Surveillance can be a good way to move a case to closure. The success of the investigation depends on both the adjuster and the investigator’s ability to gather accurate and reliable information. Arm your investigator with as much information as you can provide. Here are some tips to assure effective surveillance:
The best way to obtain a good recorded statement is to have a predetermined process for planning and preparation of the interview. Here are some tips to conduct a thorough interview:
The success of the investigation depends on the adjuster’s ability to gather accurate and reliable information.
In order to resolve claims quickly and cost-effectively, it is necessary to recognize red flags, pre-existing conditions such as health concerns and degenerative issues at the onset. This allows you to determine what tools are necessary to move the claim to closure.
The single most important key factor in keeping claims moving forward is communication, with the claimant, insured, treating doctor(s), and if appropriate your defense attorney.
Lack of support is the most difficult and critical problem to address because it is often a major factor in an ALJ’s decision that an IME report was not credible. Unfortunately, not all doctors agree on what constitutes adequate support. Thus, the cover letter writer may receive an IME report and conclude that the expert did not support her answers sufficiently, but be faced with a headstrong expert who disagrees. Although difficult, this scenario can be overcome.
First, the IME vendor should work with the writer to explain to the expert the importance of citing relevant evidence, professional experience, and medical literature in the report. The IME vendor should be able to explain to the expert that a conclusory answer without any sort of explanation as to how and why the expert reached the conclusion will not pass muster with the “trier of fact” (ALJ). In truth, experts want to write effective, credible reports because they know that good reports generate more business opportunities. Thus, experts will often be receptive to requests to strengthen their conclusions if the evidence and literature supporting their opinion is obvious and available.
Second, the cover letter writer is typically the person who is most familiar with the claim being addressed, which puts the cover letter writer in the best position to point to the hard evidence and literature that supports the expert’s conclusions. While no IME vendor will tell an expert what to write or what evidence to use, the IME vendor should convey the writer’s concerns to the expert. This would include asking the expert to consider specific relevant evidence or literature in their answers. Ultimately what the cover letter writer and the expert consider to be important evidence may differ, but in cases where the expert’s answer is wholly unsupported they are likely to be receptive to requests to clarify or amplify if the cover letter writer can explain why the answer is problematic unless the expert provides additional support.
No IME vendor can guarantee a perfect report. However, we should expect responsive, consistent, and well-supported IME reports. In judging the report, we should not ask whether the report is favorable but instead whether the expert reached a reasonable and well-supported conclusion from the available evidence. If they did not, your IME vendor can and should work with you to repair deficiencies in the report. Ultimately, those requesting IME reports have the right to expect to receive a reasonable and credible report based on the evidence made available to the expert.
Do you have any ideas on how to strengthen the cover letter so these types of problems are minimized?
Inconsistent responses to your questions in IME reports can sometimes be tricky if the responses do not directly contradict one another. However, if an expert offers two opinions that directly contradict one another, you should expect your IME vendor’s quality assurance editors to catch the issue and resolve it before it gets to you. Occasionally, direct contradictions slip past even the most detail-oriented editors (usually due to report length). In such cases, the expert will sometimes correct direct contradictions in their review of the report. Direct contradictions usually result from the expert misspeaking while dictating the report and are easily fixed.
The harder inconsistency issues arise when the expert doesn’t directly contradict themselves, but provides more than one opinion on the same issue and the statements are ambiguous or vague. Often, the ambiguity or vagueness arises between statements in the general impression section of the report and the specific questions section. A somewhat frequent example is when the expert states in the general impression section that the examinee continues to suffer from subjective complaints that, in the absence of evidence to the contrary, relate to the injury or exposure in question. The expert then states the examinee sustained no permanency in answer to a specific question. The expert may see no inconsistency in these answers, but the cover letter writer undoubtedly will. In cases where the doctor is following the AMA Guides, this may not be an issue because the Guides explicitly allow for zero permanent impairment in cases where there is no objective evidence of injury and only subjective complaints. And usually this is what the expert means when stating subjective complaints relate to the accident or exposure but no permanency resulted.
In these more difficult cases, the IME vendor’s Quality Assurance editors should make every effort to pick up on such inconsistencies and go back to the expert to obtain an explanation of their position and provide clarity, but these are more difficult to catch than direct contradictions. In such cases, it is certainly fair to point out the ambiguity to the doctor and to ask for clarification on their opinion.
The expert in our example could clarify their opinion by stating something to the effect of, “While the examinee continues to register subjective complaints, there is no objective evidence of injury or impairment; hence, it is my opinion that the examinee has sustained no permanent impairment/partial disability as a result of the accident in question.”
Have you encountered these types of inconsistencies in IME reports and if so how did you resolve them?
Unresponsive reports are typically the easiest to resolve because most physicians will clarify answers that truly do not answer the question that has been asked. It can be more difficult if the question of responsiveness is one of degree rather than an either/or situation. In most cases, the best way to address responsiveness is to simply tell your IME vendor precisely what about the expert’s answer to a question is not response. This is especially crucial when the lack of responsiveness is not intuitive or obvious to a reader who is not intimately familiar with the claim or the evidence. For example, the case of a physician who is asked for a specific end of healing date and states that the claimant reached an end of healing but doesn’t state the date on which end of healing was reached is easy.
On the other hand, a case in which the expert is asked a general question about the type, frequency, and duration of future treatment needed in which the expert responds that the claimant will need ongoing treatment for up to six additional months may not be responsive in the cover letter writer’s view, but the unresponsiveness is not likely to be obvious to the IME vendor’s Quality Assurance editor. In this case, the most efficient way to resolve the issue is for the cover letter writer to state the problem with the answer as directly as possible, i.e. “We need to know whether the recommendation for a series of three lumbar epidural steroid injections, which the claimant has not yet undergone, are reasonable, necessary, and related to the injury.” In this example, the expert’s statement that ongoing treatment should be continued for six months is not wholly responsive because a new treatment modality has been proposed. Another way to address this situation would be to ask the expert a question targeted to the proposed treatment, i.e. “Dr. X has recommended the claimant undergo a series of three lumbar epidural steroid injections. We are interested in your opinion on whether the recommended series of three lumbar epidural steroid injections are reasonable, necessary, and related to the injury.”
What’s your strategy for fixing the unresponsive report?
IME Reports can be like the houses from the tale of the three little pigs. A house of straw may look good, but will not stand up to scrutiny. Conversely, a house of bricks, despite a sometimes staid appearance, will withstand even the most withering amounts of scrutiny. In determining whether the expert has constructed a house of straw or a house of bricks, the support the expert cites in reaching their conclusion is critical. For example, an expert that concludes a particular condition is degenerative rather than acute and is hence not related to the work injury or accident but does not explain why this is the case has given the reader a house of straw that will easily be blown down. Instead, the expert should explain why the evidence demonstrates that the condition is degenerative rather than acute.
Thus, in the case of a meniscus tear, the conclusion that the condition is not work-related will be more credible if the doctor explains that a complex tear is most likely to be degenerative because the tearing reflects multiple wear points occurring over a long period of time, that the mechanism of injury reflects a degenerative condition because the onset of pain was insidious and not following an acute twisting episode of the knee, and that the medical literature demonstrates that a significant portion of persons in the examinee’s age cohort who are asymptomatic have degenerative meniscus tears.
The same is true for MMI, work restrictions, extent of permanency, and the need for medical treatment: what evidence demonstrates that medical improvement stopped occurring at a specific point in time? What evidence demonstrates the need for work restrictions or lack thereof? What evidence demonstrates the extent of permanency or the need for ongoing treatment? The point being that a conclusion without support is just waiting for the big bad wolf (or one’s opponent – perhaps they are one and the same!) to blow the house down.
What is your technique to assure the experts’ opinions are evidence-based? Do you have any “battle” stories to share?
The context in which an IME report arises is important, but our main question will always be: “How do we determine if the report is good once we finally have it?” At the outset, it must be noted that whether the report is favorable or not is of course significant to the reader, but favorability in and of itself does not reflect the report’s quality. Put simply, reason is indifferent to results. If the report is well-reasoned and well-supported, regardless of the favorability of the opinion, it is a good report.
When evaluating an IME report, consistency matters. Inconsistent reports are not credible and they also make it difficult for the reader to figure out what, if anything, must be conceded on the claim. Opinions should be consistent throughout the report with respect to causation, end of healing/maximum medical improvement, relatedness of and necessity for treatment, and work restrictions, among other things. To maximize the likelihood of receiving a consistent report, the specific questions asked of the expert matter. A report is more likely to be consistent if each issue to be resolved is only asked about once. Asking about causation in more than one question risks getting inconsistent answers. Regardless though, one should expect to receive a report from an expert that is consistent with respect to all of the issues about which the expert is asked. Hence, the general discussion section should have the exact same end of healing date as the answer to the specific question about end of healing. Fortunately, inconsistency is easy to fix since it usually just involves the expert picking one of two positions and applying it uniformly.
Logic is important to IME reports. A report in which the expert’s conclusions do not flow from the evidence will not be deemed credible. It should also be noted that whether a conclusion flows logically from the evidence is not the same as the likelihood that the expert would come to that specific conclusion. A conclusion may flow logically from the evidence despite the reader’s opinion that the expert was more likely to reach a different conclusion. The reader should not be upset if the expert reaches a logically consistent and well-supported conclusion even if it is somewhat unexpected. A favorable conclusion that is not supported by the evidence makes a good result a bad one because the conclusion will not be credible.
In conclusion, consistency and logic are imperative to well-supported opinions that make for a credible IME report. The IME vendor can help in this regard by providing thorough reviews of reports and catching both the obvious and the obscure.
Do you have particular doctors that make problems for logic and consistency? What do you do to fix the problem?
Although there is no cure-all that can make every IME report perfect, some things do make a difference. For example, IME experts are more likely to give more weight to the history that is given closest in time to the injury. Hence, it is vital to take recorded statements as soon as possible after an injury is reported. IME experts are also more likely to be suspicious of an injury’s legitimacy if contradictory histories of injury are given. In addition, evidence of prior problems involving the same body part increases the likelihood that the expert will conclude that the examinee experienced a mere manifestation of a preexisting condition or a temporary aggravation. Diagnostic imaging studies often can be used to predict whether the expert will conclude that the condition is traumatic or preexisting and chronic.
One underappreciated factor in predicting the outcome of a report is mechanism of injury. Often how the examinee claims the injury happened is critically important. We can reliably predict that an orthopedist will find a meniscus tear to be non-industrial if the examinee does not report a twisting mechanism of injury. Also, in cases of significant acute injury and disability, a delay in treatment increases the likelihood that the expert will find that the injury did not occur as alleged and represents the mere manifestation of a preexisting degenerative condition. For example, an expert is more likely to conclude a massive rotator cuff tear has a non-industrial origin if the examinee claims a traumatic episode cause the injury but he nonetheless waited a week to report it because the expert is likely to conclude that a massive acute tear would be so painful and disabling that the examinee could not continue working and would have reported the injury immediately.
Mechanism of injury is important in occupational exposure claims as well. An accurate job description, job video, and physical demands analysis tailored to the examinee can go a long way toward predicting whether the expert will find the work exposure to be a cause of the condition. Finally, the examinee’s personality will have some bearing on the expert’s opinion. Experts tend to be less sympathetic toward hostile and unpleasant persons then friendly and straightforward persons.
What is your technique to substantiate mechanism of injury? Does it work and why?
Cognitive biases and personal judgment tends to cloud how we assess problems and outcomes. When evaluating a report, we should be aware of these biases so that we can avoid them and the distorted view they give us. Some common cognitive biases include:
Ambiguity– the tendency to avoid options for which missing information makes probability seem ‘unknown;’
Availability heuristic – overestimating the likelihood of events with greater availability in memory, i.e. events more noteworthy or nearer in time;
Anchoring– the tendency to rely too heavily on one piece of information when making decisions (usually the first information we receive);
Confirmation– the tendency to find, interpret, and look for evidence that confirms one’s preconceptions;
Bayesian conservatism – the tendency to revise one’s beliefs insufficiently when presented with new evidence;
Illusion of control – the tendency to overestimate one’s degree of influence over external events;
Sunk cost fallacy – justifying increased investment in a decision based on cumulative prior investment despite new information suggesting that the decision was probably wrong;
Outcome bias – the tendency to judge a decision based on its eventual outcome rather than on the quality of the decision at the time it was made, i.e. the pro athlete that doesn’t get cut because of a huge signing bonus or guaranteed contract long after it becomes obvious that his performance has deteriorated; and
Subjective validation – the tendency to perceive something as true if a subject’s belief demands it be true (“I think he’s a faker so the report is garbage if it doesn’t confirm my belief that he’s a faker”).
Being aware of and attempting to eliminate our innate biases will make us better judges of reports. For example, the cover letter writer may have had seven previous claims with the examinee all of which were suspicious. This will tend to cause the cover letter writer to be subject to the Anchoring Bias, seeking validation and making him prone to negatively judge any outcome that does not confirm his uncertainties. Failing to eliminate these biases can be damaging to the claim if the injury was witnessed, promptly reported, and is supported by adequate objective medical evidence. In such a case, an unbiased person would consider the conclusion that the examinee’s complaints are related to the work injury to be both reasonable and likely.
What bias are you most “guilty” of and why?
The expectations for an IME report should start with and be based on the objective evidence presented to the expert and the reasonable inferences that can be drawn from that evidence. Without an accurate accounting of the evidence, it is impossible to state with any degree of reliability if the expert’s conclusions are reasonable. This is equally true of favorable and unfavorable reports. For example, if we were unaware that the examinee had a non-industrial injury treated with a meniscectomy, then we would not have any reason to question the expert’s conclusion that the examinee’s total knee replacement related to his work as an electrician.
In any claim there are a limited number of reasonable conclusions that can be drawn from the available evidence. Knowing the claim in depth will ensure that the reader will be able to assess whether the expert’s opinion, favorable or not, is at least reasonable under the circumstances. We may not know exactly what the expert will say but we should be able to figure out the range of possible reasonable responses and how likely each reasonable response is.
To determine the range of conceivable responses, the reader should do his best to remove emotion from the analysis and refrain from making subjective credibility judgments. The first step is to set out the objective evidence. Once the assumptions are drawn out, the reader should analyze how well-supported each is. Then it can be determined how likely each conclusion is to be drawn among the competing inferences. For example, an expert is likely to find a rotator cuff tear to be work related in an examinee who is a painter and performs a significant amount of overhead work. However, if we also know that the examinee is a former college and minor league pitcher who stopped playing baseball near in time to his first medical treatment, we may conclude that it is at least as likely that the expert will attribute the rotator cuff tear to the examinee’s history of pitching instead of his work as a painter. The point is that the reader cannot fairly judge the expert’s opinion unless the reader considers the facts presented to the expert and the reasonable inferences the can be drawn therefrom.
Once the reader has engaged in this level of analysis, he should ask what, if any, additional evidence would make weak inferences strong. As in the example above, if the reader provides the expert evidence of minor league pitching activities (i.e., surveillance footage or witness statements) that would strengthen the likelihood of the expert concluding the pitching was at least in part contributable to the rotator cuff tear.
Conversely, he should consider what evidence, if discovered, would weaken strong inferences. Again as in the example above, if the examinee was a 57 year old who lost his balance while painting a ceiling and hung from scaffolding until rescued, this could have caused the torn rotator cuff.
Considering all possibilities ensures the reader will not be surprised if the value of the IME report changes over time. It also helps the reader to be responsive to new developments by requesting a supplemental or addendum report when necessary.
Do you have any tips or ideas on collecting evidence for the IME expert?
In the ancient world, epic poems started in medias res, in the middle of things. Although (most) IME reports are not larger-than-life in scope, they do share some characteristics with epic poems. Knowing these shared characteristics is useful to keep in mind when reading IME reports and forming opinions about them. Most noteworthy is the simple fact that IME reports start, like classic poems, in the middle of things. Ancient Greek and Roman authors and critics understood that most texts, even when grand in scope, arise in a specific context and consequently cannot be understood adequately unless the reader is familiar with the history leading up to the events the text describes or depicts. For example, Homer (an ancient Greek poet) would have expected his audience for the Iliad (a story about the Trojan War) to know the historical and mythological background of the Trojan War. As such, the Iliad would not have been judged in a vacuum, but would instead have been judged in a commonly understood historical-mythological context.
An IME report is, in this regard, no different from the Iliad. We cannot judge the value of a report without giving due consideration to the content of the historical facts on which the report rests and how effectively the report deals with them. The Iliad is nothing more than an impressively long, rather disjointed, and perplexing poem unless the reader grasps the history and myths that suffuse the poems and Homer’s treatment of historical and mythological events. Likewise, an IME report cannot be fairly judged unless the reader grasps the evidence that was available to the expert at the time she wrote the report.
How do you judge an IME report? What is your criteria for what constitutes a good IME report?
Cover letters vary in length and thoroughness from the prolix (40+ pages) to the terse (one sentence). The question is how much is enough? Without a doubt, the most important part of the cover letter is the specific questions asked. Beyond that, the amount of information to include is a matter of personal preference. At a minimum most physicians appreciate knowing who the writer represents and a short neutral summary of the claim. Most physicians do not require (and many will not read) lengthy summaries of the medical records because they do not want to be influenced by another’s interpretation of the records. That being said, many physicians will pay attention when the writer points out a few of the critical pieces of evidence or records. To ensure that the physician addresses anything the writer specifically points to, it is best to ask the physician to address the specific evidence or records in the specific questions section as well. Beyond this, how much or little to include is ultimately up to the writer.
In drafting the cover letter, it helps to remember that the letter is being sent to a medical expert and not a legal expert. Using legal jargon when lay terms are available has the potential to confuse the expert. In cases where legal jargon is necessary, the writer should consider defining the term for the expert to avoid confusion. For example, a worker’s compensation attorney will understand the phrase, “We were impleaded into the case by Respondent X,” while a physician probably will not. Hence, it would be useful to explain to the doctor, “which means that the other insurance company brought us into the case based on Dr. Y’s opinion.” Using simple and clear language and avoiding jargon will go a long way to ensuring that the expert will understand your cover letter and exactly what needs to be answered.
There is no magic bullet that will give us a perfect IME report. However, careful drafting of the cover letter can help ensure that the expert addresses all (and only) the relevant issues. A concise and clear cover letter will also help the expert better understand the claim and the salient evidence. Thus, the cover letter is an important tool that can help you get the best IME possible.
Share your cover letter tips with us.
When approaching the IME cover letter, do you use a standard battery of questions? If you do, you most likely want to ensure that the expert answers questions related to all aspects of a worker’s compensation claim. Making sure your questions cover such topics as history of injury, diagnosis, causation (direct; precipitation, aggravation, and acceleration; mere manifestation; and occupational exposure), healing period/maximum medical improvement, past treatment, future treatment, temporary work restrictions, permanent work restrictions, and permanent partial disability.
The advantage of asking a standard battery of questions for every case is that nothing will be forgotten or left out. A great approach for less experienced claims handlers. In addition, if the questions are phrased consistently with the legal standard the writer ensures the expert’s opinion will meet the appropriate legal standard for each question.
The detriment to this approach is that it relies on the expert to identify all critical evidence and records and cite them in their answers to the specific questions. This can be problematic when the writer considers evidence or records to be critical that the doctor does not. If there is an issue the writer wants the doctor to address, the only way to guarantee the doctor will address it is to specifically ask the doctor to address it in the specific interrogatives section and the standard battery of questions approach doesn’t allow for this type of customization.
Additionally, the practice of asking a set battery of questions can produce untoward results if the questions address issues that the injured worker himself has not raised. For example, an injured worker may claim that he suffered a traumatic injury to his knee in a specific work incident, but he also has engaged in frequent and repetitive squatting, kneeling, and crawling for the last 20 years of his employment. If the standard battery of questions is asked, including a question on whether the injured worker’s occupational exposure was a material contributory causative factor in the onset or progression of his knee condition, the expert may conclude that the specific incident did not cause the injured worker’s knee condition but may also conclude that the occupational exposure did. Hence, it is possible that asking the expert a question about an issue that has not been raised or is not yet ripe can result in creating a claim that was not there.
In summary, the standard battery of questions approach has the advantage of being thorough and preventing any issues from going unanswered. It is also a good way of ensuring an inexperienced claims handler covers all the issues at hand. However, it also has the potential to create claims where none existed. If using the “standard battery” approach, it is best to at least consider the relevant issues and decide if additional questions really need to be asked and answered.
If you use the “standard battery” approach to specific interrogative questions let us know what questions you routinely use and why. What kind of results do you get?
Tailoring questions to the individual issues of the injury claim is a popular approach among Worker’s Compensation attorneys (both defense and plaintiff). The advantage is having the doctor directly address only the issues at hand. This approach will often cite specific facts or records and ask the doctor to address how the facts or records affect the claim for injury or compensation. For example, the doctor may be asked whether the injured worker’s statement to an emergency room doctor that his back has been bothering him on-and-off for several months suggests that his current symptoms relate to a preexisting condition rather than to the specific industrial injury at issue.
The benefit of this approach is that the writer uses the question to ensure that the doctor addresses a critical piece of evidence in their answer. The writer cannot ensure that the physician will address a critical piece of evidence if the writer asks a generic question such as, “what is your opinion on whether the injured worker’s current condition relates to the industrial injury?” Using a tailored question is the most effective way to focus the physician’s attention on specific evidence or records that the writer knows are critical to the claim. It also ensures other issues that were previously irrelevant to the claim are not inadvertently brought out by the expert.
The detriment to this approach is that it can be difficult to ask a tailored question that is not leading. In Wisconsin worker’s compensation cases, attorneys have considerably more leeway on direct examination than they would be given in a civil, personal injury case; nevertheless, it is possible that a blatantly leading question could be deemed impermissible. Also, tailored questions can be seen as compromising the reviewing physician’s independence. The expert is being retained to issue an independent opinion and while it is true that the expert, especially in worker’s compensation, will be expected to answer specific questions related to the claim, it is also true that the ALJ will expect the expert to reach her own conclusion and not merely parrot a conclusion suggested in a question. In addition, the writer must be careful when drafting tailored questions that the questions are broad enough in their entirety to ensure that the expert addresses all of the relevant issues in the case.
In summary, the tailored question approach has the advantage of ensuring that the expert will addresses critical evidence or records in her report and not bring other unconnected issues into the scope of the evaluation. The writer who takes this approach should, however, take care to draft the questions so that they are not impermissibly leading and do not compromise the experts independence.
Do you have any advice for drafting questions? Or maybe a particular approach that has worked well for you?
The most common approach to cover letter questions in personal injury litigation is to completely avoid asking specific questions. The reason has to do with the nature of discoverable information in civil litigation. Since all communications between the attorney and the medical expert are discoverable, some attorneys prefer not to tip their hand to opposing counsel by asking questions that might reveal their strategy or approach to the case. In addition, the doctor is the retaining party’s witness so leading questions in a cover letter may be deemed impermissible. Hence, some attorneys will not risk asking a specific question that could be deemed leading and result in the doctor’s answer being stricken from the report.
Those who take this approach do not want to be seen as influencing the independent physician’s opinion in any way. This can be especially significant if the case ends up in front of a jury because jurors are considerably less skeptical of medical experts’ independence. But, the detriment to not asking specific questions is that this approach relies solely on the doctor to glean the relevant information and issues that need to be addressed from the materials provided. Sometimes the issues to be addressed are obvious, but sometimes they are not.
The risk of not asking any specific questions is the report may not address all of the issues that need to be addressed. This is a very real possibility if no communication takes place with the expert concerning the issues of the case.
This approach for Worker’s Compensation may be a convoluted way to get to the same result as if questions were asked. Additionally, the concerns in a Worker’s Compensation case are not the same because there is no jury to worry about and there is no concerns about leading a witness.
Do you ask specific questions or do you let the doctor provide information to the doctor and simply ask for conclusions? Why?
At Medical Systems, we see a lot of cover letters! Many include questions in the body of the letter that are not included in the specific questions section. Unfortunately, this approach frequently causes problems because many doctors only directly answer questions in the specific questions section of the report. Thus, writers are often surprised when they ask a specific question in the body of the cover letter but the doctor does not specifically answer it.
The reasons for this disconnect between writer and expert are simple. Questions buried in the cover letter’s medical record summary may not be answered because not all experts read the cover letter’s summary of medical records. Why? Because they do not want to be influenced by the writer’s take on the claim. Additionally, many experts assume (rightly or wrongly) that the only questions they are being retained to answer are those that are posed in the specific interrogatives section and do not look anywhere but there for questions. Finally, some experts simply forget the questions that have been asked outside of the specific questions section by the time they dictate the report. Hence, they will often only be looking at the specific questions when they are dictating their general impressions and specific answers.
The bottom line is that if a writer wants a question answered, she should ask it in the specific questions section. The specific interrogatives section is your best opportunity to communicate directly with doctor. Doctors read cover letters with varying degrees of thoroughness. All doctors, however, read the specific questions section of the report. Therefore, the specific questions should be drafted carefully to elicit precisely the information sought – no more or no less. The last thing you want is to get an IME report back and find that the doctor did not address an issue that needed to be addressed.
What strategy do you use for cover letter questions? And Why?
In most cases, the cover letter is the first, last, and only time you will be able to explain the case to the IME doctor and to ask specific questions about the case. As a result, the cover letter is an important document. The question, however, is how important is the cover letter? How much of a difference can a good cover letter make? Can the cover letter determine the outcome of an opinion or even have any impact on the doctor’s opinion?
Like most things in the medico-legal world, the answer is not black or white. Cover letters matter more for some doctors than others: sometimes the cover letter can help shape how an IME doctor answers a question, sometimes the cover letter can precipitate a bad result, and sometimes the cover letter will make little difference in the IME doctor’s opinion. Nevertheless, there are some basic rules that can ensure the reviewing physician squarely addresses the relevant issues and maximize the likelihood of receiving a favorable opinion.
The most important feature of the IME cover letter is the specific questions section, often titled “specific interrogatives.” As a matter of semantics, there is no functional difference between the words “questions” and “interrogatives” though “interrogatives” at least feels more formal. The specific questions posed to an IME physician are often the only questions that an IME physician will answer directly so there is much utility in how the questions are drafted.
How do you approach cover letter questions? What is important to you in drafting a cover letter?
The bad news is that there are no hard and fast rules for what the IME expert needs to see. The good news is that you can follow some general principles to help you determine what evidence the expert should see to give you the strongest and most credible opinion possible. And when in doubt the kitchen sink approach is always an option. Despite being costly, the kitchen sink approach at least guarantees that nothing important will be left out.
So if the kitchen sink approach guarantees that nothing will be left out, why not use it for every IME opinion? Two reasons mitigate against this approach. First, many doctors prefer not to see everything. Second, narrowing the scope of the records presented focuses the expert’s attention.
What if you decide to take a more judicious approach than throwing in everything but the kitchen sink? How do you decide what to give the physician? You want include all relevant evidence to avoid the allegation that your expert’s opinion is not credible because she did not review all relevant evidence. Making this determination can be daunting, but in many cases it is a matter of common sense. For example, in a meniscus tear case the expert will probably not need to see records from the time the claimant broke his wrist when he was 15. At a minimum, the IME expert should review everything the opposing party’s expert reviews. When in doubt, err on the side of providing more information than less. If you cannot decide whether to include something, ask yourself two simple questions:
If you can answer both questions with an unequivocal “no” then the doctor probably does not need to see the record. If you cannot answer both questions with an unequivocal “no,” then the doctor should see the record.
Examples are myriad. A doctor would probably want to see dermatology records in an examinee with a history of psoriasis and a claim involving degenerative joint disease of the lumbar spine since psoriatic arthritis would be a potential differential (and non-claim-related) diagnosis. On the other hand, a doctor would probably not want to see dermatology records in an examinee with a history of psoriasis who is making a claim involving a torn anterior cruciate ligament (“ACL”). A doctor probably would not want to see endocrinology records in an examinee with diabetes whose claim involves pulmonary injury. On the other hand, the doctor probably would want to see the endocrinology records if the claim involved nerve compression and symptoms of paresthesia in the fingers or toes.
One of the most vexing questions is whether to include such records as inpatient nursing notes from a postoperative period. As the party responsible for handling the claim, you will be most knowledgeable about the claim and will have noted any relevant information in what is otherwise extraneous material. Few IME experts need to review post-operative nursing notes and the like when they contain no information relevant to the injury at issue; however, some experts such as pulmonologist and infectious disease specialists will need to see everything. When in doubt, contact your IME vendor to determine what records the doctor wants to review. This will help ensure that you are providing the doctor only with the records she wants to review, will focus her attention, and prove more cost-effective than including everything but the kitchen sink.
In many claims, the file contains non-medical information. Common non-medical information includes surveillance, witness statements, job descriptions/videos, material safety data sheets (MSDSs), accident reports, expert reports (i.e., accident reconstruction reports, industrial hygiene reports, learned treatises, etc.), and investigative reports (i.e., law enforcement, OSHA, etc.). The physician should review non-medical information that is likely to affect her assessment of causation or nature and extent of injury. Sometimes making this determination can be difficult.
The physician should review witness statements that question the mechanism of injury, the severity of injury, the extent of disability, or the work-relatedness of injury. In some cases, you may want to withhold the witness statements if you intend call the witness to rebut the examinee’s claim at hearing or trial. However, withholding the witness statement runs the risk of losing a plausible basis for the IME physician to refute causation, work-relatedness, or nature and extent of injury. When determining whether to submit a witness statement to the physician you should ask whether the statement might impact the physician’s opinion on cause, relatedness, or nature and extent. If the answer is ‘yes,’ then they physician should see the statement.
The exception (assuming that you have no other strategic reason for holding the witness statement back) is if there will be evidentiary problems with the witness statement at hearing. Specifically, you may not want to submit a witness statement to a physician if you cannot produce the witness at hearing or trial to authenticate the statement. If you cannot produce the witness at hearing or trial, the physician would be relying on inadmissible hearsay (absent an exception) to form her opinion and the trier of fact would most likely strike any portion of her report that relies on inadmissible hearsay. While this is less of a problem in liability cases than in worker’s compensation cases because the discovery is more extensive, you should still be careful to ensure that what you submit will not make the doctor’s opinion in part inadmissible.
IME physicians often review job descriptions and videos. At first blush this makes sense in cases involving occupational/ repetitive motion injuries or where the mechanism of an accidental injury is disputed. However, not all job descriptions and videos are created equal. Before incurring the cost of having an IME physician review a job description or video, you should determine if the materials will add any value to the physician’s opinion. The job description or video should be specific, accurate, and complete. A job description that is written in nonspecific, generic terms will likely be of little persuasive value to either the doctor or the trier of fact. The job description or video needs to articulate or demonstrate exactly what the examinee does, for how long the examinee does it, and how physically demanding the task is. For example, if an examinee lifts a product off of a conveyor belt and places it on a cart, the physician should know the weight of the objects being lifted, the frequency that the objects are lifted, the height of the conveyor belt, the distance the person has to reach, the distance the person has to travel to get to the cart, the height of the cart, etc. If the physician does not know this information any opinion based on a job description or video will not be persuasive.
Claims for injury or disability often have myriad non-medical reports. These include law enforcement accident reports, MSDSs, accident reconstruction reports, other independent medical examination reports, industrial hygiene reports, engineering reports, learned treatises, and investigative reports (i.e., OSHA, law enforcement), etc. Assessing whether to give these reports to the IME physician introduces a new question: witness competence. While any one of the reports listed above may be relevant to claim, this does not mean that the report will be useful or that the physician will be competent to comment on the relationship between the report and the claimed injuries. For example, a physician without biomechanics or human kinematics training may not be able to competently judge an engineering report to determine if the forces documented in the report are sufficient to cause injury
Another problem that arises in non-medical reports is whether the report adds anything substantive to the doctor’s opinion. For example, law enforcement motor vehicle accident reports are notoriously vague and imprecise in accidents that do not involve serious physical injury. Even the severity of damages section is of dubious value because the categories are vague, the meaning of each category is unclear, and the assessment is based entirely on the subjective opinion of the officer preparing the report.
Determining whether to have the IME expert view surveillance footage, photographs, or reports can be vexing. The main issue is whether withholding the footage to maintain the element of surprise at trial outweighs the benefits to the IME expert’s opinion of incorporating the surveillance into her report. A less common but no less significant issue is whether the surveillance footage will actually help the case.
In the best case scenario, surveillance provides inculpatory evidence or the “gotcha” moment that will turn the case from marginal to a winner. So should you hold the information back or should you give it to the IME expert to review and incorporate into her report? The most sensible place to start when there is any doubt is with litigation counsel. If the person who will try the case wants the surveillance held back, it is probably wise to listen. In general though, you must determine the value of using the surveillance as a surprise versus the value of allowing the IME doctor to view and comment on the surveillance.
There are examples where it is more important for the IME expert to view surveillance than it is to hold the information back for trial. This is particularly true when medical causation is not an issue and the chief issue is the period of temporary total disability. Often issues surrounding the period of temporary total disability are amenable to attack using surveillance footage. Take a torn meniscus claim. The injured worker alleges that he cannot return to anything but sedentary work because standing for any length of time causes pain during the postoperative recovery period. However, you have surveillance footage that captures the claimant standing for an extended period of time without any apparent difficulty. Having the expert view the footage and comment on it may be the only way the expert will be convinced that a healing plateau has been reached.
Dubious claim for permanent disability are a different story. In those cases, the effect of revealing surveillance before trial can be that the claimant will have an opportunity to prepare to address the surveillance in advance of trial, increasing the likelihood that he will be able to offer a credible explanation of what is going on in the footage. In addition, when permanency is the main issue the surveillance footage will usually not change or otherwise bolster the IME expert’s opinion. If the claimant does not have objective sign of permanent injury, the expert will find that out by reviewing the medical records and conducting the physical examination. Surveillance footage is not likely to change the expert’s opinion in any substantive way. Also, withholding the video until trial has the advantage of bolstering the expert’s opinion to the trier of fact on permanency without giving the claimant an opportunity to explain the footage away.
In general, most people will want to withhold surveillance until trial unless the expert cannot form an adequate opinion without viewing the surveillance, i.e., declaring end of healing on a conceded causation claim. When in doubt, consulting with litigation counsel is the most sensible way to determine whether to use the footage. This does not answer the question of whether the surveillance is any good. If you are going to provide footage for the IME expert’s review, the last thing you want is for the report to disclose the footage without altering or strengthening the expert’s opinion.
“But she was carrying a bag of groceries and she had a 10 pound lifting restriction!” or “he was lifting his daughter out of her car seat and he isn’t supposed to bend or lift!”
The biggest problem with surveillance is that we forget a) that people have to live their lives and b) surveillance often lacks context. A claimant is not excused from performing activities of daily living because he got hurt and has work restrictions. To the cry, “but she was carrying a bag of groceries!” comes the retort: “and who, exactly, would have gone grocery shopping if she didn’t?” At hearing the usual litany of redirect questions would elicit the following information: a) the bag didn’t weigh that much and b) I paid for it later when I couldn’t get out of bed because of the increased pain. In this fashion, that documentary of fraud and exaggeration becomes instead persuasive evidence of the severity of the claimant’s condition and the callousness of the insurer in denying the claim. In addition, if the expert views the surveillance and issues opinions based on assumptions that cannot be supported by the actual visual evidence, the doctor’s credibility will suffer.
So when is surveillance footage ‘good’? When it unassailably rebuts a claim the injured person is making. This means that the grocery shopping footage is probably out unless the claimant alleges she is wheelchair-bound and is seen walking without assistance of any kind. If there is any doubt as to what the footage shows or whether it can be explained by putting it in the proper context, then it probably is not as good as you might think. To be useful, surveillance must not be subject to reasonable disputes as to what it depicts.
There is no hard and fast calculus for determining what the IME expert needs to see. The general rule is when in doubt, give more information rather than less. However, in many cases what information will be relevant or germane to the expert’s opinion will be obvious. As a practical matter, just because you have a medical record or other evidence does not mean the expert needs to see it. Instead, ask yourself if the record or evidence will have any impact on the expert’s opinion. You should also rely on your IME vendor to ensure that the expert gets the records he or she wants to see. If you take these simple steps, it will help you obtain the best IME possible.
Claim handlers often have access to medical records from the beginning of the claim and can identify references to prior treatment or inconsistencies that suggest the claim is problematic. Claim handlers also have the opportunity to present the injured worker with a release that can potentially allow the claim handler to obtain records that are outside of the scope of the claim but that could otherwise prove useful for the independent medical expert. As is often the case, when a claimant hires counsel the attorney typically revokes or otherwise limits the authorizations. Thus, it is important for claim handlers to obtain broad releases early on to increase the likelihood that the whole story will be told. Once an attorney is involved with the claim, she will exercise “editorial” control over the claim that will limit the claim handler’s ability to administer the claim effectively. Access to purportedly “unrelated” records can often be a critical point of analysis for the independent medical expert.
One key role the claim handler plays is editor. During the course of any case, claim handlers can spot areas of concern as they arise and take actions to shape how any concerns affect the claim. A problem in a claim may trigger an IME or, if the claim handler flags it, can be useful for an expert who subsequently performs an IME. While claim handlers are not physicians, they have a wealth of experience in dealing with myriad injuries and the normal course of treatment and healing for the injuries. Thus, the claim handler knows that a person with a low back strain without objective evidence of tissue yielding or definite breakage typically heals in 6-8 weeks with conservative treatment. That same claims handler is likely to know that something isn’t right when 12 weeks have elapsed and the injured person shows little or no signs of improvement. Claim Handlers are also in the best position to catch doctor shopping, narcotics abuse, and significant inconsistencies as they occur. Scheduling an IME that flags problems and delineates the claim handler’s suspicions as soon as they arise is significantly more likely to yield a credible IME than doing so a year or more after the fact when the claimant has undergone costly medical procedures or developed a poorly managed chronic pain problem. Again, the claim handler can exercise “editorial” control over how the claim plays out so that problems are headed off before they can become intractable.
Claim handlers are also like investigative journalists. Claim handlers develop a relationship with injured parties that puts them in a unique position to gauge the credibility of a claim. The claim handler will know if a particular injured party is evasive, defensive, honest, etc. and can take advantage of this personal knowledge to adopt the most effective strategy for managing the claim. This personal knowledge can also be useful for claims that move into litigation because the claim handler will be able to convey their knowledge of the claimant and other witnesses to counsel (which is especially important in worker’s compensation jurisdictions that do not have discovery). As everyone who has been involved with litigated claims knows, the claimant’s credibility is always important and often is the most important aspect of the claim. Claim handlers can use their regular contacts with claimants not only to fulfill the technical functions of adjusting the claims but also to learn about the claimant and assess whether he or she is likely to make a credible witness if the case goes to trial or hearing. Such insights into credibility may also be relevant to the analysis of the independent medical expert.
The advantages of being involved with a legal claim from its inception are legion. Every claim essentially involves competing narratives. Whether a claim is paid; how much is paid; whether it is litigated or settled; and for how much it is settled are really just functions of how believable each side’s story is. Following some simple steps in the claim handling process can help shape the story from the beginning to help control whose version is most believable. It can also lead to information, be it medical records, witness statements or employment records, which may be critical to the analysis and conclusions of the independent medical expert. As the outcome of a case often turns on the credibility of the independent medical expert, these early steps can have an important impact on the overall outcome of the claim.
Claims professionals form the foundation of the liability and worker’s compensation world. Every case starts with a claim handler and what the claim handler does with the case will likely have a profound and lasting effect on how the case is resolved.
In essence, every claim is a story constructed out of the evidence. The claim handler’s early involvement can shape what story gets told and whose version is ultimately most credible. IMEs are an integral part of the narrative of any claim. Claim handlers can take a number of steps to increase the likelihood that the IME is consistent with the narrative. This starts with the claimant: the claim handler is the first person in the process with access to the claimant.
An effective recorded statement taken soon after the injury forces the claimant to commit to a specific version of events. Because the statement is recorded, the claimant cannot later say that the statement does not accurately reflect what he said (as claimants will often do with damaging information in the medical records). In addition, the recorded statement provides the independent medical expert with a version of events that is usually more detailed than versions found in the first report of injury and medical records. Thus, if an injured worker changes the history of injury over time, the independent medical expert will be able to contrast the subsequent inconsistencies with the recorded statement (which is often the most credible version of events because of its proximity to the accident). Also, the claim handler can ask questions about prior claims, injuries, and treatment to the same body part. If a claimant is not forthright about the prior medical history in the recorded statement, he or she will appear to be evasive and untruthful when the prior history eventually comes out. And if a claimant is forthright, the claim handler will get access to potentially valuable information for the IME expert to review. Either way, the claims handler can provide additional useful information to the independent medical expert.
Claim handlers have access to the employer and witnesses from the time a claim is reported. In worker’s compensation claims, the employer can provide valuable information about the circumstances of the accident and the injured worker’s job duties which helps to gauge whether the claim is credible or not. Also obtaining witness statements early on can establish a concrete and credible history of injury not subject to the vicissitudes of memory over time. In addition, obtaining witness statements early on is important because witnesses are frequently difficult to locate later in the litigation. Having a concrete and credible history will help ensure that the independent medical expert has the best information available and that his opinion cannot be impugned by appeals to credible, alternate versions of events.
The IME report can serve several functions, but there is one thing common to every IME: the doctor makes the difference.
So how do you choose the best doctor for your case? The reason for seeking the IME will be an important consideration. If causation alone is the issue, then you may want an expert who is skilled at analyzing mechanisms of injury or physical job demands analysis. Let’s say it is indisputable that the examinee needs a knee replacement and the only issue is whether repetitive job activities contributed to the claimant’s knee condition. In this case, you may want an occupational medicine specialist who has experience with job demand analysis and has studied the effects of repetitive activities on the development of osteoarthritis.
On the other hand, if the reasonableness and necessity of treatment is a major issue in the case then you will want to have a specialist qualified to address treatment. Let’s say a lumbar fusion has been recommended but seems likely to fail for some identifiable reason. In this case you will want a spine surgery specialist who can credibly explain the reasons why the proposed surgery is likely to fail and is thus contraindicated.
Once the purpose of the IME has been identified, what are other considerations in determining the best expert? Several strategies can be used. First and foremost is the requester’s experience. Each claims and legal professional will have her own idiosyncrasies and practical experiences when it comes to IME experts. This combination of experience and preference is the chief guide most claim professionals do and should use in choosing an expert. You don’t want to reinvent the wheel: if you had a good experience with an expert on a similar claim in the recent past, you probably don’t need to expend mental energy and productive time searching for another expert. Use the one you already know.
Unfortunately, we run into unique or otherwise unusual situations for which an expert is not immediately obvious to the claim or legal professional. In this case, the investigation should start closest to home and gradually expand outward. Thus, the next step would be to consult one’s colleagues. In any claims department or law firm, the chance of encountering a wholly novel claim is relatively small, which means someone in the department or the office has probably dealt with a similar situation in the past. Consulting with peers is an efficient way to find the right doctor for an unusual claim. This step, when it is successful, has the built in advantage of having evidence to support the decision. For example, if a complicated neurological condition such as syringomyelia is alleged to have arisen from an accident, the appropriate expert may not be immediately obvious. Most orthopedic spine specialists and even the majority of neurosurgeons are unlikely to have experience with this condition. Nevertheless, in a large claims department or a law firm there is a decent possibility that someone has encountered a similar condition in a prior claim and used an IME. If a similar claim exists and the IME was good, then the query should probably be over.
If a survey of one’s peers still does not give the claims professional a satisfactory recommendation for an IME specialist, one may wish to consider the nature of the case and contact an attorney. In most claims, the ultimate disposition would be a trial, whether in an administrative or court setting. Hence, there will be issues to consider that relate to the possibility that a claim will not settle and will end up before a judge, jury, or administrative law judge. In this case, an attorney can provide valuable guidance with respect to qualified experts that will be credible in the particular litigation forum. An expert that might be well-suited for a personal injury claim could be ill-suited for a worker’s compensation claim or vice-versa. Practicing attorneys with whom you have a relationship can be an enormously valuable resource to use when deciding on what IME expert to use.
Your IME vendor can also be an excellent source of information regarding what doctors specialize in or have a clinical interest in a particular condition. Your IME vendor should have the tools necessary to identify the right expert. The best vendors actively recruit doctors to offer the widest range of specialists possible. In addition, when the best vendors vet their experts, they identify and note each expert’s specialties and areas of clinical interest to make the choice easier for you. The best vendors also schedule countless IME’s for many different clients, so there is a good chance that the vendor has run into a similar condition in the past and can recommend a physician based on the earlier case. Finally, the best vendors will be sensitive to your requirements and will tailor any recommendations so that the doctors put forward will prepare a report that meets your requirements.
At Medical Systems we strive to be a resource for you. We have a wealth of knowledge and experience that we put at your disposal. If you have a claim, chances are we’ve seen one like it before. We know what’s worked in the past and we share that information with our clients. And we get to know our clients so that we can match the expert that not only has the right experience but also meets your specific needs, be it turnaround time, style of writing, or type of analysis. While there are no guarantees, we will do our part to ensure that you choose the best and most qualified expert for your claim.
Choosing the medical expert is a critical decision in the life of your claim or case. This is true in every case, but can be especially true in some situations where you may be bound to your selected expert through the entire case. Regardless, be sure to consider all the issues on your case, the medical questions, and the purposes of the report, and also use all available resources to ensure that your choice of medical expert is the best possible option.
A command of the facts is essential to managing claims effectively. Equally important is the ability to understand what the facts mean in context. Deer hunting is still a popular pastime in Wisconsin. As such, one avenue for investigating whether a person’s condition is as disabling as they claim is to find out if they hold a deer hunting license. The idea being that a person who is able to hunt for deer is probably less disabled than they claim. The inference is strongest in the case of hunting with a bow and arrow because compound bows require significant strength to use and their shorter range (compared to a gun) generally requires the hunter to climb into a tree stand to hunt. Deer are also heavy, which would make it difficult for a lone hunter to deal with the animal after a successful kill. You will note that several assumptions are required to make the leap from the premise “claimant possesses a deer hunting license” to the conclusion that “the claimant is less disabled than alleged.”
The assumptions need to be teased out before the fact of possessing a hunting license can be used to infer less disability than alleged. Take the following hypothetical: a relatively young person who is right-handed alleges a disabling work-related right shoulder injury (rotator cuff and SLAP tear) that prevents him from returning to his former occupation that requires he be able to lift up to 100 pounds to his waist occasionally and 15-25 pounds above his shoulder frequently. In the course of the investigation, the claims professional discovers that the employee obtained a license enabling him to hunt deer in Wisconsin with a crossbow. The claims professional considers this to be a red flag and evidence that he is not as disabled as he claims. She sets up an independent medical examination and informs the expert of this fact, expecting it to be significant.
The question we must consider is whether the employee’s crossbow hunting license is in fact evidence that he is not as disabled as he alleges. The first thing we need to know is a bit about crossbow hunting in Wisconsin. Until 2014, the only persons who could obtain a crossbow license to hunt deer were persons with a physical disability that prevented them from being able to use a vertical (and typically compound) bow. This should immediately give us pause in our analysis since it suggests that the employee’s license very well may have been obtained because his right shoulder condition prevents him from using a standard vertical compound bow. This possibility is bolstered when one considers that the draw weight (how many pounds of force are required to draw the string back) on a compound bow for an average-sized man will be around 60 pounds. For a right-handed shooter this puts a tremendous amount of stress on the right, or draw-hand shoulder.
But what about dealing with a deer that has been shot and killed? Wouldn’t that be physically difficult? It is true that most whitetail deer killed in Wisconsin will weigh over 100 pounds, with some bucks tipping the scales at well over 200 pounds. Obviously field dressing, dragging a deer out of a field or woods, and lifting into a vehicle would require significant effort. However, we are again making assumptions about what physical activity the employee is doing. We must consider the possibility that the employee uses a four wheeler to get to his hunting location, as many hunters now use four wheelers. We must also consider the possibility that a hunter with a four wheeler also has a power lift on the vehicle to help get the carcass off the ground and onto the four wheeler. In addition, we must consider the possibility that the employee hunts with other people and will have assistance if he makes a kill. The point is that we cannot infer from the employee’s license to hunt deer with a crossbow that he will engage in physical activity exceeding his alleged level of disability.
The above scenario demonstrates the importance of not only knowing the facts of a claim but also of knowing what those facts mean. Without a clear understanding of what the facts mean, one can misinterpret how the facts effect the claim. In the above scenario, it is possible that the claim could be considered suspect based on the assumption that a person seeking a hunting license is probably less disabled than they claim to be. However, knowing a bit more about hunting suggests the fact that a person who claims to have a disabling shoulder injury and seeks a crossbow hunting license is probably behaving consistently with the alleged disability. Not drawing out the most reasonable inferences from the known facts could very well compromise one’s ability to effectively administer a claim. Investigate carefully, but know what the facts turned up in the investigation really mean.
“Did the accident (or exposure) cause the condition?” is usually the crux of most IME reports. We expect the expert to answer “yes” or “no” and explain why and how she came to that conclusion. The worst answer is some variation of “I’m not sure.” This is enormously frustrating. The person asking the question rightfully expects to receive a definitive answer and “I’m not sure” is tantamount to no opinion. As a practical matter, “I’m not sure” functions only marginally better than having no report at all.
We have all seen variations of “I’m not sure” in IME reports. But what can be done to avoid it? A carefully worded cover letter specifically explaining the standard that the writer is asking the expert to meet can help. One simple way to explain the expectations for answering basic causation questions is through a coin flip analogy. Every physician understands that a coin flip is a 50/50 proposition, meaning that whenever a coin is flipped the likelihood that it will come up heads is exactly equal to the likelihood that it will come up tails. It is easy to explain that you are asking the expert to determine whether the likelihood that the accident (or exposure) caused the condition is greater than a coin flip based on the available information. If so, then the causation question should be answered “yes.” If the likelihood that the accident (or exposure) caused the condition complained of is equal to or less than a coin flip, then the causation question should be answered “no.” The vast majority of experts will understand this analogy and it often helps prevent them from equivocating on causation.
Experts also are prone to conflating medical diagnostic impression and causation in an IME report. The diagnostic impression as reflected in chart notes is often blurry and by necessity uncertain. This is why chart notes frequently reflect more than one diagnostic impression. For example, a person who presents with carpal tunnel-like symptoms my carry a differential diagnosis of carpal tunnel syndrome versus cervical spine nerve root impingement versus shoulder impingement. The doctor will keep the competing diagnoses in the chart until tests are performed to rule out (or confirm) causes. It would be unwise to establish a definitive diagnosis in the clinical setting if there is not definitive medical evidence supporting one diagnosis over the others, even if the doctor believes, based on the available evidence, that one diagnosis may be more likely than the others.
This is the precise issue that experts performing IMEs must overcome. Again, the cover letter can help them. An effective way to help doctors move away from the medical diagnostic impression model is to explain to them that answering the causation question ‘yes’ or ‘no’ neither precludes the accident (or exposure) as a cause nor fixes the expert’s opinion for all of time. Definitively answering the question is the equivalent of stating that based on the available information, it is more likely than not that the accident (or exposure) did not cause the condition. This opinion does not preclude other causes or state that is 100% certain with respect to the cause of the condition. The opinion also does not lock the expert into her opinion in the future. The opinion is based on information available at the time the opinion was rendered. If additional information becomes available in the future, the expert should be assured that it is permissible and expected that her opinion will conform to the new information, even if that means her opinion on causation does a 180° flip. Explicitly explaining the nature of the opinion expected, its limited effect, and the possibility of changing it in light of new information will help the expert be more comfortable with stating a definitive opinion on causation.
Taking these steps in the cover letter can go a long way toward eliminating ambiguous, vague, or equivocal opinions on causation in IME reports. We don’t expect perfection out of our experts, but we do expect that they will provide clear answers to the questions that we ask them. Helping the expert understand exactly what those expectations mean will help her fulfill them.
Low back problems are a necessary evil of being human due to our anatomy and physiology. This is of great importance in many medicolegal claims in which an injury or repetitive stress exposure is alleged to have caused low back problems, thereby attempting to shift responsibility for the costs imposed by low back problems from the individual and his or her health insurance (if applicable) to the liability policyholder/employer and the liability/workers compensation insurance carrier. The high prevalence of low back problems in the general population makes differentiating between idiopathic problems and those caused by an accident or repetitive stress exposure extremely difficult. It is also complicated by the fact that the idea of a manifestation of a preexisting condition is at odds with our folk understanding of temporal proximity and causality, i.e. if two things happen near in time, we tend to assume they are causally related, with the first thing causing the second thing.
Human beings perform many cognitive tasks exceptionally well. Accurately assigning causation is not one of them. In particular, we are prone to making a priori assumptions about how things work and then confirming our assumptions (confirmation bias) post hoc (post hoc ergo propter hoc fallacy). Low back pain is a notable example: we often associate low back pain with lumbar disc pathology discovered on post-injury MRI despite the fact that we know from the medical literature large percentages of the general population have similar MRI findings but no low back pain. We make the assumption based on our assessment of human anatomy and physiology that lumbar discs work in a certain way and when they are compromised it must cause discernible effects such as low back pain. We then see evidence of compromised lumbar discs in persons who complain of low back pain following an injury or exposure and we leap to the bias-confirming post hoc conclusion that the pathology or compromised condition is causing the pain. So strong is this impulse that we ascribe causation even though we are well-aware of the medical literature demonstrating that disc pathology is an exceedingly poor proxy for low back pain. The coup de grace of this faulty reasoning is the post hoc association between disc pathology and pain: physicians will regularly conclude that a specific event or long term exposure caused a herniated disc despite the person being in a population cohort in which it is at least as likely than not that herniated disc was present before the injury or exposure. The only reasonable way one could reach this conclusion is with a pre-injury MRI showing there was not a herniated disc.
The problem with this sort of faulty reasoning is that it can lead to treatment that is extraordinarily expensive but ineffective. In a low back pain claim with post-injury evidence of a herniated disc, the treatment is often a discectomy/laminectomy with or without fusion. If the herniated disc was not causing the pain, the surgery will have been unnecessary. While the placebo effect will almost certainly result in some short term improvement, the long term outcomes are likely to be, at best, no different than they would have been with conservative therapy because the treatment will have been aimed at discal pathology that was benign. The triers of fact in the medicolegal systems will, however, require the workers compensation or liability carriers to absorb the costs of surgery, including non-medical costs that are recoverable under the different systems (such as indemnity payments in worker’s compensation or wage loss and pain and suffering in personal injury), because they are likely to believe the opinion that the herniated disc is the problem. This belief is based on the folk (mis)understanding of cause and effect.
There is an expression in statistics that has been borrowed by cognitive psychologists: regression to the mean. It simply holds that unusual states, events, or findings tend to be temporary and regress over time to the average or status quo. This is true with many non-malignant medical conditions as well. This is both profound and somewhat dispiriting because it means that most of these conditions will get better over time regardless of treatment. It is hence a fallacy to ascribe efficacy to treatment or causation based on recovery following treatment when a condition simply regresses to the mean because it would have regressed to the mean regardless of treatment.
Much attention has been paid to this phenomenon in the context of overusing antibiotics. Most people who go the doctor for upper respiratory infections wait to seek treatment until the condition has been present for some time. They then go to the doctor, ask for antibiotics, take antibiotics, and recover from the condition. These persons then assume that the antibiotics caused the improvement. The problem with the assumption is that most of these persons almost certainly had viral infections that simply got better according to the natural course of the condition. ANTIOBIOTICS DO NOT AFFECT VIRUSES AT ALL. The fact that the condition improved after starting antibiotics was due to the simple fact that the person started the antibiotics at about the time the condition would improve on its own. The antibiotics had nothing to do with the condition improving because ANTIBIOTICS ARE 100% INEFFECTIVE AGAINST VIRUSES.
The same holds true for many persons with low back pain who undergo surgery to remove a herniated disc. Low back pain usually stabilizes over time after an acute exacerbation regardless of treatment. Given enough time, it is highly likely that the person would have gotten better or at least recovered to the same extent regardless of the treatment received (including no treatment). The fact that the person improved after surgery does not indicate that the surgery caused the improvement. Instead, the relation of surgery and improved low back pain is almost certainly coincidental. We regress to the mean. That the surgery occurred and improvement subsequently happened is not evidence that the surgery was effective or that the herniated disc was causing the low back pain.
How do we know this? The medical literature is replete with evidence to that end. Take for example the study, “Influence of Low Back Pain and Prognostic Value of MRI in Sciatica Patients in Relation to Back Pain.” The study was undertaken to evaluate the correlation between MRI findings and outcomes in patients with sciatica alone versus patients with sciatica and back pain. As the authors note, “it remains unclear to what extent morphological changes seen on MRI in sciatica patients are associated with back pain, rather than being a representation of irrelevant differences between individuals.” The study found “that herniated discs and nerve root compression on MRI were more prevalent among patients with predominantly sciatica compared to those who suffered from additional back pain.” Interestingly, patients with sciatica and low back pain but without a herniated disc or nerve root compression fared worse after one year than those patients with a herniated disc or nerve root compression. And “remarkably large disc herniations and extruded disc herniations were … equally distributed between the two groups,” causing the authors to conclude that “the worldwide accepted mechanical compression theory therefore seems not to offer a sufficient explanation for the cause of the disabling back and leg symptoms in sciatica.”
Other studies demonstrate similar findings that call into question our ability to assign causation of low back pain to herniated discs and nerve root compression. The well-known twin study demonstrates the difficulty in linking specific activities with low back pain. As the authors in that study report, “disc degeneration appears to be determined in great part by genetic influences. Although environmental factors also play a role, it is not primarily through routine physical loading exposures (eg, heavy vs. light physical demands) as once suspected.” As noted above, other studies have found that large portions of the general population have disc pathology on MRI, but no low back pain. Still other studies find low back pain in the absence of disc pathology on MRI. Despite this evidence, triers of fact routinely base liability decisions on medical opinions that conclude an injury or exposure caused a herniated disc based on a post-injury MRI (which is almost impossible to conclude from a rational, evidentiary perspective in the absence of a pre-injury or exposure MRI) and that the herniated disc is causing low back pain (which runs contrary to the received scientific evidence).
What does this mean for medicolegal claims? It suggests that every claim for injury- or exposure-related back pain based on post-injury MRI scans demonstrating a herniated disc should be carefully scrutinized. In addition, worker’s compensation and liability carriers should take every opportunity to educate triers of fact regarding the lack of a causal nexus between herniated discs and low back pain. Independent medical examiners should point to the relevant literature to begin convincing triers of fact that there is no evidentiary link between low back pain and herniated lumbar discs. In this regard, insurance carriers can look to how the relationship of carpal tunnel syndrome to repetitive keyboard use evolved over time. When these claims first started arising, triers of fact in worker’s compensation accepted the link based on treating physician opinions seemingly without question. This was based on the fact that claimants reported experiencing symptoms while using computer keyboards. The medical literature did not support this association. Independent medical examiners began citing to research finding the opposite: that repetitive keyboarding is not a risk factor for or a cause of carpal tunnel syndrome. In at least some jurisdictions, the triers of fact and treating physicians eventually listened and stopped finding a relationship between repetitive keyboarding and carpal tunnel syndrome.
A similar shift ought to occur in the context of herniated discs and low back pain. While this does not suggest that low back pain itself is unrelated to an injury or exposure, it would radically reduce costs because it would limit surgery for herniated discs to cases where there is discernible nerve impingement causing motor and sensory deficits rather than in cases of low back pain alone. Although human beings are not very good at accurately assessing causation, we can learn to go against our instincts if there is high quality evidence denying causation and experts willing to hammer that point home. It is time to hammer home the point that disc pathology on MRI is poorly correlated to low back pain and limit expensive surgical procedures the efficacy of which is not supported by the medical literature. The simple fact of the matter is that costs for treating a condition that cannot be reliably related to an accident or repetitive stress exposure should not be borne by a liability or worker’s compensation carrier (especially when the condition is poorly correlated with the alleged health effects).
Choosing the right IME doctor can be challenging, especially in complex claims or those with unusual injuries. Numerous factors influence the decision-making process. However, two of the most important factors include familiarity with the injury or condition at issue and knowing the precise claims at issue. These factors are particularly important because many injuries or conditions can be treated by different specialists and it can be difficult in these cases to figure out which specialist is truly the most qualified and credible for the claim at hand. In simple terms, merely knowing the diagnosis is not enough.
For example, an orthopedic surgeon may amputate toes in a diabetic foot infection claim, but if the cause of the infection is themain issue an endocrinologist, infectious disease specialist, or podiatrist may be better able to write a detailed, credible report as to what caused the infection. The reason is simple: orthopedic surgeons do not treat diabetic foot problems unless amputation is required. The treatment of diabetes, infection risk, and diabetic foot infection management are handled by other specialists. On the other hand, if permanent impairment is the main issue then an orthopedic surgeon may well be the best expert to use because they are uniquely qualified to evaluate the effects of surgeries they perform.
A similar situation arises in the context of moderate to severe traumatic brain injury. A neurosurgeon will typically treat the initial injury, but once the condition has stabilized and requires no further surgical management care is usually transferred to a rehabilitation specialist (or more than one). Once rehabilitation and recovery are complete, care is transferred again, often to a neurologist and a psychiatrist. In addition, neuropsychologists are often involved in the rehabilitation and recovery process to assess mental functioning. If the main issue in the claim is the extent of permanency and the type and nature of future care, a neurosurgeon would be of limited value. However, if the issue is the appropriateness of care in the critical post-traumatic period, a neurosurgeon would obviously be the most qualified expert. Yet another iteration may involve questions over the extent of mental impairment, in which case a neuropsychologist would be the most qualified expert.
Facial injuries involving the eye can be difficult also. The initial treatment may involve an ophthalmologist and a plastic surgeon. Once the emergency treatment is completed, care may be transferred to a different ophthalmologist for treatment and management of long term vision issues. Severe ocular injuries can precipitate neurological issues as well, especially headaches. Sinus and nasal problems can also be present. In such complicated cases, the actual issues must be examined to assess which experts to use. For example, in a penetrating eye injury where the patient claims he cannot return to work an ophthalmologist may not be the best choice where the failure to return to work is unrelated to vision loss. In penetrating eye injuries, the loss of intraocular pressure can precipitate headaches with position changes. If the claimant was a laborer who routinely has to bend over or look up, a neurologist may very well be the best expert to assess whether the work conditions would in fact precipitate headaches that would prevent the claimant from returning to his employment. Again, knowledge of both the injury and the actual claim being made are necessary to make the best doctor choice.
Choosing the right doctor is often vexing. Making the most informed doctor choice not only requires knowledge of the type of injury or condition, but also the precise issues or claims being made in relation to the injury or condition. To make an informed doctor choice, it is important to recognize that the seemingly obvious specialist might not actually be the best choice depending on what exactly is at issue. Hence, being familiar with both the injury or condition and the precise issues involved in the claim are necessary to make the best doctor choice.
Claims for worker’s compensation benefits or personal injury damages require a health condition and a mechanism of injury that caused it. Too often the connection between the health condition complained of and the alleged injury is weak and unscientific. A large part of the problem is that we don’t perform large-double-blinded prospective studies on what occupational movements, activities, or exposures cause injuries and adverse health conditions. As a result, most medical experts have little academic literature to rely on when determining whether a particular mechanism caused a particular injury or health condition. Instead, most experts rely on their experience and training alone to evaluate causation. In so doing, most experts make logical analyses that would be considered common sense conclusions drawn from the available facts. This is problematic because what we intuitively believe to be correct based on logical analysis is often incorrect.
How do we know that our intuition is often wrong? We know because the medical literature is replete with instances in which commonsense, logical assumptions were proven wrong once they were actually tested. One example is the long-held and erroneous belief that running is bad for one’s knees. For many years, there was near consensus among medical professionals that long distance running would cause arthritic changes in the knees because of the increased load that running placed on them. Logically this makes sense because running does radically increase the load on the knees and many things respond to increased load by wearing faster. A car engine that constantly revs higher than another will wear out faster. Rapid, hard braking wears brake pads faster than gentle braking from slower speeds. The problem is that studies found that long distance running does not cause premature arthritic changes in the knees. How do we know this? Studies have been done which demonstrate that the incidence of osteoarthritis of the knee is the same in long distance runners as it is in non-runners. Commonsense logic was wrong.
The link between consuming butter and heart disease is another example of how commonsense logical analysis and intuition proved to be wrong. We know and have known for a long time that serum cholesterol (the cholesterol in our blood) is associated with a higher incidence of heart disease. What we assumed is that foods high in cholesterol would cause an increase in serum cholesterol. Why did we make this assumption? Because it is logical. We assumed that serum cholesterol had to come from somewhere and the logical source must be our diets. Unfortunately, this assumption was wrong. According to the Scientific Report of the 2015 Dietary Guidelines Advisory Committee (Advisory Report), “Available evidence shows no appreciable relationship between consumption of dietary cholesterol and serum (blood) cholesterol.” A more recent study concluded that butter had no effect on heart disease. So what does cause high cholesterol? According to Dr. Steven Nissen, Chair of Cardiovascular Medicine at the Cleveland Clinic, “Most circulating cholesterol is produced by the liver. Dietary cholesterol accounts for only about 15 to 20 percent of blood cholesterol. Changing the diet typically has only a modest effect on serum cholesterol levels.” The bottom line is that commonsense logic was wrong, again.
The challenge is how to change the way medical experts evaluate medical causation. To the extent that medical literature does exist, it would seem that developing standards consistent with sound scientific evidence is appropriate. For example, “The Twin Study” (subscription required) analyzed degenerative lumbar disc changes among twins with different environmental exposures. The study was multinational and multidisciplinary, taking place at research centers in Canada, Finland, and the United States. The study concluded that,
The once commonly held view that disc degeneration is primarily a result of aging and “wear and tear” from mechanical insults and injuries was not supported by this series of studies. Instead, disc degeneration appears to be determined in great part by genetic influences. Although environmental factors also play a role, it is not primarily through routine physical loading exposures (eg, heavy vs. light physical demands) as once suspected. (Emphasis added)
In essence, the research found that occupational exposure to lifting does not cause lumbar disc degeneration. Nevertheless, medical experts routinely attribute degenerative lumbar disc changes to wear and tear due to an occupational history of heavy lifting. Commonsense logic suggests this should be so, the actual science does not.
Many claims, however, fall outside areas in which there is clear scientific evidence. In these cases, it would seem appropriate to demand medical experts issue opinions that go beyond mere conclusion. For example, in many rotator cuff tear claims there is a significant degenerative component. Frequently the medical experts simply state that the alleged mechanism of injury caused the tear or conversely that the tear is solely related to a preexisting degenerative condition. These opinions are not particularly useful. Instead, one would like to see the medical expert offer an explanation based on how the alleged injury would impact the anatomy of a shoulder with a degenerated rotator cuff. This would ideally involve an analysis of the forces involved and how they would stress the tendon fibers that actually tear. The rotator cuff is made up of four tendons that surround the humeral head. Presumably specific forces to specific parts of the shoulder would be required to cause injury to the different tendons. If the supraspinatus is torn, which is the usual suspect, then it would be helpful to have an explanation of how the alleged injury caused the tear or conversely how the alleged injury could not have caused the tear.
So how do we get such an opinion? The simplest answer is to ask for it. Instead of simply asking whether an alleged injury caused a condition, ask for an explanation as to why the mechanism of injury was sufficient or insufficient to cause the condition, including an explanation of the anatomical forces involved. Not every medical expert will give the best answer, but at least if they are asked for an explanation one will typically be given. Also, it makes sense to ask the expert to identify support for his or her conclusion in the relevant medical literature. This way, we can inject reason into the process instead of dealing purely with assumptions and conclusions.
In many claims, the recorded statement is the first and only time a claims professional has to hear what the claimant has to say about the incident precipitating the claim without the presence of counsel. As such, it provides a unique opportunity to gather information and develop a record of sorts against which the facts of the claim can be judged. Unfortunately, recorded statements are often cursory, covering a checklist of questions without securing much in the way of detail about the incident and the claimant’s level of functioning pre- and post-incident. Part of the reason is the checklist of questions. They are often slavishly adhered to rather than used as a guide for areas that the claims professional wants the claimant to discuss. In addition, the checklist often becomes an unnecessary attentional anchor for the interviewer, causing him to interrupt the claimant and direct her answers toward staying on script. This is problematic because most of the academic literature and the most cutting edge law enforcement practices find that the best form of questioning is open-ended, allowing the person being interviewed to describe things in at most a lightly interrupted narrative form.
Wired Magazine recently published an article on the changes being implemented at the federal level and in some local police departments to the traditional mode of interrogation. The article holds insights for conducting recorded statements. Obviously the stakes are higher in capital criminal cases such as the one profiled in the article, but the lessons apply to all forms of interviewing witnesses. The author reports that a huge problem with modern interviewing is that “standard interrogation technique can be an ineffective tool for gathering lots of useful and accurate information” because many witnesses “clam up.” If the person being interviewed feels like they are being interrogated, they will offer as little information as possible. This is problematic because the purpose of a witness interview, whether of a claimant in a civil case, a suspect in a criminal case, or a third party witness in either case, is to gather as much information as possible. As the article puts it, the more a witness says, “the more that can be checked against the record.”
So how would you go about doing this? It is really quite simple. The gist “is this: If you want accurate information, be as non-accusatorial as possible.” In other words, build rapport with the witness and remember that the purpose of the interview should be “ geared … toward the pursuit of information.” Other interesting findings from current research is that asking witnesses to describe events in reverse chronological order is harder to do when they are lying. It is believed that the increased cognitive load of fabricating a story or facts makes descriptions in reverse chronological order particularly difficult. In addition, when witnesses lie or fabricate they are not able to provide the same level of detail as truth tellers. According to Steven Kleinman, who works with the High Value Detainee Interrogation Group, a joint effort between the FBI, CIA, and Pentagon, “No matter how good the cover story is, it’s not going to be as rich as a real-life story.”
The article explains how the new interrogation techniques were put to use to solve a crime in Los Angeles. In that case, a man, Gabriel Campos-Martinez, was suspected of killing his partner, but the evidence was too circumstantial to allow for charges to be brought against him. Just over two years after the crime was committed, two LA detectives again interviewed Campos-Martinez, this time using non-accusatory, rapport-building interview techniques. As a result, the suspect spent 5 hours with the detectives after telling them he only had a short time to speak with them. It seemed “almost like [the suspect] appreciated the chance to talk. As the hours went on, the conversation started to go in unpredictable directions.” He eventually revealed critical details that ultimately led to charges and his conviction for the murder. During the course of the interrogation, the suspect “started to reminisce” about walks he and his partner used to take in the area where the body was discovered, which was new information. In addition, the suspect described a plant that is used to make herbal tea but in greater quantities can be used to incapacitate, which proved crucial to his conviction.
It is possible for claims professionals to accomplish the same thing when taking recorded statements. Build rapport and let the witness talk. There will always be time for wrap-up questions to ensure that the basic identifying information makes it onto the statement. But instead of going through a checklist from the start, it might be better to ask open-ended questions that let the witness open up. Instead of asking a witness if they have hobbies, which is sort of an antiquated term anyway, ask her what does she like to do? Try having the witness start from a point away from the incident and ask them to describe what happened working backwards. Pay attention to the detail provided. The point is that people like to talk when they don’t feel like they are being interrogated. Build rapport. Don’t accuse. Get to the truth (or ferret out the lie).
Medical Systems recently held a lunch and learn at Lombardi’s Steakhouse in Appleton, Wisconsin at which hand surgery expert Jan Bax, M.D. discussed common hand injuries. During his presentation, Dr. Bax alerted attendees to a recent white paper from the American Academy of Orthopaedic Surgeons (“AAOS”) that reports a moderate level of medical evidence links computer use to the development of carpal tunnel syndrome (see p. 222). As Dr. Bax pointed out, the paper was published in the last couple of months so its ultimate effect in the worker’s compensation arena is undetermined. Nevertheless, Dr. Bax expressed concern that the paper will lead to renewed carpal tunnel syndrome claims based on repetitive computer use (keyboarding and mouse use). He noted this is especially troublesome because the hand surgery section of the AAOS considers it a settled issue that computer use does not cause carpal tunnel syndrome.
The white paper assigns levels of evidence supporting the various factors that are sometimes alleged to cause carpal tunnel syndrome. The highest level of evidence is “strong,” which requires consistent evidence from two or more high quality studies. The second highest level of evidence is “moderate,” which requires consistent evidence from two or more moderate quality studies or evidence from a single high quality study. This is the level of evidence the AAOS finds for the position that computer use causes carpal tunnel syndrome. The second lowest level of evidence is “limited,” which requires consistent evidence from two or more low quality studies, one moderate study, or insufficient/inconsistent evidence recommending for or against the diagnosis. The lowest level of evidence is “consensus,” which requires that there is no reliable evidence but rather is based on unsupported clinical opinion.
As Dr. Bax noted, finding that moderate evidence supports the link between computer use and carpal tunnel syndrome is troubling because it is actually is a high level of evidence and may sway triers of fact despite the nearly uniform position of actual hand surgery specialists that there is no such causal link. This is especially true given the findings in some of the research cited. Coggon, et al., specifically stated that there was an “absence of association with the use of computer keyboards” and noted this “is also consistent with the findings overally from other research.” The researchers concluded that “obesity and diabetes, and the physical stresses to tissues from the use of hand-held vibratory tools and repeated forceful movements of the wrist and hand, all cause impaired function of the median nerve” but that computer keyboard probably only focuses attention on symptoms without being injurious to the tissues of the wrist. Coggon, et al. seem to support a more nuanced relationship between computer keyboard use and carpal tunnel syndrome than is portrayed in the AAOS white paper. Likewise, Eleftheriou, et al. studied the link between computer keyboard use and carpal tunnel syndrome but related the following disclaimer:
One limitation is related to [the study’s] cross-sectional design which does not allow us to conclude if the association between cumulative exposure to key-board use is of causative nature. The study included workers present when the study was formed, which implies a possible selection bias as is the case in all cross-sectional studies, especially if the study population was affected by high turn-over. It’s a limitation of our study that we don’t have data on actual turn-over of the staff…Further, we didn’t control for possible confounding factors like anthropometric characteristics of the wrist…
Eleftheriou, et al. reported only “a possible association between cumulative exposure to keyboard strokes and the development of [carpal tunnel syndrome]…” They specifically noted that additional studies need to be done to verify their results and to address causality.
The AAOS white paper is a troubling development in carpal tunnel syndrome worker’s compensation cases since it potentially throws into question the settled opinion among hand surgery specialists that keyboard use does not cause carpal tunnel syndrome. As Dr. Bax noted at the recent Medical Systems lunch and learn, it is too early to tell exactly what the effects of the paper will be, though they are not likely to be positive. In the event that the AAOS white paper is cited to support work-related carpal tunnel syndrome cases among keyboard users, it will be critical to choose experts who understand and can explain the limitations of the evidence on which the paper relies. Without an expert who will vigorously question and thoroughly refute the evidence, the AAOS white paper is likely to carry more weight in keyboard-related carpal tunnel syndrome claims than it otherwise should.
Last week psychiatrist Jeffrey Zigun, M.D. and psychologist Brad Grunert, Ph.D. spoke at Medical Systems’ 2016 Advanced Medical Topics in Civil Litigation Symposium on mild traumatic brain injury. Three topics came up repeatedly during the individual experts’ presentations and in the follow-up panel discussion:
The answers to the first two of the three issues are surprisingly simple, while the answer to the third is, or at least can be, much more complicated.
With respect to the question of whether mild traumatic brain injuries can get worse over time, the simple answer according to the experts is “no.” Both Dr. Zigun and Dr. Grunert were clear in their statement that recovery from mild traumatic brain injury follows a predictable recovery. The physical injury to the brain itself reaches maximum medical improvement within a year and all expected improvements in functioning occur within two years of the injury. This is significant because a number of participants in the seminar reported scenarios in which a claimant/plaintiff experienced a precipitous decrease in functioning 12, 18, or even 24+ months after the initial injury. In at least some cases, the decrease in functioning was measured on neuropsychiatric testing and was deemed not to be malingering. Both Dr. Zigun and Dr. Grunert were clear in their presentations and in the panel discussions that such a decrease in functioning would not be due to an underlying mild traumatic brain injury, even if the injury were permanent. Brain injuries get better over time; they don’t yo-yo up and down or suddenly get worse after a period of improvement. Unfortunately, a decrease in functioning after a period of improvement can still be related to the accident. More on this later.
One of the more interesting aspects of the symposium was the discussions about the role of intelligence in recovery from a mild traumatic brain injury. The experts both stressed that intelligence is enormously important in assessing how individuals will recover from permanent mild traumatic brain injury. The reason is that those with more intelligence have more to lose before the loss of function becomes a significant impairment. The example Dr. Grunert used was an academic researcher: she may have some memory impairment following a mild traumatic brain injury, but it may only mean that she has to look up citations she previously had memorized. This will obviously add some time to her research, but it will not impair the quality of the research itself or her ability to write. On the other hand, a factory worker who has to follow a specific procedure when operating a dangerous machine will have no margin for error. If her memory was on the lower end of average to begin with, losing any amount of memory function could cause her to be unable to follow the specific procedure when operating machinery. Since there is no margin of error, the factory worker’s memory impairment would cost her the ability to do her job. Hence, one point both Dr. Zigun and Dr. Grunert made was that impairment following mild traumatic brain injury is often different for persons of high intelligence than it is for persons of lower intelligence.
The trickiest question the experts dealt with is how to determine the fact of a traumatic brain injury. In many cases a person hits their head and the symptoms of concussion are obvious. These might include brief loss of consciousness, dizziness, retrograde and/or anterograde amnesia, headache, wooziness, etc. In other cases the fact of injury might be less obvious. Perhaps the person did not strike their head in a motor vehicle crash, but reported some symptoms consistent with mild traumatic brain injury. Further complicating matters are cases where there is a preexisting history of psychological problems such as depression, anxiety, or other psychological diagnoses. In all cases, Dr. Zigun and Dr. Grunert stressed the importance of early neuropsychological testing. Dr. Grunert noted that neuropsychological testing has a high degree of reliability and specificity. In addition, neuropsychological testing is good at ferreting out malingering from legitimate claims. Early testing also establishes a baseline from which test results should not decline in mild traumatic brain injury.
As the experts and the audience discussed, often the fact of injury is not an issue at the beginning of a claim, though. Instead, the fact of injury becomes an issue after a year or more. Usually, this seems to occur as a result of a decline in functioning, whether supported through neuropsychiatric testing or not. As the experts agreed, simply because a person declines in functioning after a mild traumatic brain injury should have stabilized does not mean that they are not continuing to suffer from a permanent brain injury or that the decline in function is not legitimate or related to the accident. Both Dr. Zigun and Dr. Grunert agreed that a decline in functioning a year or more after a mild traumatic brain injury only means that the brain injury itself is probably not responsible for the decline in functioning. Instead, they pointed to psychological conditions as often being the culprit.
When the audience heard this, many persons wanted to know if the psychological conditions would be related to the accident, especially if there was a preexisting history. As Dr. Zigun noted numerous times, it depends. For example, Dr. Zigun addressed the simple fact that many of the drugs used to treat psychological conditions also have positive effects on the sequelae from traumatic brain injury. Take SSRIs, commonly used to treat depression. Dr. Zigun pointed out that one symptom of depression is memory impairment, which is also a symptom of mild traumatic brain injury. SSRIs help alleviate memory impairment in both depression and mild traumatic brain injury. Dr. Zigun noted that if a person is diagnosed with mild traumatic brain injury, they may very well end up on an SSRI. Once the brain injury stabilizes, the person may be weaned off the SSRI. However, if the person has simultaneously developed depression, weaning her from the SSRI may cause a decrease in functioning related to the depression, including worsening memory impairment. Both experts agreed that the decrease in functioning in such a case could be legitimate but that it would not be related to the mild traumatic brain injury.
How, then, can we determine if a decline in functioning relates to the accident? The answer, unfortunately, is not clear cut. The experts stressed that to evaluate whether a decline in functioning, once determined to be legitimate and not malingering, relates to an accident, the analysis essentially looks to the totality of the circumstances to attempt to parse out the causal factors. The case a number of audience members brought up was the situation in which there is a preexisting history of a psychological condition such as depression which is determined to be the reason for the post-accident decline in functioning. Dr. Zigun and Dr. Grunert agreed that it is exceptionally difficult to determine whether the development of a psychological condition is accident-related. They noted that many factors could cause the onset of depression episode that would be related to the accident. For example, if the mild traumatic brain injury caused a memory impairment that prevents the injured person from returning to work, it would not be unusual for the person to develop depression. The depression would not be caused by the brain injury itself, but rather would be the result of the job loss, which resulted from the brain injury. On the other hand, if the injured person has recovered well and is coping with any residual impairments from the brain injury, the depression is likely to be independent of the brain injury. The bottom line is that declines in psychological functioning in the context of a permanent mild traumatic brain injuries present challenging cases for experts in which causation can only be determined by assessing the totality of the circumstances.
Mild traumatic brain injuries can present vexing cases for claims professionals. As Dr. Zigun and Dr. Grunert discussed, mild traumatic brain injuries can be diagnosed and treated effectively, even in the case of concomitant psychological conditions. We are grateful for their participation in Medical Systems’ 2016 Advanced Medical Topics in Civil Litigation Symposium and for the many insights they shared with our audience.
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.
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.
Biting my truant pen, beating myself for spite, “Fool,” said my Muse to me, “look in thy heart, and write.”
-Sir Philip Sydney
The advent of word processing began to change the way we write. The coordination of word processing software with internet search engines, web browsers, and websites has, in some ways, transformed writing. The chief manner in which digital coordination has done so is through the immediate access to sources of information that can be copied and pasted or linked to in written texts. Gone are the days (for most of us) when writing was a monastic experience typified by time spent holed up in a library or an office with sheets of paper and source material strewn across a table top or desk while a piece was constructed by actually putting pen to paper. Owing to the difficulty of altering a piece of writing once it was started, the writer needed to have a clear idea as to what she was going to write before putting pen to paper. A writer composing on a typewriter faced the same challenges.
Writing no longer need be a monastic experience: any place with an electric outlet and a Wi-Fi connection with do. In addition, writing can be more ad hoc and free-flowing because digital text is easily and endlessly emendable and source material is instantly available from anywhere. Copy and paste is always there to add information to any piece of writing. There are obvious benefits to the technological change that makes this type of writing possible: writing is more accessible to more people, research is (usually) easier, and the process of writing feels less daunting as matters of both dedication and cognitive load. However, the technological changes have detriments as well. Much writing is less polished because it is produced so rapidly. Much writing also seems less thoughtful and more reactive. Interestingly, the technological changes have seen a concomitant rise in plagiarism which may be due in part to the way in which writing is composed and source materials are integrated, i.e. by copying and pasting.
Often technological change is cast in binary terms as an either/or proposition: either technological change is good and must be embraced in its entirety or technological change is bad and must be rejected in its entirety. This is unfortunate because technological change is almost never a binary erasure of past forms. Neither is life generally an either/or proposition (whatever certain Danish existentialists may say to the contrary). Rather, technologies coexist as does our ability to use them. One way to improve writing in the current technological milieu is to incorporate older methods of composition into the way we write. In short, we are likely to become more careful and polished writers if we compose at least a portion of what we write using pen and paper.
Handwriting has several advantages over composing at a keyboard. First, there is evidence that writing by hand “may trigger more sophisticated processing: the relative slowness of handwriting seems to promote ‘mental lifting’, a process of comprehending, mulling and digesting ideas…” Second, writing by hand is generally less distracting because the page is not part of a gadget. It is easier to think deeply about a subject when one is not bombarded by pings and notices (or is even working on a device that is tantalizingly close to all them). Third, there is anecdotal evidence that students who wrote responses to questions by hand “produced better writing than those who typed them.”
It must be said that no reasonable person would advocate drafting all communication by hand. This would be stultifying, inefficient, and foolish. Nevertheless, if handwriting can be integrated into some forms of written communications, the benefits to the overall quality of one’s writings will outweigh any minor efficiency costs. Also, to the extent that writing a portion of one’s communications by hand improves the quality and clarity of one’s communication in general, handwriting can actually serve to make one more efficient in the aggregate.
To take advantage of handwriting’s benefits, one should look to communications that by their nature require more time, thought, and coherent organization. A cover letter is a good example. It is easy to copy and paste from records and prior correspondence to cobble a cover letter together quickly; however, the end result will often be disjointed, inconsistent, and confusing. Composing the first draft by hand will force the writer to organize the letter thoughtfully and to stay consistent in the presentation of the relevant facts and in the questions to be answered. Not every cover letter will lend itself to being written by hand, but some do and taking the time to create the first draft by hand will help produce a better cover letter and will help the writer to become a more effective communicator. And more effective communications get the best results.
Everyone seeks the talisman that will mysteriously cause every claim to be resolved favorably. Sometimes we want the IME report to be that talisman. Unfortunately, IME reports do not possess supernatural influence over the outcome of claims; however, well-written reports are key elements to successfully administering claims. And fortunately, claim administrators can take steps to help ensure they receive well-written IME reports. Most importantly, claim administers should take care in drafting IME cover letters because well-written cover letters lead to well-written IME reports.
The goal in obtaining an IME report is to have the expert clearly and persuasively resolve specific issues or questions about the claim. It follows from this that communicating the issues or questions to be answered in a clear and coherent manner to the expert is necessary for the expert to understand the claim and the specific matters that need to be addressed. Claim administrators communicate this information to the expert via the cover letter. Hence, the cover letter must be well-written to achieve the goals of clearly communicating the specific matters to be addressed to the expert.
But what does it mean for a cover letter to be well-written? First, a well-written cover letter must be consistent. For example, a cover letter should not ask about the possibility of an occupational injury or disease if the only claim being alleged is a specific, traumatic, acute injury. If the cover letter is inconsistent, it can create ambiguity or vagueness that may confuse the expert as to the precise issues that need to be addressed. In the occupational injury or disease example, the expert may conclude that the alleged acute injury did not cause the condition complained of, but that the job activities generally caused the condition. Hence, the claim administrator will buy a claim that would otherwise have remained dormant. The cover letter should be both internally consistent and consistent with the actual claim being made. Otherwise, the expert may very well issue a confusing opinion or, worse yet, find an injury compensable that the claimant didn’t even raise.
Second, cover letters should be organized in a standard format. Using a standard form for cover letters benefits both the writer and the expert. The writer benefits because the standard form acts as an implicit checklist of the information that needs to be communicated to the expert. This reduces the likelihood that necessary information will be left out. Using a standard form also increases the writer’s efficiency because the writer does not have waste mental energy thinking about how he is going to format or structure every letter he writes. Finally, the expert benefits because she will know where to look to find information on what the case is about, the noteworthy medical records, and the specific questions to be answered. Thus, if the expert has a question about the date of injury, she will know precisely where to look in the cover letter to find it. Likewise, the standard form will minimize the likelihood that the expert will leave questions unanswered because she will know exactly where to look to the questions being asked.
Third, cover letter writers should use clear, direct, and simple language whenever possible. You may need to know what a ‘calumny’ is if you are taking the SAT, but you are probably better off describing the claimant’s version of events as ‘difficult to believe’ in an IME letter. The goal of the cover letter is to communicate to the expert exactly what she needs to know and what questions she needs to answer. The goal is most effectively accomplished with simple and direct language.
This was driven home for me recently in an IME that arose out of a claim with multiple respondents. The cover letter writer explained to the expert that they were ‘impleaded’ into the case by one of the insurance companies. The expert was confused and had to ask us what the cover letter writer meant by ‘impleaded.’ The client was fortunate that the expert was not afraid to ask the question and that we knew the answer. The problem is the cover letter writer used legal jargon that is commonly understood among attorneys and claims administrators, but is not a concept that a medical expert would have any reason to know. A more simple and direct way to explain the case to the doctor would have been to state:
We represent XYZ. The employee claims she hurt her right shoulder while working for ABC; however, ABC got an IME report from Dr. Doe who concluded that the employee injured her shoulder while working for our client XYZ. As a result of Dr. Doe’s opinion, ABC claims that XYZ is responsible for the employee’s right shoulder condition and brought us into the case.
If the cover letter writer used simple and direct language, the expert would have understood exactly what the claim was about and why he was being asked for his opinion. Failing to use straightforward language greatly increases the risk that the expert will be confused and issue a confusing report.
Fourth, good writing is good editing. Time is always at a premium for claims professionals and attorneys, but every IME cover letter writer should take the time to reread and edit the letter before sending it to the expert. Editing the cover letter is the only way to ensure that the cover letter is clear and coherent. When we are busy, we may be tempted to release IME cover letters without editing them, but the cost of doing so far exceeds the benefit of the time saved. For example, it is easy to misstate the side of the body to which an injury occurred when hurrying to get out a cover letter. While experts will often correct the mistake when they review the records, sometimes the impression from the cover letter sticks in the expert’s mind and she perpetuates the mistake in the IME report. An IME report that misstates the side of the body actually injured loses credibility, even if it appears that the mistake was one of nomenclature rather than intent.
As noted above, there are no talismans in claims administration. Nevertheless, claims administrators can take steps to improve the likelihood that they will be able to resolve claims favorably. Crafting a well-written cover letter is one such step. A well-written cover letter will insure that the expert will understand the case, know what issues need to be addressed, and will be aware of the writer’s role in the case. As a result, the expert will be able to address all the relevant issues from a position of knowledge and understanding. And when good questions are answered by knowledgeable experts, good IME reports result.
Few things are as frustrating as preparing an IME cover letter and getting a report back that doesn’t answer all of the questions. Most people drafting IME cover letters use a standard form letter that starts by explaining the case then summarizes the relevant records and finishes with a section setting out the specific questions the expert is to answer. The purpose of using standardized form letters is to communicate as effectively as possible. Form letters have a number of qualities that make them effective. Chief among these qualities are form letters’ consistency and predictability. In the case of an IME cover letter, the expert knows where to look to find the case summary, a recitation of relevant records, and the specific questions the writer wants answered. The letter is drafted in this predictable and stylized way so the expert doesn’t have to waste any time figuring out what is going on and what they are being asked to do about it.
Problems ensue when cover letter writers depart from the standard form because the expert cannot rely on finding the relevant information where she expects to find it. This is especially problematic when writers intersperse questions for the expert throughout the cover letter rather than placing all of the questions in the specific questions section. The main problem in placing questions outside the specific question section is that experts often overlook or forget to answer questions buried in the body of cover letters.
It can be frustrating when a question in the IME cover letter goes unanswered, but the process of how most experts prepare IME reports explains how and why this happens. Most experts receive a cover letter with the relevant records attached to it. Usually the expert will read the cover letter to learn about the case and why they are being retained. Some experts will go through and dictate the record review portion of the report when they receive the records, especially if the records are voluminous. At a later date, the expert will meet with and examine the subject. Only after the expert examines the subject will she dictate the history, examination, impressions, and specific interrogatives portion of the report. When the expert gets to the specific interrogatives, she will typically review the specific questions section of the cover letter to determine what questions the client wants answered. Ordinarily the expert will not reread the entire cover letter before answering the specific questions asked. Finally, the expert will dictate her answer to the specific questions and with that the report is completed.
Experts tend to miss questions posed in the body of cover letters because they follow a specific method of preparing reports that relies on the assumption that cover letters, as standardized form letters, will stay true to the form. In particular, experts assume that if a cover letter has a section in which specific questions are asked, all the specific questions they are expected to answer will appear there (a reasonable assumption given the fact that a separate section is being devoted specifically to the questions the writer wants answered). The very purpose of the form is to make clear to the expert what the case is about and what questions need to be answered. Departures from the form defeat its purpose.
To minimize the likelihood that a question will go unanswered, the cover letter writer should include all questions in the specific questions section of the letter. For example, if the writer summarizes an MRI scan report that demonstrates no evidence of an acute injury process despite the scan being taken within 48 hours of the alleged injury, the writer may point to this and ask the expert about the significance of the MRI findings. However, to limit the possibility that the question will go unanswered, the writer should repeat the question in the specific questions section. Doing so may seem like overkill, but repeating the question in the specific questions section of the cover letter will practically guaranty that the expert will answer the question. The standardized form of cover letters puts all the questions in a specific questions section in large part so that the expert neither has to guess at what opinions the client wants nor reread the cover letter numerous times to be sure she has answered all the questions the client wants answered.
Cover letters are effective when they are consistent and predictable. Asking every question the writer wants answered in the section devoted to the specific questions hews to this consistency and predictability. Interspersing questions throughout cover letters makes them inconsistent and unpredictable, which creates a significant risk that some of the questions will go unanswered. Avoid the risk. Put the questions where the expert expects to find them.
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?
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).
The outcome of most claims, whether worker’s compensation or personal injury, often boils down to which side tells the most credible story. And the story starts with the claimant and other eyewitness interviews. How and when these interviews are conducted can have a significant impact on what story gets told and how believable that story is. Fortunately, cognitive science has taught us a great deal about how memory works and what interview techniques are most likely to yield the most complete and accurate eyewitness accounts.
Before we get to the actual strategies for conducting better interviews, a brief primer on human memory formation and recall is in order. Human memory is not, as many assume, like video footage that is stored and can be replayed at will. Instead, memory formation and recall “is a constructive process influenced by knowledge, beliefs, expectations, and schemas.” Many people also believe that we are like video cameras that encode everything that enters the visual field, regardless of where our attention was being directed. This is simply not how memory works: “Events can only be incorporated into explicit memory if they are noticed, and attention plays a central role in the encoding process.” In addition, when people are asked to remember things from the same event on multiple occasions, they often remember different things because the different retrieval attempts “make different aspects of the memory accessible.” Laypersons and legal professionals find this counterintuitive, but “repeated interviews can be a means to improve recall performance.” (The recall of additional information about the same event at subsequent interviews is called reminiscence. ) Finally, most researchers agree that the most important way to avoid corrupting memory during an interview is to ask open-ended questions that are not suggestive.
To start with our discussion of strategies for interviewing, the timing of the first interview is critical. Odinot, et al. (2013) found that test subjects interviewed immediately after watching videos of a crime being committed provided more new details in a second interview than test subjects whose first interview after watching the video was delayed. As the authors note, “this research shows for the first time, how critical the timing of a first interview is and it supports the use of interview protocols where information can be gathered from witnesses as soon as possible after an event is witnessed.” The authors reason that “because more information is retrieved in the initial interview (than would otherwise be recalled) there may be a greater chance that these details will be used as memory cues in future interviews and/or that an earlier cognitive interview reduces forgetting of details.” The research demonstrates that if you want to get the most complete account of an event from witnesses, the first interview should be completed shortly after the event is witnessed, when possible.
In the worker’s compensation setting, this often will require the employer to conduct the first interview since there is typically a delay between when the employer reports the injury to the insurer and the time when the claim handler assigned to the case begins her investigation. Hence, it is critical that employers be provided with the tools to conduct an effective interview. This could come in the form of employee training or use of a thorough interview checklist or both. In addition, given the importance of the timing of the first interview, insurers may be wise to institute procedures that ensure a claim handler or investigation specialist is available on the same day a claim is received to conduct the necessary interviews if the insurer cannot rely on the employer.
Unfortunately, insurers in personal injury claims are often at a disadvantage compared to insurers in worker’s compensation claims because they do not have a surrogate, like an employer, who is “on the ground” and can act in their stead. Insurers in personal injury claims are generally at the mercy of the parties involved in the accident to promptly report the claim. A personal injury insurer thus cannot conduct any interviews until after a claim has been submitted and only then if the parties have exchanged accurate information. Otherwise the insurer may experience a delay in getting enough witness information to conduct interviews. In the personal injury setting, insurers should have a policy of proactively securing witness information and conducting interviews within 24 hours of the occurrence when possible.
Another useful finding from Odinot, et al. is that “a repeated interview yielded on average, 21% of previously unreported details…” Of note, Odinot, et al. did not find that reminiscence reduced study participants’ accuracy and specifically reported that “contradictory testimonies were extremely rare…” The results of the study demonstrate that “two cognitive interviews can elicit more information than just one.” Other studies have also found that multiple interviews elicit more information than a single interview and that the additional information, though technically inconsistent, was nonetheless accurate.
These findings suggest that to obtain the most accurate and complete witness testimony, two interviews should be conducted rather than just one. We tend to think that reminiscence is an inconsistency that should be viewed with suspicion; however, Odinot, et al. (and other studies) show that reminiscence is in fact accurate. If we want the fullest and most accurate witness statements, we should accept that a second interview will likely produce more information than just one interview and that so long as the additional information is not contradictory, it is likely to be accurate. As noted above, Odinot, et al. concluded that “there may be a greater chance that these details [from the first interview] will be used as memory cues in future interviews and/or that an earlier cognitive interview reduces forgetting of details.” Fisher, et al. demonstrate that reminiscence shoud generally be considered accurate: “No matter how we scored the data, there was no evidence to support the ‘Courtroom’ theory that reminiscence is predictive of inaccuracy of the overall testimony.” Remarkably, even witnesses who made many contradictory statements were found to have an overall accurate recollection when taking out the contradictory statements.
To get the most out of the interview process, some simple rules should be followed. First, at least two interviews should be conducted. This is the best way to guarantee the most complete information will be obtained. Second, the first interview should be completed as soon as possible after the event, preferably on the same day. The second interview should occur after a delay of at least one day but no more than seven days. Third, all questions should be open-ended and non-suggestive. The reason is that numerous studies demonstrate that asking closed questions such as “did the suspect have facial hair?” produce inaccurate witness recollection when compared to open questions such as, “what did the person look like?” Studies also demonstrate that suggestive questioning causes witness inaccuracy by cuing the witness into a detail or answer that may not reflect what the witness actually saw. Suggestive questions cause witnesses to think that the suggested answer is the correct one and so they will blend or bend their memory to accommodate the suggestion and hence provide an inaccurate answer. Fourth, the first and second interview should be conducted by the same person. For reasons not entirely understood, both reminiscence and accuracy increase when both interview are conducted by the same person. Following these steps will help ensure that you obtain the most complete and accurate information possible, which will ensure that the story you tell is the most credible one.
Perhaps the most vexing problem with IMEs is the conflation of correlation with causation. Nowhere is this more frustrating than in the case of symptomatic aggravation of (usually) degenerative arthritis of the shoulder, knee, and back. The classic scenario is something like this: employee is at work, suffers some sort of traumatic injury. Employee goes to the doctor and is diagnosed with a strain. Employee continues going to the doctor and says my shoulder/knee/back still hurts and it never hurt before the accident. Doctor then concludes that the accident caused a symptomatic aggravation of a preexisting degenerative condition. In Wisconsin parlance, the injury precipitated, aggravated, and accelerated a definitely preexisting, degenerative condition beyond its normal progression. Illinois, being less inclined to the prolix than its northern neighbor, simply would say the injury aggravated a preexisting condition. Either way, such claims are challenging because the ALJ or the Arbitrator sees an employee without symptomatic complaints before a work injury and symptomatic complaints after a work injury, causing her to conclude that the work injury aggravated the preexisting condition which is causing the ongoing symptoms. Frankly, it is normal for anyone faced with such facts to conclude that the correlation of reported symptom onset with a work injury means that the work injury caused the symptom onset. This is simply the way our minds process and make sense of the world: evolutionarily, it would have been better not to eat the fruit that you got sick shortly after eating than to question whether the fruit was in fact the cause of the illness.
The trick, of course, is how to combat this natural tendency to conflate correlation and causation. Often the only chance to do so is through the independent medical examination. Many physicians, when they look at a case objectively from the perspective of an independent third party, will conclude that a minor work injury causing only a strain to a joint and its surrounding structures cannot cause the symptomatic aggravation of preexisting arthritis. Regardless, the crucial factor is how the doctor explains the reason or reasons for his opinion. And independent expert who simply states that a minor injury was of an insufficient magnitude to cause permanent, symptomatic aggravation of preexisting arthritis is not likely to carry the day. It may be perfectly clear to the expert as to why the minor injury could not have caused the ongoing symptoms, but it will not be similarly clear to the ALJ or the Arbitrator without a more detailed explanation.
To convince the ALJ or the Arbitrator, the expert must provide a sufficient explanation of why the injury could not have caused the ongoing symptoms. This is where claims and legal professionals can make a substantial difference. All persons have experiences that render them especially competent in various aspects of their lives. For some it may be simply in the personal, i.e. facility with one’s social network and the vast amount of information necessary to negotiate it fluidly and with limited effort. For others, like independent medical experts, it may be highly targeted and professional, i.e. the neurosurgeon with expertise in syringomyelia. In either case, when a person speaks about a topic on which he possesses a wealth of knowledge that is both current and relevant, he often forgets to detail the assumptions or facts on which his opinion is based when speaking with strangers, the uninitiated, or laypersons. For example, a person may say to another that Sarah would never be interested in Brendan. To the friend, it may be perfectly understandable why: both parties know Sarah is conservative and values financial stability in a partner while Brendan is an underemployed artist for whom there can never be too much body art and modification. The stranger who does not know Sarah and Brendan would wonder why. The only thing that could possibly support the opinion is the trustworthiness of the speaker. The stranger would not know why Sarah would never be interested in Brendan unless the speaker explained the facts on which his opinion is based.
The mechanics of IME credibility work similarly. Medical experts are used to speaking about patients with other medical experts. These experts share a common education and professional background acquired over thousands and thousands of hours of training and practice. Hence, when an orthopedic surgeon sees a patient with a minor knee strain and concludes the injury was of an insufficient magnitude to cause permanent, symptomatic aggravation of arthritis, other orthopedic surgeons will immediately understand why based on their training, experience, and review of the medical records. No further information is required to make the opinion more intelligible or more credible.
The problem is that ALJs and Arbitrators are not trained orthopedic surgeons. They may have read hundreds of IME reports and countless medical records, but they are not physicians, do not have the same level of knowledge, and have not actually treated actual patients with arthritis. Hence, ALJs and Arbitrators lack the requisite level of knowledge to automatically fill in the blanks that the statement leaves open. Like the Sarah and Brendan case, the speaker (our medical expert), must explain why the opinion is accurate.
And this is where the claims and legal professionals come in: one of the best ways to ensure that the expert provides at least some explanation for her opinion is simply to ask for an explanation of why in the cover letter. We frequently encounter the following question or a near variation:
If the work incident did not directly cause the condition, did the work injury precipitate, aggravate, and accelerate a definitely preexisting, degenerative condition beyond normal progression?
We rarely, however, encounter any follow-up such as:
If you conclude the work incident did not directly cause the condition or aggravate a preexisting condition beyond normal progression, please explain why the current condition is unrelated to the work incident.
At a minimum, this follow-up typically results in the physician offering something more than a conclusory statement. And if specific information is sought, one could probe further and ask, for example, whether any peer-reviewed, Level I studies support the expert’s conclusion. Regardless, even asking the basic “why” question is likely to result in a more detailed, credible explanation of the expert’s opinion than not asking the question.
So what is the answer to how to convince an ALJ or an Arbitrator that a strain followed by symptomatic arthritis reflects correlation but not causation? The best reports we have seen address the issue head-on and contain some, if not all, of the following explanations. First, arthritic pain complaints often do not prompt independent medical visits until the condition becomes relatively severe. In the case of a work injury, the patient is in a treatment setting and is asked as a part of each visit, “How does your knee/shoulder/ back feel?” Once the strain has healed, a person with underlying symptomatic arthritis will report ongoing pain. This doesn’t mean that the same pain or discomfort was not present before the work injury, but now patient and treating physician alike associate the ongoing symptoms with the work injury, even though the association, absent further evidence is fallacious, an example of post hoc ergo propter hoc.
Second, the best reports explain that the injury resulted in no structural damage to the joint and that the available imaging studies demonstrate degenerative changes that would have taken many months and more likely years to develop. The experts then explain that a traumatic injury causing a permanent aggravation of the condition would most likely have resulted in different findings on the imaging studies. Further, the most effective opinions will cite to relevant medical literature demonstrating that symptomatic arthritis usually develops insidiously and almost certainly unrelated to a minor, temporary injury.
Third, most permanent aggravation claims arise in workers who are in their 40s, 50s, and 60s. The best opinions will identify age alone as the single biggest risk factor in developing arthritis. The most effective opinions will also explain that the onset of symptomatic arthritis was highly likely given the person’s age and, as is often the case, the person’s weight, deconditioning, and sedentary lifestyle. If possible, the best opinions will point to and explain how other individual characteristics such as an excessive valgus alignment in a knee case that predisposes the worker to arthritis. The expert will then explain why all of these characteristics (age, weight, etc.) are responsible for causing the symptomatic arthritis and how the appearance of symptoms after a work injury is purely coincidental.
Finally, the best reports will explain what causes arthritis (erosion of cartilage) and how a minor strain without evidence of structural damage cannot cause further erosion of cartilage that leads to the onset of symptoms. When cartilage erodes, the articulating surface of the bones in the joint rub together. The damaged joint tissue and associated inflammation cause arthritic pain. It is then explained that a minor strain causing no discernible changes in the joint tissues affected by arthritis cannot have caused the arthritic symptoms.
In this way, the expert report explains how the correlation of symptomatic arthritis with a work injury is coincidental and not causal. Even so, not every such expert report will carry the day. Nevertheless, if one is to have a chance, the medical expert cannot simply state her opinion but must explain why it is her opinion based on the relevant medical records, her experience, and any supporting medical literature. Otherwise, like per capita mozzarella cheese consumption and civil engineering degrees awarded, we could mistakenly believe that correlation is causation. So ask the expert “why”, there is a good chance it will pay dividends.
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.
Cogito ergo sum. These words of Descartes are more commonly known to English speakers as “I think therefore I am.” But what have they to do with medical treatment or medico-legal claims? Quite a bit actually. Descartes is famous among philosophers (a relative sort of fame) for arguing that the mind and the body are distinct entities. We see evidence of this intellectual approach in our distinction between the biological and the psychological. Take brain injuries as an example. We distinguish between what we consider to be organic, neurological injuries from the psychological effects of injury. Hence the distinction between post-concussion syndrome and post-traumatic stress disorder. The belief in dualism is extended into the legal realm also, where we have higher standards for proving mental only worker’s compensation injuries than mental injuries in worker’s compensation that arise out of a physical trauma. But is our insistence on this dualism, that mind and body are separate entities, valid?
Much research suggests that our conception of mind and body as separate entities is not so clear cut as we would like to believe. A good example of why we should be wary of separating the psychological from the physical involves the placebo effect. Another example involves treatment history. A group of researchers from German universities and Oxford University authored a 2014 study in which they found that treatment history experience has an astonishingly large effect on subsequent treatment, even when the type of treatment changed. In their study they gave patients analgesic medication delivered through a patch and then later switched to a different analgesic medication delivered through a topical cream. They found that those who responded positively to the first treatment also responded positively to the second treatment. More significantly, the authors found that those who responded negatively to the first treatment also responded negatively to the second treatment despite being given a different medication with a different delivery mechanism.
The findings are significant because the study “results may … challenge step care approaches in which treatment failure has to precede the prescription of next-in-line interventions.” The treatment carryover effect could have a big impact on problematic claims where acute injuries become chronic condition and nothing seems to help. As the authors note, “treatment experiences are ubiquitous in clinical care, particularly in patients suffering from chronic diseases. Carry-over effects might therefore be particularly relevant in chronic conditions where treatments often fail repetitively and negative treatment experiences accumulate along the course of the disease.” The authors suggest that targeted therapy, whether explicit psychological counseling or more implicit methods, could be used to address and attempt to overcome negative treatment history.
The study demonstrates that our minds and bodies are not as separate as we sometimes like to think they are. This can be frustrating when administering medico-legal claims because we want concrete answers. We want diagnostic images to have a one-to-one correlation with physical complaints. We want to know that if someone is prescribed a medicine, that it will work. Unfortunately, medical science tells us that the healing and treatment process is more complicated. While the treatment history study demonstrates the unpredictability of the healing process, it does offer learning opportunities. At a minimum, if we see a failed treatment history we then know that the likelihood of the next intervention working is diminished. In addition, knowing the effects of treatment history can provide a reason to have claimants undergo independent medical examinations. Once a pattern of failed treatment history develops, an independent medical examination may be worthwhile to attempt to halt the seemingly endless spiral of failed treatments.
The business of sorting out what is organic or biological from what is psychological is messy and probably futile. Perhaps it is time that we put Descartes to rest and start thinking of the mind and body as inextricably linked, so inextricably linked that they are not in effect different. Ego sum. That’s it. In the claims experience, this should help us deal with and understand the myriad responses to similar injuries that different claimants have.
One of the most difficult things involved in analyzing claims is the difference between inductive and deductive reasoning. Many of us remember the most basic form of deductive reasoning in the form of the classic syllogism presented in high school and college composition classes:
The essence of deductive reasoning is starting with a general premise or hypothesis and using specific or particular examples to reach a conclusion. An example in the medico-legal world is the general consensus that keyboard use does not cause or aggravate carpal tunnel syndrome. This would be a general premise. To support our argument we would then cite the relevant medical literature that demonstrates the correlation between keyboard use and carpal tunnel syndrome symptoms is coincidental and not causal. We would also want to cite the relevant medical literature demonstrating the types of motions and forces necessary to cause carpal tunnel syndrome. In addition, we would cite to medical literature demonstrating common risk factors for developing idiopathic carpal tunnel syndrome. Finally, we would conclude that in our case the employee’s carpal tunnel syndrome bears no relationship to her employment because her keyboarding could not have caused the carpal tunnel syndrome, her other job duties do not involve the type of repetitive motions or forces that would be necessary to cause or aggravate the carpal tunnel syndrome, and that she demonstrates X number of factors that predispose her to idiopathic carpal tunnel syndrome.
Inductive reasoning is the opposite: we take many specific instances to reach a general conclusion or hypothesis. For example, when an IME doctor says something to the effect of, “I have performed 10,000 total knee replacements and I have never seen osteoarthritis of the knee caused or aggravated by standing,” the doctor is engaged in inductive reasoning. Likewise, all peer-reviewed, randomized, controlled medical studies use inductive reasoning because they measure the effects of individual outcomes in test and control group subjects and draw general conclusions therefrom.
In one of the more famous clinical trials, Kirkley, et al. concluded that using arthroscopy to treat osteoarthritis of the knee produced no better outcomes than treating the condition with physical therapy and medical management alone. To reach this conclusion, the researchers randomly assigned patients with osteoarthritis of the knee to two groups, one which received arthroscopy, optimized physical therapy, and medical management and the other (control) group which received optimized physical therapy and medical management alone. The researchers ensured that the subjects in each group were sufficiently similar so that unrelated factors (large bucket handle meniscus tears, extreme varus or valgus alignment) would not influence the outcomes. Blinded nurses then followed both groups to measure the outcomes in each (patients in both groups wore neoprene knee sleeves so the nurses could not tell which persons had arthroscopy and which did not). The researchers measured the results and found that there was no difference between the two groups with respect to physical function, pain, or health-related quality of life at 6, 12, 18, and 24 month intervals. Based on the findings, the researchers concluded that “arthroscopic surgery provides no additional benefit to optimized physical therapy for the treatment of osteoarthritis of the knee.”
The question for us is how to apply this to the world of medico-legal claims. Much of what we do when we analyze claims is inductive reasoning. We look at particular behavior and argue that the claimant is not credible because he did X, Y, and Z, suggesting he isn’t being honest. The hidden premise is that when we have observed others doing X, Y, and Z, we have found that they were being dishonest. In order for inductive reasoning to be sound, we have to be able to demonstrate that the claimant in our case is sufficiently similar to the claimants in other cases that comprise the sample against which we are comparing our claimant in order for the conclusion to be valid. Perhaps the X in our claimant’s case is employees who claim they were injured on a Friday while at work but do not report it until the following Monday. In general, this fact pattern may suggest a credibility problem. However, what if our claimant was a salesperson not expected to report to the office until Monday who was leaving after making his last call for the day who slipped while leaving the client’s house and suffered a head injury that required him to be transferred by EMS to a hospital. Would this employee’s failure to report the injury on Friday still be a red flag regarding his credibility or honesty?
The point is that for inductive reasoning to be persuasive and accurate, it needs to be concrete and consistent. Change the sample or the instance to which you are comparing it and the argument becomes less persuasive. When analyzing a claim it is critical to recognize when you are using inductive reasoning to reach a conclusion so you can determine if there is actual evidence that supports your reasoning or if your conclusion is based on shaky assumptions about either the sample or the particular instance.
In essence, claims often involve a dance of inductive and deductive reasoning. We frequently use inductive reasoning techniques to establish the minor premise of our deductive argument. Let’s return to the carpal tunnel syndrome example. We know that keyboarding does not cause carpal tunnel syndrome. This is our general premise. We also know what types of forces have been proven to cause carpal tunnel syndrome. Our job, if we represent the employer, is to demonstrate that that claimant’s chief occupational exposure is through keyboarding and that she does not engage in other occupational activities that are known to cause carpal tunnel syndrome. This is our minor premise. Establishing that our claimant fits into the minor premise is an inductive process. We gather all relevant information available to us: job description, job video analysis, recorded statement, witness statements, etc. to demonstrate what the claimant does in her job to the highest degree of probability possible. Then we make the inductive leap and state that the claimant engages primarily in keyboarding and does not engage in any occupational activities known to cause carpal tunnel syndrome. We are then able to argue to the ALJ that the claimant’s carpal tunnel syndrome is not work-related based on the medical consensus that keyboarding does not cause carpal tunnel syndrome because her only occupational exposure is keyboarding. We might also wish to gather evidence that the claimant has characteristics common to those who develop idiopathic carpal tunnel syndrome to be able to provide the ALJ with an explanation for why she developed carpal tunnel syndrome, though strictly speaking this is not necessary to our deductive argument.
In this way, we integrate inductive and deductive reasoning to establish a strong argument. The key, though, is to understand when we are engaging in each type of reasoning so that we are gathering the appropriate evidence for each type of reasoning. If we understand this our reasoning will be sound and persuasive and we will be more effective in administering claims.
Gender. It’s all over the news for a variety of sensational reasons that have nothing to do with independent medical examinations. Nevertheless, gender can be important in independent medical examinations. For example, a study published online in Radiology finds women who sustain mild traumatic brain injuries have significantly greater working memory impairment which persists for longer periods than men who suffer mild traumatic brain injury. In managing a claim file with a mild traumatic brain injury, this information is important for at least a couple of reasons. First, it should help gauge when a claim has gone from an expected recovery pattern to an unexpected one. If we know that men typically do not experience working memory impairment in mild traumatic brain injuries beyond 4 weeks and a claimant is still complaining of memory problems beyond that time, we should certainly be asking questions of the provider and may wish to consider setting up an IME to get a second opinion. Conversely, if a woman who suffers a mild traumatic brain injury complains of working memory problems 8 weeks after the injury, we should not necessarily be alarmed.
Second, knowing the differences in the way persons of each gender respond to common injuries and conditions can help us tailor our questions to the IME doctor. Certainly in the mild traumatic brain injury example involving a male claimant we would want to specifically ask whether claimed working memory impairment past four weeks post-injury would be unusual for a male. In this way, we can use a question to alert the IME doctor as to why we think something is remiss in the claim and to elicit a specific explanation that will bolster the basis for the doctor’s opinion. Another example of a gender-specific response involves whiplash injuries. The medical literature demonstrates that female gender is associated with greater risk of whiplash injuries resulting in chronic or permanent complaints. If we have a male claimant alleging permanent whiplash-type injuries without objective evidence of ongoing injury, we would want to direct the IME doctor’s attention to whether this is consistent with the literature on how male bodies respond to whiplash.
Beyond medico-legal claims, gender matters also. A lot. Take heart attacks. Most people know that squeezing chest pain is a symptom of heart attacks, often described “like an elephant” sitting on the chest. Far fewer people know that “women can experience a heart attack without chest pressure.” Also, according to the American Heart Association, “women are somewhat more likely than men to experience some of the other common symptoms, particularly shortness of breath, nausea/vomiting and back or jaw pain.”
Why is this significant? First, heart disease kills more men and women than all forms of cancer combined. Second, the key to surviving heart attack is early intervention. If we do not differentiate heart attack symptoms by gender and educate people accordingly, more than half the population is at increased risk of death from the leading cause of mortality simply because they lack basic, simple knowledge. This increased risk has nothing to do with age, wealth, health insurance, race, etc. The only reason for the increased risk is that the former one-size-fits-all-genders approach to medicine forgot a simple truth: men and women are different.
In the medico-legal world we administer claims of both male and female claimants. To fulfill our responsibilities most effectively, we must recognize that men and women are biologically different in ways that can affect the outcome of a claim. We must be aware of the physical conditions and injuries to which men and women respond differently so we can differentiate between what is normal and what is not, so we can know when to get an IME, and so we can ask the right questions once we schedule an IME. Injuries are not “one-size-fits-all-genders” any more than heart attacks are. Knowing this will make us better claims handlers, nurse case managers, paralegals, and attorneys (and it might help save a life, perhaps even yours).
I spend a lot of time reading news about medical advancements so I can post interesting and useful (I hope) things to this blog. However, sometimes reading about medical advancements can be dispiriting because we frequently are told that what we thought we knew is wrong. Take the recent news that acetaminophen (Tylenol®) is not effective for treating low back pain or knee and hip osteoarthritis. Acetaminophen has been around since 1955 as an analgesic and antipyretic (fever reducer). In addition to its other uses, the American College of Rheumatology recommends acetaminophen as an option to treat knee and hip osteoarthritis. The American College of Physicians and the American Pain Society recommend acetaminophen as a first line treatment for low back pain. One must wonder how many millions of dollars consumers and insurance companies have spent on a drug that essentially doesn’t work to treat low back pain and knee and hip arthritis pain based on the recommendations of doctors, pharmacists, and nurses. And this is just the most recent example.
Naturally, we can be led to believe that there is something nefarious or avaricious about the medical profession and the pharmaceutical industry when we learn of developments like the recent findings about acetaminophen’s ineffectiveness. As someone who in the past defended employers and insurance companies against many carpal tunnel syndrome worker’s compensation claims allegedly related to keyboard use, I have gotten extremely upset at the amount of money spent to cover carpal tunnel syndrome claims that virtually no credible physician would consider to be work-related today because research now demonstrates definitively that repetitive keyboard use does not cause or aggravate the progression of carpal tunnel syndrome. Ditto performing arthroscopic chondroplasty to treat knee osteoarthritis. I have certainly entertained thoughts of greedy physicians eager to cash in on patients and the worker’s compensation system, especially when we learn that what they thought was true was in fact erroneous. I think we have this impulse because we know that medicine is based in part on science; hence, we expect medicine to be reliable and its practitioners to possess accurate knowledge. Any experience to the contrary makes us feel like we are being duped.
The problem is that our understanding is only partially correct: medicine is, in part, based on science; however, the conclusions that we draw from our understanding is incorrect: scientific fields of study are, by the very nature of science, in perpetual flux. Scientists form hypotheses based on observations. They then perform experiments to test the hypotheses. The experiments may confirm a hypothesis or refute a hypothesis or fall somewhere in between. Scientists try to isolate outside variables and eliminate bias from the experiments, but they are not always successful in doing so. Hence, the results from an experiment that seem to be valid may be found to be problematic or invalid at a later date if the results cannot be duplicated or if unappreciated confounding variables are discovered.
The placebo effect of sham arthroscopy exemplifies how this can happen. The initial investigators into the effectiveness of using arthroscopic chondroplasty to treat knee osteoarthritis could not conceive of a placebo effect in a surgical setting, so they did not even consider the possibility that arthroscopy could have a placebo effect. Early studies demonstrated that arthroscopic chondroplasty was effective in treating knee osteoarthritis. However, after years of treating knee osteoarthritis with arthroscopic chondroplasty, a number of doctors began to suspect that it was not particularly effective based on the results they were observing. Some noted the initial positive results and subsequent lack of expected improvement were similar to a placebo effect. These doctors began hypothesizing that the arthroscopy itself was having a placebo effect. Two studies were performed to reevaluate the long term effectiveness of treating knee osteoarthritis with chondroplasty, including one that used a control group that received sham arthroscopy. Both studies concluded that treating knee osteoarthritis with chondroplasty is no more effective than treating knee osteoarthritis without surgery. The study using sham arthroscopy further concluded that arthroscopy has a significant and measurable placebo effect which accounted for the perceived success of using arthroscopic chondroplasty to treat knee osteoarthritis in earlier studies.
The fact that science requires constant questioning of the status quo is a profound virtue, despite our natural desire for settled and secure knowledge to the contrary. Consider that if medical researchers had not critically observed patients undergoing arthroscopic chondroplasty for knee osteoarthritis and questioned earlier research, doctors would be continuing to perform a useless procedure at great cost to patients and third party payers. Similarly, if we didn’t constantly question our knowledge based on our observations, we would still consider smoking cigarettes to be beneficial to pulmonary health (as many once believed) and would consider bloodletting to be an effective treatment for myriad conditions and diseases. Science is hard and sometimes exasperating because scientists never rest or accept the status quo; however, this is its genius.
In many ways, constantly questioning and not accepting the status quo is useful in the claims world also. One way to bring the constant reexamination of assumptions from science to claims is to question some assumptions that we rely on to see if they have a legitimate basis in reason and fact. A perfect example is the list of standard red flags that are cited as increasing the likelihood that a claim is not legitimate. Some standard red flags include:
It may be that these red flags are based on legitimate assumptions, but if they are not it is a waste of time for claims professionals to devote extra time to a file based on them. Let’s examine them one-by-one to see if the red flag assumptions bear out.
First, we want to question a claim because we didn’t get notice of the injury until after the employee was laid off. The assumption is that if the injury was legitimate the employee would have reported it when it happened. The conclusion drawn is that the late reporting is done either to obtain continued wages in the form of TTD (and perhaps medical coverage as well) or to spite the employer. Consider another assumption though: the employee did not report the injury while he was working because he feared he would lose his job if he did so. Once the job was gone, he no longer faced the same economic or psychological constraints. This assumption may seem strange, but we know people regularly engage in such counterintuitive behavior. For example, it is established fact that a significant percentage of innocent persons who are investigated for and accused of committing a crime will falsely confess or plead guilty to a crime they did not commit. The reasons people do so are myriad, but it is beyond debate that this behavior regularly occurs. Before we make the assumption that reporting injury after termination or lay off suggests a claim is not legitimate, we should at a minimum have other reasons supporting the assumption since there are equally plausible reasons that suggest late reporting is in fact a legitimate behavior. Better still, we should examine claims in a scientific manner to determine if there is actual support for our assumption that claims reported after termination or lay off are baseless more often than claims not reported after termination or layoff.
Second, we are told that unwitnessed accidents are suspicious. By itself this statement must be admitted to be practically incoherent. The assumption is that for an accident to be legitimate it must have been witnessed. Absent context, this is nonsensical. Can we really equate the legitimacy of an inventory clerk who spends 85% of her day alone and suffers an unwitnessed injury with a line worker who spends 98% of her day in the presence of co-workers and suffers an unwitnessed injury? Also, the context of the injury itself is important. The facts are considerably more likely to suggest legitimacy (or lack thereof) than whether or not someone else saw the injury happen.
Third, we are told to be suspicious when an injury related to the same body part affected by a preexisting condition. The assumption seems perfectly legitimate: the preexisting condition is causing the problem and the worker is claiming worker’s compensation to avoid wage loss, out-of-pocket medical expenses, etc. However, is it not equally plausible that a preexisting condition means that the body is in a weakened state and is therefore more susceptible to injury than if it were healthy? Obviously other factors will determine the likelihood of the injury’s legitimacy, but that is the point. The red flag and the assumption on which it is based gets us no nearer the truth, and possibly farther from it, than if no red flag assumption was made.
By questioning whether the assumptions we use to evaluate claims are true, we can weed out those which have no reasonable basis in fact from those that do. And making claims decisions based on reason and fact will lead to more accurate and efficient claims analysis. We no longer practice bloodletting because it rested on faulty assumptions about human physiology. It is important that we examine our assumptions so that we don’t practice bloodletting in our claims.
Over the past year, we have been periodically publishing posts about strategies to improve decision making that are based on an article Jeffrey Brewer wrote on the topic. Our prior posts addressed the first nine of the ten individual strategies Brewer outlined:
At long last, we have come to Brewer’s tenth and final step, where we put all the prior steps together:
Before we address the final step in detail, we must review why we are concerned with decision making in the first place. The chief reason is that a plethora of scientific research tells us that detrimental cognitive biases and heuristics infect our decision making if we do not adopt a systematic approach to control and limit their effects. Brewer’s strategies for improving our decision making offers just such a systematic and rational approach to limiting the effects of cognitive biases and heuristics.
A short review of how cognitive biases and heuristics detrimentally effect decision making is also in order before we get to the final step. One heuristic that often arises in the medico-legal context is the association of correlation with causation. Thus, we frequently are faced with ALJs, circuit court judges, and juries who conflate correlation with causation and assign legal causation based on temporal proximity rather than actual causation. Hence, in the worker’s compensation setting ALJs often conclude that employment activities caused or aggravated a low back problem simply because the worker experienced pain while working. It is incumbent on us to understand this casual but unconscious heuristic so that we can introduce persuasive evidence to attack it and demonstrate that it is fallacious reasoning.
One cognitive bias that often arises in the medico-legal context is the confirmation bias, which causes us to overweigh information consistent with our position (i.e. that the employee’s complaints are not related to the workplace accident) and to under weigh information that is inconsistent with our position (i.e. the employee’s complaints are related to the workplace accident). Failing to have a strategy to reduce the effect of the confirmation bias will cause us to persistently and unconsciously overestimate the strength of our position. This in turn is likely to persistently compromise our ability to settle claims and lead to bad results. Of course the good news is that both sides are subject to the same cognitive biases and heuristics. Thus, if we can limit their effects on our decision making, we will be at a comparative advantage.
So now that we know why developing a consistent decision making strategy is important, let’s get back to Brewer’s final step: to develop self-consciousness concerning one’s own thinking and reasoning process. This step involves reflecting upon the decision making processes one is using, deliberately invoking those steps that are most appropriate to the given circumstances, and consciously transferring those reasoning methods from familiar to novel contexts. In other words, the final step is to internalize the decision making process so that we automatically follow it in every case, new or old.
In essence, Brewer wants us to have a method for problem-solving that is second nature, which will ensure that we will reason well and thoroughly when thinking on our feet. For example, we may be familiar with rotator cuff claims but may be faced with a claim involving an alleged SLAP lesion, with which we are considerably less familiar. The claim’s relative novelty should not faze us if we have mastered the process of rational decision-making. If we lack expertise, the process of analyzing, investigating, and judging will take more time than it otherwise would; however, the process itself should not be daunting because it should be the same regardless of our expertise. Evidence and assumptions are subject to the same testing and analysis. Our conclusions are evaluated in the same way to determine internal consistency. We will need to learn what the rules governing the new problem are and how they are applied to particular cases. Once we have this information, the actual decision-making process is the same regardless of whether we are familiar with the type of claim or not.
Take the diagnosis of SLAP lesions. Often a claim involving a SLAP lesion will be made based on MRI findings. We have, for whatever reason, a tendency to reflexively accept MRI as being accurate diagnostically and as accurately establishing a causal link between a patient’s physical complaints and the findings on the scan. In truth, MRIs are neither accurate in all instances nor can an MRI alone establish that the patient’s physical complaints are related to the findings on the scan. For some orthopedic conditions, MRI is the diagnostic gold standard; however, for other orthopedic conditions MRI is not an effective diagnostic tool. For example, studies have shown that MRI is more sensitive for diagnosing posterior collateral ligament (“PCL”) tears in the knee than arthroscopy because of the ligament’s anatomical position. On the other hand, diagnosing SLAP lesions on MRI is exceedingly difficult with false positive rates of over 20% and false negative rates that can exceed 50%. The American Academy of Orthopedic Surgeons reiterates that MRI is not considered reliable in diagnosing SLAP lesions:
Although other diagnostic tools—such as radiographs, computerized tomographic arthrography, and magnetic resonance imaging—are frequently used, the results are not considered reliable enough to make a definitive diagnosis of a SLAP tear.
Further, the Mayo Clinic reports that:
As imaging continues to improve and more people undergo MRI studies, physicians are finding that a significant percentage of people within the general population have labral changes that do not cause symptoms or need repair. In particular, there are age-related changes that can cause degenerative splits and tears in the labrum. While they may not be symptomatic, visually they can mimic a SLAP lesion. When these appear in MRI studies, misleading assumptions may be made between the images and the patient symptoms.
If we are self-conscious about our own thinking and reasoning, we will know that the first question we should be asking when we face a diagnostic imaging study, MRI or otherwise, with which we are unfamiliar (due to the body part or the actual test itself) is the rate of false positives and false negatives for the imaging test. From there we will know that we should ask what is the diagnostic gold standard and how does the current test compare to other diagnostic techniques, including physical examination? What does the medical community recognize as the definitive test or tests for establishing the diagnosis? What is the consensus on the relationship between particular physical complaints and the findings on diagnostic imaging studies? Before we accept test results or acquiesce to a request for testing, we will be able to determine if the results or a request are likely to be considered reasonable as a matter of medical necessity and whether we should be considering a second opinion record review (at the very least) to evaluate the results of the a request.
With respect to SLAP lesions, the increase in SLAP lesion repairs and the rather dismal success rate offers a good example of why adopting and adhering to a rational decision-making process is so important. Between 2004 and 2009, the rate of SLAP lesion repair increased 105% despite the fact that the incidence of SLAP lesions in the general population did not appear to increase. This should give us pause to ask a few questions in keeping with our decision-making strategy. First, was a diagnostic tool developed that demonstrated an increasing amount of symptomatic SLAP lesions in the general population? Answer: no. Second, was a new surgical technique developed that allowed previously unrepairable, symptomatic SLAP lesions to be successfully repaired? Answer: no. Third, was a surgical technique developed that greatly increased the rate at which SLAP lesions could be repaired successfully? Answer: no. Fourth, was there a change in the general population that caused substantially more people to suffer from symptomatic SLAP lesions? Answer: no. So why, then, are so many more surgeries to repair SLAP lesions being performed? Perhaps there wouldn’t be such a precipitous increase if an internalized process of rational decision making were applied to these claims.
Ultimately, using a rational decision making approach will cause us to get beyond the bias we have toward overweighting MRI findings and to develop a strategy for managing the claim based on fact as opposed to bias and assumption. And when we do this, when we are self-conscious about our thinking and reasoning process, we will know that just because an MRI finds evidence of labral changes and an orthopedic surgeon says the employee needs surgery to repair the labrum doesn’t mean we should accept the findings or the recommendation at face value. Instead, we will get a second opinion and potentially spare ourselves the cost of a surgery that is likely to be unnecessary and ineffective. In the end, this is the essence of good decision making.
Reason #1: Employers shall not use doctors “employed on a regular basis by the employer” when seeking FMLA second opinions. We have a large number of doctors to choose from and can track how many times you have used the same doctor.
Medical Systems, Inc., we’re not just for worker’s compensation any more.
What is it about shoulders? They seem to cause an inordinate amount of problems, especially when the rotator cuff is involved. And invariably, there is a question as to whether a shoulder claim involves an acute injury, an acute aggravation of a preexisting condition, an occupational injury, or the mere manifestation of a preexisting condition. One of the biggest challenges in claims is determining whether and to what extent a shoulder condition is work-related. Unfortunately, this task is often difficult for physicians too.
The hallmark of an acute rotator cuff injury is an asymptomatic shoulder, a discernible traumatic event, and immediate pain and weakness. Unfortunately, this type of presentation accounts for less than 10% of all rotator cuff tears according to some literature. In addition, the medical literature suggests that acute rotator cuff tears are underdiagnosed in emergency departments and often attributed to tendonitis, bursitis, arthritis, or some combination of all three. To further complicate matters, many other conditions of the shoulder, cervical spine, and peripheral nerve system can produce symptoms that are similar to symptoms occurring in rotator cuff tears. And finally, a somewhat sizable percentage of the population has asymptomatic rotator cuff tears which makes the determination of the etiology of the cuff defect difficult to determine.
The best way to assess whether a rotator cuff tear is acute or traumatic is with diagnostic imaging. Numerous studies have found that mid-substance tears are more likely to be acute than insertional tears. The presence of swelling and joint fluid or a hematoma also suggest that a tear is acute. To the contrary, the absence of joint and bursal fluid suggests a chronic tear. The presence of fatty infiltration and the degree of rotator cuff atrophy are also useful findings to assess the chronicity of the tear. Interestingly, at least one study found that the “injury mechanism and the activity at the moment of injury did not correlate with the presence of a rotator cuff lesion,” but also found “a strong age correlation, with a prevalence of RCTs above 50% in patients aged over 50 years…” This study suggests a shockingly high rate of rotator cuff injury resulting from shoulder trauma in persons over 50.
The strong correlation between age and rotator cuff tear caused one study’s authors to postulate that “it is even likely that there [is] no such thing as an acute cuff tear without some previous tendon degeneration.” The authors of another study address the complicated relationship between the chronicity and symptomatic nature of rotator cuff tears and note that the “duration of symptoms does not necessarily reflect the duration a patient has had a rotator cuff tear… It is not understood why full-thickness tears become symptomatic in some individuals and not others.” How then, can any physician determine to a reasonable degree of medical certainty if a particular rotator cuff tear relates to the patient’s employment in the absence of diagnostic imaging that suggests a tear is acute?
In truth, the answer is that any physician who attributes a symptomatic rotator cuff tear to a workplace injury is most likely engaging in speculation if there is no acute traumatic event and no diagnostic imaging evidence demonstrating that the tear is acute. This doesn’t mean that the tear can’t be acute and work-related, simply that there is no reasonable basis for a physician to determine the exact etiology of the tear to a reasonable degree of medical certainty. In handling claims, it is important to recognize these situations and pose the question to the IME doctor directly as to there is any way, given the current state of evidence-based medicine, to determine what caused a rotator cuff tear (or caused it to become symptomatic) to a reasonable degree of medical certainty in the absence of an acute traumatic event, diagnostic imaging evidence that a tear is acute, or occupational risk factors such as repetitive overhead work. If there are no specific risk factors, no precipitating injury, and no diagnostic imaging evidence of an acute tear, the answer should always be “no.”
From a claims perspective, there are several useful things that can be gleaned from the medical literature addressing rotator cuff conditions. First, a definitive assessment of causation in the absence of a discrete, acute precipitating event with imaging evidence demonstrating the presence of an acute tear or an occupational risk factor should be considered impossible. Of course treating surgeons will attempt to relate rotator cuff conditions to workplace injuries that do not meet the above criteria, but it is incumbent from a claims perspective that the IME physician points to the relevant medical literature and explains why it is not possible, to a reasonable degree of medical certainty, to determine the etiology of a rotator cuff tear in the absence of the above criteria.
Second, it should not come as a surprise if an employee over 40 who says they hurt their shoulder and is told that it is just a strain or tendinitis when they go the ER later discovers she has a rotator cuff tear. The medical literature suggests that clinical examination in the emergency setting underestimate the presence of rotator cuff tears. The relevant study found that in the patient population complaining of an acute shoulder injury who have an inability to perform active abduction above 90° and normal radiographs, more than 50% will have rotator cuff tears. In establishing reserves, if the medical records show normal radiographs coupled with an inability to actively abduct the shoulder above 90°, it may be wise to consider the likelihood of a rotator cuff tear requiring surgical intervention to be 50%.
Finally, knowing the different shoulder, neck, and peripheral nerve conditions that have similar symptom constellations to rotator cuff tear will help to assess what the likely diagnosis will be based on the clinical history, examination, and positive findings. Thus, a shoulder complaint that can be localized to the acromioclavicular joint, is more likely to be a shoulder separation or acromioclavicular arthritis than a rotator cuff tear. In another example, a complaint of gradual onset of shoulder pain with weakness that is especially noticeable during sleeping hours is likely to be a chronic rotator cuff tear or advanced impingement syndrome than an acute rotator cuff injury.
The bottom line is that shoulder injuries are often difficult claims, especially when they involve rotator cuffs. Knowing the medical literature about how rotator cuff tears occur and what suggests acute versus chronic tears can help guide the claims analysis. To learn more about the diagnosis, management, and prognosis of rotator cuff tears, join us on February 26, 2015 for the Medical Systems Advanced Medical Topics in Worker’s Compensation in Brookfield, Wisconsin at which Dr. Bartlett will give an in-depth presentation on acute shoulder injuries. Claim handlers and legal professionals alike will gain valuable information on what claims will likely be compensable and what medical information can be used to defend against those which should not be compensable.
We previously began a series on how to improve decision making while managing claims. The series was based on a paper by Jeffrey Brewer. In the paper, Brewer identifies 10 strategies for improving decision making:
Prior entries addressed strategies 1-6. This entry will examine Brewer’s seventh strategy for improving decision making:
Perform hypothetico-deductive reasoning, that is, given a particular situation, apply relevant knowledge of principles and constraints and visualize, in the abstract, the plausible outcomes that might result from various changes one can imagine being imposed on the system.
In this directive, Brewer challenges us to remove emotion and bias when we examine claims. It is easy to make assumptions based on first impressions and intuitions when you first receive a claim. Hence, one may think a claim is bogus or fraudulent because of the claimant’s long history of unwitnessed soft tissue injury claims instead of analyzing the claim and what the likely outcomes will be based on the available evidence. The claimant’s history of making dubious claims is relevant, but focusing on that history without first examining the available objective facts and the inferences to be drawn from them would be a mistake. The claimant’s history impacts her credibility; the claimant’s credibility impacts the likelihood of the claimant succeeding at hearing or trial, which is nothing more than a probability function that helps determine the dollar value of the claim. Even if evidence of actual fraud arises, the information will reduce the claim to a zero or negative value. [By negative value I mean that the claimant could owe penalties or restitution that would inure to the benefit of the employer or insurance carrier.] Regardless, even in a case of outright and uncontested fraud, the ultimate effect is an economic one despite the moral outrage one may personally feel about the claimant’s fraudulent (and probably criminal) behavior.
If we cannot separate our personal feelings about a claim or a claimant from our analysis of the claim, we are likely to make poor decisions regarding both the value of the claim and how the claim should be managed. For example, in our fictitious claimant with a long history of dubious claims, we may be inclined to put more resources into surveillance than the facts and exposure on the claim would otherwise suggest is appropriate. Also, we may be prone to understate the claim’s value because we are likely to transfer our suspicion into our calculation of the exposure and our likelihood of successfully defending the claim at hearing or trial. In both the management and valuation of the claim, we may potentially set ourselves up for an unpleasant surprise if we judge a claim based on our visceral response to the claimant’s history rather than the actual demonstrative evidence.
A better way to address claims is to run it through “hypothetico-deductive reasoning” to visualize the possible outcomes based on the actual demonstrative evidence. This process of analysis has the virtue of forcing us to consider possible outcomes that may run counter to our emotions and intuitions (which are unlikely to be based on the actual demonstrative evidence before us). The process of dissociating ourselves emotionally from claims to engage in this reasoning process helps ensure that the decisions we are making are based on objective evidence and not on unsupported evidence or personal bias.
Let’s consider an example based on the above discussion. Let’s say Hank has worked for the Acme Corporation for 22 years assembling road runner retention and destruction devices for a certain loyal, if misguided, customer who happens to be a member of the species canis latrans, more commonly known as a coyote. In 13 of his 22 years at Acme, Hank has made a worker’s compensation claim. Remarkably, in 8 of the 13 claim years Hank suffered an unwitnessed soft tissue injury within weeks of the opening of gun deer hunting season. (The Acme Corporation happens to be located in Wisconsin where some consider the opening of gun season to be a bona fide sacred holiday). In 4 of the remaining 5 claim years, Hank suffered unwitnessed soft tissue injuries in suspiciously close proximity to various legally recognized holidays. In short, Hank and his claim history are sources of enormous frustration for his employer who rightfully regards the claims with more than a modicum of suspicion.
Now entering his 23rd year of service for the Acme Corporation, Hank claims to have injured his shoulder assembling a pair of roller skates that are fitted with expandable jet engines for the misguided coyote. In what is a running joke among the human resources and risk management departments, the injury occurred while Hank was working alone and a mere 3 days before the opening of gun hunting season, during which Hank has neglected to take any vacation days. Aside from rolling eyes and jokes at Hank’s expense, the employer is sincerely and understandably frustrated with the amount that the claim will cost the company. Accordingly, they have communicated their suspicion regarding the veracity of this claim to their insurer. Such is the employer’s level of frustration that the employer has demanded that their insurer take a scorched earth policy in investigating and, they have no doubt, in denying and subsequently litigating the claim. Included in this demand is the employer’s “suggestion” that surveillance be performed.
The claims handler assigned to the case reviews Hank’s claims history and discusses the current claim with the employer and, understandably, is left with the distinct impression that the claim is suspicious at best. Based on the information from the employer, the claims handler is inclined to believe that Hank is undoubtedly faking the injury to get off work for deer hunting season and that she should arrange, post haste, for surveillance to catch him enjoying his worker’s compensation-funded vacation.
However, the claims handler has additional information available at the time she ordered surveillance. First, the employer had a physical demands analysis conducted on the job Hank was performing when he claims to have injured his shoulder. The occupational medicine specialist performing the analysis concluded that the job Hank was performing put employees at a moderate-to-high risk of sustaining shoulder injuries because of the combination of the forces involved and the awkward, overhead positioning. Second, the injury report documents that Hank reported the injury two thirds of the way through his shift on a Wednesday, that he reported the injury immediately, and that he went to the emergency room immediately after reporting the injury.
At this point, if we apply hypothetico-deductive reasoning to the available facts we have essentially two likely scenarios. First, Hank’s claims history suggests that he may be using an unwitnessed “accident” to get time off from work with TTD benefits to go deer hunting. Second, the physical demands analysis, the fact that it occurred mid-shift/mid-week, Hank’s prompt reporting, and Hank’s prompt treatment suggest that perhaps the claimed injury may be legitimate. Under the principles of hypothetico-deductive reasoning, we should at this point consider what information we would need to make one scenario more plausible than the other.
We know that Hank went to the emergency room. We should find out, if possible, what diagnostic tests were done, the results of the physical examination, whether a definitive diagnosis of an objective injury was established, whether the diagnosis was wholly based on subjective complaints, etc. We would also want to know if other employees suffered similar injuries doing the same or similar jobs. We should interview Hank before conducting surveillance. Perhaps his claims history suggests that he has not been credible in the past, but we want to base our judgment on present information. We would want to know how he described the incident he claims caused an injury. We would want to know whether the incident was acute, definable, and resulted in immediate pain versus a more nebulous scenario in which pain arose gradually and was not attributed to a specific motion or incident. We would want to know what the emergency room doctor or PA told him was the diagnosis. We would want to ask him about his deer hunting plans.
Let’s start with the emergency room visit. If the diagnosis is shoulder instability/subluxation (also known as a partial dislocation) based on x-ray evidence, this would probably trump any suspicions we might have based on his prior claims history. On the other hand, normal imaging studies and a shoulder strain diagnosis based wholly on subjective complaints would bolster our suspicion that Hank is acting consistently with his prior questionable claim history. The same analysis would apply to the other pieces of information obtained in the investigation. Our gut instinct might tell us the Hank or any other employee is manipulating the system and fabricating an injury, but we should test our assumptions and instincts using hypothetico-deductive reasoning so that we engage in the most thorough investigation possible, are unsurprised when the investigation follows a plausible path (even if it conflicts with our gut instinct), and make our claims decisions based on reason rather than emotion. In this way, we can make the best decisions when managing claims, even if that decision is at odds with our gut.
On a related note, one of Hank’s co-workers completed the roller skates with the expandable jet engines. The roller skates were successfully shipped to the coyote in an otherwise nondescript wood box stamped all over with “Acme Corporation” in bright red letters. Fortunately for the coyote, the skates worked precisely as expected. After hiding behind a large cactus conveniently located next to a long stretch of single lane highway in Monument Valley, the coyote heard the approaching “Beep, beep” of his longtime avian prey and foe. As the roadrunner sped by, the coyote activated the jets and took off with remarkable alacrity after the bird. Unsurprisingly, the jet-powered roller skates soon brought coyote even with and then past the roadrunner who, in typical form, gave out a nonplussed “Beep, beep” as the coyote wooshed by.
The coyote realized too late his error in not requesting from Acme Corporation that some sort of braking mechanism be added to the skates/jet engines. Specifically, the immense power and speed of the jet-powered skates propelled him the entire length of the straightaway and quickly brought him to a 90 degree turn in the road at the apex of which stood the rock face of a mesa. With roller skate wheels lacking the necessary friction coefficient to execute the turn and 375 miles an hour, the coyote surrendered himself to inevitability with a resigned and slightly plaintive look, and struck the rock face with a “poof,” causing a rather large cloud of dust to appear. Miraculously, coyote walked away from the crash. He had, however, reached a breaking point. Instead of contacting Acme Corporation for a new and ridiculous contraption for catching the roadrunner, he contacted a products liability attorney in Phoenix…
Choice architecture is the idea that the way in which choices are framed influences the actual choices that are made. The idea arose out of findings in psychology of persistent and pervasive cognitive biases and decision-making heuristics. The thought behind choice architecture was something like this: if we know how biases affect decision-making, then we should be able to structure choices to “nudge” or push people toward the choices we want them to make by taking advantage of people’s cognitive biases.
Cognitive psychology has given us numerous examples of the way in which framing choices influences what choices are actually made. An interesting example involves default options and organ donation. In countries where the default option is to donate and persons must affirmatively check off a box to show one does not want to donate, the vast majority of persons opt for the default (85-99%). To the contrary, in countries where the default option is to not donate and one must affirmatively check a box to show one wants to donate, the vast majority of people opt for the default (80-95%). The conclusion from this finding is that we can take advantage of the status quo bias (the default option) to achieve a result we want.
Some of the findings regarding cognitive biases are relevant to claims administration. For example, the anchoring bias is the common human tendency to give too much weight to the first piece of information one receives when making subsequent decisions. In the claims setting, this bias could suggest when to make a settlement offer and how much that offer should be. I know many people express frustration at the negotiation process (and I was one such person) and think, shouldn’t we just offer what the claim is worth and be done with it? Unfortunately, the answer is probably “no.” While it may seem easier to price a settlement like it was a piece of merchandise on the shelf at Target, the effect of doing so would likely be deleterious. Even if the offer is fair, it will likely have the effect of convincing the other side that they can get a higher or better settlement because they will judge the settlement value in part based on the first offer they receive which by habit they will consider to be your floor. To take advantage of the anchoring bias, initial offers to settle claims should be sufficiently low so that the other side’s calculation of settlement value is influenced downward. Although this results in the typical tit-for-tat negotiations, it is probably the best way to handle an initial settlement offer given what we know about the anchoring bias.
Another cognitive bias that could potentially be used to one’s advantage in settlement negotiations is the endowment effect. This bias is the tendency of people to value giving something up more than they value acquiring the same thing. The clearest example in cognitive psychology involved basketball ticket prices. When Duke University students were told they won tickets to the NCAA basketball tournament Final Four they valued them considerably higher than students who were told that they had to buy the tickets. In that experiment, students who won the basketball tickets said they would sell the tickets at an average price of $2,400. Students who were told they would have to buy the same tickets said they would buy the tickets for an average of $170. Obviously this is an extreme example, but other research consistently finds that persons value a thing they own 2.5 times higher than the identical thing that they have to purchase.
In the settlement context one might be able to influence outcomes by framing the discussion not as something being given up but rather as something being gained. When claims are settled, employees (for example) tend to think that “I have a claim worth X dollars” so that any settlement is a reduction in the value of “their” claim. Perhaps the discussion could be reframed to suggest that the employee has a claim worth zero dollars because of an IME or a factual defense. In this way, the claimant is not giving anything up but is rather acquiring something, which could potentially lower the value at which they accept a settlement. Obviously represented claimants have an attorney to get through, but still this has the potential to be an effective negotiating strategy. Certainly it is something that one could use at mediation to tell the mediator how one would like any settlement offers to be presented.
So is choice architecture real? It appears to be a legitimate method to influence decision-making under the right circumstances. While nothing can guarantee that using choice architecture will lead to better results, it is a tool that claims professionals can use in situations where cognitive biases are present to try to shape the decision-making process. Choice architecture will generally have little or no cost and potentially has significant benefits. Hence, it is a strategy worth considering the next time you are trying to settle a claim.
“Draw inferences from data, observations or other evidence and recognize when firm inferences cannot be drawn.”
What is data? “Factual information (as measurements or statistics) used as a basis for reasoning, discussion, or calculation.” It is useful to keep this in mind when assessing claims. Observations are, “act(s) of recognizing and noting … fact(s) or occurrence(s) often involving measurement with instruments.” Evidence can be described as, “an outward sign.”
What data, observations, and evidence have in common is that they are things that demonstrate a particular state of affairs without requiring inferential reasoning. In other words, they are things that stand for other things. To make sense of evidence, which I shall use as shorthand to describe data, observations, and evidence, inferential reasoning is necessary. In other words, evidence only means something if we connect the dots between multiple pieces of evidence and what those pieces stand for. For example, in the forensic setting DNA evidence simply means that a biologic sample from a particular person was found at a particular location. This in itself does not allow us to draw an inference that the person whose DNA is found at the scene of a crime committed the crime. Instead, we use inferential reasoning based on additional factors to conclude that the DNA evidence means that the person being accused of the crime and whose DNA was found at the scene committed the crime. Typically, forensic experts and attorneys make the inference based on one of two possible factual scenarios. First, that the suspect’s DNA is the only DNA present other than the victim’s and there is no connection between the two persons. Second, the suspect has a connection to the victim but is the only person whose DNA was present and who did not have a plausible alibi. In essence, the DNA places the person at a location and the background information allows us to infer that the person was at the location at a particular time i.e., when the crime was being committed. The evidence is important, but only insofar as strong inferences can be drawn from it.
In the context of claims, the disconnect between evidence and inference arises frequently. For example, we often assume that adverse employment actions precipitate claims when there is some proximity between event and claim. Essentially, we assume that an adverse employment event triggers an emotional response in the claimant that causes her to want to punish the employer for the adverse event. Our assumption is based on a socio-culturally transmitted understanding of human psychology and behavior. What we do not in fact know is whether there is an actual link between our assumptions about how people respond to bad news on the job and specific behavior, in this case making a worker’s compensation claim. In short, we do not know in fact if upset workers make more claims.
The problem with making weak inferences from evidence is that we have little idea as to the validity of the inference; hence, we could be making strategic claim handling decisions based on what amounts to little more than a superstition masquerading as a fact. Instead of connecting an adverse employment event and a subsequent claim, we should note the two occurrences and investigate to determine if there is additional evidence to make the inference strong. Some factors that would help us determine the strength of our inference would include:
So if we have an employee who is written up for punching out too early and a week later falls off a platform and breaks his leg, no one could reasonable suggest the two occurrences are related. On the other hand, if an employee is suspended without pay for a week because he doctored a time card and claims an unwitnessed low back injury on his first day back after having been overheard by two co-workers shouting, “You’ll never get away with this!” at his supervisor when leaving after being suspended, the adverse employment action and the injury appear to have a relationship that is more than coincidental.
The point of this discussion is that we need to evaluate what inferences the evidence allows us to make and whether those inferences are strong or weak. To the extent possible, strategic decisions should only be made based on strong inferences. In addition, we should explore weak inferences to determine if we are likely to find evidence in an investigation that will strengthen the inference. It is only in the context of strong or firm inferences that we can make rational decisions the outcomes of which are predictable. Otherwise our decisions will not be based on reason and will have unpredictable outcomes, which bears all the hallmarks of decision making based on superstition rather than fact.
The medico-legal world is strewn with landmines for the unwary when it comes to language use. Perhaps the most famous and public example of this was then President Bill Clinton’s insistence that a decidedly unambiguous two letter word, “is,” is in fact ambiguous. Fame and political machinations notwithstanding, the language we use in claims is important to the outcome of the claim and any slack, vague, or ambiguous usage can wreak havoc on defending or prosecuting a claim.
One example we see regularly at Medical Systems arises in the context of motor vehicle personal injury claims. During and IME, examinees frequently tell the physician that the vehicle was “totaled” in the accident. Presumably, the examinee states that the vehicle was “totaled” to demonstrate to the physician that the impact was significant (with the unspoken premise that the physical damages to the vehicle were significant.
The problem with using “totaled” in this way is that total loss is an economic concept arising out of an insurance policy that does not have anything to do with damage per se but instead refers to the relationship of the cost of repairing the damage sustained in the accident to the cost of replacing the vehicle i.e., does the cost of repairing the damages exceed the replacement value of the vehicle. This is significant because two accidents could have damages causing identical repair value estimates in which one vehicle is declared a total loss and the other is not.
If two accidents caused $2,500 damage to different vehicles but one is a 2014 Ford F150 and the other is a 1996 Ford F150, the 2014 vehicle would not be a total loss but the 1996 vehicle would be. This demonstrates that total loss is not a proxy for the severity of physical damage to a vehicle but rather is a measure of whether the cost of repair exceeds the value of the vehicle given such factors as such factors as the age, condition, make, and model of the vehicle. In both cases, the damage may not suggest the impact was severe, yet the examinee’s use of the word “totaled” is undoubtedly designed to suggest a severe impact. If the physician has access to photos or an accident report demonstrating the actual appearance of the damages, the examinee’s bold assertion that the vehicle was “totaled” will in fact make him seem less credible than he would otherwise be.
The example above is but one small demonstration of why it is important to use precise language in prosecuting and defending claims in the medico-legal universe. When the two worlds come together, it is crucial that we, as the inhabitants, speak precisely so that everyone, including the experts, understands exactly what we are saying. If we fail to do so, we run risks from misunderstanding to impaired credibility to confusion to much more.
“Probe for assumptions (particularly the implicit, unarticulated assumptions) behind a line of reason.”
This is one of the more interesting and critical strategies that Brewer identifies. Too frequently we accept statements as fact without considering whether they are supported by facts and solid inferences or are instead based on assumptions that are ad hoc and contingent.
One area fraught with difficulty in this regard is surveillance footage. Consider a claimant who has a 10 pound lifting restriction due to an alleged low back injury. He is observed on a surveillance video transferring multiple bags of groceries and a gallon of milk from a cart to his car and then from his car to his house. Let us assume that we want to use the surveillance footage to argue that the claimant’s low back condition is not as disabling as he and his doctors claim it is. If we conclude that the footage supports or otherwise proves our argument, we must ask ourselves:
In our example we must first step back and ask what, in fact, are physician-imposed restrictions? Are they absolute limits or rough guides? What do they mean and what does it mean if someone does not strictly follow them? We frequently (and erroneously) assume in the context of physical restrictions that they limit performance absolutely or act as an absolute reinjury threshold. Unfortunately, as many IME physicians are wont to point out, medicine is both an art and a science. When a physician assigns physical restrictions, she is making an educated guess as to what level of physical activity the injured person can tolerate with an acceptably small risk of reinjury. Her guess is based on her general experience, training, education, and her particular experience with the patient. No physician can do better than make an educated guess and every honest physician would agree that physical restrictions are an approximation or guide. The individual variables between patients are so great as to make certainty impossible. Hence, restrictions do not mean that a person is physically incapable of lifting more than the limitations the physician sets. Neither does it mean that a person who lifts in excess of the restrictions will necessarily suffer injury. One simply cannot make the assumption based on a limited observation that an injured person lifting in excess of physician-imposed physical restrictions is not as disabled as the physician concludes.
Second, we have no idea whether the observed behavior exceeds the physician-imposed physical restrictions in the first place. We know that a gallon of milk weighs approximately 8.5 pounds, with minor variations depending on the fat content (whole milk is heaviest, skim or fat-free milk is lightest). This is clearly within the claimant’s restrictions. The rest of the groceries in our example are in bags. Unless the bags are clear and the surveillance video is particularly good, we will only be able to guess as to the weight of the contents of the bags. It may appear that the contents of the bags weigh more than 10 pounds if they are larger bags that appear full or if they are reusable bags that appear full. Even then, we are making an assumption based on a limited observation of tenuous support. The point is that we must examine our assumption before concluding the surveillance footage supports our argument that the claimant is exaggerating his disability based on transferring grocery bags from cart to car and car to house.
Third, we must ask ourselves what the impact of the footage will be on the trier of fact, not merely based on the footage itself, but on the probable testimony that the claimant will offer about the footage. I will restrict my comments to the worker’s compensation setting, which will undoubtedly be different than the personal injury setting. Consider what the ALJ will see: an adult shopping for groceries. While it is tempting to view such footage as a “gotcha” moment when we believe the claimant is exaggerating or fabricating disability, the ALJ is more likely to respond to the footage by thinking (and sometimes saying out loud), “so what?” From an ALJ’s perspective, the footage is not likely to be perceived as particularly nefarious because of the simple fact that shopping for groceries is an activity in which the vast majority of self-sufficient adults must engage regardless of their physical condition or whether a physician has imposed activity restrictions based on an alleged work-related condition. In my experience, some common ALJ responses to this type of footage include (with considerable smarm in most circumstances):
This is not to say that surveillance footage cannot be useful. Even in our example, the footage could be useful if there was additional evidence or information that supports the inference we want to make. If the footage was just one example among many showing the claimant moving easier or lifting more than his reported level of disability suggests he is capable of, the footage supports the inference we want to make. Also, if the claimant reports extreme disability and we have evidence that the grocery bags contain far more than 10 pounds, the footage would support our inference if he lifted and moved them with appreciable ease. The bottom line is that we do ourselves and our claims a disservice when we see what we want to see instead of examining the assumptions behind our conclusions.
This post continues our discussion of strategies to eliminate cognitive biases and improve strategic decision making. Brewer’s fourth strategy is interesting and does not seem, at first, to be intuitively important or useful:
Recognize that words are symbols of ideas and not the ideas themselves. Recognize the necessity of using only words of prior definition, rooted in shared experience, in forming a new definition and in avoiding being misled by technical jargon.
This seems abstruse and postmodern, the worst sort of crypto-theoretical drivel… However, it makes sense when you think about it for a moment. As part of the medico-legal world, words are our currency. The value of a claim may be expressed in dollars based on percentages estimating the likelihood of success, but the way we get there is through words. Even when a claim is rife with photos, videos, diagnostic imaging studies, etc. the images lack meaning without narrative support, which is established through the use of language. Words create, establish, color, taint, destroy, or bolster what the images mean. Words are the firmament out of which the images of a claim shine (or are obscured).
A good example of the critical need to differentiate between word and idea and to use words of prior definition is the presence of subchondral bone marrow edema in knee injury cases. “Subchondral bone marrow edema,” also referred to as “subchondral edema,” “bone marrow edema,” and “bone marrow edema syndrome” is the term used to describe fat cell changes to the subchondral bone marrow observed on MRI that suggest swelling in the bone below the articular cartilage. When this phenomenon was first observed during the introduction of MRI machines to hospitals in the mid-1980s, the phenomenon was referred to as a “bone bruise” and was thought to be the result of acute trauma. As the use of MRI machines became ubiquitous in orthopedic practices a funny thing happened: radiologists and orthopedists began observing subchondral bone marrow edema in a significant number of patients with no history of knee trauma. This group of patients broke down into roughly two categories: those with degenerative changes (osteoarthritis) and those with inflammatory conditions (rheumatoid arthritis, septic arthritis). The new findings demonstrated that the term “bone bruise” was not an apt term for subchondral bone marrow edema because in most cases the finding was not related to trauma and hence could not be described as “bruising” in any conventional or commonly understood sense.
When considering the importance of using words of prior definition, consider an administrative law judge dealing with an alleged work-related knee injury and MRI findings that demonstrate the presence of subchondral bone marrow edema. If one does not establish a clear definition of what “subchondral bone marrow edema” is and what its presence on an MRI scan suggests, an administrative law judge could conflate the MRI evidence with the concept of bruising and use that erroneous understanding to find that the employee sustained a traumatic, work-related knee injury. Instead, when handling a claim with MRI evidence of subchondral bone marrow edema, the claim administrator may wish to take the opportunity that the independent medical examination affords to establish the limits of what the MRI evidence means. A series of targeted questions and references to academic consensus on subchondral bone marrow edema can help set the parameters for what conclusions can be drawn from the presence of subchondral bone marrow edema.
For example, a well-regarded study from researchers and the University of Wisconsin Hospitals and Clinics noted:
This finding is one of general consensus among radiologists. Others with even more concision report, “[t]he pathophysiological event that triggers BMES (bone marrow edema syndrome) is still a complete enigma.” Still other researchers report, “[b]one marrow edema is non-specific and can be seen in degenerative disease or traumatic injury.”
Despite the difficulty of determining the etiology of subchondral bone marrow edema, there are, however, some characteristics specifically associated with traumatic injury. “If the cartilage defect has well-defined right angle margins, with marrow edema deep to the defect, this suggests a traumatic etiology.” Also, traumatic changes tend to be focal. “Characteristic changes include focal cartilage defect or fissure, subchondral linear-branching pattern, focal edema, and cortical impaction or bowing.” Non-focal changes suggest a degenerative condition rather than a traumatic cause.
From a claims administration perspective, this information can be used to establish what MRI findings of subchondral bone marrow edema mean in the context of our hypothetical knee claim. When crafting an IME letter, a claim administrator may wish to point out to the independent medical expert that the MRI evidence demonstrates subchondral bone marrow edema and then ask a series of targeted questions such as the following to demonstrate that the MRI findings suggest a degenerative rather than traumatic etiology:
Obviously, the form of the question may need to be altered based on local evidentiary standards and the facts of the claim, but the bottom line is that claims are handled more effectively when we recognize that words and the ideas they represent can often pose problems if we allow the relationship of work and idea to be loose, ambiguous, or vague. Instead, we should carefully limit definitions to established fact whenever possible so that decisions, whether our own in handling claims or those of the trier of fact, are based on terms of consensus and limited definition. The independent medical examination represents an excellent opportunity to use an expert to establish the limits of medical terms that could otherwise be used to justify the compensability of a claim when the actual medical records and imaging studies do no such thing.
Medical News Today reports on a study published in the Journal of Bone and Joint Surgery (subscription required) which found that patients whose opioid use was increasing prior to spine surgery had worse outcomes than those whose opioid use was not. As Medical News Today notes, studies have shown that opioid use prior to spine surgery frequently leads to worse outcomes, but "the studies did not account for differences in opioid consumption among patients." In this new study, the authors concluded that, "increased preoperative opioid use was a significant predictor of worse health outcomes at 3 and 12 months following surgical treatment..." While this news is not particularly surprising to those in the medico-legal world, it does offer an opportunity to ask IME physicians a targeted question about the appropriateness of spine surgery in claimants with a demonstrated history of opioid dose escalation which should ensure that the physician's opinion explicitly relies on evidence-based medicine and hence is more credible.
Returning to our discussion of strategies to eliminate cognitive biases and improve strategic decision making, we arrive at Brewer’s third strategy: discriminate between observation and inference, between established fact and subsequent conjecture. The last post in this series touched on this issue, but it is worth revisiting in greater detail. One of the things that plagues strategic decision making is our frequent tendency not to discriminate between observation and inference and between established fact and subsequent conjecture. This tendency is normal and virtually everyone exhibits it to some degree. However, when making strategic decisions, we want our judgments to be based on observation and fact to the maximum extent possible. When making inferences, we want observation and established fact to support our inferences. We want our inferences to be likely, not merely conjecture or possibility. But how do we do that?
The first step is to train oneself to identify when an inference or conjecture is being made. One way to do this (among many) is to ask whether the information is the product of a sense impression. Do we have the information because we saw it, heard it, felt it, touched it, smelled it? To return to a first report of injury, the existence of a first report with writing that states the employee reported the injury on Y date is an observation because we saw the report. When we see the report and hold the report and examine the report, it becomes and established fact. Whether the employee actually reported the injury on Y date is not a fact. Instead, if we posit that the employee actually reported the injury on Y date, we are making an inference based on a variety of facts and assumptions (such as the employer is reliable in reporting injuries, has never had an employee dispute the date the injury was reported, etc.). It is important to recognize that the fact of the first report of injury is different from the state of affairs it purports to represent, which is an inference, however strong.
This distinction even arises in diagnostic imaging studies, which we typically think of as “objective” evidence of injury or the lack thereof, conflating “objective” with “fact.” The image is a fact, what it signifies is an inference that an interpreting physician makes. For example, a person complains of a knee injury that suggests a meniscus tear to a treating orthopedist. The treating orthopedist orders an MRI which does not appear to demonstrate a meniscus tear. When we evaluate the medical records in the claim, we frequently conclude that if an MRI (or more properly the radiologist’s report interpreting the images) does not show pathology then none exists. This is an assumption. The only fact is the images the MRI scan generates. The simple fact that a radiologist concluded that the images do not show the presence of a meniscus tear does not mean that a meniscus tear is not present. We know for a fact that MRIs do not demonstrate every meniscus tear. However, we assume that an MRI is accurate because we know or have been told that MRIs accurately demonstrate the presence of most meniscus tears. Again, this is an assumption, not a fact. In our example, the treating orthopedist may perform a diagnostic arthroscopy and find that a meniscus tear is present. A physician in an IME report recently summed up the problem of conflating what an MRI scan actually demonstrates (observation) with the inference of pathology or lack thereof:
I would stress to the reader that diagnostically the arthroscopic evaluation of the knee is far more likely to be the gold standard of accuracy versus that of an MRI scan… I would note that there are, of course, instances wherein it can indeed be difficult to differentiate a recurrent tear from a picture of a meniscus that has been previously operated on. Furthermore, this case is a stellar example of how MRI scans can in fact be inaccurate despite expert interpretation.
In our MRI example, another assumption is being made: if an MRI reveals pathology, the pathology must be causing dysfunction. We know this is a questionable assumption based on numerous studies showing that large portions of the population have conditions ranging from rotator cuff tears to “herniated” discs that are present on MRI scans but asymptomatic. Whether the presence of pathology causes dysfunction is a separate question that the physician makes based on many factors including physical examination, history/mechanism of injury, medical records, and diagnostic imaging studies. The strength of the inference that a particular pathology is causing dysfunction is determined by reviewing all factors. The imaging study alone may be enough to make a strong inference, but often more support is needed before an inference can or should be made.
Another example that arises frequently in both the worker’s compensation and liability settings is the conflicting report of injury. For example, let’s assume that an employee reported to the employer that she did not remember a specific event but had been lifting heavy pipes all day and noticed shoulder was getting sore. The employee seeks treatment with her primary care physician who refers her to an orthopedic specialist several weeks after the date of injury because the shoulder condition did not improve. In the initial notes from the orthopedist, the employee is reported to have stated that she was lifting a heavy pipe and noted the immediate onset of shoulder pain. Obviously there is a discrepancy between the records, but what does the discrepancy mean? Does the discrepancy mean that the employee is untruthful or that the condition is less likely to have occurred at work?
The established facts in this scenario are that the first report of injury states the condition arose gradually during the course of a work day and did not follow a specific traumatic event while the orthopedist’s notes state that condition arose acutely, following a specific lifting event. These are the only facts we know. Any statement about what the facts mean is an inference and is not a fact. Before drawing any conclusions, I would want to obtain more information. For example, did the doctor’s office press the employee to identify a specific event? It would not be unheard of for a member of a physician’s staff to ask the injured worker something along the lines of, “Well, if you had to guess, what incident would have caused your shoulder pain?” I would also want to know how the injury was reported. Perhaps the employee said something along the lines of, “I lifted a pipe and felt something in my shoulder. I kept lifting heavy pipes all day and it just got worse and worse.” Either piece of information would make the discrepancy in reporting appear less significant. On the other hand, if there is no indication that the first report is inaccurate or that the orthopedist’s office asked the employee to identify a specific traumatic event, then the inferences that A) the employee appears to be unreliable or dishonest and B) the condition may not have arisen out of the employment are stronger. The point is that the discrepancy in the records only reflects a discrepancy in the records. This is our observation and the only established facts. To the extent that we infer that the employee is dishonest or that the work-relatedness is questionable from the discrepancy, we are making an inference that is not fact. When making such an inference, must be mindful that other information is necessary before we can decide whether the inference is strong or weak.
When evaluating claims, it is critical that we distinguish between observation and inference, between established fact and conjecture. Failing to do so will cause us to estimate the strength and weaknesses of our arguments inaccurately. If we do not accurately estimate our arguments, we cannot effectively administer our claims. One way to help ensure that we are accurate in our assessments is to discriminate between observation and inference, to ensure that our conjecture is supported by established fact and to recognize when we lack support for our inferences and conjectures.
Interesting new research from the University of Manchester finds that current smoking increases risk of hearing loss by 15.1%. Researchers were not sure whether "toxins in tobacco smoke affect hearing directly, or whether smoking-related cardiovascular disease causes microvascular changes that impact on hearing, or both." Regardless, current smokers or those exposed to passive smoking could could provide employers and insurance carriers with a potential new defense in occupational hearing loss cases if the study's results are replicated or otherwise confirmed.
What do we do when we have a conversation? Turns out, we do a lot of anticipating and predicting about what the other person is going to say. This predictive process makes our normal conversations better, or at least more readily intelligible. In an interesting study published in The Journal of Neuroscience, researchers found that “language processing is comprised of an anticipatory stage and a perceptual stage: both speakers and listeners take advantage of predictability by ‘preprocessing’ predictable representations during the anticipatory stage, which subsequently affects how those representations are processed during perception.” This would seem to have implications for the medico-legal world because of the reliance on oral statements, whether recorded or not, formal or informal in claims administration. Specifically, the quality of the answers one gets in a statement can potentially be manipulated when either party understands the predictive process involved in conversation. For example, when speakers introduce unexpected words or phrases, listeners become more prone to error: “When subsequently confronted with unpredicted words, listeners/readers typically show a prediction error response.” A clever interviewer could use this information to keep the interviewee off guard, which may help elicit information the interviewee had been consciously trying not to reveal. Conversely, a clever interviewee will be conscious of her tendency to answer based on both prediction and cognition and will take steps to limit the affect prediction has on her answers.
One simple technique interviewees can use is to (silently) repeat every question that is asked of them back to themselves before answering. This focuses the interviewee on comprehension and cognition rather than prediction, which will help the interviewee limit her response to what was in fact asked and not on what her predictive mind assumed was asked. This also may be effective because the prediction happens so quickly and over such a short period of time. According to the authors of the study, “[A]nticipation may precede perception by as little as 200 milliseconds…” This is an incredibly short time interval and any device that an interviewee can employ to slow cognition down will allow her to limit the tendency to anticipate where the speaker is going with a question and instead to hear the actual question that is asked.
One of the things that our brains do brilliantly well is to construct order of the world around us. This predictive aspect of speech is part of that. We are hard-wired to recognize patterns and make connections; hence, we gravitate to coherent narrative versions of events. It is difficult for our brains to process events without linking them together causally. Our conversations reflect this tendency as well. In fact, when people do not conform to the normal way conversation works in this regard it is noticeable and such speakers often seem odd, idiosyncratic, or eccentric.
The problem with the predictive process of speech and our tendency to turn our conversations into coherent narratives is that it inhibits our ability to ask the right questions and give the best answers. When taking a statement, the interviewer should keep in mind that the process is not a conversation in the ordinary sense of the word. That is why, for example, it is imperative to wait until the interviewee completes her response to each question before moving on to the next one. While normal conversation works better when we allow the predictive aspect of conversation to fulfill its function, in a statement the predictive aspect can lead the interviewer away from valuable areas of inquiry simply by virtue of dovetailing the interviewer’s thoughts about what to ask next with the interviewee’s response. Instead, interviewers should be mindful of the process and ask questions that occasionally interrupt the narrative flow to keep her attention focused on what the interviewee is actually saying. One such strategy could involve interjecting questions about an unrelated topic periodically. For example, during questions about the facts of an accident the interviewer might want to ask a question about current prescriptions that the interviewee takes. The question will feel strange when asked, but it is surprising how quickly this jars the interviewer back to the kind of focused attention that is necessary to obtain an effective statement. And that, after all, is the goal.
One of the problems we face in claims administration is that many of our decisions are made in the context of uncertainty. For example, we may know that the plaintiff is credible, but that the mechanism of injury is questionable and the defense has a strong IME report. The claims and legal professionals must determine (among other things) the plaintiff’s likelihood of succeeding on the question of whether an injury occurred based upon the available information. The problem is that this judgment is a guess (though hopefully an educated one) based on experience and the available information. There is no definite or fixed answer. In order to make such decisions effectively, we need to know what is fact, what is inference, what is loose conjecture, and what information is likely to be discoverable or otherwise available that will make the guess more educated. Once we have this information, we can determine what aspects of the claim are uncertain or ambiguous and develop a strategy to deal with them.
This brings us back to Brewer’s strategies for combating cognitive biases and making effective decisions. His second strategy asks us to:
“Be clearly and explicitly aware of gaps in available information.”
We normally live with and tolerate an enormous amount of ambiguity and uncertainty in our lives without paying much attention to it. In fact, imperfect knowledge is the general and pervasive condition of human life. However, when we assess claims, we become acutely aware of ambiguity and uncertainty and recoil from it. Why? We recoil because ambiguity and uncertainty foil our attempts to predict the outcome of claims and hence drive us crazy. Nonetheless, it is critical that we be able to make effective claims decisions against a background of ambiguity and uncertainty. And the key to making effective decisions in the context of ambiguity and uncertainty is to specifically and accurately identify what is known (and hence certain) and what is not known (and hence uncertain). Doing so will help us accurately evaluate the strength of our current position, reveal what we can do to obtain more information, and allow us to make rational decisions without ignoring or being paralyzed by ambiguity and uncertainty.
Once we have asked the “how do we know…” questions, we are in a position to organize what we know. What we know in any claim falls into several categories.
To accurately judge the claim, it is important to understand the gaps in available information and to understand when our conclusions are not supported by factual knowledge. Take the dictum that a delay in reporting an injury increases the likelihood that the injury is fraudulent. To believe this, one must make assumptions that may or may not be supported by actual evidence. It is important when evaluating a new claim that we understand what these assumptions are before we make a judgment regarding the validity of the claim.
First, accepting the dictum as true assumes that there is statistical support for it. If there is not, the dictum is the equivalent of an old wives tale. This is not to say that it may not be true, but without statistical support for it then it is equally plausible that the dictum is false. Thus, the dictum should not be taken to demonstrate the strength or weakness of a claim without the existence of additional supporting evidence such as the softball tournament example above. Despite the lack of statistical support for the dictum that delayed reporting increases the likelihood that a claim is fraudulent, numerous insurance professionals, companies, and even state agencies continue to hold the dictum out as if it had some sort of predictive significance.
Second, accepting the dictum can actually create a selection bias in which late reported claims receive a higher level of scrutiny and more intense investigation than claims with contemporaneous reporting. If one believes based on experience that late reported claims are more frequently bogus than timely reported claims, one must actually investigate her claim handling history and measure the level of scrutiny given to the separate claims to determine if there is any truth to the dictum. In order to determine if there is a probable statistically significant effect in a retrospective investigation, at a minimum you would have to include only those timely reported claims that receive the same or similar level of scrutiny and investigation to late-reported claims for comparison to at least attempt to eliminate selection bias. Without making this investigation, the dictum that late-reported claims are more likely to be fraudulent has no basis in fact and is likely to skew results in a way that confirms the dictum.
When managing claims, it is important to consider why a decision is being made and whether the decision is based on factual knowledge, an inference, or an assumption that has been “taken on faith.” Any claim will have ambiguity and uncertainty. This is normal. When the ambiguity and uncertainty are identified, they can be factored into the assessment of the claim and will help generate the strategy for developing the claim (which will be the topic of the next post in this series). When deciding to give a claim heightened scrutiny or making any other tactical decision, the decision will be more effective and will likely yield better results if it is based on factual knowledge than if it is based on an unsupported assumption. The only way to ensure that the decision is based on factual knowledge is organize what you know. Once the knowledge in a claim has been organized, it is easy to identify if something is being taken on faith rather than fact.
In the last post, we discussed a paper Jeffrey Brewer wrote regarding strategies for overcoming cognitive biases and emotions. Brewer identified 10 specific strategies to overcome biases and emotion. His first strategy advocates consciously raising the questions:
But how does this help us? Don’t we already essentially do this when we analyze claims?
Not exactly. First, asking the questions immediately changes one’s state of mind from its natural, emotionally reactive state, to one in which reason is brought to the forefront. Consciously asking the questions forces us to slow down, search for, and contemplate the possible answers. Second, answering the questions quickly demonstrates whether something is an objectively verifiable fact, an inference, hearsay, opinion, or pure conjecture. Once the questions are answered and the information is categorized, the process will have naturally organized the claim in a rational way. Third, knowing what category the information falls into can provide a roadmap for developing the claim. Fourth, asking and answering the questions is likely to result in a more accurate assessment of liability, damages, exposure, and further investigation needed.
How can this strategy be applied to claims? The place to start is at the beginning of the process. When a claim comes in, we are given information asked to apply the information to a metric for assessing exposure. The formality of the metrics will vary, but the best companies and firms mechanize this process to the greatest extent possible to streamline the process and to make it as consistent as possible. This is of course why all case assessment reports, forms, and letters look roughly the same for each entity that generates them regardless of who actually wrote them. This predictability and uniformity is a virtue, not a vice. Nevertheless, individual claims professionals must judge where each piece of information goes and its significance.
The two most important parts of a case assessment report, form, or letter will generally be the statement of facts or narrative summary. It is from this that the conclusions regarding liability, damages, and exposure will be drawn. In preparing the statement of facts, it can be a useful exercise to distinguish between facts, opinion, hearsay, and assumptions to better understand the support for the claim or its defense. For example, take a claim where an employee X injures his hand on a piece of equipment. In conducting the investigation, the employer obtains a statement from employee Y who has observed X using the equipment for personal use in the past.
In this example, the only thing that is a fact is that Y observed X using the equipment for personal use in the past. If the statement is used to support the defense that the employee was not performing work for the benefit of the employer at the time of injury, then an inference is being made that X’s behavior at the time of injury was consistent with X’s past behavior. With no additional information or support, the inference is weak at best. In order to strengthen it, one could find out if X used the equipment for personal purposes at certain times of his shift or after certain jobs and whether the injury occurred at a similar time of day or after the same kind of job. In addition, the inference would be stronger if Y observed X using the equipment for personal use regularly or on many occasions, especially if the most recent uses were near in time to the accident. The bottom line is that the fact of the observation only affects the injury at issue if it can be inferred from the observation that the behavior leading to the injury likely conformed to the observed past behavior.
In another example, worker’s compensation investigations often discover a coworker who overheard the injured employee complaining about his job or the company or both. Specifically, assume employee X alleges he hurt his low back lifting a heavy object at work. The investigation discovers that employee Y heard employee X say that he was fed up with his manager and couldn’t take much more. What is fact? The only fact is that on one date X complained about his manager and said he couldn’t take much more. That is it. X’s statement does not mean that X feigned injury or exaggerated its severity. To move from X’s statement to that conclusion is an inference that requires additional information for it to be believable. The inference is that X reached some sort of breaking point and is using the work injury (or feigning injury altogether) as a means of avoiding his manager.
When judging the significance of the statement, several factors must be considered. Obviously if the injury is relatively near in time to the statement, it would appear more likely that they are related. Other factors could make the inference stronger as well, such as similar, repeated comments, a discernible change in performance, a discernible change in attendance, or any overt conflicts with his manager. On the other hand, if X was a generally good employee who was having a bad day and significant time elapsed between the remark and the injury with no further overt evidence of conflict with the manager, then the inference is weak. Likewise, in judging the likelihood that X is avoiding work based on the prior statement, one must consider the benefit to X of being absent (avoiding the manager, not having the responsibilities of the job) with the costs of being absent (wage loss, benefits loss, loss of social contact with coworkers, etc.). In this case, if X only made one statement and the injury involves an extended absence with significant financial consequences, the inference will be weaker.
In order to effectively determine the strengths and weaknesses of any claim, we must be able to ask and answer the right questions. Simply recording a narrative of events without asking whether each component is a fact, an inference, hearsay, or opinion will skew the analysis badly. For every piece of the narrative, we should ask how we know it, why do we believe it, and what evidence supports the belief. Once we take this step, we will understand the extent of our knowledge, whether our knowledge is based in fact, the inferences that can be drawn from our knowledge of the facts, how strong those inferences are, and what additional evidence or information should be obtained to strengthen inferences or eliminate ambiguity and uncertainty. When we know this, we can effectively assess liability, damages, and further claims investigation necessary.
We recently published a couple of posts about the impact of cognitive biases and emotion on decision making. In the posts, we offered some suggestions on how to limit biases and emotions in order to make better decisions. Recently, we came across a paper by Jeffrey W. Brewer, a member of the Risk and Reliability Department at Sandia National Laboratories, that discusses strategies for overcoming cognitive biases and irrational risk perception. Brewer’s specific discussion deals with overcoming biases in the context of explaining the benefits of nuclear power; however, his general discussion offers a number of strategies that can be applied in any business setting.
Brewer reduces the strategies to a simple statement that focuses on thinking carefully, question assumptions, and using the best available evidence:
Techniques to counter the undesirable tendencies [of cognitive biases] include a strong commitment to reflect on one’s biases in a specific decision making situation, to make decisions using the most valuable quantitative data available, and to carefully map out what one considers important in the decision making setting.
He then offers ten specific strategies that can be used to overcome our biases when we make critical decisions:
While not every decision in the medico-legal-claims environment requires such careful attention, we do make high stakes decision involving significant monetary sums that can have profound impacts on employers, employees, and health care providers. When we are tasked with making such important decisions, we should make an effort to ensure that we are making the best decision possible based on reason and the best available evidence. Following Brewer’s strategies can help us do just that.
Although some of Brewer’s strategies are self-explanatory, some of them are not and all would benefit from a more extended individual treatment. Over the course of the next few posts, we will address Brewer’s strategies in more detail, explaining exactly what each strategy means, why each strategy is important, and how each strategy can be implemented, using practical examples.
Patients often confuse positive findings on diagnostic imaging studies and what the findings mean for their personal health. For example, many studies demonstrate that asymptomatic persons who undergo MRI scans of their shoulder, knee, neck, or back frequently demonstrate positive findings, especially in persons over 40. In the case of a shoulder this may be in the form of shoulder impingement or rotator cuff pathology. A knee scan may demonstrate a torn meniscus. A neck or back scan may show a herniated disk. The question for the healthcare market generally is whether positive findings in asymptomatic individuals lead to increased healthcare costs.
Unfortunately but not surprisingly, much research finds that positive findings on diagnostic imaging scans of asymptomatic persons lead to increased medical interventions and costs. This is particularly problematic in the context of back and neck pain. According to the Journal of the American Board of Family Medicine, spine surgery rates are highest where spine imaging rates are highest. www.jabfm.org/content/22/1/62.full.pdf. As the authors note
One problem with inappropriate imaging is that it may result in findings that are irrelevant but alarming. Positive findings, such as herniated disks, are common in asymptomatic people. In a randomized trial there was a trend toward more surgery and higher costs among patients receiving early spinal MRI than those receiving plain films, but no better clinical outcomes.
Another study (subscription required) compared early MRI use versus no MRI use in low back pain patients and found significantly higher costs among those receiving early MRIs. “The early-MRI groups had similar outcomes regardless of radiculopathy status: much lower rates of going off disability and, on average, $12,948 to $13,816 higher medical costs than the no-MRI groups.” As a result of studies such as these that demonstrate increased interventions and costs following positive findings on diagnostic imaging, the American College of Physicians and the American Pain Society “recommend against routine imaging in patients with nonspecific back pain …”
In addition to the costs associated with a positive finding on MRI in an asymptomatic person, the actual cost of the MRI may itself be unnecessary. A study published in the American Journal of Sports Medicine (subscription required) compared the effectiveness of standard clinical examinations versus MRI scans for various conditions. Remarkably, the clinical examination outperformed the MRI in diagnosing ACL pathology, meniscal pathology, and articular cartilage pathology (osteoarthritis). With respect to diagnosing articular cartilage pathology, clinical assessment was 100% sensitive while MRI was only 33% sensitive. This study seems to suggest that MRI would not even be necessary for knee pain without a correspondingly positive clinical finding.
A large part of the problem may be due to a misunderstanding of pain and an overconfidence in the abilities of medicine to manage it. Most people who suffer from chronic or recurrent pain assume that if a specific cause of the pain can be identified and once identified the specific cause can be ‘fixed,’ which will remove the pain. Unfortunately, chronic or recurrent conditions often do not work this way. For example, degenerative arthritis is not susceptible to easy fixes and requires a strategy of management and tolerance rather than futile and expensive searches for cures. As the JABFM article points out, “there are no ‘magic bullets’ for chronic back pain, and expecting a cure from a drug, injection, or operation is generally wishful thinking.”
The fact of life is that there are often no panaceas for age-, genetic-, or disease-related degenerative conditions. “Patients need realistic expectations despite product marketing, media reports, and medical rhetoric that promise a pain-free life.” It is hard to keep expectations realistic when being besieged by marketing, media reports, and medical rhetoric. Our desire for efficiency, to find the fastest, easiest solution to any problem, further complicates the ability to maintain realistic expectations. Not only are we inundated with messages that tell us the answer to our problem is easy, we are also biologically programmed to seek the easiest solution. This is most unfortunate because with chronic conditions like joint pain or back pain, the most effective treatment is usually one that requires lifestyle changes, which indubitably is not the easiest solution. Hence, losing weight, increasing activity, pursuing a targeted home exercise program, and psychologically conditioning oneself to deal with persistent pain will bring the most relief but is probably the last option most persons will want to pursue.
The medicolegal world often confronts the difficulty of imaging studies creating problems where none previously existed. This can be devastating in the context of chronic pain because, as noted above, increased imaging tends to lead to increased surgical intervention. And if the imaging study finds an asymptomatic lesion, operating on an asymptomatic lesion or condition will not fix the chronic pain. It is important that we in the medicolegal world ask healthcare professionals to follow evidence-based standards for performing imaging studies in the context of musculoskeletal complaints. If imaging studies are not indicated, they should not be performed for the simple reason that the likelihood of an asymptomatic lesion or pathology being discovered is substantial, which is likely to merely induce the patient to fixate on the lesion or pathology as causative of his or her problem. This fixation often results in increased medical expenses, unnecessary interventions, and increased disability. To the extent that medicolegal professionals can require treating physicians follow evidence-based treatment guidelines, they should. One mechanism for doing this is through the IME. To be most effective in this regard, it may be advisable to ask the IME physician a specific question related to what evidence-based treatment guidelines apply and should be followed.
Successful management of a claim or case, whether plaintiff or defense, requires logical analysis. The essence of the tort and worker’s compensation systems is monetizing injury and allocating responsibility for payment. Essentially, claims and cases are just a fight over money, over who should bear the cost of a particular illness, injury, or condition. In a perfect world, we would analyze cases carefully and assign value dispassionately and with the rational precision of Mr. Spock. Unfortunately, ours is not a perfect world. We are not perfectly rational and emotion often infuses how we analyze and manage claims.
Human beings, though possessing remarkable cognitive capacities, are creatures of emotion. And no matter how hard we try, we cannot divorce emotion from reasoning. This presents particular problems for those of us in the medico-legal world because we are asked to administer, defend, and prosecute claims using pure, objective reason while being almost biologically incapable of doing so. For example, in our system of risk perception, instinctive reaction moves faster than conscious thought, “The system is set up to be fast rather than smart. Our brains are hardwired to feel first and think second.” Not only that, but “in those cases where the outputs from the two processing systems disagree, the affective, association-based system usually prevails.” (full paper can be downloaded from linked site).
So what do we do given that, “no matter how hard we try to reason carefully and objectively, our brains are hardwired to rely on feelings as well as facts to figure out how to keep us alive?” For starters, it helps to acknowledge that our decision making is less rational and objective than we think. We want to analyze claims with as little emotional response as possible. In making decisions, we should strive to push reason forward so that the quick-response, emotional system does not dominate and overpower more deliberate, rational thought. We can implement strategies to give the conscious, rational part of our brain more influence over our decisions:
When analyzing and managing claims, taking a few simple steps to slow down and let reason come to the fore can help minimize the role emotion and bias plays. And the clearer we think, the better we are at analyzing liability, causation, and the nature and extent of injury.
One of the hardest things for anyone to understand is that two things occurring near in time and sequentially does not imply a causal relationship between them. This is a particularly difficult problem in the IME because often no evidence of a preexisting condition or an intervening cause can be found. Assuming that the condition is legitimate and there is no intervening, traumatic cause, convincing the trier of fact that the condition is unrelated to the accident is challenging. No solution to this problem is perfect; however, a combination of linguistic framing and stealth education through analogy offers a possible opportunity to change the trier of fact’s perception of how causation works.
“Cause,” when used as a transitive verb, means, “to make (something) happen or exist.” The legal definition of “cause” is similar, “something that precedes and brings about an effect or a result.” The medical definition of “cause” cannot be reduced to a simple statement because medicine has classes of cause, which includes direct causes, indirect causes, endogenous causes, exogenous causes, necessary causes, etc. In fact, as the understanding of disease has advanced, the notion that there is a direct cause-and-effect relationship between an event and a disease state has often been abandoned in favor of looser notions of causation such as “disease determinants” or “causal association.”
So how do we convince a trier of fact who is conditioned to view causation in simple, linear terms to understand and embrace a more nuanced view? First, it is useful to address the causation fallacy with the trier of fact. The fallacy ascribes cause to events simply because they occur sequentially in time. A good example is the recent series of television commercials that aired during football games that posited, “It’s only weird if it doesn’t work.” The commercials had persons doing variously goofy things because they experienced a good outcome once when doing the same thing. Hence, a guy consigns himself to the basement during a football game because once when he was getting beer downstairs the team scored. Obviously, walking downstairs to get a beer has no impact on an NFL game. This is the causation fallacy in action: despite occurring sequentially in time, getting a beer from the basement does not cause a football team to score.
A good example that can be raised before a trier of fact is arthroscopic treatment of knee arthritis. For many years orthopedic surgeons performed arthroscopic surgery to treat osteoarthritis of the knee. The surgery involved smoothing the fibrillated (ragged) cartilage lining the surface of the knee joint. The reason surgeons performed the operation is that when a joint surface is free of arthritis, it is smooth. When osteoarthritic change occurs, the joint surface becomes fibrillated or frayed. The assumption was that if a non-arthritic knee is smooth and an arthritic knee is fibrillated, the arthritic knee will become better (and less painful) if it is made smooth. The error in causation was ascribing pain to the fibrillation.
A number of studies eventually demonstrated that arthroscopic smoothing of knee cartilage is no better than conservative management for treating symptomatic osteoarthritis of the knee. It turned out that while pain and fibrillation are both symptoms of osteoarthritis, fibrillation does not cause arthritic pain. In fact, we have learned that many persons have degenerative changes present in their knee, such as meniscal tears and fibrillated cartilage, without having any symptoms of osteoarthritis. The same is often true of degenerative conditions that appear to arise in the context of a traumatic incident. Simply because a traumatic incident occurred and a degenerative condition manifested itself some time afterwards does not mean that the incident caused that condition to manifest any more than fibrillated cartilage causes arthritic knee pain. This offers a powerful example of the errors that can arise out of conventional, linear thinking on causation for the trier of fact.
Second, embrace the impossible, or at least accept the fact that even if you can’t conceive of it doesn’t mean it didn’t happen. I used to lament the lack of a preexisting condition or an intervening cause with my worker’s compensation defense clients. In a nutshell, our complaint went like this: The claimant has no symptoms, the accident occurs, and then there are symptoms so of course the ALJ is going to find the condition is work-related. Unfortunately I subscribed to the causation fallacy and, to the extent that triers of fact make this (il)logical leap, triers of fact are wrong. The problem, though, is that the causation fallacy’s logic is intuitive and difficult to overcome. To prevail in such a situation, you must convince the judge that the intuitive is not necessarily correct. Like the artist or the director, you must convince the trier of fact to willingly suspend their disbelief, not because you are asking them to accept a falsehood but rather because you are asking them to accept a truth that runs counter to their intuition.
Is this possible? Can you convince someone to accept something that seems to them intuitively to be wrong? Yes it is possible to convince someone to accept what seems intuitively to be wrong to them. A fertile place to start is with optical illusions. We know that moon is the same size and distance from the earth when it is low to the horizon as it is when it is high in the sky. Nevertheless, the moon appears smaller to us as it rises higher in the sky. We are willing to accept that our senses deceive us in this instance.
Other famous optical illusions include the arrow/inverse arrow (Muller-Lyer illusion), the growing person/shrinking room (Ames room illusion), the shifting color/brightness phenomenon (Chubb illusion), etc. The list goes on. The point being that our intuition can and does deceive us. What we think of as a normal relation between cause and effect can instead be the product of an illusion, of our mind searching for and imposing the order in which it perceives the world to unfold onto the world, even where no causal relationship exists, where the actual order of things is not what we think.
This is essentially the nature of the relationship between degenerative conditions, symptoms, and accidents. We want to believe that something (other than simply getting older) causes conditions to become symptomatic. We want the world to be rational, for B to flow from A, for injury to be the product of accident rather than genetics and time.
This being the case, what do we do about it? Remind the trier of fact of the Ames room; that she sees the room and she sees the identical twins. She knows the twins are identical, but it looks like they are not. She knows the room is not a cube, but her brain tells her it is. She accepts that the message her brain is getting from her perception is wrong. We can learn to overcome our biases and perceptual assumptions. The trier of fact can too, but only if the evidence is framed properly to offer a clear, concise, and cogent explanation of why what is real does not seem real and what seems real is not. The IME can help lay the foundation for this argument. Ask the doctor to explain how, despite appearances to the contrary, the injury and accident are not related despite occurring sequentially in time. A persuasive and coherent explanation from a medical expert with thousands of hours of experience can at least begin to get the trier of fact to think differently about medical causation, which is the first step to bringing her to accept your point of view.
Whiplash-caused neck injuries are some of the most highly contested personal injury claims. Properly understood, 'whiplash' is used to describe the mechanism of injury to the occipital region of the head and the cervical region of the spine that occurs to a seated occupant of a motor vehicle that is struck from behind by another motor vehicle. Whiplash does not occur in front-end collisions and does not describe low back or other injuries that also may occur in rear end collisions. Whiplash-caused neck injuries are highly contested because the resulting injuries often do not show up on standard diagnostic imaging tests. In addition, whiplash injuries often occur in low speed collisions where the involved vehicles are undamaged or minimally damaged. For this reason, claims professionals and defense attorneys view these claims with almost universal skepticism. On the plaintiffs' side, the lack of objective imaging studies and the [often] low speeds involved can make convincing juries to award even nominal damages difficult.Unfortunately, science has not reached common consensus regarding how whiplash causes injury or what precise forces are necessary to cause whiplash neck injuries in low speed collisions. However, researchers have come to a consensus on how the body reacts in rear-end collision which is important to understand when prosecuting or defending whiplash claims.When a rear end collision occurs, the head, neck, lower torso/pelvis, and upper torso actually act independently of one another. When the collision first occurs, the lower torso and pelvis are pushed forward relative to the upper torso, neck, and head. This motion causes "an initial flexion of the neck, even though the head is still effectively stationary…" Then the upper torso accelerates forward before the head begins moving. This is called "retraction" and "causes the lower vertebrae of the cervical spine to extend." At this point, the cervical spine and its musculature is not sufficiently strong to overcome the forces of the lower and upper torso movement so the upper cervical spine segments flex. The flexion and extension of the cervical spine allows it "to support the horizontal forces, and these forces both accelerate the base of the skull forward and set up a rearward rotation (extension) of the head." Interestingly, when the lower torso moves forward, the "upward thrust of the trunk compresses the cervical spine." Also noteworthy is that peak strains on the neck occur before the human body is able to activate the neck muscles in response.The manner in which the human body moves during a rear-end traffic accident is significant for a number of reasons. First, the forces generated on the cervical spine and occipital regions happen before the human body reacts to them. This means that a person who is in a rear-end collision cannot accurately describe what happened to their body during the collision. To occupants, it will feel like their head snapped forward and then back when in effect, the head remained stationary relative to the forward translation of the body. The difference in acceleration between upper and lower torso causes the upper and lower cervical spine to react by flexing and extending before the person is aware that anything is happening. In addition to horizontal shearing (forward motion of the torso vis-à-vis the stationary head), the upward motion of the torso also compresses the anterior portion of the cervical vertebrae (against which "the facet joints offer little or no protection") before the human body is capable of being aware of the motion. No claimant will be able to describe the mechanics accurately because sense data are generated and processed in the brain slower than the body's actual physical response. What a person in a rear-end collision feels is markedly different than what actually happens to the body.Second, the motion of the head and neck during a rear-end collision will more than likely be within the normal range of tolerance for the human neck if the occupant is belted with a normal and operable shoulder/lap belt combination. Hence, evidence of tissue disruption is unlikely to appear on diagnostic imaging studies. For claim handlers and attorneys (on both sides), the lack of objective imaging evidence creates enormous difficulties. Although the lack of objective evidence seems to favor the defense, the commonplace nature of whiplash injuries (and the fact that large portions of the medical and scientific communities accept that whiplash is a mechanism that can legitimately cause injury) would seem to favor the plaintiff. The bottom line is that these cases end up in a medico-legal morass because of the seemingly contradictory nature of the evidence which does not necessarily favor one side or the other.A key to managing whiplash claims successfully is understanding the biomechanics involved. For example, there is general consensus that gender matters in whiplash accidents: female gender increases the likelihood of injury. In addition, height is predictive of injury. Taller persons are likelier to be injured than shorter persons of the same gender because taller persons are less likely to have the headrest set at the proper height. Many other factors such as body positioning and pre-impact awareness influence the likelihood of neck injury in whiplash accidents. It behooves the parties to understand how the facts of the claim fit into the biomechanics.Stay tuned as we will address strategies for using biomechanics to your advantage in whiplash claims in our next whiplash post. [Attention: shameless plug warning!] Also, two internationally renowned experts in the biomechanical analysis of whiplash, Raj Rao, M.D., Ph.D and Brian Stemper, Ph.D. (who happen to be located at the Medical College of Wisconsin right in our backyard) will be speaking at the upcoming Medical Systemspersonal injury conference. Anyone interested in a detailed analysis of factors that influence injury in automotive rear impacts and the medical aspects of whiplash syndrome should consider attending.
Then [David] reaches into his shepherd's bag for a stone, and at that point no one watching from the ridges on either side of the valley would have considered David's victory improbable. David was a slinger and slingers beat infantry, hands down. 'Goliath had as much chance against David,' the historian Robert Dohrenwend writes, 'as any Bronze Age warrior with a sword would have had against an [opponent] armed with a .45 automatic pistol.'
Gladwell, Malcolm (2013). David and Goliath, p.12. New York: Little, Brown & Co.Goliath had no chance? The counter-intuitive is not necessarily unusual. Everyone in a contest involving more than pure chance should understand that each party has comparative advantages and disadvantages, even when the parties are unevenly matched. Using this information, the parties should seek to use their comparative advantages and exploit their opponents' comparative disadvantages even if doing so involves seemingly counter-intuitive strategy.In the liability and worker's compensation worlds outcomes are uncertain in most cases. This does not mean that the outcomes are not predictable, simply that the exact result cannot be known with certainty beforehand. While this presents certain challenges from an actuarial perspective, it creates opportunities for the parties even if power seems to be distributed unevenly.A perfect example of this is the 1980 U.S. Olympic hockey team. Going in to the tournament, any sane person would have bet against the U.S. team. Given the respective skill level of the teams involved in the Olympic hockey tournament, the U.S. would not even have been considered the second best team. In contrast, the Soviets fielded the equivalent of a "dream team." Just weeks before the Olympics, the Soviet team had beaten an NHL all-star team 6-0. Just as it would have been folly to bet against the 1992 U.S. Olympic men's basketball team, so it would have been folly to bet against the Soviets. Nevertheless, the contest involved two teams and, despite the unlikelihood, the outcome was not predetermined or guaranteed.What is truly interesting about the 1980 U.S. Olympic hockey team is that the team was not merely lucky. Instead, they were blessed with a deeper pool of talent than most observers realized and possessed of a cerebral genius in the cantankerous and foul-mouthed coach Herb Brooks:
The romantic notion that a bunch of college scrubs felled the world's greatest team through sheer pluck and determination is misguided. Brooks spent a year-and-a-half nurturing the team. He held numerous tryout camps, which included psychological testing, before selecting a roster from several hundred prospects. The team then spent four months playing a grinding schedule of exhibition games across Europe and North America. The players included Neal Broten, Dave Christian, Mark Johnson, Ken Morrow and Mike Ramsey, who would go on to impressive NHL careers.
In a testament to his coaching savvy, Brooks realized:
There was no matching the Europeans in skill. So [he] emphasized speed, conditioning and discipline. Knowing how luck plays a large role in short tournaments, he wanted a team that could grab whatever opportunities came its way.
In the game against the Soviets (not the gold medal game, by the way), Brooks' strategy worked to a T.
In the final 20 minutes, a pillar of the Brooks strategy – speed – came to the fore. Tikhonov relied heavily on veterans like Kharlamov and Mikhailov, players the Americans could catch… Brooks rolled four lines in quick shifts, taking advantage of tired Soviet legs. "It was the first time I ever saw the Soviets panic," said [goaltender Jim] Craig. "They were just throwing the puck forward, hoping somebody would be there."
By all rights, the Soviets should have crushed the American team; however, while Brooks used his comparative advantages effectively, the Soviet coach, Viktor Tikhonov, not only did not use his comparative advantages effectively, he ended up leaving open his comparative disadvantages to exploitation. As the Soviet team tired and the Americans surged, Tikhonov did not play his younger, less experienced players, the ones who could actually keep up with the Americans. Instead, "Tikhonov relied heavily on veterans like Kharlamov and Mikhailov, players the Americans could catch." Brooks' strategy is a textbook example of using comparative advantage to achieve an improbable (but not impossible) result.In the claims and legal world, finding your comparative advantage can turn weakness into strength. The key is to examine the claim or case by examining the assumptions based on conventional wisdom. Are the assumptions valid? How might things be done differently? And if done differently, how might that affect the relative strengths and weaknesses of both sides? If I act differently, how can I exploit my opponent's weakness and magnify my strengths?I once had occasion to observe this method in what appeared to be a problematic case. At the time my employer represented a plaintiff in a car accident case. The case was the low speed, low impact collision with little or no visible damage to the cars and soft tissue only injuries. The defense's main strategy was to use an engineer to extrapolate the forces involved in the accident based on the damage to the vehicles and then compare the estimated forces involved in the accident to forces involved in activities of daily living such as stepping off a curb or sneezing. The expert cited to an article published in Spine Magazine ("Acceleration perturbations of daily living. A comparison to 'whiplash'") to establish the magnitude of forces involved in activities of daily living. The theory was that the forces involved in the accident were small, comparable to such activities as stepping off a curb or sneezing; hence, injury could not have occurred in the accident.The question became not how to attack the engineering expert, but how to use him to support our claim. On cross examination, we established a couple of things before getting to the activities of daily living defense. First, we got the expert to admit that the lack of physical damage could result in increased force being transmitted through the plaintiff's body because damage to the vehicle would actually absorb force while a lack of damage would mean that virtually all the force in the accident would be transmitted through the plaintiff's body. Second, we got the expert to admit that he was not an expert in the biomechanical properties of human tissue. Specifically, we obtained his admission that he had no idea of what forces would be necessary to cause tissue yielding in the human neck (or any other part of the body for that matter). Once establishing these admissions, we walked the engineer through the activities listed in the article and had him compare those forces to the force he estimated to be present in the accident. Following this, we asked the engineer a series of questions about injuries that commonly resulted from the listed daily activities, including a fractured ankle from stepping off a curb wrong and a herniated disk resulting from a sneeze.The expert's admissions presented him with a conundrum: if he refused to answer on the grounds that he was not a medical expert, then his opinion regarding the injury causing potential of the accident would not be credible (and could possibly be excluded). If he answered the questions about the injury-causing potential of the forces involved in daily activities in the affirmative, then he would be admitting that the forces he was attempting to describe as benign could actually cause significant injury. Ultimately the engineer admitted that the activities of daily living could cause significant injury and that he could not determine if the forces involved in the accident, however benign-seeming, would have no effect, some effect, or an injurious effect on the soft tissue structures in the plaintiff's neck. In essence, the engineer helped make our case by demonstrating that what appeared to be a questionable claim was in fact entirely normal and comparable to injuries we all suffer from such common things as twisting an ankle while stepping off a curb. What seemed to be an advantage to the defense turned out to be a comparative advantage for the plaintiff. Needless to say, the jury found our client's favor with respect to medical causation and the nature and extent of the injury.Not every case will be amenable to using counter-intuitive strategies to exploit your comparative advantage and your opponent's comparative disadvantages. One thing that can be done, though, is to investigate claims with an open mind so that the assumptions we bring to our claims do not obscure potential strategies that seem, at first glance, to be counter-intuitive or unusual. Sometimes the best strategy is one that is unexpected and will keep the other side off balance.[Full Disclosure: the genesis for this post was Malcolm Gladwell's David and Goliath, which is a quick, interesting read for those so inclined.
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.
We have all heard IME's referred to pejoratively as "insurance medical exams" or "defense medical exams." Given that many triers of fact are cynical about the independence of IME's, how can you defend against a charge of bias in an IME? First, you can choose an IME company that is independent – that is not beholden to shareholders or larger corporate interests. Second, you can choose a doctor that is independent - that has no contractual relationship or exclusivity agreement with the IME vendor. Third, you can choose an IME vendor that will work with you to find the doctor that is right for your claim or case.Why should you care about who owns the IME vendor you use? Quite simply because you value independence. While everyone who schedules an IME, whether plaintiff or defense, employer or employee, hopes the report will come back favorable to their position, the most important thing about an IME is that it is credible with the trier of fact. When an IME vendor is beholden to shareholders or larger corporate interests, the vendor's first responsibility is to their shareholders or corporate owners. While every IME vendor is attempting to be profitable, you want a vendor whose only responsibility is to the client: to deliver credible, independent reports in a timely fashion. Then the vendor is not beholden to any third party.Why should you care about the doctors' affiliations with an IME vendor? Once again, because you value independence. You want an IME vendor that is beholden only to being objective, the only true form of independence. Physicians that have contractual or exclusive relationships with IME vendors may compromise their independence because they take on an obligation to fulfilling the terms of an agreement with the vendor; they may become beholden to something other than absolute objectivity. This, at a minimum, compromises the appearance of impartiality. A physician that has no formal relationship with an IME vendor has the primary (and sole) obligation to prepare an objective report. Hence, no formal relationship between the IME vendor and the medical expert can taint the appearance or fact of the expert's independence.You also want an IME vendor that will work with you to find the medical expert that is right for your case. Perhaps it is important that your IME doctor be in active practice or that the doctor testifies for both plaintiff and defense. You want your IME vendor to meet your requirements. You want your vendor to have a well-developed network of physicians and contacts that can be mined for the right expert. You want an IME vendor that understands your needs and can recommend the doctor that is the best fit for you. You can't take a "one size fits all" approach when managing your files. Your IME vendor shouldn't take a "one size fits all" approach in finding an expert for you. An IME vendor with a network of truly independent physicians guarantees that your IME vendor will put your interests first.At Medical Systems we are beholden to no corporate overseers. We refuse to establish exclusivity or other contractual relationships with the physicians on our panel (in fact we require that our doctors are not exclusive to us or anyone else). We have the network and the staff to be responsive to your needs so that you get a medical expert that is unbiased and right for your case. In short, Medical Systems is independent so your expert will be too.
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 short answer is that yes, job videos are worth obtaining. However, the circumstances in which job videos are useful are limited. Typically, job videos work well in two circumstances. First, job videos are often critical in cases where an occupational injury is alleged due to an occupational exposure over time (i.e., repetitive motions). In those cases, the independent medical expert will be asked to form an opinion on medical causation based on the job activities that the injured person performed; hence, a job video is often critical. Second, job videos are useful when there is a question as to whether an injured person can return to her former employment. In that case, the independent medical expert will be asked to form an opinion on the injured person's capacity to safely perform her job. In either case, a job video can be a crucial tool to ensure that the independent medical expert's opinion is credible.Although job videos can be critical in the right circumstances, a job video has to be accurate to carry any weight. The biggest problem with job videos is that they are often perceived to represent a cursory sample of what an injured person does rather than a thorough depiction of the injured person's actual job. From the defense perspective, this causes problem at deposition or hearing when the injured person testifies that the job video does not accurately represent their job duties. If the injured person testifies credibly about the frequency and duration of job duties not shown in the video, it will impugn the independent medical expert's opinion because the opinion will have been based on inaccurate information.In order to remedy potential shortfalls, job videos should do a number of things. First, if the employer has a written job description, the job video should accurately portray the duties described, including accurately depicting the physical demands for each duty described. It is difficult to convince a judge to adopt the opinion of an independent medical expert when the opinion is based on a job video showing a worker lifting 5-pound boxes when the injured person testifies that the majority of the boxes she lifted were 50-pounds. Second, job videos that depict the injured person performing her job duties tend to be more effective than those depicting another worker. These videos are especially effective if the videographer asks the injured person if there are any activities they do in their job that they have not demonstrated. If the injured person answers "no," she will have a tough time trying to say that the video was not accurate later. Third, if the injured person cannot be depicted in the video (which is more common than not), the video should depict a co-employee that has an identical job or as close to as identical job as possible. The co-employee should also be of a similar size and build if possible. If a similarly sized co-employee with an essentially identical job is depicted, he or she is more likely to portray the job duties accurately. Again, the videographer should ask the employee if there are any activities they do in their job that they have not demonstrated. It should go without saying, but the employer should identify co-workers for the video that are indifferent to the injured person. Otherwise it is too easy for bias to seep into the video and destroy its credibility.Some job videos will depict a manager or supervisor performing the job duties. This is not ideal because the trier of fact will almost invariably assume that the manager or supervisor is biased against the injured person. In addition, such videos often have an artificial feel to them, especially when the manager or supervisor is not a working manager. In these cases the person depicted in the video often does not look like the injured person and her co-workers and does not perform the job duties fluently. A trier of fact who views such a video is likely to consider it suspect if not outright spurious simply because of its appearance (even if the job duties are faithfully depicted and the manager or supervisor acts entirely without bias). There are circumstances in which the only way to have the job video completed is to use a manager or supervisor to perform the injured person's job. In these circumstances, the job video will be most effective if the person performing the job duties maintains a neutral appearance, not exaggerating the ease with which a particular duty is performed. Human beings are incredibly good at reading body language and facial expressions. Triers of fact will know if the person performing the job duties on the video is genuine or not and will judge the video's credibility accordingly.When obtaining an independent medical examination, a job video can be a critical tool in establishing the credibility of the medical expert. However, job videos are only effective if they are credible. Taking a few simple steps such as ensuring that the video captures the same duties identified on the written job description and getting the employee depicted to state on the video that it accurately represents the job duties will help bolster the credibility of the video. And a credible job video will likely mean a credible independent medical evaluation report.
A medical expert's role in legal claims is vital. Medical experts are gatekeepers of the worker's compensation, tort, and disability systems because without medical causation, there are no claims. The role of independent medical examiners in this process is critical. Independent medical examiners are often the only experts who have the full picture: all current medical records, all past medical records, accident reports, the claimant's history, and relevant witness statements.In our adversarial system, the value of independent experts cannot be overstated. The parties are not responsible for discerning "the truth," whatever that may be. They are only responsible for prosecuting or defending the claim. Trial judges, administrative law judges, and juries are responsible for deciding which party's position is more credible. As independent medical evaluators are the only experts with the complete picture of the case, they are uniquely capable of providing an opinion based on an objective assessment of facts and science. It is critical to the sound functioning of the system that independent medical examiners' opinions are given adequate weight.What are the barriers to independent medical examinations being given adequate weight? The most obvious and frequently encountered barrier involves simple errors such as typographical mistakes or obvious misstatements (i.e., stating "left" when "right" was clearly intended). While claims and legal professionals understand that a typographical error or an obvious misstatement should not affect the credibility of the report, the unfortunate truth is that they do. In our society doctors are rightly held in high esteem. This means that they are also held to unrealistic standards of perfection. When reading an independent medical examination report, judges and juries expect the report to be technically perfect. If a report does not meet this standard, it can cause the trier of fact to devalue the doctor's opinion, even if the technical error has no effect on the opinion's substance.To avoid having an independent medical examiner's opinion lose credibility points for technical errors, several steps can be taken. First and foremost, providing clear information and instructions to the examiner is critical. Second, choosing an independent medical examination vendor that will carefully edit reports to eliminate technical errors of grammar and reference is important. Third, reading through the report carefully on receipt is necessary. Independent medical examination vendors will have the information on the claim that is given to them, but they will never have the depth of understanding of the claim and the relevant medical records that claims professionals and attorneys have. Carefully reviewing the independent medical examination report and communicating with the vendor to address any obvious technical errors shortly after receiving the report will help ensure that the report is technically sound and so is viewed entirely on its substance. As gatekeepers to the compensability of claims, it is critical that independent medical examiners' reports are judged on substance and not style.
"We would have won if the ALJ wasn't so pro-employee," is a common refrain in the worker's compensation world. Undoubtedly the statement is at least partly true. However, there may be more going on than what at first meets the eye. Human beings evaluate the world using various heuristics. A heuristic is an experienced-based technique for problem-solving, learning, and discovery. Common heuristics include trial and error, rules of thumb, educated guesses, common sense, and stereotyping. Heuristics are useful because they allow us to take shortcuts when making decisions involving complicated questions. Unfortunately, heuristics often result in decisions and assumptions that are not optimal. It is critical to understand this behavioral condition when assessing why judges reach the decisions they do.One of the more common heuristics and the most vexing in the medico-legal world is the association of correlation with causation. The most frequent example involves judges and juries assigning causation because of temporal proximity. Assigning causation based on temporal proximity is a logical fallacy that, in the Latin, is called cum hoc ergo propter hoc ("with this, therefore because of this"). The logical or cognitive error is considering two independent events to be causally related because they occurred at or about the same time. In the claims arena, this frequently involves an employee who develops back pain at work without a precipitating event then concludes, with medical support, that because the back pain arose at work the work activities must have caused the back pain. Although we as humans have a natural bias toward explaining the world as a series of cause and effect relationships, imposing this bias on independent events simply because they occurred near in time erroneously establishes causation where none in fact exists.A well-known example demonstrating why the "correlation is causation" assumption is false involved claims that hormone replacement therapy (HRT) in post-menopausal women reduced heart disease. Initial reports indicated that women receiving HRT had a lower incidence of heart disease than women who did not receive HRT. However, after a large, randomized study specifically designed to test the effects of HRT in post-menopausal women, it was determined that HRT slightly increased the risk of developing heart disease in post-menopausal women. The reason for the counterintuitive result was the failure to account for confounding variables differentiating women receiving HRT versus those who did not. Put shortly, women receiving HRT were generally healthier to begin with than those women not receiving HRT. Once the confounding variables were controlled for, it was discovered that HRT had a slightly negative effect on cardiovascular disease rates. The HRT example effectively demonstrates that simply because two things are present at the same time does not mean they are related.The difficulty for claims professionals and attorneys is that they must find a way to convince judges and juries that the commonsense assumption that complaints arising during or shortly after a particular activity must be related is almost certainly false without sounding condescending. In the back pain example, most IME reports do a good job of explaining that the diagnostic imaging findings look more like the degenerative changes from aging than the changes from acute injury. However, this alone is usually insufficient to convince judges and juries that the experience of pain or disability during an activity or incident is not related to the activity or incident. Instead, the IME doctor will need to offer an analogy that judges and juries will understand. For example, we call rhinovirus infections "colds" because we used to believe that cold temperatures caused the ailment. We now recognize that "colds" are caused by viruses and that being cold has nothing to do with becoming infected. I think it is reasonable to ask independent medical examiners to use effective analogies to make it clear that medical science should trump assumptions about correlation and causation that are unreliable and probably false.
It is common knowledge that prescription drug misuse and abuse has become a significant problem in the United States. According to the Centers for Disease Control (CDC), the costs are staggering.
http://www.cdc.gov/homeandrecreationalsafety/overdose/facts.htmlPrescription drug misuse and abuse impacts claims management in many ways. On the front end of the process, prescription misuse and abuse increases the risk that a person will be involved in an accident, whether work-related or not. In addition, persons with significant dependence problems may see the claims process as a manner of obtaining prescription medications to fuel their dependency. During the claims administration process, prescription drug misuse and abuse increases costs through extended (or unending) recovery periods and higher than normal pharmaceutical costs. In addition, drug seeking behavior often results in increased medical costs through emergency room and urgent care visits used to obtain medications. Finally, the value of prescription drug medications causes some persons who receive them to sell them as a means to generate income.What can claims professionals do to combat prescription drug misuse and abuse among claimants? The first place to start is with the primary treating physician. If it appears from your review of records that the patient is obtaining narcotic pain medication from multiple sources or has asked for an early refill on more than one occasion, communicate your concern directly to the physician. Most treating physicians are sensitive to narcotic use and will not tolerate drug-seeking behavior. In addition, you can encourage the physician to use her state’s Prescription Drug Monitoring Program, which will provide the physician with information regarding from whom and when patients are obtaining prescriptions for narcotics. Second, a medical record review can provide a good option for discontinuing payment of prescription pain-relievers and other drugs that may be being abused. Third, many states have dispute resolution mechanisms designed to address a carrier or employer’s contention that a particular treatment is not necessary to cure and relieve the effects of an injury or condition. This option provides an opportunity to challenge a recalcitrant physician’s decision to provide unwarranted prescription pain-relievers or other addictive drugs without the patient being a party to the claim. Fourth, drug and physician utilization reviews can be used to assess the likelihood that abuse is occurring when abuse is suspected but cannot otherwise be confirmed.The bottom line is that prescription drug misuse and abuse can be a significant claims cost driver. Taking a proactive approach of identifying potential abuse, working with treating physicians to curb abuse, and using independent medical or record reviews can provide an effective means of controlling the claims costs of prescription drug misuse and abuse. Beyond the claims environment, curbing prescription drug misuse and abuse also makes our society better and safer, which is a win-win for everyone.For more information on Medical Systems go to www.MedicalSystemsUSA.com
One of the most common concerns we hear regarding IME’s is that “the doctor didn’t explain why…” Frequently the issue centers around the doctor’s opinion that a particular mechanism of injury did not or could not have caused the claimant’s condition. For example, a doctor may conclude that a particular accident was not of a sufficient magnitude to have caused an acute rotator cuff tear and that the MRI findings demonstrate a wholly preexisting, degenerative process. Most claims professionals and attorneys would be happy with this opinion, but only if the opinion did not end there. We all want to know why the doctor reached her conclusion.One of the reasons doctors do not explain themselves in greater detail is that they live their entire professional lives interacting with other doctors and health professionals who do not require further explanation. If an orthopedist tells a referring internist that an accident was not of a sufficient magnitude to have caused an acute tear, the internist generally will not require additional information to understand why the doctor reached that conclusion. The orthopedist conveyed the relevant information and the internist can adjust her assessment accordingly. Unfortunately for those of us in the medico-legal world though, medical opinions do us little good unless doctors explain why they reached them.In our rotator cuff example, the doctor likely had sound reasons for her opinions. Perhaps the claimant did not complain of shoulder pain at the scene of the accident. This, any orthopedist will tell you, would be highly unusual in an acute rotator cuff tear because acute tears are painful. The tendons forming the cuff are enervated and when a complete tear occurs the nerves in and around the tendon are also torn. This causes pain, which is the body’s natural protective mechanism to keep the person from continuing to use the joint in a way that could cause further injury and impede healing.Perhaps the claimant was a seat-belted driver whose vehicle was merely sideswiped. The claimant did not report shoulder pain at the scene and did not hit her shoulder or have force transmitted to the shoulder through an outstretched arm. Most orthopedists will tell you that a minor collision that does not involve direct impact to the shoulder or indirect transmittal of force through an outstretched arm cannot physically cause a rotator cuff tear. If the shoulder is not hit or the arm is not outstretched, the rotator cuff tendon complex is essentially relaxed. In this state it cannot be torn. It is like a rubber band: if you stretch a rubber band until it is taut you can break it when additional force is applied. However, if you attempt to break a rubber band that is relaxed, nothing happens.So how can we get the doctor to explain why? The simplest way to get an explanation is to ask for it. We understand that certain questions need to be asked in a certain way, such as the Llewellyn questions in Wisconsin worker’s compensation cases (definite breakage, precipitation, aggravation, and acceleration beyond normal, or mere manifestation); however, tailoring causation questions to the mechanism of injury at issue will often get the doctor to answer why she reached her conclusions. Take the rotator cuff example above: The claimant alleges an acute rotator cuff tear arising out of a motor vehicle accident. You have reviewed the file and just don’t think the accident could have caused a rotator cuff tear because the mechanism of injury doesn’t seem right and the MRI reports suggest the tearing was of a longstanding, degenerative nature. In addition to the typical questions, you might want to ask the doctor a specific question regarding the MRI findings: “The reading radiologist on the November 2nd MRI report states that there is fraying of the supraspinatus tendon that appears to be of a degenerative nature. Please comment on whether you agree with the reading radiologist and if so what aspects of the MRI images suggest a degenerative versus an acute tear.” You might also want to ask the doctor a specific question regarding the lack of shoulder complaints immediately after the accident: “In her description of the accident and the development of her shoulder problems, the claimant does not mention shoulder pain immediately after the accident and first reports shoulder pain two weeks later. What is your opinion on whether the claimant’s report of injury and the onset of shoulder pain is consistent with suffering an acute rotator cuff tear arising out of the motor vehicle accident?”We know that there are no silver bullets in obtaining independent medical examinations. The doctors who are asked to examine claimants give an objective opinion based on the history described and the other facts available to them. Nevertheless, targeted questions can go a long way in getting the in depth explanation behind an opinion that helps bolster the IME doctor’s credibility. When preparing the cover letter to the IME doctor, consider whether there is anything unusual about the claimed injury. If the mechanism of injury doesn’t seem right, point that out to the doctor and ask her to comment specifically on the mechanism of injury and why it would be unlikely to cause the alleged injury. In many cases, you will receive a more detailed and individualized answer than you would if you only asked standardized questions.For more information on Medical Systems go to www.MedicalSystemsUSA.com
Definition:Deception is to intentionally distort the truth in order to mislead others. There are two classes of deception: concealing the truth (dissimulates or gloss over) and exhibiting false information (simulate). Malingering is intentional production of false or exaggerated symptoms motivated by external incentives, such as obtaining compensation or drugs, avoiding work or military duty, or evading criminal prosecution. Signs of Malingering:Malingering can be strongly suspected in the presence of any combination of the following occurrences:-Marked discrepancy between the claimed distress and the objective findings-Lack of cooperation during evaluation and in complying with prescribed treatment-Presence of an antisocial personality disorderMalingering often is associated with an antisocial personality disorder and a histrionic personality style. Prolonged direct observation can reveal evidence of malingering because it is difficult for the person who is malingering to maintain consistency with the false or exaggerated claims for extended periods.The person who is malingering usually lacks knowledge of the nuances of the feigned disorder. For example, someone complaining of carpal tunnel syndrome may be referred to occupational therapy, where the person who is malingering would be unable to predict the effect of true carpal tunnel syndrome on tasks in the wood shop.Prolonged interview and examination of a person suspected of a malingering disorder may induce fatigue and diminish the ability of the person who is malingering to maintain the deception. Rapid firing of questions increases the likelihood of contradictory or inconsistent responses. Asking leading questions may induce the person to endorse symptoms of a different illness. Questions about improbable symptoms may yield positive responses. However, because some of these techniques may induce similar responses in some patients with genuine psychiatric disorders, caution should be exercised in reaching a conclusion of malingering.Persons malingering psychotic disorders often exaggerate hallucinations and delusions but cannot mimic formal thought disorders. They usually cannot feign blunted affect, concrete thinking, or impaired interpersonal relatedness. They frequently assume that dense amnesia and disorientation are features of psychosis. It should be noted that these descriptions also may apply to some patients with genuine psychiatric disorders. For example, individuals with a delusional disorder can have unshakable beliefs and bizarre ideas without formal thought disorder.Physical Examination:Typically, deficits on physical examination do not follow known anatomical distributions. A patient's attitude toward the examining physician often is vague or evasive.Concerns:The time, energy, and financial commitment created by malingering individuals is an appreciable problem in health care. Whether the goal is to obtain narcotics, to obtain time off from work and/or to secure financial benefits such as disability payment, the costs to the health care delivery system have proved enormous. For more information visit www.MedicalSystemsUSA.com