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 . 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