In it’s simplest form it’s what it sounds like: someone who attends to, or pays attention to, you. When you’ve got the flu it’s good to have someone who will check on you, get you some medicine, and bring you something to drink when you want it. That’s what loved ones do. Now say you had a total knee replacement and cannot walk or stand for any meaningful length of time. And throw into the set of facts that you are single and live alone. You need someone to take care of you. There is no way your are going to heal if you are having to abuse yourself taking care of your every day activities. The adjuster needs to pay for attendant care. It’s part of getting you better just like therapy, medications, and surgery.

Let’s take this scenario a step further. Everything is the same except that you are married. What’s the adjuster going to do? In at least 99% of the thousands of cases we’ve handled the adjuster expects your spouse to take care of you. If that means he or she takes time off of work without pay or uses up vacation or Family Medical Leave Act time the adjuster doesn’t really mind. We think this is wrong. Just because you have family who loves you doesn’t mean the insurance company shouldn’t pay for your medical care.

Largely through the efforts of one insurance company – after losing a case in the Court of Appeals about attendant care – the 2011 laws placed strict regulations on attendant care. We’ve become adept at making sure our clients are in compliance with these new (and in our opinion unnecessary) rules. The key thing is that your doctor needs to document the need specifically, for a limited period of time, in advance of the surgery. If things are done correctly your loved one will be compensated for the services he or she provides. Keep in mind, though, that the compensation rate is what a home health aide would get paid – usually about $10.00 – even if that’s less than what your spouse makes on their job. Every little bit helps though.

Wikipedia gives as good a definition as any: Pain management is a branch of medicine employing an interdisciplinary approach for easing the suffering and improving the quality of live of those living with pain. That’s well and good but what does it mean in the context of workers’ compensation?

We usually see pain management coming when a surgeon is done with you but you still have problems functioning and with pain. The surgeon may see his role as ending after the operation. It is up to a different specialty to handle the long-term results and recovery from this. While that could seem like the surgeon is just handing you off to someone else it’s not that simple and it’s not that callous.

In a deposition we took a prominent pain management doctor testifies that 80% of patients with chronic pain (that is defined as pain which last for six months or more) will develop clinical depression. Our bodies are not designed to put up with pain for that long. As much as we all want to see people get 100% better sometimes that doesn’t happen. People learn to live with pain. They do this sometimes with medications, sometimes with therapy and exercise, sometimes with counseling, and often with a combination of all that. Truthfully, managing all this is a skill set completely different than performing surgery.

Clients shouldn’t feel neglected or abandoned when their surgeons refer them to pain management. What we do see happen, though, is that pain management specialists can seem to exhibit a certain sense of prejudice. A lot of injured workers have reported that their pain doctors view them skeptically. It’s almost as if it’s ok to be in pain management if you have cancer but if you are there after a failed back surgery you should buck up and stop your whining and nothing cures like some tough love or a kick in the butt. If true such an approach is reprehensible in our minds.

Our best advice to clients in this predicament is to avoid playing into stereotypes and prejudices. As we’ve said repeatedly it is important to retain your credibility with your doctor. That means you’re complaints and self-assessments should be accurate, clear, and not exaggerated. It’s important to note that we’ve seen plenty of medical records with references to “non-organic pain” or “non-physiological pain” and “symptom magnification.” Many of these doctors are clued in for evidence that you are not being accurate or honest. When it comes to an issue like pain, which cannot be measured with a thermometer or an MRI, you word has to be 100% solid.

A Functional Capacities Evaluation, or FCE, is theoretically a test that fairly and accurately evaluates a person’s capacity to work at certain levels over a lengthy period of time. There are a number of different FCE systems in place but they share certain things in common.

First, a therapist will likely explain what is expected and tell you that you do not need to perform any tasks that you feel you cannot safely do. She or he will interview you to confirm what your injury is.

Second, the therapist will likely perform a series of physical tests moving you around and asking you to do things while distracting you by speaking to you or having you answer questions. The purpose of this is to see if you unconsciously move without pain when you have already told them it hurts to move.

Third, the therapist will perform an extensive number of validity tests. Some, such as a test that tests your ability to squeeze a handgrip, are designed to see if you are giving full effort, have a significant support among medical literature. Others, such as a series of tests given to people complaining of back pain, have been repudiated by the designer of the test.

Fourth, the therapist will prepare a report which will be given either to your doctor or to your rehabilitation nurse. While we have seen an instance of a rehabilitation nurse falsifying the FCE results before giving them to the doctor we believe this to be a rare occurrence.

An FCE can be very beneficial to an injured worker to the extent that it demonstrates to a doctor what you can and cannot do. The downside of the FCE, in our experience, is that the therapist has a tremendous amount of flexibility in deciding if you’ve given full effort. Nothing, we repeat, nothing will destroy your relationship with a doctor like a FCE report which says you gave less than full effort.

What causes us a lot of concern is that some physical therapy groups aggressively market their FCEs to insurance adjusters as a way to bring claims to a close. That, to us, seems like a thinly veiled promise to either recommend little to no restrictions or to declare someone to be giving submaximal effort. We reviewed a report from one such group that stated in the opening and closing paragraphs that the patient had failed some validity tests and had given submaximal effort. When we combed through the full report (which, by the way, was not given to either the doctor or us… we had to subpoena it) we discovered that the client had passed 27 of 30 validity tests. So yes, it was true that he had failed three. And yes in English “three” is “some” but we believed this to be a clear effort to paint a negative picture about a very honest injured worker. Another example we’ve seen repeatedly is a therapist asking a patient about his pain level before and then after the test was done. According to this particular FCE protocol if your pain is 5/10 when you start the FCE your pain should be no more than a 7/10 when you finish. If you say it’s an 8/10 then you get dinged for symptom magnification. Why? Because the FCE protocol says your pain should only go up by two points. Huh?

A substantial amount of literature supports the theory that an FCE should be performed twice. It’s well documented that a person’s performance may appear submaximal strictly due to the unfamiliarity of the situation. We’ve personally had many clients whose second performance has no trace of submaximal effort reported – even though the overall demonstration of strength did not change one bit.

Finally, many believe that indisputable evidence such as temperature, blood pressure, and heart rate are more reliable indicators of effort than the subjective impression of therapists who market their testing to workers’ compensation adjusters.

Literally, it is the reporting of symptoms that are greater than would be expected. But that is a very unsatisfying definition. In the context of a workers’ compensation claim it’s just about the worse thing to be stated short of calling someone an outright fraud. The problem with labeling someone with such a drastic term is that in medical literature it is clear that the tendency to overstate symptoms may be unconscious or conscious. Yet in every day usage it has come to mean intentional lying.

A case comes to mind involving a woman with shoulder injury. She was seen by an Occupational Medicine doctor who we have come to view as being rather callous and indifferent to workers’ compensation claimants. When our client did not respond to treatment, this doctor labeled her as symptom magnifying and discharged her as a patient. Subsequently, an MRI revealed a torn rotator cuff. So, while the patient’s complaints were greater than what the doctor expected, the error lay with the doctor’s indifference and decision not to order an MRI which would have supported the patient. This is not at all an isolated instance. We reviewed medical records where an orthopedic surgeon vilified an injured worker after a back surgery. The worker was complaining of symptoms greater than what the doctor expected. That was undoubtedly because a neurosurgeon evaluated what the orthopedist had done and discovered that the first surgeon had operated on the wrong level in the back.

What’s our point in telling horror stories? It’s what we’ve observed “the other side” doing about injured workers. Just because there have been a couple of people, among the tens of thousands of injured workers, who exaggerated their symptoms doesn’t mean every workers’ compensation claimant is lying about their condition. Yet some health care professionals who work closely with the insurance adjusters seem to take a “guilty until proven innocent” view. It’s simply not fair if they pre-judge you before they’ve even done a physical examination.

What can you do about this? We’ve said it before and we’ll say it again: avoid dramatic overstatements of pain. They never do you any good and can often cause a lot of unintended problems.

Secondary gain is a psychological term that refers to a motivating factor that a patient has in reporting symptoms or complaints of pain. More simply put, secondary gain is an outside reason or benefit to complain of pain or symptoms. For instance if you tell your doctor “I think I broke my arm because the bone is sticking out of my skin” you obtain medical treatment. You also have a secondary gain in that you may get paid time off of work or even a little extra attention from your family.

The phrase secondary gain in its accurate use does not imply that the patient even recognizes or realizes the gain that is being given to them. Specifically, it does not require or include any type of conscious thinking on the part of the patient.

Unfortunately, in workers’ compensation circles the term secondary gain is often interchanged with the term malingering. Malingering involves an intentional lying about a condition in order to obtain benefits. In a workers’ compensation claim malingering can, and obviously should, be avoided but secondary gain cannot be. That’s why we are offended when rehabilitation nurses and some doctors roll their eyes when they use the term secondary gain. Many of them act like you receiving surgery to repair an injury you suffered due to your employer’s negligence is a sign that you’re a bad person. We think that is unfair.

Follow Us

Contact Us

Footer Contact Form

Thank you for contacting Oxner + Permar. If you have questions you can contact us at 1.800.319.9000, or complete the form below.

UnitedHealthCare creates and publishes the Machine-Readable Files on behalf of Oxner + Permar PLLC. To link to the Machine-Readable Files, please click on the URL provided: transparency-in-coverage.uhc.com
© Oxner + Permar PLLC 2022. All rights reserved.