Yearly Archives: 2014

How are my physical restrictions determined?

Workers' Compensation

There is no hard and fast rule as to how the doctor gives you restrictions. Some doctors will order a Functional Capacities Evaluation. They will review the recommendations from the FCE and either adopt those as your permanent restrictions or modify them.

Other doctors will use their personal judgment regarding what you can do. Many of these doctors scoff at the increased use of FCEs and are confident they can accurately assess safe levels of physical activity.

A third group of doctors are inclined to give you no set restrictions at all but encourage you to watch yourself or “find another line of work.” These doctors are undoubtedly well intentioned but often create real problems in workers’ compensation claims. As we’ve heard, this set of doctors explain they are concerned that giving you written restrictions will handcuff you indefinitely, especially if you are looking for work with a new company. On the other hand, we think it is a little naïve to expect an employer to accommodate a worker’s request for job modifications when the doctor hasn’t specifically said the injured worker needs it.

An example of where this third group can inadvertently create problems occurred for us when a doctor released our client without any restriction in writing. Our client insisted that the doctor had told him to find a different line of work. Based on this, the client did not return to work the next day. Not showing up for work he was summarily terminated. The insurance adjuster then moved the Industrial Commission to cut off his weekly checks on the basis that he had no documented disability.

We took the doctor’s deposition and he seemed astonished. “But, I told the rehabilitation nurse that he could not return to his old job. I just didn’t want to limit him in terms of his future options.” When asked why this didn’t appear anywhere in her report the nurse simply replied that she’d asked advice from the adjuster. The adjuster told the nurse to leave it out of the report, as she wanted to terminate the injured worker’s checks. The rehabilitation nurse went along with the adjuster’s request.

I am not depressed!

Workers' Compensation

It would be difficult to overstate the number of clients who have come to us over the years frustrated when a doctor or therapist suggested they were depressed. In our society depression is often seen as a character flaw, a weakness, or an excuse. Without doubt, these injured workers are genuinely offended that someone is suggesting that “it’s all in their head.”

On the other hand a prominent psychiatrist who deals with a lot of injured workers testified in a deposition that 80% of people who suffer from chronic pain, (defined as pain lasting for at least six months), will develop clinical depression. Our bodies are just not made to deal with high pain levels for that long of a time. And the fact that former co-workers, adjusters, and rehabilitation nurses are often less than sensitive to an injury that seems to go on indefinitely doesn’t help.

When speaking with doctors about this most of them have readily agreed that it’s very rarely JUST in someone’s head. But they do cite numerous studies, which confirm what the psychiatrist detailed and note that those studies often suggest that if the mental outlook improved then the patient’s capacity to cope with the pain would improve. That doesn’t mean the pain goes away… it doesn’t. It’s just that it’s easier to deal with it and function in spite of it.

We’ve long recommended that our clients develop at least an informal network of people who can provide emotional support as you work through this. That’s all the more true when you don’t get better on schedule, when you cannot return to your old job, or when financial pressures get increasingly difficult. This may be family (although it’s already tough on family), a couple of close friends from church, or a counselor. The important thing is to not try to tough it out. We’re all human and when you have difficult workers compensation case it’s not time to try to be superman.

What is conservative treatment?

Workers' Compensation

One medical lexicon defines conservative treatment as “a course of therapeutic action designed to avoid harm, with less possibility of benefit than more risky options.” What’s that mean to you? At the heart of it conservative treatment is an effort to make you better without taking drastic, immediate steps like surgery. Yes, a surgery could possibly make you much better than can physical therapy but PT is a lot less risky than surgery. And if PT fails surgery is still an option. Every doctor is a little different in their view of how much non-invasive treatment needs to be attempted before considering surgery.

Note, however, that the notion of conservative treatment as a potential cure fits like a hand in the glove with an adjuster’s mentality of not paying for anything expensive right away. As a practical matter, what conservative treatment will mean to you is that your doctor and your adjuster will likely go with x-rays well before they do an MRI. Likewise, they will opt for physical therapy and epidural steroid injections before they suggest surgery. Each of these is intended to help you heal and does so while putting you at less risk than with a surgery. And coincidentally they cause the insurance company less money.

What’s the difference between an MRI and an X-RAY?

Workers' Compensation

X-rays are inexpensive, quick, and usually done right in the doctor’s office. They use a theoretically dangerous ionizing radiation to create images of bones and dense tissue. In the small doses that you receive during a few x-rays there’s probably nothing to worry about. An MRI is expensive (30-40 times as expensive as an x-ray), takes about 30 minutes, and the equipment is often not available in the average doctor’s office although more and more orthopedic surgeon’s offices are equipped with them. An x-ray is far better than an MRI at detecting fractures in a bone, but an MRI is far better at spotting damage to a soft tissue like a ligament, tendon, or disk. As a practical matter, workers’ compensation adjusters like to avoid the expense of an MRI unless other options have been exhausted first.

This doesn’t mean there is no way that the adjuster will promptly authorize an MRI. If there is overwhelming evidence of a disk injury she may well go ahead and do it. But don’t be surprised if there is a delay. This delay can be lessened if you let us push the issue down at the Industrial Commission.

What is evidence based medicine?

Workers' Compensation

This could be answered on two levels. Mind you our answers, being those of workers’ compensation lawyers, may not be the answers which doctors would give you.

The first level, that of medical journals and the like, evidence based medicine is an attempt to make medicine more of a system using the “current best evidence in making decisions about the care of individual patients.” On the second level, the level of evidence based medicine as it seems to be practiced by doctors who speak at Industrial Commission conferences and treat a lot of injured workers is to put great emphasis on all the scientific aspects of the examination and significantly less emphasis on what a patient is telling them. At least that is what is reported to us by many patients.

What it comes down to is that a lot of injured workers are really lousy at explaining how they got hurt and where precisely they hurt and what makes the pain increase or decrease. Accordingly, their complaints have little value in terms of science. On the other hand physical examinations and tests like x-rays, CT scans, and MRIs are accorded great scientific value.

A doctor may discount what you are telling him if he cannot confirm it scientifically. That sort of stinks if your adjuster won’t authorize the MRI, which would provide that confirmation. In terms of putting evidence based medicine into practice for treatment options a doctor may emphasize the statistical results of other patients around the world and less on the potential benefit in a given patient. The problem with all this is that if your body doesn’t respond to a course of treatment like 95% of the rest of the world does it doesn’t make you a liar. It means you’re an exception. Exceptions are known to exist. It’s unfair to dismiss a patient just because they are an exception.

In a perfect world evidence based medicine sounds like a great idea. In the real world of competing interests and power struggles we’ve seen it misused and sometimes does nothing other than providing a fancy name for an excuse to not pay attention to you.