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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.
The University of Texas Southwestern Medical Center released information critical to the success of cardiopulmonary resuscitation (more commonly referred to as “CPR”) efforts. Specifically, medical researchers reviewed research and found that persons applying chest compressions to those in cardiac arrest often compress the chest too deeply and too rapidly. Researchers say there is a “sweet spot” between the depth of compressions and the rate of compressions that optimizes the chances for a patient’s survival. For chest compressions to have the best chance of working, they need to be performed to a depth of between 5 and 5.5 centimeters (about two inches) and at a rate of between 100-120 compressions per minute. The researchers found that compressing the chest greater than 5.5 inches reduces the likelihood of survival and speculate that such deep compressions probably cause injury to the patient which counteracts the resuscitative effects. In addition, researchers found that many responders perform chest compressions at rates of about 140 compressions per minute, which is too fast and reduces the effectiveness of the resuscitation attempt. To achieve the right rate of compression, researchers noted that timing the compressions to the beat of “Row, Row, Row Your Boat” is effective and used by many well-trained first responders.
First responders and others trained in CPR should be aware of this new information. Chest compressions that are too soft are ineffective as are compressions that are too hard. Ditto compressions that are too slow or too fast. Instead, chest compressions need to be just right. Apparently Goldilocks was on to something.
Medical News Today reports on a significant new study (fee or subscription required) of what causes episodes of acute low back pain. Critically, the study’s authors concluded that most physical and psychosocial triggers of acute low back pain can be modified. Per Medical News Today, some of the findings include:
Unusually, the study “also found that age was a factor in triggering back pain when lifting heavy loads - with younger people being significantly more likely to suffer an episode of acute low back pain after such activity than older people.” This certainly will be counterintuitive for claims administrators and attorneys in the worker’s compensation field as conventional wisdom suggests older age is directly proportional to low back injuries rather than the inverse as was found in the study. Regardless, the most important thing is to utilize knowledge from the study to reduce episodes of acute low back pain in the workplace. Manuela Ferreira, lead author stated the matter succinctly:
Our findings enhance knowledge of low back pain triggers and will assist the development of new prevention programs that can reduce suffering from this potentially disabling condition.
What is it about shoulders? They seem to cause an inordinate amount of problems, especially when the rotator cuff is involved. And invariably, there is a question as to whether a shoulder claim involves an acute injury, an acute aggravation of a preexisting condition, an occupational injury, or the mere manifestation of a preexisting condition. One of the biggest challenges in claims is determining whether and to what extent a shoulder condition is work-related. Unfortunately, this task is often difficult for physicians too.
The hallmark of an acute rotator cuff injury is an asymptomatic shoulder, a discernible traumatic event, and immediate pain and weakness. Unfortunately, this type of presentation accounts for less than 10% of all rotator cuff tears according to some literature. In addition, the medical literature suggests that acute rotator cuff tears are underdiagnosed in emergency departments and often attributed to tendonitis, bursitis, arthritis, or some combination of all three. To further complicate matters, many other conditions of the shoulder, cervical spine, and peripheral nerve system can produce symptoms that are similar to symptoms occurring in rotator cuff tears. And finally, a somewhat sizable percentage of the population has asymptomatic rotator cuff tears which makes the determination of the etiology of the cuff defect difficult to determine.
The best way to assess whether a rotator cuff tear is acute or traumatic is with diagnostic imaging. Numerous studies have found that mid-substance tears are more likely to be acute than insertional tears. The presence of swelling and joint fluid or a hematoma also suggest that a tear is acute. To the contrary, the absence of joint and bursal fluid suggests a chronic tear. The presence of fatty infiltration and the degree of rotator cuff atrophy are also useful findings to assess the chronicity of the tear. Interestingly, at least one study found that the “injury mechanism and the activity at the moment of injury did not correlate with the presence of a rotator cuff lesion,” but also found “a strong age correlation, with a prevalence of RCTs above 50% in patients aged over 50 years…” This study suggests a shockingly high rate of rotator cuff injury resulting from shoulder trauma in persons over 50.
The strong correlation between age and rotator cuff tear caused one study’s authors to postulate that “it is even likely that there [is] no such thing as an acute cuff tear without some previous tendon degeneration.” The authors of another study address the complicated relationship between the chronicity and symptomatic nature of rotator cuff tears and note that the “duration of symptoms does not necessarily reflect the duration a patient has had a rotator cuff tear… It is not understood why full-thickness tears become symptomatic in some individuals and not others.” How then, can any physician determine to a reasonable degree of medical certainty if a particular rotator cuff tear relates to the patient’s employment in the absence of diagnostic imaging that suggests a tear is acute?
In truth, the answer is that any physician who attributes a symptomatic rotator cuff tear to a workplace injury is most likely engaging in speculation if there is no acute traumatic event and no diagnostic imaging evidence demonstrating that the tear is acute. This doesn’t mean that the tear can’t be acute and work-related, simply that there is no reasonable basis for a physician to determine the exact etiology of the tear to a reasonable degree of medical certainty. In handling claims, it is important to recognize these situations and pose the question to the IME doctor directly as to there is any way, given the current state of evidence-based medicine, to determine what caused a rotator cuff tear (or caused it to become symptomatic) to a reasonable degree of medical certainty in the absence of an acute traumatic event, diagnostic imaging evidence that a tear is acute, or occupational risk factors such as repetitive overhead work. If there are no specific risk factors, no precipitating injury, and no diagnostic imaging evidence of an acute tear, the answer should always be “no.”
From a claims perspective, there are several useful things that can be gleaned from the medical literature addressing rotator cuff conditions. First, a definitive assessment of causation in the absence of a discrete, acute precipitating event with imaging evidence demonstrating the presence of an acute tear or an occupational risk factor should be considered impossible. Of course treating surgeons will attempt to relate rotator cuff conditions to workplace injuries that do not meet the above criteria, but it is incumbent from a claims perspective that the IME physician points to the relevant medical literature and explains why it is not possible, to a reasonable degree of medical certainty, to determine the etiology of a rotator cuff tear in the absence of the above criteria.
Second, it should not come as a surprise if an employee over 40 who says they hurt their shoulder and is told that it is just a strain or tendinitis when they go the ER later discovers she has a rotator cuff tear. The medical literature suggests that clinical examination in the emergency setting underestimate the presence of rotator cuff tears. The relevant study found that in the patient population complaining of an acute shoulder injury who have an inability to perform active abduction above 90° and normal radiographs, more than 50% will have rotator cuff tears. In establishing reserves, if the medical records show normal radiographs coupled with an inability to actively abduct the shoulder above 90°, it may be wise to consider the likelihood of a rotator cuff tear requiring surgical intervention to be 50%.
Finally, knowing the different shoulder, neck, and peripheral nerve conditions that have similar symptom constellations to rotator cuff tear will help to assess what the likely diagnosis will be based on the clinical history, examination, and positive findings. Thus, a shoulder complaint that can be localized to the acromioclavicular joint, is more likely to be a shoulder separation or acromioclavicular arthritis than a rotator cuff tear. In another example, a complaint of gradual onset of shoulder pain with weakness that is especially noticeable during sleeping hours is likely to be a chronic rotator cuff tear or advanced impingement syndrome than an acute rotator cuff injury.
The bottom line is that shoulder injuries are often difficult claims, especially when they involve rotator cuffs. Knowing the medical literature about how rotator cuff tears occur and what suggests acute versus chronic tears can help guide the claims analysis. To learn more about the diagnosis, management, and prognosis of rotator cuff tears, join us on February 26, 2015 for the Medical Systems Advanced Medical Topics in Worker’s Compensation in Brookfield, Wisconsin at which Dr. Bartlett will give an in-depth presentation on acute shoulder injuries. Claim handlers and legal professionals alike will gain valuable information on what claims will likely be compensable and what medical information can be used to defend against those which should not be compensable.
Sit. Type. Sit. Read. Sit. Talk on the phone. Sit. Sit. Sit. Go to a meeting. Sit. This is what many of us do for the vast majority of our workday. We know that sitting all day is bad for our physical health. We also know that breaking up the day with short walks can help counter the deleterious physical effects of sitting all day. Now, it appears that a simple lunch time walk can also help with our outlook, energy, and focus at work.
The New York Times reports on a study conducted in Sweden in which researchers used real time reporting of mood and emotion in a group of office workers assigned to walk at lunch and a control group of office workers who did not walk at lunch. As the Times notes, “on the afternoons after a lunchtime stroll, walkers said they felt considerably more enthusiastic, less tense, and generally more able to cope than on afternoons when they hadn’t walked…” The lead author noted that despite the study not addressing workplace productivity, “there is now quite strong research evidence that feeling more positive and enthusiastic at work is very important to productivity…so we would expect that people who walked at lunchtime would be more productive.” Interestingly, most workers who were part of the walking group said they would not continue walking at lunchtime when the study was over because “they were expected by management to work through lunch.”
Employers should seek ways in which to encourage employees to engage in less sedentary behavior during the work day. Employees would be psychologically stronger and more resilient which will almost certainly increase their productivity. Contrary to popular belief, stepping away from the desk at lunch will actually help you get more done. Encouraging employees to take a lunchtime walk seems like a simple, cost-effective way to improve employee mood and increase productivity. That being said, I better put on my running shoes…
The employee is a delivery driver and is in a rollover accident. Miraculously she suffers only minor injuries in the crash. However, she hits the inside part of her right leg near her knee in the rollover and now, 18 months after the rollover, she still can’t go back to regular duty because she has a permanent foot drop. Another employee gets his hand stuck in the machine he works on. The broken bones heal and the tendons are repaired. Unfortunately, it has been difficult returning him to work because he complains of burning pain every time he touches anything with the injured hand and his doctor has permanently restricted him to one-handed work.
What do these claims have in common? Peripheral nerve injuries. Peripheral nerve injuries are complicated, slow-healing, and often result in permanency. Why are they so complicated and what you can do to make peripheral nerve injury claims go as smoothly as possible? In this short primer, we hope to answer some of these questions.
To understand why nerve injuries are so challenging, it helps to know some basic nerve physiology. Nerve cells (neurons) are essentially made up of little factories (axons) that produce chemicals (neurotransmitters) which mediate the electrical signals each nerve cell sends (axon) and receives (dendrite). Nerve cells are not physically connected to each other and must send the electrical signals across a gap (synapse) to the next nerve cell (dendrite). The axon of each nerve cell is encased in fatty cells (myelin) that increase the rate at which electrical signals are transmitted between nerve cells. Branching extensions of the nerve cells (dendrites) receive the electrical signal from the axon of an adjacent nerve cell and transmit the signal to the axon for further transmission. A failure of any part of this process will disrupt the nerve cell’s functioning and cause sensory or motor problems or both.
Unfortunately, nerve injuries take a long time to heal and often heal poorly because of the complex, compound, and disconnected nature of nerve cells. Nerve injuries are categorized according to the degree to which the nerve cells are compromised. There are two classification systems – one use three categories and one using six categories. This post will use the simpler, three part system because it is more concise (the six part system breaks second degree injuries into four subcategories based on the seriousness of the injury). In first degree injuries, or neurapraxia, the nerve remains intact but its signaling ability is damaged. Ordinarily persons suffering first degree injuries recover completely without residual sensory or motor impairment. In second degree injuries, or axonotmesis, the axon is damaged but the surrounding connective tissues remain intact. Recovery takes longer than in first degree injuries, but complete recovery without residual sensory or motor impairment is still the general rule. In third degree injuries, or neurotmesis, both the axon and the surrounding connective tissue are damaged. Recovery is exceptionally long in third degree injuries and typically results in some residual sensory or motor impairment. In addition, surgery is often necessary to restore function in third degree injuries. The alternate classification system essentially divides the axonotmesis category into four parts based on the severity of the insult to the axon.
We will focus on third degree injuries because they are the most difficult to treat and usually result in permanency. In a third degree nerve injury both the axon and supporting connective tissue are injured. This means that the nerve cell must regenerate both the axon and its supporting structure. The regeneration is complicated by a post-injury process called Wallerian degeneration. Approximately 24-36 hours after the initial injury, the axonal injury disintegrates, the myelin sheath degrades, and macrophages and Schwann cells remove the cellular debris from the injury. In third degree injuries, the supporting connective tissue (endoneurium), which is a tubular structure containing individual axonal fibers, is severed. This causes problems because regenerating axonal fibers may meander into surrounding tissue or inappropriate neural tubes, thus failing to reinnervate their proper end organs. The resulting loss of function is analogous to what would happen in a marionette show if the strings to the marionette controllers are cut and then randomly reattached, sometimes to the correct controller, sometimes to the incorrect controller. Nothing really works right.
When nerve cells start regenerating after Wallerian degeneration, the process is slow. Within four days of the injury, the injured axons start sending sprouts toward the neurolemma (tube comprised of Schwann cells surrounding the axon). Schwann cells produce growth factors that attract the sprouts. If a sprout reaches a neurolemma, it grows into the tube and advances approximately 1 mm per day until it reaches and reinnervates the target tissue. Surgery may be necessary to guide the sprouts into the neurolemma when the gap is too wide or scar tissue has formed. This regeneration and repair phase can last many months. Human peripheral neurons are capable of initiating a regenerative response for at least 12 months after an injury. Hence, it can be well after a year from the date of injury before a treating physician or an IME doctor will be able to place a patient who sustained a peripheral nerve injury at maximum medical improvement.
Further complicating matters, third degree injuries do not usually heal completely. Several factors can contribute to an incomplete recovery. First, intramuscular fibrosis (scarring) may hinder the muscle contraction a nerve impulse produces. Erroneous cross-reinnervation may result in impaired functioning (the marionettes with crossed strings). The imperfect regeneration also results in sensory deficits, especially in proprioception (how the body perceives itself in space), that rarely go away completely. Even in first and second degree nerve injuries, sensory recovery often takes 6-12 months, so determining whether and to what degree permanent sensory impairment has resulted can take a year or more post-injury.
The site of the injury itself and the regeneration process can result in the development of neuromas or gliomas, which can increase pain and disability. If surgical realignment or stump approximation does not occur, the migration of axoplasm may form a neuroma, which is an errant scaffolding (structure) for axonal migration. Essentially, the strands of axonal fibers get tangled as they seek the distal nerve stump, forming a ball of connective tissue and axonal fibers. While some neuromas cause no problems, many are painful and impair functioning.
Treatment and rehabilitation following peripheral nerve injury present their own challenges. For example, in nerve injuries with extensive damage a graft may be needed to connect the two ends of viable nerve. Using a graft will leave the patient with a large area of numbness that the donor nerve previously innervated. The size of this area of numbness will shrink over time, but will not go completely away resulting in residual permanency for loss of sensation at a site remote from the injury. In addition, nerve regeneration itself can be uncomfortable and accompanied by paresthesia (pins and needles) as the target tissue is reinnervated.
Some of the direct consequences of peripheral nerve injury included:
Unfortunately neuropathic pain is not well-understood and is difficult to treat. Anticonvulsants and tricyclic antidepressants are the most popular drugs for neuropathic pain. “Complete relief is very difficult and only 40-60% of patients achieve partial relief.” The persistence and refractory nature of neuropathic pain causes psychological distress and is difficult to understand for persons who are accustomed to the way more typical musculoskeletal pain responds to conventional analgesic medications. From a claims standpoint, neuropathic pain presents great impediments to returning claimants to work because claimants are conditioned to equate pain with physical disability and loss of function, but neuropathic pain frequently does not impair function and is only disabling from a psychological perspective (not to diminish the psychological distress that neuropathic pain causes). It is critical for return to work efforts that the treating physicians and occupational/physical therapists convey the distinction between neuropathic and musculoskeletal pain to the claimant to avoid protracted disability beyond the period of actual physical impairment caused by the injury.
Weakness and loss of function are common complications of third degree nerve injuries because even in the best case scenario nerve regeneration is imperfect. As noted above, weakness and loss of function result from many complicating factors including slow regrowth causing irreparable muscle atrophy, imperfect regrowth resulting in loss of function, and the presence of scar tissue in the muscle preventing normal contracture. This presents challenges to the claim handler who must attempt to gauge return to work, appropriate rehabilitation, and permanent partial disability. EMG can determine the rate at which nerves are growing and muscles are reinnervating, but functional use/restoration will lag behind reinnervation. The reinnervated muscles have been without innervation for a time, so the body must relearn how to use the muscles again which takes time. In addition, the muscles are usually reinnervated imperfectly, so the body is not only relearning how to use the newly innervated muscles, but it is also learning a new neural pattern of action. The body cannot rely on muscle memory to speed the relearning process because the newly configured reinnervation is different than it was before, meaning muscle memory itself is altered or lost.
Some studies have found that conservative therapies can be used alone or in conjunction with surgery to help restore function in peripheral nerve injuries. Laser phototherapy “maintains functional activity of the injured nerve for a long period, decreases scar tissue formation at the injury site, decreases degeneration in corresponding motor neurons of the spinal cord and significantly increases axonal growth and myelinization.” In addition, acupuncture has been found to be an effective treatment modality in improving the rate of recovery. In managing nerve injury claims, it is important to know what therapies work and what do not. Effective claim handlers should be conversant in treatment modalities that can hasten recovery and improve ultimate function so they can ensure patients with peripheral nerve injuries receive the treatment that will get them to an end of healing the fastest and will minimize the inevitable permanent partial disability rating.
Even with effective conservative treatment modalities such as laser phototherapy or acupuncture, recovering function and building strength in peripheral nerve injuries are long and arduous processes that require skilled therapy and a motivated patient. If either variable is lacking, recovery is likely to be compromised. A supreme difficulty for claim handlers is managing the nerve injury case where either the employee lacks motivation or their choice of treating therapist appears to be wanting in some fashion. Early engagement in the claim can help foster a “can do” attitude in the injured worker and a positive relationship with the therapist so that he or she pushes the worker and provides the highest and best evidence-supported rehabilitative care.
The Medical Systems, Inc. “Advanced Topics in Worker’s Compensation Symposium” will address these and other issues related to severe, acute industrial injuries to the hand and wrist with Dr. Jan Bax. Join us to learn why severe hand and wrist injuries present such difficult challenges, what the best medical and surgical treatments of these injuries are, and what strategies you can utilize to help claimants get the best physical recovery and (in the process) lower your costs.
Headaches are such a headache. This will hardly be news to anyone working in claims or human resources. Whether the headaches are wholly personal (FMLA), work-related, or accident-related, employees and claimants with permanent and persistent headaches pose a unique challenge. A new study reported on in Medical News Today suggests that instead of taking a conservative approach to managing headaches, which is the most effective and lowest cost treatment modality, many medical providers are instead opting to order expensive and typically useless advanced neuroimaging tests for their headache patients. The study specifically found that, “rather than talking to patients about the causes and potential sources of relief from headache pain, clinicians are increasingly ordering advanced imaging and providing specialist referrals, both of which are considered to be of little value in the treatment of routine headaches.”
Generally speaking, conservative treatment such as stress-relief counseling and avoiding dietary triggers are the preferred treatment modalities for managing most routine headaches. As John N. Mafi, M.D., lead author of the study, notes, “the assessment of headaches depends on identifying the relatively rare instances where serious underlying causes are suspected” and that “despite the publication of numerous practice guidelines, clinicians are increasingly ordering advanced imaging and referring to specialists while less frequently suggesting first-line lifestyle modifications to their patients.”
The problem with the overusing imaging studies rather than treating conservatively is multifold. First, and most obviously, ordering unnecessary imaging studies unnecessarily increases costs. Second, overusing imaging studies may result in incidental findings that “provoke unnecessary patient anxiety, can lead to more invasive procedures and often require follow-up testing," as Dr. Mafi stated, further increasing costs unnecessarily. Third, ordering unnecessary imaging may in fact delay recovery from acute episodes and hamper control over chronic headaches because most patients are not being offered the most effective treatment for most headaches. This invariably will lead to greater absenteeism and greater levels of perceived disability.
The truth is, by and large most headaches do not require any type of neuroimaging or laboratory testing. For example, “in the absence of neurologic findings, episodic migraine does not require imaging studies…” Also, “[p]atients who have had a stable headache pattern for at least six months rarely have significant intracranial pathology” and “in the absence of worrisome features, these patients do not require imaging.” One reason that imaging studies are usually not required for headache is that “[i]n adults, it is unusual for headache to be the presenting symptom of an underlying systemic disease in the absence of other symptoms.” This is why additional testing, including neuroimaging, is not recommended in the absence of red flag signs and symptoms that suggest an underlying dangerous pathology might be causing the headache. According to the American Academy of Family Physicians, red flag signs and symptoms in the evaluation of acute headaches that require additional testing (and the testing recommended) include:
Fortunately, headache management is surprisingly simple and requires little “medicine” in the conventional sense. Perhaps this is part of the problem: patients expect high tech, advanced imaging to “figure out what is wrong” with them when high tech, advanced imaging will do no such thing for the vast majority of headache patients. Instead, the more pedestrian truth is that physicians do not know why most patients with chronic or episodic headaches have them and that the most effective management techniques often involve lifestyle choices to reduce stress and avoid headache triggers:
Behaviors that help to prevent headache flares include establishing a habit of regular mealtimes, sleep and awake times, and exercise. It is useful to help the patient identify any connection between psychosocial stressors and headache flares. Most headache patients can benefit from basic stress-reduction techniques such as yoga and meditation. There is compelling evidence for the efficacy of biofeedback, relaxation techniques, and cognitive-behavior therapy for headache prophylaxis.
Headaches are not all that difficult to treat. The results of the above study are disappointing because advanced imaging studies (and other diagnostic tests) are contraindicated in the vast majority of patients with episodic and chronic headaches. Episodic and chronic headache are difficult because the etiology is usually unknown and the treatment is dispiritingly low tech for a patient population accustomed to seeing fancy drug ads and hearing about exciting technological breakthroughs on a regular basis. The key to treatment is for patients to accept responsibility for their condition and to take steps to manage the condition effectively. From a claims or an employee management perspective, knowing the evidence-based treatment guidelines for episodic and chronic headache will help keep a handle on what treatment is being proposed and authorized and will help ensure that doctor and patient alike are following the guidelines.
We previously began a series on how to improve decision making while managing claims. The series was based on a paper by Jeffrey Brewer. In the paper, Brewer identifies 10 strategies for improving decision making:
Prior entries addressed strategies 1-6. This entry will examine Brewer’s seventh strategy for improving decision making:
Perform hypothetico-deductive reasoning, that is, given a particular situation, apply relevant knowledge of principles and constraints and visualize, in the abstract, the plausible outcomes that might result from various changes one can imagine being imposed on the system.
In this directive, Brewer challenges us to remove emotion and bias when we examine claims. It is easy to make assumptions based on first impressions and intuitions when you first receive a claim. Hence, one may think a claim is bogus or fraudulent because of the claimant’s long history of unwitnessed soft tissue injury claims instead of analyzing the claim and what the likely outcomes will be based on the available evidence. The claimant’s history of making dubious claims is relevant, but focusing on that history without first examining the available objective facts and the inferences to be drawn from them would be a mistake. The claimant’s history impacts her credibility; the claimant’s credibility impacts the likelihood of the claimant succeeding at hearing or trial, which is nothing more than a probability function that helps determine the dollar value of the claim. Even if evidence of actual fraud arises, the information will reduce the claim to a zero or negative value. [By negative value I mean that the claimant could owe penalties or restitution that would inure to the benefit of the employer or insurance carrier.] Regardless, even in a case of outright and uncontested fraud, the ultimate effect is an economic one despite the moral outrage one may personally feel about the claimant’s fraudulent (and probably criminal) behavior.
If we cannot separate our personal feelings about a claim or a claimant from our analysis of the claim, we are likely to make poor decisions regarding both the value of the claim and how the claim should be managed. For example, in our fictitious claimant with a long history of dubious claims, we may be inclined to put more resources into surveillance than the facts and exposure on the claim would otherwise suggest is appropriate. Also, we may be prone to understate the claim’s value because we are likely to transfer our suspicion into our calculation of the exposure and our likelihood of successfully defending the claim at hearing or trial. In both the management and valuation of the claim, we may potentially set ourselves up for an unpleasant surprise if we judge a claim based on our visceral response to the claimant’s history rather than the actual demonstrative evidence.
A better way to address claims is to run it through “hypothetico-deductive reasoning” to visualize the possible outcomes based on the actual demonstrative evidence. This process of analysis has the virtue of forcing us to consider possible outcomes that may run counter to our emotions and intuitions (which are unlikely to be based on the actual demonstrative evidence before us). The process of dissociating ourselves emotionally from claims to engage in this reasoning process helps ensure that the decisions we are making are based on objective evidence and not on unsupported evidence or personal bias.
Let’s consider an example based on the above discussion. Let’s say Hank has worked for the Acme Corporation for 22 years assembling road runner retention and destruction devices for a certain loyal, if misguided, customer who happens to be a member of the species canis latrans, more commonly known as a coyote. In 13 of his 22 years at Acme, Hank has made a worker’s compensation claim. Remarkably, in 8 of the 13 claim years Hank suffered an unwitnessed soft tissue injury within weeks of the opening of gun deer hunting season. (The Acme Corporation happens to be located in Wisconsin where some consider the opening of gun season to be a bona fide sacred holiday). In 4 of the remaining 5 claim years, Hank suffered unwitnessed soft tissue injuries in suspiciously close proximity to various legally recognized holidays. In short, Hank and his claim history are sources of enormous frustration for his employer who rightfully regards the claims with more than a modicum of suspicion.
Now entering his 23rd year of service for the Acme Corporation, Hank claims to have injured his shoulder assembling a pair of roller skates that are fitted with expandable jet engines for the misguided coyote. In what is a running joke among the human resources and risk management departments, the injury occurred while Hank was working alone and a mere 3 days before the opening of gun hunting season, during which Hank has neglected to take any vacation days. Aside from rolling eyes and jokes at Hank’s expense, the employer is sincerely and understandably frustrated with the amount that the claim will cost the company. Accordingly, they have communicated their suspicion regarding the veracity of this claim to their insurer. Such is the employer’s level of frustration that the employer has demanded that their insurer take a scorched earth policy in investigating and, they have no doubt, in denying and subsequently litigating the claim. Included in this demand is the employer’s “suggestion” that surveillance be performed.
The claims handler assigned to the case reviews Hank’s claims history and discusses the current claim with the employer and, understandably, is left with the distinct impression that the claim is suspicious at best. Based on the information from the employer, the claims handler is inclined to believe that Hank is undoubtedly faking the injury to get off work for deer hunting season and that she should arrange, post haste, for surveillance to catch him enjoying his worker’s compensation-funded vacation.
However, the claims handler has additional information available at the time she ordered surveillance. First, the employer had a physical demands analysis conducted on the job Hank was performing when he claims to have injured his shoulder. The occupational medicine specialist performing the analysis concluded that the job Hank was performing put employees at a moderate-to-high risk of sustaining shoulder injuries because of the combination of the forces involved and the awkward, overhead positioning. Second, the injury report documents that Hank reported the injury two thirds of the way through his shift on a Wednesday, that he reported the injury immediately, and that he went to the emergency room immediately after reporting the injury.
At this point, if we apply hypothetico-deductive reasoning to the available facts we have essentially two likely scenarios. First, Hank’s claims history suggests that he may be using an unwitnessed “accident” to get time off from work with TTD benefits to go deer hunting. Second, the physical demands analysis, the fact that it occurred mid-shift/mid-week, Hank’s prompt reporting, and Hank’s prompt treatment suggest that perhaps the claimed injury may be legitimate. Under the principles of hypothetico-deductive reasoning, we should at this point consider what information we would need to make one scenario more plausible than the other.
We know that Hank went to the emergency room. We should find out, if possible, what diagnostic tests were done, the results of the physical examination, whether a definitive diagnosis of an objective injury was established, whether the diagnosis was wholly based on subjective complaints, etc. We would also want to know if other employees suffered similar injuries doing the same or similar jobs. We should interview Hank before conducting surveillance. Perhaps his claims history suggests that he has not been credible in the past, but we want to base our judgment on present information. We would want to know how he described the incident he claims caused an injury. We would want to know whether the incident was acute, definable, and resulted in immediate pain versus a more nebulous scenario in which pain arose gradually and was not attributed to a specific motion or incident. We would want to know what the emergency room doctor or PA told him was the diagnosis. We would want to ask him about his deer hunting plans.
Let’s start with the emergency room visit. If the diagnosis is shoulder instability/subluxation (also known as a partial dislocation) based on x-ray evidence, this would probably trump any suspicions we might have based on his prior claims history. On the other hand, normal imaging studies and a shoulder strain diagnosis based wholly on subjective complaints would bolster our suspicion that Hank is acting consistently with his prior questionable claim history. The same analysis would apply to the other pieces of information obtained in the investigation. Our gut instinct might tell us the Hank or any other employee is manipulating the system and fabricating an injury, but we should test our assumptions and instincts using hypothetico-deductive reasoning so that we engage in the most thorough investigation possible, are unsurprised when the investigation follows a plausible path (even if it conflicts with our gut instinct), and make our claims decisions based on reason rather than emotion. In this way, we can make the best decisions when managing claims, even if that decision is at odds with our gut.
On a related note, one of Hank’s co-workers completed the roller skates with the expandable jet engines. The roller skates were successfully shipped to the coyote in an otherwise nondescript wood box stamped all over with “Acme Corporation” in bright red letters. Fortunately for the coyote, the skates worked precisely as expected. After hiding behind a large cactus conveniently located next to a long stretch of single lane highway in Monument Valley, the coyote heard the approaching “Beep, beep” of his longtime avian prey and foe. As the roadrunner sped by, the coyote activated the jets and took off with remarkable alacrity after the bird. Unsurprisingly, the jet-powered roller skates soon brought coyote even with and then past the roadrunner who, in typical form, gave out a nonplussed “Beep, beep” as the coyote wooshed by.
The coyote realized too late his error in not requesting from Acme Corporation that some sort of braking mechanism be added to the skates/jet engines. Specifically, the immense power and speed of the jet-powered skates propelled him the entire length of the straightaway and quickly brought him to a 90 degree turn in the road at the apex of which stood the rock face of a mesa. With roller skate wheels lacking the necessary friction coefficient to execute the turn and 375 miles an hour, the coyote surrendered himself to inevitability with a resigned and slightly plaintive look, and struck the rock face with a “poof,” causing a rather large cloud of dust to appear. Miraculously, coyote walked away from the crash. He had, however, reached a breaking point. Instead of contacting Acme Corporation for a new and ridiculous contraption for catching the roadrunner, he contacted a products liability attorney in Phoenix…
Christopher Tidball has a good piece at propertycasualty360.com on strategies to curb the rising cost of bodily injury claims. As Tidball notes, bodily injury claims continue to rise at rates faster than inflation. He focuses on taking proactive steps on the front end of claims to ensure that a complete investigation is performed so that damages do not get out of hand without the claims professional’s awareness. A few suggestions are particularly useful as these investigation techniques sometimes fall under the radar:
Perhaps the most useful suggestion is to pay exceptionally close attention to the actual medical bills. Specifically, Tidball notes that coding is frequently used to increase reimbursement. In a telling example of how coding can be manipulated to drive up costs,
Consider a basic lumber MRI with and without contrast. A provider may bill 72148 and 72149, which would be appropriate for these as individual diagnostic tests. However, when they are conducted together, the appropriate code should be 72158, which is the bundled code [and will result in a lower overall bill]. (Parenthetical and emphasis added).
In addition, Tidball reports that using fee schedules or benchmarks to evaluation medical bills will help to contain costs and keep bodily injury expenses reasonable and under control.
The article is short, but provides some useful strategies for controlling costs in bodily injury claims. As is the case with most claims management, the key is to get in front of the claim from the beginning. Conducting thorough background checks on all parties involved and carefully examining billing codes and reimbursement rates are some strategies that will help claims professionals get in front and stay in front.
A recent development finds an alternative to postoperative pain management in knee replacement surgery that appears to offer more effective pain relief and potentially speedier recovery. Researchers found that when they injected “a newer long-acting numbing medicine called liposomal bupivacaine into the tissue surrounding the knee during surgery…[p]atients had pain relief for up to two days after surgery and better knee function compared with the traditional method." One of the study’s authors noted that “many patients were able to walk comfortably within hours after surgery.”
It is estimated that more than half of American adults diagnosed with knee arthritis will have a knee replacement at some point. Given the prevalence of knee replacement surgery both in the general patient and worker’s compensation patient populations, any development that can improve pain relief and increase early knee function could have a profound impact. Prescription pain reliever abuse continues to vex society and intraoperative techniques that can reduce the need for postoperative narcotic pain relief can only help the problem. In addition, faster restoration of knee function has the potential to speed rehabilitation and end of healing. If this new technique fulfills its early promise, it could have a significant and positive effect on reducing costs and recovery time of knee replacements. In the worker’s compensation setting, this would be a welcome development.