Trial Lawyer Resource Center

When settling a case (mainly workers comp) with a MSAT' (Medicare Set Aside Trust), a number of allocators are calculating costs of prescription for a period of five years only, rather than lifetime. CMS will not approve the allocation if the prescriptions are going to be for a longer period of time.  Here's an example:

• Plaintiff lifecare plan shows about $200,000 in prescription medication
• Defense lifecare plan shows about $120,00 in prescription medication
• the MSA shows $22,000 in prescriptions (based on the first five years only)

CMS will not approve the prescription medications and the client will get caught in the middle. So carefully review the period of time that prescriptions are calculated for in MSA's and request a revision.

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Hidden brain injuries are one of the most difficult medical cases to put together.  The medical findings are subtle, the clues nebulous, but the results are dramatic. If you have a case where the injury or event COULD have produced a head trauma or a brain injury, and a medical history suggesting that your client is experiencing difficulties, look closer at the possibility of a hidden brain injury.  Impact to the case and for the client is significant.  There are a lot of checklists, but here is one that can be helpful:

 

Yes_____    No_____    Reduced attention and concentration
Yes_____    No_____    Memory problems
Yes_____    No_____    Decreased frustration tolerance
Yes_____    No_____    Easily angered
Yes_____    No_____    Anxiety
Yes_____    No_____    Overreaction to events
Yes_____    No_____    Depression
Yes_____    No_____    Decreased emotional responsiveness
Yes_____    No_____    Reduced reasoning and problem solving
Yes_____    No_____    Difficulty following directions
Yes_____    No_____    Misunderstanding what is said by others
Yes_____    No_____    Impulsive or inappropriate social behavior
Yes_____    No_____    Reduced judgement
Yes_____    No_____    Decreased insight into self and others
Yes_____    No_____    Difficulty establishing and maintaining relationships
Yes_____    No_____    Difficulty on the job or at home               
Yes_____    No_____    Headaches
Yes_____    No_____    Nausea
Yes_____    No_____    Dizziness/balance problems
Yes_____    No_____    Muscle weakness
Yes_____    No_____    Numbness and tingling
Yes_____    No_____    Fatigue or difficulty sleeping
Yes_____    No_____    Blurred vision
Yes_____    No_____    Ringing in ears

 

If your client is experiencing a number of these problems, or family members suggest there are problems, a complete evaluation by a team of experts is warranted.  I typically set up IMEs with neuropsychology, neurology, ENT, Occupational Medicine, and Vocational Psychology–and share reports from each with all the others.  ENT typically performs  ENG and  ABR testing to determine if problems are coming from a central (brain injury) cause.  Neuropsychology performs a wide battery of testing to determine cognitive function and loss.  Be sure you ask for a GAF score (see previous blog posts about this).  Neurology helps document status and future treatment.  Occupational Health gives a global overview, provides restrictions based on physical and emotional factors, and discusses ability to perform essential functions of work. Finally, the Vocational Psychologist and/or Evaluator provides opinion on ability to return to work, transfer into new work, or remains unable to be employed.

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Settlement demands and final settlements hinge on medical costs:  past, present, and future.  This is not always easy to figure out.  Medicaid Liens have to be repaid.

 

Other settlement considerations include Annuities, special needs trust funds, rated age, Medicare Conditional payments have to be repaid.  The Client typically has out-of-pocket expenses that need to be reimbursed.  Private health insurance carriers post liens against settlements early in the game. And now the Federal Government says future costs covered by Medicare have to be reasonably considered, and set aside in a special account, as well. Beginning in 2006, prescription medications are also included, which has greatly complicated this process.  Has anyone tried to figure out the “donut hole” yet?

As a Medical Case Developer for Worker’s Compensation cases, I am often involved in the money aspects of a case.   I first determine if the client is eligible for Medicare considerations.  Has he/she applied for Social Security benefits?  Is he/she already receiving SSDI/Medicare benefits due to disability or age?  Is the settlement over $250,000?  Actually these questions should be asked at the beginning, in the middle, and at the end of each and every case you have.  There should be no surprises when settlement day comes.

 

Then I prepare a Disability Cost Projection, which can be described as a mini-life care plan.  This calculation considers only the current treatment, including physician visits, diagnostics typical for injury diagnoses, medications, and probable surgeries coming up.  Yearly costs are multiplied over the normal life expectancy.  The total cost can be quite surprising.  Even if the client is only on a couple of prescription medications, they add up significantly.  For an exercise in this, find www.drugstore.com and type in Celebrex, which is a common medication prescribed for orthopedic injuries.  Taken 4 times a day, the cost quickly adds up to over $500 per month, which is $6000 yearly, and $180,000 over a 30 year life expectancy.

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You order medical records, you talk with doctors, they tell you stuff, but ever wonder what it means?  Recently I had to look up some “signs” to understand exactly what the doctor meant.  This might make a good reference as you read the medical reports:

 

    *    cogwheel phenomenon: jerky motions produced on testing a
         muscle’s strength, the jerks are neither rhythmic nor equal and
         represent malingering or protection from pain
    *    SLR: straight leg raising or Lasegue, for determining nerve root
          irritation, while lying down, the patient elevates his leg straight until there is back pain, or until
          the pain is increased with flexion of the foot
    *    valsalva maneuver: for determining nerve root irritability within the spinal canal, patient takes a           deep breath and then on bearing down (such as a lifting task) notes if pain occurs or is      
          increased
    *    long tact sign: any sign that one would see in affection of either sensory or motor tracts in the               spinal cord
    *    romberg test: for differentiation between peripheral and cerebellar ataxia (useful in
         determining central brain cause)

                                   
For more terms like this see www.orthoteer.co.uk/Nrujp .  Now on to malingering tests: You are talking with the doctor, and he says “well, he does have positive Waddel’s signs” so I can’t really support a back injury”.  You nod in agreement, but inside are wondering “what is he saying?”  So here goes:

 

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The title of Medical Case Developer is a new one for me.  I have been a Nurse, a Nurse Case Manager, a Nurse Life Care Planner, and a Nurse Disability Management Specialist for over 30 years but have only recently put together all this experience and skill into helping attorneys truly develop their cases. Being a Case Developer is different than managing a case, or planning for future treatment with costs, or getting the client to MMI.  Developing a case is actually working with the attorney in moving the case from a value of $100,000 to a value of $250,000 or $400,000 (remember SC Worker’s Compensation benefits are extremely limited!) or in the millions for personal injury cases.  And of course, while developing the monetary value of the case, I am also (first and foremost) interested in assuring that the client receives the very best medical care for every condition caused by the injury.

 

When Attorneys ask me to work on a case with them, it is usually because the case is a very involved and challenging file with lots of medical complications and conditions: such as a back injury with a transverse myelitis which led to a paralysis which led to a stroke, etc.  These are usually fairly easy to figure out and link up, takes a lot of work, but medically and scientifically doable.  The ones that pose the most challenge are the ones with hidden causes, or obscure reasons, or those that just don’t make “common sense”.  Like the one we did recently that was a chemical exposure that led to an auto-immune disorder that led to cardiac failure that led to a stroke that ended up a brain injury. Or the back injury (admitted and accepted) that developed into an aggravated Hepatitis C case that resulted in cognitive disorder (not admitted or accepted) which we put together and prevailed for lifelong benefits and medical treatment.

 

Every case has the potential for more value, even a simple orthopedic case. My goal in developing cases is to look for more diagnoses, more restrictions, more impairment, and to move the case through temporary partial disability to temporary total disability to permanent total disability to lifelong benefits for the Worker’s Compensation cases.  In Personal Injury cases the goal is to not only set up for causation but to quantify damages. But how do I develop a case?

 

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As a medical-legal case developer, I often have cases where “emotional overlay” is an issue.  Insurance Carriers love to see this phrase so they have another basis for denial of the claim.  However, when chronic pain is an issue there is bound to be “emotional overlay”; when there is financial difficulties (no work, no money), there is bound to be “emotional overlay”; even when there is pre-existing depression, there is bound to be “emotional overlay” caused by the injury.  Many of my clients are unable to work or resume normal social activities due to this “emotional overlay”. So, how to we get this condition diagnosed, quantified, and linked to the work related injury and/or treatment?

 

Physicians recognize depression in their patients and sometimes will refer to psychology for work-up–they can diagnose for me.  Psychologists and psychiatrists can assign a Global Assessment of Functioning (GAF) score under the DSM-IV, Axis V diagnoses table.  The GAF score describes a person’s ability to function based on behavioral characteristics.  A score of 81-90 describes most of us on a fairly consistent basis: Absent of minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns.  A GAF score of 51-60 describes many of our clients who have suffered loss of job, loss of financial security, loss of self-esteem, has chronic pain, and in serious interpersonal difficulties: Moderate symptoms OR moderate difficulty in social, occupational, or school functioning. Psychologists tell me that a GAF score in this range or below indicates severe inability to maintain a job–so they can quantify for me. Look at www.bsu.edu/csh/ssrc/media/pdf/gafpage.pdf for more information.

 

In order to get this problem linked to the injury, I need a Global Assessment of Functioning evaluation from a qualified Vocational Psychologist who will issue a report containing an opinion, to a reasonable degree of psychological certainty, that the injury and its sequelae have caused, contributed, or aggravated an emotional/behavioral impairment resulting in disability. Using a combination of AMA guides, this disability can be assigned an impairment rating as well.

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