getting claimants well!! focusing on the non-work-related...

Robert J. Barth, Ph.D. Fellow, National Academy of Neuropsychology

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Phone: 423/504-5229 Email: [email protected]

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Getting Claimants Well!!

Focusing on the non-work-related issues

that lead to poor outcomes

Robert J. Barth, Ph.D.

2017 Montana Governor's Conference on Workers' Compensation

1

KeynoteGetting Claimants Well!!

Focusing on the

non-work-related issues that lead to poor outcomes

Robert J. Barth, Ph.D.

The Elephant In The Room(Nobody is talking about it)

Workers compensation is reliably harmful to

the health of claimants

Workers compensation is reliably harmful to the health of claimants Caruso GM, Barth RJ, et al. Cornerstones of disability prevention and

management. In: Hegmann KT, Hughes MA, Biggs JJ, eds. American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines. 3rd ed. Elk Grove Village, IL: ACOEM; 2011.

Barth RJ. Chronic Pain. Chapter N in: Melhorn JM, Yodlowski ML, eds. 18th Annual American Academy of Orthopaedic Surgeons Workers Compensation and Musculoskeletal Injuries: Improving Outcomes with Back-To-Work, Legal, and Administrative Strategies. American Academy of Orthopaedic Surgeons; 2016.

Barth RJ. Chronic Pain: Fundamental Scientific Considerations, Specifically for Legal Claims. AMA Guides Newsletter, Jan/Feb 2013. American Medical Association. Continued next slide…

Workers compensation is reliably harmful to the health of claimants Barth RJ. Patient Selection for Chronic Pain Treatments:

Surgery, Narcotics, Spinal Cord Stimulation, Pain Pumps, and Multidisciplinary Programs. Chapter M in: Melhorn JM, Yodlowski ML, eds. 18th Annual American Academy of Orthopaedic Surgeons Workers Compensation and Musculoskeletal Injuries: Improving Outcomes with Back-To-Work, Legal, and Administrative Strategies. American Academy of Orthopaedic Surgeons; 2016.

Barth RJ. Complex Regional Pain Syndrome. Chapter L in: Melhorn JM, Yodlowski ML, eds. 18th Annual American Academy of Orthopaedic Surgeons Workers Compensation and Musculoskeletal Injuries: Improving Outcomes with Back-To-Work, Legal, and Administrative Strategies. American Academy of Orthopaedic Surgeons; 2016.

Ways in which WC leads to lousy health outcomes

• Forcing an injury model onto health problems that are not injury-related

• Facilitating non-credible health care in other ways

• Facilitating withdrawal from work (which is bad for health)

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Life and Death Exampleof why it is outrageously

important to call attention to the non-work-related and non-credible nature of most of what is going on

in workers comp

Life and Death Example

What is the #1 cause of death among

workers comp claimants who have undergone

lumbar fusion?

What is the #1 cause of death amongworkers comp claimants

who have undergone lumbar fusion?

Prescription Opioids

Juratli SM, Mirza SK, et al. Mortality After Lumbar Fusion Surgery.

Spine. 2009 Mar 10

Opioids are the #1 cause of death among workers comp claimants

who have undergone lumbar fusion!

What’s wrong with this picture?

Opioids are the #1 cause of death among workers comp claimants

who have undergone lumbar fusion!

Workers comp is taking a non-life-threatening problem (back pain)

And turning it into the #1 cause of death!!!

Prescription opioids are the #1 cause of death of WC claimants

What’s wrong with this picture?

Are opioids a credible treatment option for chronic pain?

No!!!

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Are opioids a credible treatment option for chronic pain?

No!!!My AMA project

ODG Treatment in Workers CompACOEM Guidelines

American Academy of NeurologyNational Safety Council

Centers for Disease Control

Facts rather than OpinionsClaimants can be saved from a world of harm (including death) if we simply pay attention to the

FACT that opioids do more harm than good for chronic painInstead of following an opinionfrom a doctor that the opioids

are a good idea

Prescription opioids are the #1 cause of death for claimants

who have had a fusionWhat’s wrong with this picture?

Is fusion a credible treatment option for chronic back pain?

No!!!


No!!! Gibson JN, Waddell G. Cochrane Database.

Richard Deyo, Alf Nachemson, Sohail Mirza. Spinal-Fusion Surgery — The Case for Restraint. NEJM, 350;7, February 12, 2004.

Mirza SK, Deyo RA. Systematic review of randomized trials comparing lumbar fusion surgery to nonoperative care for treatment of chronic back pain. Spine.

2007 Apr 1;32(7):816-23.

The results of three scientific trials indicated that fusion is not more effective than 3 weeks

of cognitive-behavioral psychotherapy.

The results of three scientific trials indicated that fusion is not more effective than

3 weeks of cognitive-behavioral psychotherapy.

In fact, cognitive-behavioral therapy has demonstrated

the ability to PREVENT new back pain from becoming

chronic pain.Linton SJ, Andersson T. Can chronic disability be prevented? A

randomized trial of a cognitive-behavior intervention and two forms of information for patients with spinal pain. Spine 2000 Nov

1;25(21):2825-31.

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No!!!Journal: Spine, 2011, Volume 36, 4, 320-331.

Title: Long-term outcomes in lumbar fusion

among workers compensation subjects.

Authors: Nguyen T, Randolph D, et al.

Fusion is followed by…

A HIGHER rate of long-term disability

A MUCH HIGHER rate of medical complications (including death)

INCREASED consumption of narcotics

Facts rather than Opinions

Claimants can be saved from a world of harm if we simply pay

attention to the FACT that fusion leads to worse outcomes

Instead of following an opinionfrom a doctor that fusion is a

good idea

Prescription pain meds are the #1 cause of death of back pain claimants

What’s wrong with this picture?Is it credible for back pain to be a

workers compensation issue?Is it credible for back pain to lead to patients being exposed to the reliably

detrimental health effects of involvement in workers

compensation?

Pop Quiz

•Your back hurts. •You decide to go to the doctor to have your back pain investigated.•You tell your doctor that you would like him or her to start by doing whatever would be most likely to identify an explanation for your back pain, and whatever would most likely lead to a helpful treatment plan.

In order to grant your wish, what one thing should the doctor investigate for

first?

What should your doctors investigate for first, in order to have the best chance of identifying a probable

cause for your back pain, and in order to most likelyhelp you with that pain?

a. Spine abnormalities via MRI

b. History of previously filing legal claims

c. Depression

d. Discogenic pain via discography

e. MMPI scale 3 elevation

f. Previous chronic pain

g. Job dissatisfactionh. Nature of the trauma

(physical force; Cumulative/repetitive vs. single, etc.)

i. Work conditionsj. Personality disorderk. History of smokingl. pre-pain abnormal

psychology

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In order to have the best chance of identifying a probable cause for your back pain, and in order to most likely help you with that pain, what should the

doctor investigate for first?

DepressionJarvik JG, Hollingworth W, Heagerty PJ, Haynor DR, Boyko EJ, Deyo RA. Three-year incidence of low back pain in an initially asymptomatic cohort: clinical and imaging risk

factors. Spine. 2005 Jul 1;30(13):1541-8.

NOTE: Spine imaging did not reveal any significant correlates or predictors of back pain.

•Your back hurts, following some kind of physical trauma.•You decide to go to the doctor to have your back pain investigated.•You tell your doctor that you would like him or her to start by trying to make sure that your back pain is not going to become a SERIOUS problem.

In order to grant your wish, what four things should the doctor investigate

for first?

What four things should your doctors investigate for first, in order to determine whether your back pain is

going to become a serious problem?



c. Depression







psychology

Carragee's one-of-a-kind prospective research

correctly predicted 80% of pain

• Previous history of chronic pain in another body part

• History of smoking

• abnormal responding on pre-pain psychological questionnaires

• previous history of medical-legal claims28


correctly predicted

93% of disability

• abnormal responding on pre-pain psychological questionnaires

• previous history of medical-legal claims

29

Look what does NOT predict whether the pain will become serious…



c. Depression







psychology

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• There is not a causative relationship between structural changes in the spine and serious low back pain.

• There is not a credible basis for an "injury model" for low back pain. 31

•You tell your doctor that you are filing a workers comp claim for “back injury”.

•You tell your doctor that you would like him or her to start by doing whatever would be most likely to identify an explanation for your back pain, and whatever would most likely lead to a helpful treatment plan.

In order to grant your wish, what twothings should the doctor investigate

for now?

Now that you have filed a WC claim, what two things should your doctors investigate for first, in order to have the best chance of identifying a probable cause for your back pain,

and in order to most likely help you with that pain?



c. Depression







psychology

What are the best predictors of the filing of a workers compensation

claim for back pain?

1. Job Dissatisfaction2. Scale 3 from the MMPI

Bigos SJ, et al. A prospective study of work perceptions and psychological

factors affecting the report of back injury. Spine, 1991, 16, 1-6.

What are the best predictors of the filing of a workers compensation

claim for back pain?Scale 3 of the Minnesota

Multiphasic Personality Inventory (MMPI)???

This scale was constructed using patients who exhibited some

physical complaints for which no general medical explanation

could be established.

MMPI-2 Manual

Scale 3 of the MMPI is one of the best predictors of who will file a workers compensation claim for

Back pain

In other words,

the extreme opposite of injury

is predictive of a workers compensation claim

being filed!!!!

7

Look what does NOT predict whether you will file a WC claim…



c. Depression







psychology

You tell your doctor that your back pain is chronic and disabling (in the context of your workers compensation claim)

•You tell your doctor that you would like him or her to start by doing whatever would be most likely to identify an explanation for your back pain, and whatever would most likely lead to a helpful treatment plan.

In order to grant your wish, what one thing should the doctor investigate for

now?

Now that you have filed a WC claim, and your back pain is chronic and disabling, what one thing should your doctors

investigate for first, in order to have the best chance of identifying a probable cause, and in order to most likely help

you with that pain?



c. Depression







psychology

Now that you have filed a workers comp claim, and your back pain is chronic and disabling, what should your doctors investigate for first, in order to have the best chance of

identifying a probable cause for your back pain, and in order to most likely help you?

Personality Disorders(73% rate among claimants with

chronic disabling back pain)

Dersh J, et al. Prevalence of psychiatric disorders in patients with chronic disabling

occupational spinal disorders. Spine. 2006 May 1;31(10):1156-62.

Personality disorders as the #2risk factor for chronic

back painDefinition (American Psychiatric Association

diagnostic manual for mental illness): “A personality disorder is an enduring

pattern of inner experience and behavior that deviates markedly from the

expectations of the individual’s culture, ispervasive and inflexible, has an onset in adolescence or early adulthood, is stable

over time, and leads to distress or impairment.”

Personality disorders as the #2 risk factor for chronic

back painIn other words…

Personality disorders are a pervasive form of mental illness that,

by definition,…

• is pre-existing, and

• would lead to distress or impairment regardless of whether an injury occurs.

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Personality Disorders

• Paranoid Personality Disorder

• Schizoid Personality Disorder

• Schizotypal Personality Disorder

• Antisocial Personality Disorder

• Borderline Personality Disorder

• Histrionic Personality Disorder

• Narcissistic Personality Disorder

• Avoidant Personality Disorder

• Dependent Personality Disorder

• Obsessive-Compulsive Personality Disorder

• Personality Disorder Not Otherwise Specified (e.g. Passive Aggressive; Depressive)

What is the rate of personality disorders in the

general population?

10% - 13%Hales, R. E., Yudofsky, S. C., (2002). The American Psychiatric

Publishing Textbook of Clinical Psychiatry, Fourth Edition. American Psychiatric Publishing.

How many chronic pain patients

have a personality disorder?

31% - 64%Gatchel and Weisberg (2000). Personality Characteristics of

Patients With Pain. American Psychological Association.

Chronic disabling back pain claimants

When actually investigated, how many

chronic disabling back pain claimants

are discovered to have a personality disorder?

How many chronic disabling spine pain patients in workers’ comphave a personality disorder?

73%Dersh J, et al.

Prevalence of psychiatric disorders in patients with chronic disabling occupational spinal disorders.

Spine. 2006 May 1;31(10):1156-62.

The Misdirection that is pervasive within WC

1. Scientific efforts have repeatedly indicated a lack of association between spine imaging findings (e.g., MRI) and

back pain, but…2. Investigating for a personality disorder

will produce significant results for 73% of the WC claims of chronic low back or

neck pain…

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The primary importance of personality disorders

1. General medical investigation of low back pain claims will produce significant findings 10-15% of the time (at the most), but…

2. Investigating for a personality disorder will produce significant results 73% of the time for medical-legal claims of chronic low back pain…

Why are we always doing MRIs and other general medical investigations, while we almost never respond to back claims by

evaluating for personality disorders?Because WC forces an injury model onto

every claim.

Bottom line in regard to WC claims of “back injury”

They usually aren’t really “injuries”…

Dr. Alf Nachemson

His book reviewed by

Dr. Andersson, in the NEJM, as “by far the best” book ever written on the

subject.

Back AND Neck PainTextbook review:Nachemson AL, Jonsson E. Neck and Back Pain. Philadelphia, Pa: Lippincott,

Williams, and Wilkins; 2000.

“There is strong evidence thatpsychosocial variables generally have more impact than biomedical or biomechanical factors”.

(continued)

Injury is not the typical cause of a low back pain workers compensation claim

No identifiablegeneral medical mechanism in the

overwhelming majority of low back pain casesDeyo (2001). NEJM.

AMA Guides to the Evaluation of Permanent Impairment 5th Edition.

AMA’s Physician’s Guide to Return to Work

The nature of one’s work does not change the risk of developing back pain.

Bigos SJ, et al.

A prospective study of work perceptions and psychological factors affecting the report of back

injury. Spine, 1991, 16, 1-6.

AMA’s Physician’s Guide to Return to Work.

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They usually aren’t really “injuries”

Hadler NM, Tait RC, Chibnall JT.

Back pain in the workplace.

Journal of the American Medical Association. 2007 Apr 11;297(14):1594-6.

Back pain is not an injury

The injury-model for back pain is doing more harm than good.

They usually aren’t really “injuries”

Allan DB, Waddell G.

An historical perspective on low back pain and disability.

Acta Orthop Scand Suppl. 1989;234:1-23.

A history lesson in how backache (something like a headache or a stomach ache) transformed into the concept of back injury.

Health outcomes are worse for workers compensation claimants

One apparent reason for the harmful health effects of workers compensation is the manner in which the system forces an assumption of injury on to every claim.

Scientific findings have consistently indicated that this assumption of injury is often incorrect, and leads to misdirected treatment, and thereby to poor outcomes.

These FACTS might surprise you, so I want you to know

that these are MAINSTREAM FACTS

Based on previous work for:

• American Medical Association

• American Psychological Association

• American Academy of Orthopaedic Surgeons

• European Union of Medicine in Assurance and Social Security

• American Academy of Disability Evaluating Physicians

Based on previous work for:

• North American Spine Society • American Academy of Neurology• American College of Occupational and

Environmental Medicine • National Association of Workers'

Compensation Judiciary • International Association of Industrial

Accident Boards and Commissions• Several state and provincial governments.

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Published version of this lecture:

AMA’s Guides Newsletter,

November/December 2006.

When this talk is given for doctors, it has had the title of:

Non-work-related Psychological and Social Issues

as the Cause of Workers Compensation Claims

When this talk is given for judges, it has had the title of:

Resolving Claims by Focusing on Facts, Rather Than Opinions

30 second summary

Non-work-related factors are driving the

overwhelming majority of workers comp costs.

30 second summary

Workers comp is inappropriately forcing

an injury model on issues that are not

actually injury-related.

30 second summary

As a result of this misdirection,

workers comp is actually harmful to the health of workers (treatment is focused on an injury-model for

problems that are not actually injury-related).

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30 second summary

Everybody loses:

• Employers are forced to pay for things that are

not work-related.

• Workers have lousy health outcomes.

We are going to talk about several specific types of claims today…

Back Claims

Chronic Pain

CRPS (rsd) claims

Concussion (persistent complaints thereafter)

Posttraumatic Stress Disorder

Try to look past these specific types of claims, to see the over-riding principles, such as…

Pre-existing social and psychological factors predict who will file an occupational injury claim (regardless of whether there has been an injury), and predict which claims will become chronic.

When we assume that injury is the cause of the claim, we are setting up the claimant for a lousy clinical outcome.

AMA Guides Newsletter

70

Chronic Pain(in general, not just

back pain)The Chronic Pain Project

American Medical AssociationAmerican Academy

of Orthopaedic Surgeons2012-2017 (So far)

Chronic Pain Claims: Fundamental Scientific Considerations• Reviewed (extensively) and published by AMA

• Reviewed and published five times by the American Academy of Orthopaedic Surgeons

• Reviewed and incorporated into the formal continuing education programs of several medical academies and governments

• Presented to over 2000 doctors

Nobody has called any scientifically validated principle to our attention as having been left out of this discussion

72

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Chronic Pain Claims: Fundamental Scientific Considerations

Scientifically validated risk factors:

NOTE: Chronic pain is common, even normal

•Litigation/compensation

•Personality Disorders

•Opioid Medication

•Malingering73



•Other pain complaints / other physical complaints

•Other forms of mental illness (other than personality disorders)

•A learned phenomenon, which can be unlearned

74



•Smoking

•Obesity

•Abuse / neglect during childhood

•Excessive health care

•Being away from work 75


“But Dr. Barth, what about “obvious” medical causes

of chronic pain, like arthritis?”

76

Chronic Pain

Arthritis as a CAUSE of chronic pain?

–“even at advanced stages of osteoarthritis, about half of those affected have no complaints of joint pain”

Giamberardino MA. Pain Comorbidities. International Association for the Study of Pain, 2012. 77

Chronic Pain

Arthritis as a CAUSE of chronic pain?

–No relationship between imaging findings for osteoarthritic knees, and measures of pain, stiffness, and function

Link TM, et al. Osteoarthritis: MR imaging findings in different stages of disease and correlation with clinical findings. Radiology. 2003 Feb;226(2):373-81.

78

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How can it be that medical issues do not

predict chronic pain, and social and psychological

issues do?

How can it be that medical issues do not predict chronic pain, and

social and psychological issues do?

Just look at the definitions of pain…•International Association for the Study of Paino“a psychological state”

•American Medical AssociationoAn “emotional experience”

How can it be that medical issues do not predict chronic pain, and social and

psychological issues do?

Just look at the definitions of pain…•American Medical Association

o“a perception and not a sensation“•Perception means "the process or result of becoming aware of objects, relationships, and events by means of the senses, which includes such activities as recognizing, observing, and discriminating. These activities enable organisms to organize and interpret the stimuli received into meaningful knowledge."

How can it be that medical issues do not predict chronic pain, and social and

psychological issues do?

Just look at the definitions of pain…•American Medical Association

o“a perception and not a sensation““the reality that pain is a perception indicates the

potential for profound influence of psychological

and emotional factors"

What are the risk factors for a

complex regional pain syndrome (CRPS) scenario?

(note: CRPS is the modern concept that was created in an attempt to replace the antiquated and

misleading concept of

reflex sympathetic dystrophy/RSD, as well as the historical concept of causalgia)

Possible answer:

Injury

False!

Risk factors for CRPS/rsd claimsCan you rank these in order?

Injury

Pre-existing mental illness

Compensation (or seeking compensation)

And the answer is…

1. Compensation (or seeking compensation) (70%-100% correlation)

2. Pre-existing mental illness (90% correlation)

What happened to injury?

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Risk factors for CRPS/rsd

Injury is not predictive of CRPS

less than 1% correlation between injury and claims of CRPS

CRPS was actually created in a fashion that causes it to be inherently non-injury-related

Consistent with the inherently non-injury-related nature of CRPS, scientific projects have repeatedly found that relevant clinical presentations develop in the absence of injury (and even in the absence of any claimed injury)

CRPS treatment

Cognitive Behavioral Psychotherapy led to improvement in terms of pain AND in terms of the objective physical issues that have been written into the concept

of CRPS (e.g., swelling, temperature abnormalities, skin/nail/hair

abnormalities, sweating abnormalities)De Jong JR, Vlaeyen JWS, Onghena P, et al. Reduction of pain-

related fear in complex regional pain syndrome type I: The application of graded exposure in vivo. Pain 2005;116:264-275.

What is the typical cause of persistent posttraumatic headaches?

Cause of persistent posttraumatic headache

Possible answer:

Head injury

False!Barth, RJ

Obstacles to Claiming Permanence and Injury-Relatedness for “Posttraumatic” Headache.

Guides Newsletter May/June 2009

American Medical Association

Head injury is not the cause of persistent headaches

Outside of those who have a legal claim, persistent headaches occur at the same rates for people who have and have not had head trauma.

In scientific research, outside of those who have a legal claim, no posttraumatic headache lasted longer than 20 days.

Head injury is not the cause of persistent headaches

When the possibility of non-injury-related causes was actually investigated, medicationwas identified as the cause of the persistent “posttraumatic” headaches in the vast majority of the cases.

Other than claims context, and medication, the most prominent risk factors for persistent headache complaints is psychological disturbance (e.g., personality disorders; pathological manifestations of depression and anxiety).

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What is the cause of a persistent

postconcussion syndrome?

What is the cause of postconcussion syndrome?

Possible answer:Concussion / Brain injury

False!

PCS is demonstrated by people who never had a brain injury.

And…Prolonged postconcussion syndrome is not

demonstrated any more frequently among people who have had a brain injury, compared to people who have

not.

Brain injury is not the cause of postconcussion syndrome

So what are the risk factors for a prolonged postconcussion syndrome?

1. Legal claim (e.g. occupational injury claim, personal injury claim, etc.)

2. Pre-existing psychopathologyCarroll LJ, Cassidy JD.

PROGNOSIS FOR MILD TRAUMATIC BRAIN INJURY: RESULTS OF THE WHO COLLABORATING CENTRE TASK FORCE ON MILD TRAUMATIC BRAIN INJURY.

J Rehabil Med 2004; Suppl. 43: 84–105.

Credible treatment for claims of prolonged PCS

1. Reassurance: teaching patients about the excellent prognosis2. Cognitive behavior psychotherapy focused on: Teaching patients to re-evaluate “symptoms” as

possibly normal shortcomings Teaching patients to avoid over-reacting to such

perceived symptoms Teaching patients to avoid becoming stressed

by such perceived symptomsNOTE: This psychotherapy approach is the

ONLY scientifically validated specific treatment for PCS.

Mittenberg W, et al. Cognitive-behavioral prevention of postconcussion syndrome. Archives of Clinical Neuropsychology, 1996, 11, 139-145.

Credible treatment for claims of prolonged PCS

AMA Guides to the Evaluation of Permanent Impairment

Both of the references chosen for this Guides’ discussion of mTBI

emphasize such reassurance and (if necessary) cognitive

behavioral psychotherapy

What is the cause of posttraumatic stress disorder?

Note: This discussion is limited to civilian PTSD claims.

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Cause of PTSD

Possible answer:

Injury and/or any other emotionally traumatic experience

False!

PTSD is demonstrated by people who have never had a significant injury or traumatic experience, and…

PTSD is actually demonstrated LESS frequently among people who have had an injury/trauma, compared to

people who have not.

Risk factors for PTSD

In the short term:

Pre-existing psychological disturbance

Eligibility for benefits (~70% correlation)

Traumatic experience (~10% correlation)

In the long term:

Eligibility for benefits

Pre-existing psychological disturbance (the only predictive factor, according to studies that did not look at benefit eligibility)

• What happened to trauma?

Risk factors for PTSD

In the long term:

Traumatic experiences do not have any predictive value in regard to long-term claims of PTSD

(zero correlation between trauma experience and symptoms in the long term)

Barth, RJ.

Mental Illness, in:

Melhorn, JM, and Ackerman, WE. Guides to the Evaluation of Disease and Injury Causation. 2008.

American Medical Association.

Credible treatment for PTSDThe treatment of choice (as indicated by

scientific findings, and consequently, by literature from the American Psychiatric Association and the Federal Government) is a form or cognitive behavioral psychotherapy called prolonged exposure.

Reliably benefits the patient within weeks.

How often have I seen a workers comp case in which the claimant was offered this treatment of choice? Never.

AMA Guides to the Evaluation of Disease and Injury Causation

• Reviewed over a thousand scientific publications regarding causation of mental illness

• Found zero reliable scientific support for the premise that civilian adult life events can cause mental illness 101


• Credibly established causes of mental illness are limited to genetics and childhood experience

• Traumatic experiences in adult life reliably lead to improved psychological functioning, rather than mental illness. 102

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Health outcomes are worse for workers compensation claimants

One apparent reason for the harmful health effects of workers compensation is the manner in which the system forces an assumption of injury on to every claim.

Scientific findings have consistently indicated that this assumption of injury is often incorrect, and leads to misdirected treatment, and thereby to poor outcomes.

The Plan


There are

professional standards

that allow causation determinations to be

based on

scientific facts,

rather than opinion.105


106


Avoiding Common Trends

Toward Basing Opinions of Work-Relatedness on

Unreliable Information and

Logical Fallacies

Typical baseless opinions

Typical opinion:

“It is my opinion that

Mr. Lumbago’s symptoms were caused

by this accident”…

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Bases of the Opinion…

1. Training and experience

Bases of the Opinion…


What is wrong with this?

Training and experience as basis for Opinions

Experience, defined as

“making the same mistakes with increasing confidence

over an impressive

number of years”.

British Medical Journal, 1999

Bases of Opinions…


What is wrong with “training” as a basis

for testimony?

Davidson TM et al. Evidence-Based Medicine (EBM): The (Only) Means for Distinguishing Knowledge of Medical Causation from Expert Opinion in the Courtroom. Tort Trial and Insurance Practice Law Journal, 2012, Volume 47, Issue 2

What’s wrong with training?

“half of what medical students learned, would be proven

wrong in a decade, but no one knew which half”

Harvard Medical School dean

Davidson TM et al. Evidence-Based Medicine. Tort Trial and Insurance Practice Law Journal, 2012, Volume 47, Issue 2

What’s wrong with training (and experience)?

Scientific findings have indicated that research projects which

address healthcare “standards of care” are more likely to overturn the supposed standard of care,

than to support it

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Davidson TM et al. Evidence-Based Medicine. Tort Trial and Insurance Practice Law Journal, 2012, Volume 47, Issue 2

What’s wrong with training (and experience)?

“radiologists who testified for plaintiffs exhibited a

21-fold increase in positive findings

of asbestos-induced respiratory changes over disinterested

colleagues.”

What’s wrong with “training” (and experience)?

80%of what doctors are

taught (and do) has absolutely no scientific basis.


The training and experience of the individual doctor is NOT part of

the professional standards

for determining work-relatedness.


Bases of the Opinion…1. Training and experience

2. Because Mr. Lumbago told me that he did not have this problem before the

accident

Mr. Lumbago told me that he did not have this problem before the

accident

What’s wrong with this rationale?

1. Mr. Lumbago is not a reliable source of information

FACT: Scientific findings revealed that ~100% of such reports from claimants

are falseBarth RJ. Claimant-Reported History is Not a Credible Basis for Clinical or Administrative Decision-Making. The Guides

Newsletter, September/October, 2009. American Medical Association

Mr. Lumbago told me that he did not have this problem before the

accident

What’s wrong with this rationale?1. Mr. Lumbago is not a reliable source of

information

2. This rationale is a logical fallacy.

Therefore, this is not part of the professional standards for

causation analysis.

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The Protocol (highly summarized)

1.Definitively establish a diagnosis.

2.Apply relevant findings from epidemiologic science to the individual case.

3.Obtain and assess the evidence of exposure.

4.Consider other relevant factors.

5.Scrutinize the validity of the evidence.

6.Evaluate above and generate conclusions.121


The Protocol

If the doctor who is claiming work-relatedness has not

documented these six steps in a manner that supports the claim,

then the claim is baseless.

122

As is the case for any forensic work, a causation analysis should be conducted in an

independent context.Barth, RJ, and Brigham, CR. Who is in the better position to evaluate, the treating physician or an independent evaluator. The Guides Newsletter.

September/October 2005: 8-11. American Medical Association

Causation analysis should be conducted in an independent

context

Treating doctors have too many extreme conflicts of interest, and have admitted to a willingness to lie in order to help

their patients obtain benefits.• Zinn W et al. J Gen Intern Med 1996; 11 (9): 525-532

• Mayhew HE et al. J Fam Pract 1988; 26: 651-655

• England L et al.. Scand J Prim Health Care 2000; 18: 81-86

• Wynia MK et al. Journal of the American Medical Association. 2000 Apr 12;283(14):1858-65

Step 1of the Causation Method

Definitively establish an

explanatory diagnosis,

primarily based on

objective findings.


“Self”-assessment questions:

• Have I documented the diagnostic method that I used?

• Can I reference literature that stakeholders can review in order to find independent confirmation that my method has been scientifically validated?

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Self-assessment questions:

Can I reference scientific literature which provides independent

confirmation that this diagnosis involves this case’s specific type of

clinical presentation.(For example, if the presentation involves

back pain, scientific findings have revealed that most types of spine abnormalities are not

associated with back pain).


Apply relevant findings from

causation

science

2. Apply relevant findings from causation science

• The doctor who is claiming

work-relatedness must bring

scientific findings into the discussion.

• The claim of work-relatedness is not credible unless scientific research has revealed a clear and specific link between the claimed cause and the claimed clinical presentation.

129


Obtain and Assess the Evidence of Exposure

3. Obtain and assess the evidence of exposure

Example:

Death from drinking water

131


• Did the doctor collect evidence of the details of the claimed exposure?

• Was the level of exposure, and the timing of exposure, consistent with scientific findings regarding the type of exposure that needs to occur in order to bring on the clinical presentation?

• Claimant reports of the level of exposure are the least reliable source of information for this step. 132

23

level of exposure example

Mild Traumatic Brain Injury

“a minimum threshold

for linear gravitational acceleration in the range of 80-100g” … “appears to be

necessary, but not solely sufficient, to cause MTBI” (rotational forces also

apparently necessary)McCrea MA. Mild Traumatic Brain Injury and Postconcussion

Syndrome. Oxford Workshop Series. 2008


• Injury-related problems demonstrate improvement over time

• Clinical presentations that stay the same over time, or worsen over time, are the opposite of injury-relatedness

134

Step 4of the Causation Protocol

Consider other scientifically

established causes

4. Consider other scientifically established causes

• Did the doctor document consideration of other potential causes for the clinical presentation?

• Did the doctor review a significant portion of pre-claim records, so that he/she could potentially identify non-work-related causes?

• Did the doctor document an objective and credible basis for determining which potential causes are of primary importance in the creation of this claimed clinical presentation?

136


Scrutinize the Validity of the

Evidence

5. Scrutinize the validity of the evidence

• Details of the claim:

Is there conflicting information regarding date of injury or timing of exposure, mechanism of injury or exposure, prior injuries or prior health problems, the examinee’s activity level, the examinee’s ability to work, etc?

• Adequacy of professional services:

Have clinicians offered opinions that lack scientific credibility? Have clinical services been relied upon that actually lack scientific credibility or that lack relevance to the specifics of this case? 138

24


Evaluate the Results from All of the Above Steps, and Generate

Conclusions





Disability Prevention

Robert J. Barth, Ph.D.Chapter 20 in:

American Academy of Orthopaedic Surgeons13th Annual Occupational Orthopaedics and

Workers’ Compensation Course

2011

Based on:

Caruso G, Barth RJ, et al.

CORNERSTONES OF DISABILITY PREVENTION AND MANAGEMENT.

In: ACOEM Occupational Medicine Practice Guidelines, 2011.

NOTE: 128 pages, 534 references

ACOEM’s DISABILITY PREVENTION AND

MANAGEMENT

Key Points

• There is little relationship between objectively verifiable health problems and disability.

• Disability is primarily driven by social and psychological issues, rather than by general medical issues.

• Disability can be prevented in spite of most health problems, by addressing the social and psychological determinants of disability.


MANAGEMENT

Recommendations:

Avoid

Iatrogenesis

25


MANAGEMENT

Recommendations:

• Doctors must pay attention to the potential for iatrogenic effects by our actions or inactions, e.g.:

– (Avoid) “medicalization of nonmedical issues” such as…

• Back pain (primarily predicted by psychological and social issues, rather than by anything medical)

–Refer to it as “common back pain” rather than “sprain”, “strain”, “back injury”, “pulled muscle”, “threw back out”, “disc bulge”, “DDD”, etc.


MANAGEMENT

Recommendations:

Doctors must pay attention to the potential for iatrogeniceffects by our actions or inactions, e.g.:

– (Avoid) “medicalization of nonmedical issues” such as…

• Chronic pain in the absence of explanatory general medical findings

–“nonspecific pain” might be your best diagnostic label for many pain complaints


MANAGEMENT

Recommendations:• Doctors must pay attention to the potential for

iatrogenic effects by our actions or inactions, e.g.:

–(Avoid) “Aggressive, extensive, or prolonged medical treatment of benign conditions such as non-specific low back pain because it increases the risk of iatrogenic and advocagenic impairment and work disability.”


MANAGEMENT

Recommendations:• Doctors must pay attention to the potential for


–Avoid “a focus on pain relief instead of functional restoration for affected workers”


MANAGEMENT

Recommendations:Doctors must pay attention to the potential for


• (Avoid) Bed rest and prolonged inactivity.

• (Avoid) Early or prolonged use of opioid medications.


MANAGEMENT

Recommendations:Doctors must pay attention to the potential for iatrogenic

effects by our actions or inactions, e.g.:

(Avoid) “Inappropriate specialist and rehabilitation referral practices… premature referral for diagnostic imaging, specialist evaluation or

extensive rehabilitation in the absence of red flags or failure of simple initial

evidence-based care

26


MANAGEMENT



(Avoid) “c. Beyond the acute or immediate post-operative setting, treatments whose only therapeutic endpoint is the relief of pain rather

than restoration of function.”


MANAGEMENT



(Avoid) “d. Prolonged or extensive passive treatments, such as occupational or physical

therapy and chiropractic manipulation, especially if the intervention is not focused on

or progressively effective in restoring the ability to perform a specific function

necessary at work or home.”


MANAGEMENT

Moving Beyond

Iatrogenesis


MANAGEMENT

Recommendations:

Investigate for psychological factors that might predict and explain otherwise

unexplainable disability:

E.g. pre-existing psychopathology, historical or current substance abuse, etc.

What is the #1 health finding for chronic disabled back pain patients in workers comp?

Personality Disorders Dersh J, et al. Prevalence of psychiatric disorders in patients with chronic disabling occupational spinal disorders. Spine. 2006 May 1;31(10):1156-62.


MANAGEMENT

Recommendations:• Investigate for psychological factors that might predict and

explain otherwise unexplainable disability:

• Recommend psychological evaluation and treatment (on the condition that they will expedite functional recovery)– particularly short-term, evidence-based

and non-dependency producing techniques such as cognitive behavioral therapy…


MANAGEMENT

“CBT has strong scientific support for preventing and reversing unnecessary disability.”

• “A review of 205 studies of patients with low back pain, most of them high-quality RCTs, found overall, that CBT and other psychological interventions were more effective than standard biomedical treatments, including surgery, for decreasing pain intensity, pain-related disability, and depression and for improving health-related quality of life.”

• “A 2006 study showed positive effects of a short (6 hour) CBT intervention in low back pain patients, includinglower risk for long-term disability leave for back pain (odds ratio 2.6) and any illness (odds ratio 2.9).”

27


MANAGEMENT

Recommendations:

• Use scientifically credible guidelines for your diagnostic work

(e.g. scientifically credible utilization and interpretation of diagnostic

studies)

• Reference those guidelines for all parties


MANAGEMENT

Recommendations:

• Use scientifically credible guidelines in your treatment planning

• Reference those guidelines for all parties


MANAGEMENT

Recommendations:

When choosing among diagnostic and therapeutic methods, preferentially select those known to be the most effective in restoring function and shortening the period of life disruption, while at the same time minimizing risk to the patient and maximizing cost

effectiveness.

Example: Short visits with a CBT specialist focused on a comprehensive plan, instead of a time

consuming interdisciplinary pain program that prevents the patient from spending any time at work.

Protecting Claimants from Needless Disability Caused By

Excessive and Misdirected Treatment for Pain

American Academy of Orthopaedic Surgeons 2005-2017

Mayo Clinic 2017

Credible treatments, for CLAIMANTS?American Academy of Orthopaedic Surgeons,

Patient Selection 2016

L. Surgery that is intended to relieve back pain: For workers compensation claimants…

oMore disability

oMore opioids

M. Spinal cord stimulation: For workers compensation claimants…

oNo benefit

oMore opioids

oSentences person to a lifetime role as a patient

Credible treatments, for CLAIMANTS?American Academy of Orthopaedic Surgeons,

Patient Selection 2016

N. Intrathecal pumpsUnexplained elevated death rateSentences person to a lifetime role as a patient

O. Opioid medications for chronic benign pain• Hyperalgesia very reliable outcome• Improvement with detox almost as reliable• Death• Variety of additional health problems

P. Multidisciplinary/Interdisciplinary pain programsFor workers comp, no benefit

28

How to save chronic pain patients from the harm that

comes from surgery, opioids,

spinal cord stimulators, pain pumps, etc.

The clinicians who want to provide these services usually do not care about the general

science…But they are more likely to pay attention to the indications that THIS SPECIFIC PATIENT is likely to have a lousy outcome

True story…The surgeon claims that Joe

MUST have a spine fusion – it is the only way to obtain relief

from his pain.

True story…The employer

arranges for Joe to fill out two

questionnaires (psychological tests)

at a trustworthy local occupational

medicine clinic.

True story…The test forms were

forwarded to me,

I analyzed the results,

and reviewed Joe’s records,

then I filed a report which explained…

My report says…

“The test data and other information

from this case indicates that Joe is

NOT a good candidate for the proposed spine

fusion…”

29

My report says…

“Objective predictors of

a poor outcome

include…”

Objective predictors of a poor outcome …

• Elevated somatoform (psychosomatic) tendencies

• Elevated levels of depression

• Elevated levels of anxiety

• Consistency with a personality disorder

Objective predictors of a poor outcome …

• Elevated levels of claimed disability

• Elevated severity of pain

• Elevated level of job dissatisfaction

• Workers compensation context

My report says…

“Scientific findings have indicated

that such patients are not likely to

benefit from spine fusion for pain…”

My report says…

“…and that such patients

are likely to file malpractice lawsuits.”

The surgeon responds…“I would have

to be an idiot

to operate

on this patient

after reading

Dr. Barth’s report”.

30

Patient Selection for Surgery,Narcotics,

Spinal Cord Stimulation,Pain Pumps, and

Multidisciplinary Programs

Credible treatments?Remember the primary risk factors

for chronic pain…Is surgery a credible response to

compensation?Is spinal cord stimulation a credible response to a personality disorder?Is a pain pump a credible response to childhood abuse/abandonment?

Credible treatments?

How do we protect patients from the

substantial risk of harm that is associated with these “treatments”?

How do we protect patients?Psychological and social factors

predict treatment outcomes

Evaluate the case for the predictors of a poor

tx outcome, and call relevant findings to

everyone’s attention.

Simple, Minimally Referenced Version

Summary: Scientific findings have repeatedly and reliably indicated that a patient’s potential for benefitting from “treatments” for chronic pain is predicted by psychological and social issues, and is NOT predicted by general medical findings.

What’s inside this chapter?Simple, Minimally Referenced Version

Method: 1. Become familiar with the risk factors for

treatment failure2. MOST IMPORTANT: Review record from the patient’s entire life, to determine if the risk factors for treatment failure are relevant

to this person>Patient‐reported history pervasively

unreliable (so we have to review records)

What’s inside this chapter?

31

Simple, Minimally Referenced VersionMethod (3 and 4 can both identify risk factors that are not documented in

records): 3. Psychological testing (with or without a psychological evaluation) (e.g., MMPI identified repeatedly as THE BEST

predictor)4. Psychological evaluation

(independent, honest, competent)

What’s inside this chapter?What are the best predictors of response to

surgery, spinal cord stimulation, and other medical interventions for pain?

Predictors of benefitting from surgery, SCS, and other interventions for pain

Possible answers:

Physical examination findings

MRI

Myelogram

Diskography

Treating doctor’s opinion

False!

How do we protect patients?

When you are asked if THIS patient is a good candidate for surgery for pain, SCS, pumps,

etc., THESE are the issues you should be

looking at…

Alphabetized list of predictors of a poor treatment outcome:

Abuse/abandonment history (e.g., 85% failure rate for back surgery)Current/recent abuse is an exclusionary factor (e.g., American Academy of Pain Medicine textbook)

Activity: low level thereof


Age – older age Alcohol consumption (e.g., averaging two drinks per day, or more, predicts a bad outcome for carpal tunnel surgery)Anger (high=exclusionary; moderate=cautionary)Anxiety

32


Anxiety (high=exclusionary; moderate=cautionary)Attorney representationBattery for Health Improvement (BHI-2)Any results relevant to this listLow pain tolerance


Bipolar/manic-like qualities CatastrophizingCognitive complaints/impairmentCompensation (e.g., workers compensation, disability benefits, etc.)


Complaints a variety of physical complaints

Coping inadequacies e.g., catastrophizing, low perseverance,

emotionality, passive/helpless attitude, considering oneself to be disabled by pain, ruminating about pain/health, frequently engaging in negative thoughts about the pain, etc.

Depression (high=exclusionary; moderate=cautionary)


Disability / worklessnessBeing away from work for any reason

Distress Risk Assessment Method (DRAM)

an elevated level of responding on this instrument, which involves two questionnaires - one addresses a wide variety of physical symptoms, e.g. dizziness, nausea, etc.; the other addresses depression


Doctor dissatisfaction Education

e.g., having left school before graduating from high school

Expectations: Unrealistic expectations of treatment success

(e.g. expecting spinal cord stimulation to eliminate pain, prompt increased activity levels, facilitate return to work, etc.)

Pessimistic expectations (the patient clearly expects that the treatment will NOT facilitate a return to work)


Factitious characteristics e.g., a combination of relevant issues

such as an extensive history of seeking healthcare, working within healthcare, worsening in response to good news from diagnostic assessments, etc.

Falsified information

Family Dysfunction

33


Family history of recurrent, persistent, or severe pain; or family history of seeking healthcare for painHomicidal thoughtsInconsistencies

e.g., physical symptoms inconsistent with pathology; inconsistences between objective findings and/or symptom reports versus patient behavior


Irritability

Job considerations:

Job dissatisfaction

The patient perceives the job to be psychologically demanding

The patient perceives himself or herself to have little control over their work and workplace circumstances

The patient perceives himself or herself to have a lack of job security

The patient perceives himself or herself to have a lack of social support from co-workers

The patient perceives the employer as being non-supportive


Litigation for pain and suffering

e.g., Exclusionary factor according to American Academy of Pain Medicine

Malingering - indications thereof, e.g….

Objective test results (e.g., MMPI)

Diagnostic considerations (e.g., noncompliance within a workers compensation context)

Marijuana use


Medical co-morbidities

Almost any co-morbidity raises the risk of tx failure

Medical history

Almost any previous medical history is a risk factor for poor outcomes

Mental illness (any history thereof), e.g….

Formal diagnosis in history

History of psychiatric medications


MMPI elevations

e.g., “the most consistent relationship with reduced spine surgery results.” (American Psychological Association review)

Scale 1 (Hypochondriasis) elevation

Scale 3 (Hysteria) elevation

Elevations of relevance to depression

Indications of impulsivity

Consistency with schizophrenia

Other elevations

The “Disability Profile”; A set of results which involves elevations on any four (or more) of the traditional primary clinical scales


Modified Somatic Perception Questionnaire (MSPQ)

an elevated level of responding on this questionnaire which addresses a wide variety of physical symptoms, e.g. dizziness, nausea, etc.

NOTE: This questionnaire might be hidden, within the records, under the broader title “Distress Risk Assessment Method (DRAM)”

Also scientifically validated for assessing the validity of a chronic pain complaint

34


Noncompliance with health care / evaluation

“Non-organic signs”

Obesity

Opioid pain medication (any history thereof)


Pain issues:

Severe pain

A variety of pain complaints

Pain severity that does not vary

Long duration of pain (e.g. two years)

Passive attitude

Personality Dysfunction

NOTE: Will be found for majority of patients who seek healthcare for pain, even before the pain becomes chronic


Psychosis –Delusions / Hallucinations

Smoking

Social Isolation

Somatization

Spouse solicitousness, or spouse lack of support


Stress

patient has recently experienced a high level of stressful events

patient reports feeling stressed

Substance Abuse

active, or in the past, including any misuse of prescription medication, and any violation of an opioid agreement


Suicidal thinkingSurgery history Almost any previous history of surgery increases the risk of tx failure

Symptoms that seem to be medically impossible


Treatment failure Failure to benefit from previous treatments for pain is predictive of a failure to benefit from proposed treatment

Workers compensation

35

Any time you save a claimant from any of these, the overwhelming

probability is that you have done the claimant a huge

favor

• Surgery for pain

• Narcotics

• Spinal cord stimulation

• Pain pumps

• Multidisciplinary pain programs

Address the psychological predictors of treatment

success/failure in an individual case

NOTE:

If you look for

contra-indications of such pain treatments, you will find them in almost every case.

The surgeon responds…

“I would have to be an idiot to operate

on this patient

after reading

Dr. Barth’s report”.

Educate other decision-makers

• The claimant / family

• A judge / commissioners

• Provide:–General science

–Individual contra-indications

This process can also provide an objective basis for the

creation of a credible treatment plan that will actually provide hope of

benefit.

What all of this means for medical-legal claims of all types…

If the psychological, non-work-related, non-general-medical issues are not

addressed, we will very often be lacking the data that is necessary for…

Making sense of the case and claim

Treatment planning

36

The PlanThe Plan

6. Direct the case toward scientifically credible health care

• Use widely recognized WC guidelines, such as ODG Treatment in Workers Compensation and the ACOEM guidelines, to direct you to the relevant scientific literature

• Use stricter, more independent reviews (e.g. Cochrane Database) to gain a clearer picture

• Develop and continually update your own internal library, strategies, and documents

Treatment Options

•Pain

•Opioid weaning

•Opioid addiction

Treatment

What is credible treatment for pain?

(alternatives to opioids)

What is credible treatment for NEW pain?

Centers for Disease Control, 2016 (non-surgical)

• Exercise

• Non-opioid medications (such as NSAIDs, acetaminophen) when benefits outweigh risks.

• If opioids are prescribed, “Three days or less will often be sufficient; more than 7days will rarely be needed.”

What is credible treatment for NEW pain?

Centers for Disease Control, 2016• For post-surgery pain, the CDC refers to the

Washington State Guideline (“2015 Interagency Guideline on Prescribing Opioids for Pain”)

• “Do not discharge the patient with more than a two week supply of opioids, and many surgeries may require less.”

37

What is credible treatment for post-surgery pain?

National Safety Council

Evidence for the Efficacy of Pain Medications (2014)• “The opioid medications are often referred to as “powerful

painkillers.” In fact, the evidence shows that they are mild to moderate painkillers and less effective than over-the-counter ibuprofen.”

• For post-surgery pain, a combination of Ibuprofen and acetaminophen “provided the best pain relief of all” when compared to opioids and other options.

What is credible treatment for post-surgery pain?

Helmerhorst GT, et al. Satisfaction with pain relief after operative treatment of an ankle fracture. Injury. 2012

Nov;43(11):1958-61. • Americans are prescribed more opioids after surgery

than Dutch patients (which creates an opportunity for scientific comparison).

• Patients that use non-opioid pain medication report less pain and greater satisfaction with pain relief than patients managed with opioid pain medication.

What is credible treatment for CHRONIC pain?

Centers for Disease Control, 2016

• Exercise

• Cognitive Behavioral Psychotherapy

• Non-opioid medications (such as NSAIDs, acetaminophen) when benefits outweigh risks

What is credible treatment for CHRONIC pain?

WARNING!!!

• Spine fusion and spinal cord stimulators are followed by INCREASED opioid use among workers comp claimants.

• Pain pumps appear to be directly related to death.

WEANING a chronic opioid user from opioids


• “A decrease of 10% of the original dose per week is a reasonable starting point”

• “Slower tapers (eg,10% per month) might be appropriate and better tolerated, particularly when patients have been taking opioids for years.”

Treatment for opioid addiction


• “usually medication-assisted treatment with buprenorphine or methadone in combination with behavioral therapies”

38


American Society of Addiction Medicine

National Practice Guideline For…

Addiction Involving Opioid Use

Treatment for opioid addictionAmerican Society of Addiction Medicine

1. Withdrawal management: “Using medications for opioid withdrawal is recommended”… “in conjunction with psychosocial treatment”

• Methadone

• Buprenorphine

• Clonidine



2. Continuing “psychosocial treatment with one of three medications:

• Substitute opioids: methadone, buprenorphine

• Opioid blocker: naltrexone



3. “followed finally by psychosocial treatment on

its own”

What is credible treatment for pain?(alternatives to opioids)

Readily available direction provided by other Guidelines:

• ODG Treatment

• American College of Occupational and Environmental Medicine

The Plan7. For any claim that involves

disability or chronicity without crystal clear, inarguable, scientifically credible justification…

39

The Plan: 7. For any claim that involves disability or chronicity without crystal clear, inarguable, scientifically

credible justification…

• Assume that non-work-related psychological or social factors are playing a role

• Investigate for those factors• When identified, offer a treatment plan

focused on those psychological factors, to take place outside of the workers compensation system.





Claims of Vocational Disability

American Academy of Occupational and Environmental Medicine, 2006 and 2013American Osteopathic Association, 2013

Hypothetical new prescription medication:

Black Box Warning

This drug:• is detrimental to a person’s mental health,• is associated with elevated rates of substance abuse,• is associated with an increased risk of disabling chronic

low back pain,• causes exacerbations in the duration and severity of pain

complaints, • prevents improvement in brain functioning after injury,• is a scientifically established risk factor for cancer, • is a scientifically established risk factor for hypertension,• is a scientifically established risk factor for heart attacks,• is associated with increased rates of child abuse…

Hypothetical new prescription medication:

Black Box WarningThis drug:• is associated with increased rates of marital violence, • is associated with increased rates of divorce,• is a scientifically identified risk factor for an early death,• is also associated with early death for the spouse of the

person taking it, and • is associated with higher rates of infant mortality for the

children of people who take it.

»Would you take this drug????This hypothetical new drug is:

Being away from work(even for the best of reasons, such as being independently

wealthy, early retirement, being supported by a spouse, etc.)

The deadliest occupation“Unemployment beats out

steeplejacking as the riskiest “occupation”.

“Being unemployed rates as the equivalent of smoking ten packs

of cigarettes a day.”Ross, JF. Risk: Where do the real dangers lie?

Smithsonian; Nov., 1995: 42-53.

40

Health Benefits of Work

“I am still waiting for the first study which demonstrates that we can

help someone by taking them out of work.”

Stanley J. Bigos, MD.

• Barth, RJ, and Roth, VS. (2003). Health Benefits of Returning to Work. Occupational and Environmental Medicine Report, 17, 3, March, 2003, p13-17.

• Talmage JB, Melhorn JM, and Hyman MH. AMA Guides to the Evaluation of Work Ability and Return to Work, Second Edition. American Medical Association, 2011.

• Waddell GE, Burton AK. Is work good for your health and well-being? The Stationery Office, London. 2006.

AMA Guides to the Evaluation of

Work Ability and

Return to Work

(summary of basics)

AMA Guides to Work Ability

A. Vocational work is good for health, and

should be a central part of the treatment plan


A. Work is good for health

•Scientific findings

•Consensus statements

(e.g. AMA, AAOS, ACOEM, CMA)



My 2003 review:

•Pain

•Mental illness

•Brain injury

Work is beneficial for pain, mental illness, recovery from a

brain injury, etc.

• Therefore, none of these issues are justification for withdraw from work, or avoiding work.

• All of these issues are actually a clear indication that the person needs to work, and in fact, the person has an elevated need to work.

41



• “Simply stated: it is usually in the patient’s best interest to remain in the workforce”.

• “As patient advocates, physicians therefore should strongly urge patients to return to work or to stay at work and should decline to certify disability unless it is obvious.”


B. The USA is experiencing a disability epidemic that does not make sense from

occupational or health science perspectives.


B. A disability epidemic that does not make sense

• Work is progressively becoming less physically demanding, less dangerous, etc.

• Health care is progressively improving

• But…the rate of claimed disability is increasing at a rate that is faster than the rate population growth

Don’t be a part of the problem!!!


C. It is largely inappropriate for clinicians

(especially treating clinicians) to offer judgments regarding

vocational disability.


C. Inappropriate for clinicians to address disability.

• “most have received little or no training in how to evaluate their patient’s work ability”

• Clinical presentations “that clearly leave patients unable to engage in any meaningful work activity” are “objectively obvious” (and, consequently, do not require judgments from a clinician).

• “In cases in which there is neither obvious severe disability nor obvious major pathology…returning to work is clearly indicated”.


C. Inappropriate for clinicians to address disability

“In the final analysis, return-to-work decisions are always those of the patient and his or her

employer.”

42


Especially inappropriate for treating clinicians• Treating clinicians have extreme conflicts of interest (both

financial and social) when they become involved in issues of vocational disability (or any other forensic issues).

• Additionally, when treating clinicians become involved in such issues, such involvement creates a substantial risk of compromising the quality of the health care.

• Consequently, it is usually not in the best interest of the patient/claimant (or in the best interest of the clinician) for a treating clinician to become involved in such issues.

• The treating clinician will be making a wise and justified decision when he/she refuses to become involved in such issues.


D. How to make sense of claims of vocational

disability:

Risk, Capacity, and Tolerance


D. Risk, Capacity, and Tolerance“Risk refers to the chance of harm to

the patient, co-workers, or to the general public, if the patient engages

in specific work activities.”

Example: uncontrolled seizures create a chance of harm for

commercial driving

Risk“Most often there is no scientific study that can clearly be generalized to

the specific patient’s work risk questions.”

Therefore…

RiskIn cases for which “there is no

medical evidence (translation: health science which indicates) that (the patient/claimant) is at high risk of

significant harm (from) working, (the clinician) cannot certify that

(the patient/claimant is)

disabled for this job.”


D. Risk, Capacity, and Tolerance“Capacity refers to concepts such as strength, flexibility, and endurance.”

“While physicians impose work restrictions (proscribe certain

activities), physicians DESCRIBEwork limitations (what the patient is

not physically able to do).

43


D. Risk, Capacity, and Tolerance• Objective findings

• NOT based on, or formulated in consideration of,

symptoms/complaints

• Objectively documented in the report of the evaluation


D. Risk, Capacity, and Tolerance• “The ability to tolerate sustained work or activity

at a given level.”

• “…dependent on the rewards available for doing the activity in question. Tolerance is exemplified

when an individual chooses, because of pain, not to work for minimum wage at a job he dislikes, but, when offered a much more

physically demanding job at three or four times minimum wage, he happily works and endures

(tolerates) even greater pain.”

ToleranceExamples:

Pain

Fatigue

Emotional disturbance

Tolerance“…tolerance is not

scientifically measurable or

verifiable.”

(Not the realm of doctors)

Tolerance“If seeking work despite symptoms is

the patient’s decision (and not the physician’s decision) when the patient is a willing job applicant (according to the Americans With Disabilities Act),

logically the decision is still the patient’s when the patient is

requesting disability certification.”

Tolerance• Most disability claims are focused on tolerance (rather

than risk or capacity)

• “…tolerance for symptoms is the usual problem in

contested disability cases”

44

Tolerance• “…the term work restrictions means what the patient should not do on the basis of risk of harm to self or others.

Symptoms do not harm, so “work restrictions” are not appropriate if

based only on symptoms.”

• It is “inappropriate” for “work restrictions” to be based on “the

patient’s symptom tolerance”.


D. How to make sense of claims of vocational disability:

D. 5.

Seven-Step Process


D. 5. Seven-Step Process1. What is the job in question?

Do I have an adequate job description?

Do I have information from both the individual and the employer as to what this patient is expected to do at work?

If "no," request such information before answering.

D. 5. Seven-Step Process

2. What is this patient's medical problem? What are the objective signs of pathology?

What are the symptoms?

Is this permanent or temporary during recovery from injury/surgery?

Is this problem improvable with time, or medical treatment, or exercise (which

includes work)?

If the condition is

temporary or improvable, record this fact.


3. Does this patient have severe pathophysiology that appears to meet the

Social Security Administration's criteria for total disability?

If "yes," tell this fact to the patient and support his or her disability application if he or she

chooses to apply for disability.

If not, consider risk.NOTE: The Guides provides this reference for “Social

Security criteria”: Disability Evaluation Under Social Security. Baltimore, MD: Social Security Administration; January 2003.

SSA publication 64-039.


4. Is there significant risk of substantial harm with work activity (not merely an

increase in subjective symptoms)?

If "yes" on the basis of sound science or a major consensus document, certify

that work restrictions are appropriate on the basis of risk.

If "no," consider current ability.

45


5. Is this patient actually able to physically do the task in question (not considering symptoms, but ability)?

If "no," state the reason as a limitation ("lacks shoulder range of motion to reach overhead machine controls").

If "yes," consider tolerance.


6. If the patient has the ability to do the work task,

at acceptable risk,

and wants to do the job,

certify that he or she is medically able.


7. If the patient has the ability to do the work task, at acceptable risk, and does not like doing the job based on tolerance for symptoms like pain and

fatigue…

…is there severe objective pathology present that makes physician agreement on work problems

based on tolerance likely?

If "yes," certify that work "problems" are present "on the basis of believable symptoms and severe

objective pathology," but certify that the patient may work despite the symptoms if he or she wishes.


7. …is there severe objective pathology present that makes physician agreement on work problems based on tolerance likely?

If "no," and the objective pathology is only mild or moderate, certify that the patient may work at the

job in question, but that he or she describes symptoms at a certain level of work activity.

This scenario represents a "medically unanswerable question" and should be labeled as

such by physicians.

The decision whether or not to work despite symptoms is ultimately the patient's, and not the

physician's.

The PlanThe Plan

4. Disability:Combat the harmful health effects of

avoiding work, by referencing relevant scientific literature, such as…

46

Combat the harmful health effects of avoiding work, by referencing relevant scientific

literature, such as…

Barth, RJ, and Roth, VS. (2003). Health Benefits of Returning to Work. Occupational and Environmental Medicine Report, 17, 3, March, 2003, p13-17.

Talmage J, et al. AMA Guides to Work Ability and Return to Work. American Medical Association, 2011.

Waddell GE, Burton AK. Is work good for your health and well-being? The Stationery Office, London. 2006.

Combat the harmful health effects of avoiding work…

Reject claims of vocational disability,

work restrictions, etc., unless such claims are

based on credible utilization of the

standard professional method

The PlanThe Plan

Some critically important steps that

typically are NOTtaken…

The Plan1. Analyze the validity of the clinical

presentation-Malingering guidelinesfrom the American Psychiatric Association’s diagnostic manual (e.g.,

any discrepancy between subjective complaints and objective findings?; any noncompliance with treatment or clinical evaluation?)

-Objective assessmente.g. MMPI-2 Symptom Validity Scale; other psychological tests that

have been scientifically validated for assessing the specific types of complaints in the given case (e.g. pain, mental illness, cognitive impairment)

The Plan2. Analyze the consistency of the

clinical presentation with injury:-Is it consistent with the specific claimed injury?

-Is there any consistency with non-injury-related explanations?

-Comprehensive and competent general medical evaluation

-Comprehensive and competent psychological evaluation (including objective testing, e.g. Battery for Health Improvement)

47

The Plan3.Causation analysis:

Analyze claims of injury-relatedness using the protocol from:

Guides to the Evaluation of Disease and Injury Causation.

Melhorn, JM, et al.

2014. American Medical Association. >>>>


278


279

Guides to the Evaluation of Disease and Injury Causation.American Medical Association.

1. Evidence of disease. What is the disease? Is the diagnosis correct?

2. What is the epidemiological evidence for that disease or condition? Does that data support a relationship with work?

3. What evidence, predominantly objective, is there that the level of occupational environmental exposure (frequency, intensity, and duration) could cause the disease?

4. What other relevant factors are present in this case? Are there individual risk factors other than the occupational exposure that could contribute to the development of the disease?

5. Is there confounding or conflicting evidence to suggest information above is inaccurate?

6. Evaluation and conclusions. An amalgamation of the above five steps.

The Plan

4. Disability:Combat the harmful health effects of

avoiding work, by referencing relevant scientific literature, such as…

Combat the harmful health effects of avoiding work, by referencing relevant scientific

literature, such as…

Barth, RJ, and Roth, VS. (2003). Health Benefits of Returning to Work. Occupational and Environmental Medicine Report, 17, 3, March, 2003, p13-17.

Talmage J, et al. AMA Guides to Work Ability and Return to Work. American Medical Association, 2011.

Waddell GE, Burton AK. Is work good for your health and well-being? The Stationery Office, London. 2006.

48

Combat the harmful health effects of avoiding work…

Reject claims of vocational disability,

work restrictions, etc., unless such claims are

based on credible utilization of the

standard professional method

The Plan5. Scrutinize Impairment Ratings• Impairment ratings are inherently

iatrogenic

• 80% of ratings from treating doctors and claimants experts are artificially inflated

• That pervasive artificial inflation adds to the iatrogenesis

The Plan6. Direct the case toward scientifically

credible health care• Use widely recognized WC guidelines, such as ODG

Treatment in Workers Compensation and the ACOEM guidelines, to direct you to the relevant scientific literature

• Use stricter, more independent reviews (e.g. Cochrane Database) to gain a clearer picture

• Develop and continually update your own internal library, strategies, and documents

The Plan7. For any claim that involves

disability or chronicity without crystal clear, inarguable, scientifically credible justification…

The Plan: 7. For any claim that involves disability or chronicity without crystal clear, inarguable, scientifically

credible justification…

• Assume that non-work-related psychological or social factors are playing a role

• Investigate for those factors• When identified, offer a treatment plan

focused on those psychological factors, to take place outside of the workers compensation system.

Additional References

Professional and Scientific Method for Determining Work-Relatedness

• Barth RJ. Determining Injury-Relatedness, Work-Relatedness, and Claim-Relatedness. AMA Guides Newsletter, May/June 2012. American Medical Association.

• Melhorn, JM, and Ackerman, WE. Guides to the Evaluation of Disease and Injury Causation, Second Edition. 2014. American Medical Association.

49


Protecting claimants from unjustified and harmful opioid prescriptions, surgery, spinal cord stimulation, pain pumps, multidisciplinary pain programs, etc.

• Barth RJ. Patient Selection for Surgery, Narcotics, Spinal Cord Stimulation, Pain Pumps, and Multidisciplinary Programs. 2016. American Academy of Orthopaedic Surgeons, fully referenced above

• Barth RJ. Prescription narcotics: An obstacle to maximum medical improvement. The Guides Newsletter, March/April, 2011. American Medical Association.


Professional Method for Determining Work Ability

• Talmage JB, Melhorn JM, & Hyman MH. AMA Guides to the Evaluation of Work Ability and Return to Work, Second Edition, 2011. American Medical Association.

Publication which summarizes the primacy of non-work-related factors in almost all types of workers compensation claims

• Barth, RJ. Undiagnosed Mental Illness as the Cause of General Medical Disability Claims. The Guides Newsletter.November/December, 2006. American Medical Association.

Additional ReferencesAdditional publications of relevance to this presentation

• Barth RJ. A Historical Review of CRPS in The American Medical Association’s Guides Library. The Guides Newsletter, November/December, 2009. American Medical Association.

• Barth RJ. Claimant-Reported History is Not a Credible Basis for Clinical or Administrative Decision-Making. The Guides Newsletter, September/October, 2009. American Medical Association.

• Barth RJ. Obstacles to Claiming Permanence and Injury-Relatedness for “Posttraumatic” Headache. The Guides Newsletter, May/June, 2009. American Medical Association.


• Barth RJ and Haralson R. Differential Diagnosis for Complex Regional Pain Syndrome. The Guides Newsletter, September/October 2007. American Medical Association.

• Turner JA, Hollingworth W, Comstock BA, & Deyo RA. Spinal cord stimulation for failed back surgery syndrome: Outcomes in a workers’ compensation setting. PAIN 2010; 148: 14–25.

• Carragee E, Alamin T, Cheng I, Franklin T, van den Haak E, Hurwitz E. Are first-time episodes of serious LBP associated with new MRI findings? Spine J. 2006 Nov-Dec;6(6):624-35. Epub 2006 Oct 11.


• Carragee E, Alamin T, Cheng I, Franklin T, Hurwitz E. Does minor trauma cause serious low back illness? Spine. 2006 Dec 1;31(25):2942-9.

• Rohling ML, Binder LM, Langhinrichsen-Rohling J. Money matters: A meta-analytic review of the association between financial compensation and the experience and treatment of chronic pain. Health Psychol. 1995 Nov;14(6):537-47.

• Harris I, Mulford J, Solomon M, van Gelder JM, Young J. Association between compensation status and outcome after surgery: a meta-analysis. JAMA. 2005 Apr 6;293(13):1644-52.

getting claimants well!! focusing on the non-work-related...

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