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On February 29, 2016 Governor Walker signed the agreed upon worker’s compensation bill. Of particular importance to the IME process is a provision (Wis. Stats. §102.175(3)) that requires all healthcare providers, whether treating providers or independent evaluators, to apportion permanency in accidental injury cases between permanent disability that the injury caused and permanent disability caused by other factors, whether pre- or post-injury. Wis. Stats. §102.175(3)(b) states:
A physician, podiatrist, surgeon, psychologist, or chiropractor who prepares a certified report under s. 102.17(1)(d). relating to a claim for compensation for an accidental injury causing permanent disability that was sustained in the course of employment with the employer against who compensation is claimed SHALL address in the report the issue of causation of the disability and SHALL include in the report an opinion as to the percentage of disability that was caused by other factors, including occupational exposure with the same employer, whether occurring before or after the time of injury. (Emphasis added)
The statute does not apply to occupational injuries and specifically holds the employer responsible for “previous permanent disability… attributable to occupational exposure with the same employer.” Wis. Stats. §102.175(3)(a). The statute does, however, require injured workers, at the request of the employer, to “disclose all previous findings of disability or other impairments that are relevant to that injury.” Wis. Stats. §102.175(3)(c). This should help make the implementation of the provision more effective.
The new statutory provision requires all independent medical examiners to apportion permanent disability (when the expert concludes the injury resulted in permanent disability) in accidental injury claims. The effective date of the statute is March 2, 2016. Medical Systems is working with our experts to ensure that their opinions comply with the new statutory provision and apportion permanency when applicable starting March 2, 2016.
Pain. We all experience it, but what is pain? Certainly pain has a nociceptive component, meaning when we experience injury our nerves send a message to our brain that results in the state of awareness that may be best characterized by the word “ouch.” This is the type of pain that seems best controlled with traditional analgesics such as prescription opioids. Pain may also be neuropathic, meaning it is not the resulted of an injured tissue sending a classic pain signal to the brain but rather is the result of a damaged nerve that is sending abnormal signals to the brain due to the injured state of the nerve itself. This is why persons with neuropathic pain experience paresthesia and hyperesthesia rather than the typical stabbing or aching pain that would associated with physical injury to a muscle, bone, or joint. Chronic pain also differs from neuropathic and nociceptive pain in that it appears to be a learned cognitive response to a patho-anatomic abnormality that may or may not be causing actual nociceptive pain. Further complicating the range of pain that we experience is psychological pain; that is the somatization of psychological distress.
A new Psychological Science study (subscription required) throws a new wrench into the pain picture: persons in financial distress who are also in pain feel higher levels of pain than those are not experiencing economic distress. According to the study,
The link between economic insecurity and physical pain emerged when people experienced the insecurity personally (unemployment), when they were in an insecure context (they were informed that their state had a relatively high level of unemployment), and when they contemplated past and future economic insecurity.
Interestingly, the authors concluded that “the psychological experience of lacking control helped generate the causal link from economic insecurity to physical pain.” This offers some hope that addressing the feeling of lacking control could help to lower the perceived experience of pain.
In the claims context, the experience of pain is a major cost-driver. Persons who experience pain will continue to seek treatment for injuries that have otherwise resolved or stabilized. In addition, persons who experience pain often miss time from work and have other disability-related costs. What complicates the apparent relationship of economic insecurity and pain in the claims context is that persons with claims often experience economic insecurity related to the claimed injuries. For example, an employee suffers a work-related knee injury and has to miss time from work. Even a conceded claim can cause financial distress as compensation benefits are paid out at 2/3 of average weekly wage and the injury may force the employee to miss overtime they expected to work. Matters get worse when a claimant is cut off from benefits but claims ongoing injury and an inability to return to work. In many such cases, claimants lack the savings or other sources of income replacement to weather the economic storm.
The problem from a claims perspective is that the economic situation of the claimant is outside the purview of the claim. For example, if a claimant alleges a work-related low back injury and the insurer questions whether the condition is in fact related to the employment, the insurer will have the claimant undergo an independent medical examination. If the independent medical expert concludes that the claimant’s condition is not related to her employment, the insurer will stop paying benefits to the claimant. At the same time, if the claimant is under work restrictions from her treating physician, she will not be able to return to work. As a result, she will lose her temporary total disability benefits while simultaneously having no recourse to income from her employment. If the Psychological Science study tells us anything, it is that losing temporary total disability benefits without other sources of income or income replacement will likely make the claimant’s physical condition worse. This can be a particularly fraught situation if the claimant is suffering from a degenerative condition that would wax and wane in severity even without economic distress. The study suggests that such a condition could be appreciated as being significantly worse in a claimant who is in economic distress. From a cost perspective, this is a problem because it will almost certainly lead the treating physician to conclude that conservative therapy failed to treat the condition. Concluding that conservative therapy failed often leads to a referral to a surgeon or the recommendation of surgery. All of a sudden, a condition that should be manageable with periodic noninvasive treatment and over-the-counter analgesics, becomes an intractable problem for which surgery is seen as the only option. And surgery is expensive.
If a claim reaches this point, it may be fairly stated that the reason conservative therapy failed and that surgery is being proposes is not due to the condition itself, but rather to the claimant’s financial distress which renders a normally tolerable condition into an intolerable one. The claimant’s financial distress is obviously related to the claim, but is not something over which the claims professional has control. The claims professional is not obliged to follow the recommendations of the IME doctor, but it would be highly unusual for a claims professional to continue to award benefits when she does not have to. The claims professional is not responsible for the claimant beyond the four corners of the claim. Except the decisions of the claims professional within the claim can have, as the study shows, consequences outside the four corners of the claim that can seep back into the claim. As such, it seems prudent for claims handlers to be aware, even if they have little control or choice, that the decision to deny benefits to a claimant can have the perverse effect of making the claim worse (from a cost perspective) than it would otherwise have been. At least then it will not be a surprise when the person with ordinary degenerative disc disease ends up with a fusion, failed back syndrome, and a claim for permanent total disability benefits.
When we think of traumatic brain injury, we typically think of symptoms primarily related to cognition and executive function. Hence, we expect to see memory deficits, difficulty concentrating, and difficulty regulating emotions. We associate the brain with thinking so we often focus on the symptoms related to thinking despite the fact that traumatic brain injury can cause a host of physical symptoms as well.
One of the most troubling physical symptoms is the potential for traumatic brain injury to disrupt the body’s circadian rhythm, or its normal sleeping/waking cycle. According to a 2012 Public Library of Science study, traumatic brain injury, “disrupts the oscillatory expression pattern of several circadian clock and clock-associated genes” in the areas of the brain primarily responsible for regulating the sleep/wake cycle (the suprachiasmic nuclie, or SCN, and hippocampus). In short, traumatic brain injury interferes with our ability to sleep normally. Interestingly, this sleep-impairing aspect of traumatic brain injury has effects on our cognition:
Since the hippocampus mediates learning, memory and cognition, and diurnal regulation by the SCN is essential for proper hippocampal function, disruption of the oscillatory gene expression patterns in these two brain areas seems likely to play a role in the long-term cognitive effects of TBI.
In short, if you don’t sleep normally you don’t think normally. This is problematic for other reasons also since sleep disruption is known to increase the likelihood of developing depression, bipolar disorder, diabetes, hypertension, and metabolic disorders.
The wide-ranging and myriad effects of traumatic brain injury make it essential to obtain an accurate diagnosis early in the process to ensure that the best available treatment is offered. While at least 80% of persons with mild traumatic brain injury will experience a complete recovery, there is small but nontrivial subset of patients whose symptoms will persist as chronic problems. If we are going to administer traumatic brain injury claims effectively, it is imperative that we understand many of the effects from traumatic brain injury are not primarily cognitive in nature but rather are physical.
To learn more about how the physical, cognitive, and psychological aspects of traumatic brain injury relate, check out Medical Systems’ 2016 Advanced Medical Topics in Civil Litigation Symposium on April 7, 2016.
There are certain medical procedures that are so common in worker’s compensation that we don’t give them a second thought. Partial meniscectomy is among them. Most people assume that an employee with a torn meniscus who is experiencing catching and locking in their knee should have a partial meniscectomy to treat the symptoms, regardless of whether we think the meniscus tear is work-related. Turns out that our assumption might be wrong.
The Annals of Internal Medicine published results from a study (subscription required) which found that arthroscopic partial meniscectomy is ineffective for relieving catching and locking symptoms in the knee. The study was conducted on a group of patients with medial knee pain who had confirmed meniscus tears without evidence of arthritis. The participants in the study were randomly assigned to either the treatment group, which received the partial meniscectomy, or a control group, who received a sham arthroscopy. Participants were not aware of which group they were in to control possible bias.
The results of the study were surprising because in every reported measure, the patients undergoing the sham procedure reported fewer mechanical symptoms post-surgery. The most impressive results were among those patients reporting that they were symptom free following the procedure. Among this group, only 28% of the participants undergoing the actual partial meniscectomy reported being symptom-free while 41% of the participants who underwent the sham procedure reported being symptom-free. The study’s authors were quick to note, however, that trauma-related meniscus tears causing mechanical symptoms in persons under 35 do respond well to partial meniscectomy. On the other hand, they pointed out that “in a degenerative knee, seemingly similar symptoms may not even be caused by the meniscal tear - more likely they are a reflection of the overall deterioration of the knee and prone to increase as arthritis develops further.”
In the worker’s compensation context, the dispute is typically whether a meniscus tear is traumatic or degenerative. Regardless, the ineffectiveness and the possibility that the symptoms might be “a reflection of the overall deterioration of the knee and prone to increase as arthritis develops further” is a good reason to tread cautiously when an employee is diagnosed with a meniscus tear. If the employee’s meniscus tear is degenerative in nature, there is a strong likelihood that a partial meniscectomy will have a temporary benefit at best and in the long run will not ameliorate or slow the progression of degenerative arthritis. Hence, a meniscus tear in an older worker that is deemed to be work-related is highly likely to become an arthritic knee that will need to be replaced. And despite the fact that it is bad medicine and bad science, the arthritis is likely to be blamed on the meniscus tear even though the arthritis was probably the problem in the first place. Hence, it behooves every claims professional to take a serious look at meniscus claims and to defend them vigorously now that we know the proposed surgery may very well not work and may very well lead to additional (more costly) claims.
A Journal of the Royal Society of Medicine article analyzed paintings of Michelangelo and concluded that the famous artist suffered from degenerative arthritis. In related news, Michelangelo’s estate filed a claim against the Vatican in Wisconsin for TTD and PPD benefits, alleging the arthritis was due to repetitive trauma from the many painting and sculpture commissions the artist received from the Roman Catholic Church during his life. Regarding the reason for filing in Wisconsin, lawyers for the estate said “We’re pretty sure the Wisconsin statute of limitations on this one hasn’t expired yet.” As to whether Wisconsin is an appropriate venue, the lawyers noted “We’ll figure out a way to keep it here. The Milwaukee Art Museum holds a Michelangelo sketch, Studies of the Medici Madonna. We think that will be enough.”
Biting my truant pen, beating myself for spite, “Fool,” said my Muse to me, “look in thy heart, and write.”
-Sir Philip Sydney
The advent of word processing began to change the way we write. The coordination of word processing software with internet search engines, web browsers, and websites has, in some ways, transformed writing. The chief manner in which digital coordination has done so is through the immediate access to sources of information that can be copied and pasted or linked to in written texts. Gone are the days (for most of us) when writing was a monastic experience typified by time spent holed up in a library or an office with sheets of paper and source material strewn across a table top or desk while a piece was constructed by actually putting pen to paper. Owing to the difficulty of altering a piece of writing once it was started, the writer needed to have a clear idea as to what she was going to write before putting pen to paper. A writer composing on a typewriter faced the same challenges.
Writing no longer need be a monastic experience: any place with an electric outlet and a Wi-Fi connection with do. In addition, writing can be more ad hoc and free-flowing because digital text is easily and endlessly emendable and source material is instantly available from anywhere. Copy and paste is always there to add information to any piece of writing. There are obvious benefits to the technological change that makes this type of writing possible: writing is more accessible to more people, research is (usually) easier, and the process of writing feels less daunting as matters of both dedication and cognitive load. However, the technological changes have detriments as well. Much writing is less polished because it is produced so rapidly. Much writing also seems less thoughtful and more reactive. Interestingly, the technological changes have seen a concomitant rise in plagiarism which may be due in part to the way in which writing is composed and source materials are integrated, i.e. by copying and pasting.
Often technological change is cast in binary terms as an either/or proposition: either technological change is good and must be embraced in its entirety or technological change is bad and must be rejected in its entirety. This is unfortunate because technological change is almost never a binary erasure of past forms. Neither is life generally an either/or proposition (whatever certain Danish existentialists may say to the contrary). Rather, technologies coexist as does our ability to use them. One way to improve writing in the current technological milieu is to incorporate older methods of composition into the way we write. In short, we are likely to become more careful and polished writers if we compose at least a portion of what we write using pen and paper.
Handwriting has several advantages over composing at a keyboard. First, there is evidence that writing by hand “may trigger more sophisticated processing: the relative slowness of handwriting seems to promote ‘mental lifting’, a process of comprehending, mulling and digesting ideas…” Second, writing by hand is generally less distracting because the page is not part of a gadget. It is easier to think deeply about a subject when one is not bombarded by pings and notices (or is even working on a device that is tantalizingly close to all them). Third, there is anecdotal evidence that students who wrote responses to questions by hand “produced better writing than those who typed them.”
It must be said that no reasonable person would advocate drafting all communication by hand. This would be stultifying, inefficient, and foolish. Nevertheless, if handwriting can be integrated into some forms of written communications, the benefits to the overall quality of one’s writings will outweigh any minor efficiency costs. Also, to the extent that writing a portion of one’s communications by hand improves the quality and clarity of one’s communication in general, handwriting can actually serve to make one more efficient in the aggregate.
To take advantage of handwriting’s benefits, one should look to communications that by their nature require more time, thought, and coherent organization. A cover letter is a good example. It is easy to copy and paste from records and prior correspondence to cobble a cover letter together quickly; however, the end result will often be disjointed, inconsistent, and confusing. Composing the first draft by hand will force the writer to organize the letter thoughtfully and to stay consistent in the presentation of the relevant facts and in the questions to be answered. Not every cover letter will lend itself to being written by hand, but some do and taking the time to create the first draft by hand will help produce a better cover letter and will help the writer to become a more effective communicator. And more effective communications get the best results.
Pain is a problem that is frequently treated with painkillers. As we are all aware, this has led to a significant problem with addiction to and overdose from opioid painkillers in this country. The reasons for the crisis in prescription opioid addiction and overdose are myriad and have been discussed extensively here and elsewhere. This post is not about the problem, but instead about an opportunity to address it.
The NY Times recently posted an article about the potential to harness the placebo effect to help treat pain which offers an intriguing possibility in the struggle to treat pain without causing addiction and overdose. As Jo Marchant reports, “even when we take a real painkiller, a big chunk of the effect is delivered not by any direct chemical action, but by our expectation that that drug will work. Studies show that widely used painkillers like morphine, buprenorphine and tramadol are markedly less effective if we don’t know we’re taking them.” In fact, placebo effects are so powerful “that drug manufacturers are finding it hard to beat them.” Hence, Marchant suggests that more research should be done to figure out if “prescription” placebos could be used to treat pain.
Marchant recognizes the difficulty with placebos: namely that the effect is generally observed in clinical trials where individuals don’t know if they are getting the active drug or a placebo. In controlled studies, patients expect they will receive a drug that will improve their condition even though they know they might in fact get a placebo. This, as Marchant notes, appears to be a key component of the placebo effect: “[t]he greater our belief that a treatment will work, the better we’ll respond.” There have, however, been studies in which patients knowingly taking placebos still reported statistically significant improvement in their reported level of pain. This leads Marchant to ask the eminently reasonable question, “[w]ith placebo responses in pain so high – and the risks of drugs so severe – why not prescribe a course of ‘honest’ placebos for those who wish to try it, before proceeding, if necessary, to an active drug?”
Pain is ubiquitous in our society and, when chronic, often proves disabling. We know from experience that prescribing opioid painkillers is not the answer to the problem of pain. Perhaps it is time for those of us in the medico-legal world to use whatever muscle we have and advocate for change. A good place to start would be the use of “honest” placebos to treat pain.
Worker’s compensation claims involving chronic pain are typically difficult and expensive to administer. We know that simply putting a person on prescription painkillers doesn’t work, yet that is often the treatment claimants end up on. In these cases, the end result is usually an employee who doesn’t return to work and ends up filing a long term disability or SSDI claim. Either way, the result is not good for the employee, the employer, or the worker’s compensation insurance carrier.
Fortunately, the medical research community is tackling the issue head-on. As a result, the medical community is making some exciting strides in understanding how chronic pain works and, accordingly, what treatments are likely to be the most effective. Researchers at Northwestern University Feinberg School of Medicine reported on one such stride. In an animal study, researchers discovered that chronic pain looks a lot like addiction in the brain. As one author put it, “chronic pain actually rewires the part of the brain controlling whether you feel happy or sad.” In other words, "The study shows you can think of chronic pain as the brain getting addicted to pain," said another author. "The brain circuit that has to do with addiction has gotten involved in the pain process itself."
With this knowledge, the study combined a Parkinson’s drug and an NSAID that target the brain area chronic pain affects. Remarkably, the combined drugs “completely eliminate chronic pain behavior when administered to rodents with chronic pain.” Yes, you read that right: the drugs completely eliminate chronic pain in rodents. Unfortunately, the study involved rodents. Still, the authors are optimist that the effect will translate to humans and have already begun designing human trials.
This development bears following. As those of us in the worker’s compensation world know, chronic pain is debilitating and expensive. Also, it often devolves into chronic use of opioid pain medication that has deleterious psycho-social effects and almost guarantees injured workers will develop a disability mindset. Any new treatment that can stop the downward spiral often associated with chronic pain claims would be a remarkable development.
Most of us have New Year’s resolutions and most of us follow them for a couple of weeks or even a month. Many of the abandoned resolutions focus on improving our health. Usually the reason we abandon the resolutions is that they require us to change our daily routines and habits too much. This is unfortunate because if we, as a nation, improved our health even modestly the results would be enormous. For example, the CDC reports that “the estimated annual medical cost of obesity in the U.S. was $147 billion in 2008 U.S. dollars.” Reducing the obesity rate by 25% would produce a $37 billion savings. This is not small change.
Employers would benefit greatly if Americans became healthier. After all, employers provide the lion’s share of health insurance benefits and bear the brunt of our unhealthy habits in the form of workplace absence, reduced productivity, and disability-related costs. But what can employers do if most of us can’t keep the promises we make to ourselves to become healthier?
According to a new study, employers probably can do more than they think. Medical News Today reported on a recent study presented at the American Heart Association Scientific Sessions 2015 which found that just three minutes of light exercise every 30 minutes has significant blood pressure-lowering effects in overweight and obese persons with Type 2 diabetes. Bronwyn Kingwell, PhD, one of the study’s coauthors noted that "It appears you don't have to do very much. We saw some marked blood pressure reductions over trial days when people did the equivalent of walking to the water cooler or some simple body-weight movements on the spot." This is where employers can make a difference: develop policies that encourage employees to get up and move. As Kingwell notes, even movements done at a person’s workstation have blood-pressure-lowering effects. And the effects of lowering blood pressure are profound both in direct medical costs and indirect employment costs. So dump the resolutions and get your employees to move. Even 3 minutes helps.
Geography determines many things. It should not, however, determine how likely you are to survive cardiac arrest. Unfortunately, geography does just that. According to a New York Times article, persons suffering out-of-hospital cardiac arrest treated by emergency medical service (“EMS”) providers in Seattle have a 19.9% survival rate while persons in Detroit have only a 3% survival rate. It appears that the wide variation in survival rates is due primarily to the quality of the training EMS providers receive and to “spreading awareness that cardiac arrest is a treatable condition, so citizens are quick to perform bystander CPR.”
Survival rates vary widely even for hospitalized patients treated for cardiac arrest. For example, CPR should be attempted for a minimum of 45 minutes but is usually only performed for 15-20 minutes in clinical settings. In addition, clinicians often fail to use more powerful interventions available to them such as extra corporeal membrane oxygenation, in which a patient’s blood is artificially oxygenated. According to one expert interviewed for the article, extra corporeal membrane oxygenation is more common in Japan and South Korea where “they routinely bring people back to life who would remain dead here.” Unfortunately, even in hospitals “it’s a lottery of what you will get” that largely “depend[s] on which doctor happens to receive you, since none of these treatments are regulated.”
It is tragic that 17 out of every hundred people who could survive out-of-hospital cardiac arrest will not simply because they live in Detroit. While cardiac arrest is not a medico-legal issue of the sort we normally address here, it is a human issue. And at this time of year, many of us ask ourselves what we can do to help our fellow human beings. Taking a CPR course that teaches up-to-date techniques is one place to start. Another place is to spread awareness that out-of-hospital cardiac arrest is treatable with immediate bystander CPR. As the article notes, “if Seattle’s innovations could be implemented nationwide for out-of-hospital cardiac arrests…as many as 30,000 lives annually could be saved.” That is a gift worth giving.