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12/11/2013 in News

The Trust for America's Health published a comprehensive report addressing strategies to curb the prescription drug epidemic in the United States.  The report is summarized on the Trust's website.  Key findings include:

Improve, modernize and fully-fund Prescription Drug Monitoring Programs, so they are real-time, interstate and incorporated into Electronic Health Records, to quickly identify patients in need of treatment and connect them with appropriate care and identify doctor shoppers and problem prescribers;

This recommendation is particularly relevant in the medico-legal setting.  Unfortunately, this recommendation focuses exclusivelyon the medical community.  Oftentimes the doctors have no idea that their patient is doctor shopping or engaging in other drug-seeking behavior, while the claims professional handling the underlying legal claim is acutely aware of the problem (and paying for it).  Since the worker's compensation arena sees a disproportionate share of prescription drug misuse and abuse, it would make sense to establish a reporting partnership between the medical and legal communities.  Claims professionals are the most likely to discover doctor shopping and excessive emergency room visits for pain complaints.  There should be a mechanism that allows them to report problems to the medical community so physicians and pharmacists can better step in to stop prescription drug misuse and abuse.The Trust for America's Health is a credible non-profit, non-partisan organization comprised of public health professionals from around the country.  In addition to the recommendation for better monitoring of drug use, doctor shopping, and problem prescribers, the report also has a number of common sense recommendations to help curb the prescription drug abuse epidemic.  I have left them out of this post because the other recommendations are not directly relevant to worker's compensation and liability claims.  Nevertheless, the report and summary are worth reading to get a better understanding of the epidemic and what can be done to curb it.

The short answer  is that yes, job videos are worth obtaining. However, the circumstances in which job videos are useful are limited. Typically, job videos work well in two circumstances. First, job videos are often critical in cases where an occupational injury is alleged due to an occupational exposure over time (i.e., repetitive motions). In those cases, the independent medical expert will be asked to form an opinion on medical causation based on the job activities that the injured person performed; hence, a job video is often critical. Second, job videos are useful when there is a question as to whether an injured person can return to her former employment. In that case, the independent medical expert will be asked to form an opinion on the injured person's capacity to safely perform her job. In either case, a job video can be a crucial tool to ensure that the independent medical expert's opinion is credible.Although job videos can be critical in the right circumstances, a job video has to be accurate to carry any weight. The biggest problem with job videos is that they are often perceived to represent a cursory sample of what an injured person does rather than a thorough depiction of the injured person's actual job. From the defense perspective, this causes problem at deposition or hearing when the injured person testifies that the job video does not accurately represent their job duties. If the injured person testifies credibly about the frequency and duration of job duties not shown in the video, it will impugn the independent medical expert's opinion because the opinion will have been based on inaccurate information.In order to remedy potential shortfalls, job videos should do a number of things. First, if the employer has a written job description, the job video should accurately portray the duties described, including accurately depicting the physical demands for each duty described. It is difficult to convince a judge to adopt the opinion of an independent medical expert when the opinion is based on a job video showing a worker lifting 5-pound boxes when the injured person testifies that the majority of the boxes she lifted were 50-pounds.  Second, job videos that depict the injured person performing her job duties tend to be more effective than those depicting another worker. These videos are especially effective if the videographer asks the injured person if there are any activities they do in their job that they have not demonstrated. If the injured person answers "no," she will have a tough time trying to say that the video was not accurate later. Third, if the injured person cannot be depicted in the video (which is more common than not), the video should depict a co-employee that has an identical job or as close to as identical job as possible. The co-employee should also be of a similar size and build if possible.  If a similarly sized co-employee with an essentially identical job is depicted, he or she is more likely to portray the job duties accurately. Again, the videographer should ask the employee if there are any activities they do in their job that they have not demonstrated. It should go without saying, but the employer should identify co-workers for the video that are indifferent to the injured person. Otherwise it is too easy for bias to seep into the video and destroy its credibility.Some job videos will depict a manager or supervisor performing the job duties. This is not ideal because the trier of fact will almost invariably assume that the manager or supervisor is biased against the injured person. In addition, such videos often have an artificial feel to them, especially when the manager or supervisor is not a working manager. In these cases the person depicted in the video often does not look like the injured person and her co-workers and does not perform the job duties fluently. A trier of fact who views such a video is likely to consider it suspect if not outright spurious simply because of its appearance (even if the job duties are faithfully depicted and the manager or supervisor acts entirely without bias). There are circumstances in which the only way to have the job video completed is to use a manager or supervisor to perform the injured person's job. In these circumstances, the job video will be most effective if the person performing the job duties maintains a neutral appearance, not exaggerating the ease with which a particular duty is performed. Human beings are incredibly good at reading body language and facial expressions. Triers of fact will know if the person performing the job duties on the video is genuine or not and will judge the video's credibility accordingly.When obtaining an independent medical examination, a job video can be a critical tool in establishing the credibility of the medical expert. However, job videos are only effective if they are credible. Taking a few simple steps such as ensuring that the video captures the same duties identified on the written job description and getting the employee depicted to state on the video that it accurately represents the job duties will help bolster the credibility of the video. And a credible job video will likely mean a credible independent medical evaluation report.

11/22/2013 in News

Christopher Tidball has a quality article on choosing medical bill review vendors at propertycasualty360.com.   While not directly related to the IME world, Tidball makes a number of good points.  Salient to all aspects of the claims process, he notes that cost should be judged as a net performance metric rather than a simple quote in a bidding process.  In his words, "[t]he most important aspect of pricing is not what the vendor is quoting, but what the carrier will actually pay."  The discrepancy between these two "prices" can be quite large.  In choosing an IME vendor, the same is true.  "Price" should be judged by the net cost to the bottom line, including the level of service received, and not just by the upfront quote.

A medical expert's role in legal claims is vital. Medical experts are gatekeepers of the worker's compensation, tort, and disability systems because without medical causation, there are no claims. The role of independent medical examiners in this process is critical. Independent medical examiners are often the only experts who have the full picture: all current medical records, all past medical records, accident reports, the claimant's history, and relevant witness statements.In our adversarial system, the value of independent experts cannot be overstated. The parties are not responsible for discerning "the truth," whatever that may be. They are only responsible for prosecuting or defending the claim. Trial judges, administrative law judges, and juries are responsible for deciding which party's position is more credible. As independent medical evaluators are the only experts with the complete picture of the case, they are uniquely capable of providing an opinion based on an objective assessment of facts and science. It is critical to the sound functioning of the system that independent medical examiners' opinions are given adequate weight.What are the barriers to independent medical examinations being given adequate weight? The most obvious and frequently encountered barrier involves simple errors such as typographical mistakes or obvious misstatements (i.e., stating "left" when "right" was clearly intended). While claims and legal professionals understand that a typographical error or an obvious misstatement should not affect the credibility of the report, the unfortunate truth is that they do. In our society doctors are rightly held in high esteem. This means that they are also held to unrealistic standards of perfection. When reading an independent medical examination report, judges and juries expect the report to be technically perfect. If a report does not meet this standard, it can cause the trier of fact to devalue the doctor's opinion, even if the technical error has no effect on the opinion's substance.To avoid having an independent medical examiner's opinion lose credibility points for technical errors, several steps can be taken. First and foremost, providing clear information and instructions to the examiner is critical. Second, choosing an independent medical examination vendor that will carefully edit reports to eliminate technical errors of grammar and reference is important. Third, reading through the report carefully on receipt is necessary. Independent medical examination vendors will have the information on the claim that is given to them, but they will never have the depth of understanding of the claim and the relevant medical records that claims professionals and attorneys have. Carefully reviewing the independent medical examination report and communicating with the vendor to address any obvious technical errors shortly after receiving the report will help ensure that the report is technically sound and so is viewed entirely on its substance. As gatekeepers to the compensability of claims, it is critical that independent medical examiners' reports are judged on substance and not style.

Researchers recently discovered that persons suffering from lumbago (low back pain) alter their movements because they fear possible back pain.  Researchers believe that this behavior can contribute to acute low back pain becoming chronic.  Essentially, "[t]hey are trapped within a vicious circle: fearing the suffering linked to movement, they lose their mobility, and the pain persists."  Most interesting was the fact that patients in the study felt less pain when researchers told them they were going to feel less pain even when the pain stimulus being applied was higher.  As the author of the article points out, "it seems that the first pain-reliever to be administered to a patient suffering from acute lumbago should be a generous dose of reassuring words, in order to prevent the illness from becoming chronic."This is potentially an important development for the medico-legal world because the costs of surgical intervention on worker's compensation and personal injury claims are staggering and any method for helping patients manage acute low back pain to prevent it from becoming chronic would represent a huge cost savings.

11/15/2013 in News

Risk Management Magazine has a quality piece regarding national trends in worker's compensation.  The primary focus of the article is the impact that the Affordable Care Act/Obamacare ("ACA") will have on worker's compensation costs.  The author concludes that the ACA will likely reduce worker's compensation costs for several reasons.  First, removing lifetime caps on health insurance coverage will give less incentive for individuals and health care providers to push claims onto worker's compensation insurance because they will no longer have to avoid using up the lifetime maximum.  Second, requiring coverage of individuals with preexisting conditions will likely keep some claims out of worker's compensation because individuals will not experience loss of coverage if an injury or condition relates to a preexisting condition.  Third, the ACA will ensure that fewer people will lose coverage during the pendency of worker's compensation claims which will increase the likelihood that comorbid conditions will be effectively managed.  According to the author, one of the cost drivers of worker's compensation is the increased healing periods that result when workers lose primary coverage during worker's compensation claims and stop managing comorbid conditions.The article also poses a question regarding whether the trend to mediate worker's compensation claims has created an unrealistic expectation among claimants that every case will settle.  The author notes that mediation can be a cost-effective means of resolving some worker's compensation claims but that not every claim should be seen as amenable to mediation.  While this seems self-evident, it bears stating.  The author points out that employers and carriers should be prepared to defend cases to hearing when appropriate rather than to mediate every case simply because on average mediation is more cost-effective.  Again, this is self-evident, but good advice nonetheless.In general, the article is well-written and thoughtfully analyzes the impact of the ACA on worker's compensation claims.  It will be interesting to see whether the authors predictions are borne out over time.  In addition, the article succinctly captures the benefits and detriments of mediating worker's compensation claims and offers good advice for when to shift away from mediation.

"We would have won if the ALJ wasn't so pro-employee," is a common refrain in the worker's compensation world. Undoubtedly the statement is at least partly true. However, there may be more going on than what at first meets the eye. Human beings evaluate the world using various heuristics. A heuristic is an experienced-based technique for problem-solving, learning, and discovery. Common heuristics include trial and error, rules of thumb, educated guesses, common sense, and stereotyping. Heuristics are useful because they allow us to take shortcuts when making decisions involving complicated questions. Unfortunately, heuristics often result in decisions and assumptions that are not optimal. It is critical to understand this behavioral condition when assessing why judges reach the decisions they do.One of the more common heuristics and the most vexing in the medico-legal world is the association of correlation with causation. The most frequent example involves judges and juries assigning causation because of temporal proximity. Assigning causation based on temporal proximity is a logical fallacy that, in the Latin, is called cum hoc ergo propter hoc ("with this, therefore because of this"). The logical or cognitive error is considering two independent events to be causally related because they occurred at or about the same time. In the claims arena, this frequently involves an employee who develops back pain at work without a precipitating event then concludes, with medical support, that because the back pain arose at work the work activities must have caused the back pain. Although we as humans have a natural bias toward explaining the world as a series of cause and effect relationships, imposing this bias on independent events simply because they occurred near in time erroneously establishes causation where none in fact exists.A well-known example demonstrating why the "correlation is causation" assumption is false involved claims that hormone replacement therapy (HRT) in post-menopausal women reduced heart disease. Initial reports indicated that women receiving HRT had a lower incidence of heart disease than women who did not receive HRT. However, after a large, randomized study specifically designed to test the effects of HRT in post-menopausal women, it was determined that HRT slightly increased the risk of developing heart disease in post-menopausal women. The reason for the counterintuitive result was the failure to account for confounding variables differentiating women receiving HRT versus those who did not. Put shortly, women receiving HRT were generally healthier to begin with than those women not receiving HRT. Once the confounding variables were controlled for, it was discovered that HRT had a slightly negative effect on cardiovascular disease rates. The HRT example effectively demonstrates that simply because two things are present at the same time does not mean they are related.The difficulty for claims professionals and attorneys is that they must find a way to convince judges and juries that the commonsense assumption that complaints arising during or shortly after a particular activity must be related is almost certainly false without sounding condescending. In the back pain example, most IME reports do a good job of explaining that the diagnostic imaging findings look more like the degenerative changes from aging than the changes from acute injury. However, this alone is usually insufficient to convince judges and juries that the experience of pain or disability during an activity or incident is not related to the activity or incident. Instead, the IME doctor will need to offer an analogy that judges and juries will understand. For example, we call rhinovirus infections "colds" because we used to believe that cold temperatures caused the ailment. We now recognize that "colds" are caused by viruses and that being cold has nothing to do with becoming infected. I think it is reasonable to ask independent medical examiners to use effective analogies to make it clear that medical science should trump assumptions about correlation and causation that are unreliable and probably false.

11/8/2013 in Medical Conditions, News

In a rare development, two researchers from Belgium discovered a new knee ligament called the anterolateral ligament ('ALL').  The researchers began looking into the possibility of an undiscovered anatomical structure in the knee because of unusual symptoms that were reported after successful ACL repairs.  Specifically, "some patients with ACL-repaired knees continue to experience so-called 'pivot shift', or episodes where the knee 'gives way' during activity."  Oddly enough, a French surgeon had postulated the existence of an as yet undiscovered anterior knee ligament in 1879.  Over 130 years later he was proven right.  The Belgian researchers published their findings in The Journal of Anatomy.In the claims setting, this discovery may impact future treatment of ACL injuries, though the discovery is so new that the extent of its impact is not known.For more information on Medical Systems go to www.MedicalSystemsUSA.com

It is common knowledge that prescription drug misuse and abuse has become a significant problem in the United States. According to the Centers for Disease Control (CDC), the costs are staggering.

  •  In the United States, prescription opioid abuse costs were about $55.7 billion in 2007. Of this amount, 46% was attributable to workplace costs (e.g., lost productivity), 45% to healthcare costs (e.g., abuse treatment), and 9% to criminal justice costs.
  • Between 1998-2002, people who abused opioid analgesics cost insurers $14,054 more than the average patient.

http://www.cdc.gov/homeandrecreationalsafety/overdose/facts.htmlPrescription drug misuse and abuse impacts claims management in many ways. On the front end of the process, prescription misuse and abuse increases the risk that a person will be involved in an accident, whether work-related or not. In addition, persons with significant dependence problems may see the claims process as a manner of obtaining prescription medications to fuel their dependency. During the claims administration process, prescription drug misuse and abuse increases costs through extended (or unending) recovery periods and higher than normal pharmaceutical costs. In addition, drug seeking behavior often results in increased medical costs through emergency room and urgent care visits used to obtain medications. Finally, the value of prescription drug medications causes some persons who receive them to sell them as a means to generate income.What can claims professionals do to combat prescription drug misuse and abuse among claimants? The first place to start is with the primary treating physician. If it appears from your review of records that the patient is obtaining narcotic pain medication from multiple sources or has asked for an early refill on more than one occasion, communicate your concern directly to the physician. Most treating physicians are sensitive to narcotic use and will not tolerate drug-seeking behavior. In addition, you can encourage the physician to use her state’s Prescription Drug Monitoring Program, which will provide the physician with information regarding from whom and when patients are obtaining prescriptions for narcotics. Second, a medical record review can provide a good option for discontinuing payment of prescription pain-relievers and other drugs that may be being abused. Third, many states have dispute resolution mechanisms designed to address a carrier or employer’s contention that a particular treatment is not necessary to cure and relieve the effects of an injury or condition. This option provides an opportunity to challenge a recalcitrant physician’s decision to provide unwarranted prescription pain-relievers or other addictive drugs without the patient being a party to the claim. Fourth, drug and physician utilization reviews can be used to assess the likelihood that abuse is occurring when abuse is suspected but cannot otherwise be confirmed.The bottom line is that prescription drug misuse and abuse can be a significant claims cost driver. Taking a proactive approach of identifying potential abuse, working with treating physicians to curb abuse, and using independent medical or record reviews can provide an effective means of controlling the claims costs of prescription drug misuse and abuse. Beyond the claims environment, curbing prescription drug misuse and abuse also makes our society better and safer, which is a win-win for everyone.For more information on Medical Systems go to www.MedicalSystemsUSA.com

One of the most common concerns we hear regarding IME’s is that “the doctor didn’t explain why…”  Frequently the issue centers around the doctor’s opinion that a particular mechanism of injury did not or could not have caused the claimant’s condition.  For example, a doctor may conclude that a particular accident was not of a sufficient magnitude to have caused an acute rotator cuff tear and that the MRI findings demonstrate a wholly preexisting, degenerative process.  Most claims professionals and attorneys would be happy with this opinion, but only if the opinion did not end there.  We all want to know why the doctor reached her conclusion.One of the reasons doctors do not explain themselves in greater detail is that they live their entire professional lives interacting with other doctors and health professionals who do not require further explanation.  If an orthopedist tells a referring internist that an accident was not of a sufficient magnitude to have caused an acute tear, the internist generally will not require additional information to understand why the doctor reached that conclusion.  The orthopedist conveyed the relevant information and the internist can adjust her assessment accordingly.  Unfortunately for those of us in the medico-legal world though, medical opinions do us little good unless doctors explain why they reached them.In our rotator cuff example, the doctor likely had sound reasons for her opinions.  Perhaps the claimant did not complain of shoulder pain at the scene of the accident.  This, any orthopedist will tell you, would be highly unusual in an acute rotator cuff tear because acute tears are painful.  The tendons forming the cuff are enervated and when a complete tear occurs the nerves in and around the tendon are also torn.  This causes pain, which is the body’s natural protective mechanism to keep the person from continuing to use the joint in a way that could cause further injury and impede healing.Perhaps the claimant was a seat-belted driver whose vehicle was merely sideswiped.  The claimant did not report shoulder pain at the scene and did not hit her shoulder or have force transmitted to the shoulder through an outstretched arm.  Most orthopedists will tell you that a minor collision that does not involve direct impact to the shoulder or indirect transmittal of force through an outstretched arm cannot physically cause a rotator cuff tear.  If the shoulder is not hit or the arm is not outstretched, the rotator cuff tendon complex is essentially relaxed.  In this state it cannot be torn.  It is like a rubber band:  if you stretch a rubber band until it is taut you can break it when additional force is applied.  However, if you attempt to break a rubber band that is relaxed, nothing happens.So how can we get the doctor to explain why?  The simplest way to get an explanation is to ask for it.  We understand that certain questions need to be asked in a certain way, such as the Llewellyn questions in Wisconsin worker’s compensation cases (definite breakage, precipitation, aggravation, and acceleration beyond normal, or mere manifestation); however, tailoring causation questions to the mechanism of injury at issue will often get the doctor to answer why she reached her conclusions.  Take the rotator cuff example above:    The claimant alleges an acute rotator cuff tear arising out of a motor vehicle accident.  You have reviewed the file and just don’t think the accident could have caused a rotator cuff tear because the mechanism of injury doesn’t seem right and the MRI reports suggest the tearing was of a longstanding, degenerative nature.  In addition to the typical questions, you might want to ask the doctor a specific question regarding the MRI findings:  “The reading radiologist on the November 2nd MRI report states that there is fraying of the supraspinatus tendon that appears to be of a degenerative nature.  Please comment on whether you agree with the reading radiologist and if so what aspects of the MRI images suggest a degenerative versus an acute tear.”  You might also want to ask the doctor a specific question regarding the lack of shoulder complaints immediately after the accident:  “In her description of the accident and the development of her shoulder problems, the claimant does not mention shoulder pain immediately after the accident and first reports shoulder pain two weeks later.  What is your opinion on whether the claimant’s report of injury and the onset of shoulder pain is consistent with suffering an acute rotator cuff tear arising out of the motor vehicle accident?”We know that there are no silver bullets in obtaining independent medical examinations.  The doctors who are asked to examine claimants give an objective opinion based on the history described and the other facts available to them.  Nevertheless, targeted questions can go a long way in getting the in depth explanation behind an opinion that helps bolster the IME doctor’s credibility.  When preparing the cover letter to the IME doctor, consider whether there is anything unusual about the claimed injury.  If the mechanism of injury doesn’t seem right, point that out to the doctor and ask her to comment specifically on the mechanism of injury and why it would be unlikely to cause the alleged injury.  In many cases, you will receive a more detailed and individualized answer than you would if you only asked standardized questions.For more information on Medical Systems go to www.MedicalSystemsUSA.com

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