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One of the trickiest areas for employers to negotiate is the intersection of worker's compensation and disability laws. Frequently, issues under a state worker's compensation act, the Americans with Disabilities Act ("ADA"), state fair employment laws, and family and medical leave laws overlap. Unfortunately, there is no specific guide for how to navigate the laws when they overlap. Employers are left on their own to wade through the morass.One area of overlap that employers can get a leg up on is using a worker's compensation IME to address fitness for duty issues. Under the ADA and most state fair employment compensation laws, employers are entitled to have an employee undergo a fitness for duty examination if the employer has a legitimate concern about the employee's ability to perform the job safely. In a straight fitness for duty situation, employers are only entitled to know if the employee can safely perform the job without restrictions and without risk to other employees.Under state worker's compensation laws, employers are entitled to a broader range of medical information regarding the employee making the worker's compensation claim. One reason is that the employee who makes worker's compensation claim waives the doctor-patient privilege. Hence, employers are entitled to obtain all medical records reasonably related to the injury alleged without the employee's authorization. In addition, employers, in most states, suspend benefits if an employee refuses to attend and IME. This provides a significant incentive for an injured worker to attend the IME.When obtaining an IME in the worker's compensation setting, employers may wish to consider asking questions targeted at the employee's ability to perform the job safely. Often the IME physician will have the benefit of records going back many years that relate to the employee's condition. In addition, employers frequently provide the IME physician with a detailed job description to be reviewed as part of the IME process. This puts the IME physician in an excellent position to judge whether the employee can safely return to employment.Not every IME will lend itself to a fitness for duty evaluation. In some cases worker's compensation and disability laws do not overlap. Sometimes there will be no imminent return to work so a fitness for duty examination would be premature. Nevertheless, in the right case employers can use worker's compensation IME's to their advantage by having the expert address the injured worker's fitness for duty. Not only will it kill two birds with one stone, it will have the added benefit of ensuring that the worker's compensation and fitness for duty opinions are consistent.

12/12/2013

Are you an employer who wants to cut costs?  An employee who doesn't want to have to deal with co-pays, out-of-pockets, and other health insurance related costs?  Are you just a person who wants to live a longer, healthier life?  Good news, there is something that will make you all happy!  What is this miracle drug?  Exercise.I can hear the air escaping from your deflated expectations.  The truth is, though, that exercise has proven to be a remarkable means of improving health, speeding recovery from injury, and ameliorating the natural effects of aging.  Studies across medical fields, even including psychiatry, demonstrate that exercise typically works as well as or better than pharmaceutical or other medical interventions to treat chronic conditions.  In a New York Times blog, Gretchen Reynolds describes the findings from a recently released report:

The results consistently showed that drugs and exercise produced almost exactly the same results. People with heart disease, for instance, who exercised but did not use commonly prescribed medications, including statins, angiotensin-converting-enzyme inhibitors or antiplatelet drugs, had the same risk of dying from — or surviving — heart disease as patients taking those drugs. Similarly, people with diabetes who exercised had the same relative risk of dying from the condition as those taking the most commonly prescribed drugs.

Amazingly, exercise is rarely studied and appears to be infrequently prescribed by physicians, as one of the lead researchers noted.

The results also underscore how infrequently exercise is considered or studied as a medical intervention, Dr. Ioannidis said. “Only 5 percent” of the available and relevant experiments in his new analysis involved exercise.

Equally amazing is the fact that this knowledge is old news.  In 1996, the American Heart Association journal Circulation carried a long article titled, "Statement on Exercise."  The article notes that exercise:

  • favorably changes the way the body metabolizes carbohydrates and fats;
  • enhances the positive effects of a healthy diet;
  •  redistributes body fat in a way that likely lowers cardiovascular risk;
  • has positive effects on insulin sensitivity;
  • can help prevent and alleviate osteoporosis;
  • reduces cardiovascular response to stress;
  • increases performance on tests of cognitive functioning;
  • protects against the development of certain cancers;
  • improves overall adjustment and reduces depression and anxiety; and
  • reduces the risk of developing cardiovascular disease.

So how do we get from merely knowing what the benefits of exercising are to reaping the benefits from actually exercising?  On an individual level, exercise requires dedication, planning, and opportunity.  There is not much more to it.  On a broader level, the necessity of exercising needs to become a societal priority and expectation among the medical community, the employment community, and the school community.  And really, this is not about marathon running or competing in triathlons.  We just need to expect and demand that people be more active, whether they are patients, employees, or students.Take the medical community as an example:  when a person goes to the doctor for type II diabetes, the doctor prescribes medication, monitors A1C levels with regular blood tests, etc.  The doctor asks the patient to diet and to exercise and probably tells the patient how important it is; however, the manner in which the doctor discusses diet and exercise suggests it is a more of a recommendation than a necessity.  Instead, the doctor should require the patient to change her diet and to exercise.  The patient can be told that exercise is at least as important as medication, if not more so.  The patient should be expected to monitor her exercise the way she monitors her blood sugar.  A simple reorientation from recommending exercise to demanding it would change exercise from an aspiration to an actual habit for many persons.What can employers do?  From the outset, it must be noted that the line between occupational health conditions and non-occupational health conditions has been blurring recently.  A NIOSH report (p. 178) noted that as the incidence of acute occupational injuries has declined, focus has increasingly shifted to chronic conditions such as low back pain for which it is"considerably more difficult to determine the workplace causality."  The report goes on to note that,

As the distinction between occupational and nonoccupational health fades, it becomes natural to think about the impact of workplace and employer interventions on all health conditions and to think about the employer costs for all mandated or employer-sponsored health programs.

The common response among employers has been to implement wellness programs, with which employers have had varying degrees of success.  However, most research finds wellness programs to be cost-effective within three years of implementation.  Even without a formal wellness program, employers can take simple steps to encourage their employees to be active. Employers can offer on-site exercise classes or install showers for persons who would like to commute by bike or run at lunch. Creating the conditions in which the opportunity to exercise is readily available and expected* will increase the number of employees exercising.  Which means healthier employees and lower costs for both occupational and nonoccupational conditions.

*It must be noted that employees sometimes resist these efforts because they do not think an employer has the right to tell them how to live their lives; however, as long as employers are paying group health insurance and worker's compensation premiums, nothing could be further from the truth.  We accept drug and alcohol policies in the workplace because of the potential costs of intoxication to the employer.  For employers who bear responsibility for a significant portions of their employees' health-related costs, the demand for healthy employees should be no less vociferous than is the demand for a drug-free workplace (since the costs are certainly no less and are likely considerably more).
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

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