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A command of the facts is essential to managing claims effectively. Equally important is the ability to understand what the facts mean in context. Deer hunting is still a popular pastime in Wisconsin. As such, one avenue for investigating whether a person’s condition is as disabling as they claim is to find out if they hold a deer hunting license. The idea being that a person who is able to hunt for deer is probably less disabled than they claim. The inference is strongest in the case of hunting with a bow and arrow because compound bows require significant strength to use and their shorter range (compared to a gun) generally requires the hunter to climb into a tree stand to hunt. Deer are also heavy, which would make it difficult for a lone hunter to deal with the animal after a successful kill. You will note that several assumptions are required to make the leap from the premise “claimant possesses a deer hunting license” to the conclusion that “the claimant is less disabled than alleged.”
The assumptions need to be teased out before the fact of possessing a hunting license can be used to infer less disability than alleged. Take the following hypothetical: a relatively young person who is right-handed alleges a disabling work-related right shoulder injury (rotator cuff and SLAP tear) that prevents him from returning to his former occupation that requires he be able to lift up to 100 pounds to his waist occasionally and 15-25 pounds above his shoulder frequently. In the course of the investigation, the claims professional discovers that the employee obtained a license enabling him to hunt deer in Wisconsin with a crossbow. The claims professional considers this to be a red flag and evidence that he is not as disabled as he claims. She sets up an independent medical examination and informs the expert of this fact, expecting it to be significant.
The question we must consider is whether the employee’s crossbow hunting license is in fact evidence that he is not as disabled as he alleges. The first thing we need to know is a bit about crossbow hunting in Wisconsin. Until 2014, the only persons who could obtain a crossbow license to hunt deer were persons with a physical disability that prevented them from being able to use a vertical (and typically compound) bow. This should immediately give us pause in our analysis since it suggests that the employee’s license very well may have been obtained because his right shoulder condition prevents him from using a standard vertical compound bow. This possibility is bolstered when one considers that the draw weight (how many pounds of force are required to draw the string back) on a compound bow for an average-sized man will be around 60 pounds. For a right-handed shooter this puts a tremendous amount of stress on the right, or draw-hand shoulder.
But what about dealing with a deer that has been shot and killed? Wouldn’t that be physically difficult? It is true that most whitetail deer killed in Wisconsin will weigh over 100 pounds, with some bucks tipping the scales at well over 200 pounds. Obviously field dressing, dragging a deer out of a field or woods, and lifting into a vehicle would require significant effort. However, we are again making assumptions about what physical activity the employee is doing. We must consider the possibility that the employee uses a four wheeler to get to his hunting location, as many hunters now use four wheelers. We must also consider the possibility that a hunter with a four wheeler also has a power lift on the vehicle to help get the carcass off the ground and onto the four wheeler. In addition, we must consider the possibility that the employee hunts with other people and will have assistance if he makes a kill. The point is that we cannot infer from the employee’s license to hunt deer with a crossbow that he will engage in physical activity exceeding his alleged level of disability.
The above scenario demonstrates the importance of not only knowing the facts of a claim but also of knowing what those facts mean. Without a clear understanding of what the facts mean, one can misinterpret how the facts effect the claim. In the above scenario, it is possible that the claim could be considered suspect based on the assumption that a person seeking a hunting license is probably less disabled than they claim to be. However, knowing a bit more about hunting suggests the fact that a person who claims to have a disabling shoulder injury and seeks a crossbow hunting license is probably behaving consistently with the alleged disability. Not drawing out the most reasonable inferences from the known facts could very well compromise one’s ability to effectively administer a claim. Investigate carefully, but know what the facts turned up in the investigation really mean.
The language we use to describe various medical conditions impacts how the conditions are viewed in the medicolegal context. Some of the common culprits include “tear,” “herniation,” and “edema.” The everyday understanding of these words suggests to readers of medical reports that they are the result of acute injuries rather than the normal result of aging. Take for example the word “tear,” which is frequently used to describe the condition of tendons, ligaments, and meniscuses. To the ordinary reader, if some says that they “tore” a tendon or have a tendon “tear,” the immediate image is something akin to paper being torn. In many tendon “tears,” nothing could be further from the truth. Instead, many tendon “tears” are actually degenerative in nature, resulting from the normal effects of time and aging on the body. Medical experts and claims professionals should be more precise in describing such conditions so that it is clear to the ordinary reader that the condition is degenerative rather than the result of an acute injury.
How can this be done? A good example is found in a Wisconsin Labor and Industry Review Commission decision. There, the Commission quoted Dr. Paul Goodman:
MRI scan reports and common medical lingo frequently utilize the words 'tear' when describing the disruption of tissues and structures found on diagnostic imaging or at times of surgery. However, for the most part such language is misleading, manipulating the mind of the reader to understand that some sort of traumatic event is responsible for the 'tear' or 'torn' rotator cuff, event in the absence of any objective evidence of trauma having occurred. In the examinee's case, although her diagnostic reports indicate such language, I find it better to use the word 'disruption' which avoids a traumatic connotation. Over time, tendon structures deteriorate, breakdown, and become disrupted as a usual and normal consequence of the aging process. This is what has occurred in the examinee's case. No injury per se is medically determined.
The proof that this careful attention to language matters: the Commission concluded the employee’s condition was not work-related and dismissed her claim.
“Did the accident (or exposure) cause the condition?” is usually the crux of most IME reports. We expect the expert to answer “yes” or “no” and explain why and how she came to that conclusion. The worst answer is some variation of “I’m not sure.” This is enormously frustrating. The person asking the question rightfully expects to receive a definitive answer and “I’m not sure” is tantamount to no opinion. As a practical matter, “I’m not sure” functions only marginally better than having no report at all.
We have all seen variations of “I’m not sure” in IME reports. But what can be done to avoid it? A carefully worded cover letter specifically explaining the standard that the writer is asking the expert to meet can help. One simple way to explain the expectations for answering basic causation questions is through a coin flip analogy. Every physician understands that a coin flip is a 50/50 proposition, meaning that whenever a coin is flipped the likelihood that it will come up heads is exactly equal to the likelihood that it will come up tails. It is easy to explain that you are asking the expert to determine whether the likelihood that the accident (or exposure) caused the condition is greater than a coin flip based on the available information. If so, then the causation question should be answered “yes.” If the likelihood that the accident (or exposure) caused the condition complained of is equal to or less than a coin flip, then the causation question should be answered “no.” The vast majority of experts will understand this analogy and it often helps prevent them from equivocating on causation.
Experts also are prone to conflating medical diagnostic impression and causation in an IME report. The diagnostic impression as reflected in chart notes is often blurry and by necessity uncertain. This is why chart notes frequently reflect more than one diagnostic impression. For example, a person who presents with carpal tunnel-like symptoms my carry a differential diagnosis of carpal tunnel syndrome versus cervical spine nerve root impingement versus shoulder impingement. The doctor will keep the competing diagnoses in the chart until tests are performed to rule out (or confirm) causes. It would be unwise to establish a definitive diagnosis in the clinical setting if there is not definitive medical evidence supporting one diagnosis over the others, even if the doctor believes, based on the available evidence, that one diagnosis may be more likely than the others.
This is the precise issue that experts performing IMEs must overcome. Again, the cover letter can help them. An effective way to help doctors move away from the medical diagnostic impression model is to explain to them that answering the causation question ‘yes’ or ‘no’ neither precludes the accident (or exposure) as a cause nor fixes the expert’s opinion for all of time. Definitively answering the question is the equivalent of stating that based on the available information, it is more likely than not that the accident (or exposure) did not cause the condition. This opinion does not preclude other causes or state that is 100% certain with respect to the cause of the condition. The opinion also does not lock the expert into her opinion in the future. The opinion is based on information available at the time the opinion was rendered. If additional information becomes available in the future, the expert should be assured that it is permissible and expected that her opinion will conform to the new information, even if that means her opinion on causation does a 180° flip. Explicitly explaining the nature of the opinion expected, its limited effect, and the possibility of changing it in light of new information will help the expert be more comfortable with stating a definitive opinion on causation.
Taking these steps in the cover letter can go a long way toward eliminating ambiguous, vague, or equivocal opinions on causation in IME reports. We don’t expect perfection out of our experts, but we do expect that they will provide clear answers to the questions that we ask them. Helping the expert understand exactly what those expectations mean will help her fulfill them.
Low back problems are a necessary evil of being human due to our anatomy and physiology. This is of great importance in many medicolegal claims in which an injury or repetitive stress exposure is alleged to have caused low back problems, thereby attempting to shift responsibility for the costs imposed by low back problems from the individual and his or her health insurance (if applicable) to the liability policyholder/employer and the liability/workers compensation insurance carrier. The high prevalence of low back problems in the general population makes differentiating between idiopathic problems and those caused by an accident or repetitive stress exposure extremely difficult. It is also complicated by the fact that the idea of a manifestation of a preexisting condition is at odds with our folk understanding of temporal proximity and causality, i.e. if two things happen near in time, we tend to assume they are causally related, with the first thing causing the second thing.
Human beings perform many cognitive tasks exceptionally well. Accurately assigning causation is not one of them. In particular, we are prone to making a priori assumptions about how things work and then confirming our assumptions (confirmation bias) post hoc (post hoc ergo propter hoc fallacy). Low back pain is a notable example: we often associate low back pain with lumbar disc pathology discovered on post-injury MRI despite the fact that we know from the medical literature large percentages of the general population have similar MRI findings but no low back pain. We make the assumption based on our assessment of human anatomy and physiology that lumbar discs work in a certain way and when they are compromised it must cause discernible effects such as low back pain. We then see evidence of compromised lumbar discs in persons who complain of low back pain following an injury or exposure and we leap to the bias-confirming post hoc conclusion that the pathology or compromised condition is causing the pain. So strong is this impulse that we ascribe causation even though we are well-aware of the medical literature demonstrating that disc pathology is an exceedingly poor proxy for low back pain. The coup de grace of this faulty reasoning is the post hoc association between disc pathology and pain: physicians will regularly conclude that a specific event or long term exposure caused a herniated disc despite the person being in a population cohort in which it is at least as likely than not that herniated disc was present before the injury or exposure. The only reasonable way one could reach this conclusion is with a pre-injury MRI showing there was not a herniated disc.
The problem with this sort of faulty reasoning is that it can lead to treatment that is extraordinarily expensive but ineffective. In a low back pain claim with post-injury evidence of a herniated disc, the treatment is often a discectomy/laminectomy with or without fusion. If the herniated disc was not causing the pain, the surgery will have been unnecessary. While the placebo effect will almost certainly result in some short term improvement, the long term outcomes are likely to be, at best, no different than they would have been with conservative therapy because the treatment will have been aimed at discal pathology that was benign. The triers of fact in the medicolegal systems will, however, require the workers compensation or liability carriers to absorb the costs of surgery, including non-medical costs that are recoverable under the different systems (such as indemnity payments in worker’s compensation or wage loss and pain and suffering in personal injury), because they are likely to believe the opinion that the herniated disc is the problem. This belief is based on the folk (mis)understanding of cause and effect.
There is an expression in statistics that has been borrowed by cognitive psychologists: regression to the mean. It simply holds that unusual states, events, or findings tend to be temporary and regress over time to the average or status quo. This is true with many non-malignant medical conditions as well. This is both profound and somewhat dispiriting because it means that most of these conditions will get better over time regardless of treatment. It is hence a fallacy to ascribe efficacy to treatment or causation based on recovery following treatment when a condition simply regresses to the mean because it would have regressed to the mean regardless of treatment.
Much attention has been paid to this phenomenon in the context of overusing antibiotics. Most people who go the doctor for upper respiratory infections wait to seek treatment until the condition has been present for some time. They then go to the doctor, ask for antibiotics, take antibiotics, and recover from the condition. These persons then assume that the antibiotics caused the improvement. The problem with the assumption is that most of these persons almost certainly had viral infections that simply got better according to the natural course of the condition. ANTIOBIOTICS DO NOT AFFECT VIRUSES AT ALL. The fact that the condition improved after starting antibiotics was due to the simple fact that the person started the antibiotics at about the time the condition would improve on its own. The antibiotics had nothing to do with the condition improving because ANTIBIOTICS ARE 100% INEFFECTIVE AGAINST VIRUSES.
The same holds true for many persons with low back pain who undergo surgery to remove a herniated disc. Low back pain usually stabilizes over time after an acute exacerbation regardless of treatment. Given enough time, it is highly likely that the person would have gotten better or at least recovered to the same extent regardless of the treatment received (including no treatment). The fact that the person improved after surgery does not indicate that the surgery caused the improvement. Instead, the relation of surgery and improved low back pain is almost certainly coincidental. We regress to the mean. That the surgery occurred and improvement subsequently happened is not evidence that the surgery was effective or that the herniated disc was causing the low back pain.
How do we know this? The medical literature is replete with evidence to that end. Take for example the study, “Influence of Low Back Pain and Prognostic Value of MRI in Sciatica Patients in Relation to Back Pain.” The study was undertaken to evaluate the correlation between MRI findings and outcomes in patients with sciatica alone versus patients with sciatica and back pain. As the authors note, “it remains unclear to what extent morphological changes seen on MRI in sciatica patients are associated with back pain, rather than being a representation of irrelevant differences between individuals.” The study found “that herniated discs and nerve root compression on MRI were more prevalent among patients with predominantly sciatica compared to those who suffered from additional back pain.” Interestingly, patients with sciatica and low back pain but without a herniated disc or nerve root compression fared worse after one year than those patients with a herniated disc or nerve root compression. And “remarkably large disc herniations and extruded disc herniations were … equally distributed between the two groups,” causing the authors to conclude that “the worldwide accepted mechanical compression theory therefore seems not to offer a sufficient explanation for the cause of the disabling back and leg symptoms in sciatica.”
Other studies demonstrate similar findings that call into question our ability to assign causation of low back pain to herniated discs and nerve root compression. The well-known twin study demonstrates the difficulty in linking specific activities with low back pain. As the authors in that study report, “disc degeneration appears to be determined in great part by genetic influences. Although environmental factors also play a role, it is not primarily through routine physical loading exposures (eg, heavy vs. light physical demands) as once suspected.” As noted above, other studies have found that large portions of the general population have disc pathology on MRI, but no low back pain. Still other studies find low back pain in the absence of disc pathology on MRI. Despite this evidence, triers of fact routinely base liability decisions on medical opinions that conclude an injury or exposure caused a herniated disc based on a post-injury MRI (which is almost impossible to conclude from a rational, evidentiary perspective in the absence of a pre-injury or exposure MRI) and that the herniated disc is causing low back pain (which runs contrary to the received scientific evidence).
What does this mean for medicolegal claims? It suggests that every claim for injury- or exposure-related back pain based on post-injury MRI scans demonstrating a herniated disc should be carefully scrutinized. In addition, worker’s compensation and liability carriers should take every opportunity to educate triers of fact regarding the lack of a causal nexus between herniated discs and low back pain. Independent medical examiners should point to the relevant literature to begin convincing triers of fact that there is no evidentiary link between low back pain and herniated lumbar discs. In this regard, insurance carriers can look to how the relationship of carpal tunnel syndrome to repetitive keyboard use evolved over time. When these claims first started arising, triers of fact in worker’s compensation accepted the link based on treating physician opinions seemingly without question. This was based on the fact that claimants reported experiencing symptoms while using computer keyboards. The medical literature did not support this association. Independent medical examiners began citing to research finding the opposite: that repetitive keyboarding is not a risk factor for or a cause of carpal tunnel syndrome. In at least some jurisdictions, the triers of fact and treating physicians eventually listened and stopped finding a relationship between repetitive keyboarding and carpal tunnel syndrome.
A similar shift ought to occur in the context of herniated discs and low back pain. While this does not suggest that low back pain itself is unrelated to an injury or exposure, it would radically reduce costs because it would limit surgery for herniated discs to cases where there is discernible nerve impingement causing motor and sensory deficits rather than in cases of low back pain alone. Although human beings are not very good at accurately assessing causation, we can learn to go against our instincts if there is high quality evidence denying causation and experts willing to hammer that point home. It is time to hammer home the point that disc pathology on MRI is poorly correlated to low back pain and limit expensive surgical procedures the efficacy of which is not supported by the medical literature. The simple fact of the matter is that costs for treating a condition that cannot be reliably related to an accident or repetitive stress exposure should not be borne by a liability or worker’s compensation carrier (especially when the condition is poorly correlated with the alleged health effects).
We have written about the potential to use stem cells to regenerate articular cartilage in this space before. Now researchers at Washington University in St. Louis have grown articular cartilage using a person’s own stem cells in a moldable 3D synthetic scaffold. The development is exciting because the scaffold can be molded around the shape of an arthritic femoral head, thus potentially replacing a person’s damaged articular cartilage with healthy cartilage. If this potential treatment becomes a reality, it could offer an alternative to total hip replacement surgery. This would be particularly beneficial for patients under 50 years of age with advanced hip arthritis since most prostheses last less than 20 years and replacing a prosthetic hip carries with it greater complications than the original replacement. While the research is preliminary and has not yet been tested in animals (let alone humans), it is exciting and worth following, especially considering the fact that 322,000 hip replacements are performed annually in the United States alone.
What do a 2,200 year-old Egyptian mummy and many Americans have in common? Sedentary lifestyles. And the effects are not pretty in either case. Scholars who examined the mummy using CT scans determined that the man suffered from osteoporosis and tooth decay despite only being 30-40 years old when he died and having lived at a time when both ailments were rare. They believe his poor health is explained by the fact that he was a priest, which allowed him to be sedentary, avoid manual labor in the sun, and eat a carbohydrate-heavy diet.
A recent study published in the European Journal of Preventative Cardiology and reported on in numerous news outlets demonstrates how perilous the effect of a sedentary lifestyle is even today: researchers concluded that the effect of being unfit “on mortality was a strong predictor in our population, second only to smoking.” So deleterious were the effects of unfitness that researchers found men who were fit but suffering from high blood pressure and high cholesterol were less likely to die prematurely than men with normal blood pressure and normal cholesterol who were unfit.
The study involved 792 men who were followed for 45 years starting when they were 50 years old. Researchers measured the participants’ maximum oxygen uptake capacity, known as VO₂ max, to establish baseline fitness. VO₂ max is a useful proxy for fitness because it is partly influenced by genetics but increases with increasing aerobic fitness. The men were divided into three groups: low VO₂ max, mid VO₂ max, and high VO₂ max. The men were followed every 10 years, with analysis of cause of death among participants who passed away. Researchers concluded that the mid VO₂ max group was 21% less likely to die of premature causes than the low VO₂ max group and that the high VO₂ max was 42% less likely to die of premature causes than the low VO₂ max group. The results remained even when controlling for blood pressure and serum cholesterol. Lead author Dr. Per Ladenvall summarized the findings thus:
We found that low aerobic capacity was associated with increased rates of death. The association between exercise capacity and all-cause death was graded, with the strongest risk in the tertile with the lowest maximum aerobic capacity. The effect of aerobic capacity on risk of death was second only to smoking.
The findings should give us pause to consider how we approach health care and maintenance. Rather than relying on pharmaceutical or surgical interventions to control the effects of unfitness, perhaps we ought to insist on interventions that increase fitness. If being unfit causes premature death and disease, it would seem wise to treat the cause rather than the effects. As a corollary benefit, the treatment for being unfit, i.e. being physically active, is certainly cheaper than treating the effects, i.e. weight-loss surgery, prescription statins, diabetes medications, blood pressure medications, cardiac bypass surgery, joint replacement surgery, etc. No doubt increasing fitness in the general population would also have a positive effect on medico-legal claims, since some injuries would likely be prevented and recovery from those that occur would be better in a fit population than an unfit one.
Employment-related meniscus tears are among the more common worker’s compensation claims. The reasons are myriad but are influenced by the fact that most people develop degenerative meniscus tears as they age and the mechanism of injury for an acute tear merely involves twisting the knee, which can occur in even the lightest and most sedentary occupations because all workers who are not wheelchair-bound walk which means all workers are at risk of twisting their knee in a slip, trip, or fall at the workplace. Setting aside the possibility that such an event is idiopathic, if a worker seeks medical treatment for knee pain following an industrial event and a meniscus tear is discovered on an MRI the treating physician usually relates the tear to the event. Standard treatment in most such cases is usually surgical excision of the loose or torn meniscal tissue, more commonly known as a meniscectomy. The assumption driving the surgery is that the meniscus tear is causing the knee pain and resecting the tear will eliminate the pain. The problem with this scenario is that most meniscus tears are degenerative and there is no high quality research demonstrating that meniscectomy is an effective treatment for degenerative meniscus tears. In fact, when researchers recently studied the question they found that exercise was equally effective as meniscectomy to treat knee pain in the presence of a degenerative meniscus tear, according to results published in the British Medical Journal (“BMJ”).
In the worker’s compensation setting, the argument is often made that an industrial event extended a preexisting degenerative meniscus tear in order to justify the surgical intervention (and coverage of the procedure under a worker’s compensation insurance policy). The cost of meniscectomies to the worker’s compensation system is substantial. The medical expenses alone are significantly higher for surgery than for conservative care. In addition, meniscectomies often result in some permanent partial disability. For example, a meniscectomy in Wisconsin carries with it a 5% minimum PPD rating to the lower extremity at the level of the knee and under the AMA Guides a meniscectomy typically results in at least a 1% impairment rating. Surgery also typically necessitates a period of temporary total disability in non-sedentary workers. The findings of the BMJ study should give every employer and worker’s compensation insurer pause and an editorial advocating systemic prohibition of using arthroscopy to treat knee pain that appears in the same issue should spur change.
First, a few things about the study itself. The BMJ study is a level 1, properly designed randomized controlled trial. This is the highest category of medical studies and is considered to produce the best and most reliable evidence available. The BMJ study was conducted in Norway and was a randomized control trial with two parallel intervention groups of 70 patients per group. One group received exercise alone and the other group received partial meniscectomy alone. The participants were 35-60 year old persons of both sexes with a 2+ month history of unilateral knee pain without a major trauma but with a verified medial meniscus tear verified on MRI and no worse than grade 2 arthritic changes on x-ray. The study found that there was no difference in outcomes between the two groups at 3 months and 24 months post-intervention. The meniscectomy group reported better function and greater participation in sports and recreation at 12 months post-intervention, but the effect was gone by 24 months. The authors could “not exclude the possibility that the greater placebo effect from surgery on patient outcomes” may have “mask[ed] the ‘real’ difference in treatment between the groups,” which they postulated could explain the temporary effects observed in the meniscectomy group.
More striking even than the study findings is the accompanying editorial. The authors of the editorial call for a systemic level rule to prevent unnecessary knee arthroscopies from being performed to treat knee pain. As they note, in the last decade:
A series of rigorous trials, summarized in two recent reviews and meta-analyses, provide compelling evidence that arthroscopic knee surgery offers little benefit for most patients with knee pain. The latest nail into what should be a sealing coffin appears in a linked paper by Kise and colleagues (doi:10.1136/bmj.i3740): a rigorous comparison between exercise alone and arthroscopic partial meniscectomy alone (without any postoperative rehabilitation) in adults with degenerative meniscus tear. The authors found no between group difference in patient reported function at the two year follow-up…
The editorial authors note there has never been high quality research supporting meniscectomy in an older population with degenerative meniscus tears, but that the procedure was extended to this population based on unverified assumptions:
With no support aside from biological rationale, the indication crept from locked knees in young patients to all patients of all ages with knee pain and meniscus tears of any sort; tears which, on magnetic resonance imaging, have proved poorly associated with symptoms.
The conclusion they reach is both astonishing and harsh:
We are at the point where any careful scrutiny, by, for instance, public health administrators or officials of an insurance company, would conclude that the estimated two million arthroscopic partial meniscectomies undertaken globally each year at a cost of several billion US dollars is potentially nothing but medical waste. Because frontline practitioners and local commissioners have not responded appropriately to the evidence, it follows that system level measures that result in more appropriate use of scarce medical resources are necessary—and perhaps urgently required.
In short, the authors believe the evidence against arthroscopy to treat knee pain is so strong and the evidence for it is so weak that health systems as a whole should stop paying for these procedures. Such a rule would have a significant impact on worker’s compensation claims where meniscectomies are routinely performed to treat degenerative meniscus tears.
Choosing the right IME doctor can be challenging, especially in complex claims or those with unusual injuries. Numerous factors influence the decision-making process. However, two of the most important factors include familiarity with the injury or condition at issue and knowing the precise claims at issue. These factors are particularly important because many injuries or conditions can be treated by different specialists and it can be difficult in these cases to figure out which specialist is truly the most qualified and credible for the claim at hand. In simple terms, merely knowing the diagnosis is not enough.
For example, an orthopedic surgeon may amputate toes in a diabetic foot infection claim, but if the cause of the infection is themain issue an endocrinologist, infectious disease specialist, or podiatrist may be better able to write a detailed, credible report as to what caused the infection. The reason is simple: orthopedic surgeons do not treat diabetic foot problems unless amputation is required. The treatment of diabetes, infection risk, and diabetic foot infection management are handled by other specialists. On the other hand, if permanent impairment is the main issue then an orthopedic surgeon may well be the best expert to use because they are uniquely qualified to evaluate the effects of surgeries they perform.
A similar situation arises in the context of moderate to severe traumatic brain injury. A neurosurgeon will typically treat the initial injury, but once the condition has stabilized and requires no further surgical management care is usually transferred to a rehabilitation specialist (or more than one). Once rehabilitation and recovery are complete, care is transferred again, often to a neurologist and a psychiatrist. In addition, neuropsychologists are often involved in the rehabilitation and recovery process to assess mental functioning. If the main issue in the claim is the extent of permanency and the type and nature of future care, a neurosurgeon would be of limited value. However, if the issue is the appropriateness of care in the critical post-traumatic period, a neurosurgeon would obviously be the most qualified expert. Yet another iteration may involve questions over the extent of mental impairment, in which case a neuropsychologist would be the most qualified expert.
Facial injuries involving the eye can be difficult also. The initial treatment may involve an ophthalmologist and a plastic surgeon. Once the emergency treatment is completed, care may be transferred to a different ophthalmologist for treatment and management of long term vision issues. Severe ocular injuries can precipitate neurological issues as well, especially headaches. Sinus and nasal problems can also be present. In such complicated cases, the actual issues must be examined to assess which experts to use. For example, in a penetrating eye injury where the patient claims he cannot return to work an ophthalmologist may not be the best choice where the failure to return to work is unrelated to vision loss. In penetrating eye injuries, the loss of intraocular pressure can precipitate headaches with position changes. If the claimant was a laborer who routinely has to bend over or look up, a neurologist may very well be the best expert to assess whether the work conditions would in fact precipitate headaches that would prevent the claimant from returning to his employment. Again, knowledge of both the injury and the actual claim being made are necessary to make the best doctor choice.
Choosing the right doctor is often vexing. Making the most informed doctor choice not only requires knowledge of the type of injury or condition, but also the precise issues or claims being made in relation to the injury or condition. To make an informed doctor choice, it is important to recognize that the seemingly obvious specialist might not actually be the best choice depending on what exactly is at issue. Hence, being familiar with both the injury or condition and the precise issues involved in the claim are necessary to make the best doctor choice.
Claims for worker’s compensation benefits or personal injury damages require a health condition and a mechanism of injury that caused it. Too often the connection between the health condition complained of and the alleged injury is weak and unscientific. A large part of the problem is that we don’t perform large-double-blinded prospective studies on what occupational movements, activities, or exposures cause injuries and adverse health conditions. As a result, most medical experts have little academic literature to rely on when determining whether a particular mechanism caused a particular injury or health condition. Instead, most experts rely on their experience and training alone to evaluate causation. In so doing, most experts make logical analyses that would be considered common sense conclusions drawn from the available facts. This is problematic because what we intuitively believe to be correct based on logical analysis is often incorrect.
How do we know that our intuition is often wrong? We know because the medical literature is replete with instances in which commonsense, logical assumptions were proven wrong once they were actually tested. One example is the long-held and erroneous belief that running is bad for one’s knees. For many years, there was near consensus among medical professionals that long distance running would cause arthritic changes in the knees because of the increased load that running placed on them. Logically this makes sense because running does radically increase the load on the knees and many things respond to increased load by wearing faster. A car engine that constantly revs higher than another will wear out faster. Rapid, hard braking wears brake pads faster than gentle braking from slower speeds. The problem is that studies found that long distance running does not cause premature arthritic changes in the knees. How do we know this? Studies have been done which demonstrate that the incidence of osteoarthritis of the knee is the same in long distance runners as it is in non-runners. Commonsense logic was wrong.
The link between consuming butter and heart disease is another example of how commonsense logical analysis and intuition proved to be wrong. We know and have known for a long time that serum cholesterol (the cholesterol in our blood) is associated with a higher incidence of heart disease. What we assumed is that foods high in cholesterol would cause an increase in serum cholesterol. Why did we make this assumption? Because it is logical. We assumed that serum cholesterol had to come from somewhere and the logical source must be our diets. Unfortunately, this assumption was wrong. According to the Scientific Report of the 2015 Dietary Guidelines Advisory Committee (Advisory Report), “Available evidence shows no appreciable relationship between consumption of dietary cholesterol and serum (blood) cholesterol.” A more recent study concluded that butter had no effect on heart disease. So what does cause high cholesterol? According to Dr. Steven Nissen, Chair of Cardiovascular Medicine at the Cleveland Clinic, “Most circulating cholesterol is produced by the liver. Dietary cholesterol accounts for only about 15 to 20 percent of blood cholesterol. Changing the diet typically has only a modest effect on serum cholesterol levels.” The bottom line is that commonsense logic was wrong, again.
The challenge is how to change the way medical experts evaluate medical causation. To the extent that medical literature does exist, it would seem that developing standards consistent with sound scientific evidence is appropriate. For example, “The Twin Study” (subscription required) analyzed degenerative lumbar disc changes among twins with different environmental exposures. The study was multinational and multidisciplinary, taking place at research centers in Canada, Finland, and the United States. The study concluded that,
The once commonly held view that disc degeneration is primarily a result of aging and “wear and tear” from mechanical insults and injuries was not supported by this series of studies. Instead, disc degeneration appears to be determined in great part by genetic influences. Although environmental factors also play a role, it is not primarily through routine physical loading exposures (eg, heavy vs. light physical demands) as once suspected. (Emphasis added)
In essence, the research found that occupational exposure to lifting does not cause lumbar disc degeneration. Nevertheless, medical experts routinely attribute degenerative lumbar disc changes to wear and tear due to an occupational history of heavy lifting. Commonsense logic suggests this should be so, the actual science does not.
Many claims, however, fall outside areas in which there is clear scientific evidence. In these cases, it would seem appropriate to demand medical experts issue opinions that go beyond mere conclusion. For example, in many rotator cuff tear claims there is a significant degenerative component. Frequently the medical experts simply state that the alleged mechanism of injury caused the tear or conversely that the tear is solely related to a preexisting degenerative condition. These opinions are not particularly useful. Instead, one would like to see the medical expert offer an explanation based on how the alleged injury would impact the anatomy of a shoulder with a degenerated rotator cuff. This would ideally involve an analysis of the forces involved and how they would stress the tendon fibers that actually tear. The rotator cuff is made up of four tendons that surround the humeral head. Presumably specific forces to specific parts of the shoulder would be required to cause injury to the different tendons. If the supraspinatus is torn, which is the usual suspect, then it would be helpful to have an explanation of how the alleged injury caused the tear or conversely how the alleged injury could not have caused the tear.
So how do we get such an opinion? The simplest answer is to ask for it. Instead of simply asking whether an alleged injury caused a condition, ask for an explanation as to why the mechanism of injury was sufficient or insufficient to cause the condition, including an explanation of the anatomical forces involved. Not every medical expert will give the best answer, but at least if they are asked for an explanation one will typically be given. Also, it makes sense to ask the expert to identify support for his or her conclusion in the relevant medical literature. This way, we can inject reason into the process instead of dealing purely with assumptions and conclusions.
In many claims, the recorded statement is the first and only time a claims professional has to hear what the claimant has to say about the incident precipitating the claim without the presence of counsel. As such, it provides a unique opportunity to gather information and develop a record of sorts against which the facts of the claim can be judged. Unfortunately, recorded statements are often cursory, covering a checklist of questions without securing much in the way of detail about the incident and the claimant’s level of functioning pre- and post-incident. Part of the reason is the checklist of questions. They are often slavishly adhered to rather than used as a guide for areas that the claims professional wants the claimant to discuss. In addition, the checklist often becomes an unnecessary attentional anchor for the interviewer, causing him to interrupt the claimant and direct her answers toward staying on script. This is problematic because most of the academic literature and the most cutting edge law enforcement practices find that the best form of questioning is open-ended, allowing the person being interviewed to describe things in at most a lightly interrupted narrative form.
Wired Magazine recently published an article on the changes being implemented at the federal level and in some local police departments to the traditional mode of interrogation. The article holds insights for conducting recorded statements. Obviously the stakes are higher in capital criminal cases such as the one profiled in the article, but the lessons apply to all forms of interviewing witnesses. The author reports that a huge problem with modern interviewing is that “standard interrogation technique can be an ineffective tool for gathering lots of useful and accurate information” because many witnesses “clam up.” If the person being interviewed feels like they are being interrogated, they will offer as little information as possible. This is problematic because the purpose of a witness interview, whether of a claimant in a civil case, a suspect in a criminal case, or a third party witness in either case, is to gather as much information as possible. As the article puts it, the more a witness says, “the more that can be checked against the record.”
So how would you go about doing this? It is really quite simple. The gist “is this: If you want accurate information, be as non-accusatorial as possible.” In other words, build rapport with the witness and remember that the purpose of the interview should be “ geared … toward the pursuit of information.” Other interesting findings from current research is that asking witnesses to describe events in reverse chronological order is harder to do when they are lying. It is believed that the increased cognitive load of fabricating a story or facts makes descriptions in reverse chronological order particularly difficult. In addition, when witnesses lie or fabricate they are not able to provide the same level of detail as truth tellers. According to Steven Kleinman, who works with the High Value Detainee Interrogation Group, a joint effort between the FBI, CIA, and Pentagon, “No matter how good the cover story is, it’s not going to be as rich as a real-life story.”
The article explains how the new interrogation techniques were put to use to solve a crime in Los Angeles. In that case, a man, Gabriel Campos-Martinez, was suspected of killing his partner, but the evidence was too circumstantial to allow for charges to be brought against him. Just over two years after the crime was committed, two LA detectives again interviewed Campos-Martinez, this time using non-accusatory, rapport-building interview techniques. As a result, the suspect spent 5 hours with the detectives after telling them he only had a short time to speak with them. It seemed “almost like [the suspect] appreciated the chance to talk. As the hours went on, the conversation started to go in unpredictable directions.” He eventually revealed critical details that ultimately led to charges and his conviction for the murder. During the course of the interrogation, the suspect “started to reminisce” about walks he and his partner used to take in the area where the body was discovered, which was new information. In addition, the suspect described a plant that is used to make herbal tea but in greater quantities can be used to incapacitate, which proved crucial to his conviction.
It is possible for claims professionals to accomplish the same thing when taking recorded statements. Build rapport and let the witness talk. There will always be time for wrap-up questions to ensure that the basic identifying information makes it onto the statement. But instead of going through a checklist from the start, it might be better to ask open-ended questions that let the witness open up. Instead of asking a witness if they have hobbies, which is sort of an antiquated term anyway, ask her what does she like to do? Try having the witness start from a point away from the incident and ask them to describe what happened working backwards. Pay attention to the detail provided. The point is that people like to talk when they don’t feel like they are being interrogated. Build rapport. Don’t accuse. Get to the truth (or ferret out the lie).