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Post-traumatic stress disorder (PTSD) is a condition of persistent mental and emotional distress occurring as a result of injury or severe psychological shock, typically involving disturbance of sleep and constant vivid recall of experience, with dulled responses to others and to the outside world.  Symptoms typically include nightmares or flashbacks, avoidance of situations that bring back the trauma, heightened reactivity to stimuli, anxiety or depressed mood.  The condition may last months or years, with triggers that can bring back memories of the trauma accompanied by intense emotional and physical reactions.  PTSD is fairly common in the US; more than 3 million cases are diagnosed per year. 

Of motor vehicle accident survivors, 9% develop PTSD.  Research conducted to identify at-risk individuals disclosed the following:

Pre-existing factors for the likelihood of development of post motor vehicle accident PTSD include:

  • Poor ability to cope in reaction to traumatic events
  • The presence of a mental health problem (most commonly depression)
  • Poor social support

Accident related variables:

  • Seriousness of physical injury
  • Loss of significant others

Post-accident predictors are:

  • The rate of physical recovery from injury
  • Level of social support
  • Level of active re-engagement in work and social activities

The difference between MVA-related PTSD is an increased likelihood of being injured or developing chronic pain syndrome.  As a result, many people rely on their primary care physicians for treatment and do not seek out psychological treatment for some time.  It is important to identify PTSD symptoms early and seek appropriate psychological treatment so symptoms to not become chronic.

Behavior therapy, cognitive therapy and medications have proven effective for treating MVA-related PTSD.  It may also be useful for the claimant to work with a chronic pain specialist to help manage the physical pain caused by injury.  These treatments can be provided in conjunction with one another.

To learn more about Post Traumatic Stress Disorder in Civil Litigation, register for our complimentary luncheon presentations by Terence Young, PsyD, a Board Certified Neuropsychologist scheduled to take place on October 19th at Rare on the Square in Madison, and October 26th at the Capital Grille in Milwaukee.  See our Seminars/Events page for more information and to register.  These presentations will offer CLE credit and space is limited, so register today!

 

Unresponsive reports are typically the easiest to resolve because most physicians will clarify answers that truly do not answer the question that has been asked.  It can be more difficult if the question of responsiveness is one of degree rather than an either/or situation.  In most cases, the best way to address responsiveness is to simply tell your IME vendor precisely what about the expert’s answer to a question is not response.  This is especially crucial when the lack of responsiveness is not intuitive or obvious to a reader who is not intimately familiar with the claim or the evidence.  For example, the case of a physician who is asked for a specific end of healing date and states that the claimant reached an end of healing but doesn’t state the date on which end of healing was reached is easy. 

On the other hand, a case in which the expert is asked a general question about the type, frequency, and duration of future treatment needed in which the expert responds that the claimant will need ongoing treatment for up to six additional months may not be responsive in the cover letter writer’s view, but the unresponsiveness is not likely to be obvious to the IME vendor’s Quality Assurance editor. In this case, the most efficient way to resolve the issue is for the cover letter writer to state the problem with the answer as directly as possible, i.e. “We need to know whether the recommendation for a series of three lumbar epidural steroid injections, which the claimant has not yet undergone, are reasonable, necessary, and related to the injury.”  In this example, the expert’s statement that ongoing treatment should be continued for six months is not wholly responsive because a new treatment modality has been proposed.  Another way to address this situation would be to ask the expert a question targeted to the proposed treatment, i.e. “Dr. X has recommended the claimant undergo a series of three lumbar epidural steroid injections.  We are interested in your opinion on whether the recommended series of three lumbar epidural steroid injections are reasonable, necessary, and related to the injury.”

What’s your strategy for fixing the unresponsive report?  

 

IME Reports can be like the houses from the tale of the three little pigs.  A house of straw may look good, but will not stand up to scrutiny.  Conversely, a house of bricks, despite a sometimes staid appearance, will withstand even the most withering amounts of scrutiny.  In determining whether the expert has constructed a house of straw or a house of bricks, the support the expert cites in reaching their conclusion is critical.  For example, an expert that concludes a particular condition is degenerative rather than acute and is hence not related to the work injury or accident but does not explain why this is the case has given the reader a house of straw that will easily be blown down.  Instead, the expert should explain why the evidence demonstrates that the condition is degenerative rather than acute. 

Thus, in the case of a meniscus tear, the conclusion that the condition is not work-related will be more credible if the doctor explains that a complex tear is most likely to be degenerative because the tearing reflects multiple wear points occurring over a long period of time, that the mechanism of injury reflects a degenerative condition because the onset of pain was insidious and not following an acute twisting episode of the knee, and that the medical literature demonstrates that a significant portion of persons in the examinee’s age cohort who are asymptomatic have degenerative meniscus tears. 

The same is true for MMI, work restrictions, extent of permanency, and the need for medical treatment:  what evidence demonstrates that medical improvement stopped occurring at a specific point in time?  What evidence demonstrates the need for work restrictions or lack thereof?  What evidence demonstrates the extent of permanency or the need for ongoing treatment?  The point being that a conclusion without support is just waiting for the big bad wolf (or one’s opponent – perhaps they are one and the same!) to blow the house down.

What is your technique to assure the experts’ opinions are evidence-based?  Do you have any “battle” stories to share?

The context in which an IME report arises is important, but our main question will always be: “How do we determine if the report is good once we finally have it?”  At the outset, it must be noted that whether the report is favorable or not is of course significant to the reader, but favorability in and of itself does not reflect the report’s quality.  Put simply, reason is indifferent to results.  If the report is well-reasoned and well-supported, regardless of the favorability of the opinion, it is a good report.

 

When evaluating an IME report, consistency matters.  Inconsistent reports are not credible and they also make it difficult for the reader to figure out what, if anything, must be conceded on the claim. Opinions should be consistent throughout the report with respect to causation, end of healing/maximum medical improvement, relatedness of and necessity for treatment, and work restrictions, among other things.  To maximize the likelihood of receiving a consistent report, the specific questions asked of the expert matter.  A report is more likely to be consistent if each issue to be resolved is only asked about once.  Asking about causation in more than one question risks getting inconsistent answers.  Regardless though, one should expect to receive a report from an expert that is consistent with respect to all of the issues about which the expert is asked.  Hence, the general discussion section should have the exact same end of healing date as the answer to the specific question about end of healing.  Fortunately, inconsistency is easy to fix since it usually just involves the expert picking one of two positions and applying it uniformly.

Logic is important to IME reports.  A report in which the expert’s conclusions do not flow from the evidence will not be deemed credible.  It should also be noted that whether a conclusion flows logically from the evidence is not the same as the likelihood that the expert would come to that specific conclusion.  A conclusion may flow logically from the evidence despite the reader’s opinion that the expert was more likely to reach a different conclusion.  The reader should not be upset if the expert reaches a logically consistent and well-supported conclusion even if it is somewhat unexpected.  A favorable conclusion that is not supported by the evidence makes a good result a bad one because the conclusion will not be credible.

In conclusion, consistency and logic are imperative to well-supported opinions that make for a credible IME report.  The IME vendor can help in this regard by providing thorough reviews of reports and catching both the obvious and the obscure.

Do you have particular doctors that make problems for logic and consistency?  What do you do to fix the problem?

Although there is no cure-all that can make every IME report perfect, some things do make a difference.  For example, IME experts are more likely to give more weight to the history that is given closest in time to the injury.  Hence, it is vital to take recorded statements as soon as possible after an injury is reported.  IME experts are also more likely to be suspicious of an injury’s legitimacy if contradictory histories of injury are given.  In addition, evidence of prior problems involving the same body part increases the likelihood that the expert will conclude that the examinee experienced a mere manifestation of a preexisting condition or a temporary aggravation.  Diagnostic imaging studies often can be used to predict whether the expert will conclude that the condition is traumatic or preexisting and chronic. 

One underappreciated factor in predicting the outcome of a report is mechanism of injury.  Often how the examinee claims the injury happened is critically important.  We can reliably predict that an orthopedist will find a meniscus tear to be non-industrial if the examinee does not report a twisting mechanism of injury.  Also, in cases of significant acute injury and disability, a delay in treatment increases the likelihood that the expert will find that the injury did not occur as alleged and represents the mere manifestation of a preexisting degenerative condition.  For example, an expert is more likely to conclude a massive rotator cuff tear has a non-industrial origin if the examinee claims a traumatic episode cause the injury but he nonetheless waited a week to report it because the expert is likely to conclude that a massive acute tear would be so painful and disabling that the examinee could not continue working and would have reported the injury immediately. 

Mechanism of injury is important in occupational exposure claims as well.  An accurate job description, job video, and physical demands analysis tailored to the examinee can go a long way toward predicting whether the expert will find the work exposure to be a cause of the condition. Finally, the examinee’s personality will have some bearing on the expert’s opinion.  Experts tend to be less sympathetic toward hostile and unpleasant persons then friendly and straightforward persons. 

What is your technique to substantiate mechanism of injury?  Does it work and why?

 
   

Cognitive biases and personal judgment tends to cloud how we assess problems and outcomes.  When evaluating a report, we should be aware of these biases so that we can avoid them and the distorted view they give us.  Some common cognitive biases include:

Ambiguity– the tendency to avoid options for which missing information makes probability seem ‘unknown;’

Availability heuristic – overestimating the likelihood of events with greater availability in memory, i.e. events more noteworthy or nearer in time;

Anchoring– the tendency to rely too heavily on one piece of information when making decisions (usually the first information we receive);

Confirmation– the tendency to find, interpret, and look for evidence that confirms one’s preconceptions;

Bayesian conservatism – the tendency to revise one’s beliefs insufficiently when presented with new evidence;

Illusion of control – the tendency to overestimate one’s degree of influence over external events;

Sunk cost fallacy – justifying increased investment in a decision based on cumulative prior investment despite new information suggesting that the decision was probably wrong;

Outcome bias – the tendency to judge a decision based on its eventual outcome rather than on the quality of the decision at the time it was made, i.e. the pro athlete that doesn’t get cut because of a huge signing bonus or guaranteed contract long after it becomes obvious that his performance has deteriorated; and

Subjective validation – the tendency to perceive something as true if a subject’s belief demands it be true (“I think he’s a faker so the report is garbage if it doesn’t confirm my belief that he’s a faker”).

Being aware of and attempting to eliminate our innate biases will make us better judges of reports.  For example, the cover letter writer may have had seven previous claims with the examinee all of which were suspicious.  This will tend to cause the cover letter writer to be subject to the Anchoring Bias, seeking validation and making him prone to negatively judge any outcome that does not confirm his uncertainties.  Failing to eliminate these biases can be damaging to the claim if the injury was witnessed, promptly reported, and is supported by adequate objective medical evidence.  In such a case, an unbiased person would consider the conclusion that the examinee’s complaints are related to the work injury to be both reasonable and likely.

What bias are you most “guilty” of and why?

 

The expectations for an IME report should start with and be based on the objective evidence presented to the expert and the reasonable inferences that can be drawn from that evidence.  Without an accurate accounting of the evidence, it is impossible to state with any degree of reliability if the expert’s conclusions are reasonable.  This is equally true of favorable and unfavorable reports.  For example, if we were unaware that the examinee had a non-industrial injury treated with a meniscectomy, then we would not have any reason to question the expert’s conclusion that the examinee’s total knee replacement related to his work as an electrician. 

In any claim there are a limited number of reasonable conclusions that can be drawn from the available evidence.  Knowing the claim in depth will ensure that the reader will be able to assess whether the expert’s opinion, favorable or not, is at least reasonable under the circumstances.  We may not know exactly what the expert will say but we should be able to figure out the range of possible reasonable responses and how likely each reasonable response is.

To determine the range of conceivable responses, the reader should do his best to remove emotion from the analysis and refrain from making subjective credibility judgments.  The first step is to set out the objective evidence.  Once the assumptions are drawn out, the reader should analyze how well-supported each is.  Then it can be determined how likely each conclusion is to be drawn among the competing inferences.  For example, an expert is likely to find a rotator cuff tear to be work related in an examinee who is a painter and performs a significant amount of overhead work.  However, if we also know that the examinee is a former college and minor league pitcher who stopped playing baseball near in time to his first medical treatment, we may conclude that it is at least as likely that the expert will attribute the rotator cuff tear to the examinee’s history of pitching instead of his work as a painter.  The point is that the reader cannot fairly judge the expert’s opinion unless the reader considers the facts presented to the expert and the reasonable inferences the can be drawn therefrom. 

Once the reader has engaged in this level of analysis, he should ask what, if any, additional evidence would make weak inferences strong.  As in the example above, if the reader provides the expert evidence of minor league pitching activities (i.e., surveillance footage or witness statements) that would strengthen the likelihood of the expert concluding the pitching was at least in part contributable to the rotator cuff tear. 

Conversely, he should consider what evidence, if discovered, would weaken strong inferences.  Again as in the example above, if the examinee was a 57 year old who lost his balance while painting a ceiling and hung from scaffolding until rescued, this could have caused the torn rotator cuff. 

Considering all possibilities ensures the reader will not be surprised if the value of the IME report changes over time.  It also helps the reader to be responsive to new developments by requesting a supplemental or addendum report when necessary.

Do you have any tips or ideas on collecting evidence for the IME expert?

 

In the ancient world, epic poems started in medias res, in the middle of things.  Although (most) IME reports are not larger-than-life in scope, they do share some characteristics with epic poems.  Knowing these shared characteristics is useful to keep in mind when reading IME reports and forming opinions about them.  Most noteworthy is the simple fact that IME reports start, like classic poems, in the middle of things.  Ancient Greek and Roman authors and critics understood that most texts, even when grand in scope, arise in a specific context and consequently cannot be understood adequately unless the reader is familiar with the history leading up to the events the text describes or depicts. For example, Homer (an ancient Greek poet) would have expected his audience for the Iliad (a story about the Trojan War) to know the historical and mythological background of the Trojan War.  As such, the Iliad would not have been judged in a vacuum, but would instead have been judged in a commonly understood historical-mythological context.

An IME report is, in this regard, no different from the Iliad.  We cannot judge the value of a report without giving due consideration to the content of the historical facts on which the report rests and how effectively the report deals with them.  The Iliad is nothing more than an impressively long, rather disjointed, and perplexing poem unless the reader grasps the history and myths that suffuse the poems and Homer’s treatment of historical and mythological events.  Likewise, an IME report cannot be fairly judged unless the reader grasps the evidence that was available to the expert at the time she wrote the report.

How do you judge an IME report?  What is your criteria for what constitutes a good IME report?

 

Cover letters vary in length and thoroughness from the prolix (40+ pages) to the terse (one sentence).  The question is how much is enough?  Without a doubt, the most important part of the cover letter is the specific questions asked.  Beyond that, the amount of information to include is a matter of personal preference.  At a minimum most physicians appreciate knowing who the writer represents and a short neutral summary of the claim.  Most physicians do not require (and many will not read) lengthy summaries of the medical records because they do not want to be influenced by another’s interpretation of the records.  That being said, many physicians will pay attention when the writer points out a few of the critical pieces of evidence or records.  To ensure that the physician addresses anything the writer specifically points to, it is best to ask the physician to address the specific evidence or records in the specific questions section as well.  Beyond this, how much or little to include is ultimately up to the writer.

In drafting the cover letter, it helps to remember that the letter is being sent to a medical expert and not a legal expert.  Using legal jargon when lay terms are available has the potential to confuse the expert.  In cases where legal jargon is necessary, the writer should consider defining the term for the expert to avoid confusion.  For example, a worker’s compensation attorney will understand the phrase, “We were impleaded into the case by Respondent X,” while a physician probably will not.  Hence, it would be useful to explain to the doctor, “which means that the other insurance company brought us into the case based on Dr. Y’s opinion.”  Using simple and clear language and avoiding jargon will go a long way to ensuring that the expert will understand your cover letter and exactly what needs to be answered.

There is no magic bullet that will give us a perfect IME report.  However, careful drafting of the cover letter can help ensure that the expert addresses all (and only) the relevant issues.  A concise and clear cover letter will also help the expert better understand the claim and the salient evidence.  Thus, the cover letter is an important tool that can help you get the best IME possible.

Share your cover letter tips with us.

When approaching the IME cover letter, do you use a standard battery of questions?  If you do, you most likely want to ensure that the expert answers questions related to all aspects of a worker’s compensation claim.  Making sure your questions cover such topics as history of injury, diagnosis, causation (direct; precipitation, aggravation, and acceleration; mere manifestation; and occupational exposure), healing period/maximum medical improvement, past treatment, future treatment, temporary work restrictions, permanent work restrictions, and permanent partial disability. 

The advantage of asking a standard battery of questions for every case is that nothing will be forgotten or left out.  A great approach for less experienced claims handlers.  In addition, if the questions are phrased consistently with the legal standard the writer ensures the expert’s opinion will meet the appropriate legal standard for each question. 

The detriment to this approach is that it relies on the expert to identify all critical evidence and records and cite them in their answers to the specific questions.  This can be problematic when the writer considers evidence or records to be critical that the doctor does not.  If there is an issue the writer wants the doctor to address, the only way to guarantee the doctor will address it is to specifically ask the doctor to address it in the specific interrogatives section and the standard battery of questions approach doesn’t allow for this type of customization. 

Additionally, the practice of asking a set battery of questions can produce untoward results if the questions address issues that the injured worker himself has not raised.  For example, an injured worker may claim that he suffered a traumatic injury to his knee in a specific work incident, but he also has engaged in frequent and repetitive squatting, kneeling, and crawling for the last 20 years of his employment.  If the standard battery of questions is asked, including a question on whether the injured worker’s occupational exposure was a material contributory causative factor in the onset or progression of his knee condition, the expert may conclude that the specific incident did not cause the injured worker’s knee condition but may also conclude that the occupational exposure did.  Hence, it is possible that asking the expert a question about an issue that has not been raised or is not yet ripe can result in creating a claim that was not there.

In summary, the standard battery of questions approach has the advantage of being thorough and preventing any issues from going unanswered.  It is also a good way of ensuring an inexperienced claims handler covers all the issues at hand.  However, it also has the potential to create claims where none existed.  If using the “standard battery” approach, it is best to at least consider the relevant issues and decide if additional questions really need to be asked and answered.

If you use the “standard battery” approach to specific interrogative questions let us know what questions you routinely use and why.  What kind of results do you get?

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