Prognosing the Musculoskeletal Patient
IMPAIRMENT
A Medical, Legal & Insurance Perspective
Mark Studin
DC, FASBE(C), DAAPM, DAAMLP &
James Mathis
PROGNOSIS, ACCORDING TO MERRIMAN-WEBSTER DICTIONARY (2014), IS: “A DOCTOR’S OPINION ABOUT HOW SOMEONE WILL RECOVER FROM AN ILLNESS OR INJURY...A JUDGMENT ABOUT WHAT IS GOING TO HAPPEN IN THE FUTURE... THE PROSPECT OF RECOVERY AS ANTICIPATED FROM THE USUAL COURSE OF DISEASE OR PECULIARITIES OF THE CASE” (HTTP://WWW.MERRIAMWEBSTER.COM/DICTIONARY/PROGNOSIS). PROGNOSING IN MEDICINE IS IMPORTANT AS IT GIVES THE DOCTOR AND PATIENT A “ROAD MAP” OF WHAT TO EXPECT ON THE ROAD TO EITHER RECOVERY OR PERMANENCY OF AN ILLNESS OR INJURY.
A perfect example of prognosing in medicine, and one that has been studied perhaps the most, is cancer. The Australia Government released the following in March 2014:
The term ‘stage of cancer’ means the stage the cancer was at when it was first diagnosed. Being sure about the stage is very important because it is a critical factor in deciding the best way to treat the cancer.
“Doctors use a range of ways of describing these stages. Usually, stage 0 is in situ cancer; stage 1 is localized cancer, although further local spread may take it to stage 2; stage 2 also usually includes spread to the nearest lymph nodes; stage 3 usually indicates more extensive lymph node involvement and stage 4 always indicates distant spread.
“The term ‘stage of cancer’ means the stage the cancer was at when it was first diagnosed. Being sure about the stage is very important because it is a critical factor in deciding the best way to treat the cancer.
“Stage is also very important to prognosis—prediction of the cancer’s effect on the person who has it. On average, the higher the stage, the worse the cancer’s effect on the person who has it. The hope of cancer treatment is that it will improve the prognosis, both in prediction and in reality.” (Armstrong, 2014, http:// www.cancerinstitute.org.au/ patient-support/what-i-need-toknow/about-cancer/what-are-the-different-stages-of-cancer).
Oncologists, along with other specialists in medicine, have long studied prognoses in terminal diseases. They help to determine morbidity and mortality statistics in order to help determine the efficacy of care along with offering victims and families realistic hope of survival. However, in spinal musculoskeletal rehabilitation/care of connective tissue/soft tissue injuries, there has been little reported in the scientific community to help render guidance.
It was reported by Dunn and Croft (2005) that with regard to low back pain “there has been little specific investigation of the link between duration and outcome [prognosis]” (p. 126). After an extensive literature search, this void still exists today. In putting together a concise list of prognostic grades for spinal, musculoskeletal related conditions that aie treated manually, Palmer Chiropractic College Prognosis Guidelines for Faculty, Clinicians and Interns offers a cogent and comprehensive explanation:
Generally there are six descriptors used in determining a patient’s prognosis in regards to musculoskeletal conditions. 1. Excellent 2. Good 3. Fair 4. Poor 5. Guarded
6. Unstable ...
Excellent: Typically an “excellent” prognosis suggests an expectation for total symptomatic and functional improvement and a complete return to pre-condition status...
Good: A “good” prognosis suggests symptomatic and functional improvements are expected, even though the etiology of the presentation or the presence of co-morbid conditions or complicating factors is expected to prolong a complete recovery...
Fair: A “fair” prognosis suggests that symptomatic and functional improvements are expected but full resolution of the clinical presentation is in question...
Poor: A “poor” prognosis not only suggests that the presenting condition is unlikely to fully resolve with any type of care, but also that the condition has the potential to worsen even with care...
Guarded: A “guarded” prognosis suggests the patient’s condition has the potential to deteriorate to a point that could require urgent medical intervention...
Unstable: The “unstable” prognosis is typically reserved for those patients whose condition is unresponsive and, in fact, declines after a trial of care... (http://w3.palmer.edu/maniott/ Docs/ PROGNOSIS%20guidelines%20v5%20(4).pdf)
The courts in every state handle prognosis differently and utilize that definition to determine if a person was injured and what the long-term consequence of that injury will likely be. Therefore, in a court of law, the doctor’s opinion on the long-tenn prognosis becomes paramount to the court’s in the ultimate disposition of the case. This is, historically, where the plaintiff and defense communities differ because with either a non-existent or weak vs. a definitive prognosis there is always the arbiter in verdict or settlement.
Many states use the term “serious injury” to determine if there is legal standing and with it aie inherent prognostic issues. New York has one of the clearest definitions. New York’s Insurance Law Section 5102(d), ‘“Serious injury’ means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (FindLaw, 2014, http:// codes.lp.findlaw.com/nycode/ISC/51/5102).
Although much of the law offers clear prognostic status such as death, loss of fetus and loss of work for a specific time, the law makes a provision that is purely based on a diagnostic and prognostic conclusion of the treating doctor or expert when it states, “permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member” (FindLaw, 2014, http://codes.lp.findlaw.com/ nycode/ISC/51/5102).
Other states value pain and suffering, such as with California, as reported by Lee (n.d.), “Special damages means out-of-pocket damages that can be documented, such as medical and related expenses, property damage (e.g., damage to a vehicle in an auto accident) loss of earnings, and loss of future earning capacity. Beemanv.Burling(1990)216Cal.App.3d 1586, 1599. If the injured victim has suffered a long-term, debilitating injury, special damages may also include such expenses as costs of nursing care, physical rehabilitation and vocational rehabilitation. It may be necessary to document future out-of-pocket losses with the assistance of experts” (http://www.awo.com/legal-guides/ugc/ damages-in-californai-personal-injury-actions).
Again, in the end, it comes down to the assistance of an expert doctor who opines as to the long-term prognosis of the patient and his/her future care needs. The insurance carriers have a different perspective on prognosing. It is another input required by the claim representative to input.
The following are the different prognosis indicators allowed by the Colossus equation:
Disclaimer: Colossus is a registered trademark of Computer Science Corporation and is used here for purpose of identification, description of comment. It is also used as the generic name for the myriad of programs used by various carriers.
A — Undetermined
B — No treatment recommended / no complaints
C — Complaints / no treatment recommended
D — Complaints / treatment recommended
E — Guarded
It should be stated that the use of the word treatment in the above listing is defined in the insurance industry as both “active” and “passive” treatment. The insurance industry has defined “active” treatment as treatment which is performed for the patient by the patient. Due to the fact that the treatment is being performed by the patient, the patient is considered to be participating in his/her own recovery. “Passive” treatment is defined by the insurance industry as treatment which is performed by someone other than the patient and is associated with a cost.
In healthcare, active and passive care is treated no differently than with insurance carriers. Johns Hopkins Health Alert (2009) reported, “Passive physical therapy is called passive because the modalities are done to you, whereas with active physical therapy you take an active role in the modalities” (http://www. johnshopkinshealthalerts.com/ alerts/back_pain_osteoporosis/ JohnsHopkinsBackPainOsteoporosisHealthAlert_3080-1 .html). Therefore, the care of the patient is reported consistently in medical, legal and insurance forums as the courts will follow the documentation in the doctor’s notes and the scientific literature.
A common misconception by a large number of treating physicians is that although the patient may be communicating ongoing complaints, intermittent pain or headaches, the physician, in recommending the patient continue with exercises only, representing “active” treatment, does not meet the level of prognosis D because the treatment is not being rendered by a treating physician and being charged for. Therefore, a discharge prognosis statement stating that the patient is experiencing intermittent stiffness and pain and as such, is being recommended to respond with self-exercise, is often labeled as C by the provider instead of D. The only indicators of prognosis accepted by the insurance industry for chiropractic treatment aie A, B and C. Each of the indicators has an increasing weight on value, A being the least and E being the greatest. It is allowable to use the D indicator if documented or validated by a medical doctor. Although this apparently reported prejudice is still vogue today, collaborative care, when clinically indicated, is the resolution to this problem.
In this scenario, an insurer could exclude most chiropractic prognosis in valuing their cases, which has no basis in ability, credentials or experience of the chiropractor. It is purely a financial decision to limit payments. In addition, when reporting the prognoses of patients, the carriers assign values only to static maximum medical improvement, indicating that the problem is permanent and no further care is considered. This also is considered on an injury-by-injury basis, meaning if there aie multiple body parts injured, each body part must have its own prognosis.
Another negative byproduct of the use of the B prognosis, no treatment recommended/ no complaints, is that a portion of the treatment received by the patient may be considered unnecessary and unreasonable in duration. It has been commonly argued by the insurance industry that if the final prognosis is B, why wasn’t the patient released from passive care and weaned into “active” care, thereby mitigating the medical damages? This is argued by the insurance industry as acceptable, reasonable medical practice and therefore, a portion of the medical treatment costs aie not owed.
It should also be mentioned that without D, complaints/treatment recommended prognosis, the insurance industry software will not allow an impairment to be entered. This has a horrific affect on the claim as the computer screens in the insurance software won’t open and therefore, the “duties under duress” and “loss of enjoyment” factors are not included in the evaluation of the claim. These factors aie also significant to supporting the duration, type and frequency of treatment being allowed by the insurance industry. These factors are:
LOSS OF ENJOYMENT
Work
1. Loss of status within the organization
2. Loss of job security
3. Loss of promotional prospects
4. Difficulty in performing duties
5. Reduced quality of work
6. Other
School
1. Loss of attending class
2. Loss of attending functions
3. Loss of gym class
4. Loss of studying
5. Other
Domestic
1. Loss of interior cleaning
2. Loss of interior maintaining
3. Loss of interior preparing meals
4. Loss of attending to spouse
5. Loss of attending to children
6. Loss of interior decorating
7. Loss of entertaining
8. Loss of pet care
9. Other
Household
1. Loss of exterior cleaning
2. Loss of exterior landscaping
3. Loss of exterior maintenance
4. Loss of exterior decorating
5. Loss of pet care
6. Other
Hobbies
Sports
Pre-incident level:
1. Played socially
2. Played competitive
3. Played regionally
Current level:
_, cannot play regionally
1. Cannot play competitive,
2. Cannot play social,
3. Cannot play original sport
4. Cannot play any sport
These loss of life enjoyment factors (choose)
— aie ongoing
— have been experienced since inci dent
— were experienced for weeks
— were experienced for months
DUTIES UNDER DURESS:
Work
Study
Domestic
Household
Due to:
1. Difficulty with stability/mobility
2. Difficulty with postural difficulties
3. Difficulty with dexterity
4. Fatigue
5. Anxiety/depression
6. Reduced concentration
7. Pain (must interfere with work or studying capacity)
These duties under duress factors (choose)
— aie ongoing
— have been experienced since the incident
— were experienced for weeks
— were experienced for months
This is one area of healthcare where academia and the law are consistent, yet the carriers are the outliers in algorithms of determining accurate prognosis for the injured. However, clinically, there is rarely a patient with serious injury where collaborative care is not both indicated and realized and in the end, will allow every prognosis to be accepted.
References:
1. Prognosis. (2014). In Merriman-Webster online. Retrieved from http:/ www.merriam-webster.com/dictionary/prognosis
2. Armstrong, B. (2014). What are the different stages of cancer. Cancer Institute NSW. Retrieved from http://www. cancerinstitute.org. au/patient-support/what-i-need-toknow/about-cancer/what-are-the-different-stages-of-cancer
3. Dunn, K. M., & Croft, P. R. (2006). The importance of symptom duration in determining prognosis. Pain, 121(1-2), 126-132
4. Palmer, College of Chiropractic, (n.d.).Palmer chiropractic college prognosis guidelines for faculty, clinicians and interns. Retrieved from http://w3.palmer.edu/marriott/Docs/ PROGNOSIS%2 0guide lines %2 0v5 %2 0(4) .pdf
5. FindLaw. (2014). N. Y. ISC. Law §5102: NY Code — Section 5102: Definitions. Retrieved from http://codes.lpfindlaw. com hycode/ISC/51/5102
6. Lee, P. Y. (n.d.). Damages in California personal injury actions. Avvo. Retrieved from http://www.avvo.com/legalguides/ugc damages-in-californai-personal-injury-actions
7. Johns Hopkins Health Alert. (2009). What is passive physical therapy? Retrievedfrom http://www.johnshopkinshealthalerts. com alerts/backjoain osteoporosis/ JohnsHopkinsBackPainOsteoporosisHealthAlert 3080-1.html
Dr. Mark Studin is an Adjunct Associate Professor of Chiropractic, University Of Bridgeport College Of Chiropractic and a clinical presenter for the State of New York at Buffalo, School of Medicine and Biomedical Sciences for postdoctoral education, teaching MRI spine interpretation and triaging trauma cases. He is also the president of the Academy of Chiropractic teaching doctors of chiropractic how to interface with the legal community (www.DoctorsPIProgram.com). He can be reached at [email protected] or at 631-786-4253.
Mr. James Mathis is owner and President of Mathis Insurance Consulting, Inc., National Claims Services, Inc. and Sequoia Visions, Inc., manufacturer of software for the legal and medical communities. He is nationally recognized as a testifying expert and consultant on Insurance Industry claim handling issues and software. Mr. Mathis is an internationally sought speaker for Trial Lawyers Associations and Medical Associations. He has been retained as an expert and consultant throughout the country to review the ongoing uniform claim handling practices and procedures of State Farm, Allstate and other insurers.
