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.
Prescription pain medication overuse and abuse is and has been a national problem for many years now. We have previously written about the issue in Second Opinions. Among the common suggestions that experts make for curbing the problem are more stringent dosing guidelines, creation of and active prescriber participation in state prescription drug monitoring programs, and greater provider education about the problem. Recent data from Washington State shows how effective these interventions can be. Medical News Today reports on a study published in the American Journal of Public Health that while prescription opioid death rates have remained steady for the nation as a whole from 2008 to 2012, Washington State saw a 28% decline. The article specifically notes that:
New state laws on prescription opioid use, including one that mandated the adoption of new dosing guidelines; a statewide Prescription Drug Monitoring Program; and telemedicine and on-line programs for health care providers have all been key to the turnaround.
Provider participation in telemedicine online programs was seen as a key factor in educating providers on appropriate dosing, medication changes, and dangerous drug interactions to avoid. The electronic programs also have the advantage of allowing providers to discuss difficult cases with specialists to help craft solutions that avoid dangerous opioid use, decrease patient suffering, and preserve the doctor-patient relationship.
Here in the Midwest, we should demand that our clinicians, university medical centers, and legislators work together to craft an effective program to curb prescription pain medication overuse and abuse. The Washington State example demonstrates that substantial, cost-effective improvement in prescription pain medication practices can be achieved when all concerned parties come to the table and work together. And for those of us in the medico-legal world, curbing prescription pain medication overuse and abuse would be a welcome development in helping control the monetary and human costs of many claims.
Chronic pain devastates sufferers and those close to them. When it arises in the context of a worker’s compensation or personal injury claim, chronic pain complicates claims management and invariably increases costs, making a satisfactory resolution to all parties difficult to achieve. The most heartbreaking context in which chronic pain arises is, however, military veterans injured in combat. Unfortunately, veterans returning from Iraq or Afghanistan suffer higher rates of chronic pain than veterans of any other U.S. Military conflict. The good news is that the VA is aggressively researching the problem and recently made some headway (that could alter the standard treatment protocol for all chronic pain sufferers, regardless of etiology).
VA researchers published the results from the ESCAPE trial (which stands for “Evaluation of Stepped Care for Chronic Pain”) in which they found that a specialized stepped care program resulted in participants reporting a “decrease in pain severity and 30 percent improvement in pain-related disability.” The results are significant because “we know that medications alone are only modestly successful in helping [chronic pain sufferers]” and that “current pain treatments haven’t made much of a dent,” according to Dr. Matthew Bair, who led the study.
The stepped program involved an initial 12 weeks of treatment with analgesic medication and self-management using such strategies as relaxation techniques. The second step involved 12 weeks of cognitive behavioral therapy. The second step helped participants “counter maladaptive thought” and to learn what activities they could substitute for pre-deployment activities to decrease pain and remain physically active. This second phase would seem critical in the claims context where the greatest challenge is often simply overcoming the disability mindset, or turning the ingrained and almost pathological attitude of “I can’t” to “I can.” In many cases, the issue is not that the chronic pain sufferer cannot perform an activity so much as it is that they convince themselves that they cannot before even attempting the activity. The exciting thing about the study results and using targeted cognitive behavioral therapy in general is that it can help reorient the way chronic pain sufferers view activity in general. Just because an injured worker can no longer train for and participate in marathons due to chronic low back pain does not mean that she cannot complete an 8-hour day as a delivery driver. If cognitive behavioral therapy can help chronic pain sufferers to start looking at the world from the psychological perspective of “I can,” it would seem to go a long way toward improving both the lives of chronic pain sufferers and the outcomes of chronic pain claims.
The ESCAPE study is an exciting development in managing chronic pain patients. Given the difficulty of managing chronic pain claims and the explosion in prescription opioid drug abuse related to treatment of chronic pain, it will be worth following the ESCAPE study to see if its results can be replicated. Even a 30 percent reduction in disability level would likely be significant in a chronic pain claim and could easily represent the difference between partial impairment (and a return to work) and total disability.
Perhaps the most difficult challenge in orthopedics is articular cartilage. You know, the white, pearlescent stuff that covers our joints and makes them operate smoothly and without pain (before arthritis sets in, that is). And why is articular cartilage so difficult? Well, it’s pretty simple: we can’t regrow it when it breaks down and wears away. Hence, the only options for treating worn articular cartilage or osteoarthritis are, once the pain and dysfunction become unbearable, to fuse the worn joint or to replace it with artificial components. Despite advances in orthopedic components and surgical techniques, joint replacement is a suboptimal option for treating worn articular cartilage. Fusion is even less optimal, the point of joints being articulation (or motion).
If we could figure out a way to regrow articular cartilage, calling it game-changing would be an understatement. It would be revolutionary, especially for those in the worker’s compensation world where countless musculoskeletal injury claims involve allegations that work injuries or occupational exposure caused or worsened osteoarthritis. Can you imagine a world where a claimant with debilitating knee pain goes to the doctor and rather than walking out with a knee replacement, the claimant goes to a gene therapist who treats the knee by growing new articular cartilage? No surgery, no infection, no rehab, no disability, just a new knee.
Turns out this dream is closer to reality than you might think. Researchers in Manchester, England recently published research in which they used embryonic stem cells to regrow articular cartilage in the damaged knee joints of rats. Remarkably, "[a]fter 12 weeks, the cartilage surface was smooth and similar in appearance to normal cartilage.” In contrast to earlier efforts which produced abnormal and disorganized tissue, including tumors, the Manchester scientists were able to grow wholly normal, functioning cartilage in the rats’ knee joints.
These findings from the Manchester study are exciting (almost beyond exciting, truth be told). The research is worth monitoring as it advances toward testing in human subjects, which is still probably several years away. Nevertheless, this development gives us a glimpse of a potentially arthritis-free future. Imagine that.
Test your own line of reasoning for internal consistency.
Much of the point of Brewer’s preceding rules or decision heuristics was to remove assumptions and emotion out of the claims evaluation process. This step is where we put the prior steps to work for us to evaluate whether we have in fact successfully analyzed the claim before us in an unbiased and logical fashion.
Let us assume that we are analyzing a claim involving an acute foot injury followed by years of occupational exposure in an obese, 46-year-old, female claimant. When the claimant was 37, she suffered a calcaneal fracture while on the job. She is employed as an assembler doing light work, but stands for the duration of her shift. She was not issued final restrictions after reaching an end of healing following the first injury, but was issued a 15% PPD rating based on loss of motion. The employer did not offer any accommodations to limit the amount of standing the claimant would have to do, but the claimant never requested an accommodation or complained about standing too much. The claimant subsequently developed arthritis and is scheduled to undergo a subtalar fusion. Medical opinions support three possible causes for the claimant’s current condition and the need for the fusion:
In our case, we represent the carrier on the risk for the subsequent occupational exposure date of injury. Our IME doctor concluded that the claimant developed the arthritis due to her age and weight and supports his conclusion by arguing that the claimant would have become symptomatic much sooner if the arthritis were posttraumatic. The IME doctor for the carrier on the risk for the acute fracture date of injury concluded that the arthritis is posttraumatic but that the subsequent period of occupational exposure caused the arthritis to progress faster than it otherwise would have. Finally, the treating surgeon concluded that the acute fracture is the sole cause of the arthritis and the need for the surgery.
During the course of our investigation we learned several things:
Based on the information obtained in the investigation, we developed a litigation plan and completed our investigation. Now we have our litigation plan in place and are preparing to roundtable the claim with our supervisor. Before heading to the roundtable, we have decided to run through the claim again to judge whether we are still comfortable enough with our analysis to present and defend it at the claims roundtable.
We reached the following conclusions about the claim:
To prepare, we need to analyze our conclusions to see if they are internally consistent. First, we concluded that the injury is likely to be deemed work-related. In examining the claims file, two strong facts support our conclusion. One, the employee’s uninjured foot shows no evidence of arthritis. This is significant because the claimant’s occupation stresses the subtalar joints of both feet equally (or nearly so). Hence, if the arthritis were idiopathic we would expect to see the arthritis in both subtalar joints. Two, subtalar arthritis is a well-known and relatively common complication of calcaneal fractures.
Second, we concluded that the ALJ is more likely to conclude that the original fracture is the appropriate date of injury for the claimant’s current condition. Our basis for concluding this is that the treating physician who treated the original injury and the current condition is the same; therefore, he has had the best chance to observe the claimant over time which renders his opinion most credible. This is not as solid a position as the first one is. In a sense, the argument is a non sequitur because it does not necessarily logically follow that the treating physician is better able to determine causation based on familiarity with employee’s condition over time. In making this argument, we have at least one unstated premise that needs to be articulated and explored before we can determine if the argument is in fact internally consistent and valid. The unspoken premise is a common one in worker’s compensation: all things being equal, ALJs consider treating physicians to be more credible than IME physicians. As far as I know, this assumption is based on experience and anecdote and not actual objective data. Hence, we need to be cautious in applying the assumption to our argument and should not consider it necessarily to be dispositive. The reason for our caution is that the assumption is based on the overarching view that most ALJs will, all things being equal, apply the Worker’s Compensation Act liberally and grant benefits to employees making claims. If this view is true, and at least it is reinforced by statute and state Supreme Court pronouncements, then it actually may weaken our assumption that an ALJ will find the treating physician most credible in this case. The reason is that if an ALJ were to find the treating physician most credible, the employee would be stuck with benefits at a considerably lower rate than if the ALJ found the IME doctor for the original date of injury to be most credible. Remember: the IME doctor for the original date of injury insurance carrier finds the claim is work-related and his opinion establishes a date of injury 9 years later, with the corresponding increase in the temporary total disability and permanent partial disability rates that would obtain. If the primary motivating factor of an ALJ in a close case is giving benefits to a claimant then it is reasonable to assume that the ALJ will also be motivated to give a claimant the highest benefit rate when there is a credible opinion allowing her to do so. Thus, we may wish to adjust our opinion and note that the date of injury is likely to be a closer call than we at first posited.
Obviously this is simplistic and something of an exaggeration intended for illustrative purposes. Presumably, we would have considered the problematic assumptions about the date of injury as soon as we had all the relevant medical opinions. Nevertheless, the example serves a purpose: when evaluating a claim, you must test the line of reasons that led you to the conclusions you reached for internal consistency. In doing so, you will stand the best chance of discovering non sequiturs and other logical reasoning problems or errors that may cast doubt on the validity and strength of the conclusions you reached.
Reason #1: Employers shall not use doctors “employed on a regular basis by the employer” when seeking FMLA second opinions. We have a large number of doctors to choose from and can track how many times you have used the same doctor.
Medical Systems, Inc., we’re not just for worker’s compensation any more.