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Also please see our conference for attorneys Feb 22, 2002
Hand out for arbitrators at 12th Annual CAAP Conference
Questions from Audience at 12th Annual CAAP Conference
Want to know about Psychological aspects of IME's and Disability? (Then click on Content and Handout)

NEW: Standards for IME Reports

KEY POINTS FOR ARBITRATORS

Presented to 12th Annual CAAP Arbitrators Conference, December 13, 2001
By Chet Nierenberg, M.D.

ANATOMY Neck & Back
1) Bones = Vertebrae
Rarely injured except in high velocity accidents (Fractures uncommon) Frequently have pre-existing conditions such as osteoarthritis (osteophytes)
2) Disks in Between Vertebrae
Inside is Jelly like material — nucleus pulposus — A thick fibrous ring outside annulus fibrosis
- Bulge — Disk extends slightly beyond normal confines (not a sign of injury)
- Protrusion — A focal bulging (Still not usually a sign of injury)
- Herniation (Rupture) outside ring (Annulus) is broken and inside material (nucleus) MAY escape ( May or may not be sign of injury)

Keypoint
30% of Asymptomatic People have herniation
50% of Asymptomatic people have bulge (Ref. AMA Guides to the evaluation of Permanent Impairment 5th Edition 378) more on this in Diagnostic tests later

3) Muscles, ligaments and supporting tissues, joint capsules
Probably most often responsible for pain, but no reliable objective test
"Subluxation" a chiro diagnosis without specificity in definition

PAIN — EXTREMELY COMPLICATED beyond today’s scope
1) Causes can be multiple
Definition "An unpleasant sensory or emotional experience" (International
Association for Study of Pain)

2) Pain is subjective
Cannot be objectively validated. "To have great pain is to have certainty, to hear that others have pain is to have doubt"
3) ? Anatomical Causes
Discs? Ligaments? Joint capsule
Nerve pain due to "pinched" or stretched nerve
Disuse Pain

Keypoint In truth, even with highly competent physician & best diagnostic tests, the actual precise cause of pain is usually speculative

4) Psychological/Depression/Chronic Pain Syndrome
- Prolonged pain often associated with depression, many Drs. Still do not diagnose. Often easily treated with medication (SSRI’s)
- Psychological
- Primary or secondary gain
- True malingering is rare. Involves conscious intent to deceive (a legal not medical definition)
- Symptom magnification. Very common especially in litigation
- May be monetary induced or cultural
- Objective tests to identify but not perfectly reliable (Wadell’s signs) Mooney pain diagram

-Chronic pain syndrome 8 D’s
Duration, Dramatization, Diagnostic dilemma, Drugs, Dependant, Depression, Disuse, Dysfunction

DIAGNOSTIC TESTS
Objective or Subjective?
Objective means independently factually verifiable, Subjective involves the patient (claimants) complaints and sometimes examiners interpretation.
Keypoint: Sometimes "objective" are more subjective than objective
OBJECTIVE
Weakness
Nerve abnormal exam
Unequivocal Electrodiagnostict tests (Nerve conduction and EMG)
MRI, CT
Some XR
Bone Scan

Quasi Objective (may be subjective)
RANGE OF MOTION tests "called objective" but very unreliable. Tests Objective components but also subjective interpretation.
"Spasm"
Tenderness (e.g. Fibromyalgia)
Most chiro tests
FCE (Functional Capacity Evaluation)

MRI — The Gold Standard
Problems — Does not date the condition
Only shows anatomy, not function
MUST correlate with symptoms i.e., does disc herniate on same side and level as symptoms?
will not show "soft tissue" injury
Herniations, protrusions over diagnosed.
Nerve conduction studies — Frequently misinterpreted and misused. (MUST show unequivocal finding to be valid)

Keypoint equivocal EMG test frequently offered as incorrect evidence to support radiculopathy.

THE SOFT TISSUE INJURY
- Whiplash does it exist?
- Wide variety of opinion
- In rear end accidents Property Damage does not correlate well with injury

BRIEF TIPS on reading the medical records
Often voluminous Where to start?
"Trick" Read in reverse order
Look for good quality IME first. Although you may not agree with opinion Often will have good & detailed case summaries
Look for attending physician case summary
Read all medical consultations
May skim over paramedical reports like physical therapy

Important to remember
When reading Dr.’s opinion, most M.D.’s do not have a clue about what correct basis for rendering opinion is.
Frequently opinion is speculation or hypothesis.

Key point BEWARE OF JUNK SCIENCE

MOST IMPORTANT TO LEARN MORE
Attend day long conference February 22, 2002
"One Day Work Shop for case managers and adjudicators" put on by AIMEHI and ABIME
More details at AIMEHI.com, click on upcoming events

 

Following are questions from the audience at the 12th Annual CAAP Arbitrators Conference and Dr. Nierenberg's Answers. His answers represent his own opinions and are not those of AIMEHI.

Question:
Are there any signs an arbitrator can look for in an IME report in which an IME examiner is being an advocate for one side of the case?

Answer:
As was discussed in the seminar, reputation of each doctor in the community is an important factor. However, with respect to the report itself, there are some clues that are a tip off.

1 — In the historical account section, is the history clearly separated from examiner opinion or comment? The historical account section should be "the facts, maa’m just the facts". Occasionally, the examiner will need to make a clarifying comment in the historical section, but this should be clearly identified as an editor’s or author’s comment.

2 — When expressing opinions, are the opinions based on clearly defined reasons, or are they simply stated off the cuff? This is particularly important when addressing causation. For example, when the examiner lists an opinion, he should say it is because of reasons A, B, C, D, etc. He should not simply state it is my opinion that….

3 — Another tip off is if the examiner says, "it’s all due to psychological factors. It may be quite proper to say that there are psychological factors involved and state the reasons. However, if one ascribes the causes exclusively to psychological factors, there should be good reasoning for that.

4 — The report should be very clearly organized. Reports that are poorly organized tend to show that the examiner’s opinions are not clearly focused, may show a tendency towards bias.

Again, the reputation in the community of the examiner is extremely important in looking for bias.

Question:

Why should lateral flexion/extension x-rays be done? What are the signs/symptoms of loss of motion segment integrity? Can a rating rule out DRE cervical category IV without lateral x-rays?

Answer:
In clinical practice, flexion/extension x-rays are frequently done to determine the status of whether or not smooth motion is present. It can also be used in formal ratings utilizing the American Medical Association Guides to the Evaluation of Permanent Impairment currently in the 5th Edition. The precise methodology for determining loss of motion segment integrity can be illustrated on page 379 of the current 5th Edition Guidelines. These are the x-ray signs. Symptoms may include pain and if the translation or loss of segment integrity is severe, there may also be radicular findings such as segmental nerve pain or localized abnormal physical nerve findings such as weakness, reflex abnormalities or dermatome sensory problems.

Further definitions of this topic can also be found on page 383 of the Guides.
With respect to your specific question about category IV, the current edition of the Guidelines requires flexion and extension x-rays in order to place a person in category IV.

However, there is a very important point here. Namely it is not the rating physician’s responsibility to "rule out" other conditions. To "rule out" is the duty of the treating physicians. It is only the duty of the impairment physician to rate on the basis of objective/subjective clinical information he has at his disposal. It is not the evaluator’s responsibility to do detective work. That is to say, he cannot make that category IV rating without the presence of x-rays. However, a good quality examiner, if he suspects this condition, but does not have the evidence in front of him, may make a statement such as the following in his report. "Customarily, the attending physician would order flexion and extension x-rays in this situation. If such x-rays showed additional evidence of loss of motion integrity, it is possible that the examinee might rate a higher category impairment such as category IV". To summarize, this is a clinical decision that the attending physician would make to obtain the flexion/extension x-rays. It is not the rating physician’s responsibility or duty to obtain such x-rays or speculate on their outcome.

Question:
Is there any good explanation for late onset (e.g., more than 1 week after trauma) of back pain.

Answer:
There is no one single good answer, but the fact is clear that this situation frequently happens. There are many factors that could explain this in different scenarios. For example, the patient may be taking pain medications for the first week and the medication masks the pain. Another explanation would be a herniated disc, in which the herniation is small and it takes a while for the inner disc material to slowly herniate out and produce more symptoms. This would be a description of a progressive herniation.

Another explanation would be a change in activity level. Perhaps initially, the patient would be resting and not working, only to resume a more vigorous activity level later on. Another possibility is the presence of other injuries. For example, if there is a broken ankle, and the person is not walking and immobilized, the back pain may surface later as a result of increased activity.

Question:
In reviewing permanent injuries, which are not ratable under Guidelines, e.g., sacroiliac joint (no rating provided in the Guides). But plaintiff is obviously suffering long-term pain and decrease in lifestyle. How do you evaluate the injury? Would you look at permanent disability ratings determined in associated cases workers comp cases?

Answer:
The diagnosis of sacroiliac dysfunction is controversial. Some physicians do not believe it exists. Others believe that it does. Still other paramedical personnel believe that it is very common, and explains all kinds of things. My personal opinion is, it is a very real phenomenon, since it can be treated with very specific sacroiliac injections.
Nevertheless, with regard to the impairment rating, even though this is not specifically recognized as a diagnosis in the Guides, the examinee might qualify under DRE lumbosacral category II, page 384 of the Guides, because of other findings such as muscle spasm, complaints and a reproducible history. Additional percentage rating might be given by the examiner on page 20, under the physician’s discretion section 2.5 G. In addition, if the pain is really significant and disabling, although there is no percentage rating, the examinee may be also rated under the pain section in chapter 18. This is a new rating type system.

However, as was discussed in the non worker’s comp arena, one would still have to rely on other evidence such as how the pain in fact influenced the claimant’s lifestyle. For example, have sports or hobbies been affected? Have marital or family relations been affected? Has work status or other activities been affected?

Question:
In your IMEs, if a lawyer wishes to accompany his client, or to tape the proceedings, what is your position on this?
Answer:
My policy and the policy at our office, the Honolulu Sports Medical Clinic, is that no one other than the examinee and the doctor is allowed in the examination room. We also prohibit the use of recording devices such as sound or videotape. We specifically exclude the presence of attorneys. Of course, we always make allowance for hardship cases and will sometimes allow a close family relative to accompany the person. However they may not participate in the historical information taking portion. In other words, they may accompany the person, but not contribute to the process. When language is a problem, an interpreter is allowed. In worker’s comp cases, the Department of Labor has mandated that the attending physician may also accompany the examinee. In this situation, we attempt to accommodate the attending physician if he or she would like to attend.




Question:
I am lumping the next 2 questions together because they speak to the area of causation.

First question:
Suppose a patient has an MRI which shows diffuse disc bulging at the cervical spine, a positive EMG at the same areas and testifies that he has generalized pain at the area in question and did not have this pain until after the accident, is this the type of factors which will allow you to conclude that the accident caused the symptoms?

Second question:
If a patient has a pre-existing asymptomatic bulging condition or disc herniation and symptoms which did not start until the accident according to his testimony, is it medically probable (51% out of 100%) that the accident caused his symptoms? If the problem (pains) continue over 6 months, is it medically probable that the accident has activated the prior asymptomatic condition? (So that it has to be chronic or permanent?)

Answer:
The question of causation is complex and beyond the scope of this discussion. However, as an arbitrator, one should look to the totality of the situation and make sure that the examiner has addressed all the issues. In these questions, hypothetical situations are proposed. However, one would want to be quite sure that there are no other significant factors that were not mentioned in each of these hypothetical individual cases. When I determine causation, I look at a number of a factors, which definitely include the pre-accident situation. Were there pre-existing conditions, were these conditions, in fact, symptomatic? Were there pre-existing accidents? Is the examinee credible? If all of the evidence is subjective, but the examinee does not appear credible, this significantly casts doubt on causation. Are there other medical explanations for factors, such as medical conditions like diabetes that can cause nerve problems or other injuries? Was work status changed as a result of the injury? Did sports or physical activity change as a result of the injury? Of course, one would want to know how symptoms changed or began as result of the injury. Was there objective evidence of a change in condition such as a fracture on an x-ray or a newly discovered disc herniation? These and other factors must considered in their totality. So in answering the questions, I’m assuming for the purpose of these questions only, that the questioned individual cases do not contain other hidden information.

In the case asking about the patient with the bulging disc, and a positive EMG with generalized pain. Even though the point was made that a bulging disc is not diagnostic of injury, the fact that the examinee has a positive EMG and was asymptomatic, prior to the subject accident, then one would conclude on a more likely than not basis, that the new subject accident would cause the source of pain. The reason for this is that all of the factors go together. As was discussed in the seminar, it is extremely important that the EMG be unequivocally positive. Many EMGs are not really positive even though they are reported so. An equivocally positive EMG is not an indicator for injury.

In the second scenario, in which the claimant has an asymptomatic documented bulging disc condition, but symptoms did not start until after the accident, is it medically probable if the accident caused the symptoms? In this case, although there is an asymptomatic condition, there is no objective change of condition other than simply symptoms. Thus the fact that the examinee had a bulging disc is largely irrelevant in determining whether or not, the cause of the symptoms is from the accident. In this case, one would go to the usual factors in determining the validity of subjective claims. Factors such as, is there symptom magnification present on an objective basis? Is the examinee credible? Is the examinee’s history consistent? Does the examinee present in a straightforward manner? Has there been conscious intent to deceive (as evidenced by objective evidence like a sub rosa videotape?)

In the second part of the question, it asked, if the problem persists more than 6 months, is it medically probable if the accident activated a prior asymptomatic condition? This is a question that cannot be answered precisely. One of the points made in the seminar is that even with the best medical science, it is often not possible to say with medical certainty what the exact cause of the pain is. In this case, the person had an asymptomatic bulging disc. As was explained in the seminar, bulging discs are not considered injuries and most physicians consider them normal findings. In fact, 50% of people have bulging discs. In this situation, I did not think it would be proper to say that an asymptomatic condition would be activated. However, the activation concept is somewhat obscure and often times not relevant. Perhaps a better scenario would be someone with extremely severe arthritis of the spine who is either asymptomatic or mildly symptomatic prior to a whiplash injury. After the injury, the examinee becomes much more symptomatic and painful. In this type of scenario, one would properly consider the new injury to have aggravated or worsened (a previously asymptomatic pre-existing condition.)



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