Anyone who has spent any time in worker’s compensation claims knows that many, many claims are fraught with problems that aren’t wholly medical or psychological, but that are problems arising out of the workplace injury that nonetheless impact the claim. An apt term for these sorts of problems is “psychosocial difficulties.” Psychosocial difficulties “refer to impairments of body functions under central nervous system control, activity limitations, and participation restrictions such as concentrating, sleeping, maintaining energy levels, anxiety, making and maintaining relationships and keeping a job.” When we encounter a worker’s compensation claim we tend to focus on “medicals and indemnity” because worker’s compensation laws require insurers and self-insurers to pay medical expenses and indemnity expenses and not much else. The problem with this narrow focus is that a worker’s compensation claimant is a human being that lives in a particular psychosocial milieu. Psychosocial difficulties arise because of the “interaction of the health condition, environmental and personal factors.” The fact is that when a worker’s compensation claim is made, claims administrators may be authorizing payments for medical expenses and indemnity expenses, but the path that the claim takes is driven by the interaction of the health condition, the personal, and the environmental, which may include factors beyond the strict purview of worker’s compensation laws. Although extralegal, these other factors may have a profound impact on the nature of the claim and whether it can be administered effectively.
Common examples of “extralegal” factors include such things as financial security, access to secondary income, family stability, addiction, intelligence, etc. In the world of brain injuries and conditions, caregivers and medical practitioners have begun to realize psychosocial difficulties “are common across brain disorders” which “challenges the premise that the medical diagnosis has to be the driver or care.” In the context of brain injuries and disorders, “what people really care about is to be able to continue with their lives.” Hence, approaches to care which focus on helping them “continue with their lives” have been found to be effective. The bottom line is that “the difficulties people with health conditions face in their lives do not only relate to their health conditions but also to personal factors and the context in which they live.” The experience of injury and disability is likewise personal and driven by individual circumstances rather than being uniform across injury types. This impacts everything from treatment response to recovery to motivation to return to work. Hence, in two otherwise similarly situated persons with work-related meniscus tears, one returns to work within a few weeks of surgery while the other person takes many months to recover and experiences progressively increasing complaints ultimately leading to a total knee replacement.
When a person is injured, we consider the condition to be a medical one. When operating from the cognitive modality, we then assume that treating the injury will heal the person. However, the medical aspect of an injury is just one aspect. Injury, though physical or mental in nature, has myriad aspects that affect the life of the injured person. Often the psychosocial aspects of injury are more difficult for an injured person to manage or get over than the actual physical injury itself. When this is the case, claims become difficult because doctors tend to throw up their hands and say they can do nothing more for the person. From a claims perspective, this often triggers an attempt to shut the claim down, or at least end payment of medical expenses. The problem is that even when “medical interventions are exhausted…, interventions targeting [psychosocial disorders] can contribute tremendously to achieving a fulfilled life…” Thus claims administrators often find themselves in the difficult and unenviable position of not having anything to offer to an injured worker who clearly has problems related (in their mind or in reality) to the work injury. The position is difficult because the injured worker will often blame their condition on the worker’s compensation carrier and seek further benefits out of the belief, misguided or not, that continued receipt of worker’s compensation benefits can somehow make her whole again or at least offer the hope of remedy from the effects of the workplace injury. Frequently these “effects” are not primarily medical but instead are a result of the cascade of psychosocial problems that follow injury, interruption of employment, and diminished physical functioning.
One way to address the psychosocial difficulties is to allow injured worker’s to provide narratives of what is going on in their lives as part of the claims process. While this information, or at least pieces of it, often comes out during the course of a claim, it is usually the product of defensive behavior most commonly uttered in frustration, i.e. “but how am I going to pay my rent?” Instead, it might be beneficial to seek out the information actively, to ask claimants what is going on in their lives and how the injury is affecting them. Certainly it will provide good will and may assuage some of the claimant’s anger, but it also could have the benefit of figuring out what is really going on and how that will impact the life of the claim. If a person is frustrated because they can no longer perform an activity, perhaps a claims administrator would be able to direct her to a simple and cost-effective means by which the person can improve or restore their level of function. It can only help a claims administrator to understand what really matters to the injured worker.
It very well may be that the claims administrator will not be able to do much about issues that fall outside the purview of worker’s compensation; nevertheless, it cannot hurt to find out what all of the issues a claimant is facing and learning this information may help a claims administrator arrive at creative and effective solutions in what otherwise seem to be intractable claims. In addition, the earlier the discussion of psychosocial difficulties takes place, the earlier the claimant, with or without help from the claims administrator, can begin to address the difficulties. The sooner psychosocial difficulties are addressed, the sooner claimants are likely to accept their physical condition and move forward in adapting to it. This has the potential to reduce recovery times and to mitigate against the worst effects of disability, thereby potentially lowering both perceived and actual levels of permanent impairment. The law tells us what we have to do, but sometimes doing a little more can go a long way to making potentially problematic claims manageable.
Claims with chronic whiplash symptoms that develop after a low-speed motor vehicle accident are often difficult. The defense points to imaging studies that do not demonstrate evidence of pathology. The plaintiff points to a prior history of normal health without any neck problems or pain complaints. Each side points to their evidence and asks the jury (if the case goes to trial) to reach their preferred conclusion:
The defense will point to the low speed of the impact to demonstrate that their position is more credible, i.e. the speed was so low no person could have suffered more than a minor, temporary neck strain. The plaintiff will try to counter this with evidence that the speed of the striking vehicle at impact cannot accurately convey the forces transmitted to the plaintiff’s cervical spinal column and musculature. In truth, there is little direct evidence that supports either side’s position in these claims.
That may be changing, though. Researchers at the Feinberg School of Medicine at Northwestern University have uncovered what may be objective evidence supporting the claims of chronic whiplash injuries that arise in approximately 25% of all rear-end motor vehicle accidents. Specifically, the researchers found evidence of fatty deposits that accumulated in persons who went on to suffer chronic whiplash injuries in fat and water MRI scans taken within one to two weeks after the initial injury. Specifically, the MRI scans demonstrated “large amounts of fat infiltrating the patients’ neck muscles, indicating rapid atrophy.” Lead Investigator James Elliott stated that “we believe this represents an injury that is more severe than what might be expected from a typical low-speed car crash.”
The significance of the findings, if replicated, could be great for personal injury claims involving allegations of chronic whiplash injuries. If the water-fat ratio in neck muscles becomes an accepted objective test of whiplash injury chronicity, it could take the guesswork out of these claims. This of course seems like it would be a boon to plaintiffs’ claims; however, the defense would benefit also because it would limit chronic whiplash injury claims to those with objective evidence of injury. In short, it could potentially provide definitive evidence of which claims are legitimate and which claims are not. A residual beneficial effect for both sides would be more effective treatment. As Elliott notes, chronic whiplash patients “may require a more concerted effort for pain management from their physician and help from a psychologist.” Better treatment started sooner would be good for everyone involved in whiplash claims.
Lately it seems like we are stuck in a feedback loop: yet another study has found a common treatment modality for acute low back pain to be much less effective than assumed. In this case, medical researchers found that low dose oral corticosteroids (i.e. prednisone) did not improve pain and offered only modest functional improvement among patients suffering from acute sciatica due to a herniated lumbar disk. According to lead author Harley Goldberg, DO, a spine care specialist at Kaiser Permanente's San Jose Medical Center, "[t]hese findings suggest that a short course of oral steroids (prednisone) is unlikely to provide much benefit for patients with sciatica due to a herniated disk in the lower back.” Researchers also found that “oral steroids did not reduce the likelihood of undergoing surgery in the year following steroid treatment.” Given the apparently modest benefits of oral steroid treatment for acute sciatica and the known deleterious effects of negative treatment history, it would seem prudent for researchers to verify the results of the study as soon as possible. Otherwise we will all be stuck paying for treatment that doesn’t work and could possibly render later treatment modalities less effective.
Cogito ergo sum. These words of Descartes are more commonly known to English speakers as “I think therefore I am.” But what have they to do with medical treatment or medico-legal claims? Quite a bit actually. Descartes is famous among philosophers (a relative sort of fame) for arguing that the mind and the body are distinct entities. We see evidence of this intellectual approach in our distinction between the biological and the psychological. Take brain injuries as an example. We distinguish between what we consider to be organic, neurological injuries from the psychological effects of injury. Hence the distinction between post-concussion syndrome and post-traumatic stress disorder. The belief in dualism is extended into the legal realm also, where we have higher standards for proving mental only worker’s compensation injuries than mental injuries in worker’s compensation that arise out of a physical trauma. But is our insistence on this dualism, that mind and body are separate entities, valid?
Much research suggests that our conception of mind and body as separate entities is not so clear cut as we would like to believe. A good example of why we should be wary of separating the psychological from the physical involves the placebo effect. Another example involves treatment history. A group of researchers from German universities and Oxford University authored a 2014 study in which they found that treatment history experience has an astonishingly large effect on subsequent treatment, even when the type of treatment changed. In their study they gave patients analgesic medication delivered through a patch and then later switched to a different analgesic medication delivered through a topical cream. They found that those who responded positively to the first treatment also responded positively to the second treatment. More significantly, the authors found that those who responded negatively to the first treatment also responded negatively to the second treatment despite being given a different medication with a different delivery mechanism.
The findings are significant because the study “results may … challenge step care approaches in which treatment failure has to precede the prescription of next-in-line interventions.” The treatment carryover effect could have a big impact on problematic claims where acute injuries become chronic condition and nothing seems to help. As the authors note, “treatment experiences are ubiquitous in clinical care, particularly in patients suffering from chronic diseases. Carry-over effects might therefore be particularly relevant in chronic conditions where treatments often fail repetitively and negative treatment experiences accumulate along the course of the disease.” The authors suggest that targeted therapy, whether explicit psychological counseling or more implicit methods, could be used to address and attempt to overcome negative treatment history.
The study demonstrates that our minds and bodies are not as separate as we sometimes like to think they are. This can be frustrating when administering medico-legal claims because we want concrete answers. We want diagnostic images to have a one-to-one correlation with physical complaints. We want to know that if someone is prescribed a medicine, that it will work. Unfortunately, medical science tells us that the healing and treatment process is more complicated. While the treatment history study demonstrates the unpredictability of the healing process, it does offer learning opportunities. At a minimum, if we see a failed treatment history we then know that the likelihood of the next intervention working is diminished. In addition, knowing the effects of treatment history can provide a reason to have claimants undergo independent medical examinations. Once a pattern of failed treatment history develops, an independent medical examination may be worthwhile to attempt to halt the seemingly endless spiral of failed treatments.
The business of sorting out what is organic or biological from what is psychological is messy and probably futile. Perhaps it is time that we put Descartes to rest and start thinking of the mind and body as inextricably linked, so inextricably linked that they are not in effect different. Ego sum. That’s it. In the claims experience, this should help us deal with and understand the myriad responses to similar injuries that different claimants have.
One of the most difficult things involved in analyzing claims is the difference between inductive and deductive reasoning. Many of us remember the most basic form of deductive reasoning in the form of the classic syllogism presented in high school and college composition classes:
The essence of deductive reasoning is starting with a general premise or hypothesis and using specific or particular examples to reach a conclusion. An example in the medico-legal world is the general consensus that keyboard use does not cause or aggravate carpal tunnel syndrome. This would be a general premise. To support our argument we would then cite the relevant medical literature that demonstrates the correlation between keyboard use and carpal tunnel syndrome symptoms is coincidental and not causal. We would also want to cite the relevant medical literature demonstrating the types of motions and forces necessary to cause carpal tunnel syndrome. In addition, we would cite to medical literature demonstrating common risk factors for developing idiopathic carpal tunnel syndrome. Finally, we would conclude that in our case the employee’s carpal tunnel syndrome bears no relationship to her employment because her keyboarding could not have caused the carpal tunnel syndrome, her other job duties do not involve the type of repetitive motions or forces that would be necessary to cause or aggravate the carpal tunnel syndrome, and that she demonstrates X number of factors that predispose her to idiopathic carpal tunnel syndrome.
Inductive reasoning is the opposite: we take many specific instances to reach a general conclusion or hypothesis. For example, when an IME doctor says something to the effect of, “I have performed 10,000 total knee replacements and I have never seen osteoarthritis of the knee caused or aggravated by standing,” the doctor is engaged in inductive reasoning. Likewise, all peer-reviewed, randomized, controlled medical studies use inductive reasoning because they measure the effects of individual outcomes in test and control group subjects and draw general conclusions therefrom.
In one of the more famous clinical trials, Kirkley, et al. concluded that using arthroscopy to treat osteoarthritis of the knee produced no better outcomes than treating the condition with physical therapy and medical management alone. To reach this conclusion, the researchers randomly assigned patients with osteoarthritis of the knee to two groups, one which received arthroscopy, optimized physical therapy, and medical management and the other (control) group which received optimized physical therapy and medical management alone. The researchers ensured that the subjects in each group were sufficiently similar so that unrelated factors (large bucket handle meniscus tears, extreme varus or valgus alignment) would not influence the outcomes. Blinded nurses then followed both groups to measure the outcomes in each (patients in both groups wore neoprene knee sleeves so the nurses could not tell which persons had arthroscopy and which did not). The researchers measured the results and found that there was no difference between the two groups with respect to physical function, pain, or health-related quality of life at 6, 12, 18, and 24 month intervals. Based on the findings, the researchers concluded that “arthroscopic surgery provides no additional benefit to optimized physical therapy for the treatment of osteoarthritis of the knee.”
The question for us is how to apply this to the world of medico-legal claims. Much of what we do when we analyze claims is inductive reasoning. We look at particular behavior and argue that the claimant is not credible because he did X, Y, and Z, suggesting he isn’t being honest. The hidden premise is that when we have observed others doing X, Y, and Z, we have found that they were being dishonest. In order for inductive reasoning to be sound, we have to be able to demonstrate that the claimant in our case is sufficiently similar to the claimants in other cases that comprise the sample against which we are comparing our claimant in order for the conclusion to be valid. Perhaps the X in our claimant’s case is employees who claim they were injured on a Friday while at work but do not report it until the following Monday. In general, this fact pattern may suggest a credibility problem. However, what if our claimant was a salesperson not expected to report to the office until Monday who was leaving after making his last call for the day who slipped while leaving the client’s house and suffered a head injury that required him to be transferred by EMS to a hospital. Would this employee’s failure to report the injury on Friday still be a red flag regarding his credibility or honesty?
The point is that for inductive reasoning to be persuasive and accurate, it needs to be concrete and consistent. Change the sample or the instance to which you are comparing it and the argument becomes less persuasive. When analyzing a claim it is critical to recognize when you are using inductive reasoning to reach a conclusion so you can determine if there is actual evidence that supports your reasoning or if your conclusion is based on shaky assumptions about either the sample or the particular instance.
In essence, claims often involve a dance of inductive and deductive reasoning. We frequently use inductive reasoning techniques to establish the minor premise of our deductive argument. Let’s return to the carpal tunnel syndrome example. We know that keyboarding does not cause carpal tunnel syndrome. This is our general premise. We also know what types of forces have been proven to cause carpal tunnel syndrome. Our job, if we represent the employer, is to demonstrate that that claimant’s chief occupational exposure is through keyboarding and that she does not engage in other occupational activities that are known to cause carpal tunnel syndrome. This is our minor premise. Establishing that our claimant fits into the minor premise is an inductive process. We gather all relevant information available to us: job description, job video analysis, recorded statement, witness statements, etc. to demonstrate what the claimant does in her job to the highest degree of probability possible. Then we make the inductive leap and state that the claimant engages primarily in keyboarding and does not engage in any occupational activities known to cause carpal tunnel syndrome. We are then able to argue to the ALJ that the claimant’s carpal tunnel syndrome is not work-related based on the medical consensus that keyboarding does not cause carpal tunnel syndrome because her only occupational exposure is keyboarding. We might also wish to gather evidence that the claimant has characteristics common to those who develop idiopathic carpal tunnel syndrome to be able to provide the ALJ with an explanation for why she developed carpal tunnel syndrome, though strictly speaking this is not necessary to our deductive argument.
In this way, we integrate inductive and deductive reasoning to establish a strong argument. The key, though, is to understand when we are engaging in each type of reasoning so that we are gathering the appropriate evidence for each type of reasoning. If we understand this our reasoning will be sound and persuasive and we will be more effective in administering claims.
Gender. It’s all over the news for a variety of sensational reasons that have nothing to do with independent medical examinations. Nevertheless, gender can be important in independent medical examinations. For example, a study published online in Radiology finds women who sustain mild traumatic brain injuries have significantly greater working memory impairment which persists for longer periods than men who suffer mild traumatic brain injury. In managing a claim file with a mild traumatic brain injury, this information is important for at least a couple of reasons. First, it should help gauge when a claim has gone from an expected recovery pattern to an unexpected one. If we know that men typically do not experience working memory impairment in mild traumatic brain injuries beyond 4 weeks and a claimant is still complaining of memory problems beyond that time, we should certainly be asking questions of the provider and may wish to consider setting up an IME to get a second opinion. Conversely, if a woman who suffers a mild traumatic brain injury complains of working memory problems 8 weeks after the injury, we should not necessarily be alarmed.
Second, knowing the differences in the way persons of each gender respond to common injuries and conditions can help us tailor our questions to the IME doctor. Certainly in the mild traumatic brain injury example involving a male claimant we would want to specifically ask whether claimed working memory impairment past four weeks post-injury would be unusual for a male. In this way, we can use a question to alert the IME doctor as to why we think something is remiss in the claim and to elicit a specific explanation that will bolster the basis for the doctor’s opinion. Another example of a gender-specific response involves whiplash injuries. The medical literature demonstrates that female gender is associated with greater risk of whiplash injuries resulting in chronic or permanent complaints. If we have a male claimant alleging permanent whiplash-type injuries without objective evidence of ongoing injury, we would want to direct the IME doctor’s attention to whether this is consistent with the literature on how male bodies respond to whiplash.
Beyond medico-legal claims, gender matters also. A lot. Take heart attacks. Most people know that squeezing chest pain is a symptom of heart attacks, often described “like an elephant” sitting on the chest. Far fewer people know that “women can experience a heart attack without chest pressure.” Also, according to the American Heart Association, “women are somewhat more likely than men to experience some of the other common symptoms, particularly shortness of breath, nausea/vomiting and back or jaw pain.”
Why is this significant? First, heart disease kills more men and women than all forms of cancer combined. Second, the key to surviving heart attack is early intervention. If we do not differentiate heart attack symptoms by gender and educate people accordingly, more than half the population is at increased risk of death from the leading cause of mortality simply because they lack basic, simple knowledge. This increased risk has nothing to do with age, wealth, health insurance, race, etc. The only reason for the increased risk is that the former one-size-fits-all-genders approach to medicine forgot a simple truth: men and women are different.
In the medico-legal world we administer claims of both male and female claimants. To fulfill our responsibilities most effectively, we must recognize that men and women are biologically different in ways that can affect the outcome of a claim. We must be aware of the physical conditions and injuries to which men and women respond differently so we can differentiate between what is normal and what is not, so we can know when to get an IME, and so we can ask the right questions once we schedule an IME. Injuries are not “one-size-fits-all-genders” any more than heart attacks are. Knowing this will make us better claims handlers, nurse case managers, paralegals, and attorneys (and it might help save a life, perhaps even yours).
We have posted before about the benefits of standing during the workday. New research suggests that standing while working is not only physically better for you, but it also leads to improved cognitive performance. Researchers from Texas A&M University equipped classrooms with standing desks and compared student performance to a control group using traditional, seated desks. Researchers found that students using standing desks had improved academic performance when compared to their peers using seated desks. The main advantage of standing desks appears to be that students who were standing maintained their focus better than seated students. The results should not be altogether surprising because “previous studies have shown that physical activity, even at low levels, may have beneficial effects on cognitive ability”, according to lead researcher Mark Benden, Ph.D.
Although the study focused on children in the classroom, adults have been shown to benefit physically from using standing desks. There is no reason to believe that adults would not also benefit cognitively from standing desks. Myriad health problems arise from sitting for extended periods of time for which employers ultimately pay a hefty price in the form of increased health insurance premiums, lost time, and disability claims. Reducing the amount of time employees have to spend sitting makes sense from this standpoint alone. However, employers are also likely to derive performance benefits from employees who stand more and sit less in the form of an increased ability to focus and stay on task.
I spend a lot of time reading news about medical advancements so I can post interesting and useful (I hope) things to this blog. However, sometimes reading about medical advancements can be dispiriting because we frequently are told that what we thought we knew is wrong. Take the recent news that acetaminophen (Tylenol®) is not effective for treating low back pain or knee and hip osteoarthritis. Acetaminophen has been around since 1955 as an analgesic and antipyretic (fever reducer). In addition to its other uses, the American College of Rheumatology recommends acetaminophen as an option to treat knee and hip osteoarthritis. The American College of Physicians and the American Pain Society recommend acetaminophen as a first line treatment for low back pain. One must wonder how many millions of dollars consumers and insurance companies have spent on a drug that essentially doesn’t work to treat low back pain and knee and hip arthritis pain based on the recommendations of doctors, pharmacists, and nurses. And this is just the most recent example.
Naturally, we can be led to believe that there is something nefarious or avaricious about the medical profession and the pharmaceutical industry when we learn of developments like the recent findings about acetaminophen’s ineffectiveness. As someone who in the past defended employers and insurance companies against many carpal tunnel syndrome worker’s compensation claims allegedly related to keyboard use, I have gotten extremely upset at the amount of money spent to cover carpal tunnel syndrome claims that virtually no credible physician would consider to be work-related today because research now demonstrates definitively that repetitive keyboard use does not cause or aggravate the progression of carpal tunnel syndrome. Ditto performing arthroscopic chondroplasty to treat knee osteoarthritis. I have certainly entertained thoughts of greedy physicians eager to cash in on patients and the worker’s compensation system, especially when we learn that what they thought was true was in fact erroneous. I think we have this impulse because we know that medicine is based in part on science; hence, we expect medicine to be reliable and its practitioners to possess accurate knowledge. Any experience to the contrary makes us feel like we are being duped.
The problem is that our understanding is only partially correct: medicine is, in part, based on science; however, the conclusions that we draw from our understanding is incorrect: scientific fields of study are, by the very nature of science, in perpetual flux. Scientists form hypotheses based on observations. They then perform experiments to test the hypotheses. The experiments may confirm a hypothesis or refute a hypothesis or fall somewhere in between. Scientists try to isolate outside variables and eliminate bias from the experiments, but they are not always successful in doing so. Hence, the results from an experiment that seem to be valid may be found to be problematic or invalid at a later date if the results cannot be duplicated or if unappreciated confounding variables are discovered.
The placebo effect of sham arthroscopy exemplifies how this can happen. The initial investigators into the effectiveness of using arthroscopic chondroplasty to treat knee osteoarthritis could not conceive of a placebo effect in a surgical setting, so they did not even consider the possibility that arthroscopy could have a placebo effect. Early studies demonstrated that arthroscopic chondroplasty was effective in treating knee osteoarthritis. However, after years of treating knee osteoarthritis with arthroscopic chondroplasty, a number of doctors began to suspect that it was not particularly effective based on the results they were observing. Some noted the initial positive results and subsequent lack of expected improvement were similar to a placebo effect. These doctors began hypothesizing that the arthroscopy itself was having a placebo effect. Two studies were performed to reevaluate the long term effectiveness of treating knee osteoarthritis with chondroplasty, including one that used a control group that received sham arthroscopy. Both studies concluded that treating knee osteoarthritis with chondroplasty is no more effective than treating knee osteoarthritis without surgery. The study using sham arthroscopy further concluded that arthroscopy has a significant and measurable placebo effect which accounted for the perceived success of using arthroscopic chondroplasty to treat knee osteoarthritis in earlier studies.
The fact that science requires constant questioning of the status quo is a profound virtue, despite our natural desire for settled and secure knowledge to the contrary. Consider that if medical researchers had not critically observed patients undergoing arthroscopic chondroplasty for knee osteoarthritis and questioned earlier research, doctors would be continuing to perform a useless procedure at great cost to patients and third party payers. Similarly, if we didn’t constantly question our knowledge based on our observations, we would still consider smoking cigarettes to be beneficial to pulmonary health (as many once believed) and would consider bloodletting to be an effective treatment for myriad conditions and diseases. Science is hard and sometimes exasperating because scientists never rest or accept the status quo; however, this is its genius.
In many ways, constantly questioning and not accepting the status quo is useful in the claims world also. One way to bring the constant reexamination of assumptions from science to claims is to question some assumptions that we rely on to see if they have a legitimate basis in reason and fact. A perfect example is the list of standard red flags that are cited as increasing the likelihood that a claim is not legitimate. Some standard red flags include:
It may be that these red flags are based on legitimate assumptions, but if they are not it is a waste of time for claims professionals to devote extra time to a file based on them. Let’s examine them one-by-one to see if the red flag assumptions bear out.
First, we want to question a claim because we didn’t get notice of the injury until after the employee was laid off. The assumption is that if the injury was legitimate the employee would have reported it when it happened. The conclusion drawn is that the late reporting is done either to obtain continued wages in the form of TTD (and perhaps medical coverage as well) or to spite the employer. Consider another assumption though: the employee did not report the injury while he was working because he feared he would lose his job if he did so. Once the job was gone, he no longer faced the same economic or psychological constraints. This assumption may seem strange, but we know people regularly engage in such counterintuitive behavior. For example, it is established fact that a significant percentage of innocent persons who are investigated for and accused of committing a crime will falsely confess or plead guilty to a crime they did not commit. The reasons people do so are myriad, but it is beyond debate that this behavior regularly occurs. Before we make the assumption that reporting injury after termination or lay off suggests a claim is not legitimate, we should at a minimum have other reasons supporting the assumption since there are equally plausible reasons that suggest late reporting is in fact a legitimate behavior. Better still, we should examine claims in a scientific manner to determine if there is actual support for our assumption that claims reported after termination or lay off are baseless more often than claims not reported after termination or layoff.
Second, we are told that unwitnessed accidents are suspicious. By itself this statement must be admitted to be practically incoherent. The assumption is that for an accident to be legitimate it must have been witnessed. Absent context, this is nonsensical. Can we really equate the legitimacy of an inventory clerk who spends 85% of her day alone and suffers an unwitnessed injury with a line worker who spends 98% of her day in the presence of co-workers and suffers an unwitnessed injury? Also, the context of the injury itself is important. The facts are considerably more likely to suggest legitimacy (or lack thereof) than whether or not someone else saw the injury happen.
Third, we are told to be suspicious when an injury related to the same body part affected by a preexisting condition. The assumption seems perfectly legitimate: the preexisting condition is causing the problem and the worker is claiming worker’s compensation to avoid wage loss, out-of-pocket medical expenses, etc. However, is it not equally plausible that a preexisting condition means that the body is in a weakened state and is therefore more susceptible to injury than if it were healthy? Obviously other factors will determine the likelihood of the injury’s legitimacy, but that is the point. The red flag and the assumption on which it is based gets us no nearer the truth, and possibly farther from it, than if no red flag assumption was made.
By questioning whether the assumptions we use to evaluate claims are true, we can weed out those which have no reasonable basis in fact from those that do. And making claims decisions based on reason and fact will lead to more accurate and efficient claims analysis. We no longer practice bloodletting because it rested on faulty assumptions about human physiology. It is important that we examine our assumptions so that we don’t practice bloodletting in our claims.
Over the past year, we have been periodically publishing posts about strategies to improve decision making that are based on an article Jeffrey Brewer wrote on the topic. Our prior posts addressed the first nine of the ten individual strategies Brewer outlined:
At long last, we have come to Brewer’s tenth and final step, where we put all the prior steps together:
Before we address the final step in detail, we must review why we are concerned with decision making in the first place. The chief reason is that a plethora of scientific research tells us that detrimental cognitive biases and heuristics infect our decision making if we do not adopt a systematic approach to control and limit their effects. Brewer’s strategies for improving our decision making offers just such a systematic and rational approach to limiting the effects of cognitive biases and heuristics.
A short review of how cognitive biases and heuristics detrimentally effect decision making is also in order before we get to the final step. One heuristic that often arises in the medico-legal context is the association of correlation with causation. Thus, we frequently are faced with ALJs, circuit court judges, and juries who conflate correlation with causation and assign legal causation based on temporal proximity rather than actual causation. Hence, in the worker’s compensation setting ALJs often conclude that employment activities caused or aggravated a low back problem simply because the worker experienced pain while working. It is incumbent on us to understand this casual but unconscious heuristic so that we can introduce persuasive evidence to attack it and demonstrate that it is fallacious reasoning.
One cognitive bias that often arises in the medico-legal context is the confirmation bias, which causes us to overweigh information consistent with our position (i.e. that the employee’s complaints are not related to the workplace accident) and to under weigh information that is inconsistent with our position (i.e. the employee’s complaints are related to the workplace accident). Failing to have a strategy to reduce the effect of the confirmation bias will cause us to persistently and unconsciously overestimate the strength of our position. This in turn is likely to persistently compromise our ability to settle claims and lead to bad results. Of course the good news is that both sides are subject to the same cognitive biases and heuristics. Thus, if we can limit their effects on our decision making, we will be at a comparative advantage.
So now that we know why developing a consistent decision making strategy is important, let’s get back to Brewer’s final step: to develop self-consciousness concerning one’s own thinking and reasoning process. This step involves reflecting upon the decision making processes one is using, deliberately invoking those steps that are most appropriate to the given circumstances, and consciously transferring those reasoning methods from familiar to novel contexts. In other words, the final step is to internalize the decision making process so that we automatically follow it in every case, new or old.
In essence, Brewer wants us to have a method for problem-solving that is second nature, which will ensure that we will reason well and thoroughly when thinking on our feet. For example, we may be familiar with rotator cuff claims but may be faced with a claim involving an alleged SLAP lesion, with which we are considerably less familiar. The claim’s relative novelty should not faze us if we have mastered the process of rational decision-making. If we lack expertise, the process of analyzing, investigating, and judging will take more time than it otherwise would; however, the process itself should not be daunting because it should be the same regardless of our expertise. Evidence and assumptions are subject to the same testing and analysis. Our conclusions are evaluated in the same way to determine internal consistency. We will need to learn what the rules governing the new problem are and how they are applied to particular cases. Once we have this information, the actual decision-making process is the same regardless of whether we are familiar with the type of claim or not.
Take the diagnosis of SLAP lesions. Often a claim involving a SLAP lesion will be made based on MRI findings. We have, for whatever reason, a tendency to reflexively accept MRI as being accurate diagnostically and as accurately establishing a causal link between a patient’s physical complaints and the findings on the scan. In truth, MRIs are neither accurate in all instances nor can an MRI alone establish that the patient’s physical complaints are related to the findings on the scan. For some orthopedic conditions, MRI is the diagnostic gold standard; however, for other orthopedic conditions MRI is not an effective diagnostic tool. For example, studies have shown that MRI is more sensitive for diagnosing posterior collateral ligament (“PCL”) tears in the knee than arthroscopy because of the ligament’s anatomical position. On the other hand, diagnosing SLAP lesions on MRI is exceedingly difficult with false positive rates of over 20% and false negative rates that can exceed 50%. The American Academy of Orthopedic Surgeons reiterates that MRI is not considered reliable in diagnosing SLAP lesions:
Although other diagnostic tools—such as radiographs, computerized tomographic arthrography, and magnetic resonance imaging—are frequently used, the results are not considered reliable enough to make a definitive diagnosis of a SLAP tear.
Further, the Mayo Clinic reports that:
As imaging continues to improve and more people undergo MRI studies, physicians are finding that a significant percentage of people within the general population have labral changes that do not cause symptoms or need repair. In particular, there are age-related changes that can cause degenerative splits and tears in the labrum. While they may not be symptomatic, visually they can mimic a SLAP lesion. When these appear in MRI studies, misleading assumptions may be made between the images and the patient symptoms.
If we are self-conscious about our own thinking and reasoning, we will know that the first question we should be asking when we face a diagnostic imaging study, MRI or otherwise, with which we are unfamiliar (due to the body part or the actual test itself) is the rate of false positives and false negatives for the imaging test. From there we will know that we should ask what is the diagnostic gold standard and how does the current test compare to other diagnostic techniques, including physical examination? What does the medical community recognize as the definitive test or tests for establishing the diagnosis? What is the consensus on the relationship between particular physical complaints and the findings on diagnostic imaging studies? Before we accept test results or acquiesce to a request for testing, we will be able to determine if the results or a request are likely to be considered reasonable as a matter of medical necessity and whether we should be considering a second opinion record review (at the very least) to evaluate the results of the a request.
With respect to SLAP lesions, the increase in SLAP lesion repairs and the rather dismal success rate offers a good example of why adopting and adhering to a rational decision-making process is so important. Between 2004 and 2009, the rate of SLAP lesion repair increased 105% despite the fact that the incidence of SLAP lesions in the general population did not appear to increase. This should give us pause to ask a few questions in keeping with our decision-making strategy. First, was a diagnostic tool developed that demonstrated an increasing amount of symptomatic SLAP lesions in the general population? Answer: no. Second, was a new surgical technique developed that allowed previously unrepairable, symptomatic SLAP lesions to be successfully repaired? Answer: no. Third, was a surgical technique developed that greatly increased the rate at which SLAP lesions could be repaired successfully? Answer: no. Fourth, was there a change in the general population that caused substantially more people to suffer from symptomatic SLAP lesions? Answer: no. So why, then, are so many more surgeries to repair SLAP lesions being performed? Perhaps there wouldn’t be such a precipitous increase if an internalized process of rational decision making were applied to these claims.
Ultimately, using a rational decision making approach will cause us to get beyond the bias we have toward overweighting MRI findings and to develop a strategy for managing the claim based on fact as opposed to bias and assumption. And when we do this, when we are self-conscious about our thinking and reasoning process, we will know that just because an MRI finds evidence of labral changes and an orthopedic surgeon says the employee needs surgery to repair the labrum doesn’t mean we should accept the findings or the recommendation at face value. Instead, we will get a second opinion and potentially spare ourselves the cost of a surgery that is likely to be unnecessary and ineffective. In the end, this is the essence of good decision making.
Risk Management Consultant Barry Thompson has an interesting post at his blog, www.claimanswer.com, in which he argues that all worker's compensation medical claims should be processed through Medicare from day one. The gist of his argument is that:
1) It [processing worker's compensation medical claims through Medicare] provides a nationally accepted level of care to injured workers.
2) It brings clinical common sense to an otherwise specious and manipulated system.
3) It ends the oppressive impact of MSA’s.
4) It saves an incredible amount of direct costs, frictional costs and resources while reducing litigation.
To be clear, Thompson proposes that worker's compensation carriers would reimburse Medicare for claims deemed to be wholly or partially related to a work injury and that the indemnity system would remain intact. It is his argument that Medicare has better, more uniform standards for assessing medical causation and is much better at keeping treatment costs under control. Food for thought.