Posted on: October 5th, 2012
Wilg.org

Published in the Spring 2012 Issue of “Workers’ First Watch” magazine

The exact origins of the famous fictional character Humpty Dumpty are not precisely known. He was popularized in Lewis Carroll’s book, Alice Through the Looking Glass, where Humpty Dumpty is depicted as a round egg. Humpty is still best known from the nursery rhyme from our childhood:

Humpty Dumpty sat on a wall. Humpty Dumpty had a great fall. All the kings’ horses, and all the kings’ men, couldn’t put Humpty back together again

The nursery rhyme does not tell why Humpty fell, or whether he was in the scope and course of his employment at the time of his fall. Humpty does however ably serve as an archetype for many injured workers who do not fully recover after they receive the medical care the powers that be provide. The one disconnect between Humpty and modern-day injured workers is that in the rhyme we learn the King sent “all of his men.” It, therefore, seems that the King spared no expense, and left no stone unturned in his attempt to put Humpty “back together again”. If we sent Humpty through the looking glass toward our present-day workers’ compensation medical systems, what would he find?

The Humpty of modern day would find many employers and insurers pushing state legislatures, agencies, and most certainly the medical profession, to adopt something known as “evidence-based medicine” (EBM) or treatment guidelines. On its face, nobody should have trouble with the medical profession attempting to collate evidence that helps the doctor choose the medical treatment best suited to achieve the desired end. This begs the question, is the actual goal of EBM programs the same as Humpty’s beneficent King of yore to restore Humpty physically? Or is the goal to save money by ensuring that injured workers are released from care and returned to work as soon as possible?

The right place to begin answering this question is to refocus Carroll’s poem by firmly placing it within the context of EBM, to wit:

Humpty Dumpty picked up a stack,
Humpty Dumpty felt pain in his back,
The company’s doctor, using approved EBM,
Could not put Humpty Dumpty back together again.

Ideally, all parties want our medical system to: 1) restore Humpty to his pre-injury condition; and 2) restore him quickly and efficiently (i.e., cheaply). In many cases these goals are consistent and not mutually exclusive. Many injured workers get treatment, even have surgery, and return to work in a timely fashion. The difference between the two poems, however, reveals a very natural tension in the goals of all modern workers’ compensation healthcare systems. The tension stems from the situation where the employee does not recover and return to work at all or least not as quickly as expected. When this occurs, the concomitant goals of recovery and cost are put into the societal crucible that demands to know whether we want a system that leans toward the spare no expense category by sending ‘all the King’s men’ in the hopes of restoring health, or a system which makes efficiency and cost its chief focus?

What Are Humpty’s and His Employer’s REAL Goals?

The truth is that all businesses want to maximize profits. There is, of course, in itself nothing wrong with this goal. In maximizing profits we look at only two items – income and expenses (or outflow). Businesses, therefore, attempt to maximize income and limit expenses. Many employers consider their employees “human resources.” Resources are as valued as they are profitable. When a human resource is injured, they produce less income and become more expensive. In short, they hurt the bottom line and the company’s competitiveness.

For most modern-day injured workers, their goal is returning to work to earn a living for their families. We must, however, concede there are some injured workers who exaggerate their claims or try to milk the system to extend their time off of work, or to increase their compensation for disability. These do not constitute a significant percentage, but even a few such claimants complicate our systems.

The fact that the parties have divergent financial interests in these cases makes trust a commodity that is rare, to say the very least. This lack of trust leads to insurance companies hiring nurse case managers to limit medical care and push the doctor to return the worker to his job as quickly as possible. Injured workers obviously hire attorneys in the hopes of maximizing their compensation. In short, once an injury becomes serious enough that a full and quick recovery is not anticipated, there are many actors vying to obtain different results. If you are a doctor in this system you must feel like the rope in a legal tug-of-war. Doctors, of course, typically want to avoid conflict and just treat the patient. Unfortunately, the conflict cannot be avoided. As Lewis Carroll’s character Alice said in Alice in Wonderland:

But I don’t want to go among the mad people,’ said Alice. ‘Oh, you can’t help that’, said the cat, ‘we’re all mad here.’

The question is not whether the medical system in workers’ compensation is influenced by employers, unions, lawyers, and insurers. The question is whether EBM rescues doctors and the system from bias, pressure, and influence, or simply replaces it with a new set of rules that eliminate or significantly limit the doctor’s and patient’s roles in making proper healthcare choices?

What Is Evidence-Based Medicine?

Evidence-based medicine is actually an amorphous construct that is incapable of precise definition. The definition of EBM given by many of its proponents may not be in keeping with what it actually is in practice. As Humpty said to Alice in Alice in Wonderland:

‘When I use a word’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean – neither more nor less’

The definitions certainly vary depending on the author and the endgame that is afoot. A good working definition of what EBM can be if applied correctly is that used recently in The Journal of The American Medical Association (JAMA):

It involves combining the best research evidence with the patient’s values to make decisions about medical care…Evidence-based medicine does not replace physicians’ judgment based on clinical experience… Any recommendations taken from evidence-based medicine must be applied by a physician to the unique situation of an individual patient.

Is this in fact how evidence-based medicine is being utilized in the workers’ compensation systems of most states? Let us take a trip down the rabbit hole to our modern day workers’ compensation wonderland and discover for ourselves if EBM is being used or proposed in a manner consistent with the above definition.

There are two basic approaches to incorporating EBM into workers’ compensation systems – formal and informal. Formal incorporation requires legislative or administrative action to formally adopt a set of prescribed treatment guidelines. The first and most well-known formal state system was enacted by Colorado in 1991. These Guidelines were developed by Dr. Kathryn Mueller, MD, MPH, Medical Director of the Colorado Division of Workers’ Compensation. Many states have followed suit developing their own guidelines that are specifically designed for their systems.

The other formal approach to the adoption of EBM is to incorporate systems, or portions of systems, developed by private corporations for use in a given state. The two systems that are most commonly in use are known as the Official Disability Guidelines (ODG) and guidelines prepared by the American College of Occupational and Environmental Medicine (“ACOEM”). While both of these Guidelines relied heavily on the work begun by Dr. Mueller in Colorado, they each have developed their own protocols and recommendations over the years. Some states, such as Louisiana, have utilized a hybrid approach and adopted ODG Guidelines with significant modifications specific to their jurisdiction. See (La. Stat. Ann. §23:1203.1(2011).

Many states have adopted no formal treatment guidelines concerning treatment or return to work issues. Treatment Guidelines are still used informally by nurse case managers, adjusters, or other company officials, in influencing the care provided by the physician. So, even in states with no formal requirement to follow a pre-determined plan of treatment, these commercially available guides will be cited to the injured workers’ treating doctors in the hopes of influencing them.

In those systems which adopt formal guidelines, Humpty’s doctor will no longer be able to call “all the kings men” to restore Humpty to his prior condition. Only preordained medical treatment will be authorized, with limited exceptions. In Michigan, for example, one legislative proposal strictly limits care to established Guides unless clear and convincing evidence establishes that departure from the guidelines is:

Consistent with other nationally recognized evidence-based treatment guidelines.

Mich. Comp. Laws §408.60(2012).

This legislation, therefore, ties the hands of doctors trying to deviate from the official legislated treatment unless other national guidelines provide a different treatment protocol. The main national guidelines are, of course, promulgated by organizations largely financed and populated by corporate medical directors and physicians selected by people other than injured workers or their representatives. The effect of such legislation is not, then, to provide “guidelines”, but rather predetermined and conclusive rules of what care can be provided.

JAMA’s definition set out above indicates that EBM combines the best research and the “patient’s values” in making decisions about medical care. How exactly are the patient’s values incorporated into this decision-making process when treatment decisions are mandated by the legislature? JAMA’s definition also argues that EBM does not replace physicians’ judgment based on clinical experience, and provides that ‘recommendations’ from guidelines must be applied in light of the unique situation of an individual patient. Clearly, in many states, this simply is not the goal of EBM proponents. This should be contrasted with the informal use of treatment guides that suggest the best care based on studies and statistical analysis. This at least still allows the doctor to apply the guides in light of “[t]he unique situation” of the injured worker.

The goal of legislatively fixed, one-size-fits-all treatment guidelines is that once a physician makes a diagnosis, the treatment is dictated based on statistical information compiled by either state officials or privately published treatment guidelines. In some systems, particularly the ODG, it is not only treatment that is established by rule, but the appropriate amount of time an injured worker is allowed to be off work or on limited duty. Certainly one can appreciate medicine must have a scientific basis. However, practicing medicine is also an art that requires more than simply opening a statistical manual, or the latest edict from the state legislature, to determine the proper care for an individual patient. Statistics and science certainly have their place, but as Mark Twain famously said, “There are three kinds of lies: lies, damned lies, and statistics.” This might be especially true when the statistics are compiled in an adversarial system where only some of the stakeholders were included in that analysis.

Nobody should object to doctors being provided with information about studies and statistical outcomes of a given course of treatment. However, any system that dictates treatment options seems to be based on the assumption that 1) doctors will not provide reasonable cost-effective care; and 2) that injured workers want unnecessary treatment and don’t want to return to work. These problems exist to be certain, but should not be assumed to be widespread. The solution to these problems should be to create a system that identifies the problem doctors and workers rather than treating all with one broad brush. A reasonable system would follow JAMA’s definition and have statistical information on best practices applied by a physician to the “unique situation of an individual patient.” In other words, formal declarations of the definitive types and amount of treatment do not take into account the injured worker as a unique patient and human being. As Humpty said in Alice in Wonderland:

Who in the world am I?…Ah, that is the great puzzle

The problem, of course, is that insurers do not really try to solve the puzzle of who Humpty is as a worker and as a patient. Indeed, in relying solely or almost exclusively on EBM they tacitly acknowledge that they prefer to manage medical care from a generic actuarial standpoint. Obviously, one can concede such an approach is more efficient while still questioning whether it is the most efficacious. To handle claims based on all of the actual facts in each case is seen as time-consuming and expensive. As the King said to Humpty Dumpty in Alice in Wonderland:

‘Begin at the very beginning,’ the King said gravely, ‘and go on till you come to the end; then stop’

A complete picture need not be that overwhelming, of course. The point is to try to identify doctors who run up costs with limited results and injured workers who are milking the system. A reasonable starting point is for insurers to find out about the individual doctor and injured worker involved. In states with employer choice of doctor, carriers should simply hire competent doctors. In states with employee choice of doctor, the insurer must have a mechanism to educate the doctor – and treatment guides may help in this regard. They must, however, only be guides and applied with full knowledge of the injured worker and his injuries. The injured workers’ credibility is important in making treatment decisions. However, it should not be assumed they are not being truthful, particularly if the injured worker is a 25-year employee with a great service record and no prior injuries. There are no shortcuts to a knowing the patient and all of the surrounding facts.

The days of the King sending all of his men, and sparing no expense to restore Humpty Dumpty, may only be contained in the dusty pages of old nursery rhymes. But treatment and disability guides can be limited and used in a way that properly considers all stakeholders interests. We should not be afraid of having doctors use all tools, including statistics, to determine the best and most cost-effective course of treatment. But we cannot allow the practice of medicine to be dictated by politicians or bureaucrats who represent only one side in our adversarial system.

Workers’ compensation is a societal compromise and contract. It is not just about who gets what; it is about who we are. We must also recognize that we live in a world with limited resources that must be intelligently and cost-effectively allocated. As the King’s horses and men rushed to help restore Humpty Dumpty, we men and women of the bar need to rush to restore (or protect) our workers’ compensation systems so they can fulfill the promises made to both employers and injured workers. Let us hope that our efforts are more successful.