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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).
We are inundated with messages about the opioid crisis in America. According to the CDC 28,000 people died due to opioid overdose in 2014, at least half of which occurred while using prescription painkillers. There is also evidence that heroin use is increasing as prescription opioids become harder to obtain. In fact, the CDC reports that prescription opioid painkiller use is strongest risk factor for heroin addiction. Those in the worker’s compensation field have seen firsthand the devastation addiction to prescription opioids can cause. In addition to the tragic human costs, cases involving long term prescription opioid painkiller use often have high economic costs that include significant lost time and failure to return to work in addition to the cost of the prescriptions themselves. And this doesn’t begin to touch on the cost that are imposed on the social safety net when long term opioid painkiller use turns into permanent disability. The bottom line is that an effective alternative to prescription opioid painkiller use in chronic pain cases would improve lives, improve society, and most importantly save lives.
The Journal of the American Medical Association (“JAMA”) recently published a report addressing whether mindfulness-based stress reduction might be that effective alternative. The report notes that the CDC recommends physicians “try nonpharmacologic and nonopioid therapies first,” before using opioid painkillers. Hence, it is becoming imperative for physicians to explore alternatives to simply prescribing painkillers. According to the report, “limited research indicates that mindfulness meditation for pain management therapy has promise.” For example, a recent study found that adding mindfulness meditation to a standard pain treatment program increased the percentage of patients who reported meaningful pain reduction from 26.6% to 44.9%. Obviously this is a significant finding. Unfortunately, there are no studies that compare mindfulness-based stress reduction directly with opioid use. The report stresses the importance of performing direct comparison, double-blinded, randomized studies to measure the effectiveness of mindfulness-based stress reduction compared to prescription opioid painkillers.
So why does mindfulness-based stress reduction appear to help at all? There are a number of reasons, but chief among them is the understanding that “pain is a complex phenomenon involving more than a direct nerve impulse from the affected tissue or limb to the somatic sensory cortex” and that “a person’s thoughts and emotions also play a role in pain perception.” This has helped physicians to focus on treatment modalities that “shift chronic pain treatment from a ‘biomedical disease model’ to a ‘patient-centered’ model focused on ‘patient engagement in daily self-management.’” The key is shift between improved quality of life versus elimination of pain, which is often impossible. This turns the patient’s attention away from pain and disability and toward behavioral and psychological interventions and techniques to improve her quality of life. In the words of a mindfulness meditation study participant, “I felt the pain was there, but I was able to let it go. I didn’t dwell on it so much.”
Whether mindfulness-based stress reduction will prove to be a substitute or an effective alternative to prescription opioid painkillers remains to be seen. Nevertheless, the growing awareness that chronic pain is different from and needs to be treated differently than acute pain is positive. The trend is moving toward interventions in chronic pain patients that focus on learning strategies to cope with their pain which in turn increases their ability to function at higher levels. And higher levels of functioning mean less catastrophizing, less disability, and ultimately, less death. A happy coincidence is that it also means a reduction in worker’s compensation costs.
Compound or compounded medications, especially those used to “treat” pain, have been on the rise in medico-legal claims for several years. Often compounded medications use ordinary and inexpensive drugs in a topical solution but cost an extraordinary amount when compared to their pill-form counterparts. A CBS News investigation examined the cost of compounded medications. One patient, Michael Picard, received a one month supply of compounded creams for pain, migraines, and scar reduction. The total cost for a 30 daily supply of the creams was $18,680. The scar gel alone cost over $12,500 and contained ordinary medications such as fluticasone proprionate (Cutivate, a corticosteroid), gabapentin (Neurontin), prilocaine HCL (a topical anesthetic), and levocetirizine dihydochloride (a third generation antihistamine). Only one medication, Freedom silomac anhydrous gel, is actually medication targeted to lessen the appearance of scars. Inclusion of anti-seizure medication (gapabentin), an antihistamine, a topical anesthetic, and a corticosteroid for scar reduction strains credulity. Charging over $12,500 for these medications in cream form simply shocks the conscience.
Before delving further into the problems of compounded medication in medico-legal claims, it helps to know a bit of background on what compounded medications are, why they were developed, and why they fall outside of the FDA’s regulatory purview. The terms “compound” or “compounded” medications refer to medications that pharmacies or pharmacists create which use nonstandard formulations of drugs tailored to individual patient needs. The original purpose for compounded medications was to provide medication in a form or formulation for patients that otherwise could not use standard formulary drugs. For example, a medication may need to be compounded for a patient who is allergic to an ingredient in the standard formulary drug or a medication might need to be produced in liquid form for a patient who cannot swallow the standard pill formulary. Compounded medications in these situations obviously make sense and serve an undoubtedly legitimate purpose. Unfortunately, compounded medications have come to be used in cases where their utility and necessity are questionable.
The FDA does not regulate compounded medications because the medications are supposed to be formulated on a patient-by-patient basis to be specifically tailored to individual needs. This means that compounded medications are not standardized. Hence, the FDA simply lacks the resources to evaluate compounded medications because there is no standard formulary to be evaluated. When the FDA evaluates a drug for approval, the testing process goes through a number of phases all of which are designed to determine that the drug is both safe and effective. This is a complicated, labor-intensive process that only works in the case of standard formularies. It would not be feasible for the FDA to test or require compounded medications to go through this process because the agency could never test all the compounded medications and the pharmacies making them would never be able to afford running the drugs through the approval process.
This lack of oversight has been exploited as an opportunity by some pharmacies and physicians as a way to increase profits by using compounded medications, for which they can charge more than if they prescribed standard formularies, without being subject to the same oversight for efficacy that would be the case if they were attempting to create a new standardized formulary drug. The medico-legal world, especially worker’s compensation, is especially vulnerable to the increasing costs of compounded medication because many worker’s compensation laws do not allow for preapproval of medical treatment, including prescription medication. In California, worker’s compensation billing for compounded medications increased from $10 million in 2006 to $145 million in 2013, an increase of 1,400%. In some cases, the temptation to reap exorbitant profits has been so great as to spawn criminal conspiracies. The prosecutor in a California case noted that “workers’ compensation insurers would be billed in ‘the $1,500 to $3,000 range’ for creams that had a resale value of about $70.” The markup prompted a sophisticated kick-back scheme in which $25 million was paid out to pharmacists, doctors, and chiropractors. The conspiracy was estimated to have resulted in $100 million overbilling to the California worker’s compensation system.
California is not alone. The U.S. Military’s health insurance plan, Tricare, paid $1.75 billion for compounded drugs during its 2015 fiscal year (subscription required). According to a Wall Street Journal, this was “18 times the amount paid three years earlier.” Certainly we are seeing increased questions about compounded medications here at Medical Systems as well. Part of the problem is the way bills are processed in many worker’s compensation cases. According to Phil Walls, chief clinical and compliance officer with myMatrixx, a pharmaceutical management company in Florida, compounded creams are common in worker’s compensation cases “because other systems – such as Medicare – have built in controls such as deductibles and preauthorizations for medications, and worker’s compensation doesn’t.” To combat the problem, Express Scripts stopped covering many of the creams because there is no evidence that they actually work. Dr. Steve Miller, Express Scripts chief medical officer told CBS News, “If you talk to almost any pain expert, they'll tell you these things are working strictly through a placebo response and not through a physiological response through the pain receptors.”
So what can be done about compounded medications and creams in worker’s compensation cases? Independent experts could be engaged early in the process to review the reasonableness and necessity of the medication early on. In addition, if the compounded creams do not result in any functional improvement, an independent evaluation may be useful. Employers and insurers that use pharmacy benefit services such as Express Scripts may have some leverage in compounded medication claims. The bottom line is that the earlier in the process that compounded medications can be dealt with, the better.
Any person who spends time in claims has run into files in which a patient with back pain has undergone “provocative discography.” The procedure involves injecting intervertebral discs suspected of causing the claimant’s pain with fluid along with “healthy control” discs. Purportedly, if the claimant feels an increase of pain in the suspected disc compared to the “control” discs, then the suspected disc is confirmed as being the cause of the claimant’s back pain. The problem is threefold. First, studies have determined that provocative discography cannot do what it is supposed to do. It cannot identify “discogenic pain.” Second, studies have definitively concluded that not only is provocative discography an ineffective diagnostic tool but also that it causes the degeneration of injected intervertebral discs to accelerate. Third, a recent study published in The Spine Journal (subscription required) found in a 10 year study that provocative discography performed on persons without back complaints actually led to back pain and surgical intervention. Healthnewsreviews.org has an outstanding piece about the study and the lack of coverage in the health news media. This is important because even today, with knowledge that provocative discography is an ineffective diagnostic tool, 70,000 procedures are performed annually in the United States. Anyone involved in medico-legal claims should read the Healthnewsreviews.org piece. Here are some of the highlights:
Experts say that provocative discography has no proven benefit for identifying symptomatic discs and has previously been shown on magnetic resonance imaging to be associated with faster degeneration of injected discs. The new study followed 75 patients who received the injections and compared them to 75 matched controls. The point of the new study was to see whether the disc degeneration seen on MRI would translate into clinically important back pain symptoms.
There was no significant history of back pain in either group when the study began. But the new 10-year data showed that there were more back pain surgeries (16 vs. 4); more frequent sciatica and back pain syndromes, and greater work loss and doctor visits for low back pain in the punctured discs compared to controls.
Such is the import of this study that an orthopedic surgeon interviewed as part of the article flat out stated:
“But readers should be aware that a trial of this sort with 10 years of follow up is very compelling evidence of discography’s potential problems,” Rickert says. “Such long term studies are rare,” he adds, and this one should tell readers: “Do not go undergo provocative discography.”
Perhaps the best summary was provided by another doctor consulted for the article. Steven Atlas, MD, MPH, told Healthnewsreviews.org:
So, not surprisingly, results are not very reliable. We also know that patients who have fusion based upon findings of provocative discography don’t do any better than individuals who have surgery but don’t undergo this test. We also know that patients can report more pain after the procedure, including pain they didn’t have before the procedure. And now we know that there are long-term risks associated with discography.
The article is worth reading in its entirety. One hopes that discography and its costs, both direct and indirect, will soon disappear from the health care landscape. In the meantime, claims professionals should expect their IME doctors on back pain cases to be familiar with the study and use it in their reports when treating physicians recommend or actually perform provocative discography and use it to diagnose the cause of back pain and the need for surgery.
Medical Systems recently held a lunch and learn at Lombardi’s Steakhouse in Appleton, Wisconsin at which hand surgery expert Jan Bax, M.D. discussed common hand injuries. During his presentation, Dr. Bax alerted attendees to a recent white paper from the American Academy of Orthopaedic Surgeons (“AAOS”) that reports a moderate level of medical evidence links computer use to the development of carpal tunnel syndrome (see p. 222). As Dr. Bax pointed out, the paper was published in the last couple of months so its ultimate effect in the worker’s compensation arena is undetermined. Nevertheless, Dr. Bax expressed concern that the paper will lead to renewed carpal tunnel syndrome claims based on repetitive computer use (keyboarding and mouse use). He noted this is especially troublesome because the hand surgery section of the AAOS considers it a settled issue that computer use does not cause carpal tunnel syndrome.
The white paper assigns levels of evidence supporting the various factors that are sometimes alleged to cause carpal tunnel syndrome. The highest level of evidence is “strong,” which requires consistent evidence from two or more high quality studies. The second highest level of evidence is “moderate,” which requires consistent evidence from two or more moderate quality studies or evidence from a single high quality study. This is the level of evidence the AAOS finds for the position that computer use causes carpal tunnel syndrome. The second lowest level of evidence is “limited,” which requires consistent evidence from two or more low quality studies, one moderate study, or insufficient/inconsistent evidence recommending for or against the diagnosis. The lowest level of evidence is “consensus,” which requires that there is no reliable evidence but rather is based on unsupported clinical opinion.
As Dr. Bax noted, finding that moderate evidence supports the link between computer use and carpal tunnel syndrome is troubling because it is actually is a high level of evidence and may sway triers of fact despite the nearly uniform position of actual hand surgery specialists that there is no such causal link. This is especially true given the findings in some of the research cited. Coggon, et al., specifically stated that there was an “absence of association with the use of computer keyboards” and noted this “is also consistent with the findings overally from other research.” The researchers concluded that “obesity and diabetes, and the physical stresses to tissues from the use of hand-held vibratory tools and repeated forceful movements of the wrist and hand, all cause impaired function of the median nerve” but that computer keyboard probably only focuses attention on symptoms without being injurious to the tissues of the wrist. Coggon, et al. seem to support a more nuanced relationship between computer keyboard use and carpal tunnel syndrome than is portrayed in the AAOS white paper. Likewise, Eleftheriou, et al. studied the link between computer keyboard use and carpal tunnel syndrome but related the following disclaimer:
One limitation is related to [the study’s] cross-sectional design which does not allow us to conclude if the association between cumulative exposure to key-board use is of causative nature. The study included workers present when the study was formed, which implies a possible selection bias as is the case in all cross-sectional studies, especially if the study population was affected by high turn-over. It’s a limitation of our study that we don’t have data on actual turn-over of the staff…Further, we didn’t control for possible confounding factors like anthropometric characteristics of the wrist…
Eleftheriou, et al. reported only “a possible association between cumulative exposure to keyboard strokes and the development of [carpal tunnel syndrome]…” They specifically noted that additional studies need to be done to verify their results and to address causality.
The AAOS white paper is a troubling development in carpal tunnel syndrome worker’s compensation cases since it potentially throws into question the settled opinion among hand surgery specialists that keyboard use does not cause carpal tunnel syndrome. As Dr. Bax noted at the recent Medical Systems lunch and learn, it is too early to tell exactly what the effects of the paper will be, though they are not likely to be positive. In the event that the AAOS white paper is cited to support work-related carpal tunnel syndrome cases among keyboard users, it will be critical to choose experts who understand and can explain the limitations of the evidence on which the paper relies. Without an expert who will vigorously question and thoroughly refute the evidence, the AAOS white paper is likely to carry more weight in keyboard-related carpal tunnel syndrome claims than it otherwise should.
It hurts. Yes it does. But what does that mean? Does it mean that I shouldn’t do it? Perhaps not. In fact, the inhibitory effects of pain can actually be deleterious to our health. Ordinarily, pain is a mechanism that helps us avoid injury, i.e. the classic nociceptive response to touching something that is hot. However, there are many cases in which pain can prevent us from doing things that are actually good for us. One such example is leg pain in peripheral artery disease.
The New York Times recently ran an article about leg pain and peripheral artery disease (“PAD”). PAD is essentially atherosclerosis in the extremities as opposed to the cardiac arteries. It causes many problems, including leg pain. Ironically, exercise is one of the recommended treatments for PAD (and the leg pain it causes), but many never pursue exercise because when a person with PAD starts exercising it causes more leg pain. Eventually, the leg pain diminishes, but the start of exercise precipitates an increase in pain. As the Times article reports, those who work through the pain generally experience both a decrease in pain and an increase in function. This is instructive for those of us involved in medico-legal claims, where complaints of pain often thwart a return to normal function.
Pain is often an intractable part of medico-legal claims. A person is involved in an accident or alleges an occupation-related condition, receives treatment (often surgery), and recovers physiologically from the injury. Unfortunately, this is not the end of the story. Instead of returning to full functionality, the person remains impaired and cites “pain” to explain the ongoing loss of function. For everyone involved in medico-legal claims, the problem of “pain” causing ongoing loss of function is incredibly frustrating. Pain does not, however, have to be an intractable problem.
The biggest hurdle to overcoming residual pain in the context of an injury claim is overcoming the normal response to nociceptive pain, which is the nervous system’s way of limiting physical harm. Think of the proverbial hand on a hot stove: the nerves send a pain message to the brain, you move your hand to avoid getting burned. Although the nociceptive response is marvelous for such acute tissue insults, it is not particularly useful for dealing with pain related to atrophy, deconditioning, or surgical changes to tissues. Nociception is not useful in this circumstances because pain is not a signal of the tissue-yielding associate with injury, but rather with the tissue-yielding necessary to rebuild strength and function that is lost with atrophy, deconditioning, and surgical changes to tissues. As everyone knows, increasing one’s activity level after periods of deconditioning results in soreness; however, everyone also knows that being sore should not prevent further workouts. If every person who lost fitness and wanted to regain it allowed pain to dictate their activity levels, few if any would ever become fit again. The same process obtains after the atrophy, deconditioning, and surgical changes that occur following injury and convalescence. Hence, it is perfectly normal for a person with an injury to experience pain with the rehabilitation that occurs after the injured or repaired tissues have healed. This pain is not injurious but instead is a normal part of the rehabilitation process.
Convincing persons with injury claims that the pain associated with atrophy, deconditioning, and surgical changes is normal during rehabilitation can be challenging but it is not impossible. A large part of the challenge lies in overcoming the natural human tendency to conserve energy. Put simply, basic survival requires that all living organisms (including humans) expend less energy than they take in. For contemporary Americans this is problematic because we do not have to expend much energy to meet our basic survival needs and we have access to a surfeit of relatively cheap calories. In other words, the contemporary American economy makes it easy for most Americans to be sedentary. If a person is accustomed to being sedentary, she already exists in a deconditioned state. Whether or not she intentionally avoids activity-related soreness matters little because she doesn’t experience it either way. Absent injury, she can maintain an inactive lifestyle and will, as we normally do, avoid doing things that cause pain. This state of deconditioning and pain avoidance, which are normal consequences of being human in much of America today, predisposes persons to have problems when rehabilitating an injury.
As noted above, the problem can be solved. First, treating practitioners should explain from the earliest opportunity that recovery requires effort and the effort itself with hurt. It is absolutely critical that injured persons understand recovery requires hard work and is almost always painful. Fair or not, this is normal and injured persons should expect it. Second, treating practitioners ought to have frank discussions about the role deconditioning will play in their injured patients’ recoveries. Doing so is not paternalistic, it is instead being honest. It is also critical in an era in which healthcare practitioners are increasingly being judged by patient outcomes. For example, being 50 pounds overweight will make recovery from an ACL tear harder because the rehabilitation will be physically taxing to many uninjured parts of the injured person’s body. Rehabilitation will tax the person’s cardiovascular system and the uninjured joints of the person’s back, hips, opposite knee, and ankles. Being deconditioned means rehabilitation will hurt more and be more difficult. Injured persons need to understand this going into rehabilitation.
Merely knowing pain will be part of rehabilitation is necessary but not sufficient to overcome the inhibitory effects of pain. Healthcare providers should demand that injured persons who undergo treatment demonstrate the ability to differentiate between pain associated with acute injury or harm and pain associated with rehabilitation, i.e. pain associated with increasing fitness. Surely knowledgeable physical therapists and other rehabilitation specialists should be able to demonstrate the difference in addition to explaining it. Healthcare providers should also demand that patients acknowledge that recovery from injury requires determination and that patients pledge to give full effort, even when experiencing the normal pain or discomfort associated with rehabilitation. Obviously there are limits to the binding effects of such a pledge, but it would help to put injured patients into the right mindset to tackle rehabilitation effectively and with full effort. Patients could also be told that their ability to receive rehabilitation services will depend on the effort level they give in therapy and in performing all recommended home exercises. This could easily be measured with periodic functional testing such as range of motion measurement, strength testing, and endurance testing. This would be no different than a spine surgeon refusing to perform a fusion on patients with a history of smoking until the patients can demonstrate that they have stopped smoking.
Obviously there are other issues that impact a medico-legal claimant’s ability to deal with residual pain from the claimed accident or occupational exposure. Dealing with all of these aspects would require more space and time than this blog allows. For example, everyone acknowledges that psychosocial factors play a large role in many claimants’ recoveries. In addition, motivation to return to work or full functionality plays a similarly large role. Nevertheless, the healthcare profession can do much to educate claimants on the difference between pain that signals injury and pain that signals recovery. As in peripheral artery disease patients who start to exercise, patients rehabilitating from an injury are almost certain to experience pain during rehabilitation. It is critical that the therapists and other healthcare providers involved in the rehabilitation process do everything in their power to prevent patients from giving anything less than full effort due to non-injurious and amorphous complaints of “pain.” Doing so will set claimant-patients on the right track to recovery and will help get them out of the mindset that pain justifies inactivity. Like the peripheral artery disease patients, claimants who get past the initial pain will find their condition to be much improved. And that is what everyone in medico-legal claims really wants.
Last week psychiatrist Jeffrey Zigun, M.D. and psychologist Brad Grunert, Ph.D. spoke at Medical Systems’ 2016 Advanced Medical Topics in Civil Litigation Symposium on mild traumatic brain injury. Three topics came up repeatedly during the individual experts’ presentations and in the follow-up panel discussion:
The answers to the first two of the three issues are surprisingly simple, while the answer to the third is, or at least can be, much more complicated.
With respect to the question of whether mild traumatic brain injuries can get worse over time, the simple answer according to the experts is “no.” Both Dr. Zigun and Dr. Grunert were clear in their statement that recovery from mild traumatic brain injury follows a predictable recovery. The physical injury to the brain itself reaches maximum medical improvement within a year and all expected improvements in functioning occur within two years of the injury. This is significant because a number of participants in the seminar reported scenarios in which a claimant/plaintiff experienced a precipitous decrease in functioning 12, 18, or even 24+ months after the initial injury. In at least some cases, the decrease in functioning was measured on neuropsychiatric testing and was deemed not to be malingering. Both Dr. Zigun and Dr. Grunert were clear in their presentations and in the panel discussions that such a decrease in functioning would not be due to an underlying mild traumatic brain injury, even if the injury were permanent. Brain injuries get better over time; they don’t yo-yo up and down or suddenly get worse after a period of improvement. Unfortunately, a decrease in functioning after a period of improvement can still be related to the accident. More on this later.
One of the more interesting aspects of the symposium was the discussions about the role of intelligence in recovery from a mild traumatic brain injury. The experts both stressed that intelligence is enormously important in assessing how individuals will recover from permanent mild traumatic brain injury. The reason is that those with more intelligence have more to lose before the loss of function becomes a significant impairment. The example Dr. Grunert used was an academic researcher: she may have some memory impairment following a mild traumatic brain injury, but it may only mean that she has to look up citations she previously had memorized. This will obviously add some time to her research, but it will not impair the quality of the research itself or her ability to write. On the other hand, a factory worker who has to follow a specific procedure when operating a dangerous machine will have no margin for error. If her memory was on the lower end of average to begin with, losing any amount of memory function could cause her to be unable to follow the specific procedure when operating machinery. Since there is no margin of error, the factory worker’s memory impairment would cost her the ability to do her job. Hence, one point both Dr. Zigun and Dr. Grunert made was that impairment following mild traumatic brain injury is often different for persons of high intelligence than it is for persons of lower intelligence.
The trickiest question the experts dealt with is how to determine the fact of a traumatic brain injury. In many cases a person hits their head and the symptoms of concussion are obvious. These might include brief loss of consciousness, dizziness, retrograde and/or anterograde amnesia, headache, wooziness, etc. In other cases the fact of injury might be less obvious. Perhaps the person did not strike their head in a motor vehicle crash, but reported some symptoms consistent with mild traumatic brain injury. Further complicating matters are cases where there is a preexisting history of psychological problems such as depression, anxiety, or other psychological diagnoses. In all cases, Dr. Zigun and Dr. Grunert stressed the importance of early neuropsychological testing. Dr. Grunert noted that neuropsychological testing has a high degree of reliability and specificity. In addition, neuropsychological testing is good at ferreting out malingering from legitimate claims. Early testing also establishes a baseline from which test results should not decline in mild traumatic brain injury.
As the experts and the audience discussed, often the fact of injury is not an issue at the beginning of a claim, though. Instead, the fact of injury becomes an issue after a year or more. Usually, this seems to occur as a result of a decline in functioning, whether supported through neuropsychiatric testing or not. As the experts agreed, simply because a person declines in functioning after a mild traumatic brain injury should have stabilized does not mean that they are not continuing to suffer from a permanent brain injury or that the decline in function is not legitimate or related to the accident. Both Dr. Zigun and Dr. Grunert agreed that a decline in functioning a year or more after a mild traumatic brain injury only means that the brain injury itself is probably not responsible for the decline in functioning. Instead, they pointed to psychological conditions as often being the culprit.
When the audience heard this, many persons wanted to know if the psychological conditions would be related to the accident, especially if there was a preexisting history. As Dr. Zigun noted numerous times, it depends. For example, Dr. Zigun addressed the simple fact that many of the drugs used to treat psychological conditions also have positive effects on the sequelae from traumatic brain injury. Take SSRIs, commonly used to treat depression. Dr. Zigun pointed out that one symptom of depression is memory impairment, which is also a symptom of mild traumatic brain injury. SSRIs help alleviate memory impairment in both depression and mild traumatic brain injury. Dr. Zigun noted that if a person is diagnosed with mild traumatic brain injury, they may very well end up on an SSRI. Once the brain injury stabilizes, the person may be weaned off the SSRI. However, if the person has simultaneously developed depression, weaning her from the SSRI may cause a decrease in functioning related to the depression, including worsening memory impairment. Both experts agreed that the decrease in functioning in such a case could be legitimate but that it would not be related to the mild traumatic brain injury.
How, then, can we determine if a decline in functioning relates to the accident? The answer, unfortunately, is not clear cut. The experts stressed that to evaluate whether a decline in functioning, once determined to be legitimate and not malingering, relates to an accident, the analysis essentially looks to the totality of the circumstances to attempt to parse out the causal factors. The case a number of audience members brought up was the situation in which there is a preexisting history of a psychological condition such as depression which is determined to be the reason for the post-accident decline in functioning. Dr. Zigun and Dr. Grunert agreed that it is exceptionally difficult to determine whether the development of a psychological condition is accident-related. They noted that many factors could cause the onset of depression episode that would be related to the accident. For example, if the mild traumatic brain injury caused a memory impairment that prevents the injured person from returning to work, it would not be unusual for the person to develop depression. The depression would not be caused by the brain injury itself, but rather would be the result of the job loss, which resulted from the brain injury. On the other hand, if the injured person has recovered well and is coping with any residual impairments from the brain injury, the depression is likely to be independent of the brain injury. The bottom line is that declines in psychological functioning in the context of a permanent mild traumatic brain injuries present challenging cases for experts in which causation can only be determined by assessing the totality of the circumstances.
Mild traumatic brain injuries can present vexing cases for claims professionals. As Dr. Zigun and Dr. Grunert discussed, mild traumatic brain injuries can be diagnosed and treated effectively, even in the case of concomitant psychological conditions. We are grateful for their participation in Medical Systems’ 2016 Advanced Medical Topics in Civil Litigation Symposium and for the many insights they shared with our audience.
Osteoarthritis of the knee is the bane of many worker’s compensation claims. Frequently, an injured worker demonstrates evidence of arthritis but claims an acute event aggravated the condition to the point that it was symptomatic. What can be frustrating for the employer or insurance carrier is the fact that in most cases the arthritis itself was not caused by the employment. Thus, the employer or insurance carrier laments the fact that they are being held responsible for 100% of a condition that would have almost certainly become symptomatic regardless of the acute work-related event. Unfortunately, to date there has been no reliable method to measure whether this is accurate or, if so, when the arthritis would have become symptomatic. However, a recent study suggest we may have technology to do just that.
A group of Finnish and Swedish researchers released “A Novel Method to Simulate the Progression of Collagen Degeneration of Cartilage in the Knee” in which they developed a “degeneration algorithm … combined with computational modeling” that accurately predicted the rate at which knee cartilage would deteriorate based on the weight of patients. The study was conducted on 429 patients under 65 years of age who initially had no radiographic evidence of osteoarthritis (cartilage thinning) in their knees. The subjects were divided into a study group, consisting of patients with a BMI of 35 or higher, considered to be at high risk of developing weight-related osteoarthritis of the knee, and a control group, consisting of patients with a BMI lower than 25, considered to be of low risk for developing weight-related osteoarthritis of the knee. As noted, neither group demonstrated radiographic evidence of osteoarthritis at the beginning of the study nor had any member of either group sustained a knee injury that either prevented them from walking for more than 2 days or required surgical intervention. The 2 groups were then followed for 4 years.
The researchers developed an algorithm to predict the rate at which cartilage loss associated with osteoarthritis would occur based on BMI and other physiological characteristics. In their words, “[t]he algorithm was based on cartilage overloading so that cumulatively accumulated excessive stresses (above failure limit) caused alterations in tissue properties with time.” The researchers then developed a computational program to simulate the expected cartilage loss over four years based on the baseline status of knee cartilage from MRI readings. The accuracy of the algorithm and computational modeling was measured against x-rays taken at the beginning of the study and after 4 years. The results demonstrated the ability of the algorithm and modeling to accurately predict which subjects would experience loss of cartilage associate with osteoarthritis and how much loss each subject would experience. According the study, “[t]he simulated onset and development of osteoarthritis agreed with experimental baseline and 4-year follow-up data.” This lead researchers to conclude that, “[t]he present work provides…an important and groundbreaking step toward developing a rapid and subject-specific diagnostic tool for the simulations of the onset and development of knee osteoarthritis and cartilage degeneration related to excessive chronic overloading due to overweight [sic].”
The implications of this individualized ability to predict the onset of knee arthritis could be significant for worker’s compensation. If the method proves to be accurate and reliable in subsequent studies, it could be used in the same manner as occupational hearing tests to measure a baseline condition and determine if the subsequent condition is related to the normal progression of the disease versus an occupational aggravation. Likewise, the method would offer the potential to calculate, based on an employee’s physical condition on the date of injury, the likelihood that the alleged employment-related event aggravated the underlying arthritis and if so how much the employment-related event is responsible for. This would finally allow for an accurate accounting of what portion of a preexisting degenerative condition is related to an industrial event and what portion is due to the natural progression of the condition. While this would admittedly be at best a distant possibility, it is nevertheless a possibility. Hence, the study and its future applications are worth following.
As our readers are no doubt aware, Governor Walker recently signed Act 180, Wisconsin’s agreed upon worker’s compensation bill. Included in the bill is the newly created Wis. Stat. §102.175(3), which mandates that health care providers apportion permanent disability in accidental injury cases between disability caused by the injury and disability caused by other factors, both pre- and post-injury.
Medical Systems is taking a number of steps to ensure our reports comply with the new apportionment rule. First, we have notified all of our Wisconsin experts of the new requirement and explained the specific circumstances in which it applies. As a part of this process we have also had conversations with experts who have begun encountering apportionment questions to ensure that they understand the process. Second, we are reviewing all IME reports to determine if the expert has addressed apportionment when the expert has found permanent disability arose in an accidental injury case. Finally, we are communicating with our clients on accidental injury cases to ensure that our reports meet the new apportionment requirements.
At Medical Systems, we know that an independent medical examination has the potential to make or break a claim. That’s why we are doing everything in our power to produce reports that are not only well-reasoned, but also are up-to-date with applicable legal standards. Addressing apportionment in Wisconsin accidental injury worker’s compensation cases is a prime example of our continuous efforts to work with our clients to provide the best possible report.