Be Consistent: It Pays to Pay Logic More than Lip Service

2/20/2015 in Blog Categories, News

Test your own line of reasoning for internal consistency.

Much of the point of Brewer’s preceding rules or decision heuristics was to remove assumptions and emotion out of the claims evaluation process.  This step is where we put the prior steps to work for us to evaluate whether we have in fact successfully analyzed the claim before us in an unbiased and logical fashion. 

Let us assume that we are analyzing a claim involving an acute foot injury followed by years of occupational exposure in an obese, 46-year-old, female claimant.  When the claimant was 37, she suffered a calcaneal fracture while on the job.  She is employed as an assembler doing light work, but stands for the duration of her shift.  She was not issued final restrictions after reaching an end of healing following the first injury, but was issued a 15% PPD rating based on loss of motion.  The employer did not offer any accommodations to limit the amount of standing the claimant would have to do, but the claimant never requested an accommodation or complained about standing too much.  The claimant subsequently developed arthritis and is scheduled to undergo a subtalar fusion.  Medical opinions support three possible causes for the claimant’s current condition and the need for the fusion:

  1. The arthritis is related to the claimant’s age and body habitus and bears no relationship to the calcaneal fracture or the subsequent workplace exposure;
  2. The arthritis is wholly related to the calcaneal fracture, is a normal sequelae of that type of injury, and the subsequent occupational exposure was not a material contributory causative factor in the onset or progression of the arthritis;
  3. The arthritis is posttraumatic and the subsequent occupational exposure was a material contributory causative factor in the progression of the arthritis (causing it to progress faster than it otherwise would have).

In our case, we represent the carrier on the risk for the subsequent occupational exposure date of injury.  Our IME doctor concluded that the claimant developed the arthritis due to her age and weight and supports his conclusion by arguing that the claimant would have become symptomatic much sooner if the arthritis were posttraumatic.  The IME doctor for the carrier on the risk for the acute fracture date of injury concluded that the arthritis is posttraumatic but that the subsequent period of occupational exposure caused the arthritis to progress faster than it otherwise would have.  Finally, the treating surgeon concluded that the acute fracture is the sole cause of the arthritis and the need for the surgery. 

During the course of our investigation we learned several things:

  1. The claimant’s non-injured foot is asymptomatic;
  2. The claimant dislocated the same ankle while sliding into third base during a high school softball game when she was 16.  The dislocated ankle was manually reduced and treated non-surgically with casting then physical therapy;
  3. The claimant works from 7:00 to 3:30 and has two 15 minute breaks and a 30 minute lunch.  The employer admits that generally the claimant and other assemblers stand for the balance of each day unless they are in a meeting.  Production meetings are held Mondays at 7:00 and last 15-20 minutes.  Otherwise assemblers are infrequently in meeting (less than once per month). 
  4. 9 months before the occupational date of injury the employer hired a new production supervisor.  In general, the assemblers do not like the new supervisor and several, including the claimant, complained to human resources about his conduct. 
  5. The calcaneal fracture and the current subtalar fusion are the only worker’s compensation claims the claimant has made.
  6. Both insurance carriers took recorded statements and the claimant consistently describes the injury occurring gradually, over a period of a few months, progression until it became too painful to ignore at which time she sought treatment with the orthopedist who treated her original fracture.
  7. The original calcaneal fracture was displaced and treated surgically with open reduction and internal fixation.
  8. The claimant reported that she does not wear high heels or other non-supporting shoes but instead generally wears running shoes when she is not a work.

Based on the information obtained in the investigation, we developed a litigation plan and completed our investigation.  Now we have our litigation plan in place and are preparing to roundtable the claim with our supervisor.  Before heading to the roundtable, we have decided to run through the claim again to judge whether we are still comfortable enough with our analysis to present and defend it at the claims roundtable.

We reached the following conclusions about the claim:

  1. An ALJ is likely to find the current condition to be work-related because the uninjured ankle is asymptomatic.
  2. An ALJ is more likely to find the original fracture is the appropriate date of injury than the occupational exposure date because the treating orthopedist on both injuries concluded the subsequent occupational exposure did not cause the onset or progression of the condition.

To prepare, we need to analyze our conclusions to see if they are internally consistent.  First, we concluded that the injury is likely to be deemed work-related.  In examining the claims file, two strong facts support our conclusion.  One, the employee’s uninjured foot shows no evidence of arthritis.  This is significant because the claimant’s occupation stresses the subtalar joints of both feet equally (or nearly so).  Hence, if the arthritis were idiopathic we would expect to see the arthritis in both subtalar joints.  Two, subtalar arthritis is a well-known and relatively common complication of calcaneal fractures.

Second, we concluded that the ALJ is more likely to conclude that the original fracture is the appropriate date of injury for the claimant’s current condition.  Our basis for concluding this is that the treating physician who treated the original injury and the current condition is the same; therefore, he has had the best chance to observe the claimant over time which renders his opinion most credible.  This is not as solid a position as the first one is.  In a sense, the argument is a non sequitur because it does not necessarily logically follow that the treating physician is better able to determine causation based on familiarity with employee’s condition over time.  In making this argument, we have at least one unstated premise that needs to be articulated and explored before we can determine if the argument is in fact internally consistent and valid.  The unspoken premise is a common one in worker’s compensation:  all things being equal, ALJs consider treating physicians to be more credible than IME physicians.  As far as I know, this assumption is based on experience and anecdote and not actual objective data.  Hence, we need to be cautious in applying the assumption to our argument and should not consider it necessarily to be dispositive.  The reason for our caution is that the assumption is based on the overarching view that most ALJs will, all things being equal, apply the Worker’s Compensation Act liberally and grant benefits to employees making claims.  If this view is true, and at least it is reinforced by statute and state Supreme Court pronouncements, then it actually may weaken our assumption that an ALJ will find the treating physician most credible in this case.  The reason is that if an ALJ were to find the treating physician most credible, the employee would be stuck with benefits at a considerably lower rate than if the ALJ found the IME doctor for the original date of injury to be most credible.  Remember:  the IME doctor for the original date of injury insurance carrier finds the claim is work-related and his opinion establishes a date of injury 9 years later, with the corresponding increase in the temporary total disability and permanent partial disability rates that would obtain.  If the primary motivating factor of an ALJ in a close case is giving benefits to a claimant then it is reasonable to assume that the ALJ will also be motivated to give a claimant the highest benefit rate when there is a credible opinion allowing her to do so.  Thus, we may wish to adjust our opinion and note that the date of injury is likely to be a closer call than we at first posited.

Obviously this is simplistic and something of an exaggeration intended for illustrative purposes.  Presumably, we would have considered the problematic assumptions about the date of injury as soon as we had all the relevant medical opinions.  Nevertheless, the example serves a purpose:  when evaluating a claim, you must test the line of reasons that led you to the conclusions you reached for internal consistency.  In doing so, you will stand the best chance of discovering non sequiturs and other logical reasoning problems or errors that may cast doubt on the validity and strength of the conclusions you reached.

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