Surveillance can be a good way to move a case to closure. The success of the investigation depends on both the adjuster and the investigator’s ability to gather accurate and reliable information. Arm your investigator with as much information as you can provide. Here are some tips to assure effective surveillance:
The best way to obtain a good recorded statement is to have a predetermined process for planning and preparation of the interview. Here are some tips to conduct a thorough interview:
The success of the investigation depends on the adjuster’s ability to gather accurate and reliable information.
In order to resolve claims quickly and cost-effectively, it is necessary to recognize red flags, pre-existing conditions such as health concerns and degenerative issues at the onset. This allows you to determine what tools are necessary to move the claim to closure.
The single most important key factor in keeping claims moving forward is communication, with the claimant, insured, treating doctor(s), and if appropriate your defense attorney.
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Lack of support is the most difficult and critical problem to address because it is often a major factor in an ALJ’s decision that an IME report was not credible. Unfortunately, not all doctors agree on what constitutes adequate support. Thus, the cover letter writer may receive an IME report and conclude that the expert did not support her answers sufficiently, but be faced with a headstrong expert who disagrees. Although difficult, this scenario can be overcome.
First, the IME vendor should work with the writer to explain to the expert the importance of citing relevant evidence, professional experience, and medical literature in the report. The IME vendor should be able to explain to the expert that a conclusory answer without any sort of explanation as to how and why the expert reached the conclusion will not pass muster with the “trier of fact” (ALJ). In truth, experts want to write effective, credible reports because they know that good reports generate more business opportunities. Thus, experts will often be receptive to requests to strengthen their conclusions if the evidence and literature supporting their opinion is obvious and available.
Second, the cover letter writer is typically the person who is most familiar with the claim being addressed, which puts the cover letter writer in the best position to point to the hard evidence and literature that supports the expert’s conclusions. While no IME vendor will tell an expert what to write or what evidence to use, the IME vendor should convey the writer’s concerns to the expert. This would include asking the expert to consider specific relevant evidence or literature in their answers. Ultimately what the cover letter writer and the expert consider to be important evidence may differ, but in cases where the expert’s answer is wholly unsupported they are likely to be receptive to requests to clarify or amplify if the cover letter writer can explain why the answer is problematic unless the expert provides additional support.
No IME vendor can guarantee a perfect report. However, we should expect responsive, consistent, and well-supported IME reports. In judging the report, we should not ask whether the report is favorable but instead whether the expert reached a reasonable and well-supported conclusion from the available evidence. If they did not, your IME vendor can and should work with you to repair deficiencies in the report. Ultimately, those requesting IME reports have the right to expect to receive a reasonable and credible report based on the evidence made available to the expert.
Do you have any ideas on how to strengthen the cover letter so these types of problems are minimized?
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Inconsistent responses to your questions in IME reports can sometimes be tricky if the responses do not directly contradict one another. However, if an expert offers two opinions that directly contradict one another, you should expect your IME vendor’s quality assurance editors to catch the issue and resolve it before it gets to you. Occasionally, direct contradictions slip past even the most detail-oriented editors (usually due to report length). In such cases, the expert will sometimes correct direct contradictions in their review of the report. Direct contradictions usually result from the expert misspeaking while dictating the report and are easily fixed.
The harder inconsistency issues arise when the expert doesn’t directly contradict themselves, but provides more than one opinion on the same issue and the statements are ambiguous or vague. Often, the ambiguity or vagueness arises between statements in the general impression section of the report and the specific questions section. A somewhat frequent example is when the expert states in the general impression section that the examinee continues to suffer from subjective complaints that, in the absence of evidence to the contrary, relate to the injury or exposure in question. The expert then states the examinee sustained no permanency in answer to a specific question. The expert may see no inconsistency in these answers, but the cover letter writer undoubtedly will. In cases where the doctor is following the AMA Guides, this may not be an issue because the Guides explicitly allow for zero permanent impairment in cases where there is no objective evidence of injury and only subjective complaints. And usually this is what the expert means when stating subjective complaints relate to the accident or exposure but no permanency resulted.
In these more difficult cases, the IME vendor’s Quality Assurance editors should make every effort to pick up on such inconsistencies and go back to the expert to obtain an explanation of their position and provide clarity, but these are more difficult to catch than direct contradictions. In such cases, it is certainly fair to point out the ambiguity to the doctor and to ask for clarification on their opinion.
The expert in our example could clarify their opinion by stating something to the effect of, “While the examinee continues to register subjective complaints, there is no objective evidence of injury or impairment; hence, it is my opinion that the examinee has sustained no permanent impairment/partial disability as a result of the accident in question.”
Have you encountered these types of inconsistencies in IME reports and if so how did you resolve them?
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IME Reports can be like the houses from the tale of the three little pigs. A house of straw may look good, but will not stand up to scrutiny. Conversely, a house of bricks, despite a sometimes staid appearance, will withstand even the most withering amounts of scrutiny. In determining whether the expert has constructed a house of straw or a house of bricks, the support the expert cites in reaching their conclusion is critical. For example, an expert that concludes a particular condition is degenerative rather than acute and is hence not related to the work injury or accident but does not explain why this is the case has given the reader a house of straw that will easily be blown down. Instead, the expert should explain why the evidence demonstrates that the condition is degenerative rather than acute.
Thus, in the case of a meniscus tear, the conclusion that the condition is not work-related will be more credible if the doctor explains that a complex tear is most likely to be degenerative because the tearing reflects multiple wear points occurring over a long period of time, that the mechanism of injury reflects a degenerative condition because the onset of pain was insidious and not following an acute twisting episode of the knee, and that the medical literature demonstrates that a significant portion of persons in the examinee’s age cohort who are asymptomatic have degenerative meniscus tears.
The same is true for MMI, work restrictions, extent of permanency, and the need for medical treatment: what evidence demonstrates that medical improvement stopped occurring at a specific point in time? What evidence demonstrates the need for work restrictions or lack thereof? What evidence demonstrates the extent of permanency or the need for ongoing treatment? The point being that a conclusion without support is just waiting for the big bad wolf (or one’s opponent – perhaps they are one and the same!) to blow the house down.
What is your technique to assure the experts’ opinions are evidence-based? Do you have any “battle” stories to share?
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The context in which an IME report arises is important, but our main question will always be: “How do we determine if the report is good once we finally have it?” At the outset, it must be noted that whether the report is favorable or not is of course significant to the reader, but favorability in and of itself does not reflect the report’s quality. Put simply, reason is indifferent to results. If the report is well-reasoned and well-supported, regardless of the favorability of the opinion, it is a good report.
When evaluating an IME report, consistency matters. Inconsistent reports are not credible and they also make it difficult for the reader to figure out what, if anything, must be conceded on the claim. Opinions should be consistent throughout the report with respect to causation, end of healing/maximum medical improvement, relatedness of and necessity for treatment, and work restrictions, among other things. To maximize the likelihood of receiving a consistent report, the specific questions asked of the expert matter. A report is more likely to be consistent if each issue to be resolved is only asked about once. Asking about causation in more than one question risks getting inconsistent answers. Regardless though, one should expect to receive a report from an expert that is consistent with respect to all of the issues about which the expert is asked. Hence, the general discussion section should have the exact same end of healing date as the answer to the specific question about end of healing. Fortunately, inconsistency is easy to fix since it usually just involves the expert picking one of two positions and applying it uniformly.
Logic is important to IME reports. A report in which the expert’s conclusions do not flow from the evidence will not be deemed credible. It should also be noted that whether a conclusion flows logically from the evidence is not the same as the likelihood that the expert would come to that specific conclusion. A conclusion may flow logically from the evidence despite the reader’s opinion that the expert was more likely to reach a different conclusion. The reader should not be upset if the expert reaches a logically consistent and well-supported conclusion even if it is somewhat unexpected. A favorable conclusion that is not supported by the evidence makes a good result a bad one because the conclusion will not be credible.
In conclusion, consistency and logic are imperative to well-supported opinions that make for a credible IME report. The IME vendor can help in this regard by providing thorough reviews of reports and catching both the obvious and the obscure.
Do you have particular doctors that make problems for logic and consistency? What do you do to fix the problem?
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Although there is no cure-all that can make every IME report perfect, some things do make a difference. For example, IME experts are more likely to give more weight to the history that is given closest in time to the injury. Hence, it is vital to take recorded statements as soon as possible after an injury is reported. IME experts are also more likely to be suspicious of an injury’s legitimacy if contradictory histories of injury are given. In addition, evidence of prior problems involving the same body part increases the likelihood that the expert will conclude that the examinee experienced a mere manifestation of a preexisting condition or a temporary aggravation. Diagnostic imaging studies often can be used to predict whether the expert will conclude that the condition is traumatic or preexisting and chronic.
One underappreciated factor in predicting the outcome of a report is mechanism of injury. Often how the examinee claims the injury happened is critically important. We can reliably predict that an orthopedist will find a meniscus tear to be non-industrial if the examinee does not report a twisting mechanism of injury. Also, in cases of significant acute injury and disability, a delay in treatment increases the likelihood that the expert will find that the injury did not occur as alleged and represents the mere manifestation of a preexisting degenerative condition. For example, an expert is more likely to conclude a massive rotator cuff tear has a non-industrial origin if the examinee claims a traumatic episode cause the injury but he nonetheless waited a week to report it because the expert is likely to conclude that a massive acute tear would be so painful and disabling that the examinee could not continue working and would have reported the injury immediately.
Mechanism of injury is important in occupational exposure claims as well. An accurate job description, job video, and physical demands analysis tailored to the examinee can go a long way toward predicting whether the expert will find the work exposure to be a cause of the condition. Finally, the examinee’s personality will have some bearing on the expert’s opinion. Experts tend to be less sympathetic toward hostile and unpleasant persons then friendly and straightforward persons.
What is your technique to substantiate mechanism of injury? Does it work and why?
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Cognitive biases and personal judgment tends to cloud how we assess problems and outcomes. When evaluating a report, we should be aware of these biases so that we can avoid them and the distorted view they give us. Some common cognitive biases include:
Ambiguity– the tendency to avoid options for which missing information makes probability seem ‘unknown;’
Availability heuristic – overestimating the likelihood of events with greater availability in memory, i.e. events more noteworthy or nearer in time;
Anchoring– the tendency to rely too heavily on one piece of information when making decisions (usually the first information we receive);
Confirmation– the tendency to find, interpret, and look for evidence that confirms one’s preconceptions;
Bayesian conservatism – the tendency to revise one’s beliefs insufficiently when presented with new evidence;
Illusion of control – the tendency to overestimate one’s degree of influence over external events;
Sunk cost fallacy – justifying increased investment in a decision based on cumulative prior investment despite new information suggesting that the decision was probably wrong;
Outcome bias – the tendency to judge a decision based on its eventual outcome rather than on the quality of the decision at the time it was made, i.e. the pro athlete that doesn’t get cut because of a huge signing bonus or guaranteed contract long after it becomes obvious that his performance has deteriorated; and
Subjective validation – the tendency to perceive something as true if a subject’s belief demands it be true (“I think he’s a faker so the report is garbage if it doesn’t confirm my belief that he’s a faker”).
Being aware of and attempting to eliminate our innate biases will make us better judges of reports. For example, the cover letter writer may have had seven previous claims with the examinee all of which were suspicious. This will tend to cause the cover letter writer to be subject to the Anchoring Bias, seeking validation and making him prone to negatively judge any outcome that does not confirm his uncertainties. Failing to eliminate these biases can be damaging to the claim if the injury was witnessed, promptly reported, and is supported by adequate objective medical evidence. In such a case, an unbiased person would consider the conclusion that the examinee’s complaints are related to the work injury to be both reasonable and likely.
What bias are you most “guilty” of and why?
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The expectations for an IME report should start with and be based on the objective evidence presented to the expert and the reasonable inferences that can be drawn from that evidence. Without an accurate accounting of the evidence, it is impossible to state with any degree of reliability if the expert’s conclusions are reasonable. This is equally true of favorable and unfavorable reports. For example, if we were unaware that the examinee had a non-industrial injury treated with a meniscectomy, then we would not have any reason to question the expert’s conclusion that the examinee’s total knee replacement related to his work as an electrician.
In any claim there are a limited number of reasonable conclusions that can be drawn from the available evidence. Knowing the claim in depth will ensure that the reader will be able to assess whether the expert’s opinion, favorable or not, is at least reasonable under the circumstances. We may not know exactly what the expert will say but we should be able to figure out the range of possible reasonable responses and how likely each reasonable response is.
To determine the range of conceivable responses, the reader should do his best to remove emotion from the analysis and refrain from making subjective credibility judgments. The first step is to set out the objective evidence. Once the assumptions are drawn out, the reader should analyze how well-supported each is. Then it can be determined how likely each conclusion is to be drawn among the competing inferences. For example, an expert is likely to find a rotator cuff tear to be work related in an examinee who is a painter and performs a significant amount of overhead work. However, if we also know that the examinee is a former college and minor league pitcher who stopped playing baseball near in time to his first medical treatment, we may conclude that it is at least as likely that the expert will attribute the rotator cuff tear to the examinee’s history of pitching instead of his work as a painter. The point is that the reader cannot fairly judge the expert’s opinion unless the reader considers the facts presented to the expert and the reasonable inferences the can be drawn therefrom.
Once the reader has engaged in this level of analysis, he should ask what, if any, additional evidence would make weak inferences strong. As in the example above, if the reader provides the expert evidence of minor league pitching activities (i.e., surveillance footage or witness statements) that would strengthen the likelihood of the expert concluding the pitching was at least in part contributable to the rotator cuff tear.
Conversely, he should consider what evidence, if discovered, would weaken strong inferences. Again as in the example above, if the examinee was a 57 year old who lost his balance while painting a ceiling and hung from scaffolding until rescued, this could have caused the torn rotator cuff.
Considering all possibilities ensures the reader will not be surprised if the value of the IME report changes over time. It also helps the reader to be responsive to new developments by requesting a supplemental or addendum report when necessary.
Do you have any tips or ideas on collecting evidence for the IME expert?
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In the ancient world, epic poems started in medias res, in the middle of things. Although (most) IME reports are not larger-than-life in scope, they do share some characteristics with epic poems. Knowing these shared characteristics is useful to keep in mind when reading IME reports and forming opinions about them. Most noteworthy is the simple fact that IME reports start, like classic poems, in the middle of things. Ancient Greek and Roman authors and critics understood that most texts, even when grand in scope, arise in a specific context and consequently cannot be understood adequately unless the reader is familiar with the history leading up to the events the text describes or depicts. For example, Homer (an ancient Greek poet) would have expected his audience for the Iliad (a story about the Trojan War) to know the historical and mythological background of the Trojan War. As such, the Iliad would not have been judged in a vacuum, but would instead have been judged in a commonly understood historical-mythological context.
An IME report is, in this regard, no different from the Iliad. We cannot judge the value of a report without giving due consideration to the content of the historical facts on which the report rests and how effectively the report deals with them. The Iliad is nothing more than an impressively long, rather disjointed, and perplexing poem unless the reader grasps the history and myths that suffuse the poems and Homer’s treatment of historical and mythological events. Likewise, an IME report cannot be fairly judged unless the reader grasps the evidence that was available to the expert at the time she wrote the report.
How do you judge an IME report? What is your criteria for what constitutes a good IME report?
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Cover letters vary in length and thoroughness from the prolix (40+ pages) to the terse (one sentence). The question is how much is enough? Without a doubt, the most important part of the cover letter is the specific questions asked. Beyond that, the amount of information to include is a matter of personal preference. At a minimum most physicians appreciate knowing who the writer represents and a short neutral summary of the claim. Most physicians do not require (and many will not read) lengthy summaries of the medical records because they do not want to be influenced by another’s interpretation of the records. That being said, many physicians will pay attention when the writer points out a few of the critical pieces of evidence or records. To ensure that the physician addresses anything the writer specifically points to, it is best to ask the physician to address the specific evidence or records in the specific questions section as well. Beyond this, how much or little to include is ultimately up to the writer.
In drafting the cover letter, it helps to remember that the letter is being sent to a medical expert and not a legal expert. Using legal jargon when lay terms are available has the potential to confuse the expert. In cases where legal jargon is necessary, the writer should consider defining the term for the expert to avoid confusion. For example, a worker’s compensation attorney will understand the phrase, “We were impleaded into the case by Respondent X,” while a physician probably will not. Hence, it would be useful to explain to the doctor, “which means that the other insurance company brought us into the case based on Dr. Y’s opinion.” Using simple and clear language and avoiding jargon will go a long way to ensuring that the expert will understand your cover letter and exactly what needs to be answered.
There is no magic bullet that will give us a perfect IME report. However, careful drafting of the cover letter can help ensure that the expert addresses all (and only) the relevant issues. A concise and clear cover letter will also help the expert better understand the claim and the salient evidence. Thus, the cover letter is an important tool that can help you get the best IME possible.
Share your cover letter tips with us.
Tailoring questions to the individual issues of the injury claim is a popular approach among Worker’s Compensation 
attorneys (both defense and plaintiff). The advantage is having the doctor directly address only the issues at hand. This approach will often cite specific facts or records and ask the doctor to address how the facts or records affect the claim for injury or compensation. For example, the doctor may be asked whether the injured worker’s statement to an emergency room doctor that his back has been bothering him on-and-off for several months suggests that his current symptoms relate to a preexisting condition rather than to the specific industrial injury at issue.
The benefit of this approach is that the writer uses the question to ensure that the doctor addresses a critical piece of evidence in their answer. The writer cannot ensure that the physician will address a critical piece of evidence if the writer asks a generic question such as, “what is your opinion on whether the injured worker’s current condition relates to the industrial injury?” Using a tailored question is the most effective way to focus the physician’s attention on specific evidence or records that the writer knows are critical to the claim. It also ensures other issues that were previously irrelevant to the claim are not inadvertently brought out by the expert.
The detriment to this approach is that it can be difficult to ask a tailored question that is not leading. In Wisconsin worker’s compensation cases, attorneys have considerably more leeway on direct examination than they would be given in a civil, personal injury case; nevertheless, it is possible that a blatantly leading question could be deemed impermissible. Also, tailored questions can be seen as compromising the reviewing physician’s independence. The expert is being retained to issue an independent opinion and while it is true that the expert, especially in worker’s compensation, will be expected to answer specific questions related to the claim, it is also true that the ALJ will expect the expert to reach her own conclusion and not merely parrot a conclusion suggested in a question. In addition, the writer must be careful when drafting tailored questions that the questions are broad enough in their entirety to ensure that the expert addresses all of the relevant issues in the case.
In summary, the tailored question approach has the advantage of ensuring that the expert will addresses critical evidence or records in her report and not bring other unconnected issues into the scope of the evaluation. The writer who takes this approach should, however, take care to draft the questions so that they are not impermissibly leading and do not compromise the experts independence.
Do you have any advice for drafting questions? Or maybe a particular approach that has worked well for you?
The most common approach to cover letter questions in personal injury litigation is to completely avoid asking specific questions. The reason has to do with the nature of discoverable information in civil litigation. Since all communications between the attorney and the medical expert are discoverable, some attorneys prefer not to tip their hand to opposing counsel by asking questions that might reveal their strategy or approach to the case. In addition, the doctor is the retaining party’s witness so leading questions in a cover letter may be deemed impermissible. Hence, some attorneys will not risk asking a specific question that could be deemed leading and result in the doctor’s answer being stricken from the report.
Those who take this approach do not want to be seen as influencing the independent physician’s opinion in any way. This can be especially significant if the case ends up in front of a jury because jurors are considerably less skeptical of medical experts’ independence. But, the detriment to not asking specific questions is that this approach relies solely on the doctor to glean the relevant information and issues that need to be addressed from the materials provided. Sometimes the issues to be addressed are obvious, but sometimes they are not.
The risk of not asking any specific questions is the report may not address all of the issues that need to be addressed. This is a very real possibility if no communication takes place with the expert concerning the issues of the case.
This approach for Worker’s Compensation may be a convoluted way to get to the same result as if questions were asked. Additionally, the concerns in a Worker’s Compensation case are not the same because there is no jury to worry about and there is no concerns about leading a witness.
Do you ask specific questions or do you let the doctor provide information to the doctor and simply ask for conclusions? Why?
At Medical Systems, we see a lot of cover letters! Many include questions in the body of the letter that are not included in the specific questions section. Unfortunately, this approach frequently causes problems because many doctors only directly answer questions in the specific questions section of the report. Thus, writers are often surprised when they ask a specific question in the body of the cover letter but the doctor does not specifically answer it.
The reasons for this disconnect between writer and expert are simple. Questions buried in the cover letter’s medical record summary may not be answered because not all experts read the cover letter’s summary of medical records. Why? Because they do not want to be influenced by the writer’s take on the claim. Additionally, many experts assume (rightly or wrongly) that the only questions they are being retained to answer are those that are posed in the specific interrogatives section and do not look anywhere but there for questions. Finally, some experts simply forget the questions that have been asked outside of the specific questions section by the time they dictate the report. Hence, they will often only be looking at the specific questions when they are dictating their general impressions and specific answers.
The bottom line is that if a writer wants a question answered, she should ask it in the specific questions section. The specific interrogatives section is your best opportunity to communicate directly with doctor. Doctors read cover letters with varying degrees of thoroughness. All doctors, however, read the specific questions section of the report. Therefore, the specific questions should be drafted carefully to elicit precisely the information sought – no more or no less. The last thing you want is to get an IME report back and find that the doctor did not address an issue that needed to be addressed.
What strategy do you use for cover letter questions? And Why?
In most cases, the cover letter is the first, last, and only time you will be able to explain the case to the IME doctor and to ask specific questions about the case. As a result, the cover letter is an important document. The question, however, is how important is the cover letter? How much of a difference can a good cover letter make? Can the cover letter determine the outcome of an opinion or even have any impact on the doctor’s opinion?
Like most things in the medico-legal world, the answer is not black or white. Cover letters matter more for some doctors than others: sometimes the cover letter can help shape how an IME doctor answers a question, sometimes the cover letter can precipitate a bad result, and sometimes the cover letter will make little difference in the IME doctor’s opinion. Nevertheless, there are some basic rules that can ensure the reviewing physician squarely addresses the relevant issues and maximize the likelihood of receiving a favorable opinion.
The most important feature of the IME cover letter is the specific questions section, often titled “specific interrogatives.” As a matter of semantics, there is no functional difference between the words “questions” and “interrogatives” though “interrogatives” at least feels more formal. The specific questions posed to an IME physician are often the only questions that an IME physician will answer directly so there is much utility in how the questions are drafted.
How do you approach cover letter questions? What is important to you in drafting a cover letter?
The bad news is that there are no hard and fast rules for what the IME expert needs to see. The good news is that you can follow some general principles to help you determine what evidence the expert should see to give you the strongest and most credible opinion possible. And when in doubt the kitchen sink approach is always an option. Despite being costly, the kitchen sink approach at least guarantees that nothing important will be left out.
So if the kitchen sink approach guarantees that nothing will be left out, why not use it for every IME opinion? Two reasons mitigate against this approach. First, many doctors prefer not to see everything. Second, narrowing the scope of the records presented focuses the expert’s attention.
What if you decide 
to take a more judicious approach than throwing in everything but the kitchen sink? How do you decide what to give the physician? You want include all relevant evidence to avoid the allegation that your expert’s opinion is not credible because she did not review all relevant evidence. Making this determination can be daunting, but in many cases it is a matter of common sense. For example, in a meniscus tear case the expert will probably not need to see records from the time the claimant broke his wrist when he was 15. At a minimum, the IME expert should review everything the opposing party’s expert reviews. When in doubt, err on the side of providing more information than less. If you cannot decide whether to include something, ask yourself two simple questions:
If you can answer both questions with an unequivocal “no” then the doctor probably does not need to see the record. If you cannot answer both questions with an unequivocal “no,” then the doctor should see the record.
Examples are myriad. A doctor would probably want to see dermatology records in an examinee with a history of psoriasis and a claim involving degenerative joint disease of the lumbar spine since psoriatic arthritis would be a potential differential (and non-claim-related) diagnosis. On the other hand, a doctor would probably not want to see dermatology records in an examinee with a history of psoriasis who is making a claim involving a torn anterior cruciate ligament (“ACL”). A doctor probably would not want to see endocrinology records in an examinee with diabetes whose claim involves pulmonary injury. On the other hand, the doctor probably would want to see the endocrinology records if the claim involved nerve compression and symptoms of paresthesia in the fingers or toes.
One of the most vexing questions is whether to include such records as inpatient nursing notes from a postoperative period. As the party responsible for handling the claim, you will be most knowledgeable about the claim and will have noted any relevant information in what is otherwise extraneous material. Few IME experts need to review post-operative nursing notes and the like when they contain no information relevant to the injury at issue; however, some experts such as pulmonologist and infectious disease specialists will need to see everything. When in doubt, contact your IME vendor to determine what records the doctor wants to review. This will help ensure that you are providing the doctor only with the records she wants to review, will focus her attention, and prove more cost-effective than including everything but the kitchen sink.
In many claims, the file contains non-medical information. Common non-medical information includes surveillance, witness statements, job descriptions/videos, material safety data sheets (MSDSs), accident reports, expert reports (i.e., accident reconstruction reports, industrial hygiene reports, learned treatises, etc.), and investigative reports (i.e., law enforcement, OSHA, etc.). The physician should review non-medical information that is likely to affect her assessment of causation or nature and extent of injury. Sometimes making this determination can be difficult.
The physician should review witness statements that question the mechanism of injury, the severity of injury, the extent of disability, or the work-relatedness of injury. In some cases, you may want to withhold the witness statements if you intend call the witness to rebut the examinee’s claim at hearing or trial. However, withholding the witness statement runs the risk of losing a plausible basis for the IME physician to refute causation, work-relatedness, or nature and extent of injury. When determining whether to submit a witness statement to the physician you should ask whether the statement might impact the physician’s opinion on cause, relatedness, or nature and extent. If the answer is ‘yes,’ then they physician should see the statement.
The exception (assuming that you have no other strategic reason for holding the witness statement back) is if there will be evidentiary problems with the witness statement at hearing. Specifically, you may not want to submit a witness statement to a physician if you cannot produce the witness at hearing or trial to authenticate the statement. If you cannot produce the witness at hearing or trial, the physician would be relying on inadmissible hearsay (absent an exception) to form her opinion and the trier of fact would most likely strike any portion of her report that relies on inadmissible hearsay. While this is less of a problem in liability cases than in worker’s compensation cases because the discovery is more extensive, you should still be careful to ensure that what you submit will not make the doctor’s opinion in part inadmissible.
IME physicians often review job descriptions and videos. At first blush this makes sense in cases involving occupational/ repetitive motion injuries or where the mechanism of an accidental injury is disputed. However, not all job descriptions and videos are created equal. Before incurring the cost of having an IME physician review a job description or video, you should determine if the materials will add any value to the physician’s opinion. The job description or video should be specific, accurate, and complete. A job description that is written in nonspecific, generic terms will likely be of little persuasive value to either the doctor or the trier of fact. The job description or video needs to articulate or demonstrate exactly what the examinee does, for how long the examinee does it, and how physically demanding the task is. For example, if an examinee lifts a product off of a conveyor belt and places it on a cart, the physician should know the weight of the objects being lifted, the frequency that the objects are lifted, the height of the conveyor belt, the distance the person has to reach, the distance the person has to travel to get to the cart, the height of the cart, etc. If the physician does not know this information any opinion based on a job description or video will not be persuasive.
Claims for injury or disability often have myriad non-medical reports. These include law enforcement accident reports, MSDSs, accident reconstruction reports, other independent medical examination reports, industrial hygiene reports, engineering reports, learned treatises, and investigative reports (i.e., OSHA, law enforcement), etc. Assessing whether to give these reports to the IME physician introduces a new question: witness competence. While any one of the reports listed above may be relevant to claim, this does not mean that the report will be useful or that the physician will be competent to comment on the relationship between the report and the claimed injuries. For example, a physician without biomechanics or human kinematics training may not be able to competently judge an engineering report to determine if the forces documented in the report are sufficient to cause injury
Another problem that arises in non-medical reports is whether the report adds anything substantive to the doctor’s opinion. For example, law enforcement motor vehicle accident reports are notoriously vague and imprecise in accidents that do not involve serious physical injury. Even the severity of damages section is of dubious value because the categories are vague, the meaning of each category is unclear, and the assessment is based entirely on the subjective opinion of the officer preparing the report.
Determining whether to have the IME expert view surveillance footage, photographs, or reports can be vexing. The main issue is whether withholding the footage to maintain the element of surprise at trial outweighs the benefits to the IME expert’s opinion of incorporating the surveillance into her report. A less common but no less significant issue is whether the surveillance footage will actually help the case.
In the best case scenario, surveillance provides inculpatory evidence or the “gotcha” moment that will turn the case from marginal to a winner. So should you hold the information back or should you give it to the IME expert to review and incorporate into her report? The most sensible place to start when there is any doubt is with litigation counsel. If the person who will try the case wants the surveillance held back, it is probably wise to listen. In general though, you must determine the value of using the surveillance as a surprise versus the value of allowing the IME doctor to view and comment on the surveillance.
There are examples where it is more important for the IME expert to view surveillance than it is to hold the information back for trial. This is particularly true when medical causation is not an issue and the chief issue is the period of temporary total disability. Often issues surrounding the period of temporary total disability are amenable to attack using surveillance footage. Take a torn meniscus claim. The injured worker alleges that he cannot return to anything but sedentary work because standing for any length of time causes pain during the postoperative recovery period. However, you have surveillance footage that captures the claimant standing for an extended period of time without any apparent difficulty. Having the expert view the footage and comment on it may be the only way the expert will be convinced that a healing plateau has been reached.
Dubious claim for permanent disability are a different story. In those cases, the effect of revealing surveillance before trial can be that the claimant will have an opportunity to prepare to address the surveillance in advance of trial, increasing the likelihood that he will be able to offer a credible explanation of what is going on in the footage. In addition, when permanency is the main issue the surveillance footage will usually not change or otherwise bolster the IME expert’s opinion. If the claimant does not have objective sign of permanent injury, the expert will find that out by reviewing the medical records and conducting the physical examination. Surveillance footage is not likely to change the expert’s opinion in any substantive way. Also, withholding the video until trial has the advantage of bolstering the expert’s opinion to the trier of fact on permanency without giving the claimant an opportunity to explain the footage away.
In general, most people will want to withhold surveillance until trial unless the expert cannot form an adequate opinion without viewing the surveillance, i.e., declaring end of healing on a conceded causation claim. When in doubt, consulting with litigation counsel is the most sensible way to determine whether to use the footage. This does not answer the question of whether the surveillance is any good. If you are going to provide footage for the IME expert’s review, the last thing you want is for the report to disclose the footage without altering or strengthening the expert’s opinion.
“But she was carrying a bag of groceries and she had a 10 pound lifting restriction!” or “he was lifting his daughter out of her car seat and he isn’t supposed to bend or lift!”
The biggest problem with surveillance is that we forget a) that people have to live their lives and b) surveillance often lacks context. A claimant is not excused from performing activities of daily living because he got hurt and has work restrictions. To the cry, “but she was carrying a bag of groceries!” comes the retort: “and who, exactly, would have gone grocery shopping if she didn’t?” At hearing the usual litany of redirect questions would elicit the following information: a) the bag didn’t weigh that much and b) I paid for it later when I couldn’t get out of bed because of the increased pain. In this fashion, that documentary of fraud and exaggeration becomes instead persuasive evidence of the severity of the claimant’s condition and the callousness of the insurer in denying the claim. In addition, if the expert views the surveillance and issues opinions based on assumptions that cannot be supported by the actual visual evidence, the doctor’s credibility will suffer.
So when is surveillance footage ‘good’? When it unassailably rebuts a claim the injured person is making. This means that the grocery shopping footage is probably out unless the claimant alleges she is wheelchair-bound and is seen walking without assistance of any kind. If there is any doubt as to what the footage shows or whether it can be explained by putting it in the proper context, then it probably is not as good as you might think. To be useful, surveillance must not be subject to reasonable disputes as to what it depicts.
There is no hard and fast calculus for determining what the IME expert needs to see. The general rule is when in doubt, give more information rather than less. However, in many cases what information will be relevant or germane to the expert’s opinion will be obvious. As a practical matter, just because you have a medical record or other evidence does not mean the expert needs to see it. Instead, ask yourself if the record or evidence will have any impact on the expert’s opinion. You should also rely on your IME vendor to ensure that the expert gets the records he or she wants to see. If you take these simple steps, it will help you obtain the best IME possible.
Claim handlers often have access to medical records from the beginning of the claim and can identify references to prior treatment or inconsistencies that suggest the claim is problematic. Claim handlers also have the opportunity to present the injured worker with a release that can potentially allow the claim handler to obtain records that are outside of the scope of the claim but that could otherwise prove useful for the independent medical expert. As is often the case, when a claimant hires counsel the attorney typically revokes or otherwise limits the authorizations. Thus, it is important for claim handlers to obtain broad releases early on to increase the likelihood that the whole story will be told. Once an attorney is involved with the claim, she will exercise “editorial” control over the claim that will limit the claim handler’s ability to administer the claim effectively. Access to purportedly “unrelated” records can often be a critical point of analysis for the independent medical expert.
One key role the claim handler plays is editor. During the course of any case, claim handlers can spot areas of concern as they arise and take actions to shape how any concerns affect the claim. A problem in a claim may trigger an IME or, if the claim handler flags it, can be useful for an expert who subsequently performs an IME. While claim handlers are not physicians, they have a wealth of experience in dealing with myriad injuries and the normal course of treatment and healing for the injuries. Thus, the claim handler knows that a person with a low back strain without objective evidence of tissue yielding or definite breakage typically heals in 6-8 weeks with conservative treatment. That same claims handler is likely to know that something isn’t right when 12 weeks have elapsed and the injured person shows little or no signs of improvement. Claim Handlers are also in the best position to catch doctor shopping, narcotics abuse, and significant inconsistencies as they occur. Scheduling an IME that flags problems and delineates the claim handler’s suspicions as soon as they arise is significantly more likely to yield a credible IME than doing so a year or more after the fact when the claimant has undergone costly medical procedures or developed a poorly managed chronic pain problem. Again, the claim handler can exercise “editorial” control over how the claim plays out so that problems are headed off before they can become intractable.
Claim handlers are also like investigative journalists. Claim handlers develop a relationship with injured parties that puts them in a unique position to gauge the credibility of a claim. The claim handler will know if a particular injured party is evasive, defensive, honest, etc. and can take advantage of this personal knowledge to adopt the most effective strategy for managing the claim. This personal knowledge can also be useful for claims that move into litigation because the claim handler will be able to convey their knowledge of the claimant and other witnesses to counsel (which is especially important in worker’s compensation jurisdictions that do not have discovery). As everyone who has been involved with litigated claims knows, the claimant’s credibility is always important and often is the most important aspect of the claim. Claim handlers can use their regular contacts with claimants not only to fulfill the technical functions of adjusting the claims but also to learn about the claimant and assess whether he or she is likely to make a credible witness if the case goes to trial or hearing. Such insights into credibility may also be relevant to the analysis of the independent medical expert.
The advantages of being involved with a legal claim from its inception are legion. Every claim essentially involves competing narratives. Whether a claim is paid; how much is paid; whether it is litigated or settled; and for how much it is settled are really just functions of how believable each side’s story is. Following some simple steps in the claim handling process can help shape the story from the beginning to help control whose version is most believable. It can also lead to information, be it medical records, witness statements or employment records, which may be critical to the analysis and conclusions of the independent medical expert. As the outcome of a case often turns on the credibility of the independent medical expert, these early steps can have an important impact on the overall outcome of the claim.
Claims professionals form the foundation of the liability and worker’s compensation world. Every case starts with a claim handler and what the claim handler does with the case will likely have a profound and lasting effect on how the case is resolved.
In essence, every claim is a story constructed out of the evidence. The claim handler’s early involvement can shape what story gets told and whose version is ultimately most credible. IMEs are an integral part of the narrative of any claim. Claim handlers can take a number of steps to increase the likelihood that the IME is consistent with the narrative. This starts with the claimant: the claim handler is the first person in the process with access to the claimant.
An effective recorded statement taken soon after the injury forces the claimant to commit to a specific version of events. Because the statement is recorded, the claimant cannot later say that the statement does not accurately reflect what he said (as claimants will often do with damaging information in the medical records). In addition, the recorded statement provides the independent medical expert with a version of events that is usually more detailed than versions found in the first report of injury and medical records. Thus, if an injured worker changes the history of injury over time, the independent medical expert will be able to contrast the subsequent inconsistencies with the recorded statement (which is often the most credible version of events because of its proximity to the accident). Also, the claim handler can ask questions about prior claims, injuries, and treatment to the same body part. If a claimant is not forthright about the prior medical history in the recorded statement, he or she will appear to be evasive and untruthful when the prior history eventually comes out. And if a claimant is forthright, the claim handler will get access to potentially valuable information for the IME expert to review. Either way, the claims handler can provide additional useful information to the independent medical expert.
Claim handlers have access to the employer and witnesses from the time a claim is reported. In worker’s compensation claims, the employer can provide valuable information about the circumstances of the accident and the injured worker’s job duties which helps to gauge whether the claim is credible or not. Also obtaining witness statements early on can establish a concrete and credible history of injury not subject to the vicissitudes of memory over time. In addition, obtaining witness statements early on is important because witnesses are frequently difficult to locate later in the litigation. Having a concrete and credible history will help ensure that the independent medical expert has the best information available and that his opinion cannot be impugned by appeals to credible, alternate versions of events.
The IME report can serve several functions, but there is one thing common to every IME: the doctor makes the difference.
So how do you choose the best doctor for your case? The reason for seeking the IME will be an important consideration. If causation alone is the issue, then you may want an expert who is skilled at analyzing mechanisms of injury or physical job demands analysis. Let’s say it is indisputable that the examinee needs a knee replacement and the only issue is whether repetitive job activities contributed to the claimant’s knee condition. In this case, you may want an occupational medicine specialist who has experience with job demand analysis and has studied the effects of repetitive activities on the development of osteoarthritis.
On the other hand, if the reasonableness and necessity of treatment is a major issue in the case then you will want to have a specialist qualified to address treatment. Let’s say a lumbar fusion has been recommended but seems likely to fail for some identifiable reason. In this case you will want a spine surgery specialist who can credibly explain the reasons why the proposed surgery is likely to fail and is thus contraindicated.
Once the purpose of the IME has been identified, what are other considerations in determining the best expert? Several strategies can be used. First and foremost is the requester’s experience. Each claims and legal professional will have her own idiosyncrasies and practical experiences when it comes to IME experts. This combination of experience and preference is the chief guide most claim professionals do and should use in choosing an expert. You don’t want to reinvent the wheel: if you had a good experience with an expert on a similar claim in the recent past, you probably don’t need to expend mental energy and productive time searching for another expert. Use the one you already know.
Unfortunately, we run into unique or otherwise unusual situations for which an expert is not immediately obvious to the claim or legal professional. In this case, the investigation should start closest to home and gradually expand outward. Thus, the next step would be to consult one’s colleagues. In any claims department or law firm, the chance of encountering a wholly novel claim is relatively small, which means someone in the department or the office has probably dealt with a similar situation in the past. Consulting with peers is an efficient way to find the right doctor for an unusual claim. This step, when it is successful, has the built in advantage of having evidence to support the decision. For example, if a complicated neurological condition such as syringomyelia is alleged to have arisen from an accident, the appropriate expert may not be immediately obvious. Most orthopedic spine specialists and even the majority of neurosurgeons are unlikely to have experience with this condition. Nevertheless, in a large claims department or a law firm there is a decent possibility that someone has encountered a similar condition in a prior claim and used an IME. If a similar claim exists and the IME was good, then the query should probably be over.
If a survey of one’s peers still does not give the claims professional a satisfactory recommendation for an IME specialist, one may wish to consider the nature of the case and contact an attorney. In most claims, the ultimate disposition would be a trial, whether in an administrative or court setting. Hence, there will be issues to consider that relate to the possibility that a claim will not settle and will end up before a judge, jury, or administrative law judge. In this case, an attorney can provide valuable guidance with respect to qualified experts that will be credible in the particular litigation forum. An expert that might be well-suited for a personal injury claim could be ill-suited for a worker’s compensation claim or vice-versa. Practicing attorneys with whom you have a relationship can be an enormously valuable resource to use when deciding on what IME expert to use.
Your IME vendor can also be an excellent source of information regarding what doctors specialize in or have a clinical interest in a particular condition. Your IME vendor should have the tools necessary to identify the right expert. The best vendors actively recruit doctors to offer the widest range of specialists possible. In addition, when the best vendors vet their experts, they identify and note each expert’s specialties and areas of clinical interest to make the choice easier for you. The best vendors also schedule countless IME’s for many different clients, so there is a good chance that the vendor has run into a similar condition in 
the past and can recommend a physician based on the earlier case. Finally, the best vendors will be sensitive to your requirements and will tailor any recommendations so that the doctors put forward will prepare a report that meets your requirements.
At Medical Systems we strive to be a resource for you. We have a wealth of knowledge and experience that we put at your disposal. If you have a claim, chances are we’ve seen one like it before. We know what’s worked in the past and we share that information with our clients. And we get to know our clients so that we can match the expert that not only has the right experience but also meets your specific needs, be it turnaround time, style of writing, or type of analysis. While there are no guarantees, we will do our part to ensure that you choose the best and most qualified expert for your claim.
Choosing the medical expert is a critical decision in the life of your claim or case. This is true in every case, but can be especially true in some situations where you may be bound to your selected expert through the entire case. Regardless, be sure to consider all the issues on your case, the medical questions, and the purposes of the report, and also use all available resources to ensure that your choice of medical expert is the best possible option.
“Did the accident (or exposure) cause the condition?” is usually the crux of most IME reports. We expect the expert to answer “yes” or “no” and explain why and how she came to that conclusion. The worst answer is some variation of “I’m not sure.” This is enormously frustrating. The person asking the question rightfully expects to receive a definitive answer and “I’m not sure” is tantamount to no opinion. As a practical matter, “I’m not sure” functions only marginally better than having no report at all.
We have all seen variations of “I’m not sure” in IME reports. But what can be done to avoid it? A carefully worded cover letter specifically explaining the standard that the writer is asking the expert to meet can help. One simple way to explain the expectations for answering basic causation questions is through a coin flip analogy. Every physician understands that a coin flip is a 50/50 proposition, meaning that whenever a coin is flipped the likelihood that it will come up heads is exactly equal to the likelihood that it will come up tails. It is easy to explain that you are asking the expert to determine whether the likelihood that the accident (or exposure) caused the condition is greater than a coin flip based on the available information. If so, then the causation question should be answered “yes.” If the likelihood that the accident (or exposure) caused the condition complained of is equal to or less than a coin flip, then the causation question should be answered “no.” The vast majority of experts will understand this analogy and it often helps prevent them from equivocating on causation.
Experts also are prone to conflating medical diagnostic impression and causation in an IME report. The diagnostic impression as reflected in chart notes is often blurry and by necessity uncertain. This is why chart notes frequently reflect more than one diagnostic impression. For example, a person who presents with carpal tunnel-like symptoms my carry a differential diagnosis of carpal tunnel syndrome versus cervical spine nerve root impingement versus shoulder impingement. The doctor will keep the competing diagnoses in the chart until tests are performed to rule out (or confirm) causes. It would be unwise to establish a definitive diagnosis in the clinical setting if there is not definitive medical evidence supporting one diagnosis over the others, even if the doctor believes, based on the available evidence, that one diagnosis may be more likely than the others.
This is the precise issue that experts performing IMEs must overcome. Again, the cover letter can help them. An effective way to help doctors move away from the medical diagnostic impression model is to explain to them that answering the causation question ‘yes’ or ‘no’ neither precludes the accident (or exposure) as a cause nor fixes the expert’s opinion for all of time. Definitively answering the question is the equivalent of stating that based on the available information, it is more likely than not that the accident (or exposure) did not cause the condition. This opinion does not preclude other causes or state that is 100% certain with respect to the cause of the condition. The opinion also does not lock the expert into her opinion in the future. The opinion is based on information available at the time the opinion was rendered. If additional information becomes available in the future, the expert should be assured that it is permissible and expected that her opinion will conform to the new information, even if that means her opinion on causation does a 180° flip. Explicitly explaining the nature of the opinion expected, its limited effect, and the possibility of changing it in light of new information will help the expert be more comfortable with stating a definitive opinion on causation.
Taking these steps in the cover letter can go a long way toward eliminating ambiguous, vague, or equivocal opinions on causation in IME reports. We don’t expect perfection out of our experts, but we do expect that they will provide clear answers to the questions that we ask them. Helping the expert understand exactly what those expectations mean will help her fulfill them.
Low back problems are a necessary evil of being human due to our anatomy and physiology. This is of great importance in many medicolegal claims in which an injury or repetitive stress exposure is alleged to have caused low back problems, thereby attempting to shift responsibility for the costs imposed by low back problems from the individual and his or her health insurance (if applicable) to the liability policyholder/employer and the liability/workers compensation insurance carrier. The high prevalence of low back problems in the general population makes differentiating between idiopathic problems and those caused by an accident or repetitive stress exposure extremely difficult. It is also complicated by the fact that the idea of a manifestation of a preexisting condition is at odds with our folk understanding of temporal proximity and causality, i.e. if two things happen near in time, we tend to assume they are causally related, with the first thing causing the second thing.
Human beings perform many cognitive tasks exceptionally well. Accurately assigning causation is not one of them. In particular, we are prone to making a priori assumptions about how things work and then confirming our assumptions (confirmation bias) post hoc (post hoc ergo propter hoc fallacy). Low back pain is a notable example: we often associate low back pain with lumbar disc pathology discovered on post-injury MRI despite the fact that we know from the medical literature large percentages of the general population have similar MRI findings but no low back pain. We make the assumption based on our assessment of human anatomy and physiology that lumbar discs work in a certain way and when they are compromised it must cause discernible effects such as low back pain. We then see evidence of compromised lumbar discs in persons who complain of low back pain following an injury or exposure and we leap to the bias-confirming post hoc conclusion that the pathology or compromised condition is causing the pain. So strong is this impulse that we ascribe causation even though we are well-aware of the medical literature demonstrating that disc pathology is an exceedingly poor proxy for low back pain. The coup de grace of this faulty reasoning is the post hoc association between disc pathology and pain: physicians will regularly conclude that a specific event or long term exposure caused a herniated disc despite the person being in a population cohort in which it is at least as likely than not that herniated disc was present before the injury or exposure. The only reasonable way one could reach this conclusion is with a pre-injury MRI showing there was not a herniated disc.
The problem with this sort of faulty reasoning is that it can lead to treatment that is extraordinarily expensive but ineffective. In a low back pain claim with post-injury evidence of a herniated disc, the treatment is often a discectomy/laminectomy with or without fusion. If the herniated disc was not causing the pain, the surgery will have been unnecessary. While the placebo effect will almost certainly result in some short term improvement, the long term outcomes are likely to be, at best, no different than they would have been with conservative therapy because the treatment will have been aimed at discal pathology that was benign. The triers of fact in the medicolegal systems will, however, require the workers compensation or liability carriers to absorb the costs of surgery, including non-medical costs that are recoverable under the different systems (such as indemnity payments in worker’s compensation or wage loss and pain and suffering in personal injury), because they are likely to believe the opinion that the herniated disc is the problem. This belief is based on the folk (mis)understanding of cause and effect.
There is an expression in statistics that has been borrowed by cognitive psychologists: regression to the mean. It simply holds that unusual states, events, or findings tend to be temporary and regress over time to the average or status quo. This is true with many non-malignant medical conditions as well. This is both profound and somewhat dispiriting because it means that most of these conditions will get better over time regardless of treatment. It is hence a fallacy to ascribe efficacy to treatment or causation based on recovery following treatment when a condition simply regresses to the mean because it would have regressed to the mean regardless of treatment.
Much attention has been paid to this phenomenon in the context of overusing antibiotics. Most people who go the doctor for upper respiratory infections wait to seek treatment until the condition has been present for some time. They then go to the doctor, ask for antibiotics, take antibiotics, and recover from the condition. These persons then assume that the antibiotics caused the improvement. The problem with the assumption is that most of these persons almost certainly had viral infections that simply got better according to the natural course of the condition. ANTIOBIOTICS DO NOT AFFECT VIRUSES AT ALL. The fact that the condition improved after starting antibiotics was due to the simple fact that the person started the antibiotics at about the time the condition would improve on its own. The antibiotics had nothing to do with the condition improving because ANTIBIOTICS ARE 100% INEFFECTIVE AGAINST VIRUSES.
The same holds true for many persons with low back pain who undergo surgery to remove a herniated disc. Low back pain usually stabilizes over time after an acute exacerbation regardless of treatment. Given enough time, it is highly likely that the person would have gotten better or at least recovered to the same extent regardless of the treatment received (including no treatment). The fact that the person improved after surgery does not indicate that the surgery caused the improvement. Instead, the relation of surgery and improved low back pain is almost certainly coincidental. We regress to the mean. That the surgery occurred and improvement subsequently happened is not evidence that the surgery was effective or that the herniated disc was causing the low back pain.
How do we know this? The medical literature is replete with evidence to that end. Take for example the study, “Influence of Low Back Pain and Prognostic Value of MRI in Sciatica Patients in Relation to Back Pain.” The study was undertaken to evaluate the correlation between MRI findings and outcomes in patients with sciatica alone versus patients with sciatica and back pain. As the authors note, “it remains unclear to what extent morphological changes seen on MRI in sciatica patients are associated with back pain, rather than being a representation of irrelevant differences between individuals.” The study found “that herniated discs and nerve root compression on MRI were more prevalent among patients with predominantly sciatica compared to those who suffered from additional back pain.” Interestingly, patients with sciatica and low back pain but without a herniated disc or nerve root compression fared worse after one year than those patients with a herniated disc or nerve root compression. And “remarkably large disc herniations and extruded disc herniations were … equally distributed between the two groups,” causing the authors to conclude that “the worldwide accepted mechanical compression theory therefore seems not to offer a sufficient explanation for the cause of the disabling back and leg symptoms in sciatica.”
Other studies demonstrate similar findings that call into question our ability to assign causation of low back pain to herniated discs and nerve root compression. The well-known twin study demonstrates the difficulty in linking specific activities with low back pain. As the authors in that study report, “disc degeneration appears to be determined in great part by genetic influences. Although environmental factors also play a role, it is not primarily through routine physical loading exposures (eg, heavy vs. light physical demands) as once suspected.” As noted above, other studies have found that large portions of the general population have disc pathology on MRI, but no low back pain. Still other studies find low back pain in the absence of disc pathology on MRI. Despite this evidence, triers of fact routinely base liability decisions on medical opinions that conclude an injury or exposure caused a herniated disc based on a post-injury MRI (which is almost impossible to conclude from a rational, evidentiary perspective in the absence of a pre-injury or exposure MRI) and that the herniated disc is causing low back pain (which runs contrary to the received scientific evidence).
What does this mean for medicolegal claims? It suggests that every claim for injury- or exposure-related back pain based on post-injury MRI scans demonstrating a herniated disc should be carefully scrutinized. In addition, worker’s compensation and liability carriers should take every opportunity to educate triers of fact regarding the lack of a causal nexus between herniated discs and low back pain. Independent medical examiners should point to the relevant literature to begin convincing triers of fact that there is no evidentiary link between low back pain and herniated lumbar discs. In this regard, insurance carriers can look to how the relationship of carpal tunnel syndrome to repetitive keyboard use evolved over time. When these claims first started arising, triers of fact in worker’s compensation accepted the link based on treating physician opinions seemingly without question. This was based on the fact that claimants reported experiencing symptoms while using computer keyboards. The medical literature did not support this association. Independent medical examiners began citing to research finding the opposite: that repetitive keyboarding is not a risk factor for or a cause of carpal tunnel syndrome. In at least some jurisdictions, the triers of fact and treating physicians eventually listened and stopped finding a relationship between repetitive keyboarding and carpal tunnel syndrome.
A similar shift ought to occur in the context of herniated discs and low back pain. While this does not suggest that low back pain itself is unrelated to an injury or exposure, it would radically reduce costs because it would limit surgery for herniated discs to cases where there is discernible nerve impingement causing motor and sensory deficits rather than in cases of low back pain alone. Although human beings are not very good at accurately assessing causation, we can learn to go against our instincts if there is high quality evidence denying causation and experts willing to hammer that point home. It is time to hammer home the point that disc pathology on MRI is poorly correlated to low back pain and limit expensive surgical procedures the efficacy of which is not supported by the medical literature. The simple fact of the matter is that costs for treating a condition that cannot be reliably related to an accident or repetitive stress exposure should not be borne by a liability or worker’s compensation carrier (especially when the condition is poorly correlated with the alleged health effects).
Choosing the right IME doctor can be challenging, especially in complex claims or those with unusual injuries. Numerous factors influence the decision-making process. However, two of the most important factors include familiarity with the injury or condition at issue and knowing the precise claims at issue. These factors are particularly important because many injuries or conditions can be treated by different specialists and it can be difficult in these cases to figure out which specialist is truly the most qualified and credible for the claim at hand. In simple terms, merely knowing the diagnosis is not enough.
For example, an orthopedic surgeon may amputate toes in a diabetic foot infection claim, but if the cause of the infection is themain issue an endocrinologist, infectious disease specialist, or podiatrist may be better able to write a detailed, credible report as to what caused the infection. The reason is simple: orthopedic surgeons do not treat diabetic foot problems unless amputation is required. The treatment of diabetes, infection risk, and diabetic foot infection management are handled by other specialists. On the other hand, if permanent impairment is the main issue then an orthopedic surgeon may well be the best expert to use because they are uniquely qualified to evaluate the effects of surgeries they perform.
A similar situation arises in the context of moderate to severe traumatic brain injury. A neurosurgeon will typically treat the initial injury, but once the condition has stabilized and requires no further surgical management care is usually transferred to a rehabilitation specialist (or more than one). Once rehabilitation and recovery are complete, care is transferred again, often to a neurologist and a psychiatrist. In addition, neuropsychologists are often involved in the rehabilitation and recovery process to assess mental functioning. If the main issue in the claim is the extent of permanency and the type and nature of future care, a neurosurgeon would be of limited value. However, if the issue is the appropriateness of care in the critical post-traumatic period, a neurosurgeon would obviously be the most qualified expert. Yet another iteration may involve questions over the extent of mental impairment, in which case a neuropsychologist would be the most qualified expert.
Facial injuries involving the eye can be difficult also. The initial treatment may involve an ophthalmologist and a plastic surgeon. Once the emergency treatment is completed, care may be transferred to a different ophthalmologist for treatment and management of long term vision issues. Severe ocular injuries can precipitate neurological issues as well, especially headaches. Sinus and nasal problems can also be present. In such complicated cases, the actual issues must be examined to assess which experts to use. For example, in a penetrating eye injury where the patient claims he cannot return to work an ophthalmologist may not be the best choice where the failure to return to work is unrelated to vision loss. In penetrating eye injuries, the loss of intraocular pressure can precipitate headaches with position changes. If the claimant was a laborer who routinely has to bend over or look up, a neurologist may very well be the best expert to assess whether the work conditions would in fact precipitate headaches that would prevent the claimant from returning to his employment. Again, knowledge of both the injury and the actual claim being made are necessary to make the best doctor choice.
Choosing the right doctor is often vexing. Making the most informed doctor choice not only requires knowledge of the type of injury or condition, but also the precise issues or claims being made in relation to the injury or condition. To make an informed doctor choice, it is important to recognize that the seemingly obvious specialist might not actually be the best choice depending on what exactly is at issue. Hence, being familiar with both the injury or condition and the precise issues involved in the claim are necessary to make the best doctor choice.
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).
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.
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.
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.
Everyone seeks the talisman that will mysteriously cause every claim to be resolved favorably. Sometimes we want the IME report to be that talisman. Unfortunately, IME reports do not possess supernatural influence over the outcome of claims; however, well-written reports are key elements to successfully administering claims. And fortunately, claim administrators can take steps to help ensure they receive well-written IME reports. Most importantly, claim administers should take care in drafting IME cover letters because well-written cover letters lead to well-written IME reports.
The goal in obtaining an IME report is to have the expert clearly and persuasively resolve specific issues or questions about the claim. It follows from this that communicating the issues or questions to be answered in a clear and coherent manner to the expert is necessary for the expert to understand the claim and the specific matters that need to be addressed. Claim administrators communicate this information to the expert via the cover letter. Hence, the cover letter must be well-written to achieve the goals of clearly communicating the specific matters to be addressed to the expert.
But what does it mean for a cover letter to be well-written? First, a well-written cover letter must be consistent. For example, a cover letter should not ask about the possibility of an occupational injury or disease if the only claim being alleged is a specific, traumatic, acute injury. If the cover letter is inconsistent, it can create ambiguity or vagueness that may confuse the expert as to the precise issues that need to be addressed. In the occupational injury or disease example, the expert may conclude that the alleged acute injury did not cause the condition complained of, but that the job activities generally caused the condition. Hence, the claim administrator will buy a claim that would otherwise have remained dormant. The cover letter should be both internally consistent and consistent with the actual claim being made. Otherwise, the expert may very well issue a confusing opinion or, worse yet, find an injury compensable that the claimant didn’t even raise.
Second, cover letters should be organized in a standard format. Using a standard form for cover letters benefits both the writer and the expert. The writer benefits because the standard form acts as an implicit checklist of the information that needs to be communicated to the expert. This reduces the likelihood that necessary information will be left out. Using a standard form also increases the writer’s efficiency because the writer does not have waste mental energy thinking about how he is going to format or structure every letter he writes. Finally, the expert benefits because she will know where to look to find information on what the case is about, the noteworthy medical records, and the specific questions to be answered. Thus, if the expert has a question about the date of injury, she will know precisely where to look in the cover letter to find it. Likewise, the standard form will minimize the likelihood that the expert will leave questions unanswered because she will know exactly where to look to the questions being asked.
Third, cover letter writers should use clear, direct, and simple language whenever possible. You may need to know what a ‘calumny’ is if you are taking the SAT, but you are probably better off describing the claimant’s version of events as ‘difficult to believe’ in an IME letter. The goal of the cover letter is to communicate to the expert exactly what she needs to know and what questions she needs to answer. The goal is most effectively accomplished with simple and direct language.
This was driven home for me recently in an IME that arose out of a claim with multiple respondents. The cover letter writer explained to the expert that they were ‘impleaded’ into the case by one of the insurance companies. The expert was confused and had to ask us what the cover letter writer meant by ‘impleaded.’ The client was fortunate that the expert was not afraid to ask the question and that we knew the answer. The problem is the cover letter writer used legal jargon that is commonly understood among attorneys and claims administrators, but is not a concept that a medical expert would have any reason to know. A more simple and direct way to explain the case to the doctor would have been to state:
We represent XYZ. The employee claims she hurt her right shoulder while working for ABC; however, ABC got an IME report from Dr. Doe who concluded that the employee injured her shoulder while working for our client XYZ. As a result of Dr. Doe’s opinion, ABC claims that XYZ is responsible for the employee’s right shoulder condition and brought us into the case.
If the cover letter writer used simple and direct language, the expert would have understood exactly what the claim was about and why he was being asked for his opinion. Failing to use straightforward language greatly increases the risk that the expert will be confused and issue a confusing report.
Fourth, good writing is good editing. Time is always at a premium for claims professionals and attorneys, but every IME cover letter writer should take the time to reread and edit the letter before sending it to the expert. Editing the cover letter is the only way to ensure that the cover letter is clear and coherent. When we are busy, we may be tempted to release IME cover letters without editing them, but the cost of doing so far exceeds the benefit of the time saved. For example, it is easy to misstate the side of the body to which an injury occurred when hurrying to get out a cover letter. While experts will often correct the mistake when they review the records, sometimes the impression from the cover letter sticks in the expert’s mind and she perpetuates the mistake in the IME report. An IME report that misstates the side of the body actually injured loses credibility, even if it appears that the mistake was one of nomenclature rather than intent.
As noted above, there are no talismans in claims administration. Nevertheless, claims administrators can take steps to improve the likelihood that they will be able to resolve claims favorably. Crafting a well-written cover letter is one such step. A well-written cover letter will insure that the expert will understand the case, know what issues need to be addressed, and will be aware of the writer’s role in the case. As a result, the expert will be able to address all the relevant issues from a position of knowledge and understanding. And when good questions are answered by knowledgeable experts, good IME reports result.
Few things are as frustrating as preparing an IME cover letter and getting a report back that doesn’t answer all of the questions. Most people drafting IME cover letters use a standard form letter that starts by explaining the case then summarizes the relevant records and finishes with a section setting out the specific questions the expert is to answer. The purpose of using standardized form letters is to communicate as effectively as possible. Form letters have a number of qualities that make them effective. Chief among these qualities are form letters’ consistency and predictability. In the case of an IME cover letter, the expert knows where to look to find the case summary, a recitation of relevant records, and the specific questions the writer wants answered. The letter is drafted in this predictable and stylized way so the expert doesn’t have to waste any time figuring out what is going on and what they are being asked to do about it.
Problems ensue when cover letter writers depart from the standard form because the expert cannot rely on finding the relevant information where she expects to find it. This is especially problematic when writers intersperse questions for the expert throughout the cover letter rather than placing all of the questions in the specific questions section. The main problem in placing questions outside the specific question section is that experts often overlook or forget to answer questions buried in the body of cover letters.
It can be frustrating when a question in the IME cover letter goes unanswered, but the process of how most experts prepare IME reports explains how and why this happens. Most experts receive a cover letter with the relevant records attached to it. Usually the expert will read the cover letter to learn about the case and why they are being retained. Some experts will go through and dictate the record review portion of the report when they receive the records, especially if the records are voluminous. At a later date, the expert will meet with and examine the subject. Only after the expert examines the subject will she dictate the history, examination, impressions, and specific interrogatives portion of the report. When the expert gets to the specific interrogatives, she will typically review the specific questions section of the cover letter to determine what questions the client wants answered. Ordinarily the expert will not reread the entire cover letter before answering the specific questions asked. Finally, the expert will dictate her answer to the specific questions and with that the report is completed.
Experts tend to miss questions posed in the body of cover letters because they follow a specific method of preparing reports that relies on the assumption that cover letters, as standardized form letters, will stay true to the form. In particular, experts assume that if a cover letter has a section in which specific questions are asked, all the specific questions they are expected to answer will appear there (a reasonable assumption given the fact that a separate section is being devoted specifically to the questions the writer wants answered). The very purpose of the form is to make clear to the expert what the case is about and what questions need to be answered. Departures from the form defeat its purpose.
To minimize the likelihood that a question will go unanswered, the cover letter writer should include all questions in the specific questions section of the letter. For example, if the writer summarizes an MRI scan report that demonstrates no evidence of an acute injury process despite the scan being taken within 48 hours of the alleged injury, the writer may point to this and ask the expert about the significance of the MRI findings. However, to limit the possibility that the question will go unanswered, the writer should repeat the question in the specific questions section. Doing so may seem like overkill, but repeating the question in the specific questions section of the cover letter will practically guaranty that the expert will answer the question. The standardized form of cover letters puts all the questions in a specific questions section in large part so that the expert neither has to guess at what opinions the client wants nor reread the cover letter numerous times to be sure she has answered all the questions the client wants answered.
Cover letters are effective when they are consistent and predictable. Asking every question the writer wants answered in the section devoted to the specific questions hews to this consistency and predictability. Interspersing questions throughout cover letters makes them inconsistent and unpredictable, which creates a significant risk that some of the questions will go unanswered. Avoid the risk. Put the questions where the expert expects to find them.
Pulmonary claims in worker’s compensation can be difficult if there is not a discrete release of harmful airborne particulate matter or chemicals that is well-documented. In cases with longer exposure time or with exposure to common particulate matter such as ‘dust’ or other materials that may cause pulmonary irritation, finding a plausible non-industrial cause for the pulmonary injury or condition can be both challenging and vital to the claim’s defense. However, a UK study reveals a potential source for non-industrial exposure to harmful particulate matter and vapors: home improvement projects. According to Medical News Today, the study found that “peak concentrations of potentially harmful ultrafine particles reach up to 4,000 times local background levels when undertaking building activities such as drilling.” The authors note that do-it-yourself (“DIY”) home improvement has increased in recent years and continues to grow in the United Kingdom, a trend also common to the United States.
In the United States, OSHA mandates worker’s on construction sites be provided with personal protective equipment such as respirator masks when necessary to protect employees from harmful particulate matter and vapors. OSHA also requires that employers use effective engineering controls such as confinement and ventilation to limit workers’ exposure to harmful particulate matter. Unfortunately, individuals who engage in home improvement projects are not required to use personal protective equipment or engineering controls to protect themselves. Thus, home improvement projects, especially those involving drilling, cutting, sanding, or solvent use can be a significant source of pulmonary exposure to harmful airborne particulate matter or vapors.
In the worker’s compensation context, the rise in DIY home improvement is a potential non-industrial cause of pulmonary injuries and conditions. Claim handlers in pulmonary claims should ask claimants about DIY home improvement project history to see if there is a potential exposure source outside the workplace for their problems. Also, claim handlers may wish to consider interviewing co-workers since many people who engage in DIY home improvement projects like to talk about them. Prompt surveillance could also be useful because larger scale DIY projects often generate construction waste that is at least temporarily stored at the home and is often visible from the street. Finally, independent pulmonary experts should be instructed to ask claimants about their DIY home improvement project history if they are not already doing so. Dry-walling a bedroom surely would be more likely to cause pulmonary problems than exposure to the everyday amount of dust present on a loading dock in a warehouse (or wherever the exposure is alleged to have occurred).
Perhaps the most vexing problem with IMEs is the conflation of correlation with causation. Nowhere is this more frustrating than in the case of symptomatic aggravation of (usually) degenerative arthritis of the shoulder, knee, and back. The classic scenario is something like this: employee is at work, suffers some sort of traumatic injury. Employee goes to the doctor and is diagnosed with a strain. Employee continues going to the doctor and says my shoulder/knee/back still hurts and it never hurt before the accident. Doctor then concludes that the accident caused a symptomatic aggravation of a preexisting degenerative condition. In Wisconsin parlance, the injury precipitated, aggravated, and accelerated a definitely preexisting, degenerative condition beyond its normal progression. Illinois, being less inclined to the prolix than its northern neighbor, simply would say the injury aggravated a preexisting condition. Either way, such claims are challenging because the ALJ or the Arbitrator sees an employee without symptomatic complaints before a work injury and symptomatic complaints after a work injury, causing her to conclude that the work injury aggravated the preexisting condition which is causing the ongoing symptoms. Frankly, it is normal for anyone faced with such facts to conclude that the correlation of reported symptom onset with a work injury means that the work injury caused the symptom onset. This is simply the way our minds process and make sense of the world: evolutionarily, it would have been better not to eat the fruit that you got sick shortly after eating than to question whether the fruit was in fact the cause of the illness.
The trick, of course, is how to combat this natural tendency to conflate correlation and causation. Often the only chance to do so is through the independent medical examination. Many physicians, when they look at a case objectively from the perspective of an independent third party, will conclude that a minor work injury causing only a strain to a joint and its surrounding structures cannot cause the symptomatic aggravation of preexisting arthritis. Regardless, the crucial factor is how the doctor explains the reason or reasons for his opinion. And independent expert who simply states that a minor injury was of an insufficient magnitude to cause permanent, symptomatic aggravation of preexisting arthritis is not likely to carry the day. It may be perfectly clear to the expert as to why the minor injury could not have caused the ongoing symptoms, but it will not be similarly clear to the ALJ or the Arbitrator without a more detailed explanation.
To convince the ALJ or the Arbitrator, the expert must provide a sufficient explanation of why the injury could not have caused the ongoing symptoms. This is where claims and legal professionals can make a substantial difference. All persons have experiences that render them especially competent in various aspects of their lives. For some it may be simply in the personal, i.e. facility with one’s social network and the vast amount of information necessary to negotiate it fluidly and with limited effort. For others, like independent medical experts, it may be highly targeted and professional, i.e. the neurosurgeon with expertise in syringomyelia. In either case, when a person speaks about a topic on which he possesses a wealth of knowledge that is both current and relevant, he often forgets to detail the assumptions or facts on which his opinion is based when speaking with strangers, the uninitiated, or laypersons. For example, a person may say to another that Sarah would never be interested in Brendan. To the friend, it may be perfectly understandable why: both parties know Sarah is conservative and values financial stability in a partner while Brendan is an underemployed artist for whom there can never be too much body art and modification. The stranger who does not know Sarah and Brendan would wonder why. The only thing that could possibly support the opinion is the trustworthiness of the speaker. The stranger would not know why Sarah would never be interested in Brendan unless the speaker explained the facts on which his opinion is based.
The mechanics of IME credibility work similarly. Medical experts are used to speaking about patients with other medical experts. These experts share a common education and professional background acquired over thousands and thousands of hours of training and practice. Hence, when an orthopedic surgeon sees a patient with a minor knee strain and concludes the injury was of an insufficient magnitude to cause permanent, symptomatic aggravation of arthritis, other orthopedic surgeons will immediately understand why based on their training, experience, and review of the medical records. No further information is required to make the opinion more intelligible or more credible.
The problem is that ALJs and Arbitrators are not trained orthopedic surgeons. They may have read hundreds of IME reports and countless medical records, but they are not physicians, do not have the same level of knowledge, and have not actually treated actual patients with arthritis. Hence, ALJs and Arbitrators lack the requisite level of knowledge to automatically fill in the blanks that the statement leaves open. Like the Sarah and Brendan case, the speaker (our medical expert), must explain why the opinion is accurate.
And this is where the claims and legal professionals come in: one of the best ways to ensure that the expert provides at least some explanation for her opinion is simply to ask for an explanation of why in the cover letter. We frequently encounter the following question or a near variation:
If the work incident did not directly cause the condition, did the work injury precipitate, aggravate, and accelerate a definitely preexisting, degenerative condition beyond normal progression?
We rarely, however, encounter any follow-up such as:
If you conclude the work incident did not directly cause the condition or aggravate a preexisting condition beyond normal progression, please explain why the current condition is unrelated to the work incident.
At a minimum, this follow-up typically results in the physician offering something more than a conclusory statement. And if specific information is sought, one could probe further and ask, for example, whether any peer-reviewed, Level I studies support the expert’s conclusion. Regardless, even asking the basic “why” question is likely to result in a more detailed, credible explanation of the expert’s opinion than not asking the question.
So what is the answer to how to convince an ALJ or an Arbitrator that a strain followed by symptomatic arthritis reflects correlation but not causation? The best reports we have seen address the issue head-on and contain some, if not all, of the following explanations. First, arthritic pain complaints often do not prompt independent medical visits until the condition becomes relatively severe. In the case of a work injury, the patient is in a treatment setting and is asked as a part of each visit, “How does your knee/shoulder/ back feel?” Once the strain has healed, a person with underlying symptomatic arthritis will report ongoing pain. This doesn’t mean that the same pain or discomfort was not present before the work injury, but now patient and treating physician alike associate the ongoing symptoms with the work injury, even though the association, absent further evidence is fallacious, an example of post hoc ergo propter hoc.
Second, the best reports explain that the injury resulted in no structural damage to the joint and that the available imaging studies demonstrate degenerative changes that would have taken many months and more likely years to develop. The experts then explain that a traumatic injury causing a permanent aggravation of the condition would most likely have resulted in different findings on the imaging studies. Further, the most effective opinions will cite to relevant medical literature demonstrating that symptomatic arthritis usually develops insidiously and almost certainly unrelated to a minor, temporary injury.
Third, most permanent aggravation claims arise in workers who are in their 40s, 50s, and 60s. The best opinions will identify age alone as the single biggest risk factor in developing arthritis. The most effective opinions will also explain that the onset of symptomatic arthritis was highly likely given the person’s age and, as is often the case, the person’s weight, deconditioning, and sedentary lifestyle. If possible, the best opinions will point to and explain how other individual characteristics such as an excessive valgus alignment in a knee case that predisposes the worker to arthritis. The expert will then explain why all of these characteristics (age, weight, etc.) are responsible for causing the symptomatic arthritis and how the appearance of symptoms after a work injury is purely coincidental.
Finally, the best reports will explain what causes arthritis (erosion of cartilage) and how a minor strain without evidence of structural damage cannot cause further erosion of cartilage that leads to the onset of symptoms. When cartilage erodes, the articulating surface of the bones in the joint rub together. The damaged joint tissue and associated inflammation cause arthritic pain. It is then explained that a minor strain causing no discernible changes in the joint tissues affected by arthritis cannot have caused the arthritic symptoms.
In this way, the expert report explains how the correlation of symptomatic arthritis with a work injury is coincidental and not causal. Even so, not every such expert report will carry the day. Nevertheless, if one is to have a chance, the medical expert cannot simply state her opinion but must explain why it is her opinion based on the relevant medical records, her experience, and any supporting medical literature. Otherwise, like per capita mozzarella cheese consumption and civil engineering degrees awarded, we could mistakenly believe that correlation is causation. So ask the expert “why”, there is a good chance it will pay dividends.
Anyone who has spent any time in worker’s compensation claims knows that many, many claims are fraught with problems that aren’t wholly medical or psychological, but that are problems arising out of the workplace injury that nonetheless impact the claim. An apt term for these sorts of problems is “psychosocial difficulties.” Psychosocial difficulties “refer to impairments of body functions under central nervous system control, activity limitations, and participation restrictions such as concentrating, sleeping, maintaining energy levels, anxiety, making and maintaining relationships and keeping a job.” When we encounter a worker’s compensation claim we tend to focus on “medicals and indemnity” because worker’s compensation laws require insurers and self-insurers to pay medical expenses and indemnity expenses and not much else. The problem with this narrow focus is that a worker’s compensation claimant is a human being that lives in a particular psychosocial milieu. Psychosocial difficulties arise because of the “interaction of the health condition, environmental and personal factors.” The fact is that when a worker’s compensation claim is made, claims administrators may be authorizing payments for medical expenses and indemnity expenses, but the path that the claim takes is driven by the interaction of the health condition, the personal, and the environmental, which may include factors beyond the strict purview of worker’s compensation laws. Although extralegal, these other factors may have a profound impact on the nature of the claim and whether it can be administered effectively.
Common examples of “extralegal” factors include such things as financial security, access to secondary income, family stability, addiction, intelligence, etc. In the world of brain injuries and conditions, caregivers and medical practitioners have begun to realize psychosocial difficulties “are common across brain disorders” which “challenges the premise that the medical diagnosis has to be the driver or care.” In the context of brain injuries and disorders, “what people really care about is to be able to continue with their lives.” Hence, approaches to care which focus on helping them “continue with their lives” have been found to be effective. The bottom line is that “the difficulties people with health conditions face in their lives do not only relate to their health conditions but also to personal factors and the context in which they live.” The experience of injury and disability is likewise personal and driven by individual circumstances rather than being uniform across injury types. This impacts everything from treatment response to recovery to motivation to return to work. Hence, in two otherwise similarly situated persons with work-related meniscus tears, one returns to work within a few weeks of surgery while the other person takes many months to recover and experiences progressively increasing complaints ultimately leading to a total knee replacement.
When a person is injured, we consider the condition to be a medical one. When operating from the cognitive modality, we then assume that treating the injury will heal the person. However, the medical aspect of an injury is just one aspect. Injury, though physical or mental in nature, has myriad aspects that affect the life of the injured person. Often the psychosocial aspects of injury are more difficult for an injured person to manage or get over than the actual physical injury itself. When this is the case, claims become difficult because doctors tend to throw up their hands and say they can do nothing more for the person. From a claims perspective, this often triggers an attempt to shut the claim down, or at least end payment of medical expenses. The problem is that even when “medical interventions are exhausted…, interventions targeting [psychosocial disorders] can contribute tremendously to achieving a fulfilled life…” Thus claims administrators often find themselves in the difficult and unenviable position of not having anything to offer to an injured worker who clearly has problems related (in their mind or in reality) to the work injury. The position is difficult because the injured worker will often blame their condition on the worker’s compensation carrier and seek further benefits out of the belief, misguided or not, that continued receipt of worker’s compensation benefits can somehow make her whole again or at least offer the hope of remedy from the effects of the workplace injury. Frequently these “effects” are not primarily medical but instead are a result of the cascade of psychosocial problems that follow injury, interruption of employment, and diminished physical functioning.
One way to address the psychosocial difficulties is to allow injured worker’s to provide narratives of what is going on in their lives as part of the claims process. While this information, or at least pieces of it, often comes out during the course of a claim, it is usually the product of defensive behavior most commonly uttered in frustration, i.e. “but how am I going to pay my rent?” Instead, it might be beneficial to seek out the information actively, to ask claimants what is going on in their lives and how the injury is affecting them. Certainly it will provide good will and may assuage some of the claimant’s anger, but it also could have the benefit of figuring out what is really going on and how that will impact the life of the claim. If a person is frustrated because they can no longer perform an activity, perhaps a claims administrator would be able to direct her to a simple and cost-effective means by which the person can improve or restore their level of function. It can only help a claims administrator to understand what really matters to the injured worker.
It very well may be that the claims administrator will not be able to do much about issues that fall outside the purview of worker’s compensation; nevertheless, it cannot hurt to find out what all of the issues a claimant is facing and learning this information may help a claims administrator arrive at creative and effective solutions in what otherwise seem to be intractable claims. In addition, the earlier the discussion of psychosocial difficulties takes place, the earlier the claimant, with or without help from the claims administrator, can begin to address the difficulties. The sooner psychosocial difficulties are addressed, the sooner claimants are likely to accept their physical condition and move forward in adapting to it. This has the potential to reduce recovery times and to mitigate against the worst effects of disability, thereby potentially lowering both perceived and actual levels of permanent impairment. The law tells us what we have to do, but sometimes doing a little more can go a long way to making potentially problematic claims manageable.
Cogito ergo sum. These words of Descartes are more commonly known to English speakers as “I think therefore I am.” But what have they to do with medical treatment or medico-legal claims? Quite a bit actually. Descartes is famous among philosophers (a relative sort of fame) for arguing that the mind and the body are distinct entities. We see evidence of this intellectual approach in our distinction between the biological and the psychological. Take brain injuries as an example. We distinguish between what we consider to be organic, neurological injuries from the psychological effects of injury. Hence the distinction between post-concussion syndrome and post-traumatic stress disorder. The belief in dualism is extended into the legal realm also, where we have higher standards for proving mental only worker’s compensation injuries than mental injuries in worker’s compensation that arise out of a physical trauma. But is our insistence on this dualism, that mind and body are separate entities, valid?
Much research suggests that our conception of mind and body as separate entities is not so clear cut as we would like to believe. A good example of why we should be wary of separating the psychological from the physical involves the placebo effect. Another example involves treatment history. A group of researchers from German universities and Oxford University authored a 2014 study in which they found that treatment history experience has an astonishingly large effect on subsequent treatment, even when the type of treatment changed. In their study they gave patients analgesic medication delivered through a patch and then later switched to a different analgesic medication delivered through a topical cream. They found that those who responded positively to the first treatment also responded positively to the second treatment. More significantly, the authors found that those who responded negatively to the first treatment also responded negatively to the second treatment despite being given a different medication with a different delivery mechanism.
The findings are significant because the study “results may … challenge step care approaches in which treatment failure has to precede the prescription of next-in-line interventions.” The treatment carryover effect could have a big impact on problematic claims where acute injuries become chronic condition and nothing seems to help. As the authors note, “treatment experiences are ubiquitous in clinical care, particularly in patients suffering from chronic diseases. Carry-over effects might therefore be particularly relevant in chronic conditions where treatments often fail repetitively and negative treatment experiences accumulate along the course of the disease.” The authors suggest that targeted therapy, whether explicit psychological counseling or more implicit methods, could be used to address and attempt to overcome negative treatment history.
The study demonstrates that our minds and bodies are not as separate as we sometimes like to think they are. This can be frustrating when administering medico-legal claims because we want concrete answers. We want diagnostic images to have a one-to-one correlation with physical complaints. We want to know that if someone is prescribed a medicine, that it will work. Unfortunately, medical science tells us that the healing and treatment process is more complicated. While the treatment history study demonstrates the unpredictability of the healing process, it does offer learning opportunities. At a minimum, if we see a failed treatment history we then know that the likelihood of the next intervention working is diminished. In addition, knowing the effects of treatment history can provide a reason to have claimants undergo independent medical examinations. Once a pattern of failed treatment history develops, an independent medical examination may be worthwhile to attempt to halt the seemingly endless spiral of failed treatments.
The business of sorting out what is organic or biological from what is psychological is messy and probably futile. Perhaps it is time that we put Descartes to rest and start thinking of the mind and body as inextricably linked, so inextricably linked that they are not in effect different. Ego sum. That’s it. In the claims experience, this should help us deal with and understand the myriad responses to similar injuries that different claimants have.
Reason #1: Employers shall not use doctors “employed on a regular basis by the employer” when seeking FMLA second opinions. We have a large number of doctors to choose from and can track how many times you have used the same doctor.
Medical Systems, Inc., we’re not just for worker’s compensation any more.
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.
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:
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…
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.
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.”
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.
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.
In the last post, we discussed a paper Jeffrey Brewer wrote regarding strategies for overcoming cognitive biases and emotions. Brewer identified 10 specific strategies to overcome biases and emotion. His first strategy advocates consciously raising the questions:
But how does this help us? Don’t we already essentially do this when we analyze claims?
Not exactly. First, asking the questions immediately changes one’s state of mind from its natural, emotionally reactive state, to one in which reason is brought to the forefront. Consciously asking the questions forces us to slow down, search for, and contemplate the possible answers. Second, answering the questions quickly demonstrates whether something is an objectively verifiable fact, an inference, hearsay, opinion, or pure conjecture. Once the questions are answered and the information is categorized, the process will have naturally organized the claim in a rational way. Third, knowing what category the information falls into can provide a roadmap for developing the claim. Fourth, asking and answering the questions is likely to result in a more accurate assessment of liability, damages, exposure, and further investigation needed.
How can this strategy be applied to claims? The place to start is at the beginning of the process. When a claim comes in, we are given information asked to apply the information to a metric for assessing exposure. The formality of the metrics will vary, but the best companies and firms mechanize this process to the greatest extent possible to streamline the process and to make it as consistent as possible. This is of course why all case assessment reports, forms, and letters look roughly the same for each entity that generates them regardless of who actually wrote them. This predictability and uniformity is a virtue, not a vice. Nevertheless, individual claims professionals must judge where each piece of information goes and its significance.
The two most important parts of a case assessment report, form, or letter will generally be the statement of facts or narrative summary. It is from this that the conclusions regarding liability, damages, and exposure will be drawn. In preparing the statement of facts, it can be a useful exercise to distinguish between facts, opinion, hearsay, and assumptions to better understand the support for the claim or its defense. For example, take a claim where an employee X injures his hand on a piece of equipment. In conducting the investigation, the employer obtains a statement from employee Y who has observed X using the equipment for personal use in the past.
In this example, the only thing that is a fact is that Y observed X using the equipment for personal use in the past. If the statement is used to support the defense that the employee was not performing work for the benefit of the employer at the time of injury, then an inference is being made that X’s behavior at the time of injury was consistent with X’s past behavior. With no additional information or support, the inference is weak at best. In order to strengthen it, one could find out if X used the equipment for personal purposes at certain times of his shift or after certain jobs and whether the injury occurred at a similar time of day or after the same kind of job. In addition, the inference would be stronger if Y observed X using the equipment for personal use regularly or on many occasions, especially if the most recent uses were near in time to the accident. The bottom line is that the fact of the observation only affects the injury at issue if it can be inferred from the observation that the behavior leading to the injury likely conformed to the observed past behavior.
In another example, worker’s compensation investigations often discover a coworker who overheard the injured employee complaining about his job or the company or both. Specifically, assume employee X alleges he hurt his low back lifting a heavy object at work. The investigation discovers that employee Y heard employee X say that he was fed up with his manager and couldn’t take much more. What is fact? The only fact is that on one date X complained about his manager and said he couldn’t take much more. That is it. X’s statement does not mean that X feigned injury or exaggerated its severity. To move from X’s statement to that conclusion is an inference that requires additional information for it to be believable. The inference is that X reached some sort of breaking point and is using the work injury (or feigning injury altogether) as a means of avoiding his manager.
When judging the significance of the statement, several factors must be considered. Obviously if the injury is relatively near in time to the statement, it would appear more likely that they are related. Other factors could make the inference stronger as well, such as similar, repeated comments, a discernible change in performance, a discernible change in attendance, or any overt conflicts with his manager. On the other hand, if X was a generally good employee who was having a bad day and significant time elapsed between the remark and the injury with no further overt evidence of conflict with the manager, then the inference is weak. Likewise, in judging the likelihood that X is avoiding work based on the prior statement, one must consider the benefit to X of being absent (avoiding the manager, not having the responsibilities of the job) with the costs of being absent (wage loss, benefits loss, loss of social contact with coworkers, etc.). In this case, if X only made one statement and the injury involves an extended absence with significant financial consequences, the inference will be weaker.
In order to effectively determine the strengths and weaknesses of any claim, we must be able to ask and answer the right questions. Simply recording a narrative of events without asking whether each component is a fact, an inference, hearsay, or opinion will skew the analysis badly. For every piece of the narrative, we should ask how we know it, why do we believe it, and what evidence supports the belief. Once we take this step, we will understand the extent of our knowledge, whether our knowledge is based in fact, the inferences that can be drawn from our knowledge of the facts, how strong those inferences are, and what additional evidence or information should be obtained to strengthen inferences or eliminate ambiguity and uncertainty. When we know this, we can effectively assess liability, damages, and further claims investigation necessary.
One of the hardest things for anyone to understand is that two things occurring near in time and sequentially does not imply a causal relationship between them. This is a particularly difficult problem in the IME because often no evidence of a preexisting condition or an intervening cause can be found. Assuming that the condition is legitimate and there is no intervening, traumatic cause, convincing the trier of fact that the condition is unrelated to the accident is challenging. No solution to this problem is perfect; however, a combination of linguistic framing and stealth education through analogy offers a possible opportunity to change the trier of fact’s perception of how causation works.
“Cause,” when used as a transitive verb, means, “to make (something) happen or exist.” The legal definition of “cause” is similar, “something that precedes and brings about an effect or a result.” The medical definition of “cause” cannot be reduced to a simple statement because medicine has classes of cause, which includes direct causes, indirect causes, endogenous causes, exogenous causes, necessary causes, etc. In fact, as the understanding of disease has advanced, the notion that there is a direct cause-and-effect relationship between an event and a disease state has often been abandoned in favor of looser notions of causation such as “disease determinants” or “causal association.”
So how do we convince a trier of fact who is conditioned to view causation in simple, linear terms to understand and embrace a more nuanced view? First, it is useful to address the causation fallacy with the trier of fact. The fallacy ascribes cause to events simply because they occur sequentially in time. A good example is the recent series of television commercials that aired during football games that posited, “It’s only weird if it doesn’t work.” The commercials had persons doing variously goofy things because they experienced a good outcome once when doing the same thing. Hence, a guy consigns himself to the basement during a football game because once when he was getting beer downstairs the team scored. Obviously, walking downstairs to get a beer has no impact on an NFL game. This is the causation fallacy in action: despite occurring sequentially in time, getting a beer from the basement does not cause a football team to score.
A good example that can be raised before a trier of fact is arthroscopic treatment of knee arthritis. For many years orthopedic surgeons performed arthroscopic surgery to treat osteoarthritis of the knee. The surgery involved smoothing the fibrillated (ragged) cartilage lining the surface of the knee joint. The reason surgeons performed the operation is that when a joint surface is free of arthritis, it is smooth. When osteoarthritic change occurs, the joint surface becomes fibrillated or frayed. The assumption was that if a non-arthritic knee is smooth and an arthritic knee is fibrillated, the arthritic knee will become better (and less painful) if it is made smooth. The error in causation was ascribing pain to the fibrillation.
A number of studies eventually demonstrated that arthroscopic smoothing of knee cartilage is no better than conservative management for treating symptomatic osteoarthritis of the knee. It turned out that while pain and fibrillation are both symptoms of osteoarthritis, fibrillation does not cause arthritic pain. In fact, we have learned that many persons have degenerative changes present in their knee, such as meniscal tears and fibrillated cartilage, without having any symptoms of osteoarthritis. The same is often true of degenerative conditions that appear to arise in the context of a traumatic incident. Simply because a traumatic incident occurred and a degenerative condition manifested itself some time afterwards does not mean that the incident caused that condition to manifest any more than fibrillated cartilage causes arthritic knee pain. This offers a powerful example of the errors that can arise out of conventional, linear thinking on causation for the trier of fact.
Second, embrace the impossible, or at least accept the fact that even if you can’t conceive of it doesn’t mean it didn’t happen. I used to lament the lack of a preexisting condition or an intervening cause with my worker’s compensation defense clients. In a nutshell, our complaint went like this: The claimant has no symptoms, the accident occurs, and then there are symptoms so of course the ALJ is going to find the condition is work-related. Unfortunately I subscribed to the causation fallacy and, to the extent that triers of fact make this (il)logical leap, triers of fact are wrong. The problem, though, is that the causation fallacy’s logic is intuitive and difficult to overcome. To prevail in such a situation, you must convince the judge that the intuitive is not necessarily correct. Like the artist or the director, you must convince the trier of fact to willingly suspend their disbelief, not because you are asking them to accept a falsehood but rather because you are asking them to accept a truth that runs counter to their intuition.
Is this possible? Can you convince someone to accept something that seems to them intuitively to be wrong? Yes it is possible to convince someone to accept what seems intuitively to be wrong to them. A fertile place to start is with optical illusions. We know that moon is the same size and distance from the earth when it is low to the horizon as it is when it is high in the sky. Nevertheless, the moon appears smaller to us as it rises higher in the sky. We are willing to accept that our senses deceive us in this instance.
Other famous optical illusions include the arrow/inverse arrow (Muller-Lyer illusion), the growing person/shrinking room (Ames room illusion), the shifting color/brightness phenomenon (Chubb illusion), etc. The list goes on. The point being that our intuition can and does deceive us. What we think of as a normal relation between cause and effect can instead be the product of an illusion, of our mind searching for and imposing the order in which it perceives the world to unfold onto the world, even where no causal relationship exists, where the actual order of things is not what we think.
This is essentially the nature of the relationship between degenerative conditions, symptoms, and accidents. We want to believe that something (other than simply getting older) causes conditions to become symptomatic. We want the world to be rational, for B to flow from A, for injury to be the product of accident rather than genetics and time.
This being the case, what do we do about it? Remind the trier of fact of the Ames room; that she sees the room and she sees the identical twins. She knows the twins are identical, but it looks like they are not. She knows the room is not a cube, but her brain tells her it is. She accepts that the message her brain is getting from her perception is wrong. We can learn to overcome our biases and perceptual assumptions. The trier of fact can too, but only if the evidence is framed properly to offer a clear, concise, and cogent explanation of why what is real does not seem real and what seems real is not. The IME can help lay the foundation for this argument. Ask the doctor to explain how, despite appearances to the contrary, the injury and accident are not related despite occurring sequentially in time. A persuasive and coherent explanation from a medical expert with thousands of hours of experience can at least begin to get the trier of fact to think differently about medical causation, which is the first step to bringing her to accept your point of view.
Whiplash-caused neck injuries are some of the most highly contested personal injury claims. Properly understood, 'whiplash' is used to describe the mechanism of injury to the occipital region of the head and the cervical region of the spine that occurs to a seated occupant of a motor vehicle that is struck from behind by another motor vehicle. Whiplash does not occur in front-end collisions and does not describe low back or other injuries that also may occur in rear end collisions. Whiplash-caused neck injuries are highly contested because the resulting injuries often do not show up on standard diagnostic imaging tests. In addition, whiplash injuries often occur in low speed collisions where the involved vehicles are undamaged or minimally damaged. For this reason, claims professionals and defense attorneys view these claims with almost universal skepticism. On the plaintiffs' side, the lack of objective imaging studies and the [often] low speeds involved can make convincing juries to award even nominal damages difficult.Unfortunately, science has not reached common consensus regarding how whiplash causes injury or what precise forces are necessary to cause whiplash neck injuries in low speed collisions. However, researchers have come to a consensus on how the body reacts in rear-end collision which is important to understand when prosecuting or defending whiplash claims.When a rear end collision occurs, the head, neck, lower torso/pelvis, and upper torso actually act independently of one another. When the collision first occurs, the lower torso and pelvis are pushed forward relative to the upper torso, neck, and head. This motion causes "an initial flexion of the neck, even though the head is still effectively stationary…" Then the upper torso accelerates forward before the head begins moving. This is called "retraction" and "causes the lower vertebrae of the cervical spine to extend." At this point, the cervical spine and its musculature is not sufficiently strong to overcome the forces of the lower and upper torso movement so the upper cervical spine segments flex. The flexion and extension of the cervical spine allows it "to support the horizontal forces, and these forces both accelerate the base of the skull forward and set up a rearward rotation (extension) of the head." Interestingly, when the lower torso moves forward, the "upward thrust of the trunk compresses the cervical spine." Also noteworthy is that peak strains on the neck occur before the human body is able to activate the neck muscles in response.The manner in which the human body moves during a rear-end traffic accident is significant for a number of reasons. First, the forces generated on the cervical spine and occipital regions happen before the human body reacts to them. This means that a person who is in a rear-end collision cannot accurately describe what happened to their body during the collision. To occupants, it will feel like their head snapped forward and then back when in effect, the head remained stationary relative to the forward translation of the body. The difference in acceleration between upper and lower torso causes the upper and lower cervical spine to react by flexing and extending before the person is aware that anything is happening. In addition to horizontal shearing (forward motion of the torso vis-à-vis the stationary head), the upward motion of the torso also compresses the anterior portion of the cervical vertebrae (against which "the facet joints offer little or no protection") before the human body is capable of being aware of the motion. No claimant will be able to describe the mechanics accurately because sense data are generated and processed in the brain slower than the body's actual physical response. What a person in a rear-end collision feels is markedly different than what actually happens to the body.Second, the motion of the head and neck during a rear-end collision will more than likely be within the normal range of tolerance for the human neck if the occupant is belted with a normal and operable shoulder/lap belt combination. Hence, evidence of tissue disruption is unlikely to appear on diagnostic imaging studies. For claim handlers and attorneys (on both sides), the lack of objective imaging evidence creates enormous difficulties. Although the lack of objective evidence seems to favor the defense, the commonplace nature of whiplash injuries (and the fact that large portions of the medical and scientific communities accept that whiplash is a mechanism that can legitimately cause injury) would seem to favor the plaintiff. The bottom line is that these cases end up in a medico-legal morass because of the seemingly contradictory nature of the evidence which does not necessarily favor one side or the other.A key to managing whiplash claims successfully is understanding the biomechanics involved. For example, there is general consensus that gender matters in whiplash accidents: female gender increases the likelihood of injury. In addition, height is predictive of injury. Taller persons are likelier to be injured than shorter persons of the same gender because taller persons are less likely to have the headrest set at the proper height. Many other factors such as body positioning and pre-impact awareness influence the likelihood of neck injury in whiplash accidents. It behooves the parties to understand how the facts of the claim fit into the biomechanics.Stay tuned as we will address strategies for using biomechanics to your advantage in whiplash claims in our next whiplash post. [Attention: shameless plug warning!] Also, two internationally renowned experts in the biomechanical analysis of whiplash, Raj Rao, M.D., Ph.D and Brian Stemper, Ph.D. (who happen to be located at the Medical College of Wisconsin right in our backyard) will be speaking at the upcoming Medical Systemspersonal injury conference. Anyone interested in a detailed analysis of factors that influence injury in automotive rear impacts and the medical aspects of whiplash syndrome should consider attending.
We have all heard IME's referred to pejoratively as "insurance medical exams" or "defense medical exams." Given that many triers of fact are cynical about the independence of IME's, how can you defend against a charge of bias in an IME? First, you can choose an IME company that is independent – that is not beholden to shareholders or larger corporate interests. Second, you can choose a doctor that is independent - that has no contractual relationship or exclusivity agreement with the IME vendor. Third, you can choose an IME vendor that will work with you to find the doctor that is right for your claim or case.Why should you care about who owns the IME vendor you use? Quite simply because you value independence. While everyone who schedules an IME, whether plaintiff or defense, employer or employee, hopes the report will come back favorable to their position, the most important thing about an IME is that it is credible with the trier of fact. When an IME vendor is beholden to shareholders or larger corporate interests, the vendor's first responsibility is to their shareholders or corporate owners. While every IME vendor is attempting to be profitable, you want a vendor whose only responsibility is to the client: to deliver credible, independent reports in a timely fashion. Then the vendor is not beholden to any third party.Why should you care about the doctors' affiliations with an IME vendor? Once again, because you value independence. You want an IME vendor that is beholden only to being objective, the only true form of independence. Physicians that have contractual or exclusive relationships with IME vendors may compromise their independence because they take on an obligation to fulfilling the terms of an agreement with the vendor; they may become beholden to something other than absolute objectivity. This, at a minimum, compromises the appearance of impartiality. A physician that has no formal relationship with an IME vendor has the primary (and sole) obligation to prepare an objective report. Hence, no formal relationship between the IME vendor and the medical expert can taint the appearance or fact of the expert's independence.You also want an IME vendor that will work with you to find the medical expert that is right for your case. Perhaps it is important that your IME doctor be in active practice or that the doctor testifies for both plaintiff and defense. You want your IME vendor to meet your requirements. You want your vendor to have a well-developed network of physicians and contacts that can be mined for the right expert. You want an IME vendor that understands your needs and can recommend the doctor that is the best fit for you. You can't take a "one size fits all" approach when managing your files. Your IME vendor shouldn't take a "one size fits all" approach in finding an expert for you. An IME vendor with a network of truly independent physicians guarantees that your IME vendor will put your interests first.At Medical Systems we are beholden to no corporate overseers. We refuse to establish exclusivity or other contractual relationships with the physicians on our panel (in fact we require that our doctors are not exclusive to us or anyone else). We have the network and the staff to be responsive to your needs so that you get a medical expert that is unbiased and right for your case. In short, Medical Systems is independent so your expert will be too.
The short answer is that yes, job videos are worth obtaining. However, the circumstances in which job videos are useful are limited. Typically, job videos work well in two circumstances. First, job videos are often critical in cases where an occupational injury is alleged due to an occupational exposure over time (i.e., repetitive motions). In those cases, the independent medical expert will be asked to form an opinion on medical causation based on the job activities that the injured person performed; hence, a job video is often critical. Second, job videos are useful when there is a question as to whether an injured person can return to her former employment. In that case, the independent medical expert will be asked to form an opinion on the injured person's capacity to safely perform her job. In either case, a job video can be a crucial tool to ensure that the independent medical expert's opinion is credible.Although job videos can be critical in the right circumstances, a job video has to be accurate to carry any weight. The biggest problem with job videos is that they are often perceived to represent a cursory sample of what an injured person does rather than a thorough depiction of the injured person's actual job. From the defense perspective, this causes problem at deposition or hearing when the injured person testifies that the job video does not accurately represent their job duties. If the injured person testifies credibly about the frequency and duration of job duties not shown in the video, it will impugn the independent medical expert's opinion because the opinion will have been based on inaccurate information.In order to remedy potential shortfalls, job videos should do a number of things. First, if the employer has a written job description, the job video should accurately portray the duties described, including accurately depicting the physical demands for each duty described. It is difficult to convince a judge to adopt the opinion of an independent medical expert when the opinion is based on a job video showing a worker lifting 5-pound boxes when the injured person testifies that the majority of the boxes she lifted were 50-pounds. Second, job videos that depict the injured person performing her job duties tend to be more effective than those depicting another worker. These videos are especially effective if the videographer asks the injured person if there are any activities they do in their job that they have not demonstrated. If the injured person answers "no," she will have a tough time trying to say that the video was not accurate later. Third, if the injured person cannot be depicted in the video (which is more common than not), the video should depict a co-employee that has an identical job or as close to as identical job as possible. The co-employee should also be of a similar size and build if possible. If a similarly sized co-employee with an essentially identical job is depicted, he or she is more likely to portray the job duties accurately. Again, the videographer should ask the employee if there are any activities they do in their job that they have not demonstrated. It should go without saying, but the employer should identify co-workers for the video that are indifferent to the injured person. Otherwise it is too easy for bias to seep into the video and destroy its credibility.Some job videos will depict a manager or supervisor performing the job duties. This is not ideal because the trier of fact will almost invariably assume that the manager or supervisor is biased against the injured person. In addition, such videos often have an artificial feel to them, especially when the manager or supervisor is not a working manager. In these cases the person depicted in the video often does not look like the injured person and her co-workers and does not perform the job duties fluently. A trier of fact who views such a video is likely to consider it suspect if not outright spurious simply because of its appearance (even if the job duties are faithfully depicted and the manager or supervisor acts entirely without bias). There are circumstances in which the only way to have the job video completed is to use a manager or supervisor to perform the injured person's job. In these circumstances, the job video will be most effective if the person performing the job duties maintains a neutral appearance, not exaggerating the ease with which a particular duty is performed. Human beings are incredibly good at reading body language and facial expressions. Triers of fact will know if the person performing the job duties on the video is genuine or not and will judge the video's credibility accordingly.When obtaining an independent medical examination, a job video can be a critical tool in establishing the credibility of the medical expert. However, job videos are only effective if they are credible. Taking a few simple steps such as ensuring that the video captures the same duties identified on the written job description and getting the employee depicted to state on the video that it accurately represents the job duties will help bolster the credibility of the video. And a credible job video will likely mean a credible independent medical evaluation report.
A medical expert's role in legal claims is vital. Medical experts are gatekeepers of the worker's compensation, tort, and disability systems because without medical causation, there are no claims. The role of independent medical examiners in this process is critical. Independent medical examiners are often the only experts who have the full picture: all current medical records, all past medical records, accident reports, the claimant's history, and relevant witness statements.In our adversarial system, the value of independent experts cannot be overstated. The parties are not responsible for discerning "the truth," whatever that may be. They are only responsible for prosecuting or defending the claim. Trial judges, administrative law judges, and juries are responsible for deciding which party's position is more credible. As independent medical evaluators are the only experts with the complete picture of the case, they are uniquely capable of providing an opinion based on an objective assessment of facts and science. It is critical to the sound functioning of the system that independent medical examiners' opinions are given adequate weight.What are the barriers to independent medical examinations being given adequate weight? The most obvious and frequently encountered barrier involves simple errors such as typographical mistakes or obvious misstatements (i.e., stating "left" when "right" was clearly intended). While claims and legal professionals understand that a typographical error or an obvious misstatement should not affect the credibility of the report, the unfortunate truth is that they do. In our society doctors are rightly held in high esteem. This means that they are also held to unrealistic standards of perfection. When reading an independent medical examination report, judges and juries expect the report to be technically perfect. If a report does not meet this standard, it can cause the trier of fact to devalue the doctor's opinion, even if the technical error has no effect on the opinion's substance.To avoid having an independent medical examiner's opinion lose credibility points for technical errors, several steps can be taken. First and foremost, providing clear information and instructions to the examiner is critical. Second, choosing an independent medical examination vendor that will carefully edit reports to eliminate technical errors of grammar and reference is important. Third, reading through the report carefully on receipt is necessary. Independent medical examination vendors will have the information on the claim that is given to them, but they will never have the depth of understanding of the claim and the relevant medical records that claims professionals and attorneys have. Carefully reviewing the independent medical examination report and communicating with the vendor to address any obvious technical errors shortly after receiving the report will help ensure that the report is technically sound and so is viewed entirely on its substance. As gatekeepers to the compensability of claims, it is critical that independent medical examiners' reports are judged on substance and not style.
It is common knowledge that prescription drug misuse and abuse has become a significant problem in the United States. According to the Centers for Disease Control (CDC), the costs are staggering.
http://www.cdc.gov/homeandrecreationalsafety/overdose/facts.htmlPrescription drug misuse and abuse impacts claims management in many ways. On the front end of the process, prescription misuse and abuse increases the risk that a person will be involved in an accident, whether work-related or not. In addition, persons with significant dependence problems may see the claims process as a manner of obtaining prescription medications to fuel their dependency. During the claims administration process, prescription drug misuse and abuse increases costs through extended (or unending) recovery periods and higher than normal pharmaceutical costs. In addition, drug seeking behavior often results in increased medical costs through emergency room and urgent care visits used to obtain medications. Finally, the value of prescription drug medications causes some persons who receive them to sell them as a means to generate income.What can claims professionals do to combat prescription drug misuse and abuse among claimants? The first place to start is with the primary treating physician. If it appears from your review of records that the patient is obtaining narcotic pain medication from multiple sources or has asked for an early refill on more than one occasion, communicate your concern directly to the physician. Most treating physicians are sensitive to narcotic use and will not tolerate drug-seeking behavior. In addition, you can encourage the physician to use her state’s Prescription Drug Monitoring Program, which will provide the physician with information regarding from whom and when patients are obtaining prescriptions for narcotics. Second, a medical record review can provide a good option for discontinuing payment of prescription pain-relievers and other drugs that may be being abused. Third, many states have dispute resolution mechanisms designed to address a carrier or employer’s contention that a particular treatment is not necessary to cure and relieve the effects of an injury or condition. This option provides an opportunity to challenge a recalcitrant physician’s decision to provide unwarranted prescription pain-relievers or other addictive drugs without the patient being a party to the claim. Fourth, drug and physician utilization reviews can be used to assess the likelihood that abuse is occurring when abuse is suspected but cannot otherwise be confirmed.The bottom line is that prescription drug misuse and abuse can be a significant claims cost driver. Taking a proactive approach of identifying potential abuse, working with treating physicians to curb abuse, and using independent medical or record reviews can provide an effective means of controlling the claims costs of prescription drug misuse and abuse. Beyond the claims environment, curbing prescription drug misuse and abuse also makes our society better and safer, which is a win-win for everyone.For more information on Medical Systems go to www.MedicalSystemsUSA.com
