Decorated New York Times Science reporter Gina Kolata recently reported on a large (100,000 women over 20 years) study published in JAMA Oncology on ductal carcinoma in situ (“DCIS”), a form of abnormal cells found in the milk ducts of breast tissue. Some medical experts call DCIS stage 0 breast cancer. Other medical experts do not even consider DCIS to be cancer. Kolata’s article and the study on which it reports illustrates a problem with viewing medicine as a static field to which fixed assumptions apply: the human body is a dynamical system that is unpredictable and confounds assumptions.
Cancer is a particularly good example of the problems with making fixed assumptions about disease. As Kolata notes:
Over the years, investigators have come to conclude that the old model of cancer – that a few aberrant cells will grow, spread and inevitably become a deadly cancer if not destroyed – is wrong. Small clumps of abnormal cells may just stop growing, scientists now know. Even invasive cancers do not always grow. Some regress or disappear. That is especially true in prostate cancer, where as many as half of all cancers found with screening will not progress is they are simply left alone. But it also seems true in breast cancer, researchers say.
Doctors used to assume that DCIS was an incipient form of cancer that, if not treated, would grow into a tumor and eventually metastasize. The use of mammograms greatly increased the diagnosis of DCIS, which led to greatly increased treatment of it. Early on, mastectomy was the preferred method of treatment. The reason was based on applying the rules of a different cancer to DCIS. Studies had demonstrated that excising early neoplastic lesions on the cervix that were discovered in Pap tests prevented deaths from cervical cancer; hence, doctors reasoned that cutting out DCIS lesions would prevent deaths from breast cancer. As lumpectomy became an accepted alternate treatment to mastectomy in breast cancer, doctors began treating DCIS with lumpectomy also. The problem is that the JAMA study found there was no difference in the death rate from breast cancer of women diagnosed with DCIS (regardless of the form of treatment they received or whether they received no treatment) and the death rate from breast cancer in the general population of women. The study also found that despite aggressively treating DCIS, there was no impact on the incidence of invasive breast cancer in the general population. This would not be expected: “if treating DCIS was supposed to fend off invasive breast cancer, the incidence of invasive breast cancer should have plummeted once DCIS was being found and treated.”
The JAMA Oncology study can teach those of us in the medico-legal world a valuable lesson about the perils of making assumptions without testing them. In the medico-legal world, we need to pay attention to the evidence around us and to the impact the evidence has on the claim, especially impacts that are unexpected or run counter to our assumptions about the claim. Failure to do so will inevitably result in error.
The DCIS case is instructive. Surgeons began performing mastectomies and later lumpectomies to treat DCIS with the rise of mammogram screening. They did so on the advice of oncologists and gynecologists who assumed that the abnormal cells of DCIS were like the abnormal cervix cells found on Pap tests. Despite growing evidence that certain neoplasms do not metastasize and that different cancers behave and respond to treatment differently, oncologists and gynecologists kept recommending that DCIS be excised (and general surgeons dutifully performed the excisions). And even after years of excision being standard treatment for DCIS, no one bothered to gauge whether the treatment in fact lowered death rates from breast cancer because the medical community did not question the assumption that DCIS would lead to breast cancer if not excised. The assumption, based on an analogy instead of medical evidence, was so deeply embedded in the medical profession that few practitioners thought to question it. As a result, thousands and thousands of unnecessary mastectomies and lumpectomies were performed over the last three decades which caused physical injury, physical pain, psychological distress (not to mention massive medical costs), and did not prevent breast cancer. And all of this was caused by a failure to pay attention to the actual evidence accruing and instead relying on an untested assumption.
DCIS offers a sobering example of why we cannot rest our claims analyses on untested assumptions. Instead, we must constantly test our assumptions against the available evidence to determine whether the inferences drawn therefrom support the assumptions. While the assumptions made in individual claims are not likely to have as deleterious consequences as the assumptions the medical community made about DCIS, they can have a negative impact on our ability to resolve claims efficiently and effectively. And if the assumptions are repeated over time, the skewed results we achieve in resolving claims could have a significant negative monetary impact in the aggregate. Instead, we should constantly be testing our assumptions against the actual evidence; further, we should be prepared to abandon our assumptions if the available evidence does not support them. Claims are not static but rather change over time as they are developed and new evidence is obtained. To manage claims effectively, we must adapt to those changes and develop a strategy that is responsive to them. If we do so we will not be surprised when the unexpected arises and we will respond to it nimbly. We will also avoid the pitfall of untested assumptions that, like was the case with DCIS, can cause us to pursue strategies that may not only be ineffective but also harmful.
Pulmonary claims in worker’s compensation can be difficult if there is not a discrete release of harmful airborne particulate matter or chemicals that is well-documented. In cases with longer exposure time or with exposure to common particulate matter such as ‘dust’ or other materials that may cause pulmonary irritation, finding a plausible non-industrial cause for the pulmonary injury or condition can be both challenging and vital to the claim’s defense. However, a UK study reveals a potential source for non-industrial exposure to harmful particulate matter and vapors: home improvement projects. According to Medical News Today, the study found that “peak concentrations of potentially harmful ultrafine particles reach up to 4,000 times local background levels when undertaking building activities such as drilling.” The authors note that do-it-yourself (“DIY”) home improvement has increased in recent years and continues to grow in the United Kingdom, a trend also common to the United States.
In the United States, OSHA mandates worker’s on construction sites be provided with personal protective equipment such as respirator masks when necessary to protect employees from harmful particulate matter and vapors. OSHA also requires that employers use effective engineering controls such as confinement and ventilation to limit workers’ exposure to harmful particulate matter. Unfortunately, individuals who engage in home improvement projects are not required to use personal protective equipment or engineering controls to protect themselves. Thus, home improvement projects, especially those involving drilling, cutting, sanding, or solvent use can be a significant source of pulmonary exposure to harmful airborne particulate matter or vapors.
In the worker’s compensation context, the rise in DIY home improvement is a potential non-industrial cause of pulmonary injuries and conditions. Claim handlers in pulmonary claims should ask claimants about DIY home improvement project history to see if there is a potential exposure source outside the workplace for their problems. Also, claim handlers may wish to consider interviewing co-workers since many people who engage in DIY home improvement projects like to talk about them. Prompt surveillance could also be useful because larger scale DIY projects often generate construction waste that is at least temporarily stored at the home and is often visible from the street. Finally, independent pulmonary experts should be instructed to ask claimants about their DIY home improvement project history if they are not already doing so. Dry-walling a bedroom surely would be more likely to cause pulmonary problems than exposure to the everyday amount of dust present on a loading dock in a warehouse (or wherever the exposure is alleged to have occurred).
Spinal cord injuries are devastating. The U.S. experiences approximately 12,000 spinal cord injuries per year in which the injured person survives the initial accident. For those who survive the initial accident, the road forward is physically arduous, psychologically taxing, and financially burdensome. A spinal cord injury patient can expect to spend well over a month in hospitals and in-patient rehabilitation (and sometimes considerably longer dependent on the severity of the injury and whether there are concomitant cognitive impairments or other comorbidities). In addition, the lifetime costs of spinal cord injuries are extensive, having a present day value ranging from $4,540,000 for a 20-year-old patient with high tetraplegia (spinal cord injury at C1-C4) to $1,460,000 for a 60-year-old patient with paraplegia. The occupational effects are profound, with only 35% of spinal cord injury patients able to achieve a similar pre-injury level of employment 20 years post-injury. Obviously, the costs to employers and worker’s compensation carriers in work-related spinal cord injury claims are enormous and usually lifelong. The costs of spinal cord injuries are massive in the liability context as well. Since the two most common causes of spinal cord injuries are motor vehicle crashes and falls, liability and worker’s compensation claims are relatively common when spinal cord injuries occur.
Certainly no one did more to raise awareness of spinal cord injuries than Christopher Reeve, who suffered a spinal cord injury causing high tetraplegia (C1-C2) after falling from a horse in 1995. Periodically high profile athlete suffer spinal cord injuries that thrust the issue back into the national spotlight. In 2010, Rutgers football player Eric LeGrande sustained a spinal cord injury during a game against army that initially left him paralyzed from the neck down. In October 1995, Travis Roy was just 11 seconds into his first shift in his first game as a hockey player for Boston University when he crashed head-first into the boards and suffered a spinal cord injury that also paralyzed him from the neck down. More recently, Olympic swimmer and multiple gold medal-winning swimmer Amy Van Dyken suffered a spinal cord injury away from athletics in June 2014 when she fell off the all-terrain vehicle she was driving and down a 5-7 foot embankment. The accident injured her spinal cord at T11 and left her paralyzed from the waist down.
These famous athletes and celebrities periodically remind us of both the risk and devastating consequences of spinal cord injury. Fortunately, progress is being made in managing the post-injury effects of spinal cord injury. The most frequently reported-on developments typically involve bionic exoskeletons that help the paralyzed person move their limbs. However, recently medical researchers have been making strides in using electrical stimulation to allow the injured patient voluntarily move paralyzed limbs. In recently reported research, external electrodes were placed over 5 patients’ spinal columns who have suffered from paraplegia for at least two years. The electrodes in combination with the drug buspirone allowed the patients to move their limbs under stimulation, which was not unexpected. What was remarkable is that the patients retained the ability to move their legs even without electrical stimulation after 4 weeks of treatment. As lead researcher Prof. V. Reggie Edgerton noted, "The fact that they regained voluntary control so quickly must mean that they had neural connections that were dormant, which we reawakened." The findings are considered remarkable because the medical and scientific community had accepted that persons with complete paralysis “no longer had any neural connections in the spinal area.;” suggesting that it may be possible to regain motor function without regenerating spinal neurons or using an exoskeleton system.
This research along with the mind-boggling progress that is being made with patient-controlled exoskeleton devices is changing the landscape for spinal cord injury patients. These developments are welcome news for patients, their families, and society alike. As noted above, the occupational and medical costs of spinal cord injuries are enormous. Anything that can return function to patients has the potential to minimize the occupational impact and long-term medical expenses of spinal cord injuries, which is good news for the worker’s compensation and civil liability systems as well. Spinal cord injuries are among the most costly injuries to everyone involved. Improving outcomes in spinal cord injuries will benefit an extraordinary number of individual lives and also the institutions set up to absorb the costs.
Some problems are bigger than others. Consider the case of Archimedes and the water screw: how do you get lots of water uphill when you live in the 3rd century BCE and don’t have a pump? While the origin of Archimedes’ screw is subject to debate, the fact is that sometime between 700 BCE and 200 BCE the Assyrians or the Greeks figured out a way to move water uphill efficiently without having mechanical, machine powered pumps. The solution was to enclose a double or triple helical surface, more commonly known as a screw, inside a pipe. One end of the pipe is placed in water and as the screw shaft is turned, the bottom scoops up water, which slides up on the tube until it reaches the top and spills out. The screw was used to move water to and from irrigation ditches and to drain water from low-lying areas or mines. Part of the genius of the screw was that the seal between the screw edge and the pipe did not need to be watertight since it would work as long as the volume of water being scooped up was larger than the volume of water leaking down. Regardless, Archimedes’ screw was able to move significantly more water uphill both faster and at lower energy costs than using buckets and pails.
Archimedes’ screw is remarkable when you think about it: in a pre-industrial society without electric or other non-manual power sources, someone figured out a way to move water uphill with efficiency comparable to a mechanical pump using a screw. Not exactly the method that would come to mind for most of us when thinking about how to move water uphill. This sort of unconventional, out-of-the box thinking is an example of what business and cognitive science experts call “distant search”; which has been neatly defined as “problem solving outside the neighborhood of what is already known.” Distant search contrasts with “local search,” which is the most common way we solve problems. Local search is “problem solving that focuses only on the neighborhood of what is already known, drawing on the pre-existing knowledge base and on how the problem (or similar problems) had been solved in the past.”
The fact that most problem solving is accomplished using local search is not surprising. Most of us are familiar with the idea that specialization and expertise are important factors in achieving high levels of competence in most fields. Most have probably heard about Malcolm Gladwell’s argument that expertise arises after 10,000 hours of practice in any given field. Some may also be familiar with research demonstrating that the single biggest factor predicting a surgeon’s success rate at a particular procedure is the frequency with which the surgeon performs the procedure. All of this may leave us with the impression that the key factor to achieving success is practice, repetition, and familiarity. The bottom line is that for most problems, expertise is useful because most problems arise out of and can be solved using “the neighborhood of what is already known.”
Undoubtedly practice, familiarity, and repetition help build the fund of knowledge available for local searches and are useful for solving most of the day-to-day problems we encounter; however, these factors are insufficient for solving the biggest and most difficult problems we encounter. The reason is fairly simple: local searches are cognitively rigid. Unfortunately, cognitive rigidity acts as a bar to creative and unconventional thinking, which often makes the difference between whether a seemingly intractable problem gets solved or not. For the most difficult problems, innovative and unexpected solutions are usually needed but local search is narrow, predictable, and based on existing knowledge of the status quo. Local search is not particularly creative or innovative. For more difficult problems, a different type of solution is needed and the solution is found through distant search.
In distant search, a solution is sought that is significantly different from what might be considered the intuitive or logical starting point. The Archimedes screw is a classic historical example of distant search. Others would include Copernicus, who did not continue the refinement of Ptolemaic solutions to the problems caused by the geocentric model (i.e. the need for epicycles) but instead proposed the wholly different and (it would turn out) correct solution of a heliocentric model. Copernicus had, at some point, to abandon the idea of the geocentric model in order to conceive of a different solution to the problem. This move away, this search for a solution different in quality and kind, is distant searching. Einstein’s conception of relativity is a similar example of distant search: a wholly novel solution to cosmological questions that differed in quality and kind from Newton’s solution. Simply refining or correcting the flaws in Newton’s mechanics would not have led to a correct model, but would have only further refined an incorrect model. The model would have still been incorrect. The flaws would have remained.
Contemporary examples of distant search include e-books and the iPhone. Publishers’ use of CD-ROM in response to the digitization of information storage and transmission was the result of local search. This is in contrast to Amazon’s distant search which resulted in the development and adoption of e-books. The iPhone touchscreen is another great example of distant search. Rather than putting a keyboard on a phone, a la Blackberry, Apple developed a more elegant and unexpected solution to the interface between user and PDA. In the annals of history, we know who which innovations will be remembered and which will be forgotten. It is often this way with distant search. Distant search is the Eureka moment, the breakthrough that changes everything, the revolution that changes industries and societies.
The problem most of us have with distant search is that it essentially requires us to stop thinking about the problem. Usually this is a matter of happenstance. We get so frustrated with a difficult problem that we simply walk away from it. The solution then comes to us at an unexpected moment (if it comes to us at all). Consider the case of a musician who can’t complete a partially formed melody. Local search would involve playing the fragment over and over, maybe adding to it or varying it a bit. The problem is that the musician has reached what could be termed an arrest of thought (she’s stumped, in other words). Continuing to repeat the fragment that led to the arrest of thought is only likely to deepen its hold on her brain and increase her frustration. Eventually she will abandon the fragment and move on. If she is to complete the melody, she will most likely find the solution when she is not thinking about the problem. Perhaps the sound of subway doors closing triggers a connection previously unavailable to her and causes her to find a solution. Or maybe the susurration of the wind shaking leaves triggers the connection that leads to the solution. The point is that the musician is most likely to solve the problem with information “from outside the neighborhood of what is already known” about the problem and this information will only become available when she is not thinking about the problem.
Unfortunately, happenstance is inefficient, unpredictable, and not always successful. The process of happenstance is a distant search whereby the musician is confronted with something, however trivial or mundane, that causes her to think of the problem in a novel way which offers a hitherto inaccessible solution to the problem. However, the connection or solution that presents itself is wholly dependent on the chance that something in the musician’s daily life will trigger the connection. Perhaps she never rides the subway at the moment when her mind is clear and receptive. Perhaps she needs to hear the sound of leaves rustling in the wind but never takes a walk in the woods. Regardless, happenstance is a poor method to rely on for performing distant search.
Fortunately, we can train ourselves to use distant search more efficiently. The key is to become self-aware of our thought process and how we are thinking about the problem. The term that has sway in the cognitive sciences right now is mindful metacognition. In layperson’s terms this simply means self-aware thinking about thinking. Rather than dive into the problem, mindful metacognition would have us think about the problem, but then would have us abandon the thought rather than follow it. Then we would allow other thoughts to form in the cognitive space vacated by our initial solution to the problem. Mindful metacognition offers a more targeted method to achieve distance search. The process allows the musician in our example to consciously shut off the ruminative stream of thought that has got her stuck and to open her field of consciousness to new thoughts in close enough proximity to the melody fragment problem that the new thoughts become available as possible solutions or modes of thought that can precipitate a solution to the melody fragment. The likelihood of reaching a distant solution in a shorter time is thereby increased versus happenstance alone.
Hence, when a roadblock arises, try to use mindful metacognition to explore distant search solutions. In a sense, using mindful metacognition to trigger distant search is like an internal email to colleagues or an online query: rather than sending out a question to a few or many others, mindful metacognition essentially lets you float the question to your whole mind a memory store. Thus, the free associations that you allow to form and retrieve thoughts and memories that increase the likelihood that somewhere in our amazing, complex, and data-filled brain a solution or way of seeing the problem that will lead to the solution already exists and just needs to be brought out for the connection to the problem to be established. These thoughts and memories are like the vast array of potential individuals available to us when we crowdsource the solution to a problem. Not every problem requires distant search, but when one arises it is certainly better to use a targeted method that offers a reasonable chance at a solution than to use local search and beat one’s head against the wall over and over or to rely on happenstance, which may never, in fact, happen.
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.
Medical News Today has an article on exciting research in the pharmacological management of chronic pain. The research, published in Neuron, found that persons with a particular genetic profile experience considerably less low back pain than the general population. Such persons have a gene variant that causes them to produce less of the protein BH4 than normal. Researchers postulated that BH4 is at least partly responsible for the development of chronic nerve pain. To test the hypothesis, they engineered mice to overproduce BH4 and found these mice were hypersensitive to pain even without injury. They then engineered mice that produced no BH4 and found those mice to have considerably less sensitive to pain than normal.
The real breakthrough, however, was in the researchers’ next step: pharmacological control of BH4. "We wanted to use pharmacologic means to get the same effect as the gene variant," says Alban Latremoliere, PhD, of Boston Children's Kirby Center, who led the current study. As Medical News Today reports, the researchers caused a peripheral nerve injury in laboratory mice and then “blocked BH4 production using a specifically designed drug that targets sepiapterin reductase (SPR), a key enzyme that makes BH4. The drug reduced the pain hypersensitivity induced by the nerve injury (or accompanying inflammation) but did not affect nociceptive pain--the protective pain sensation that helps us avoid injury.” This could be a hugely important development in the pharmacological management of chronic pain in people as the method would offer an option that could effectively manage pain without any of the addictive or other deleterious effects of narcotic pain medication.
Anyone who has spent any time in worker’s compensation claims knows that many, many claims are fraught with problems that aren’t wholly medical or psychological, but that are problems arising out of the workplace injury that nonetheless impact the claim. An apt term for these sorts of problems is “psychosocial difficulties.” Psychosocial difficulties “refer to impairments of body functions under central nervous system control, activity limitations, and participation restrictions such as concentrating, sleeping, maintaining energy levels, anxiety, making and maintaining relationships and keeping a job.” When we encounter a worker’s compensation claim we tend to focus on “medicals and indemnity” because worker’s compensation laws require insurers and self-insurers to pay medical expenses and indemnity expenses and not much else. The problem with this narrow focus is that a worker’s compensation claimant is a human being that lives in a particular psychosocial milieu. Psychosocial difficulties arise because of the “interaction of the health condition, environmental and personal factors.” The fact is that when a worker’s compensation claim is made, claims administrators may be authorizing payments for medical expenses and indemnity expenses, but the path that the claim takes is driven by the interaction of the health condition, the personal, and the environmental, which may include factors beyond the strict purview of worker’s compensation laws. Although extralegal, these other factors may have a profound impact on the nature of the claim and whether it can be administered effectively.
Common examples of “extralegal” factors include such things as financial security, access to secondary income, family stability, addiction, intelligence, etc. In the world of brain injuries and conditions, caregivers and medical practitioners have begun to realize psychosocial difficulties “are common across brain disorders” which “challenges the premise that the medical diagnosis has to be the driver or care.” In the context of brain injuries and disorders, “what people really care about is to be able to continue with their lives.” Hence, approaches to care which focus on helping them “continue with their lives” have been found to be effective. The bottom line is that “the difficulties people with health conditions face in their lives do not only relate to their health conditions but also to personal factors and the context in which they live.” The experience of injury and disability is likewise personal and driven by individual circumstances rather than being uniform across injury types. This impacts everything from treatment response to recovery to motivation to return to work. Hence, in two otherwise similarly situated persons with work-related meniscus tears, one returns to work within a few weeks of surgery while the other person takes many months to recover and experiences progressively increasing complaints ultimately leading to a total knee replacement.
When a person is injured, we consider the condition to be a medical one. When operating from the cognitive modality, we then assume that treating the injury will heal the person. However, the medical aspect of an injury is just one aspect. Injury, though physical or mental in nature, has myriad aspects that affect the life of the injured person. Often the psychosocial aspects of injury are more difficult for an injured person to manage or get over than the actual physical injury itself. When this is the case, claims become difficult because doctors tend to throw up their hands and say they can do nothing more for the person. From a claims perspective, this often triggers an attempt to shut the claim down, or at least end payment of medical expenses. The problem is that even when “medical interventions are exhausted…, interventions targeting [psychosocial disorders] can contribute tremendously to achieving a fulfilled life…” Thus claims administrators often find themselves in the difficult and unenviable position of not having anything to offer to an injured worker who clearly has problems related (in their mind or in reality) to the work injury. The position is difficult because the injured worker will often blame their condition on the worker’s compensation carrier and seek further benefits out of the belief, misguided or not, that continued receipt of worker’s compensation benefits can somehow make her whole again or at least offer the hope of remedy from the effects of the workplace injury. Frequently these “effects” are not primarily medical but instead are a result of the cascade of psychosocial problems that follow injury, interruption of employment, and diminished physical functioning.
One way to address the psychosocial difficulties is to allow injured worker’s to provide narratives of what is going on in their lives as part of the claims process. While this information, or at least pieces of it, often comes out during the course of a claim, it is usually the product of defensive behavior most commonly uttered in frustration, i.e. “but how am I going to pay my rent?” Instead, it might be beneficial to seek out the information actively, to ask claimants what is going on in their lives and how the injury is affecting them. Certainly it will provide good will and may assuage some of the claimant’s anger, but it also could have the benefit of figuring out what is really going on and how that will impact the life of the claim. If a person is frustrated because they can no longer perform an activity, perhaps a claims administrator would be able to direct her to a simple and cost-effective means by which the person can improve or restore their level of function. It can only help a claims administrator to understand what really matters to the injured worker.
It very well may be that the claims administrator will not be able to do much about issues that fall outside the purview of worker’s compensation; nevertheless, it cannot hurt to find out what all of the issues a claimant is facing and learning this information may help a claims administrator arrive at creative and effective solutions in what otherwise seem to be intractable claims. In addition, the earlier the discussion of psychosocial difficulties takes place, the earlier the claimant, with or without help from the claims administrator, can begin to address the difficulties. The sooner psychosocial difficulties are addressed, the sooner claimants are likely to accept their physical condition and move forward in adapting to it. This has the potential to reduce recovery times and to mitigate against the worst effects of disability, thereby potentially lowering both perceived and actual levels of permanent impairment. The law tells us what we have to do, but sometimes doing a little more can go a long way to making potentially problematic claims manageable.
Claims with chronic whiplash symptoms that develop after a low-speed motor vehicle accident are often difficult. The defense points to imaging studies that do not demonstrate evidence of pathology. The plaintiff points to a prior history of normal health without any neck problems or pain complaints. Each side points to their evidence and asks the jury (if the case goes to trial) to reach their preferred conclusion:
The defense will point to the low speed of the impact to demonstrate that their position is more credible, i.e. the speed was so low no person could have suffered more than a minor, temporary neck strain. The plaintiff will try to counter this with evidence that the speed of the striking vehicle at impact cannot accurately convey the forces transmitted to the plaintiff’s cervical spinal column and musculature. In truth, there is little direct evidence that supports either side’s position in these claims.
That may be changing, though. Researchers at the Feinberg School of Medicine at Northwestern University have uncovered what may be objective evidence supporting the claims of chronic whiplash injuries that arise in approximately 25% of all rear-end motor vehicle accidents. Specifically, the researchers found evidence of fatty deposits that accumulated in persons who went on to suffer chronic whiplash injuries in fat and water MRI scans taken within one to two weeks after the initial injury. Specifically, the MRI scans demonstrated “large amounts of fat infiltrating the patients’ neck muscles, indicating rapid atrophy.” Lead Investigator James Elliott stated that “we believe this represents an injury that is more severe than what might be expected from a typical low-speed car crash.”
The significance of the findings, if replicated, could be great for personal injury claims involving allegations of chronic whiplash injuries. If the water-fat ratio in neck muscles becomes an accepted objective test of whiplash injury chronicity, it could take the guesswork out of these claims. This of course seems like it would be a boon to plaintiffs’ claims; however, the defense would benefit also because it would limit chronic whiplash injury claims to those with objective evidence of injury. In short, it could potentially provide definitive evidence of which claims are legitimate and which claims are not. A residual beneficial effect for both sides would be more effective treatment. As Elliott notes, chronic whiplash patients “may require a more concerted effort for pain management from their physician and help from a psychologist.” Better treatment started sooner would be good for everyone involved in whiplash claims.
Lately it seems like we are stuck in a feedback loop: yet another study has found a common treatment modality for acute low back pain to be much less effective than assumed. In this case, medical researchers found that low dose oral corticosteroids (i.e. prednisone) did not improve pain and offered only modest functional improvement among patients suffering from acute sciatica due to a herniated lumbar disk. According to lead author Harley Goldberg, DO, a spine care specialist at Kaiser Permanente's San Jose Medical Center, "[t]hese findings suggest that a short course of oral steroids (prednisone) is unlikely to provide much benefit for patients with sciatica due to a herniated disk in the lower back.” Researchers also found that “oral steroids did not reduce the likelihood of undergoing surgery in the year following steroid treatment.” Given the apparently modest benefits of oral steroid treatment for acute sciatica and the known deleterious effects of negative treatment history, it would seem prudent for researchers to verify the results of the study as soon as possible. Otherwise we will all be stuck paying for treatment that doesn’t work and could possibly render later treatment modalities less effective.