Guest Blogger: Dennis Brown, MD
On July 2, 2017, the prestigious “Journal of American Medical Association” (JAMA) published an authoritative medical study regarding radiofrequency denervation (ablation) procedures for chronic low back pain titled "Effect of Radiofrequency Denervation on Pain Intensity Among Patients With Chronic Low Back Pain," which concluded "The findings do not support the use of radiofrequency denervation to treat chronic low back pain from these sources" (facet joints, sacroiliac joints or a combination of facet joints, sacroiliac joints, or intervertebral disks).
It is medically probable radiofrequency denervation is not medically reasonable or necessary for the treatment of chronic low back pain.
Reference: Johan N. S. Juch, MD; Esther T. Maas, PhD; Raymond W. J. G. Ostelo, PT, PhD, et l Effect of Radiofrequency Denervation on Pain Intensity Among Patients With Chronic Low Back Pain The Mint Randomized Clinical Trials, JAMA. 2017;318(1): 68-91.doi:10.1001/jama.2017.7918
Lack of support is the most difficult and critical problem to address because it is often a major factor in an ALJ’s decision that an IME report was not credible. Unfortunately, not all doctors agree on what constitutes adequate support. Thus, the cover letter writer may receive an IME report and conclude that the expert did not support her answers sufficiently, but be faced with a headstrong expert who disagrees. Although difficult, this scenario can be overcome.
First, the IME vendor should work with the writer to explain to the expert the importance of citing relevant evidence, professional experience, and medical literature in the report. The IME vendor should be able to explain to the expert that a conclusory answer without any sort of explanation as to how and why the expert reached the conclusion will not pass muster with the “trier of fact” (ALJ). In truth, experts want to write effective, credible reports because they know that good reports generate more business opportunities. Thus, experts will often be receptive to requests to strengthen their conclusions if the evidence and literature supporting their opinion is obvious and available.
Second, the cover letter writer is typically the person who is most familiar with the claim being addressed, which puts the cover letter writer in the best position to point to the hard evidence and literature that supports the expert’s conclusions. While no IME vendor will tell an expert what to write or what evidence to use, the IME vendor should convey the writer’s concerns to the expert. This would include asking the expert to consider specific relevant evidence or literature in their answers. Ultimately what the cover letter writer and the expert consider to be important evidence may differ, but in cases where the expert’s answer is wholly unsupported they are likely to be receptive to requests to clarify or amplify if the cover letter writer can explain why the answer is problematic unless the expert provides additional support.
No IME vendor can guarantee a perfect report. However, we should expect responsive, consistent, and well-supported IME reports. In judging the report, we should not ask whether the report is favorable but instead whether the expert reached a reasonable and well-supported conclusion from the available evidence. If they did not, your IME vendor can and should work with you to repair deficiencies in the report. Ultimately, those requesting IME reports have the right to expect to receive a reasonable and credible report based on the evidence made available to the expert.
Do you have any ideas on how to strengthen the cover letter so these types of problems are minimized?
Inconsistent responses to your questions in IME reports can sometimes be tricky if the responses do not directly contradict one another. However, if an expert offers two opinions that directly contradict one another, you should expect your IME vendor’s quality assurance editors to catch the issue and resolve it before it gets to you. Occasionally, direct contradictions slip past even the most detail-oriented editors (usually due to report length). In such cases, the expert will sometimes correct direct contradictions in their review of the report. Direct contradictions usually result from the expert misspeaking while dictating the report and are easily fixed.
The harder inconsistency issues arise when the expert doesn’t directly contradict themselves, but provides more than one opinion on the same issue and the statements are ambiguous or vague. Often, the ambiguity or vagueness arises between statements in the general impression section of the report and the specific questions section. A somewhat frequent example is when the expert states in the general impression section that the examinee continues to suffer from subjective complaints that, in the absence of evidence to the contrary, relate to the injury or exposure in question. The expert then states the examinee sustained no permanency in answer to a specific question. The expert may see no inconsistency in these answers, but the cover letter writer undoubtedly will. In cases where the doctor is following the AMA Guides, this may not be an issue because the Guides explicitly allow for zero permanent impairment in cases where there is no objective evidence of injury and only subjective complaints. And usually this is what the expert means when stating subjective complaints relate to the accident or exposure but no permanency resulted.
In these more difficult cases, the IME vendor’s Quality Assurance editors should make every effort to pick up on such inconsistencies and go back to the expert to obtain an explanation of their position and provide clarity, but these are more difficult to catch than direct contradictions. In such cases, it is certainly fair to point out the ambiguity to the doctor and to ask for clarification on their opinion.
The expert in our example could clarify their opinion by stating something to the effect of, “While the examinee continues to register subjective complaints, there is no objective evidence of injury or impairment; hence, it is my opinion that the examinee has sustained no permanent impairment/partial disability as a result of the accident in question.”
Have you encountered these types of inconsistencies in IME reports and if so how did you resolve them?
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:
Accident related variables:
Post-accident predictors are:
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?