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Chronic and terminal pain cause myriad personal, interpersonal, and socioeconomic problems.  In what can only be described as sadly ironic, the most effective pain relievers currently available, all of which are opioids, have side effects that can cause problems that are as bad as the pain the drugs are administered to control.  The most troublesome and well-known side effects include altered mentation/sedation, physical dependence, respiratory depression, constipation, and androgen deficiency.  For example, cancer pain can be managed effectively with powerful opioids, but at the expense of rendering the person suffering from the pain nearly comatose.  In non-terminal, chronic pain patients, physical dependency can lead to job loss and ultimately death by respiratory failure from overdose.

Our current ability to manage chronic and terminal pain puts many sufferers in a catch 22:  treat the pain but get the side effects, avoid the side effects but live with the pain.  The ideal solution to the chronic and terminal pain conundrum would be to develop or discover methods to control pain that are as effective as opioids but without the systemic side effects.  In short, new pain relief treatments should only target that which is generating the pain.  Fortunately, a group from Flinders Medical Centre in South Australia is doing just that.  Medical News Today reports that lead researcher, Associate Professor Nick Spencer, and his team have developed a technique to identify precisely which nerve endings detect painful stimuli.  They then developed a method to inject a harmless virus into the site from which the pain originates that travels to the spinal cord and shuts off a channel to the affected nerve endings that is essential for pain perception.  As Spencer noted, “shutting off the pain is not instant, it can take days to weeks, but the big advantage is that pain can be suppressed for long periods without the classic side effects of current pain therapies.” 

The team’s current research focused on incurable pain located in the stomach and intestines, but Spencer believes the technique will have broader applications.  This would be exciting news for everyone and would be especially welcome in the claim handling community as chronic pain cases are often vexing, expensive, and resource intensive.  Any development that could eliminate or at least reduce the use of opioid pain medications in the chronic pain context would have a significant and positive effect on the management of claims involving chronic pain.  

Choice architecture is the idea that the way in which choices are framed influences the actual choices that are made.  The idea arose out of findings in psychology of persistent and pervasive cognitive biases and decision-making heuristics.  The thought behind choice architecture was something like this:  if we know how biases affect decision-making, then we should be able to structure choices to “nudge” or push people toward the choices we want them to make by taking advantage of people’s cognitive biases.

Cognitive psychology has given us numerous examples of the way in which framing choices influences what choices are actually made.  An interesting example involves default options and organ donation.  In countries where the default option is to donate and persons must affirmatively check off a box to show one does not want to donate, the vast majority of persons opt for the default (85-99%).  To the contrary, in countries where the default option is to not donate and one must affirmatively check a box to show one wants to donate, the vast majority of people opt for the default (80-95%).  The conclusion from this finding is that we can take advantage of the status quo bias (the default option) to achieve a result we want.

Some of the findings regarding cognitive biases are relevant to claims administration.  For example, the anchoring bias is the common human tendency to give too much weight to the first piece of information one receives when making subsequent decisions.  In the claims setting, this bias could suggest when to make a settlement offer and how much that offer should be.  I know many people express frustration at the negotiation process (and I was one such person) and think, shouldn’t we just offer what the claim is worth and be done with it?  Unfortunately, the answer is probably “no.”  While it may seem easier to price a settlement like it was a piece of merchandise on the shelf at Target, the effect of doing so would likely be deleterious.  Even if the offer is fair, it will likely have the effect of convincing the other side that they can get a higher or better settlement because they will judge the settlement value in part based on the first offer they receive which by habit they will consider to be your floor.  To take advantage of the anchoring bias, initial offers to settle claims should be sufficiently low so that the other side’s calculation of settlement value is influenced downward.  Although this results in the typical tit-for-tat negotiations, it is probably the best way to handle an initial settlement offer given what we know about the anchoring bias.

Another cognitive bias that could potentially be used to one’s advantage in settlement negotiations is the endowment effect.  This bias is the tendency of people to value giving something up more than they value acquiring the same thing.  The clearest example in cognitive psychology involved basketball ticket prices.  When Duke University students were told they won tickets to the NCAA basketball tournament Final Four they valued them considerably higher than students who were told that they had to buy the tickets.   In that experiment, students who won the basketball tickets said they would sell the tickets at an average price of $2,400.  Students who were told they would have to buy the same tickets said they would buy the tickets for an average of $170.  Obviously this is an extreme example, but other research consistently finds that persons value a thing they own 2.5 times higher than the identical thing that they have to purchase. 

In the settlement context one might be able to influence outcomes by framing the discussion not as something being given up but rather as something being gained.  When claims are settled, employees (for example) tend to think that “I have a claim worth X dollars” so that any settlement is a reduction in the value of “their” claim.  Perhaps the discussion could be reframed to suggest that the employee has a claim worth zero dollars because of an IME or a factual defense.  In this way, the claimant is not giving anything up but is rather acquiring something, which could potentially lower the value at which they accept a settlement.  Obviously represented claimants have an attorney to get through, but still this has the potential to be an effective negotiating strategy.  Certainly it is something that one could use at mediation to tell the mediator how one would like any settlement offers to be presented.

So is choice architecture real?  It appears to be a legitimate method to influence decision-making under the right circumstances.  While nothing can guarantee that using choice architecture will lead to better results, it is a tool that claims professionals can use in situations where cognitive biases are present to try to shape the decision-making process.  Choice architecture will generally have little or no cost and potentially has significant benefits.  Hence, it is a strategy worth considering the next time you are trying to settle a claim.

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.  

10/21/2014 in Blog Categories, News

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.

9/2/2014 in Blog Categories, News

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.

8/15/2014 in Blog Categories, News, Treatment

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:

  • The severity of the injury (broken leg v. back strain based wholly on subjective complaints);
  • Proximity of injury to adverse employment event in time (obviously the closer in time, the stronger the inference);
  • Admissions to third parties or lack thereof (“I’m going to do something about this!”);
  • Witnesses or video evidence of the injury;
  • Frequency of type of injury among employees doing the same work;
  • Whether injury occurred before adverse employment event but was only reported afterwards;
  • Patterns of injury reports (is the report, in spite of the adverse employment event, consistent with how the claimant or other employees usually reports injuries?);
  • The personnel file (is the employee generally happy with good reviews?  Does she have a bad attitude and have poor reviews?)
  • Severity of the adverse employment action (dismissal v. verbal warning).

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.

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