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Medical News Today reports on an interesting development in treatment of noise-induced hearing loss. Researchers from the University of Michigan and Harvard Medical School used gene therapy to reverse partial hearing loss in mice. The mice’s genes were manipulated to increase production of a protein (NT3) necessary to keep the connection between the ear’s hair cells and the nerve cells that communicate with the brain “super-fast,” also called a “ribbon synapse.” Exposure to noise and normal aging can damage the ribbon synapse, leading to hearing loss. By increasing production of the protein NT3, researchers were able to repair damage to ribbon synapses and restore hearing.
This is exciting news for anyone handling worker’s compensation claims because hearing loss claims plague myriad employers. Researchers noted that rather than pursuing gene therapy in human subjects, the most likely way to increase production of NT3 in humans would be through the use of drugs, a number of which researchers have already identified as candidates. From a worker’s compensation perspective, the possibility of reversing hearing loss would represent a substantial development in what has previously been a permanent condition manageable only through the use of hearing aids. However, the use of pharmaceuticals to treat hearing loss would have costs. How substantial those would be is impossible to guess. Regardless, it is worth monitoring the research to see if the same finding can be reproduced in human subjects.
The Wisconsin Safety Council has an excellent piece on men's mental wellness. As the article points out, although suicide is the leading cause of death among men between the ages of 25 and 34, men's mental health is too infrequently discussed because of the stigma we attach to it. The focus of the piece is on mantherapy.org, a site devoted to helping men confront mental health issues and concerns using humor and a "man-centered" approach. Wellness is too often associated with physical health. The article and mantherapy.org remind us that being well requires both mental and physical wellness.
Cardiovascular disease kills almost 600,000 Americans annually. It also has a huge impact the American economy, costing $444 billion annually in healthcare services, medications, and lost productivity. Once cardiovascular disease sets in, management options can be limited and usually include long term medication management and often surgical intervention. However, the easiest and most cost-effective way to manage cardiovascular disease is to prevent it from occurring in the first place. We know that exercise, diet, and weight loss all help prevent cardiovascular disease. What is becoming more well-known is the profound effect that being sedentary has on cardiovascular health, even in persons who regularly exercise, eat well, and maintain a healthy weight. Being sedentary can precipitate cardiovascular disease and even counteract positive lifestyle changes that persons make in an effort to prevent cardiovascular disease.
Recent research reported on in this site demonstrated that sitting for long periods of time has significant, deleterious health consequences. Other research has found that simply standing for greater periods during the workday both counteracts the effects of sitting and has independent positive health effects. Now researchers have found that walking just 5 minutes per hour at an easy pace can eliminate the negative effects of sitting. In the study, reported in Medicine and Science in Sports & Exercise, participants sat for three hours without moving their legs. On another occasion, the same participants sat for 3 hours but walked for 5 minutes at the 30, 90, and 150 minute marks. In each session, researchers measured femoral artery function to gauge whether walking had any cardiovascular effects. Astonishingly, “the researchers found that, while sitting, the dilation and expansion of the participants' arteries were impaired by up to 50% after just the first hour.” Equally remarkable is the fact that no decline in arterial functioning was observed when the participants walked for 5 minutes every hour. The findings are significant because, as one researcher stated,
"There is plenty of epidemiological evidence linking sitting time to various chronic diseases and linking breaking sitting time to beneficial cardiovascular effects, but there is very little experimental evidence. We have shown that prolonged sitting impairs endothelial function, which is an early marker of cardiovascular disease, and that breaking sitting time prevents the decline in that function."
So what can employers and employee’s do? Perhaps walking for 5 minutes every hour is not entirely feasible for every workplace, but certainly standing as much as possible during the day will help. In addition, taking a short walk at least once an hour to get a drink of water (or something similar) and not immediately sitting afterwards would likely make a difference. And if incorporating standing and moving during the day seems like a burden to employers, they should keep in mind that cardiovascular health improves brain health which in turn improves productivity. In addition, employers should keep in mind the costs of being sedentary on cardiovascular health because, in our system of employer-provided healthcare, the employer bears most of them either directly or indirectly. Figuring out how to get employees moving for 5 minutes and hour seems to be a small cost in comparison.
Pain is a difficult and an amorphous concept. The most common understanding of pain is what we feel when our nociceptors are stimulated. A nociceptor is a receptor on a sensory nerve that responds to damaging or potentially damaging stimuli and sends a signal to the brain that is interpreted as pain. When a child falls down and is asked, “does it hurt?” they are referring to nociception. One of the problems we encounter in relation to pain is that not everything that we might classify or categorize as “pain” is wholly or even partially related to nociception. Grief, for example, can be painful but obviously does not implicate nociception, despite the fact that psychic pain can be described in somatic terms or be physically felt or manifested.
The problem with pain is that we have a medical model for addressing concerns related to the body that tends to subsume everything suboptimal as pathological. One of the tenets of the medical model is that a certain level of physical function is optimal and that everything that is not optimal is somehow pathological and amenable to cure. This idea ignores the reality of physical diversity and can turn normal human experience into a medical condition to be treated rather than a normal aspect of life to be lived through or with. The physical changes that occur with aging are a good example of how we medicalize normal human development and attempt to “cure” that which is not pathological. As a culture, we seem to have fallen into the trap of thinking that every medicalized problem has a cure, including the physical changes that occur with age. Hence, we pathologize normal aspects of growing old as “chronic” pain and treat them as if a cure were possible.
Human bodies have tissues that degrade over time; human bodies are also less resilient over time. This is not to say that age-related physical changes do not vary widely in their effects based on individual experience or that lifestyle has no effect on the changes, but rather is an observation that human bodies do not function as well in the 6th decade of life as they do in the 3rd decade of life, all things being equal. In short, we get old.
Getting old is a fact over which we have some influence. We can maintain a healthy weight, eat a diet rich in fiber and fruits and vegetables, maintain an active lifestyle, get adequate sleep, etc. These things will help us to avoid accelerating the aging process within our tissues. In addition, our genetic makeup plays a significant role in how our bodies’ age. Unfortunately, the influence we have does not stop aging or the physical effects of aging. No matter how healthy our weight or our diet or our lifestyle, collagen becomes less elastic, spinal discs desiccate, articular cartilage wears. In the claims world we often feel the effects of medicalizing age because claimants will try to link the normal effects of aging with a worker’s compensation claim or a personal injury claim. Unfortunately, the effects are often exceedingly expensive as such claimants seek seemingly unending treatment to cure the incurable: age. Both claimants and claims administrators would be better served if treating physicians identified age-related degenerative changes and gave patients options to help them cope with the changes better rather than promising panaceas (usually in the form of surgery) that do not help.
Most people who think of worker’s compensation fraud picture an employee faking an injury to collect disability benefits. Some people might also picture an unscrupulous doctor “working the system.” In truth, however, the biggest single fraud in the worker’s compensation system is employers misclassifying their employees. A recent grand jury report in New York City concluded that in the construction industry alone, misclassifying employees (usually as independent contractors) costs the state $500 million annually in lost premiums, cost-shifting to group health insurance, and in lost tax revenue. This is a staggering figure when one considers that the annual cost of the entire worker’s compensation system in New York State is $6 billion.
The reason that fraudulently classifying employees does not spring to mind when one thinks of worker’s compensation fraud is that it seems boring and blasé. When you see a video of an employee who claims to be totally incapacitated splitting and stacking logs for 2 hours, it makes your blood boil. Naturally, we want to punish the offender and see justice done. On the other hand, fraudulent classification consists of merely of misrepresenting how many persons are on the payroll and what those persons do. It is a wholly digital fraud, conducted at a keyboard or in a conversation with an insurance agent. Everything about it seems nondescript and ordinary. Unfortunately, nothing could be further from the truth.
Pain. Just writing it conjures up unpleasant memories of illness and injuries. And whether we like it or not, we all experience pain. In many cases, pain is present for a very good reason: it is the body’s way to tell the brain to stop, that something bad happened or is about to happen. Hence, it hurts when we touch a hot burner on the stove so we yank our hand back. A sprained ankle hurts when we put weight on it so we stay off it (or at least limp). Pain is, at least in part, a protective mechanism.
Pain can also be debilitating. When it is not nociceptive (i.e., when it is not caused by a pain-inducing stimulus as in the examples above), pain immobilizes us even though it often does not serve a protective function. This frequently has deleterious consequences for our health. We become sedentary. We gain weight. We become depressed. We lose confidence.
When it comes to pain, we typically are dealing with two related but different phenomena: threshold and tolerance. Threshold refers to the point at which a person feels pain. Different persons have different pain thresholds. Also, it appears that a person’s pain threshold appears not to change over time (though chronic narcotic usage can lower a person’s pain threshold). Tolerance refers to how much pain a person can handle. Common tolerance measurements would include things such as how much pain can a person tolerate before they seek medication, or how much pain can a person tolerate before they seek to remove the painful stimuli.
We know that pain which serves no nociceptive purpose often immobilizes us. But what if there was a way to make the pain more tolerable, to increase our ability to handle the pain and be more active? According to research (subscription required) reported on in the New York Times, there is something that can increase our tolerance of pain: exercise. Not a two billion dollar drug or expensive surgery, just good old-fashioned exercise. In the study, one group of healthy but sedentary individuals was placed on an exercise plan while the control group of healthy but sedentary individuals was not. The two groups were then subject to testing throughout the study that measured both pain threshold and tolerance. As Gretchen Reynolds notes, “volunteers in the exercise group displayed substantially greater ability to withstand pain.” Interestingly, the study found that the participants’ pain threshold did not change, only their tolerance did. As Matthew Jones, one of the researchers stated, “to me…the participants who exercised had become more stoical and perhaps did not find the pain as threatening after exercising, even though it still hurts as much…”
This could have important implications in the worker’s compensation and personal injury settings. Pain presents a particularly difficult conundrum in the medico-legal context because we are frequently dealing with persons who have (or allege) an injury overlaying a significant degenerative disease processes like osteoarthritis or degenerative disk disease that, to put it simply, hurts. In an effort to improve functionality, it seems like the goal of treatment is often to eliminate or reduce pain, which has predictably poor results in the context of a chronic, degenerative condition like degenerative arthritis. The Reynolds article and the study on which it is based suggest a different approach may be in order. Rather than telling patients that pain is bad and needs to be eliminated, perhaps patients need to be told that pain isn’t so bad and that they can take it. According to Mr. Jones, “the brain begins to accept that we are tougher than it had thought, and it allows us to continue longer although the pain itself has not lessened.”
This validates the advice we frequently see from independent medical experts who frequently note that patients suffering from progressively deteriorating degenerative conditions such as osteoarthritis need more activity not less and less treatment not more in order to maximize function and to learn how to live with the realities of a degenerative condition. It will be a positive development if the study’s results can be replicated and exercise can become a standard, first line treatment for conditions causing chronic pain. Instead of downward spirals into depression and dependence, perhaps we will see more patients take control and increase their independence and engagement. This alone would have an enormously positive impact on worker’s compensation and personal injury claims.
“Draw inferences from data, observations or other evidence and recognize when firm inferences cannot be drawn.”
What is data? “Factual information (as measurements or statistics) used as a basis for reasoning, discussion, or calculation.” It is useful to keep this in mind when assessing claims. Observations are, “act(s) of recognizing and noting … fact(s) or occurrence(s) often involving measurement with instruments.” Evidence can be described as, “an outward sign.”
What data, observations, and evidence have in common is that they are things that demonstrate a particular state of affairs without requiring inferential reasoning. In other words, they are things that stand for other things. To make sense of evidence, which I shall use as shorthand to describe data, observations, and evidence, inferential reasoning is necessary. In other words, evidence only means something if we connect the dots between multiple pieces of evidence and what those pieces stand for. For example, in the forensic setting DNA evidence simply means that a biologic sample from a particular person was found at a particular location. This in itself does not allow us to draw an inference that the person whose DNA is found at the scene of a crime committed the crime. Instead, we use inferential reasoning based on additional factors to conclude that the DNA evidence means that the person being accused of the crime and whose DNA was found at the scene committed the crime. Typically, forensic experts and attorneys make the inference based on one of two possible factual scenarios. First, that the suspect’s DNA is the only DNA present other than the victim’s and there is no connection between the two persons. Second, the suspect has a connection to the victim but is the only person whose DNA was present and who did not have a plausible alibi. In essence, the DNA places the person at a location and the background information allows us to infer that the person was at the location at a particular time i.e., when the crime was being committed. The evidence is important, but only insofar as strong inferences can be drawn from it.
In the context of claims, the disconnect between evidence and inference arises frequently. For example, we often assume that adverse employment actions precipitate claims when there is some proximity between event and claim. Essentially, we assume that an adverse employment event triggers an emotional response in the claimant that causes her to want to punish the employer for the adverse event. Our assumption is based on a socio-culturally transmitted understanding of human psychology and behavior. What we do not in fact know is whether there is an actual link between our assumptions about how people respond to bad news on the job and specific behavior, in this case making a worker’s compensation claim. In short, we do not know in fact if upset workers make more claims.
The problem with making weak inferences from evidence is that we have little idea as to the validity of the inference; hence, we could be making strategic claim handling decisions based on what amounts to little more than a superstition masquerading as a fact. Instead of connecting an adverse employment event and a subsequent claim, we should note the two occurrences and investigate to determine if there is additional evidence to make the inference strong. Some factors that would help us determine the strength of our inference would include:
So if we have an employee who is written up for punching out too early and a week later falls off a platform and breaks his leg, no one could reasonable suggest the two occurrences are related. On the other hand, if an employee is suspended without pay for a week because he doctored a time card and claims an unwitnessed low back injury on his first day back after having been overheard by two co-workers shouting, “You’ll never get away with this!” at his supervisor when leaving after being suspended, the adverse employment action and the injury appear to have a relationship that is more than coincidental.
The point of this discussion is that we need to evaluate what inferences the evidence allows us to make and whether those inferences are strong or weak. To the extent possible, strategic decisions should only be made based on strong inferences. In addition, we should explore weak inferences to determine if we are likely to find evidence in an investigation that will strengthen the inference. It is only in the context of strong or firm inferences that we can make rational decisions the outcomes of which are predictable. Otherwise our decisions will not be based on reason and will have unpredictable outcomes, which bears all the hallmarks of decision making based on superstition rather than fact.
The medico-legal world is strewn with landmines for the unwary when it comes to language use. Perhaps the most famous and public example of this was then President Bill Clinton’s insistence that a decidedly unambiguous two letter word, “is,” is in fact ambiguous. Fame and political machinations notwithstanding, the language we use in claims is important to the outcome of the claim and any slack, vague, or ambiguous usage can wreak havoc on defending or prosecuting a claim.
One example we see regularly at Medical Systems arises in the context of motor vehicle personal injury claims. During and IME, examinees frequently tell the physician that the vehicle was “totaled” in the accident. Presumably, the examinee states that the vehicle was “totaled” to demonstrate to the physician that the impact was significant (with the unspoken premise that the physical damages to the vehicle were significant.
The problem with using “totaled” in this way is that total loss is an economic concept arising out of an insurance policy that does not have anything to do with damage per se but instead refers to the relationship of the cost of repairing the damage sustained in the accident to the cost of replacing the vehicle i.e., does the cost of repairing the damages exceed the replacement value of the vehicle. This is significant because two accidents could have damages causing identical repair value estimates in which one vehicle is declared a total loss and the other is not.
If two accidents caused $2,500 damage to different vehicles but one is a 2014 Ford F150 and the other is a 1996 Ford F150, the 2014 vehicle would not be a total loss but the 1996 vehicle would be. This demonstrates that total loss is not a proxy for the severity of physical damage to a vehicle but rather is a measure of whether the cost of repair exceeds the value of the vehicle given such factors as such factors as the age, condition, make, and model of the vehicle. In both cases, the damage may not suggest the impact was severe, yet the examinee’s use of the word “totaled” is undoubtedly designed to suggest a severe impact. If the physician has access to photos or an accident report demonstrating the actual appearance of the damages, the examinee’s bold assertion that the vehicle was “totaled” will in fact make him seem less credible than he would otherwise be.
The example above is but one small demonstration of why it is important to use precise language in prosecuting and defending claims in the medico-legal universe. When the two worlds come together, it is crucial that we, as the inhabitants, speak precisely so that everyone, including the experts, understands exactly what we are saying. If we fail to do so, we run risks from misunderstanding to impaired credibility to confusion to much more.
“Probe for assumptions (particularly the implicit, unarticulated assumptions) behind a line of reason.”
This is one of the more interesting and critical strategies that Brewer identifies. Too frequently we accept statements as fact without considering whether they are supported by facts and solid inferences or are instead based on assumptions that are ad hoc and contingent.
One area fraught with difficulty in this regard is surveillance footage. Consider a claimant who has a 10 pound lifting restriction due to an alleged low back injury. He is observed on a surveillance video transferring multiple bags of groceries and a gallon of milk from a cart to his car and then from his car to his house. Let us assume that we want to use the surveillance footage to argue that the claimant’s low back condition is not as disabling as he and his doctors claim it is. If we conclude that the footage supports or otherwise proves our argument, we must ask ourselves:
In our example we must first step back and ask what, in fact, are physician-imposed restrictions? Are they absolute limits or rough guides? What do they mean and what does it mean if someone does not strictly follow them? We frequently (and erroneously) assume in the context of physical restrictions that they limit performance absolutely or act as an absolute reinjury threshold. Unfortunately, as many IME physicians are wont to point out, medicine is both an art and a science. When a physician assigns physical restrictions, she is making an educated guess as to what level of physical activity the injured person can tolerate with an acceptably small risk of reinjury. Her guess is based on her general experience, training, education, and her particular experience with the patient. No physician can do better than make an educated guess and every honest physician would agree that physical restrictions are an approximation or guide. The individual variables between patients are so great as to make certainty impossible. Hence, restrictions do not mean that a person is physically incapable of lifting more than the limitations the physician sets. Neither does it mean that a person who lifts in excess of the restrictions will necessarily suffer injury. One simply cannot make the assumption based on a limited observation that an injured person lifting in excess of physician-imposed physical restrictions is not as disabled as the physician concludes.
Second, we have no idea whether the observed behavior exceeds the physician-imposed physical restrictions in the first place. We know that a gallon of milk weighs approximately 8.5 pounds, with minor variations depending on the fat content (whole milk is heaviest, skim or fat-free milk is lightest). This is clearly within the claimant’s restrictions. The rest of the groceries in our example are in bags. Unless the bags are clear and the surveillance video is particularly good, we will only be able to guess as to the weight of the contents of the bags. It may appear that the contents of the bags weigh more than 10 pounds if they are larger bags that appear full or if they are reusable bags that appear full. Even then, we are making an assumption based on a limited observation of tenuous support. The point is that we must examine our assumption before concluding the surveillance footage supports our argument that the claimant is exaggerating his disability based on transferring grocery bags from cart to car and car to house.
Third, we must ask ourselves what the impact of the footage will be on the trier of fact, not merely based on the footage itself, but on the probable testimony that the claimant will offer about the footage. I will restrict my comments to the worker’s compensation setting, which will undoubtedly be different than the personal injury setting. Consider what the ALJ will see: an adult shopping for groceries. While it is tempting to view such footage as a “gotcha” moment when we believe the claimant is exaggerating or fabricating disability, the ALJ is more likely to respond to the footage by thinking (and sometimes saying out loud), “so what?” From an ALJ’s perspective, the footage is not likely to be perceived as particularly nefarious because of the simple fact that shopping for groceries is an activity in which the vast majority of self-sufficient adults must engage regardless of their physical condition or whether a physician has imposed activity restrictions based on an alleged work-related condition. In my experience, some common ALJ responses to this type of footage include (with considerable smarm in most circumstances):
This is not to say that surveillance footage cannot be useful. Even in our example, the footage could be useful if there was additional evidence or information that supports the inference we want to make. If the footage was just one example among many showing the claimant moving easier or lifting more than his reported level of disability suggests he is capable of, the footage supports the inference we want to make. Also, if the claimant reports extreme disability and we have evidence that the grocery bags contain far more than 10 pounds, the footage would support our inference if he lifted and moved them with appreciable ease. The bottom line is that we do ourselves and our claims a disservice when we see what we want to see instead of examining the assumptions behind our conclusions.
This post continues our discussion of strategies to eliminate cognitive biases and improve strategic decision making. Brewer’s fourth strategy is interesting and does not seem, at first, to be intuitively important or useful:
Recognize that words are symbols of ideas and not the ideas themselves. Recognize the necessity of using only words of prior definition, rooted in shared experience, in forming a new definition and in avoiding being misled by technical jargon.
This seems abstruse and postmodern, the worst sort of crypto-theoretical drivel… However, it makes sense when you think about it for a moment. As part of the medico-legal world, words are our currency. The value of a claim may be expressed in dollars based on percentages estimating the likelihood of success, but the way we get there is through words. Even when a claim is rife with photos, videos, diagnostic imaging studies, etc. the images lack meaning without narrative support, which is established through the use of language. Words create, establish, color, taint, destroy, or bolster what the images mean. Words are the firmament out of which the images of a claim shine (or are obscured).
A good example of the critical need to differentiate between word and idea and to use words of prior definition is the presence of subchondral bone marrow edema in knee injury cases. “Subchondral bone marrow edema,” also referred to as “subchondral edema,” “bone marrow edema,” and “bone marrow edema syndrome” is the term used to describe fat cell changes to the subchondral bone marrow observed on MRI that suggest swelling in the bone below the articular cartilage. When this phenomenon was first observed during the introduction of MRI machines to hospitals in the mid-1980s, the phenomenon was referred to as a “bone bruise” and was thought to be the result of acute trauma. As the use of MRI machines became ubiquitous in orthopedic practices a funny thing happened: radiologists and orthopedists began observing subchondral bone marrow edema in a significant number of patients with no history of knee trauma. This group of patients broke down into roughly two categories: those with degenerative changes (osteoarthritis) and those with inflammatory conditions (rheumatoid arthritis, septic arthritis). The new findings demonstrated that the term “bone bruise” was not an apt term for subchondral bone marrow edema because in most cases the finding was not related to trauma and hence could not be described as “bruising” in any conventional or commonly understood sense.
When considering the importance of using words of prior definition, consider an administrative law judge dealing with an alleged work-related knee injury and MRI findings that demonstrate the presence of subchondral bone marrow edema. If one does not establish a clear definition of what “subchondral bone marrow edema” is and what its presence on an MRI scan suggests, an administrative law judge could conflate the MRI evidence with the concept of bruising and use that erroneous understanding to find that the employee sustained a traumatic, work-related knee injury. Instead, when handling a claim with MRI evidence of subchondral bone marrow edema, the claim administrator may wish to take the opportunity that the independent medical examination affords to establish the limits of what the MRI evidence means. A series of targeted questions and references to academic consensus on subchondral bone marrow edema can help set the parameters for what conclusions can be drawn from the presence of subchondral bone marrow edema.
For example, a well-regarded study from researchers and the University of Wisconsin Hospitals and Clinics noted:
This finding is one of general consensus among radiologists. Others with even more concision report, “[t]he pathophysiological event that triggers BMES (bone marrow edema syndrome) is still a complete enigma.” Still other researchers report, “[b]one marrow edema is non-specific and can be seen in degenerative disease or traumatic injury.”
Despite the difficulty of determining the etiology of subchondral bone marrow edema, there are, however, some characteristics specifically associated with traumatic injury. “If the cartilage defect has well-defined right angle margins, with marrow edema deep to the defect, this suggests a traumatic etiology.” Also, traumatic changes tend to be focal. “Characteristic changes include focal cartilage defect or fissure, subchondral linear-branching pattern, focal edema, and cortical impaction or bowing.” Non-focal changes suggest a degenerative condition rather than a traumatic cause.
From a claims administration perspective, this information can be used to establish what MRI findings of subchondral bone marrow edema mean in the context of our hypothetical knee claim. When crafting an IME letter, a claim administrator may wish to point out to the independent medical expert that the MRI evidence demonstrates subchondral bone marrow edema and then ask a series of targeted questions such as the following to demonstrate that the MRI findings suggest a degenerative rather than traumatic etiology:
Obviously, the form of the question may need to be altered based on local evidentiary standards and the facts of the claim, but the bottom line is that claims are handled more effectively when we recognize that words and the ideas they represent can often pose problems if we allow the relationship of work and idea to be loose, ambiguous, or vague. Instead, we should carefully limit definitions to established fact whenever possible so that decisions, whether our own in handling claims or those of the trier of fact, are based on terms of consensus and limited definition. The independent medical examination represents an excellent opportunity to use an expert to establish the limits of medical terms that could otherwise be used to justify the compensability of a claim when the actual medical records and imaging studies do no such thing.