Today’s post comes from guest author Roger Moore, from Rehm, Bennett & Moore.
This article will not be discussing Bo Derek’s memorable jog down a beach in that memorable movie of the same name. Instead it discusses the reliability of pain scales in the context of injury cases, a much less interesting topic!
According to the Journal of the American Board of Family Medicine, “Though the accuracy of the 5th vital sign for pain assessment is moderate, it is much lower in practice than under ideal research circumstances. Uniquely, we found that nurses may not always use the 0 to 10 scale to properly quantify pain levels and that informal screening practice leads to underestimation. Efforts to improve routine pain management can confidently use NRS, but provider training, education, and monitoring in screening techniques are needed, as are efforts to link the 5th vital sign to clinician action for better pain management. Reading between the lines, this organization found nurses and doctors need more education in order for pain scales to be reliably used.
Typically, patients are asked to rate their pain from 0-10. However, how those numbers are described seems to vary widely. One clinician may describe a “10” as the worst pain imaginable, while another may describe it as the worst pain you have ever felt. Of course, that can result in very different ratings depending on one’s history of prior injury and pain tolerance. The results may be further complicated by cultural distortions, difficulties in interpretation, psychological factors including depression, education level which could impact understanding and an individuals pain tolerance in general. Additionally, many injured people may generally feel that they must exaggerate their symptoms in order to be believed or to get the necessary medical treatment they require. It’s important for us to emphasize to our injured clients that exaggerating symptoms is never a good idea and could result in some very real credibility consequences with the Court, employer and medical professionals. On a similar note, it’s not uncommon to have some clients underestimate the symptoms they experience, and this also can result in difficulties related to being assigned appropriate work restrictions, getting necessary medical treatment and giving a full picture of the injury itself.
It’s not uncommon in trial for defense attorneys to make light of what they characterize as “exaggerated” pain ratings of 9 or 10. Additionally, if you are arguing that a condition has gotten worse, it’s difficult to do so when 9 or 10 pain ratings have been given previously. One colleague recently recounted an exchange during trial which is illustrative. A client was discussing non-operative back pain to a Judge and had told him his pain was a 10. When told to imagine Jesus Christ on the cross as the last spear thrust that ended his life as a “10”, and to compare his pain to that the client noted again his non-operable back pain was a “10”. One can imagine how this client’s credibility may have been negatively impacted by this statement.
Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.
Changing employment laws to encourage so-called “portable benefits” is an idea that goes hand in hand with finding new ways to classify gig economy workers. These proposals are being pushed in a growing number of states. These proposals also enjoy support from Democrats and Republicans in Congress. These proposals could also radically alter workers’ compensation in the United States.
The idea of third classification of worker between employee and independent contractor is to give so-called “gig economy” workers some protections and benefits without employers having to bear the full costs of employment – including unemployment, workers’ compensation and health insurance. Sometimes this third class of workers is described as “dependent contractors.
Portable benefits are usually discussed in the context of contractors because traditionally benefits such as unemployment, workers’ compensation and health insurance have been provided by employers. So-called portable benefits, are detached from employers. The Affordable Care Act increased portability of health insurance benefits through the use of exchanges Portability of health insurance was touted as a way to help create new businesses because potential entrepreneurs were not tied to an employer for health insurance.
The idea of portable benefits and a new classification for gig employers is also touted as a way to reduce litigation against companies such as Uber for how they classify employees. But former National Labor Relations Board member Craig Becker pointed out that creating a new class of workers may actually create more litigation when employers try to re-classify employee as dependent contractors. Becker and others pointed out that this is what happened in Italy when Italy created a third class of worker that was neither employee nor independent contractor.
Becker and others point out that the drive to create a new class of workers is being driven by tech companies such as Uber as a way of reducing labor costs. The real risks of creating a new classification of workers is shared even by some who promote the sharing or gig economy. Gene Zaino, founder and CEO of MBO Partners, a firm that provides services to independent workers, stated that any new classification of independent workers should only include workers who earn more than $50 per hour. Under such a scheme lower-paid workers would still retain the benefits and protections of the employment relationship.
Though states are pondering portability and dependent contractor laws, there is a push for federal legislation so that laws can remain uniform across the country. Any federal push for portable benefits for so-called independent workers would clash with state-based workers’ compensation laws. Workers’ compensation is traditionally a state law concern because when workers’ compensation laws were enacted the power of the federal government to implement laws regarding workplace safety were limited. During the New Deal-era, that interpretation of the interstate commerce clause changed to allow broad regulation of the workplace.
Advocates for state-based workers’ compensation laws likely have little constitutional grounds to overturn any federal legislation that would substitute “portable benefits” for so-called “independent workers” for state-based workers’ compensation benefits. Some critics who argue, correctly, that many state-based laws inadequately compensate injured workers could also be open to or even welcome a federal substitute for insufficient state workers’ compensation laws.