Cal Workers Comp denies pain

[dejerine]

You see the problem for people disabled by severe pain. Someone at this forum, perhaps Wise, stated that pain is a subjective sensation.

Now we know that is true, because we have great difficulty in communicating to others what Central Pain is like, bearing in mind that no one has any idea what nerve injury pain feels like who hasn't experienced it. In a sense, it is not really subjectiveness which is the problem, it is the infrequency of nerve injury pain among the public. Pain from a burning match is also subjective, but no one considers it such because pain from a burning match is commonplace. Yet, they are equally unable to communicate it, but they don't have to because common sense is, well, common.

It is really the rarity of central pain which is the problem. If half the public suffered a SCI every five years, no one would think to question CP. That is what is meant by subjective, something the public does not know about.

There will be no volunteers to test the accuracy of our statements, for SCI is just too terrible to contemplate for test subjects. Eighteen percent of stroke victims who have sensory alterations will have central pain, but we will not induce stroke to test the accuracy of this statistic.

So if pain is inherently a subjective sensation, does that mean NO pain can ever be compensated? I think not, because it voids the idea of expertise. Pain physicians have little trouble identifying Central Pain, but many of the comments here indicate that it is difficult to sort out true nerve injury pain from ordinary pain being referred within the body.

Internal pain, especially from the spine, localizes very poorly. Injury low in the cervical spine commonly radiates upward, with pain in the occipital region (back of head) being almost routine for those with C6-7 problems. No one knows for sure how this happens.

The superior cervical ganglion which is supposedly positioned around C2-3 and draws from those roots, communicates with Cranial Nerve V and could explain radiating pain from that level, but everyone who pays attention, notices similar pain from injury lower in the Cervical spine. There is individual variation in how things are invervated. The blood supply on one side of the brain does not match that on the other side of the brain within in the same individual, and nerve supply may be just as varied.

And so it does not make sense to isolate pain, which is by definition subjective, and say that no subjective symptom is compensable. It denies the existence of what we all know to be possible, PAIN. And in the end, the body shrinks from, and cannot override severe pain. I consider CP to be far worse than a toothache, but it is accepted as given that a person has the right to relieve tooth pain. If movement is painful, which it is in CP, or if light touch evokes pain, or if spontaneous pain is overwhelming, we must allow true experts to evaluate this. To eliminate experts from pain is no more due process than hearing expert testimony as to whether a murderer is insane. At some point, we have to rely on them. An in CP, since it ALWAYS involves injury to the Central Nervous system, which CAN be objectively tested, we can presume CP if there is bizarre pain. Or, the expert can presume it. If our pain were not unusual, it would not be nerve injury pain.

I remember hearing a famous pain doctor say, "If a disability insurer asks me whether a patient is disabled, I say 'Ask them yourself. They know best.'"

I think these things are something the public would like to duck, but there is no way. Since most people have low back pain, the public says well I have low back pain, but I still work. This cuts against those of use with CP who would like nothing better than to work, but realize if we took on more pain, we might collapse under the weight.

I doubt there is anyone here with CP that would not give anything to be able to work. I have never met a malingerer with CP, but I have encountered many souls who are hanging on out of principle and gut feeling, although their sensorium sends nonstop torment through their bodies. I salute those who have the courage to live, but Cal Worker's Comp doesn't see it that way. Fortunately for us, there are sufficient numbers with ordinary pain to fight this battle without the feeble CP patient having to fight the battle alone.

[This message was edited by dejerine on 04-22-04 at 07:48 AM.]

[This message was edited by dejerine on 04-22-04 at 07:50 AM.]

[calico]

Hi, Dejerine, I've been heartsick over this and have put quite a bit of energy into defeating it for the last few months. What clued me in was an article in the San Jose Mercury News which said things like carpal tunnel and soft tissue injuries would no longer be covered if the proposed legislation passed. The whole "subjective symptom" crap is the same thing my disability carrier tries to use against me, so that's why my eyes bugged out when I saw the newspaper article. Sadly, my Calif. senate rep wrote and was carrying the legislation.

I wrote and received back answers from Arnold, and my senate and assembly reps. All totally for the "reform".

Then I scheduled a speaker for our local Democratic club - a workers' comp attorney. She was great, and very, very concerned. She said what employers didn't understand was that the employees' only choice now would be to sue them, so I guess that means they have the right to do so. But, of course, you have to find an attorney to take the case on contingency, if you can, because who can afford an attorney at $250/hr?

Here's one stunning fact - the biggest reason people voted for this was because they are convinced that the reason rates have risen so much is because of - MALINGERERS. Don't try to dissuade them with the facts. I got into a heated debate with a local DEMOCRATIC business owner over this. They lay NOTHING at the feet of the insurance companies.

I was honored to be at a dinner the other night where the speaker was one of the THREE senate Democrats who voted against this bill (remember, Democrats conrol the legislature in California). He said the insurance companies gave NOTHING in this legislation, they only got.

I read within the last week that some court in Canada had ruled it illegal for workers' comp to outlaw pain as a reason for benefits. I hope the same can happen here.

Dejerine, here's one thing I don't get. The legislation references that doctors have to use the AMA standards in making their diagnosis and determining extent of disability (I think). I found these on-line and they do consider pain. But I guess the legislation specifically rules out symptoms which can't be substantiated by "objective" tests, so those parts of the standards will be ignored? Horrendous! Talk about cherry-picking to their best advantage! I might be able to get this clarified over time.

Calico

[duge]

What get's me is most employer's Larger one's do not care one bit about their worker's as long as they can produce that's all that matters to them. Just another win for them and a loss for us

T-12 incomplete 10-3-02

[Aquitaine]

Hi Dejerine,

Is there a news post that explains/describes this new change in the law? I'd like to send others an e-mail letting them know the specifics. Thanks.

John

[dejerine]

erroneous duplicate

[This message was edited by dejerine on 04-24-04 at 04:04 AM.]

[dejerine]

Denying compensation for subjective symptoms is just another way to deny claims for pain. Ditto for objective tests. They clearly had pain in mind in writing this exclusion.

Worker's Comp has won the hearts and minds of the people. For the past ten years, about 15% of the Worker's Comp budget has been spent on expensive TV ads proclaiming how much Worker's Comp agencies have saved by detecting frauds. This has created a false picture of malingerers.

Of course, no one can actually live on Worker's Comp. No one would be stupid enough to file a fraudulent claim and quit working because they would starve in the dark.

Equally offensive are the so-called independent medical exams that insurers demand. These are often performed by old docs who no longer have a solid practice. These people understand who signs their paycheck. I heard of one doc who testified for one too many companies. The judge remembered he had been there for several cases. He did research and found out the doc had testified in 22 straight cases that the plaintiff was not injured. He barred the doc from ever being an expert witness again.

[This message was edited by dejerine on 04-24-04 at 04:00 AM.]

[This message was edited by dejerine on 04-24-04 at 04:03 AM.]

[Aquitaine]

Well, I agree with everything you're saying. but I assumed from your original post there was a specific entry in the new WC regs that prohibited claims based on pain, or long term pain from CP, which is near and dear to all of our hearts http://sci.rutgers.edu/forum/images/smilies/wink.gif. But there only seems to be a change to claims for generic back pain, which SEEMS reasonable.

However, with big insurance corps involved I have no doubt that this is a very evil system and getting more evil by the minute. Luckily in the 14 years I've been employed in california, I never used the WC system. Not that I didn't feel "stressed" from work, or that any of my various previous problems (like decubitus ulcers from working on projects around the clock to meet fabricated deadlines) were made much worse from work. Its funny though, whenever I suggested I had problems, my company would tell me to take time off, and see a doctor from their health plan (this was actually my doctor for years, who happened to be part of their plan). I think they were terrified that I would claim WC benefits for whatever reason, I don't know for certain, it was just the feeling I got. As I've talked with other employees about their problems, the results are similar.

I guess if I worked for a company with no private health insurance, I'd have to deal with WC. Guess I'm lucky not to have had to, but thought I should mention there are a lot of people who have never dealt with WC, so we're kind of ignorant about it. But then its also an extremely complicated system to really understand. You've been able to highlight its shortcomings, at least somewhat. But I've run a number of searches and can't find much in terms of similar uncovering of problems with WC, maybe you should consider sending a letter to the editor, of say the times. An editorial piece describing it just as you have here, and if you would like any help with it, please let me know, I'd be very glad to do anything you need.

[This message was edited by Aquitaine on 04-20-04 at 10:25 AM.]

[calico]

Hi, guys, I've been looking hard at this pain exclusion, and have written the lawyer who came and spoke to our group for clarification.

I haven't read the legislation word for word (it's 90 pages long), but I did zero in on the part that talks about what standards should be used to determine permanent impairment, and it says the "AMA Guides to the Evaluation of Permanent Impairment (5th Edition)". It does NOT then go on to cherry-pick only the "objective" symptoms.

I found a website which evaluates these Guides as they relate to cervical and thoracic spine injuries. Here's the website link. If you can look at it, what I'm about to say might make more sense, and Dejerine, maybe you can help us understand it better, too, and find the flaws in my logic.

http://www.spinallogic.com/ama_guides.html

I looked at the "Interpretation" for Cervical Spine injuries since that's what I have and understand the best. If you look at Category II, it says:

"History and exam relevant to a specific injury". It seems like that could be a fairly easy hurdle to cross in many cases.

Then, it says that this category "may" include "complaints of radiculopathy without objective findings". One of the complaints of radiculopathy is dermatomal (subjective) pain. So the way I read this, at least in this case, pain would not be excluded if that's the only symptom.

I guess one thing that I need a better fix on is what does "History and exam relevant to a specific injury" mean? Let's say a person's job is picking tomatoes, and his back has been getting progressively worse. Finally, he can't take it anymore and claims workers' comp. Would his job activities be relevant "history"? Would his back pain be a "specific" injury, or would that have to be "Hey, I bent down to pick this one tomato one day, and my back went POP"? Know what I mean?

Aquitaine, you may not have thought about it, but you have to consider that really terrible back pain is a very common result of many professions. I live in an area where thousands of farm workers make their living doing nothing but bending over all day, and that's just one small example. Excluding it from coverage by workers' comp is a travesty.

Calico

[Aquitaine]

Originally posted by calico:

Aquitaine, you may not have thought about it, but you have to consider that really terrible back pain is a very common result of many professions. I live in an area where thousands of farm workers make their living doing nothing but bending over all day, and that's just one small example. Excluding it from coverage by workers' comp is a travesty.
Calico

Hi Calico,

I certainly hope I didn't come off as uncaring, I'm not sure where I said that I didn't consider terrible back pain as a very common result of many professions. I simply said that I, and many others, haven't used the WC system, and are somewhat ignorant of its regs, not ignorant of the suffering its been causing. You don't have to search very long to find articles in a number of papers and journals supporting this. I also said that the reform only seems to change claims for GENERIC (or subjective) back pain, and if yout spine goes POP, that's certainly NOT generic, there will be more than subjective findings involved, and a valid assessment can be made (whether objective tests are needed or not). What the reformers have supposedly been trying to exclude are those that say "my back hurts", which is subjective, and doesn't have a specific assessment behind it. Now PLEASE don't read that as AH HA, he's agreeing with all this. I'm not. If you go back and read my post, you'll see I said this SEEMS reasonable. What actually has been created by this reform may have ended up as the travesty you speak of, after about a half hour reading through some of the current WC regs, I'm just as confused as ever, trying to find exactly where and how this affects those claiming back pain.

Anyway, my point is this, no, I wouldn't want anyone making a claim based solely on subjective criteria (symptoms). If you're saying a claim SHOULD be filed for that, maybe we are in conflict, but I haven't seen that in any of these posts so I don't think so. A doctor should be able to complete the SOAP process and find Objective data (or not) to be able to create an Assessment from (i.e.- use AMA standards to make their diagnosis), then hopefully move on to a Plan to help heal the problem. So based on what the reformers are saying, that seems reasonable. This process has been implemented for every complaint that I've ever gone into a doctors office with, including CP (that doesn't mean I haven't had my share of refusals by medical insurance companies, like they wouldn't cover a wheelchair after I had my aneurysm).

Now, for all I know, this was never an issue in the first place, which sounds more likely. And how this "grand idea" was translated into WC regs has probably been perverted into just another scheme for the insurance companies to deny perfectly reasonable claims to workers suffering from diagnosed back pain.

It seems to me that I'm in agreement with you both on this, that the insurance companies controlling WC claims, are now able to refuse even more claims, giving the california worker even less care than before. That was what they were after, they gave up some immediate care benefits (that we'll have to wait and see if that works as described), but once again they have furthered their own agenda by lobbying successfully for the passing of this reform. Like you, I'm stunned that so many democrats have fallen for this massive advertising campaign (paid for by money from the WC budget no less!) proclaiming malingerers as the one and only cause of skyrocketing WC rates. What world are they living in, when you can easily find dozens of hard facts uncovered by the press just over the past few years, that show otherwise.

<sigh>And with that, I claim a well-meaning layperson's ignorance in dealing with bureaucracy, and bow out of this.

[This message was edited by Aquitaine on 04-21-04 at 12:04 AM.]

[calico]

Most people don't realize that there aren't objective tests for many soft tissue injuries. These conditions won't necessarily show up on an MRI, x-ray, or other "objective" test.

Case in point: My sister-in-law tested positive for carpal tunnel syndrome (via an EMG) and was also diagnosed with chronic tendonitis, for which there is no definite objective test. She had surgery for her carpal tunnel. Her EMG is now negative. Her pain hasn't changed. She's SOL. She no longer has any objectively determined symptoms. Her history becomes moot.

My disability insurer has tried to argue that my symptoms are subjective and therefore not relevant. After all, I've had spinal cord release surgery in my neck, so my cord isn't compressed anymore. What could be the problem?

The real irony is I've read there is little correlation between what a person's MRI/x-rays look like, and the amount of pain they're in. I'm not going to assume, though, that all those people who know they have what the medical system thinks are lousy-looking MRIs aren't really in pain, and are just happy to have an excuse.

The Department of Insurance in California prosecuted for fraud .05% (yes, that's 5/100s of 1%) of total claims filed. Was all fraud caught and investigated? Of course not, but there hasn't been a single study that's substantiated that fraud is a serious problem in the system. I saw a statement that Commissioner Garamendi figures it's no more than 5%, and that INCLUDES medical providers. It's an easy target - beat the "waste, fraud and abuse" drum. Everybody gets in an uproar. Innocent and injured people get hurt. The very thing that knocks most people out of the work force is pain, which can't be measured, but what a great gift to the insurance companies to tell them they don't have to cover it.

The view from here,

Calico

[metronycguy]

whats the max payment in california for comp?
in ny its 400 a week, not exactly a princely sum where the cost of living is quite outrageous.

[dejerine]

Calico, what a problem for your sister. The reason MRI correlates poorly is that MRI sees general damage and scarring but it cannot visualize the spinothalamic tract whose diameter is below the resolution power of MRI.

Perhaps the PET scan people will do dynamic pain testing and find some pattern which they feel indicates pain.

[dejerine]

Don't mean to monopolize this topic, but I do want to emphasize the unfairness of the no compensation for pain fallacy. By voiding claims for sensory loss, we pretend only the front of the cord matters. Since pain is defined as subjective, the matter is already settled.

[This message was edited by dejerine on 04-24-04 at 03:55 AM.]

[calico]

I just got a call from a guy who called me a week ago for a referral to a workers' comp attorney. He's been on workers' comp for 8 years, and was granted lifetime medical care by a judge. He goes to a physical therapist once or twice a year. His claims adjuster had told him they needed more info to approve him getting more therapy, and the adjuster said he'd call him back last Friday.

The workers' comp legislation was passed last Friday afternoon, and it limits physical therapy to 24 sessions. I don't know if this is retroactive, but when the guy called the adjuster today, the adjuster told him to get an attorney and hung up on him. You don't suppose the adjuster was dragging his feet, knowing that the legislation would be passed, and the insurance company would be off the hook? This crap is beyond the pale.

[Aquitaine]

Hi Metro,

Not sure what you mean by "comp per month", in california, worker's comp is paid for by the company, based on number of employees, etc.


Everybody,

Ok, I know I shouldn't do this, but I'm still confused about this thread, can anybody give me some help? Does California's Workers Comp. reform deny any claim assessment based on pain? Taking from what dejerine has just said, they (WC insurers) are now able to bypass the "experts"(docs) and deny claims if they think the patient is malingering, and their only assessment has symptomatic pain with no objective findings. Thanks.

[dejerine]

Aquitaine,

Just so you will know, I love your postings. Very insightful.

No law really functions as it is written. It is ALWAYS interpreted by courts to reflect "contemporary" values.Specific language voiding subjective symptoms is the death knell for pain. I find it odd that we are protecting some obscure animals, but are willing to further disadvantage the disadvantaged. Admittedly I am taking Yahoo's word for what the language of the bill is, but they said it voids claims for subjective symptoms. If THEY perceive the bill this way, then no doubt judges may also, no matter what it says.

What will save CP patients is the fact that most have some motor deficit which will offset their inability to prove a sensory deficit.

[This message was edited by dejerine on 04-24-04 at 03:47 AM.]

[metronycguy]

Originally posted by Aquitaine:

Hi Metro,
Not sure what you mean by "comp per month",
Everybody,
.
the amount that workers comp pays the injured employee? in nys the highest/max payment from workers comp is $400 a week, so even if you were making 100,000 a year, and were hurt on the job
the max workers comp is going to pay you in nys is $400 a week

[calico]

Aquitaine, I haven't heard back from my attorney contact about the pain exclusion. I know that Senator Poochigian's bill would have only recognized objective symptoms. He wanted it spelled out in black and white. That's what grabbed my attention in the first place. I don't see where this exact language made it into the final bill, which is what led me to post my April 20th post. To me, the crux of this question all comes down to the interpretation of the paragraph I cite in my April 20th post . . . EXCEPT for one thing . . .

The new bill definitely takes away the right for the opinion of the claimant's treating physician to carry more weight than IMEs. This may not seem like much, but it is significant. I know as one who as been to an IME.

So, let's say that a person has an injury like I cited with my sister-in-law, and that the treating physician believes, in his/her opinion, that based on her history and subjective complaints, she is disabled (this is my situation, also). And let's say that the IMEs (who have been picked by the insurance company and only seen the claimant once) say she has no objective symptoms, and therefore is not disabled. As a result of this bill, these conflicting opinions are now given equal weight. My guess is that the attorneys believe that in a workers' comp court, the fact that the claimant can't produce objective tests to verify their pain claim is going to trump their history, and the opinions of their own treating physicians. This may be why people are saying pain is going to be excluded.

On another note, Social Security rules say the opinion of the claimant's treating physician must be given more weight than IME opinions. Some federal courts had extended this right to people who are covered by disability plans under ERISA. The insurance companies didn't like this, and recently took it to the US Supreme Court. The court ruled in the insurance companies' favor. They said that the SSA rule automatically giving more weight to the treating physician's opinion did not extend to ERISA cases. I'm not sure what the impact of this is on disability claimants who aren't covered by ERISA (as in my case).

One more thing - there are states where it is specifically written into the law that objective symptoms are disallowed. Maybe the Repugs couldn't quite get there this time, but figured what they'd gotten would accomplish the same thing.

Another aside - A Canadian Supreme Court recently overturned a similar provision in its province's workers' comp law, and said no, pain can't be excluded simply because it is subjective.

Calico

[dejerine]

Calico, do you have the citation to the Canadian case, by any chance?

[This message was edited by dejerine on 04-24-04 at 03:43 AM.]

[dejerine]

Checking with Sen. Poochigians site, I found a major sponsor of the effort to be Sunview Vineyards. Signing on later were other labor intensive groups such as telemarketing companies, construction, fast food, etc. which hire lots of people. No surprise they want lower Workers' Comp fees. I suggested to Sen. Poochigian he include a specific exemption for Central Pain, but this is closing the barn door after the horse has run away. I think the real enemy of California business is high housing and land costs, not Worker's Comp. Poochigian was claiming Worker's Comp is driving business's away.

Yeah right. Hey Fred, we can move to California where all our employees have to pay a half million for a home, or we can go to Idaho, where homes are under one hundred thousand. We will also save 0.15 % on Worker's Comp in Idaho, so the Worker's Comp is the deciding factor since all our workers could afford a half million for a home but we don't want to pay an additional 0.15%. Workers Comp "reform" is actually aimed to help those already IN California. Bringing in new business has little to do with it. The housing costs will not be attacked. Instead, disability will be attacked. If California contineus to permit land speculation they will continue to have outrageous costs for doing business there. If they refuse to tax land for best use, instead of agricultural zoning for years, until developers are set to get very rich, then the consequences will happen.

[This message was edited by dejerine on 04-24-04 at 03:52 AM.]

[dejerine]

erroneous duplicate

[Aquitaine]

Originally posted by metronycguy:

the amount that workers comp pays the injured employee?

Okay, now I get what you were asking, sorry, thought you meant what do employers pay. As I understand from the "post ups" that companies have to put near where employees can read these things, they are to pay 2/3rds of the workers salary up to a specific amount level. I know that level has changed since I read this, but it was very low (i.e.- I wouldn't survive on it), around 25k per/yr I think. 2/3rds of that wouldn't pay my car bills http://sci.rutgers.edu/forum/images/smilies/wink.gif.

BTW: the reason I keep coming back on this, is that a couple of my friends freaked out when I mentioned this, as they know people who are on WC and basically are claiming based on their pain. So any and all info is appreciated, as always http://sci.rutgers.edu/forum/images/smilies/smile.gif. And thanks dejerine, I'll keep posting as long as everybody can stand me http://sci.rutgers.edu/forum/images/smilies/tongue.gif.

[calico]

Aquitaine, I have a friend in Florida who used to be a workers' comp attorney and he said they can't make it retroactive, but the attorney I heard speak said they didn't know if it would be retroactive or not. I'll be on the lookout for more info on this.

Calico

[calico]

Dejerine, here's a link re: the Canadian decision:

Supreme Court of Canada Workers' Comp Decision (http://www.sbhlawyers.com/repo/index.asp?action=edit&report_cat_id=25)

Calico

[dejerine]

I do not mean this post to be taken as a comment on other posts, but more abstract. I am not commenting on any viewpoint, since I think all of them have been very good and intelligent, but just wish to give a perspective. I have been very impressed with the intelligence displayed in posts here, including the very good comments on problem oriented medical evaluation. I just wish to expand the comcept a little and desanctify "objective" evaluation, with the idea that "beauty is in the eye of the beholder".

Have been thinking about S.O.A.P. This is the outline by which a medical history is taken. The idea was begun at Johns Hopkins. Sir William Osler emphasized the need to LISTEN to patients, saying "If you listen long enough, the patient will tell you what's wrong". One way to look at it is SOAP is a reminder to the doctor to listen to the patient first. To elminate the patient's history from the evaluation would not be reinforcing tradition, it would be gutting it.

Seen this way, subjective information is very important and always to be included, because it is essential to diagnosis. Second comes objective, but of course it doesn't mean accurate, it means what another can detect. It is interesting how expertise determines what can be detected. A pediatric cardiologist is ever so much better at hearing heart sounds than an ordinary doc or someone in another specialty. The patient's physician is more able to know the patient than a hostile IME examiner. The IME examiner ALWAYS testifies as a hostile witness. Do we really think fairness will come from someone who is hostile? Thus, what is objective depends on the examiners expertise. Objective does not mean what is evident to a layperson. A pain specialist can objectively notice qutie a bit. He may notice I am wearing abbreviated clothing where another doc may not be aware of the burning pain to light touch in CP.

Thus, objective has a very big variable--the experience of the examiner. We have Galileo's telescope and can see Saturn's rings, yet Galileo, a victim of closed minds, expelled from the Royal Society, a young astronomer who claimed to see Rings around Saturn.

SOAP is a way of reminding the doc to include everything relevant. It is just a suggestion, not a law. On close examination, the idea makes subjective information relevant, not irrelevant. Indeed, subjective information is essential to any medical evaluation. Since any information must be processed through an expert, we should be careful not to eliminate expert testimony on subjective information. I regard IME's as so loaded with bias, they are worthless or even unhelpful to the court. It is a terrible shame a patient's own physician is not given more weight than an insurer biased puppet, who sees the patient so briefly. I truly believe the IME system is unfair and wrong. An independent selector of IME examiners would be necessary to make the exam "Independent".

This is not to say that there are not arguments for expert testimony, but if we truncate that testimony to include only so-called objective evidence, obtained by an IME doc (we must blot out "independent" since these people are independant from the patient, but not from the insurer) the hope for fair evalution of the patient is lost.

Independence would mean the public selects and possibly pays for the evaluation, not the insurer. The insurer SELECTS the examiner and it takes little imagination to figure out what kind of person they would look for. It is preposterous to think insurers would look for a truly independent evaluator, just as they would not hire an independent attorney.

Objective evaluation means subjective evalution by an expert. Medical signs are not self evident. If they were, we would all be another Sir William Osler. Even he needed to listen to the patient.

[Aquitaine]

I agree with everything that you say, the SOAP system's relevency depends on the physician (who is) making the analysis. In my career I have been heavily into the SOAP method, using it to try and help provide the doctor with a systematic approach to their diagnosis, SOAP fits into an automated diagnosis analysis system very well. The systems I built also used SNOMED for codefication (I'm sure WC uses ICD9, and trys to "fit" this into their allowences). The focus of my system is on diagnosing the patient, far from WC's focus of classifying the patient's claim (or claimant). I brought up SOAP to try and show calico that I agreed and understood the situation where there is an assessment where there are symtoms (subjective pain) without any objective findings, based of the physicians diagnosis. But SOAP is just a suggestion, certainly not a law. And most likely rarely even used in the WC system right now. Just IMHO of course http://sci.rutgers.edu/forum/images/smilies/wink.gif.

I don't want to add another post to this as dejerine's next post says it all, dealing with WC must be an incredibly frustrating experience. And dejerine... I don't think any forgiveness is necessary, I am now having trouble thinking about that family, and your words were well moderated, I'm sure the words we would really like to use... now those might require foregiveness http://sci.rutgers.edu/forum/images/smilies/wink.gif.

[This message was edited by Aquitaine on 04-26-04 at 09:43 AM.]

[dejerine]

Aquitaine,

It is awesome you are doing diagnosis by computer. I knew one computer expert who was doing this and he put a red herring diagnosis in, as a common multiple choice option, of "musculoskeletal disproportion". In his dictionary, this was defined as "ugly". Computer programmers have a good sense of humor.

I hope you did not think I was diverging from your point of view, as I understood and appreciated what you were saying. It also caused me to rethink the whole matter in light of what you posted on the language of the Cal bill. This is not the first time I have had my two cents worth modified by a more informed perspective.

I am aware of a family whose father drove a truck which carried cyanide, without his knowing what he was carrying. The winds tipped over his truck and he got out and realized what was on the label. He immediately attempted to clean the powder up so no one would be hurt, and then went into a coma for two months. When he got out of the hospital, there were no "objective" signs to satisfy the IME,(there are none so blind as those who will not see) but he had lost him mental function and could not work and just lays around not really communicating with anybody. Able to use his limbs, but unable to concentrate and minus his personality. His wife was attempting to adjust to the idea of living on a Worker's Comp pittance, only to have WC entirely deny the claim on "Lack of Objective Evidence". May these people take two running jumps and go straight to Donald Trump's boardroom. I have trouble thinking about that family. Forgive me.

[Aquitaine]

Hi Dejerine,

I wasn't going to put in another post (see my notes in previous post), but I just HAD to ask.. what do think of my new avatar (what they call the image under my username)? Made it just for you http://sci.rutgers.edu/forum/images/smilies/biggrin.gif.

[calico]

I wrote the workers' comp attorney who spoke at our last meeting, about whether or not subjective symptoms (like chronic pain) were disallowed by the new legislation. As usual, the devil is in the details. This is what she had to say:

"This mandate is what is required in writing the new guidelines. The Administrative Director is to have them prepared by 1-05. No one knows exactly what will be produced. But it is my understanding that injuries producing strains, sprains, tendinitis, etc. will have no value when determining permanent disability.

All other injuries supposedly will be reduced 30-50% according to the AMA Guidelines. Only those suffering over 70% disability (as defined by the AMA Guidelines) will see an increase in benefits. (This contemplates a person who must sit most of the day with little requirement to stand or walk -- basically a parapalegic with objective findings).

I'm sure (hopefully) there will be alot of arguing about how these new guidelines affect permanent disability. But I suppose we will all have to wait until January, 05."

I've looked at the legislation again, and it's true that the administrative director of workers' comp is required to come up with "medical utilization treatment guidelines". Right now they are using the American College of Occupational Medicine" guidelines. It seems to me that these should just address treatment, and not whether or not an injury is bonafide. I've written the attorney back asking for clarification. If they exclude subjective symptoms, it seems to me they are overstepping their mandate, and it would be ripe for litigation (ala Canadian case).

It's also true, as I said earlier, that for purposes of determining percentage of permanent disability, the AMA Guides are suppose to be used. Pain is taken into account there, but there's not a lot of emphasis put on it in the absence of objective symptoms.

Calico

[dejerine]

I really like the new avatar, Aquitaine. You look pleasant, friendly, and unafraid. Sort of socially positive. By contrast, I have this urge to become invisible. I am proud of you for putting your visage forward, matches your projective, extrovert writing style. It is hard to hear of what you have faced, but neat to hear what you have done with life.

[Aquitaine]

Dejerine,

Figured it was time, I've gotten to know people here and I've grown very fond of them. As a rule when I start on a 'board I stay anonymous for about 6 months, just to see what its about, post my thoughts and see how they go down (see how much controversy I stir up http://sci.rutgers.edu/forum/images/smilies/wink.gif). Dr. Young, Dave, you and many others have a lot of heart, and it shows in this BB and the PainOnline sites. I think I'd like ta "shtick" around http://sci.rutgers.edu/forum/images/smilies/biggrin.gif.

John

[calico]

More info from our workers' comp speaker.

It's funny, I've looked at the AMA guidelines, and they include pain as medical evidence, but I guess the administrative director has been ordered to "cherry pick" which AMA criteria to use, and which not to use, as was predicted.

Workers' Comp attorney said:

"Permanent disability is determined by a guide promulagated by the administrative director. The labor code mandates that he/she (a woman, Andrea Hoach has just been appointed by Schwarzeneger) give guidelines for rating permanent disability. Thus, the rating schedule is not specifically in the labor code. However, under the new workers' comp reform, the Administrative Director is mandated to prepare a new rating schedule which would only take into consideration objective findings using the AMA guidelines, "where practicable". Again, this probably won't happen til Jan. 05. We're all waiting to see what she comes up with. Unfortunately, she was just appointed this week and apparently has no experience in comp."

[Aquitaine]

Calico,

Yeah, as she is being brought in by Conan (apparently has no experience in comp http://sci.rutgers.edu/forum/images/smilies/eek.gif), I would predict she's been told to gut the percentages allowed as permanent disability. Hmm.. was promulagated spelled wrong by the attorney http://sci.rutgers.edu/forum/images/smilies/smile.gif, only bureaucracies have to use words like that instead of just "officially announced" http://sci.rutgers.edu/forum/images/smilies/wink.gif.

[dejerine]

No one likes an alarmist so some will undoubtedly dislike this post, but I am doing my best to warn those who prefer inaction.

Arnold is in danger of being known as the "terminator", not of robots but of the disabled. How did we get here. It is always the same methodology. It has already been pointed out that Cal WC investigators find fraud in only 5/100ths of a percent of WC beneficiaries. The low benefits make this a stupid way to loaf. This tiny fraction is still enough for the business types to make the disabled a scapegoat. Since when have politicians blamed the real culprits, the politicians who failed to provide water to develop the dry land. The disabled will now become the lightning rod through which to discharge the concern over high land prices which are causing businesses to choose other locations. They could go to Fresno, but Fresno is not cool yet, and in California that is grounds to be expelled from the state.

"Arbeit macht frei" was the motto of the camp and is the motto of modern society. We must first get rid of the "useless" nonworking portion, the children, the old women, the disabled, etc. And above all we must have someone to blame for problems which others have created.

Simon Wiesenthal, an architect before the concentration camps, noted that Jews in Poland were building big homes right up until the day Hitler invaded, as if their property could protect them. They did not believe the warnings. We cannot appease the haters of disabled people. We must meet them head on or the hatred will spread to other states in a spiral of wickedness. We will save them from themselves by preventing their persecution of the downtrodden and ill. We will fight them wherever we find them, with ideas, the weapon of truth.

Wiesenthal said,
In the whole human history, whenever a crime was committed against an innocent people, there were always the same six components:
HATRED is the juice on which persecution survives.
DICTATORSHIP. Too much power in too few hands. There is a danger when destinies rest on the whims of a group or one person.
BUREAUCRACY. The ones who operated gas chambers were bureaucrats who became murderers
TECHNOLOGY. Technologies convey the possibility to implement dislike. Computers provide infinite ways to implement new strictures over human life.
A CRISIS. In a crisis, you need scapegoats and a diversion from your problems.
A MINORITY AS VICTIM. One needs a minority which those with power can hold responsible for a situation.

I am not calling anyone a Nazi, but I begin to grow frustrated with the willingness to destroy lives and to destroy hope. The person who really cannot work, who cannot reasonably be competitive in the marketplace, is NOT the problem in California. Let us not take from those who have the least, in order to make comfortable those who have the most.

[Aquitaine]

<sigh>Dejerine, gawd some of the stuff you write is incredible. Is there anyway you could send some of this for publication in an editorial column of a newspaper (pick one, any one). I know you want to remain anonymous, so would you allow anyone else you trust to submit it, and be a ghost writer, so to speak?

[calico]

Here's a draft of a resolution that's going to the Fresno County Board of Supervisors, speaking of looking after the disabled and infirm:

WHEREAS, for over a quarter century California has provided home care services to medically indigent residents through a unique, fiscally sound alternative to institutional care which serves nearly 360,000 aging, disabled and blind residents at one-fifth the cost of nursing homes, mitigating the public cost of long term care that will continue to increase
as our population ages unless we stabilize the cost with such fiscally sound alternatives which preserve families, build community and foster
independence and dignity;

AND WHEREAS, the passage of AB 1682 in 1999 authorized increased wages and health and dental benefits for IHSS workers to enable consumers to recruit, hire, and retain better qualified workers;

AND WHEREAS, Contrary to state claims, home care is being singled out in that:
1. No other social services program will be cut by one-third.
2. No other publicly funded employees have been asked to slash their wages to minimum wage, give up health and dental benefits, give up the right to join a union and collectively bargain, thus forcing their impaired IHSS consumers into nursing homes creating a situation the United States Supreme Court in Olmstead v. L.C. held to be "Unjustified isolation . . . [which] is
properly regarded as discrimination based on disability."

THEREFORE BE IT RESOLVED that the Fresno County Democratic Central Committee opposes the proposed IHSS cuts and calls upon the Fresno County Board of Supervisors to likewise go on record and oppose the proposed IHSS cuts.

[dejerine]

Dear Aquitaine,

If you will send an email address to David, I will have him send it to me and we can certainly arrange for something.

[dejerine]

erroneous duplicate

[This message was edited by dejerine on 04-30-04 at 11:32 AM.]

[dejerine]

Originally posted by dejerine:

A little relief from the seriousness.

They are going to add segments with disabled people encountering violent WC clerks to COPS.

Word is they are saying it should be like the Titanic. If there were enough for everybody there'd be no story. And as to our rank in society, well at least Kim Jong Il has a job.

With the money the WC gives you, you can afford a cramped, poorly ventilated sarcophagus with a subatomic particle's thickness worth of wall separating you from other WC recipients living in the same warehouse. NOt many can make it throug the three weeks it takes to fill out the WC forms, successful completion of which is used as evidence you aren't disabled. When you leave they give you a map with directions to the Tallahatchee bridge. One of the California questions is, "If you have a Chihuahua, why aren't you out running the Iditarod?"

Yes, in California, where nine to five is considered part time, the disabled are anathema. Rumor has it that the new WC head couldn't have a straighter face if you had Dr. Spock on a fentanyl drip.

Head Administrator Cruella de Ville is due to be replaced soon by Jack Kevorkian and the Menendez brothers.

If they want workers, make them promise to put them where they can do some good, at the DMV, where everyone looks like they are doing underwater Tai Chi. I told the secretary I was disabled and she said, "Yeah right, and Hilary Clinton is a New Yorker." Then the secretary turned and started to scream, "You can't fool me" while the EMT's had called a flatline on some guy who actually managed to haul a huge suitcase full of the required medical documentation up to the office (Another way they know you aren't sick)

They put their employees who don't speak English on the front line, where they can do the most "good". The form says you must return in one week to fill it out again. There is a noneck at the door who tells you, "You can get your drugs a heck of a lot cheaper if you move to Canada."

If they just put a tax on NBA salaries, or let us have a lottery every month, they would have plenty to take care of the disabled. Who needs money anyway, we can just sit around being grateful that the charismatic are here among us, taking all those victory laps in life's marathon.

Hey, Bill Gates didn't even write his own software and he spends all that time on Lanai, but he is worth 500 billion (Apparently a good haircut is worth 501 billion)

WC said I have too much car (a 73 AMC Gremlin) to receive any benefits.

They are complaining about costs but refuse to reveal the administrative overhead for aggressive denial of benefits. Reagan found two million dollars in Cal Medicare fraud, but it cost him 5 1/2 million for the taskforce to investigate (nothing like keeping costs down). I think we should raise the money by moving the California bureaucracy to Calcutta and hiring bright ten year olds for twenty cents a day to review the forms. That would leave money enough for us.

And maybe pain should get some of the science dollar. If you spend fifteen billion dollars on anything, there is bound to be some spinoff that other people can use. So why not spend the space program budget on pain and see if spaceflight just happens to spin off from the breakthroughs.

--parts taken from Dennis Miller, "I rant, therefore I am".

[Aquitaine]

If you will send an email address to David, I will have him send it to me and we can certainly arrange for something.

Hi Dejerine,

Please excuse my delay in responding, your response was a bit of a shock, I really did not/was not thinking of myself in that suggestion of a "trusted" ghost writer. However, after picking myself up off the floor and giving it some thought (I also tend not to want to put myself into the spotlight so-to-speak), I would be happy to help in anyway possible, my e-mail is in the "profile" section of my user id (click my avatar, click 'view public profile...', and you can reach me there). Now as you can probably imagine, that also is not my 'normal' e-mail address, but if you will send it there (make sure your id 'dejerine' is in the header so I know its yours), I'll send you back the same address David has. What else can I say...

Thanks,
John

[calico]

N.S. move to end chronic pain disrcrimination not good enough - workers

MURRAY BREWSTER

HALIFAX (CP) - Nova Scotia's Tory government announced Monday that it is rewriting workers compensation rules to recognize injured people with chronic pain, as it was ordered to do by the Supreme Court of Canada last fall.

But critics said the change only pays lip service to the high court decision and does not set up a fair system where people who suffer regular debilitating pain will actually see benefits. . . .

At the heart of the system will be an assessment process where doctors, contracted by the board, will examine individuals claiming chronic pain using a guideline that is drawn from the American Medical Association. . .

However, critics, such as Mary Lloyd of the Pictou County Injured Workers Association, pointed out the U.S. group does not specifically recognize chronic pain as a medical condition and the compensation board had to "modify" the guideline, which sets out a rating system. . .

Lloyd said the system already guarantees a bias against claimants and the guideline makes it virtually certain no one will be diagnosed with chronic pain . .

Link to Article (http://canadaeast.com/apps/pbcs.dll/article?AID=/20040503/CPA/14450020)

[calico]

Dejerine, here's some fresh meat for you to carve.

I've included a fairly long quote from a long article below to give you the flavor of what this article addresses, i.e. is chronic pain, and chronic back pain, a psychosocial problem, or a physical problem?

I didn't know we had so much to thank the IASP for (she says, her voice dripping with sarcasm). I guess they have trouble getting grants for pain research anyway, so it's easier to wave it away.

Calico

Pain & Prejudice (http://www.spiked-online.com/Printable/0000000CA50E.htm)

"At the same time, 'blueness' and 'pain' cannot be found inside neurons or pieces of brain.

These are mental states that can only be experienced by socially conscious beings, and there are disorders that seem especially resistant to any explanation based on a dedicated line system. The rapidly rising numbers of people with low back pain, for example, implies a sociological rather than biological cause.

The IASP produced a report in 1995 entitled 'Back Pain in the Workplace: Management of Disability in Non-Specific Conditions' (31), which acknowledged as much. The report recommended a major overhaul of the way back pain was treated by medicine and society. Instead of diagnosing people with back pain of uncertain origin as having nonspecific low back pain (NSLBP), the report called for a diagnosis of activity intolerance with deliberate rejection of the condition as a medical problem.

Consistent with this stance, the report also argued to end the provision of disability payments and to reclassify as unemployed those who fail to return to work within two to four weeks of a NSLBP or activity intolerance diagnosis. The report generated considerable controversy including a large and vocal debate at the 1996 IASP World Congress in Vancouver and several exchanges within the pages of the IASP journal, Pain, including more vociferous comments from Patrick Wall (32, 33).

The major conclusion of the report, that NSLBP should essentially be recategorised as a non-disorder, jarred heavily with psychologists and pain specialists who emphasised the importance of recognising pain as a disorder in its own right. A major principle of cognitive behavioural therapy (CBT) is to recognise the pain as the problem and subsequently alter the patient's perception so that he or she does not think in catastrophic terms, returns to normal behaviour as far as possible, and generally learns to accept and cope with the disorder.

This approach is certainly preferable to the use of aggressive surgeries, such as back fusions for NSLBP, which rarely result in a successful outcome and often leave the patient in more pain and distress than before. As noted, however, CBT in no way constitutes a cure for chronic pain of functional or nonspecific origin. It generally leads to quite modest improvements in pain experience and behaviour, and, perversely, may actually be adding to the problem.

* Is pain really the problem?

The IASP back pain report noted that complaints of back pain 'are not reliably indicative of injury' and went on to note that pain behaviours, 'including the verbal report of pain, should be seen as social communications and not merely as metrics of pain'. In other words, people might complain for lots of reasons and then adopt a role that produces the most 'fitting' outcome.

At a time in history when human beings are being increasingly treated as damaged goods and incapable of controlling their own lives, adoption of the sick role is likely to be perceived as 'fitting' to an increasingly large number of people (34). Under these circumstances, society can be said to be literally making people sick, aided and abetted by psychologists and pain specialists who indulge patients' somatic description of their angst."

[dejerine]

These deliberations about whether pain is a social behavior or a medical problem relate to the POWER certain segments of society possess. BIG corporations do NOT pay their income tax. They simply appeal every year to the Circuit Court of Appeals and rather than encounter legal fees the Government "settles" for cents on the dollar. This goes on year after year. YOU cannot do that, but you DO pay the taxes for this special court. I heard the judge's chambers cost four million, just like federal appeals courts judges.

When BIG governmental organizations, find their own swollen bureaucracy has grown so large it is unaffordable, rather than firing some of the employees, they begin to shrink the beneficiaries, rather than the work staff. This is a corollary to the Nobel Prize winning Parkinson's law, which is, "Work expands to fill the time allotted to it". C. Northcote Parkinson studied the British Navy after WWII. He found during wartime that ten people had done the purchasing for ten thousand ships. Years, later, there were something like ten thousand people doing purchasing for one hundred active ships. France's military purchasing is done by 32 engineers. American military purchasing is done by 250,000 people.

What this has to do with Worker's Comp is that the eagerness to deny benefits has resulted in a cadre of "police" who supposedly ferret out malingerers. To a boy with a hammer, everything looks like a nail. I was serious when I said review could be done in India for a small fraction of the cost.

Low back pain hurts us tremendously. It gives an impetus to give blanket treatment to ALL pain patients, and WE lose in the process. A little research should be able to identify pain patterns on PET scans.

If Ken Casey can publish that he has found placebo effect on pain on PET scans, then we certainly should be able to speak of the pain pattern he is claiming to have abated by placebo.

Yet, this important sorter work is not being done because there is no impetus. Worker's Comp has no interest in identifying pain, only in denying it. Worker's Comp benefits are shamefully low, and even more shamefully hard to get. Low back pain muddies the water for severe pain states and sometimes pain doctors who see the most of it get sick of it and start to view ALL pain patients as questionable.

However, given the pittance that passes for compensation, not many fakers think they can live on worker's comp. Eighty percent of the population will suffer from low back pain. I have heard a neurologist say this is because:
1) In antiquity everyone wanted to be like the King and have a throne. The wooden chair was invented when men weighed 85 pounds. Today the chair is anatomically unsuited to our backs, giving too much loading on the intervertebral disc. Little attention is given to the fact that doctors in places where people squat never see back pain. Americans cannot assume this position--such people turn their feet INWARD, which seems to require the posture from childhood in order to develop the required flexibility.
2) There is an appalling ignorance of the innervation of spinal segments, so proper evaluation methods have not been devised. I alluded to the fact that even today, no doctor can give a thorough explanation of the pain supply of a spinal level, eg C5. For example, Rothman's text, "The Spine" implies that ONLY Peter Bogduk of New Zealand knows anything about the recurrent pain nerve which is the MAIN supply of pain to the disc and post. long. ligament. The same is true of the facet joints, which seem to be a significant contributor to spinal pain, but studies are so weak and feeble as to be laughable in that area.

Rational science is needed, but political judgmentalness rules. Like all things, we must fund the scientific work and ignore social scientists who know nothing of pain science, and what they do know is wrong. I remember when all infertility was said to be due to "nerves" until scientists got busy and figured out what was really causing it.

It is appalling that we find intense studies on C fibers going on at NIH, while Worker's Comp does not even acknowledge the existence of C fibers.

The patent courts finally decided the public was too stupid to hear patent cases so they have given it entirely to judges (who supposedly know something about science). Medical matters are the same and only qualified experts (PhD's and M.D.'s) should try medical issues in court. That is just my opinion. Right now they are tried by minimum wage warm bodies at Worker's Comp.

Ask one about VR1, C fibers, neuropathic pain, neurotransmitters, etc. and they will have no clue. If they fired thousands of such people and gave Wise ten nurses to do his bidding, they would be way ahead.

[This message was edited by dejerine on 05-06-04 at 10:24 AM.]

[alan]

Corporations own the politicians in America.

Alan

"Was it over when the Germans bombed Pearl Harbor?"