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By Stephen Embry and Aida Carini, Embry and Neusner, Groton, Connecticut
Since the days of Plato and his “Republic”, Judges and lawyers have adopted, often unwittingly, the vision of the cave to analyze and promulgate rules to govern our conduct based on forms, which are at best the shadows of reality. We often call these “precedents” and assume that they are fixed statements of eternal truths and revealed law. In actuality, “precedents” are merely arguments that were once found to be persuasive, but may no longer be relevant. The forms of these ideas then merge to form a structure upon which we build a legal culture. The fine lattice of these forms is reflected in the semantics of legal terminology, which then often distracts us from the path of reality.
One of the greatest of these fake forms is the belief in “maximum medical improvement”, or the concept that injuries are time bound and finite. The corollary of this concept is the mistaken assumption that once improvement stops or reaches its “maximum” then the condition is stable and will not get worse and the impact of the injury is fixed and immutable. It is not clear how this formulation was developed since it strays so far from the clear language of the phrase, maximum medical improvement. The phrase itself incorporates the concept of medical failure, that is, the condition is beyond the healing powers of the medical profession and the patient will never be healed. There is nothing in the phrase to suggest that the condition will not get worse and that deterioration will not follow. In fact, it often does.
The issue was discussed by Anderson, et al in “Post-Traumatic Osteoarthritis: Improved Understanding and Opportunities for Early Intervention”, J. Ortho Res. 2011 June 803-809. They reported that more than 40% of people who suffer ligament or meniscus tears will develop osteoarthritis. Acute joint injury initiates a sequence of events that lead to progressive articular damage. Thus, it is increasingly clear that injuries initiate progressive tissue damage that will result in continued progressive pathology years after the patient reaches “maximum medical improvement”.
This direct progression model of “Continued Medical Deterioration”, in which the injury initiates and promotes is shadowed by the effect such injuries have in a more holistic creation of disease, disability and death.
Mr. X became a lead bonder in March of 1974, a job that exposed him to high lead levels. By 1976, he had developed severe lead poisoning with resultant hypertension, rendering him totally disabled. Over the next forty years he had numerous cardiac events and strokes, and developed renal injury. He died In July of 2013 as a result of consequences of lead exposure.
In 1993, Mr. Y injured his back resulting in total disability. At that time, he weighed 280 pounds. His back condition prevented him from engaging in routine physical activity and lead to depression, causing him to gain weight. By 1998, his back condition had progressed to the point that he was wheel chair bound, and he had difficulty transferring himself to a motorized wheel chair. By 2002, he had become bed-bound and he weighed 500 pounds. He developed sleep apnea due to this weight gain with resulting cardiac problems, which resulted in his death in 2002.
Mr. Z twisted his ankle on several occasions in the 1980’s and was treated with ice and rest. In 1999, he was suffering increasing instability in the ankle with laxity in the ligaments. He was also found to have chronic pain swelling and instability of the right knee following a work related injury. He underwent corrective surgery, but continued to have ligament instability in the ankle.
In 2000, he had arthritis and leg edema. By September of 2000, he had developed cellulitis in his leg with resultant sores. He had become totally disabled and his ability to walk was severely limited. Despite diet restriction, he gained weight and was suffering from leg edema due to vascular insufficiency. In 2007, he began treating for sleep apnea.
By 2012, he had developed post injury arthritis in the knee, chronic lymphedema and chronic venous insufficiency as a result of his leg injuries. He had also developed occupational lung disease. He died in 2015 as a result of his orthopedic injuries and resulting surgeries, weight gain flowing from his limitation caused by his work injures and resulting sleep apnea, cardiac insufficiency and occupational lung disease.
The effects of injuries are often measured by the size of the measuring stick rather than by the ticking of the clock. Doctors, lawyers and Judges, whose professional careers are limited, have a short event horizon, and even shorter measuring stick. We too often assume that things that do not kill quickly are harmless and that the effects of injuries cease after the acute phase of healing is over.
These failures often have a deleterious effect on the course of public health and our evaluation of the real costs of occupational injuries.
From little acorns, mighty oaks of disability do grow.
© Copyright 2017 Embry and Neusner. All rights reserved. Reprinted with permission. This article will appear in the October 2017 issue of Benefits Review Board Service – Longshore Reporter.