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.
We have previously reported on a study that found sitting less is independently "associated with excellent health and excellent quality of life." Apparently sitting is not just good for the body, but it is also good for the mind according to a study published in Social Psychological and Personality Science. In the study, researchers from the Washington University’s Olin Business School found that standing during business meetings led to greater collaboration and more openness to the ideas of others among participants. The report notes, “in addition to the physiological benefits of non-sedentary work designs, getting people out of their chairs at work may increase their capacity for collaborative knowledge work.” According to the authors, the reasons for the findings are two-fold: increased arousal of the sympathetic nervous system (which prepares a person to act on her environment) and reduction in territoriality.
The authors acknowledge that there are limitations to the study in that the findings have not been replicated and the meeting length in the study was limited to 30 minutes (which represents the average meeting length for 75% of organizations). Nevertheless, one of the lead authors, Andrew Knight, PhD, assistant professor of organizational behavior at Olin Business School, recommends that, “organizations should design office spaces that facilitate nonsedentary work.” In addition to fighting the negative health effects of being sedentary, “Removing chairs and adding whiteboards are low-cost options that encourage brainstorming and collaboration.” In a knowledge economy, any move to encourage brainstorming and collaboration should provide tangible benefits to an organization’s bottom line. To the extent that a minor tweak to the working environment can also decrease the amount of time workers spend sitting is a double bonus.
The trend in medical research suggests that modifying work spaces to limit the amount of time we spend sitting can have significant effects on the physical health of workers. It only makes sense that the same effects would translate to workers’ cognitive health and abilities. From a claims perspective, these findings represent an opportunity to work with employers to encourage workplace designs that foster both physical health and mental acuity (and hopefully fewer claims).
Medical News Today reports on a study published in the Journal of Bone and Joint Surgery (subscription required) which found that patients whose opioid use was increasing prior to spine surgery had worse outcomes than those whose opioid use was not. As Medical News Today notes, studies have shown that opioid use prior to spine surgery frequently leads to worse outcomes, but "the studies did not account for differences in opioid consumption among patients." In this new study, the authors concluded that, "increased preoperative opioid use was a significant predictor of worse health outcomes at 3 and 12 months following surgical treatment..." While this news is not particularly surprising to those in the medico-legal world, it does offer an opportunity to ask IME physicians a targeted question about the appropriateness of spine surgery in claimants with a demonstrated history of opioid dose escalation which should ensure that the physician's opinion explicitly relies on evidence-based medicine and hence is more credible.
Returning to our discussion of strategies to eliminate cognitive biases and improve strategic decision making, we arrive at Brewer’s third strategy: discriminate between observation and inference, between established fact and subsequent conjecture. The last post in this series touched on this issue, but it is worth revisiting in greater detail. One of the things that plagues strategic decision making is our frequent tendency not to discriminate between observation and inference and between established fact and subsequent conjecture. This tendency is normal and virtually everyone exhibits it to some degree. However, when making strategic decisions, we want our judgments to be based on observation and fact to the maximum extent possible. When making inferences, we want observation and established fact to support our inferences. We want our inferences to be likely, not merely conjecture or possibility. But how do we do that?
The first step is to train oneself to identify when an inference or conjecture is being made. One way to do this (among many) is to ask whether the information is the product of a sense impression. Do we have the information because we saw it, heard it, felt it, touched it, smelled it? To return to a first report of injury, the existence of a first report with writing that states the employee reported the injury on Y date is an observation because we saw the report. When we see the report and hold the report and examine the report, it becomes and established fact. Whether the employee actually reported the injury on Y date is not a fact. Instead, if we posit that the employee actually reported the injury on Y date, we are making an inference based on a variety of facts and assumptions (such as the employer is reliable in reporting injuries, has never had an employee dispute the date the injury was reported, etc.). It is important to recognize that the fact of the first report of injury is different from the state of affairs it purports to represent, which is an inference, however strong.
This distinction even arises in diagnostic imaging studies, which we typically think of as “objective” evidence of injury or the lack thereof, conflating “objective” with “fact.” The image is a fact, what it signifies is an inference that an interpreting physician makes. For example, a person complains of a knee injury that suggests a meniscus tear to a treating orthopedist. The treating orthopedist orders an MRI which does not appear to demonstrate a meniscus tear. When we evaluate the medical records in the claim, we frequently conclude that if an MRI (or more properly the radiologist’s report interpreting the images) does not show pathology then none exists. This is an assumption. The only fact is the images the MRI scan generates. The simple fact that a radiologist concluded that the images do not show the presence of a meniscus tear does not mean that a meniscus tear is not present. We know for a fact that MRIs do not demonstrate every meniscus tear. However, we assume that an MRI is accurate because we know or have been told that MRIs accurately demonstrate the presence of most meniscus tears. Again, this is an assumption, not a fact. In our example, the treating orthopedist may perform a diagnostic arthroscopy and find that a meniscus tear is present. A physician in an IME report recently summed up the problem of conflating what an MRI scan actually demonstrates (observation) with the inference of pathology or lack thereof:
I would stress to the reader that diagnostically the arthroscopic evaluation of the knee is far more likely to be the gold standard of accuracy versus that of an MRI scan… I would note that there are, of course, instances wherein it can indeed be difficult to differentiate a recurrent tear from a picture of a meniscus that has been previously operated on. Furthermore, this case is a stellar example of how MRI scans can in fact be inaccurate despite expert interpretation.
In our MRI example, another assumption is being made: if an MRI reveals pathology, the pathology must be causing dysfunction. We know this is a questionable assumption based on numerous studies showing that large portions of the population have conditions ranging from rotator cuff tears to “herniated” discs that are present on MRI scans but asymptomatic. Whether the presence of pathology causes dysfunction is a separate question that the physician makes based on many factors including physical examination, history/mechanism of injury, medical records, and diagnostic imaging studies. The strength of the inference that a particular pathology is causing dysfunction is determined by reviewing all factors. The imaging study alone may be enough to make a strong inference, but often more support is needed before an inference can or should be made.
Another example that arises frequently in both the worker’s compensation and liability settings is the conflicting report of injury. For example, let’s assume that an employee reported to the employer that she did not remember a specific event but had been lifting heavy pipes all day and noticed shoulder was getting sore. The employee seeks treatment with her primary care physician who refers her to an orthopedic specialist several weeks after the date of injury because the shoulder condition did not improve. In the initial notes from the orthopedist, the employee is reported to have stated that she was lifting a heavy pipe and noted the immediate onset of shoulder pain. Obviously there is a discrepancy between the records, but what does the discrepancy mean? Does the discrepancy mean that the employee is untruthful or that the condition is less likely to have occurred at work?
The established facts in this scenario are that the first report of injury states the condition arose gradually during the course of a work day and did not follow a specific traumatic event while the orthopedist’s notes state that condition arose acutely, following a specific lifting event. These are the only facts we know. Any statement about what the facts mean is an inference and is not a fact. Before drawing any conclusions, I would want to obtain more information. For example, did the doctor’s office press the employee to identify a specific event? It would not be unheard of for a member of a physician’s staff to ask the injured worker something along the lines of, “Well, if you had to guess, what incident would have caused your shoulder pain?” I would also want to know how the injury was reported. Perhaps the employee said something along the lines of, “I lifted a pipe and felt something in my shoulder. I kept lifting heavy pipes all day and it just got worse and worse.” Either piece of information would make the discrepancy in reporting appear less significant. On the other hand, if there is no indication that the first report is inaccurate or that the orthopedist’s office asked the employee to identify a specific traumatic event, then the inferences that A) the employee appears to be unreliable or dishonest and B) the condition may not have arisen out of the employment are stronger. The point is that the discrepancy in the records only reflects a discrepancy in the records. This is our observation and the only established facts. To the extent that we infer that the employee is dishonest or that the work-relatedness is questionable from the discrepancy, we are making an inference that is not fact. When making such an inference, must be mindful that other information is necessary before we can decide whether the inference is strong or weak.
When evaluating claims, it is critical that we distinguish between observation and inference, between established fact and conjecture. Failing to do so will cause us to estimate the strength and weaknesses of our arguments inaccurately. If we do not accurately estimate our arguments, we cannot effectively administer our claims. One way to help ensure that we are accurate in our assessments is to discriminate between observation and inference, to ensure that our conjecture is supported by established fact and to recognize when we lack support for our inferences and conjectures.
Interesting new research from the University of Manchester finds that current smoking increases risk of hearing loss by 15.1%. Researchers were not sure whether "toxins in tobacco smoke affect hearing directly, or whether smoking-related cardiovascular disease causes microvascular changes that impact on hearing, or both." Regardless, current smokers or those exposed to passive smoking could could provide employers and insurance carriers with a potential new defense in occupational hearing loss cases if the study's results are replicated or otherwise confirmed.
What do we do when we have a conversation? Turns out, we do a lot of anticipating and predicting about what the other person is going to say. This predictive process makes our normal conversations better, or at least more readily intelligible. In an interesting study published in The Journal of Neuroscience, researchers found that “language processing is comprised of an anticipatory stage and a perceptual stage: both speakers and listeners take advantage of predictability by ‘preprocessing’ predictable representations during the anticipatory stage, which subsequently affects how those representations are processed during perception.” This would seem to have implications for the medico-legal world because of the reliance on oral statements, whether recorded or not, formal or informal in claims administration. Specifically, the quality of the answers one gets in a statement can potentially be manipulated when either party understands the predictive process involved in conversation. For example, when speakers introduce unexpected words or phrases, listeners become more prone to error: “When subsequently confronted with unpredicted words, listeners/readers typically show a prediction error response.” A clever interviewer could use this information to keep the interviewee off guard, which may help elicit information the interviewee had been consciously trying not to reveal. Conversely, a clever interviewee will be conscious of her tendency to answer based on both prediction and cognition and will take steps to limit the affect prediction has on her answers.
One simple technique interviewees can use is to (silently) repeat every question that is asked of them back to themselves before answering. This focuses the interviewee on comprehension and cognition rather than prediction, which will help the interviewee limit her response to what was in fact asked and not on what her predictive mind assumed was asked. This also may be effective because the prediction happens so quickly and over such a short period of time. According to the authors of the study, “[A]nticipation may precede perception by as little as 200 milliseconds…” This is an incredibly short time interval and any device that an interviewee can employ to slow cognition down will allow her to limit the tendency to anticipate where the speaker is going with a question and instead to hear the actual question that is asked.
One of the things that our brains do brilliantly well is to construct order of the world around us. This predictive aspect of speech is part of that. We are hard-wired to recognize patterns and make connections; hence, we gravitate to coherent narrative versions of events. It is difficult for our brains to process events without linking them together causally. Our conversations reflect this tendency as well. In fact, when people do not conform to the normal way conversation works in this regard it is noticeable and such speakers often seem odd, idiosyncratic, or eccentric.
The problem with the predictive process of speech and our tendency to turn our conversations into coherent narratives is that it inhibits our ability to ask the right questions and give the best answers. When taking a statement, the interviewer should keep in mind that the process is not a conversation in the ordinary sense of the word. That is why, for example, it is imperative to wait until the interviewee completes her response to each question before moving on to the next one. While normal conversation works better when we allow the predictive aspect of conversation to fulfill its function, in a statement the predictive aspect can lead the interviewer away from valuable areas of inquiry simply by virtue of dovetailing the interviewer’s thoughts about what to ask next with the interviewee’s response. Instead, interviewers should be mindful of the process and ask questions that occasionally interrupt the narrative flow to keep her attention focused on what the interviewee is actually saying. One such strategy could involve interjecting questions about an unrelated topic periodically. For example, during questions about the facts of an accident the interviewer might want to ask a question about current prescriptions that the interviewee takes. The question will feel strange when asked, but it is surprising how quickly this jars the interviewer back to the kind of focused attention that is necessary to obtain an effective statement. And that, after all, is the goal.