult problems we encounter. The reason is fairly simple: local searches are cognitively rigid. Unfortunately, cognitive rigidity acts as a bar to creative and unconventional thinking, which often makes the difference between whether a seemingly intractable problem gets solved or not. For the most difficult problems, innovative and unexpected solutions are usually needed but local search is narrow, predictable, and based on existing knowledge of the status quo. Local search is not particularly creative or innovative. For more difficult problems, a different type of solution is needed and the solution is found through distant search.
In distant search, a solution is sought that is significantly different from what might be considered the intuitive or logical starting point. The Archimedes screw is a classic historical example of distant search. Others would include Copernicus, who did not continue the refinement of Ptolemaic solutions to the problems caused by the geocentric model (i.e. the need for epicycles) but instead proposed the wholly different and (it would turn out) correct solution of a heliocentric model. Copernicus had, at some point, to abandon the idea of the geocentric model in order to conceive of a different solution to the problem. This move away, this search for a solution different in quality and kind, is distant searching. Einstein’s conception of relativity is a similar example of distant search: a wholly novel solution to cosmological questions that differed in quality and kind from Newton’s solution. Simply refining or correcting the flaws in Newton’s mechanics would not have led to a correct model, but would have only further refined an incorrect model. The model would have still been incorrect. The flaws would have remained.
Contemporary examples of distant search include e-books and the iPhone. Publishers’ use of CD-ROM in response to the digitization of information storage and transmission was the result of local search. This is in contrast to Amazon’s distant search which resulted in the development and adoption of e-books. The iPhone touchscreen is another great example of distant search. Rather than putting a keyboard on a phone, a la Blackberry, Apple developed a more elegant and unexpected solution to the interface between user and PDA. In the annals of history, we know who which innovations will be remembered and which will be forgotten. It is often this way with distant search. Distant search is the Eureka moment, the breakthrough that changes everything, the revolution that changes industries and societies.
The problem most of us have with distant search is that it essentially requires us to stop thinking about the problem. Usually this is a matter of happenstance. We get so frustrated with a difficult problem that we simply walk away from it. The solution then comes to us at an unexpected moment (if it comes to us at all). Consider the case of a musician who can’t complete a partially formed melody. Local search would involve playing the fragment over and over, maybe adding to it or varying it a bit. The problem is that the musician has reached what could be termed an arrest of thought (she’s stumped, in other words). Continuing to repeat the fragment that led to the arrest of thought is only likely to deepen its hold on her brain and increase her frustration. Eventually she will abandon the fragment and move on. If she is to complete the melody, she will most likely find the solution when she is not thinking about the problem. Perhaps the sound of subway doors closing triggers a connection previously unavailable to her and causes her to find a solution. Or maybe the susurration of the wind shaking leaves triggers the connection that leads to the solution. The point is that the musician is most likely to solve the problem with information “from outside the neighborhood of what is already known” about the problem and this information will only become available when she is not thinking about the problem.
Unfortunately, happenstance is inefficient, unpredictable, and not always successful. The process of happenstance is a distant search whereby the musician is confronted with something, however trivial or mundane, that causes her to think of the problem in a novel way which offers a hitherto inaccessible solution to the problem. However, the connection or solution that presents itself is wholly dependent on the chance that something in the musician’s daily life will trigger the connection. Perhaps she never rides the subway at the moment when her mind is clear and receptive. Perhaps she needs to hear the sound of leaves rustling in the wind but never takes a walk in the woods. Regardless, happenstance is a poor method to rely on for performing distant search.
Fortunately, we can train ourselves to use distant search more efficiently. The key is to become self-aware of our thought process and how we are thinking about the problem. The term that has sway in the cognitive sciences right now is mindful metacognition. In layperson’s terms this simply means self-aware thinking about thinking. Rather than dive into the problem, mindful metacognition would have us think about the problem, but then would have us abandon the thought rather than follow it. Then we would allow other thoughts to form in the cognitive space vacated by our initial solution to the problem. Mindful metacognition offers a more targeted method to achieve distance search. The process allows the musician in our example to consciously shut off the ruminative stream of thought that has got her stuck and to open her field of consciousness to new thoughts in close enough proximity to the melody fragment problem that the new thoughts become available as possible solutions or modes of thought that can precipitate a solution to the melody fragment. The likelihood of reaching a distant solution in a shorter time is thereby increased versus happenstance alone.
Hence, when a roadblock arises, try to use mindful metacognition to explore distant search solutions. In a sense, using mindful metacognition to trigger distant search is like an internal email to colleagues or an online query: rather than sending out a question to a few or many others, mindful metacognition essentially lets you float the question to your whole mind a memory store. Thus, the free associations that you allow to form and retrieve thoughts and memories that increase the likelihood that somewhere in our amazing, complex, and data-filled brain a solution or way of seeing the problem that will lead to the solution already exists and just needs to be brought out for the connection to the problem to be established. These thoughts and memories are like the vast array of potential individuals available to us when we crowdsource the solution to a problem. Not every problem requires distant search, but when one arises it is certainly better to use a targeted method that offers a reasonable chance at a solution than to use local search and beat one’s head against the wall over and over or to rely on happenstance, which may never, in fact, happen.
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.
Gender. It’s all over the news for a variety of sensational reasons that have nothing to do with independent medical examinations. Nevertheless, gender can be important in independent medical examinations. For example, a study published online in Radiology finds women who sustain mild traumatic brain injuries have significantly greater working memory impairment which persists for longer periods than men who suffer mild traumatic brain injury. In managing a claim file with a mild traumatic brain injury, this information is important for at least a couple of reasons. First, it should help gauge when a claim has gone from an expected recovery pattern to an unexpected one. If we know that men typically do not experience working memory impairment in mild traumatic brain injuries beyond 4 weeks and a claimant is still complaining of memory problems beyond that time, we should certainly be asking questions of the provider and may wish to consider setting up an IME to get a second opinion. Conversely, if a woman who suffers a mild traumatic brain injury complains of working memory problems 8 weeks after the injury, we should not necessarily be alarmed.
Second, knowing the differences in the way persons of each gender respond to common injuries and conditions can help us tailor our questions to the IME doctor. Certainly in the mild traumatic brain injury example involving a male claimant we would want to specifically ask whether claimed working memory impairment past four weeks post-injury would be unusual for a male. In this way, we can use a question to alert the IME doctor as to why we think something is remiss in the claim and to elicit a specific explanation that will bolster the basis for the doctor’s opinion. Another example of a gender-specific response involves whiplash injuries. The medical literature demonstrates that female gender is associated with greater risk of whiplash injuries resulting in chronic or permanent complaints. If we have a male claimant alleging permanent whiplash-type injuries without objective evidence of ongoing injury, we would want to direct the IME doctor’s attention to whether this is consistent with the literature on how male bodies respond to whiplash.
Beyond medico-legal claims, gender matters also. A lot. Take heart attacks. Most people know that squeezing chest pain is a symptom of heart attacks, often described “like an elephant” sitting on the chest. Far fewer people know that “women can experience a heart attack without chest pressure.” Also, according to the American Heart Association, “women are somewhat more likely than men to experience some of the other common symptoms, particularly shortness of breath, nausea/vomiting and back or jaw pain.”
Why is this significant? First, heart disease kills more men and women than all forms of cancer combined. Second, the key to surviving heart attack is early intervention. If we do not differentiate heart attack symptoms by gender and educate people accordingly, more than half the population is at increased risk of death from the leading cause of mortality simply because they lack basic, simple knowledge. This increased risk has nothing to do with age, wealth, health insurance, race, etc. The only reason for the increased risk is that the former one-size-fits-all-genders approach to medicine forgot a simple truth: men and women are different.
In the medico-legal world we administer claims of both male and female claimants. To fulfill our responsibilities most effectively, we must recognize that men and women are biologically different in ways that can affect the outcome of a claim. We must be aware of the physical conditions and injuries to which men and women respond differently so we can differentiate between what is normal and what is not, so we can know when to get an IME, and so we can ask the right questions once we schedule an IME. Injuries are not “one-size-fits-all-genders” any more than heart attacks are. Knowing this will make us better claims handlers, nurse case managers, paralegals, and attorneys (and it might help save a life, perhaps even yours).
We have posted before about the benefits of standing during the workday. New research suggests that standing while working is not only physically better for you, but it also leads to improved cognitive performance. Researchers from Texas A&M University equipped classrooms with standing desks and compared student performance to a control group using traditional, seated desks. Researchers found that students using standing desks had improved academic performance when compared to their peers using seated desks. The main advantage of standing desks appears to be that students who were standing maintained their focus better than seated students. The results should not be altogether surprising because “previous studies have shown that physical activity, even at low levels, may have beneficial effects on cognitive ability”, according to lead researcher Mark Benden, Ph.D.
Although the study focused on children in the classroom, adults have been shown to benefit physically from using standing desks. There is no reason to believe that adults would not also benefit cognitively from standing desks. Myriad health problems arise from sitting for extended periods of time for which employers ultimately pay a hefty price in the form of increased health insurance premiums, lost time, and disability claims. Reducing the amount of time employees have to spend sitting makes sense from this standpoint alone. However, employers are also likely to derive performance benefits from employees who stand more and sit less in the form of an increased ability to focus and stay on task.
I spend a lot of time reading news about medical advancements so I can post interesting and useful (I hope) things to this blog. However, sometimes reading about medical advancements can be dispiriting because we frequently are told that what we thought we knew is wrong. Take the recent news that acetaminophen (Tylenol®) is not effective for treating low back pain or knee and hip osteoarthritis. Acetaminophen has been around since 1955 as an analgesic and antipyretic (fever reducer). In addition to its other uses, the American College of Rheumatology recommends acetaminophen as an option to treat knee and hip osteoarthritis. The American College of Physicians and the American Pain Society recommend acetaminophen as a first line treatment for low back pain. One must wonder how many millions of dollars consumers and insurance companies have spent on a drug that essentially doesn’t work to treat low back pain and knee and hip arthritis pain based on the recommendations of doctors, pharmacists, and nurses. And this is just the most recent example.
Naturally, we can be led to believe that there is something nefarious or avaricious about the medical profession and the pharmaceutical industry when we learn of developments like the recent findings about acetaminophen’s ineffectiveness. As someone who in the past defended employers and insurance companies against many carpal tunnel syndrome worker’s compensation claims allegedly related to keyboard use, I have gotten extremely upset at the amount of money spent to cover carpal tunnel syndrome claims that virtually no credible physician would consider to be work-related today because research now demonstrates definitively that repetitive keyboard use does not cause or aggravate the progression of carpal tunnel syndrome. Ditto performing arthroscopic chondroplasty to treat knee osteoarthritis. I have certainly entertained thoughts of greedy physicians eager to cash in on patients and the worker’s compensation system, especially when we learn that what they thought was true was in fact erroneous. I think we have this impulse because we know that medicine is based in part on science; hence, we expect medicine to be reliable and its practitioners to possess accurate knowledge. Any experience to the contrary makes us feel like we are being duped.
The problem is that our understanding is only partially correct: medicine is, in part, based on science; however, the conclusions that we draw from our understanding is incorrect: scientific fields of study are, by the very nature of science, in perpetual flux. Scientists form hypotheses based on observations. They then perform experiments to test the hypotheses. The experiments may confirm a hypothesis or refute a hypothesis or fall somewhere in between. Scientists try to isolate outside variables and eliminate bias from the experiments, but they are not always successful in doing so. Hence, the results from an experiment that seem to be valid may be found to be problematic or invalid at a later date if the results cannot be duplicated or if unappreciated confounding variables are discovered.
The placebo effect of sham arthroscopy exemplifies how this can happen. The initial investigators into the effectiveness of using arthroscopic chondroplasty to treat knee osteoarthritis could not conceive of a placebo effect in a surgical setting, so they did not even consider the possibility that arthroscopy could have a placebo effect. Early studies demonstrated that arthroscopic chondroplasty was effective in treating knee osteoarthritis. However, after years of treating knee osteoarthritis with arthroscopic chondroplasty, a number of doctors began to suspect that it was not particularly effective based on the results they were observing. Some noted the initial positive results and subsequent lack of expected improvement were similar to a placebo effect. These doctors began hypothesizing that the arthroscopy itself was having a placebo effect. Two studies were performed to reevaluate the long term effectiveness of treating knee osteoarthritis with chondroplasty, including one that used a control group that received sham arthroscopy. Both studies concluded that treating knee osteoarthritis with chondroplasty is no more effective than treating knee osteoarthritis without surgery. The study using sham arthroscopy further concluded that arthroscopy has a significant and measurable placebo effect which accounted for the perceived success of using arthroscopic chondroplasty to treat knee osteoarthritis in earlier studies.
The fact that science requires constant questioning of the status quo is a profound virtue, despite our natural desire for settled and secure knowledge to the contrary. Consider that if medical researchers had not critically observed patients undergoing arthroscopic chondroplasty for knee osteoarthritis and questioned earlier research, doctors would be continuing to perform a useless procedure at great cost to patients and third party payers. Similarly, if we didn’t constantly question our knowledge based on our observations, we would still consider smoking cigarettes to be beneficial to pulmonary health (as many once believed) and would consider bloodletting to be an effective treatment for myriad conditions and diseases. Science is hard and sometimes exasperating because scientists never rest or accept the status quo; however, this is its genius.
In many ways, constantly questioning and not accepting the status quo is useful in the claims world also. One way to bring the constant reexamination of assumptions from science to claims is to question some assumptions that we rely on to see if they have a legitimate basis in reason and fact. A perfect example is the list of standard red flags that are cited as increasing the likelihood that a claim is not legitimate. Some standard red flags include:
It may be that these red flags are based on legitimate assumptions, but if they are not it is a waste of time for claims professionals to devote extra time to a file based on them. Let’s examine them one-by-one to see if the red flag assumptions bear out.
First, we want to question a claim because we didn’t get notice of the injury until after the employee was laid off. The assumption is that if the injury was legitimate the employee would have reported it when it happened. The conclusion drawn is that the late reporting is done either to obtain continued wages in the form of TTD (and perhaps medical coverage as well) or to spite the employer. Consider another assumption though: the employee did not report the injury while he was working because he feared he would lose his job if he did so. Once the job was gone, he no longer faced the same economic or psychological constraints. This assumption may seem strange, but we know people regularly engage in such counterintuitive behavior. For example, it is established fact that a significant percentage of innocent persons who are investigated for and accused of committing a crime will falsely confess or plead guilty to a crime they did not commit. The reasons people do so are myriad, but it is beyond debate that this behavior regularly occurs. Before we make the assumption that reporting injury after termination or lay off suggests a claim is not legitimate, we should at a minimum have other reasons supporting the assumption since there are equally plausible reasons that suggest late reporting is in fact a legitimate behavior. Better still, we should examine claims in a scientific manner to determine if there is actual support for our assumption that claims reported after termination or lay off are baseless more often than claims not reported after termination or layoff.
Second, we are told that unwitnessed accidents are suspicious. By itself this statement must be admitted to be practically incoherent. The assumption is that for an accident to be legitimate it must have been witnessed. Absent context, this is nonsensical. Can we really equate the legitimacy of an inventory clerk who spends 85% of her day alone and suffers an unwitnessed injury with a line worker who spends 98% of her day in the presence of co-workers and suffers an unwitnessed injury? Also, the context of the injury itself is important. The facts are considerably more likely to suggest legitimacy (or lack thereof) than whether or not someone else saw the injury happen.
Third, we are told to be suspicious when an injury related to the same body part affected by a preexisting condition. The assumption seems perfectly legitimate: the preexisting condition is causing the problem and the worker is claiming worker’s compensation to avoid wage loss, out-of-pocket medical expenses, etc. However, is it not equally plausible that a preexisting condition means that the body is in a weakened state and is therefore more susceptible to injury than if it were healthy? Obviously other factors will determine the likelihood of the injury’s legitimacy, but that is the point. The red flag and the assumption on which it is based gets us no nearer the truth, and possibly farther from it, than if no red flag assumption was made.
By questioning whether the assumptions we use to evaluate claims are true, we can weed out those which have no reasonable basis in fact from those that do. And making claims decisions based on reason and fact will lead to more accurate and efficient claims analysis. We no longer practice bloodletting because it rested on faulty assumptions about human physiology. It is important that we examine our assumptions so that we don’t practice bloodletting in our claims.
Risk Management Consultant Barry Thompson has an interesting post at his blog, www.claimanswer.com, in which he argues that all worker's compensation medical claims should be processed through Medicare from day one. The gist of his argument is that:
1) It [processing worker's compensation medical claims through Medicare] provides a nationally accepted level of care to injured workers.
2) It brings clinical common sense to an otherwise specious and manipulated system.
3) It ends the oppressive impact of MSA’s.
4) It saves an incredible amount of direct costs, frictional costs and resources while reducing litigation.
To be clear, Thompson proposes that worker's compensation carriers would reimburse Medicare for claims deemed to be wholly or partially related to a work injury and that the indemnity system would remain intact. It is his argument that Medicare has better, more uniform standards for assessing medical causation and is much better at keeping treatment costs under control. Food for thought.
Prescription pain medication overuse and abuse is and has been a national problem for many years now. We have previously written about the issue in Second Opinions. Among the common suggestions that experts make for curbing the problem are more stringent dosing guidelines, creation of and active prescriber participation in state prescription drug monitoring programs, and greater provider education about the problem. Recent data from Washington State shows how effective these interventions can be. Medical News Today reports on a study published in the American Journal of Public Health that while prescription opioid death rates have remained steady for the nation as a whole from 2008 to 2012, Washington State saw a 28% decline. The article specifically notes that:
New state laws on prescription opioid use, including one that mandated the adoption of new dosing guidelines; a statewide Prescription Drug Monitoring Program; and telemedicine and on-line programs for health care providers have all been key to the turnaround.
Provider participation in telemedicine online programs was seen as a key factor in educating providers on appropriate dosing, medication changes, and dangerous drug interactions to avoid. The electronic programs also have the advantage of allowing providers to discuss difficult cases with specialists to help craft solutions that avoid dangerous opioid use, decrease patient suffering, and preserve the doctor-patient relationship.
Here in the Midwest, we should demand that our clinicians, university medical centers, and legislators work together to craft an effective program to curb prescription pain medication overuse and abuse. The Washington State example demonstrates that substantial, cost-effective improvement in prescription pain medication practices can be achieved when all concerned parties come to the table and work together. And for those of us in the medico-legal world, curbing prescription pain medication overuse and abuse would be a welcome development in helping control the monetary and human costs of many claims.
Chronic pain devastates sufferers and those close to them. When it arises in the context of a worker’s compensation or personal injury claim, chronic pain complicates claims management and invariably increases costs, making a satisfactory resolution to all parties difficult to achieve. The most heartbreaking context in which chronic pain arises is, however, military veterans injured in combat. Unfortunately, veterans returning from Iraq or Afghanistan suffer higher rates of chronic pain than veterans of any other U.S. Military conflict. The good news is that the VA is aggressively researching the problem and recently made some headway (that could alter the standard treatment protocol for all chronic pain sufferers, regardless of etiology).
VA researchers published the results from the ESCAPE trial (which stands for “Evaluation of Stepped Care for Chronic Pain”) in which they found that a specialized stepped care program resulted in participants reporting a “decrease in pain severity and 30 percent improvement in pain-related disability.” The results are significant because “we know that medications alone are only modestly successful in helping [chronic pain sufferers]” and that “current pain treatments haven’t made much of a dent,” according to Dr. Matthew Bair, who led the study.
The stepped program involved an initial 12 weeks of treatment with analgesic medication and self-management using such strategies as relaxation techniques. The second step involved 12 weeks of cognitive behavioral therapy. The second step helped participants “counter maladaptive thought” and to learn what activities they could substitute for pre-deployment activities to decrease pain and remain physically active. This second phase would seem critical in the claims context where the greatest challenge is often simply overcoming the disability mindset, or turning the ingrained and almost pathological attitude of “I can’t” to “I can.” In many cases, the issue is not that the chronic pain sufferer cannot perform an activity so much as it is that they convince themselves that they cannot before even attempting the activity. The exciting thing about the study results and using targeted cognitive behavioral therapy in general is that it can help reorient the way chronic pain sufferers view activity in general. Just because an injured worker can no longer train for and participate in marathons due to chronic low back pain does not mean that she cannot complete an 8-hour day as a delivery driver. If cognitive behavioral therapy can help chronic pain sufferers to start looking at the world from the psychological perspective of “I can,” it would seem to go a long way toward improving both the lives of chronic pain sufferers and the outcomes of chronic pain claims.
The ESCAPE study is an exciting development in managing chronic pain patients. Given the difficulty of managing chronic pain claims and the explosion in prescription opioid drug abuse related to treatment of chronic pain, it will be worth following the ESCAPE study to see if its results can be replicated. Even a 30 percent reduction in disability level would likely be significant in a chronic pain claim and could easily represent the difference between partial impairment (and a return to work) and total disability.
Perhaps the most difficult challenge in orthopedics is articular cartilage. You know, the white, pearlescent stuff that covers our joints and makes them operate smoothly and without pain (before arthritis sets in, that is). And why is articular cartilage so difficult? Well, it’s pretty simple: we can’t regrow it when it breaks down and wears away. Hence, the only options for treating worn articular cartilage or osteoarthritis are, once the pain and dysfunction become unbearable, to fuse the worn joint or to replace it with artificial components. Despite advances in orthopedic components and surgical techniques, joint replacement is a suboptimal option for treating worn articular cartilage. Fusion is even less optimal, the point of joints being articulation (or motion).
If we could figure out a way to regrow articular cartilage, calling it game-changing would be an understatement. It would be revolutionary, especially for those in the worker’s compensation world where countless musculoskeletal injury claims involve allegations that work injuries or occupational exposure caused or worsened osteoarthritis. Can you imagine a world where a claimant with debilitating knee pain goes to the doctor and rather than walking out with a knee replacement, the claimant goes to a gene therapist who treats the knee by growing new articular cartilage? No surgery, no infection, no rehab, no disability, just a new knee.
Turns out this dream is closer to reality than you might think. Researchers in Manchester, England recently published research in which they used embryonic stem cells to regrow articular cartilage in the damaged knee joints of rats. Remarkably, "[a]fter 12 weeks, the cartilage surface was smooth and similar in appearance to normal cartilage.” In contrast to earlier efforts which produced abnormal and disorganized tissue, including tumors, the Manchester scientists were able to grow wholly normal, functioning cartilage in the rats’ knee joints.
These findings from the Manchester study are exciting (almost beyond exciting, truth be told). The research is worth monitoring as it advances toward testing in human subjects, which is still probably several years away. Nevertheless, this development gives us a glimpse of a potentially arthritis-free future. Imagine that.
Test your own line of reasoning for internal consistency.
Much of the point of Brewer’s preceding rules or decision heuristics was to remove assumptions and emotion out of the claims evaluation process. This step is where we put the prior steps to work for us to evaluate whether we have in fact successfully analyzed the claim before us in an unbiased and logical fashion.
Let us assume that we are analyzing a claim involving an acute foot injury followed by years of occupational exposure in an obese, 46-year-old, female claimant. When the claimant was 37, she suffered a calcaneal fracture while on the job. She is employed as an assembler doing light work, but stands for the duration of her shift. She was not issued final restrictions after reaching an end of healing following the first injury, but was issued a 15% PPD rating based on loss of motion. The employer did not offer any accommodations to limit the amount of standing the claimant would have to do, but the claimant never requested an accommodation or complained about standing too much. The claimant subsequently developed arthritis and is scheduled to undergo a subtalar fusion. Medical opinions support three possible causes for the claimant’s current condition and the need for the fusion:
In our case, we represent the carrier on the risk for the subsequent occupational exposure date of injury. Our IME doctor concluded that the claimant developed the arthritis due to her age and weight and supports his conclusion by arguing that the claimant would have become symptomatic much sooner if the arthritis were posttraumatic. The IME doctor for the carrier on the risk for the acute fracture date of injury concluded that the arthritis is posttraumatic but that the subsequent period of occupational exposure caused the arthritis to progress faster than it otherwise would have. Finally, the treating surgeon concluded that the acute fracture is the sole cause of the arthritis and the need for the surgery.
During the course of our investigation we learned several things:
Based on the information obtained in the investigation, we developed a litigation plan and completed our investigation. Now we have our litigation plan in place and are preparing to roundtable the claim with our supervisor. Before heading to the roundtable, we have decided to run through the claim again to judge whether we are still comfortable enough with our analysis to present and defend it at the claims roundtable.
We reached the following conclusions about the claim:
To prepare, we need to analyze our conclusions to see if they are internally consistent. First, we concluded that the injury is likely to be deemed work-related. In examining the claims file, two strong facts support our conclusion. One, the employee’s uninjured foot shows no evidence of arthritis. This is significant because the claimant’s occupation stresses the subtalar joints of both feet equally (or nearly so). Hence, if the arthritis were idiopathic we would expect to see the arthritis in both subtalar joints. Two, subtalar arthritis is a well-known and relatively common complication of calcaneal fractures.
Second, we concluded that the ALJ is more likely to conclude that the original fracture is the appropriate date of injury for the claimant’s current condition. Our basis for concluding this is that the treating physician who treated the original injury and the current condition is the same; therefore, he has had the best chance to observe the claimant over time which renders his opinion most credible. This is not as solid a position as the first one is. In a sense, the argument is a non sequitur because it does not necessarily logically follow that the treating physician is better able to determine causation based on familiarity with employee’s condition over time. In making this argument, we have at least one unstated premise that needs to be articulated and explored before we can determine if the argument is in fact internally consistent and valid. The unspoken premise is a common one in worker’s compensation: all things being equal, ALJs consider treating physicians to be more credible than IME physicians. As far as I know, this assumption is based on experience and anecdote and not actual objective data. Hence, we need to be cautious in applying the assumption to our argument and should not consider it necessarily to be dispositive. The reason for our caution is that the assumption is based on the overarching view that most ALJs will, all things being equal, apply the Worker’s Compensation Act liberally and grant benefits to employees making claims. If this view is true, and at least it is reinforced by statute and state Supreme Court pronouncements, then it actually may weaken our assumption that an ALJ will find the treating physician most credible in this case. The reason is that if an ALJ were to find the treating physician most credible, the employee would be stuck with benefits at a considerably lower rate than if the ALJ found the IME doctor for the original date of injury to be most credible. Remember: the IME doctor for the original date of injury insurance carrier finds the claim is work-related and his opinion establishes a date of injury 9 years later, with the corresponding increase in the temporary total disability and permanent partial disability rates that would obtain. If the primary motivating factor of an ALJ in a close case is giving benefits to a claimant then it is reasonable to assume that the ALJ will also be motivated to give a claimant the highest benefit rate when there is a credible opinion allowing her to do so. Thus, we may wish to adjust our opinion and note that the date of injury is likely to be a closer call than we at first posited.
Obviously this is simplistic and something of an exaggeration intended for illustrative purposes. Presumably, we would have considered the problematic assumptions about the date of injury as soon as we had all the relevant medical opinions. Nevertheless, the example serves a purpose: when evaluating a claim, you must test the line of reasons that led you to the conclusions you reached for internal consistency. In doing so, you will stand the best chance of discovering non sequiturs and other logical reasoning problems or errors that may cast doubt on the validity and strength of the conclusions you reached.
The University of Texas Southwestern Medical Center released information critical to the success of cardiopulmonary resuscitation (more commonly referred to as “CPR”) efforts. Specifically, medical researchers reviewed research and found that persons applying chest compressions to those in cardiac arrest often compress the chest too deeply and too rapidly. Researchers say there is a “sweet spot” between the depth of compressions and the rate of compressions that optimizes the chances for a patient’s survival. For chest compressions to have the best chance of working, they need to be performed to a depth of between 5 and 5.5 centimeters (about two inches) and at a rate of between 100-120 compressions per minute. The researchers found that compressing the chest greater than 5.5 inches reduces the likelihood of survival and speculate that such deep compressions probably cause injury to the patient which counteracts the resuscitative effects. In addition, researchers found that many responders perform chest compressions at rates of about 140 compressions per minute, which is too fast and reduces the effectiveness of the resuscitation attempt. To achieve the right rate of compression, researchers noted that timing the compressions to the beat of “Row, Row, Row Your Boat” is effective and used by many well-trained first responders.
First responders and others trained in CPR should be aware of this new information. Chest compressions that are too soft are ineffective as are compressions that are too hard. Ditto compressions that are too slow or too fast. Instead, chest compressions need to be just right. Apparently Goldilocks was on to something.
Medical News Today reports on a significant new study (fee or subscription required) of what causes episodes of acute low back pain. Critically, the study’s authors concluded that most physical and psychosocial triggers of acute low back pain can be modified. Per Medical News Today, some of the findings include:
Unusually, the study “also found that age was a factor in triggering back pain when lifting heavy loads - with younger people being significantly more likely to suffer an episode of acute low back pain after such activity than older people.” This certainly will be counterintuitive for claims administrators and attorneys in the worker’s compensation field as conventional wisdom suggests older age is directly proportional to low back injuries rather than the inverse as was found in the study. Regardless, the most important thing is to utilize knowledge from the study to reduce episodes of acute low back pain in the workplace. Manuela Ferreira, lead author stated the matter succinctly:
Our findings enhance knowledge of low back pain triggers and will assist the development of new prevention programs that can reduce suffering from this potentially disabling condition.
Sit. Type. Sit. Read. Sit. Talk on the phone. Sit. Sit. Sit. Go to a meeting. Sit. This is what many of us do for the vast majority of our workday. We know that sitting all day is bad for our physical health. We also know that breaking up the day with short walks can help counter the deleterious physical effects of sitting all day. Now, it appears that a simple lunch time walk can also help with our outlook, energy, and focus at work.
The New York Times reports on a study conducted in Sweden in which researchers used real time reporting of mood and emotion in a group of office workers assigned to walk at lunch and a control group of office workers who did not walk at lunch. As the Times notes, “on the afternoons after a lunchtime stroll, walkers said they felt considerably more enthusiastic, less tense, and generally more able to cope than on afternoons when they hadn’t walked…” The lead author noted that despite the study not addressing workplace productivity, “there is now quite strong research evidence that feeling more positive and enthusiastic at work is very important to productivity…so we would expect that people who walked at lunchtime would be more productive.” Interestingly, most workers who were part of the walking group said they would not continue walking at lunchtime when the study was over because “they were expected by management to work through lunch.”
Employers should seek ways in which to encourage employees to engage in less sedentary behavior during the work day. Employees would be psychologically stronger and more resilient which will almost certainly increase their productivity. Contrary to popular belief, stepping away from the desk at lunch will actually help you get more done. Encouraging employees to take a lunchtime walk seems like a simple, cost-effective way to improve employee mood and increase productivity. That being said, I better put on my running shoes…
Headaches are such a headache. This will hardly be news to anyone working in claims or human resources. Whether the headaches are wholly personal (FMLA), work-related, or accident-related, employees and claimants with permanent and persistent headaches pose a unique challenge. A new study reported on in Medical News Today suggests that instead of taking a conservative approach to managing headaches, which is the most effective and lowest cost treatment modality, many medical providers are instead opting to order expensive and typically useless advanced neuroimaging tests for their headache patients. The study specifically found that, “rather than talking to patients about the causes and potential sources of relief from headache pain, clinicians are increasingly ordering advanced imaging and providing specialist referrals, both of which are considered to be of little value in the treatment of routine headaches.”
Generally speaking, conservative treatment such as stress-relief counseling and avoiding dietary triggers are the preferred treatment modalities for managing most routine headaches. As John N. Mafi, M.D., lead author of the study, notes, “the assessment of headaches depends on identifying the relatively rare instances where serious underlying causes are suspected” and that “despite the publication of numerous practice guidelines, clinicians are increasingly ordering advanced imaging and referring to specialists while less frequently suggesting first-line lifestyle modifications to their patients.”
The problem with the overusing imaging studies rather than treating conservatively is multifold. First, and most obviously, ordering unnecessary imaging studies unnecessarily increases costs. Second, overusing imaging studies may result in incidental findings that “provoke unnecessary patient anxiety, can lead to more invasive procedures and often require follow-up testing," as Dr. Mafi stated, further increasing costs unnecessarily. Third, ordering unnecessary imaging may in fact delay recovery from acute episodes and hamper control over chronic headaches because most patients are not being offered the most effective treatment for most headaches. This invariably will lead to greater absenteeism and greater levels of perceived disability.
The truth is, by and large most headaches do not require any type of neuroimaging or laboratory testing. For example, “in the absence of neurologic findings, episodic migraine does not require imaging studies…” Also, “[p]atients who have had a stable headache pattern for at least six months rarely have significant intracranial pathology” and “in the absence of worrisome features, these patients do not require imaging.” One reason that imaging studies are usually not required for headache is that “[i]n adults, it is unusual for headache to be the presenting symptom of an underlying systemic disease in the absence of other symptoms.” This is why additional testing, including neuroimaging, is not recommended in the absence of red flag signs and symptoms that suggest an underlying dangerous pathology might be causing the headache. According to the American Academy of Family Physicians, red flag signs and symptoms in the evaluation of acute headaches that require additional testing (and the testing recommended) include:
Fortunately, headache management is surprisingly simple and requires little “medicine” in the conventional sense. Perhaps this is part of the problem: patients expect high tech, advanced imaging to “figure out what is wrong” with them when high tech, advanced imaging will do no such thing for the vast majority of headache patients. Instead, the more pedestrian truth is that physicians do not know why most patients with chronic or episodic headaches have them and that the most effective management techniques often involve lifestyle choices to reduce stress and avoid headache triggers:
Behaviors that help to prevent headache flares include establishing a habit of regular mealtimes, sleep and awake times, and exercise. It is useful to help the patient identify any connection between psychosocial stressors and headache flares. Most headache patients can benefit from basic stress-reduction techniques such as yoga and meditation. There is compelling evidence for the efficacy of biofeedback, relaxation techniques, and cognitive-behavior therapy for headache prophylaxis.
Headaches are not all that difficult to treat. The results of the above study are disappointing because advanced imaging studies (and other diagnostic tests) are contraindicated in the vast majority of patients with episodic and chronic headaches. Episodic and chronic headache are difficult because the etiology is usually unknown and the treatment is dispiritingly low tech for a patient population accustomed to seeing fancy drug ads and hearing about exciting technological breakthroughs on a regular basis. The key to treatment is for patients to accept responsibility for their condition and to take steps to manage the condition effectively. From a claims or an employee management perspective, knowing the evidence-based treatment guidelines for episodic and chronic headache will help keep a handle on what treatment is being proposed and authorized and will help ensure that doctor and patient alike are following the guidelines.
Christopher Tidball has a good piece at propertycasualty360.com on strategies to curb the rising cost of bodily injury claims. As Tidball notes, bodily injury claims continue to rise at rates faster than inflation. He focuses on taking proactive steps on the front end of claims to ensure that a complete investigation is performed so that damages do not get out of hand without the claims professional’s awareness. A few suggestions are particularly useful as these investigation techniques sometimes fall under the radar:
Perhaps the most useful suggestion is to pay exceptionally close attention to the actual medical bills. Specifically, Tidball notes that coding is frequently used to increase reimbursement. In a telling example of how coding can be manipulated to drive up costs,
Consider a basic lumber MRI with and without contrast. A provider may bill 72148 and 72149, which would be appropriate for these as individual diagnostic tests. However, when they are conducted together, the appropriate code should be 72158, which is the bundled code [and will result in a lower overall bill]. (Parenthetical and emphasis added).
In addition, Tidball reports that using fee schedules or benchmarks to evaluation medical bills will help to contain costs and keep bodily injury expenses reasonable and under control.
The article is short, but provides some useful strategies for controlling costs in bodily injury claims. As is the case with most claims management, the key is to get in front of the claim from the beginning. Conducting thorough background checks on all parties involved and carefully examining billing codes and reimbursement rates are some strategies that will help claims professionals get in front and stay in front.
A recent development finds an alternative to postoperative pain management in knee replacement surgery that appears to offer more effective pain relief and potentially speedier recovery. Researchers found that when they injected “a newer long-acting numbing medicine called liposomal bupivacaine into the tissue surrounding the knee during surgery…[p]atients had pain relief for up to two days after surgery and better knee function compared with the traditional method." One of the study’s authors noted that “many patients were able to walk comfortably within hours after surgery.”
It is estimated that more than half of American adults diagnosed with knee arthritis will have a knee replacement at some point. Given the prevalence of knee replacement surgery both in the general patient and worker’s compensation patient populations, any development that can improve pain relief and increase early knee function could have a profound impact. Prescription pain reliever abuse continues to vex society and intraoperative techniques that can reduce the need for postoperative narcotic pain relief can only help the problem. In addition, faster restoration of knee function has the potential to speed rehabilitation and end of healing. If this new technique fulfills its early promise, it could have a significant and positive effect on reducing costs and recovery time of knee replacements. In the worker’s compensation setting, this would be a welcome development.
Andreas Goebel, a lecturer in molecular and clinical pharmacology at the University of Liverpool, has an article at The Conversation about an exciting development in the understanding of how chronic pain works, which offers possible insight into treating Complex Regional Pain Syndrome (“CRPS”), among other chronic pain conditions. Historically, CRPS has been considered primarily a brain problem. The article points out that recent research suggests autoantibodies are implicated in CRPS by “binding to peripheral tissues, prompting sensory nerves to misfire.” The working theory is that trauma, even minor trauma, induces inflammation which causes the binding/misfiring sequence and this in turn causes the central nervous system to become “wound up.” Once the central nervous system is wound up, it malfunctions, causing the unusual and often intractable symptoms of CRPS. As Goebel reports, the discovery of autoantibodies’ role in pain development is important because “there are treatment methods … designed to reduce or remove antibodies,” which may well prove effective in treating CRPS, especially if treatment is initiated early in the progression of the disease. These findings could prove important as claims involving CRPS typically have high disability and medical expenses and are difficult to process and close in a timely manner. Any effective treatment options would have the potential to change CRPS claims processing radically for the better.
Cognitive psychology and behavioral economics have taught us that our unconscious biases matter. In numerous preceding posts, I have discussed the problems that these biases can cause in our decision-making process and have offered strategies to overcome many of those biases. One common factor in the discussion of biases has been the incredible strength and persistence of our beliefs, especially those that our unconscious biases shape. Previously I have discussed our biases and beliefs as negative cognitive tendencies to be overcome. Fortunately, our beliefs have a positive aspect as well.
One area in which our beliefs have a positive effect on our cognition involves how we think about willpower. Despite what can seem like a deluge of research arguing that we have less control over ourselves and our environment than we think, there is a significant body of research developing that demonstrates that our beliefs about willpower, regardless of the factual accuracy of the belief, can impact our ability to perform on cognitively demanding tasks that happen over time, such as learning new things. In short, the research demonstrates that if we believe that willpower is important, we perform better on tasks requiring us mentally focus over an extended period of time.
For example, Miller et al. conducted a study of students who were given a tasks requiring sustained engagement with “a strenuous mental task that taxes working memory.” One group was primed to believe that willpower was limited and easily depleted while the other was primed to believe that willpower was unlimited and not easily depleted. The authors found that students who were primed to believe that willpower was unlimited “increased in accuracy” of the second half of the test while students primed to believe that willpower was limited and easily depleted did not improve their performance over the second half of the test. As a result, the authors concluded that, “only participants in the non-limited willpower condition sustained learning for the entire duration of the task.” As they note, “this experiment suggests that people’s beliefs about the nature of willpower can also limit or facilitate the acquisition of a cognitive skill.”
These findings demonstrate that our beliefs can make a positive difference on performance. While I am personally given to skepticism, I recognize that how we approach problems is different than how we judge the information we receive. In the case of approaching tasks or problems at work that require sustained attention such as learning or problem-solving, it is important that we tell ourselves that willpower matters, that sustained engagement is energizing, and that difficult problems strengthen our focus. In short, we should be optimists when we need to get the job done.
Too often we associate health and well-being with physical, or bodily, health, forgetting that we are creatures of mind. In many ways our mental health and well-being are more important than our physical health. Not long ago we reported on research demonstrating that well-being was more important in predicting workplace absence than physical health. Now Employers Health, an Ohio-based employer coalition,has data demonstrating just how significant mental health and well-being is to the workplace: 2 in 5 U.S. worker’s report missing work due to depression. Each episode costs employers an average of 10 workdays due to depression. Medical researchers estimate that depression costs employers $100 billion annually, including $44 billion in lost productivity. This really is a staggering figure when one considers that the total costs to employers related to musculoskeletal disease has been estimated to be approximately $130 billion.
Of course the million, or in this case, billion dollar question is what, if anything, can employers do to lower the costs of employee depression? Most importantly, research “suggests every one dollar invested by employers in enhanced depression care yields approximately three dollars for the company in the form of productivity gains by employees.” Hence, employers will likely reap economic benefit from ensuring that employees have access to adequate mental health care and support. In addition, mental health diagnoses, including depression, continue to carry a stigma that makes it harder for many employees to admit when they are having a problem and to seek appropriate treatment, which in turn affects performance negatively and leads to workplace absences. Employers can, and many do, have proactive programs to ensure that employees are aware of the confidential support services available to them and that employees understand that there is no stigma attached to using such support services. Continuing to promote the psychological health of employees and to publicize the programs available to help employees maintain their psychological well-being can go a long way to reducing the stigma of mental health issues and reduce the associated costs for employers.
Yet another reason to quit smoking: smokers are three times more likely to suffer chronic back pain than non-smokers (subscription required), according to Northwestern University Feinberg Medical School researchers. Interestingly, the researchers found the link between smoking and increased back pain is in the brain and not the back. The lead author of the study noted that smoking “affects the way the brain responds to back pain and seems to make individuals less resilient to an episode of pain.” Researchers found that two areas of the brain are critical in to developing chronic pain (nucleus accumbens and medial prefrontal cortex, NAc-mPFC). As researchers reported, “That circuit was very strong and active in the brains of smokers … but we saw a dramatic drop in this circuit's activity in smokers who … quit smoking during the study, so when they stopped smoking, their vulnerably to chronic pain also decreased.”
Smoking is frequently a vexing component of claims involving back problems. We know smoking can predispose persons to back problems and significantly reduces the likelihood that back surgery will succeed. This study demonstrates that smoking also changes the way the brain behaves, which appears to make the physical problems worse. Claim handlers and medical professionals should exercise whatever power they have to convince persons with back problems or injuries to quit smoking immediately. While smoking is a personal choice, worker’s compensation premiums should not underwrite the costs of that choice when, for example, a minor back strain becomes chronic, intractable, and expensive to treat because of a person's decision to smoke.
Chronic and terminal pain cause myriad personal, interpersonal, and socioeconomic problems. In what can only be described as sadly ironic, the most effective pain relievers currently available, all of which are opioids, have side effects that can cause problems that are as bad as the pain the drugs are administered to control. The most troublesome and well-known side effects include altered mentation/sedation, physical dependence, respiratory depression, constipation, and androgen deficiency. For example, cancer pain can be managed effectively with powerful opioids, but at the expense of rendering the person suffering from the pain nearly comatose. In non-terminal, chronic pain patients, physical dependency can lead to job loss and ultimately death by respiratory failure from overdose.
Our current ability to manage chronic and terminal pain puts many sufferers in a catch 22: treat the pain but get the side effects, avoid the side effects but live with the pain. The ideal solution to the chronic and terminal pain conundrum would be to develop or discover methods to control pain that are as effective as opioids but without the systemic side effects. In short, new pain relief treatments should only target that which is generating the pain. Fortunately, a group from Flinders Medical Centre in South Australia is doing just that. Medical News Today reports that lead researcher, Associate Professor Nick Spencer, and his team have developed a technique to identify precisely which nerve endings detect painful stimuli. They then developed a method to inject a harmless virus into the site from which the pain originates that travels to the spinal cord and shuts off a channel to the affected nerve endings that is essential for pain perception. As Spencer noted, “shutting off the pain is not instant, it can take days to weeks, but the big advantage is that pain can be suppressed for long periods without the classic side effects of current pain therapies.”
The team’s current research focused on incurable pain located in the stomach and intestines, but Spencer believes the technique will have broader applications. This would be exciting news for everyone and would be especially welcome in the claim handling community as chronic pain cases are often vexing, expensive, and resource intensive. Any development that could eliminate or at least reduce the use of opioid pain medications in the chronic pain context would have a significant and positive effect on the management of claims involving chronic pain.
Medical News Today reports on an interesting development in treatment of noise-induced hearing loss. Researchers from the University of Michigan and Harvard Medical School used gene therapy to reverse partial hearing loss in mice. The mice’s genes were manipulated to increase production of a protein (NT3) necessary to keep the connection between the ear’s hair cells and the nerve cells that communicate with the brain “super-fast,” also called a “ribbon synapse.” Exposure to noise and normal aging can damage the ribbon synapse, leading to hearing loss. By increasing production of the protein NT3, researchers were able to repair damage to ribbon synapses and restore hearing.
This is exciting news for anyone handling worker’s compensation claims because hearing loss claims plague myriad employers. Researchers noted that rather than pursuing gene therapy in human subjects, the most likely way to increase production of NT3 in humans would be through the use of drugs, a number of which researchers have already identified as candidates. From a worker’s compensation perspective, the possibility of reversing hearing loss would represent a substantial development in what has previously been a permanent condition manageable only through the use of hearing aids. However, the use of pharmaceuticals to treat hearing loss would have costs. How substantial those would be is impossible to guess. Regardless, it is worth monitoring the research to see if the same finding can be reproduced in human subjects.
The Wisconsin Safety Council has an excellent piece on men's mental wellness. As the article points out, although suicide is the leading cause of death among men between the ages of 25 and 34, men's mental health is too infrequently discussed because of the stigma we attach to it. The focus of the piece is on mantherapy.org, a site devoted to helping men confront mental health issues and concerns using humor and a "man-centered" approach. Wellness is too often associated with physical health. The article and mantherapy.org remind us that being well requires both mental and physical wellness.
Cardiovascular disease kills almost 600,000 Americans annually. It also has a huge impact the American economy, costing $444 billion annually in healthcare services, medications, and lost productivity. Once cardiovascular disease sets in, management options can be limited and usually include long term medication management and often surgical intervention. However, the easiest and most cost-effective way to manage cardiovascular disease is to prevent it from occurring in the first place. We know that exercise, diet, and weight loss all help prevent cardiovascular disease. What is becoming more well-known is the profound effect that being sedentary has on cardiovascular health, even in persons who regularly exercise, eat well, and maintain a healthy weight. Being sedentary can precipitate cardiovascular disease and even counteract positive lifestyle changes that persons make in an effort to prevent cardiovascular disease.
Recent research reported on in this site demonstrated that sitting for long periods of time has significant, deleterious health consequences. Other research has found that simply standing for greater periods during the workday both counteracts the effects of sitting and has independent positive health effects. Now researchers have found that walking just 5 minutes per hour at an easy pace can eliminate the negative effects of sitting. In the study, reported in Medicine and Science in Sports & Exercise, participants sat for three hours without moving their legs. On another occasion, the same participants sat for 3 hours but walked for 5 minutes at the 30, 90, and 150 minute marks. In each session, researchers measured femoral artery function to gauge whether walking had any cardiovascular effects. Astonishingly, “the researchers found that, while sitting, the dilation and expansion of the participants' arteries were impaired by up to 50% after just the first hour.” Equally remarkable is the fact that no decline in arterial functioning was observed when the participants walked for 5 minutes every hour. The findings are significant because, as one researcher stated,
"There is plenty of epidemiological evidence linking sitting time to various chronic diseases and linking breaking sitting time to beneficial cardiovascular effects, but there is very little experimental evidence. We have shown that prolonged sitting impairs endothelial function, which is an early marker of cardiovascular disease, and that breaking sitting time prevents the decline in that function."
So what can employers and employee’s do? Perhaps walking for 5 minutes every hour is not entirely feasible for every workplace, but certainly standing as much as possible during the day will help. In addition, taking a short walk at least once an hour to get a drink of water (or something similar) and not immediately sitting afterwards would likely make a difference. And if incorporating standing and moving during the day seems like a burden to employers, they should keep in mind that cardiovascular health improves brain health which in turn improves productivity. In addition, employers should keep in mind the costs of being sedentary on cardiovascular health because, in our system of employer-provided healthcare, the employer bears most of them either directly or indirectly. Figuring out how to get employees moving for 5 minutes and hour seems to be a small cost in comparison.
Pain is a difficult and an amorphous concept. The most common understanding of pain is what we feel when our nociceptors are stimulated. A nociceptor is a receptor on a sensory nerve that responds to damaging or potentially damaging stimuli and sends a signal to the brain that is interpreted as pain. When a child falls down and is asked, “does it hurt?” they are referring to nociception. One of the problems we encounter in relation to pain is that not everything that we might classify or categorize as “pain” is wholly or even partially related to nociception. Grief, for example, can be painful but obviously does not implicate nociception, despite the fact that psychic pain can be described in somatic terms or be physically felt or manifested.
The problem with pain is that we have a medical model for addressing concerns related to the body that tends to subsume everything suboptimal as pathological. One of the tenets of the medical model is that a certain level of physical function is optimal and that everything that is not optimal is somehow pathological and amenable to cure. This idea ignores the reality of physical diversity and can turn normal human experience into a medical condition to be treated rather than a normal aspect of life to be lived through or with. The physical changes that occur with aging are a good example of how we medicalize normal human development and attempt to “cure” that which is not pathological. As a culture, we seem to have fallen into the trap of thinking that every medicalized problem has a cure, including the physical changes that occur with age. Hence, we pathologize normal aspects of growing old as “chronic” pain and treat them as if a cure were possible.
Human bodies have tissues that degrade over time; human bodies are also less resilient over time. This is not to say that age-related physical changes do not vary widely in their effects based on individual experience or that lifestyle has no effect on the changes, but rather is an observation that human bodies do not function as well in the 6th decade of life as they do in the 3rd decade of life, all things being equal. In short, we get old.
Getting old is a fact over which we have some influence. We can maintain a healthy weight, eat a diet rich in fiber and fruits and vegetables, maintain an active lifestyle, get adequate sleep, etc. These things will help us to avoid accelerating the aging process within our tissues. In addition, our genetic makeup plays a significant role in how our bodies’ age. Unfortunately, the influence we have does not stop aging or the physical effects of aging. No matter how healthy our weight or our diet or our lifestyle, collagen becomes less elastic, spinal discs desiccate, articular cartilage wears. In the claims world we often feel the effects of medicalizing age because claimants will try to link the normal effects of aging with a worker’s compensation claim or a personal injury claim. Unfortunately, the effects are often exceedingly expensive as such claimants seek seemingly unending treatment to cure the incurable: age. Both claimants and claims administrators would be better served if treating physicians identified age-related degenerative changes and gave patients options to help them cope with the changes better rather than promising panaceas (usually in the form of surgery) that do not help.
Most people who think of worker’s compensation fraud picture an employee faking an injury to collect disability benefits. Some people might also picture an unscrupulous doctor “working the system.” In truth, however, the biggest single fraud in the worker’s compensation system is employers misclassifying their employees. A recent grand jury report in New York City concluded that in the construction industry alone, misclassifying employees (usually as independent contractors) costs the state $500 million annually in lost premiums, cost-shifting to group health insurance, and in lost tax revenue. This is a staggering figure when one considers that the annual cost of the entire worker’s compensation system in New York State is $6 billion.
The reason that fraudulently classifying employees does not spring to mind when one thinks of worker’s compensation fraud is that it seems boring and blasé. When you see a video of an employee who claims to be totally incapacitated splitting and stacking logs for 2 hours, it makes your blood boil. Naturally, we want to punish the offender and see justice done. On the other hand, fraudulent classification consists of merely of misrepresenting how many persons are on the payroll and what those persons do. It is a wholly digital fraud, conducted at a keyboard or in a conversation with an insurance agent. Everything about it seems nondescript and ordinary. Unfortunately, nothing could be further from the truth.
Pain. Just writing it conjures up unpleasant memories of illness and injuries. And whether we like it or not, we all experience pain. In many cases, pain is present for a very good reason: it is the body’s way to tell the brain to stop, that something bad happened or is about to happen. Hence, it hurts when we touch a hot burner on the stove so we yank our hand back. A sprained ankle hurts when we put weight on it so we stay off it (or at least limp). Pain is, at least in part, a protective mechanism.
Pain can also be debilitating. When it is not nociceptive (i.e., when it is not caused by a pain-inducing stimulus as in the examples above), pain immobilizes us even though it often does not serve a protective function. This frequently has deleterious consequences for our health. We become sedentary. We gain weight. We become depressed. We lose confidence.
When it comes to pain, we typically are dealing with two related but different phenomena: threshold and tolerance. Threshold refers to the point at which a person feels pain. Different persons have different pain thresholds. Also, it appears that a person’s pain threshold appears not to change over time (though chronic narcotic usage can lower a person’s pain threshold). Tolerance refers to how much pain a person can handle. Common tolerance measurements would include things such as how much pain can a person tolerate before they seek medication, or how much pain can a person tolerate before they seek to remove the painful stimuli.
We know that pain which serves no nociceptive purpose often immobilizes us. But what if there was a way to make the pain more tolerable, to increase our ability to handle the pain and be more active? According to research (subscription required) reported on in the New York Times, there is something that can increase our tolerance of pain: exercise. Not a two billion dollar drug or expensive surgery, just good old-fashioned exercise. In the study, one group of healthy but sedentary individuals was placed on an exercise plan while the control group of healthy but sedentary individuals was not. The two groups were then subject to testing throughout the study that measured both pain threshold and tolerance. As Gretchen Reynolds notes, “volunteers in the exercise group displayed substantially greater ability to withstand pain.” Interestingly, the study found that the participants’ pain threshold did not change, only their tolerance did. As Matthew Jones, one of the researchers stated, “to me…the participants who exercised had become more stoical and perhaps did not find the pain as threatening after exercising, even though it still hurts as much…”
This could have important implications in the worker’s compensation and personal injury settings. Pain presents a particularly difficult conundrum in the medico-legal context because we are frequently dealing with persons who have (or allege) an injury overlaying a significant degenerative disease processes like osteoarthritis or degenerative disk disease that, to put it simply, hurts. In an effort to improve functionality, it seems like the goal of treatment is often to eliminate or reduce pain, which has predictably poor results in the context of a chronic, degenerative condition like degenerative arthritis. The Reynolds article and the study on which it is based suggest a different approach may be in order. Rather than telling patients that pain is bad and needs to be eliminated, perhaps patients need to be told that pain isn’t so bad and that they can take it. According to Mr. Jones, “the brain begins to accept that we are tougher than it had thought, and it allows us to continue longer although the pain itself has not lessened.”
This validates the advice we frequently see from independent medical experts who frequently note that patients suffering from progressively deteriorating degenerative conditions such as osteoarthritis need more activity not less and less treatment not more in order to maximize function and to learn how to live with the realities of a degenerative condition. It will be a positive development if the study’s results can be replicated and exercise can become a standard, first line treatment for conditions causing chronic pain. Instead of downward spirals into depression and dependence, perhaps we will see more patients take control and increase their independence and engagement. This alone would have an enormously positive impact on worker’s compensation and personal injury claims.
We have previously reported on a study that found sitting less is independently "associated with excellent health and excellent quality of life." Apparently sitting is not just good for the body, but it is also good for the mind according to a study published in Social Psychological and Personality Science. In the study, researchers from the Washington University’s Olin Business School found that standing during business meetings led to greater collaboration and more openness to the ideas of others among participants. The report notes, “in addition to the physiological benefits of non-sedentary work designs, getting people out of their chairs at work may increase their capacity for collaborative knowledge work.” According to the authors, the reasons for the findings are two-fold: increased arousal of the sympathetic nervous system (which prepares a person to act on her environment) and reduction in territoriality.
The authors acknowledge that there are limitations to the study in that the findings have not been replicated and the meeting length in the study was limited to 30 minutes (which represents the average meeting length for 75% of organizations). Nevertheless, one of the lead authors, Andrew Knight, PhD, assistant professor of organizational behavior at Olin Business School, recommends that, “organizations should design office spaces that facilitate nonsedentary work.” In addition to fighting the negative health effects of being sedentary, “Removing chairs and adding whiteboards are low-cost options that encourage brainstorming and collaboration.” In a knowledge economy, any move to encourage brainstorming and collaboration should provide tangible benefits to an organization’s bottom line. To the extent that a minor tweak to the working environment can also decrease the amount of time workers spend sitting is a double bonus.
The trend in medical research suggests that modifying work spaces to limit the amount of time we spend sitting can have significant effects on the physical health of workers. It only makes sense that the same effects would translate to workers’ cognitive health and abilities. From a claims perspective, these findings represent an opportunity to work with employers to encourage workplace designs that foster both physical health and mental acuity (and hopefully fewer claims).
Medical News Today reports on a study published in the Journal of Bone and Joint Surgery (subscription required) which found that patients whose opioid use was increasing prior to spine surgery had worse outcomes than those whose opioid use was not. As Medical News Today notes, studies have shown that opioid use prior to spine surgery frequently leads to worse outcomes, but "the studies did not account for differences in opioid consumption among patients." In this new study, the authors concluded that, "increased preoperative opioid use was a significant predictor of worse health outcomes at 3 and 12 months following surgical treatment..." While this news is not particularly surprising to those in the medico-legal world, it does offer an opportunity to ask IME physicians a targeted question about the appropriateness of spine surgery in claimants with a demonstrated history of opioid dose escalation which should ensure that the physician's opinion explicitly relies on evidence-based medicine and hence is more credible.
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.”
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.
Medical News Today reports on a recent finding from Johns Hopkins that most spine surgeons do not follow recommendations for presurgical screening for depression and anxiety. This is significant because depression and anxiety are known to increase recovery times and reduce the likelihood of a successful outcome. According to one researcher quoted in the Medical News Today article,
"Our survey results show that surgeons and patients still have a long way to go in recognizing and appreciating how much psychological factors and mental health can impact the success of their back surgeries," says health services researcher and senior study investigator Richard Skolasky, Sc.D. "It may be necessary to delay surgery in order to first treat a patient's depression or anxiety to minimize the likelihood of prolonged recuperation after their operation.
Interestingly, the study found that surgeons in private practice and at community hospitals were more likely to provide presurgical screening than were surgeons affiliated with university hospitals. In addition, surgeons with more than 15 years of practice and those performing 200+ spinal surgeries per year were more likely to provide screening.
Considering the enormous expense of spine surgery, it would seem wise for claims handlers to exert whatever influence or control available to ensure that claimants receive proper presurgical psychological screening before undergoing recommended spine surgery. This also seems to be an area in which the insurance industry (including group health carriers) could and should exert its influence to make presurgical psychological screening mandatory in spine surgery cases.
Many of us are in the business, directly or indirectly, of employee health and well-being. From a purely economic standpoint, employee health and well-being is a significant cost driver in any business. In the medico-legal world we are often at the intersection of disease status/health and employment. Historically, businesses have analyzed health and injury claims made to assess employee health, which was then used as a predictor of worker productivity.
Claims made is an easy but de facto method of measuring employee health. In addition, claims made do not capture other stressors that may impact productivity such as financial problems, family strife, etc. Claims made also fail to capture disease status/health that could result in claims made but are, for myriad reasons, not. For example, an employee with a chronic health condition may be on her spouses insurance and hence have claims that would otherwise be made but instead go unreported. Also, an employer with poor or no insurance is likely to have a claims history that does not accurately reflect the health status of its employees and how this impacts productivity.
Recent research suggests that employee well-being is a more accurate and dynamic metric for predicting employee productivity. In a compelling article, “Comparing the Contributions of Well-Being and Disease Status to Employee Productivity,” Gandy et al. found that “physical health is not sufficient to represent the vicissitudes of productivity in the modern workplace, but that the more global measure of individual well-being has a more important role in explaining productivity variance among workers.” The report specifically concluded that individual well-being status was “more predictive [of on-the-job productivity] compared to other factors, including disease status.” The study reported that well-being status was more predictive than disease status even among those with a positive disease status (diabetes, in this case). In other words, a worker with diabetes but with a positive well-being score was likely to be more productive than a healthy worker with a lower well-being score.
Gandy et al.’s findings dovetail with the general attitude shifts that have swept across the business world which has caused businesses to view employees as dynamic parts of and integral to corporate success. As Gandy et al. note, “In the new globally competitive marketplace, human capital has become the competitive advantage that employers can no longer afford to take for granted.” This paradigm shift has been borne out in the marketplace. For example, “A large international survey by the World Economic Forum found that organizations viewed as actively promoting health and well-being were at least 2.5 times more likely to be rated a best performer and to encourage creativity and 4 times less likely to lose talent.” One reason for the survey’s salience is “because well-being is many times a cause of other valued outcomes, such as worker productivity and rewarding relationships.”
This disconnect between health and well-being frequently plagues worker’s compensation claims. Surely we have all been dogged by the employee whose behavior seems considerably more impaired than the objective physical findings suggest. Frequently we look to issues like symptom magnification, malingering, or secondary gain to explain this perplexing behavior. Perhaps, we should instead be asking targeted questions to get at the person’s overall well-being. If the root cause of the disconnect between behavior and objective physical findings can be identified, at a minimum the behavior will be less perplexing and it may offer the opportunity to solve an otherwise vexing claim.
Patients often confuse positive findings on diagnostic imaging studies and what the findings mean for their personal health. For example, many studies demonstrate that asymptomatic persons who undergo MRI scans of their shoulder, knee, neck, or back frequently demonstrate positive findings, especially in persons over 40. In the case of a shoulder this may be in the form of shoulder impingement or rotator cuff pathology. A knee scan may demonstrate a torn meniscus. A neck or back scan may show a herniated disk. The question for the healthcare market generally is whether positive findings in asymptomatic individuals lead to increased healthcare costs.
Unfortunately but not surprisingly, much research finds that positive findings on diagnostic imaging scans of asymptomatic persons lead to increased medical interventions and costs. This is particularly problematic in the context of back and neck pain. According to the Journal of the American Board of Family Medicine, spine surgery rates are highest where spine imaging rates are highest. www.jabfm.org/content/22/1/62.full.pdf. As the authors note
One problem with inappropriate imaging is that it may result in findings that are irrelevant but alarming. Positive findings, such as herniated disks, are common in asymptomatic people. In a randomized trial there was a trend toward more surgery and higher costs among patients receiving early spinal MRI than those receiving plain films, but no better clinical outcomes.
Another study (subscription required) compared early MRI use versus no MRI use in low back pain patients and found significantly higher costs among those receiving early MRIs. “The early-MRI groups had similar outcomes regardless of radiculopathy status: much lower rates of going off disability and, on average, $12,948 to $13,816 higher medical costs than the no-MRI groups.” As a result of studies such as these that demonstrate increased interventions and costs following positive findings on diagnostic imaging, the American College of Physicians and the American Pain Society “recommend against routine imaging in patients with nonspecific back pain …”
In addition to the costs associated with a positive finding on MRI in an asymptomatic person, the actual cost of the MRI may itself be unnecessary. A study published in the American Journal of Sports Medicine (subscription required) compared the effectiveness of standard clinical examinations versus MRI scans for various conditions. Remarkably, the clinical examination outperformed the MRI in diagnosing ACL pathology, meniscal pathology, and articular cartilage pathology (osteoarthritis). With respect to diagnosing articular cartilage pathology, clinical assessment was 100% sensitive while MRI was only 33% sensitive. This study seems to suggest that MRI would not even be necessary for knee pain without a correspondingly positive clinical finding.
A large part of the problem may be due to a misunderstanding of pain and an overconfidence in the abilities of medicine to manage it. Most people who suffer from chronic or recurrent pain assume that if a specific cause of the pain can be identified and once identified the specific cause can be ‘fixed,’ which will remove the pain. Unfortunately, chronic or recurrent conditions often do not work this way. For example, degenerative arthritis is not susceptible to easy fixes and requires a strategy of management and tolerance rather than futile and expensive searches for cures. As the JABFM article points out, “there are no ‘magic bullets’ for chronic back pain, and expecting a cure from a drug, injection, or operation is generally wishful thinking.”
The fact of life is that there are often no panaceas for age-, genetic-, or disease-related degenerative conditions. “Patients need realistic expectations despite product marketing, media reports, and medical rhetoric that promise a pain-free life.” It is hard to keep expectations realistic when being besieged by marketing, media reports, and medical rhetoric. Our desire for efficiency, to find the fastest, easiest solution to any problem, further complicates the ability to maintain realistic expectations. Not only are we inundated with messages that tell us the answer to our problem is easy, we are also biologically programmed to seek the easiest solution. This is most unfortunate because with chronic conditions like joint pain or back pain, the most effective treatment is usually one that requires lifestyle changes, which indubitably is not the easiest solution. Hence, losing weight, increasing activity, pursuing a targeted home exercise program, and psychologically conditioning oneself to deal with persistent pain will bring the most relief but is probably the last option most persons will want to pursue.
The medicolegal world often confronts the difficulty of imaging studies creating problems where none previously existed. This can be devastating in the context of chronic pain because, as noted above, increased imaging tends to lead to increased surgical intervention. And if the imaging study finds an asymptomatic lesion, operating on an asymptomatic lesion or condition will not fix the chronic pain. It is important that we in the medicolegal world ask healthcare professionals to follow evidence-based standards for performing imaging studies in the context of musculoskeletal complaints. If imaging studies are not indicated, they should not be performed for the simple reason that the likelihood of an asymptomatic lesion or pathology being discovered is substantial, which is likely to merely induce the patient to fixate on the lesion or pathology as causative of his or her problem. This fixation often results in increased medical expenses, unnecessary interventions, and increased disability. To the extent that medicolegal professionals can require treating physicians follow evidence-based treatment guidelines, they should. One mechanism for doing this is through the IME. To be most effective in this regard, it may be advisable to ask the IME physician a specific question related to what evidence-based treatment guidelines apply and should be followed.
Stratified or targeted care of back pain implemented by family doctors leads to 'significant' improvements for patients and a 50% reduction in work absence - without an increase in healthcare costs...
To accomplish the targeted care, general practitioners participating in the study gave patients a 9 part questionnaire to evaluate the severity of their back problems. Patients were then placed low risk, medium risk, and high risk categories, with treatment individualized based on the level of risk. Importantly, the low risk patients were not given intensive treatment but were simply reassured about their back pain and given strategies for managing it. Medium and high risk patients received "more intensive treatments led by [physical therapists]."
Prior research found that targeted treatment of back pain was effective, but this is the first evidence that targeted care is effective at the family practice level of care. Medical News Today quotes Professor Alan Silman, medical director of Arthritis Research UK:
This exciting research shows that stratified or targeted approach to managing back pain in primary care is effective, and challenges the 'one-size fits all' strategy that is currently recommended by national guidelines in which everyone with nonspecific back is offered the same treatment, irrespective of their risk of persistent problems.
Critically, the research found that the targeted approach to back pain does not increase costs. Whether the results can be duplicated remains to be seen, but the study offers a promising method for early, cost-effective intervention in persons suffering from back pain. The fact that the protocol resulted in a 50% reduction in workplace absence is remarkable and reason enough to attempt to replicate the findings so they can be implemented as standard care in general medical practices. Professor Silman put it to Medical News Today best:
Back pain is one of the leading causes of work place absence, and to be able to reduce this burden on society by getting more people back to work, as well as giving benefit to individuals is a fantastic outcome.
A University of Minnesota Carlson School of Management professor recently published a study on PLOS ONE that concluded that working while on a treadmill boosts productivity. Yes, you read that right, working while on a treadmill. The lead author, Professor Avner Ben-Ner anticipated that the findings would be objected to because of the cost of retrofitting or building a workspace with a treadmill:
It's a health-improving option that costs very little. I think there will be an increasing number of employers who will invest $1,000 or $2,000 in outfitting a persons' workstation… The employer benefits from the employee being active and healthy and more smart [sic] because more blood is flowing to the brain.
While it is hard not to look at this study without tongue firmly planted in cheek, the study noted that the participants were walking rather slowly while working and that there was an adjustment period during which productivity declined. The obvious side benefit of working on a treadmill is that it reduces the deleterious effects of being sedentary while on the job which certainly could result in substantial cost-savings to employers. Regardless, I personally look forward to my office space resembling this:
An Australian study published in JAMA Psychiatry (subscription required) found that "compensation claimants who have stressful claims recover more slowly than those who have less stressful experiences." This probably comes as no surprise to those involved in worker's compensation and liability claims. Interestingly though, the lead author's take was unexpected. “Reducing the stress claimants experience in claims processes has the potential to help to improve their recovery, and result in better outcomes,” said Dr. Genevieve Grant. The question for those involved in worker's compensation and personal injury claims is how to balance the benefits of streamlining claims (and hence reducing stress and costs) with the obligation to accept only legitimate claims. While there is no easy answer to this problem, the results of the Australian study, if replicated, will at least add objective evidence to the calculation. And objective decision-making is always better than the alternative.
Researchers at the University Of Texas Health Sciences Center at Houston, Rice University, and Shriners Hospital for Children-Houston recently published findings in the Journal of Bone and Joint Surgery (subscription required) regarding use of antibiotic-containing microspheres that could lead to their use in joint replacement surgeries. Researchers found that antibiotic-containing microspheres could significantly reduce the rate of infection in joint replacement surgery:
Porous metal implants that were coated with the microspheres prevented infection in 100 percent of the 11 specimens. In the tissue and bone surrounding implants that were not coated with the antibiotic delivery system, infection occurred at a rate of 64 percent. (Emphasis added).
According to a press release announcing the findings, the infection rate in joint replacement surgery is between 1% and 3%. While this is a low figure, one million persons per year undergo hip and knee replacements alone. This means that between 10,000 and 30,000 patients develop an infection after joint replacement surgery. As anyone who has been involved with a claim in which a joint replacement became infected knows, the costs of infection can be staggering. Often the original prosthesis will have to be removed to treat the infection. Sometimes patients end up effectively undergoing three joint replacements because an antibiotic-impregnated temporary prosthesis is used to treat the infection, which will then be taken out when the infection is cleared and replaced with a second permanent prosthesis. The lead researcher, Catherine Ambrose, Ph.D., noted:
[m]ade of biodegradable polymers, the antibiotics are gradually released over a period of weeks and eventually the microspheres dissolve, allowing sufficient time to prevent or treat an infection while reducing the likelihood of additional surgeries.
Better preventing and controlling infections in joint replacement surgeries would greatly decrease both costs and human suffering.The use of microspheres is exciting for reasons other than simply reducing the rate of infection. When persons develop an infection after a joint replacement, they are typically given systemic antibiotics. Microspheres offer a significant advantage when it comes to side effects because they are administered directly at the surgical site. According Ambrose, "[t]he microspheres could be administered directly at the surgical site, eliminating the need for systemic antibiotics that impact the entire body." Systemic antibiotics are hard on the body. They often cause gastrointestinal problems (and in extreme cases can lead to the development of infection with clostridium difficile, or c diff). Systemic antibiotics can also cause fever, rash, and potentially more extreme, though rare, side effects.It will be interesting to follow the use of antibiotic-containing microspheres in joint replacement surgery. If they prove as effective in practice as they have in the preliminary, preclinical trial, they will eliminate much suffering while reducing costs and improving outcomes in joint replacement surgeries.
Wouldn't it be nice if there was something we could do to improve our health that does not require leaving the office or really moving at all? Turns out there is: standing. A study published in the journal BMC Public Health found that sitting less is independently "associated with excellent health and excellent quality of life." While the study found that physical activity had a stronger effect on health and quality of life, simply sitting less played an important role as well. As the authors put it:
High volumes of time spent sitting are associated with an increased risk of all-cause mortality, cardiovascular disease mortality, type 2 diabetes mellitus, and other diseases or conditions when adjusting for participation in moderate-to-vigorous intensity physical activity. Therefore, insufficient moderate-to-vigorous physical activity and sitting time may be distinct influences on poor health.
Of importance to those of us dealing with disability in the medicolegal context is the authors' hypothesis that prolonged sitting leads to a slippery slope of disabling conditions.
Spending long periods in occupational sitting is associated with overall fatigue, musculoskeletal pain, and poor health in data from interviews with office workers. In the ergonomics literature, sitting is linked to one of the most prevalent chronic conditions, low back pain, frequently associated with disability. Thus, prolonged bouts of sitting daily may potentially feature prominently in a downward spiral of decreased mobility, physical function, physical fitness, engagement with life, physical activity, and eventually greater risk of chronic disease...
The authors note that this is a working hypothesis and that more work is needed to determine the precise sequence of events in this downward spiral. Nevertheless, it seems clear that excessive sitting plays a discernable role in poor health which increases the likelihood developing and the severity of disabling conditions such as chronic low back pain. This is useful information for employers who may wish to implement work space modifications that would allow employees to stand while working. In addition, the amount of sedentary time in a worker's shift could become a useful component of physical job demand analyses, reflecting a risk factor that has hitherto not often been considered.Medical News Today also reported on the study and raised some interesting aspects of the study and its implications. The article notes that breaking up our sedentary time changes our metabolism:
Sitting for a long time means there is little muscular contraction going on. This shuts down a molecule called lipoprotein lipase, or LPL, that helps take in fat and use it for energy.
As Sara Rozenkranz, one of the study's authors, explains to Medical News Today:
We're basically telling our bodies to shut down the processes that help to stimulate metabolism throughout the day and that is not good. Just by breaking up your sedentary time, we can actually upregulate that process in the body.
In addition, the article suggests that if work spaces are modified to allow more standing the health benefits would be significant. For example, there is evidence that increasing standing time by three hours per day without doing more causes the body to burn and additional 144 calories per day. This is "equivalent to shedding 8 pounds of human fat over a year." Good news for anyone who would like to lose some weight but has not interest in going to the gym. It may be better news for employers who can take a small step toward a healthier workforce and the cost and efficiency benefits that a healthier workforce brings.
Medical News Today reports on an article in Pscyhological Science (subscription required) that found how we practice new tasks is more important than the frequency with which we practice new tasks to master them. Specifically, researchers found that persons who took risks or took more time between practices mastered a new video game faster than their peers who were more conservative and frequent in their approach to practice. The researchers concluded that, "individuals who were able to learn faster had spaced out their practices or registered fluctuating results during early game performances, indicating that these participants were analyzing how the game works, leading them to perform better." Tom Stafford, one of the authors, stated "inconsistency doesn't necessarily reflect flakiness, it reflects a willingness to explore the parameters of the game… [B]eing unafraid to fail early on, you gain the knowledge needed to support superior performance later on."The findings may prove important in developing training and education strategies in multiple settings, including the workplace. According to Stafford:
If we can work out how to learn more efficiently we can learn more things, or the same things in less time. In an economy where we're all working for longer and longer, the ability to learn across the lifespan is increasingly important… This kind of data affords us to look in an unprecedented way at the shape of the learning curve, allowing us to explore how the way we practice helps or hinders learning.
This should give anyone who is an educator, whether in a school, the office, on the athletic field, etc., pause to consider how to foster creative risk-taking. Novel approaches to problems should be embraced rather than criticized when the approach is creative and well-thought out as it appears that the seeds of mastery are sown in the fields of creative failure.
With enough time, anything would be possible. We could solve every problem. No deadline would be impossible to meet. No obligation would get neglected.The reality is that time is often at a premium. This is particularly true at certain times: when a deadline is looming, when you return to the office after time away, when your workload increases unexpectedly, etc. Everyone struggles to varying degrees when time is scarce. What most people don't know is that the scarcity of time actually affects how our brain performs.In an influential Science Magazine article about scarcity, authors Anuj Shah, Sendhil Mullainthan, and Eldar Shafir note that "the busy (facing time scarcity) respond to deadlines with greater focus on the task at hand. Across many contexts, we see a similar psychology. People focus on problems where scarcity is most salient." As a result, busy persons tend to "borrow" time by requesting extensions to assuage the effects of time scarcity. Unfortunately, this frequently leads busy person to "neglect important tasks that seem less pressing." In psychological terms, "cognitive load arises because people are more engaged with problems where scarcity is salient. This consumes attentional resources and leaves less for elsewhere." Which has the perverse effect of causing persons "to use their resources less efficiently or make riskier … decisions." Thus, exceedingly busy persons are prone to triage their workload inefficiently, yielding a mixed bag of results in which some tasks are completed with focus and attention while others slide into neglect and often have to be completed frenetically at the last minute (if they are completed on time at all).So what is the solution to scarcity of time? One key is to better manage our mental bandwidth. The idea being that we only have so much brainpower and pressing matters can take over all of our mental attention. We can "put in place systems that minimize the temptations and costs that can come with [reduced mental bandwidth]." This is why, "setting long deadlines … is 'a recipe for trouble" and setting "shorter deadlines or a series of deadlines can make the best use of the brain's inherent deficiencies." Strategies that limit the amount of mental attention being devoted to a single task will have the effect of allowing for mental attention to be devoted to numerous smaller tasks, reducing the risk that important tasks will be neglected.Your IME vendor should help you increase your mental bandwidth by taking over the job of keeping you informed, responding to your questions promptly, and meeting your IME deadlines. While no one has enough time, at Medical Systems we help you get some back.
Although this report has been all over the news for the last few days, it bears repeating. In Finland a group of 146 candidates for partial arthroscopic meniscectomy agreed to participate in a trial in which half would receive a meniscectomy and half would receive sham surgery, in which arthroscopic portals would be incised but no procedure performed. The candidates all had degenerative meniscus tears and no evidence of osteoarthritis. The study, which was published in the New England Journal of Medicine, found that,
In this trial involving patients without knee osteoarthritis but with symptoms of a degenerative medial meniscus tear, the outcomes after arthroscopic partial meniscectomy were no better than those after a sham surgical procedure.
Although the study did not determine who might actually benefit from meniscectomy, it "included patients with mechanical symptoms such as catching or locking of the knee," according to a physician that NPR interviewed regarding the results. As The Wall Street Journal noted, the study estimated that the annual cost of arthroscopic meniscectomy in the U.S. is $4 Billion.While the study size is small, "[t]he implications are fairly profound," according to Jeffrey Katz, a professor of medicine at Brigham and Women's Hospital in Boston who wasn't involved in the Finnish study. It will be interesting to see how the study affects worker's compensation claims as work-related knee injuries in which a meniscus tear is alleged are relatively common. One of the authors of the study was not optimistic that it would change clinical practice, noting that a prior study which found physical therapy was as effective as surgery for patients with osteoarthritis and a meniscus tear did not. Regardless, I expect that the best medical experts will raise this issue when addressing the reasonableness of treatment in the context of meniscus tears, which should give additional weight to their opinions.
One of the trickiest areas for employers to negotiate is the intersection of worker's compensation and disability laws. Frequently, issues under a state worker's compensation act, the Americans with Disabilities Act ("ADA"), state fair employment laws, and family and medical leave laws overlap. Unfortunately, there is no specific guide for how to navigate the laws when they overlap. Employers are left on their own to wade through the morass.One area of overlap that employers can get a leg up on is using a worker's compensation IME to address fitness for duty issues. Under the ADA and most state fair employment compensation laws, employers are entitled to have an employee undergo a fitness for duty examination if the employer has a legitimate concern about the employee's ability to perform the job safely. In a straight fitness for duty situation, employers are only entitled to know if the employee can safely perform the job without restrictions and without risk to other employees.Under state worker's compensation laws, employers are entitled to a broader range of medical information regarding the employee making the worker's compensation claim. One reason is that the employee who makes worker's compensation claim waives the doctor-patient privilege. Hence, employers are entitled to obtain all medical records reasonably related to the injury alleged without the employee's authorization. In addition, employers, in most states, suspend benefits if an employee refuses to attend and IME. This provides a significant incentive for an injured worker to attend the IME.When obtaining an IME in the worker's compensation setting, employers may wish to consider asking questions targeted at the employee's ability to perform the job safely. Often the IME physician will have the benefit of records going back many years that relate to the employee's condition. In addition, employers frequently provide the IME physician with a detailed job description to be reviewed as part of the IME process. This puts the IME physician in an excellent position to judge whether the employee can safely return to employment.Not every IME will lend itself to a fitness for duty evaluation. In some cases worker's compensation and disability laws do not overlap. Sometimes there will be no imminent return to work so a fitness for duty examination would be premature. Nevertheless, in the right case employers can use worker's compensation IME's to their advantage by having the expert address the injured worker's fitness for duty. Not only will it kill two birds with one stone, it will have the added benefit of ensuring that the worker's compensation and fitness for duty opinions are consistent.
The Trust for America's Health published a comprehensive report addressing strategies to curb the prescription drug epidemic in the United States. The report is summarized on the Trust's website. Key findings include:
Improve, modernize and fully-fund Prescription Drug Monitoring Programs, so they are real-time, interstate and incorporated into Electronic Health Records, to quickly identify patients in need of treatment and connect them with appropriate care and identify doctor shoppers and problem prescribers;
This recommendation is particularly relevant in the medico-legal setting. Unfortunately, this recommendation focuses exclusivelyon the medical community. Oftentimes the doctors have no idea that their patient is doctor shopping or engaging in other drug-seeking behavior, while the claims professional handling the underlying legal claim is acutely aware of the problem (and paying for it). Since the worker's compensation arena sees a disproportionate share of prescription drug misuse and abuse, it would make sense to establish a reporting partnership between the medical and legal communities. Claims professionals are the most likely to discover doctor shopping and excessive emergency room visits for pain complaints. There should be a mechanism that allows them to report problems to the medical community so physicians and pharmacists can better step in to stop prescription drug misuse and abuse.The Trust for America's Health is a credible non-profit, non-partisan organization comprised of public health professionals from around the country. In addition to the recommendation for better monitoring of drug use, doctor shopping, and problem prescribers, the report also has a number of common sense recommendations to help curb the prescription drug abuse epidemic. I have left them out of this post because the other recommendations are not directly relevant to worker's compensation and liability claims. Nevertheless, the report and summary are worth reading to get a better understanding of the epidemic and what can be done to curb it.
Christopher Tidball has a quality article on choosing medical bill review vendors at propertycasualty360.com. While not directly related to the IME world, Tidball makes a number of good points. Salient to all aspects of the claims process, he notes that cost should be judged as a net performance metric rather than a simple quote in a bidding process. In his words, "[t]he most important aspect of pricing is not what the vendor is quoting, but what the carrier will actually pay." The discrepancy between these two "prices" can be quite large. In choosing an IME vendor, the same is true. "Price" should be judged by the net cost to the bottom line, including the level of service received, and not just by the upfront quote.
Researchers recently discovered that persons suffering from lumbago (low back pain) alter their movements because they fear possible back pain. Researchers believe that this behavior can contribute to acute low back pain becoming chronic. Essentially, "[t]hey are trapped within a vicious circle: fearing the suffering linked to movement, they lose their mobility, and the pain persists." Most interesting was the fact that patients in the study felt less pain when researchers told them they were going to feel less pain even when the pain stimulus being applied was higher. As the author of the article points out, "it seems that the first pain-reliever to be administered to a patient suffering from acute lumbago should be a generous dose of reassuring words, in order to prevent the illness from becoming chronic."This is potentially an important development for the medico-legal world because the costs of surgical intervention on worker's compensation and personal injury claims are staggering and any method for helping patients manage acute low back pain to prevent it from becoming chronic would represent a huge cost savings.
Risk Management Magazine has a quality piece regarding national trends in worker's compensation. The primary focus of the article is the impact that the Affordable Care Act/Obamacare ("ACA") will have on worker's compensation costs. The author concludes that the ACA will likely reduce worker's compensation costs for several reasons. First, removing lifetime caps on health insurance coverage will give less incentive for individuals and health care providers to push claims onto worker's compensation insurance because they will no longer have to avoid using up the lifetime maximum. Second, requiring coverage of individuals with preexisting conditions will likely keep some claims out of worker's compensation because individuals will not experience loss of coverage if an injury or condition relates to a preexisting condition. Third, the ACA will ensure that fewer people will lose coverage during the pendency of worker's compensation claims which will increase the likelihood that comorbid conditions will be effectively managed. According to the author, one of the cost drivers of worker's compensation is the increased healing periods that result when workers lose primary coverage during worker's compensation claims and stop managing comorbid conditions.The article also poses a question regarding whether the trend to mediate worker's compensation claims has created an unrealistic expectation among claimants that every case will settle. The author notes that mediation can be a cost-effective means of resolving some worker's compensation claims but that not every claim should be seen as amenable to mediation. While this seems self-evident, it bears stating. The author points out that employers and carriers should be prepared to defend cases to hearing when appropriate rather than to mediate every case simply because on average mediation is more cost-effective. Again, this is self-evident, but good advice nonetheless.In general, the article is well-written and thoughtfully analyzes the impact of the ACA on worker's compensation claims. It will be interesting to see whether the authors predictions are borne out over time. In addition, the article succinctly captures the benefits and detriments of mediating worker's compensation claims and offers good advice for when to shift away from mediation.
In a rare development, two researchers from Belgium discovered a new knee ligament called the anterolateral ligament ('ALL'). The researchers began looking into the possibility of an undiscovered anatomical structure in the knee because of unusual symptoms that were reported after successful ACL repairs. Specifically, "some patients with ACL-repaired knees continue to experience so-called 'pivot shift', or episodes where the knee 'gives way' during activity." Oddly enough, a French surgeon had postulated the existence of an as yet undiscovered anterior knee ligament in 1879. Over 130 years later he was proven right. The Belgian researchers published their findings in The Journal of Anatomy.In the claims setting, this discovery may impact future treatment of ACL injuries, though the discovery is so new that the extent of its impact is not known.For more information on Medical Systems go to www.MedicalSystemsUSA.com