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What is it about shoulders?  They seem to cause an inordinate amount of problems, especially when the rotator cuff is involved.  And invariably, there is a question as to whether a shoulder claim involves an acute injury, an acute aggravation of a preexisting condition, an occupational injury, or the mere manifestation of a preexisting condition.  One of the biggest challenges in claims is determining whether and to what extent a shoulder condition is work-related.  Unfortunately, this task is often difficult for physicians too.

The hallmark of an acute rotator cuff injury is an asymptomatic shoulder, a discernible traumatic event, and immediate pain and weakness.  Unfortunately, this type of presentation accounts for less than 10% of all rotator cuff tears according to some literature.  In addition, the medical literature suggests that acute rotator cuff tears are underdiagnosed in emergency departments and often attributed to tendonitis, bursitis, arthritis, or some combination of all three.  To further complicate matters, many other conditions of the shoulder, cervical spine, and peripheral nerve system can produce symptoms that are similar to symptoms occurring in rotator cuff tears.  And finally, a somewhat sizable percentage of the population has asymptomatic rotator cuff tears which makes the determination of the etiology of the cuff defect difficult to determine.

The best way to assess whether a rotator cuff tear is acute or traumatic is with diagnostic imaging.  Numerous studies have found that mid-substance tears are more likely to be acute than insertional tears.  The presence of swelling and joint fluid or a hematoma also suggest that a tear is acute.  To the contrary, the absence of joint and bursal fluid suggests a chronic tear.  The presence of fatty infiltration and the degree of rotator cuff atrophy are also useful findings to assess the chronicity of the tear.  Interestingly, at least one study found that the “injury mechanism and the activity at the moment of injury did not correlate with the presence of a rotator cuff lesion,” but also found “a strong age correlation, with a prevalence of RCTs above 50% in patients aged over 50 years…” This study suggests a shockingly high rate of rotator cuff injury resulting from shoulder trauma in persons over 50. 

The strong correlation between age and rotator cuff tear caused one study’s authors to postulate that “it is even likely that there [is] no such thing as an acute cuff tear without some previous tendon degeneration.”  The authors of another study address the complicated relationship between the chronicity and symptomatic nature of rotator cuff tears and note that the “duration of symptoms does not necessarily reflect the duration a patient has had a rotator cuff tear…  It is not understood why full-thickness tears become symptomatic in some individuals and not others.”  How then, can any physician determine to a reasonable degree of medical certainty if a particular rotator cuff tear relates to the patient’s employment in the absence of diagnostic imaging that suggests a tear is acute?

In truth, the answer is that any physician who attributes a symptomatic rotator cuff tear to a workplace injury is most likely engaging in speculation if there is no acute traumatic event and no diagnostic imaging evidence demonstrating that the tear is acute.  This doesn’t mean that the tear can’t be acute and work-related, simply that there is no reasonable basis for a physician to determine the exact etiology of the tear to a reasonable degree of medical certainty.  In handling claims, it is important to recognize these situations and pose the question to the IME doctor directly as to there is any way, given the current state of evidence-based medicine, to determine what caused a rotator cuff tear (or caused it to become symptomatic) to a reasonable degree of medical certainty in the absence of an acute traumatic event, diagnostic imaging evidence that a tear is acute, or occupational risk factors such as repetitive overhead work.  If there are no specific risk factors, no precipitating injury, and no diagnostic imaging evidence of an acute tear, the answer should always be “no.”

From a claims perspective, there are several useful things that can be gleaned from the medical literature addressing rotator cuff conditions.  First, a definitive assessment of causation in the absence of a discrete, acute precipitating event with imaging evidence demonstrating the presence of an acute tear or an occupational risk factor should be considered impossible.  Of course treating surgeons will attempt to relate rotator cuff conditions to workplace injuries that do not meet the above criteria, but it is incumbent from a claims perspective that the IME physician points to the relevant medical literature and explains why it is not possible, to a reasonable degree of medical certainty, to determine the etiology of a rotator cuff tear in the absence of the above criteria. 

Second, it should not come as a surprise if an employee over 40 who says they hurt their shoulder and is told that it is just a strain or tendinitis when they go the ER later discovers she has a rotator cuff tear.  The medical literature suggests that clinical examination in the emergency setting underestimate the presence of rotator cuff tears.  The relevant study found that in the patient population complaining of an acute shoulder injury who have an inability to perform active abduction above 90° and normal radiographs, more than 50% will have rotator cuff tears.  In establishing reserves, if the medical records show normal radiographs coupled with an inability to actively abduct the shoulder above 90°, it may be wise to consider the likelihood of a rotator cuff tear requiring surgical intervention to be 50%. 

Finally, knowing the different shoulder, neck, and peripheral nerve conditions that have similar symptom constellations to rotator cuff tear will help to assess what the likely diagnosis will be based on the clinical history, examination, and positive findings.  Thus, a shoulder complaint that can be localized to the acromioclavicular joint, is more likely to be a shoulder separation or acromioclavicular arthritis than a rotator cuff tear.  In another example, a complaint of gradual onset of shoulder pain with weakness that is especially noticeable during sleeping hours is likely to be a chronic rotator cuff tear or advanced impingement syndrome than an acute rotator cuff injury.

The bottom line is that shoulder injuries are often difficult claims, especially when they involve rotator cuffs.  Knowing the medical literature about how rotator cuff tears occur and what suggests acute versus chronic tears can help guide the claims analysis.  To learn more about the diagnosis, management, and prognosis of rotator cuff tears, join us on February 26, 2015 for the Medical Systems Advanced Medical Topics in Worker’s Compensation in Brookfield, Wisconsin at which Dr. Bartlett will give an in-depth presentation on acute shoulder injuries.  Claim handlers and legal professionals alike will gain valuable information on what claims will likely be compensable and what medical information can be used to defend against those which should not be compensable.

The employee is a delivery driver and is in a rollover accident.  Miraculously she suffers only minor injuries in the crash.  However, she hits the inside part of her right leg near her knee in the rollover and now, 18 months after the rollover, she still can’t go back to regular duty because she has a permanent foot drop.  Another employee gets his hand stuck in the machine he works on.  The broken bones heal and the tendons are repaired.  Unfortunately, it has been difficult returning him to work because he complains of burning pain every time he touches anything with the injured hand and his doctor has permanently restricted him to one-handed work.

What do these claims have in common?  Peripheral nerve injuries.  Peripheral nerve injuries are complicated, slow-healing, and often result in permanency.  Why are they so complicated and what you can do to make peripheral nerve injury claims go as smoothly as possible?  In this short primer, we hope to answer some of these questions.

To understand why nerve injuries are so challenging, it helps to know some basic nerve physiology.  Nerve cells (neurons) are essentially made up of little factories (axons) that produce chemicals (neurotransmitters) which mediate the electrical signals each nerve cell sends (axon) and receives (dendrite).  Nerve cells are not physically connected to each other and must send the electrical signals across a gap (synapse) to the next nerve cell (dendrite).  The axon of each nerve cell is encased in fatty cells (myelin) that increase the rate at which electrical signals are transmitted between nerve cells.  Branching extensions of the nerve cells (dendrites) receive the electrical signal from the axon of an adjacent nerve cell and transmit the signal to the axon for further transmission.  A failure of any part of this process will disrupt the nerve cell’s functioning and cause sensory or motor problems or both.

Unfortunately, nerve injuries take a long time to heal and often heal poorly because of the complex, compound, and disconnected nature of nerve cells.  Nerve injuries are categorized according to the degree to which the nerve cells are compromised. There are two classification systems – one use three categories and one using six categories.  This post will use the simpler, three part system because it is more concise (the six part system breaks second degree injuries into four subcategories based on the seriousness of the injury).  In first degree injuries, or neurapraxia, the nerve remains intact but its signaling ability is damaged.    Ordinarily persons suffering first degree injuries recover completely without residual sensory or motor impairment.  In second degree injuries, or axonotmesis, the axon is damaged but the surrounding connective tissues remain intact.  Recovery takes longer than in first degree injuries, but complete recovery without residual sensory or motor impairment is still the general rule.  In third degree injuries, or neurotmesis, both the axon and the surrounding connective tissue are damaged.  Recovery is exceptionally long in third degree injuries and typically results in some residual sensory or motor impairment.  In addition, surgery is often necessary to restore function in third degree injuries.  The alternate classification system essentially divides the axonotmesis category into four parts based on the severity of the insult to the axon. 

We will focus on third degree injuries because they are the most difficult to treat and usually result in permanency.  In a third degree nerve injury both the axon and supporting connective tissue are injured.  This means that the nerve cell must regenerate both the axon and its supporting structure.  The regeneration is complicated by a post-injury process called Wallerian degeneration.  Approximately 24-36 hours after the initial injury, the axonal injury disintegrates, the myelin sheath degrades, and macrophages and Schwann cells remove the cellular debris from the injury.  In third degree injuries, the supporting connective tissue (endoneurium), which is a tubular structure containing individual axonal fibers, is severed.  This causes problems because regenerating axonal fibers may meander into surrounding tissue or inappropriate neural tubes, thus failing to reinnervate their proper end organs.  The resulting loss of function is analogous to what would happen in a marionette show if the strings to the marionette controllers are cut and then randomly reattached, sometimes to the correct controller, sometimes to the incorrect controller.  Nothing really works right.

When nerve cells start regenerating after Wallerian degeneration, the process is slow.  Within four days of the injury, the injured axons start sending sprouts toward the neurolemma (tube comprised of Schwann cells surrounding the axon).  Schwann cells produce growth factors that attract the sprouts.  If a sprout reaches a neurolemma, it grows into the tube and advances approximately 1 mm per day until it reaches and reinnervates the target tissue.  Surgery may be necessary to guide the sprouts into the neurolemma when the gap is too wide or scar tissue has formed.  This regeneration and repair phase can last many months.  Human peripheral neurons are capable of initiating a regenerative response for at least 12 months after an injury.  Hence, it can be well after a year from the date of injury before a treating physician or an IME doctor will be able to place a patient who sustained a peripheral nerve injury at maximum medical improvement.

Further complicating matters, third degree injuries do not usually heal completely.  Several factors can contribute to an incomplete recovery.  First, intramuscular fibrosis (scarring) may hinder the muscle contraction a nerve impulse produces.  Erroneous cross-reinnervation may result in impaired functioning (the marionettes with crossed strings).  The imperfect regeneration also results in sensory deficits, especially in proprioception (how the body perceives itself in space), that rarely go away completely.  Even in first and second degree nerve injuries, sensory recovery often takes 6-12 months, so determining whether and to what degree permanent sensory impairment has resulted can take a year or more post-injury. 

The site of the injury itself and the regeneration process can result in the development of neuromas or gliomas, which can increase pain and disability.  If surgical realignment or stump approximation does not occur, the migration of axoplasm may form a neuroma, which is an errant scaffolding (structure) for axonal migration.  Essentially, the strands of axonal fibers get tangled as they seek the distal nerve stump, forming a ball of connective tissue and axonal fibers.  While some neuromas cause no problems, many are painful and impair functioning. 

Treatment and rehabilitation following peripheral nerve injury present their own challenges.  For example, in nerve injuries with extensive damage a graft may be needed to connect the two ends of viable nerve.  Using a graft will leave the patient with a large area of numbness that the donor nerve previously innervated.  The size of this area of numbness will shrink over time, but will not go completely away resulting in residual permanency for loss of sensation at a site remote from the injury.  In addition, nerve regeneration itself can be uncomfortable and accompanied by paresthesia (pins and needles) as the target tissue is reinnervated. 

Some of the direct consequences of peripheral nerve injury included:

  • Pain (ranging from tingling to intense, burning pain)
  • Numbness and altered sensation
  • Muscle weakness
  • Loss of function
  • Loss of active motion
  • Joint stiffness
  • Emotional distress

Unfortunately neuropathic pain is not well-understood and is difficult to treat.  Anticonvulsants and tricyclic antidepressants are the most popular drugs for neuropathic pain.  “Complete relief is very difficult and only 40-60% of patients achieve partial relief.”  The persistence and refractory nature of neuropathic pain causes psychological distress and is difficult to understand for persons who are accustomed to the way more typical musculoskeletal pain responds to conventional analgesic medications.  From a claims standpoint, neuropathic pain presents great impediments to returning claimants to work because claimants are conditioned to equate pain with physical disability and loss of function, but neuropathic pain frequently does not impair function and is only disabling from a psychological perspective (not to diminish the psychological distress that neuropathic pain causes).  It is critical for return to work efforts that the treating physicians and occupational/physical therapists convey the distinction between neuropathic and musculoskeletal pain to the claimant to avoid protracted disability beyond the period of actual physical impairment caused by the injury.

Weakness and loss of function are common complications of third degree nerve injuries because even in the best case scenario nerve regeneration is imperfect.  As noted above, weakness and loss of function result from many complicating factors including slow regrowth causing irreparable muscle atrophy, imperfect regrowth resulting in loss of function, and the presence of scar tissue in the muscle preventing normal contracture.  This presents challenges to the claim handler who must attempt to gauge return to work, appropriate rehabilitation, and permanent partial disability.  EMG can determine the rate at which nerves are growing and muscles are reinnervating, but functional use/restoration will lag behind reinnervation.  The reinnervated muscles have been without innervation for a time, so the body must relearn how to use the muscles again which takes time.  In addition, the muscles are usually reinnervated imperfectly, so the body is not only relearning how to use the newly innervated muscles, but it is also learning a new neural pattern of action.  The body cannot rely on muscle memory to speed the relearning process because the newly configured reinnervation is different than it was before, meaning muscle memory itself is altered or lost. 

Some studies have found that conservative therapies can be used alone or in conjunction with surgery to help restore function in peripheral nerve injuries.  Laser phototherapy “maintains functional activity of the injured nerve for a long period, decreases scar tissue formation at the injury site, decreases degeneration in corresponding motor neurons of the spinal cord and significantly increases axonal growth and myelinization.”  In addition, acupuncture has been found to be an effective treatment modality in improving the rate of recovery.  In managing nerve injury claims, it is important to know what therapies work and what do not.  Effective claim handlers should be conversant in treatment modalities that can hasten recovery and improve ultimate function so they can ensure patients with peripheral nerve injuries receive the treatment that will get them to an end of healing the fastest and will minimize the inevitable permanent partial disability rating.

Even with effective conservative treatment modalities such as laser phototherapy or acupuncture, recovering function and building strength in peripheral nerve injuries are long and arduous processes that require skilled therapy and a motivated patient.  If either variable is lacking, recovery is likely to be compromised.  A supreme difficulty for claim handlers is managing the nerve injury case where either the employee lacks motivation or their choice of treating therapist appears to be wanting in some fashion.  Early engagement in the claim can help foster a “can do” attitude in the injured worker and a positive relationship with the therapist so that he or she pushes the worker and provides the highest and best evidence-supported rehabilitative care.

The Medical Systems, Inc. “Advanced Topics in Worker’s Compensation Symposium” will address these and other issues related to severe, acute industrial injuries to the hand and wrist with Dr. Jan Bax.  Join us to learn why severe hand and wrist injuries present such difficult challenges, what the best medical and surgical treatments of these injuries are, and what strategies you can utilize to help claimants get the best physical recovery and (in the process) lower your costs. 

We previously began a series on how to improve decision making while managing claims.  The series was based on a paper by Jeffrey Brewer.  In the paper, Brewer identifies 10 strategies for improving decision making:

  1. Consciously raise the questions, “What do we know…?  How do we know…?  Why do we accept or believe…?  What is the evidence for…?” when studying or approaching a problem.
  2. Be clearly and explicitly aware of gaps in available information.  Recognize when a conclusion is reached or a decision is made in absence of complete information and be able to tolerate the ambiguity and uncertainty (which can be painful in the medico-legal-claims environment where the goal is total predictability).  Recognize when one is taking something on faith without having examined he “How do we know…? Why do we believe…?” questions.
  3. Discriminate between observation and inference, between established fact and subsequent conjecture.
  4. Recognize that words are symbols of ideas and not the ideas themselves.  Recognize the necessity of using only words of prior definition, rooted in shared experience, in forming a new definition and in avoiding being misled by technical jargon.
  5. Probe for assumptions (particularly the implicit, unarticulated assumptions) behind a line of reason.
  6. Draw inferences from data, observations, or other evidence and recognize when firm inferences cannot be drawn.
  7. Perform hypothetico-deductive reasoning, that is, given a particular situation, apply relevant knowledge of principles and constraints and visualize, in the abstract, the plausible outcomes that might result from various changes one can imagine being imposed on the system.
  8. Discriminate between inductive and deductive reasoning; that is, be aware when an argument is being made from the particular to the general or from the general to the particular.
  9. Test one’s own line of reasoning for internal consistency and thus develop intellectual self-reliance.
  10. Develop self-consciousness concerning one’s own thinking and reasoning process.

Prior entries addressed strategies 1-6.  This entry will examine Brewer’s seventh strategy for improving decision making:

Perform hypothetico-deductive reasoning, that is, given a particular situation, apply relevant knowledge of principles and constraints and visualize, in the abstract, the plausible outcomes that might result from various changes one can imagine being imposed on the system.

In this directive, Brewer challenges us to remove emotion and bias when we examine claims.  It is easy to make assumptions based on first impressions and intuitions when you first receive a claim.  Hence, one may think a claim is bogus or fraudulent because of the claimant’s long history of unwitnessed soft tissue injury claims instead of analyzing the claim and what the likely outcomes will be based on the available evidence.  The claimant’s history of making dubious claims is relevant, but focusing on that history without first examining the available objective facts and the inferences to be drawn from them would be a mistake.  The claimant’s history impacts her credibility; the claimant’s credibility impacts the likelihood of the claimant succeeding at hearing or trial, which is nothing more than a probability function that helps determine the dollar value of the claim.  Even if evidence of actual fraud arises, the information will reduce the claim to a zero or negative value.  [By negative value I mean that the claimant could owe penalties or restitution that would inure to the benefit of the employer or insurance carrier.]  Regardless, even in a case of outright and uncontested fraud, the ultimate effect is an economic one despite the moral outrage one may personally feel about the claimant’s fraudulent (and probably criminal) behavior.

If we cannot separate our personal feelings about a claim or a claimant from our analysis of the claim, we are likely to make poor decisions regarding both the value of the claim and how the claim should be managed.  For example, in our fictitious claimant with a long history of dubious claims, we may be inclined to put more resources into surveillance than the facts and exposure on the claim would otherwise suggest is appropriate.  Also, we may be prone to understate the claim’s value because we are likely to transfer our suspicion into our calculation of the exposure and our likelihood of successfully defending the claim at hearing or trial.  In both the management and valuation of the claim, we may potentially set ourselves up for an unpleasant surprise if we judge a claim based on our visceral response to the claimant’s history rather than the actual demonstrative evidence.

A better way to address claims is to run it through “hypothetico-deductive reasoning” to visualize the possible outcomes based on the actual demonstrative evidence.  This process of analysis has the virtue of forcing us to consider possible outcomes that may run counter to our emotions and intuitions (which are unlikely to be based on the actual demonstrative evidence before us).  The process of dissociating ourselves emotionally from claims to engage in this reasoning process helps ensure that the decisions we are making are based on objective evidence and not on unsupported evidence or personal bias.

Let’s consider an example based on the above discussion.  Let’s say Hank has worked for the Acme Corporation for 22 years assembling road runner retention and destruction devices for a certain loyal, if misguided, customer who happens to be a member of the species canis latrans, more commonly known as a coyote.  In 13 of his 22 years at Acme, Hank has made a worker’s compensation claim.  Remarkably, in 8 of the 13 claim years Hank suffered an unwitnessed soft tissue injury within weeks of the opening of gun deer hunting season.  (The Acme Corporation happens to be located in Wisconsin where some consider the opening of gun season to be a bona fide sacred holiday).  In 4 of the remaining 5 claim years, Hank suffered unwitnessed soft tissue injuries in suspiciously close proximity to various legally recognized holidays.  In short, Hank and his claim history are sources of enormous frustration for his employer who rightfully regards the claims with more than a modicum of suspicion. 

Now entering his 23rd year of service for the Acme Corporation, Hank claims to have injured his shoulder assembling a pair of roller skates that are fitted with expandable jet engines for the misguided coyote.  In what is a running joke among the human resources and risk management departments, the injury occurred while Hank was working alone and a mere 3 days before the opening of gun hunting season, during which Hank has neglected to take any vacation days.  Aside from rolling eyes and jokes at Hank’s expense, the employer is sincerely and understandably frustrated with the amount that the claim will cost the company.    Accordingly, they have communicated their suspicion regarding the veracity of this claim to their insurer.  Such is the employer’s level of frustration that the employer has demanded that their insurer take a scorched earth policy in investigating and, they have no doubt, in denying and subsequently litigating the claim.  Included in this demand is the employer’s “suggestion” that surveillance be performed.

The claims handler assigned to the case reviews Hank’s claims history and discusses the current claim with the employer and, understandably, is left with the distinct impression that the claim is suspicious at best.  Based on the information from the employer, the claims handler is inclined to believe that Hank is undoubtedly faking the injury to get off work for deer hunting season and that she should arrange, post haste, for surveillance to catch him enjoying his worker’s compensation-funded vacation. 

However, the claims handler has additional information available at the time she ordered surveillance.  First, the employer had a physical demands analysis conducted on the job Hank was performing when he claims to have injured his shoulder.  The occupational medicine specialist performing the analysis concluded that the job Hank was performing put employees at a moderate-to-high risk of sustaining shoulder injuries because of the combination of the forces involved and the awkward, overhead positioning.  Second, the injury report documents that Hank reported the injury two thirds of the way through his shift on a Wednesday, that he reported the injury immediately, and that he went to the emergency room immediately after reporting the injury. 

At this point, if we apply hypothetico-deductive reasoning to the available facts we have essentially two likely scenarios.  First, Hank’s claims history suggests that he may be using an unwitnessed “accident” to get time off from work with TTD benefits to go deer hunting.  Second, the physical demands analysis, the fact that it occurred mid-shift/mid-week, Hank’s prompt reporting, and Hank’s prompt treatment suggest that perhaps the claimed injury may be legitimate.  Under the principles of hypothetico-deductive reasoning, we should at this point consider what information we would need to make one scenario more plausible than the other.

We know that Hank went to the emergency room.  We should find out, if possible, what diagnostic tests were done, the results of the physical examination, whether a definitive diagnosis of an objective injury was established, whether the diagnosis was wholly based on subjective complaints, etc.  We would also want to know if other employees suffered similar injuries doing the same or similar jobs.  We should interview Hank before conducting surveillance.  Perhaps his claims history suggests that he has not been credible in the past, but we want to base our judgment on present information.  We would want to know how he described the incident he claims caused an injury.  We would want to know whether the incident was acute, definable, and resulted in immediate pain versus a more nebulous scenario in which pain arose gradually and was not attributed to a specific motion or incident.  We would want to know what the emergency room doctor or PA told him was the diagnosis.  We would want to ask him about his deer hunting plans.

Let’s start with the emergency room visit.  If the diagnosis is shoulder instability/subluxation (also known as a partial dislocation) based on x-ray evidence, this would probably trump any suspicions we might have based on his prior claims history.  On the other hand, normal imaging studies and a shoulder strain diagnosis based wholly on subjective complaints would bolster our suspicion that Hank is acting consistently with his prior questionable claim history.  The same analysis would apply to the other pieces of information obtained in the investigation.  Our gut instinct might tell us the Hank or any other employee is manipulating the system and fabricating an injury, but we should test our assumptions and instincts using hypothetico-deductive reasoning so that we engage in the most thorough investigation possible, are unsurprised when the investigation follows a plausible path (even if it conflicts with our gut instinct), and make our claims decisions based on reason rather than emotion.  In this way, we can make the best decisions when managing claims, even if that decision is at odds with our gut.

On a related note, one of Hank’s co-workers completed the roller skates with the expandable jet engines.  The roller skates were successfully shipped to the coyote in an otherwise nondescript wood box stamped all over with “Acme Corporation” in bright red letters.  Fortunately for the coyote, the skates worked precisely as expected.  After hiding behind a large cactus conveniently located next to a long stretch of single lane highway in Monument Valley, the coyote heard the approaching “Beep, beep” of his longtime avian prey and foe.  As the roadrunner sped by, the coyote activated the jets and took off with remarkable alacrity after the bird.  Unsurprisingly, the jet-powered roller skates soon brought coyote even with and then past the roadrunner who, in typical form, gave out a nonplussed “Beep, beep” as the coyote wooshed by. 

The coyote realized too late his error in not requesting from Acme Corporation that some sort of braking mechanism be added to the skates/jet engines.  Specifically, the immense power and speed of the jet-powered skates propelled him the entire length of the straightaway and quickly brought him to a 90 degree turn in the road at the apex of which stood the rock face of a mesa.  With roller skate wheels lacking the necessary friction coefficient to execute the turn and 375 miles an hour, the coyote surrendered himself to inevitability with a resigned and slightly plaintive look, and struck the rock face with a “poof,” causing a rather large cloud of dust to appear.  Miraculously, coyote walked away from the crash.  He had, however, reached a breaking point.  Instead of contacting Acme Corporation for a new and ridiculous contraption for catching the roadrunner, he contacted a products liability attorney in Phoenix…

1/5/2015 in Blog Categories, News

Christopher Tidball has a good piece at on strategies to curb the rising cost of bodily injury claims.  As Tidball notes, bodily injury claims continue to rise at rates faster than inflation.  He focuses on taking proactive steps on the front end of claims to ensure that a complete investigation is performed so that damages do not get out of hand without the claims professional’s awareness.  A few suggestions are particularly useful as these investigation techniques sometimes fall under the radar:

  • Was the claimant indexed? Are there any hints of prior claims?
  • Was a background check run to identify marriages, known associates, criminal history, professional licensure and assets completed?
  • Were state licensure databases checked for the treating medical providers and attorney?

Perhaps the most useful suggestion is to pay exceptionally close attention to the actual medical bills.  Specifically, Tidball notes that coding is frequently used to increase reimbursement.  In a telling example of how coding can be manipulated to drive up costs,

Consider a basic lumber MRI with and without contrast. A provider may bill 72148 and 72149, which would be appropriate for these as individual diagnostic tests. However, when they are conducted together, the appropriate code should be 72158, which is the bundled code [and will result in a lower overall bill].  (Parenthetical and emphasis added).

In addition, Tidball reports that using fee schedules or benchmarks to evaluation medical bills will help to contain costs and keep bodily injury expenses reasonable and under control.   

The article is short, but provides some useful strategies for controlling costs in bodily injury claims.  As is the case with most claims management, the key is to get in front of the claim from the beginning.  Conducting thorough background checks on all parties involved and carefully examining billing codes and reimbursement rates are some strategies that will help claims professionals get in front and stay in front.  

A recent development finds an alternative to postoperative pain management in knee replacement surgery that appears to offer more effective pain relief and potentially speedier recovery.  Researchers found that when they injected “a newer long-acting numbing medicine called liposomal bupivacaine into the tissue surrounding the knee during surgery…[p]atients had pain relief for up to two days after surgery and better knee function compared with the traditional method."  One of the study’s authors noted that “many patients were able to walk comfortably within hours after surgery.”

It is estimated that more than half of American adults diagnosed with knee arthritis will have a knee replacement at some point.  Given the prevalence of knee replacement surgery both in the general patient and worker’s compensation patient populations, any development that can improve pain relief and increase early knee function could have a profound impact.  Prescription pain reliever abuse continues to vex society and intraoperative techniques that can reduce the need for postoperative narcotic pain relief can only help the problem.  In addition, faster restoration of knee function has the potential to speed rehabilitation and end of healing.  If this new technique fulfills its early promise, it could have a significant and positive effect on reducing costs and recovery time of knee replacements.  In the worker’s compensation setting, this would be a welcome development.

Andreas Goebel, a lecturer in molecular and clinical pharmacology at the University of Liverpool, has an article at The Conversation about an exciting development in the understanding of how chronic pain works, which offers possible insight into treating Complex Regional Pain Syndrome (“CRPS”), among other chronic pain conditions.  Historically, CRPS has been considered primarily a brain problem.  The article points out that recent research suggests autoantibodies are implicated in CRPS by “binding to peripheral tissues, prompting sensory nerves to misfire.”  The working theory is that trauma, even minor trauma, induces inflammation which causes the binding/misfiring sequence and this in turn causes the central nervous system to become “wound up.”  Once the central nervous system is wound up, it malfunctions, causing the unusual and often intractable symptoms of CRPS.  As Goebel reports, the discovery of autoantibodies’ role in pain development is important because “there are treatment methods … designed to reduce or remove antibodies,” which may well prove effective in treating CRPS, especially if treatment is initiated early in the progression of the disease.  These findings could prove important as claims involving CRPS typically have high disability and medical expenses and are difficult to process and close in a timely manner.  Any effective treatment options would have the potential to change CRPS claims processing radically for the better.

Too often we associate health and well-being with physical, or bodily, health, forgetting that we are creatures of mind.  In many ways our mental health and well-being are more important than our physical health.  Not long ago we reported on research demonstrating that well-being was more important in predicting workplace absence than physical health.  Now Employers Health, an Ohio-based employer coalition,has data demonstrating just how significant mental health and well-being is to the workplace:  2 in 5 U.S. worker’s report missing work due to depression.  Each episode costs employers an average of 10 workdays due to depression.  Medical researchers estimate that depression costs employers $100 billion annually, including $44 billion in lost productivity.  This really is a staggering figure when one considers that the total costs to employers related to musculoskeletal disease has been estimated to be approximately $130 billion.  

Of course the million, or in this case, billion dollar question is what, if anything, can employers do to lower the costs of employee depression?  Most importantly, research “suggests every one dollar invested by employers in enhanced depression care yields approximately three dollars for the company in the form of productivity gains by employees.”  Hence, employers will likely reap economic benefit from ensuring that employees have access to adequate mental health care and support.  In addition, mental health diagnoses, including depression, continue to carry a stigma that makes it harder for many employees to admit when they are having a problem and to seek appropriate treatment, which in turn affects performance negatively and leads to workplace absences.  Employers can, and many do, have proactive programs to ensure that employees are aware of the confidential support services available to them and that employees understand that there is no stigma attached to using such support services.   Continuing to promote the psychological health of employees and to publicize the programs available to help employees maintain their psychological well-being can go a long way to reducing the stigma of mental health issues and reduce the associated costs for employers.

Yet another reason to quit smoking:  smokers are three times more likely to suffer chronic back pain than non-smokers (subscription required), according to Northwestern University Feinberg Medical School researchers.  Interestingly, the researchers found the link between smoking and increased back pain is in the brain and not the back.  The lead author of the study noted that smoking “affects the way the brain responds to back pain and seems to make individuals less resilient to an episode of pain.”  Researchers found that two areas of the brain are critical in to developing chronic pain (nucleus accumbens and medial prefrontal cortex, NAc-mPFC).  As researchers reported, “That circuit was very strong and active in the brains of smokers … but we saw a dramatic drop in this circuit's activity in smokers who … quit smoking during the study, so when they stopped smoking, their vulnerably to chronic pain also decreased.”   

Smoking is frequently a vexing component of claims involving back problems.  We know smoking can predispose persons to back problems and significantly reduces the likelihood that back surgery will succeed.  This study demonstrates that smoking also changes the way the brain behaves, which appears to make the physical problems worse.  Claim handlers and medical professionals should exercise whatever power they have to convince persons with back problems or injuries to quit smoking immediately.  While smoking is a personal choice, worker’s compensation premiums should not underwrite the costs of that choice when, for example, a minor back strain becomes chronic, intractable, and expensive to treat because of a person's decision to smoke.    

Medical News Today reports on an interesting development in treatment of noise-induced hearing loss.  Researchers from the University of Michigan and Harvard Medical School used gene therapy to reverse partial hearing loss in mice.  The mice’s genes were manipulated to increase production of a protein (NT3) necessary to keep the connection between the ear’s hair cells and the nerve cells that communicate with the brain “super-fast,” also called a “ribbon synapse.”  Exposure to noise and normal aging can damage the ribbon synapse, leading to hearing loss.  By increasing production of the protein NT3, researchers were able to repair damage to ribbon synapses and restore hearing.

This is exciting news for anyone handling worker’s compensation claims because hearing loss claims plague myriad employers.  Researchers noted that rather than pursuing gene therapy in human subjects, the most likely way to increase production of NT3 in humans would be through the use of drugs, a number of which researchers have already identified as candidates.  From a worker’s compensation perspective, the possibility of reversing hearing loss would represent a substantial development in what has previously been a permanent condition manageable only through the use of hearing aids.  However, the use of pharmaceuticals to treat hearing loss would have costs.  How substantial those would be is impossible to guess.  Regardless, it is worth monitoring the research to see if the same finding can be reproduced in human subjects.  

Pain is a difficult and an amorphous concept.  The most common understanding of pain is what we feel when our nociceptors are stimulated.  A nociceptor is a receptor on a sensory nerve that responds to damaging or potentially damaging stimuli and sends a signal to the brain that is interpreted as pain.  When a child falls down and is asked, “does it hurt?” they are referring to nociception.  One of the problems we encounter in relation to pain is that not everything that we might classify or categorize as “pain” is wholly or even partially related to nociception.  Grief, for example, can be painful but obviously does not implicate nociception, despite the fact that psychic pain can be described in somatic terms or be physically felt or manifested.

The problem with pain is that we have a medical model for addressing concerns related to the body that tends to subsume everything suboptimal as pathological.  One of the tenets of the medical model is that a certain level of physical function is optimal and that everything that is not optimal is somehow pathological and amenable to cure.  This idea ignores the reality of physical diversity and can turn normal human experience into a medical condition to be treated rather than a normal aspect of life to be lived through or with.  The physical changes that occur with aging are a good example of how we medicalize normal human development and attempt to “cure” that which is not pathological.  As a culture, we seem to have fallen into the trap of thinking that every medicalized problem has a cure, including the physical changes that occur with age.  Hence, we pathologize normal aspects of growing old as “chronic” pain and treat them as if a cure were possible. 

Human bodies have tissues that degrade over time; human bodies are also less resilient over time.  This is not to say that age-related physical changes do not vary widely in their effects based on individual experience or that lifestyle has no effect on the changes, but rather is an observation that human bodies do not function as well in the 6th decade of life as they do in the 3rd decade of life, all things being equal.  In short, we get old. 

Getting old is a fact over which we have some influence.  We can maintain a healthy weight, eat a diet rich in fiber and fruits and vegetables, maintain an active lifestyle, get adequate sleep, etc.  These things will help us to avoid accelerating the aging process within our tissues.  In addition, our genetic makeup plays a significant role in how our bodies’ age.  Unfortunately, the influence we have does not stop aging or the physical effects of aging.  No matter how healthy our weight or our diet or our lifestyle, collagen becomes less elastic, spinal discs desiccate, articular cartilage wears.  In the claims world we often feel the effects of medicalizing age because claimants will try to link the normal effects of aging with a worker’s compensation claim or a personal injury claim.  Unfortunately, the effects are often exceedingly expensive as such claimants seek seemingly unending treatment to cure the incurable:  age.  Both claimants and claims administrators would be better served if treating physicians identified age-related degenerative changes and gave patients options to help them cope with the changes better rather than promising panaceas (usually in the form of surgery) that do not help.

Medical News Today reports on a study published in the Journal of Bone and Joint Surgery (subscription required) which found that patients whose opioid use was increasing prior to spine surgery had worse outcomes than those whose opioid use was not.  As Medical News Today notes, studies have shown that opioid use prior to spine surgery frequently leads to worse outcomes, but "the studies did not account for differences in opioid consumption among patients."  In this new study, the authors concluded that, "increased preoperative opioid use was a significant predictor of worse health outcomes at 3 and 12 months following surgical treatment..."  While this news is not particularly surprising to those in the medico-legal world, it does offer an opportunity to ask IME physicians a targeted question about the appropriateness of spine surgery in claimants with a demonstrated history of opioid dose escalation which should ensure that the physician's opinion explicitly relies on evidence-based medicine and hence is more credible.

Interesting new research from the University of Manchester finds that current smoking increases risk of hearing loss by 15.1%.  Researchers were not sure whether "toxins in tobacco smoke affect hearing directly, or whether smoking-related cardiovascular disease causes microvascular changes that impact on hearing, or both."  Regardless, current smokers or those exposed to passive smoking could could provide employers and insurance carriers with a potential new defense in occupational hearing loss cases if the study's results are replicated or otherwise confirmed.

What do we do when we have a conversation?  Turns out, we do a lot of anticipating and predicting about what the other person is going to say.  This predictive process makes our normal conversations better, or at least more readily intelligible.  In an interesting study published in The Journal of Neuroscience, researchers found that “language processing is comprised of an anticipatory stage and a perceptual stage:  both speakers and listeners take advantage of predictability by ‘preprocessing’ predictable representations during the anticipatory stage, which subsequently affects how those representations are processed during perception.”   This would seem to have implications for the medico-legal world because of the reliance on oral statements, whether recorded or not, formal or informal in claims administration.  Specifically, the quality of the answers one gets in a statement can potentially be manipulated when either party understands the predictive process involved in conversation.  For example, when speakers introduce unexpected words or phrases, listeners become more prone to error:  “When subsequently confronted with unpredicted words, listeners/readers typically show a prediction error response.”  A clever interviewer could use this information to keep the interviewee off guard, which may help elicit information the interviewee had been consciously trying not to reveal.  Conversely, a clever interviewee will be conscious of her tendency to answer based on both prediction and cognition and will take steps to limit the affect prediction has on her answers. 

One simple technique interviewees can use is to (silently) repeat every question that is asked of them back to themselves before answering.  This focuses the interviewee on comprehension and cognition rather than prediction, which will help the interviewee limit her response to what was in fact asked and not on what her predictive mind assumed was asked.  This also may be effective because the prediction happens so quickly and over such a short period of time.  According to the authors of the study, “[A]nticipation may precede perception by as little as 200 milliseconds…”  This is an incredibly short time interval and any device that an interviewee can employ to slow cognition down will allow her to limit the tendency to anticipate where the speaker is going with a question and instead to hear the actual question that is asked. 

One of the things that our brains do brilliantly well is to construct order of the world around us.  This predictive aspect of speech is part of that.  We are hard-wired to recognize patterns and make connections; hence, we gravitate to coherent narrative versions of events.  It is difficult for our brains to process events without linking them together causally.  Our conversations reflect this tendency as well.  In fact, when people do not conform to the normal way conversation works in this regard it is noticeable and such speakers often seem odd, idiosyncratic, or eccentric. 

The problem with the predictive process of speech and our tendency to turn our conversations into coherent narratives is that it inhibits our ability to ask the right questions and give the best answers.  When taking a statement, the interviewer should keep in mind that the process is not a conversation in the ordinary sense of the word.  That is why, for example, it is imperative to wait until the interviewee completes her response to each question before moving on to the next one.  While normal conversation works better when we allow the predictive aspect of conversation to fulfill its function, in a statement the predictive aspect can lead the interviewer away from valuable areas of inquiry simply by virtue of dovetailing the interviewer’s thoughts about what to ask next with the interviewee’s response.  Instead, interviewers should be mindful of the process and ask questions that occasionally interrupt the narrative flow to keep her attention focused on what the interviewee is actually saying.  One such strategy could involve interjecting questions about an unrelated topic periodically.  For example, during questions about the facts of an accident the interviewer might want to ask a question about current prescriptions that the interviewee takes.  The question will feel strange when asked, but it is surprising how quickly this jars the interviewer back to the kind of focused attention that is necessary to obtain an effective statement.  And that, after all, is the goal.

Evidence continues to mount that arthroscopy to treat osteoarthritis of the knee is no better than sham surgery or conservative care.  The German Institute for Quality and Efficiency in Health Care (IQWiG) published a final report (executive summary available here) on May 12, 2014 that consisted of a meta-analysis of various studies comparing arthroscopy to various modalities, including sham surgery and strengthening exercises.  The report’s authors concluded that:

The benefit of therapeutic arthroscopy (with lavage and possible additional debridement) for the treatment of gonarthrosis is not proven. There was no hint, indication or proof of a benefit of therapeutic arthroscopy for any patient-relevant outcome in comparison with no active comparator intervention. There was also no hint, indication or proof of a benefit of therapeutic arthroscopy for any outcome in the comparisons with lavage, oral administration of NSAIDs, intraarticular hyaluronic acid injection or strengthening exercises under the supervision of a physical therapist.

While this information is not new, it bolsters the conclusion that arthroscopy to treat osteoarthritis of the knee is no more effective than other modalities, including conservative care and doing nothing.   The standard of care does appear to be shifting toward the abandonment of arthroscopy to treat osteoarthritis of the knee; however, the procedure is still performed occasionally.  In managing claims, it is important to ensure that approval for any arthroscopic knee procedure be based on evidence-based medicine.  Insurance carriers should not be expected to bear the cost of procedures the benefit of which “is not proven.”  In addition, injured plaintiffs and employees should not be expected to bear the risks of surgical complications and extended recovery periods for procedures the benefit of which “is not proven.”

One of the problems we face in claims administration is that many of our decisions are made in the context of uncertainty.  For example, we may know that the plaintiff is credible, but that the mechanism of injury is questionable and the defense has a strong IME report.  The claims and legal professionals must determine (among other things) the plaintiff’s likelihood of succeeding on the question of whether an injury occurred based upon the available information.  The problem is that this judgment is a guess (though hopefully an educated one) based on experience and the available information.   There is no definite or fixed answer.  In order to make such decisions effectively, we need to know what is fact, what is inference, what is loose conjecture, and what information is likely to be discoverable or otherwise available that will make the guess more educated.  Once we have this information, we can determine what aspects of the claim are uncertain or ambiguous and develop a strategy to deal with them.

This brings us back to Brewer’s strategies for combating cognitive biases and making effective decisions.  His second strategy asks us to:

“Be clearly and explicitly aware of gaps in available information.”

  • Recognize when a conclusion is reached or a decision is made in the absence of complete information and be able to tolerate the ambiguity and uncertainty.
  • Recognize when one is taking something on faith without having examined the “how do we know…” questions.

We normally live with and tolerate an enormous amount of ambiguity and uncertainty in our lives without paying much attention to it.  In fact, imperfect knowledge is the general and pervasive condition of human life.  However, when we assess claims, we become acutely aware of ambiguity and uncertainty and recoil from it.  Why?  We recoil because ambiguity and uncertainty foil our attempts to predict the outcome of claims and hence drive us crazy.  Nonetheless, it is critical that we be able to make effective claims decisions against a background of ambiguity and uncertainty.  And the key to making effective decisions in the context of ambiguity and uncertainty is to specifically and accurately identify what is known (and hence certain) and what is not known (and hence uncertain).  Doing so will help us accurately evaluate the strength of our current position, reveal what we can do to obtain more information, and allow us to make rational decisions without ignoring or being paralyzed by ambiguity and uncertainty.

Once we have asked the “how do we know…” questions, we are in a position to organize what we know.  What we know in any claim falls into several categories.

  • Knowledge based on objectively verifiable evidence (factual knowledge) – The employer report of injury notes that the employee reported an injury that occurred on Y date three days later on X date;
  • Inferences based on evidence (which will always be imperfect knowledge with gaps, the imperfection being, after all, the nature of inferential reasoning) – The employee actually reported the injury to the employer on the date stated on the form. This is not a fact – we infer that the reporting occurred on the date stated because we assume, for whatever reasons (or lack thereof), that employers accurately record the date that employees report injuries;
  • Loose conjecture based on limited evidence, what might also be called a “guess” – A gap between the date of injury and the report of injury suggests the claim is suspect.  But why? 
  • That which we know we do not know or that from which no clear causal or consequential effect can be drawn or predicted – A gap between the date of injury and the report of injury, without further information, is ambiguous because equally plausible competing inferences can be drawn from it – employee didn’t report injury because it didn’t seem that bad at the time v. employee didn’t report injury at time because it actually happened outside of work;
  • That which we know would strengthen inferences, prove conjecture,  and remove ambiguity and uncertainty – Employee alleges a work-related rotator cuff tear in his dominant shoulder occurred on Y date but employee pitched a whole game in an adult league baseball tournament over the weekend before reporting the injury on X date (the inference is that the employee could not have pitched in a baseball tournament if he suffered a rotator cuff injury at work before the tournament);
  • That which we know potentially exists and may be relevant but about which we have no knowledge and which eludes our best conjecture (the infamous “unknown unknowns” in Rumsfeldian parlance) – A video tape surfaces showing the employee at the tournament, but shows that he did not play and was holding his shoulder in a protected manner (this is a highly unlikely occurrence but fits in the category of “we know a bombshell can be dropped but, by definition, if it is a ‘bombshell’ the actual content of the bombshell cannot be predicted”).

To accurately judge the claim, it is important to understand the gaps in available information and to understand when our conclusions are not supported by factual knowledge.  Take the dictum that a delay in reporting an injury increases the likelihood that the injury is fraudulent.  To believe this, one must make assumptions that may or may not be supported by actual evidence.   It is important when evaluating a new claim that we understand what these assumptions are before we make a judgment regarding the validity of the claim. 

First, accepting the dictum as true assumes that there is statistical support for it.  If there is not, the dictum is the equivalent of an old wives tale.  This is not to say that it may not be true, but without statistical support for it then it is equally plausible that the dictum is false.  Thus, the dictum should not be taken to demonstrate the strength or weakness of a claim without the existence of additional supporting evidence such as the softball tournament example above.  Despite the lack of statistical support for the dictum that delayed reporting increases the likelihood that a claim is fraudulent, numerous insurance professionals, companies, and even state agencies continue to hold the dictum out as if it had some sort of predictive significance. 

Second, accepting the dictum can actually create a selection bias in which late reported claims receive a higher level of scrutiny and more intense investigation than claims with contemporaneous reporting.  If one believes based on experience that late reported claims are more frequently bogus than timely reported claims, one must actually investigate her claim handling history and measure the level of scrutiny given to the separate claims to determine if there is any truth to the dictum.  In order to determine if there is a probable statistically significant effect in a retrospective investigation, at a minimum you would have to include only those timely reported claims that receive the same or similar level of scrutiny and investigation to late-reported claims for comparison to at least attempt to eliminate selection bias.  Without making this investigation, the dictum that late-reported claims are more likely to be fraudulent has no basis in fact and is likely to skew results in a way that confirms the dictum.

When managing claims, it is important to consider why a decision is being made and whether the decision is based on factual knowledge, an inference, or an assumption that has been “taken on faith.”  Any claim will have ambiguity and uncertainty.  This is normal.  When the ambiguity and uncertainty are identified, they can be factored into the assessment of the claim and will help generate the strategy for developing the claim (which will be the topic of the next post in this series).  When deciding to give a claim heightened scrutiny or making any other tactical decision, the decision will be more effective and will likely yield better results if it is based on factual knowledge than if it is based on an unsupported assumption.  The only way to ensure that the decision is based on factual knowledge is organize what you know.  Once the knowledge in a claim has been organized, it is easy to identify if something is being taken on faith rather than fact.

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