An Anatomy Of A Work Injury To The Spine
This firm represents hundreds of injured workers a year. After 10 or 15 years, certain patterns emerge. One particularly conspicuous pattern is that of the worker with a low back injury. We hope this overview of how such a work injury claim unfolds will be helpful to our readers, especially those who may become involved in part of the process.
Let us suppose a lifting incident at work on April 1, 2003, causes a worker to experience severe low back pain. Due to pain and restricted movement, the worker is not able to return to work. (For the sake of linguistic simplicity, without intending any gender insinuations, we will assume the injured worker is a male, Hertz O. Badd.)
The worker goes to his doctor, Dr. Primecare. Dr. Primecare diagnoses a “lumbar strain,” and prescribes physical therapy and Vicodin.
Before or after going to his doctor, the injured worker files a timely claim (Form 801) with his employer. Also, the appropriate form is signed by Dr. Primecare giving notice that he is the attending physician.
Despite therapy and prescribed pain medication, the pain persists to the point where, after a week or so, the injured worker returns to his doctor. He reports now his low back pain radiates down to the hip or one leg. Dr. Primecare sends him for an MRI.
The MRI is positive. It shows a herniated, bulging and/or severely degenerated disc at one of the lumbar levels. The disc appears to be impinging a nerve root, explaining the radiating pain.
On reviewing the MRI report, Dr. Primecare refers injured worker to a specialist, Dr. Neurosurge. Of course, weeks of pain and no work separate each step in the progress of the hurt worker’s medical diagnosis and treatment.
Around this time, the employer’s insurance company, Slypree Assurance For Everyone (SAFE), accepts “lumbar strain.” This is based on SAFE’s review of the medical record most contemporaneous to the injury, Dr. Primecare’s original diagnosis of “lumbar strain.”
On review of the MRI and examination of Badd, Dr. Neurosurge, noting the failure of conservative measures to relieve his pain, recommends a discectomy, decompression and fusion surgery.
SAFE sends the injured worker to two doctors, Dr. Schlipperyroot, Neurologist, and Dr. Amy N. Testa, Orthopedic Specialist, for what the Workers’ Compensation statute calls an “Independent Medical Exam” (IME), but what the Oregon Supreme Court has more accurately termed a “Compulsory Medical Exam” (CME).
SAFE asks the examining doctors to be sure to address in their report questions like: “When did the lumbar strain resolve?” “Did any conditions preexisting the work strain injury combine with it to contribute to the worker’s current low back condition and need for treatment ?” and “If so, is the major cause of the worker’s current need for treatment the resolved lumbar strain work injury or the preexisting degenerative disc disease condition?”
Having been paid handsomely by SAFE, Drs. S & T produce a 12 to 16 page report, setting out in great detail their examination and interview findings and the reasons for their predictable answers to the questions raised by SAFE. They explain that since strains typically take only 4 to 6 weeks to heal, the injured worker’s accepted strain has resolved and contributes little if anything to his present condition. It certainly does not contribute as much as the preexisting condition (degenerative disc disease). Drs. S & T do their job well.
Drs. Primecare and Neurosurge, whose jobs are to treat patients and whose schedules are always overly full with patient appointments, receive a copy of the 16-page CME report of Drs. S & T, accompanied by a letter from SAFE requesting their review and response within a limited amount of time. SAFE’s letter provides a place where the doctors may simply sign indicating their agreement with Drs. S & T’s report.
However, if Dr. Primecare or Dr. Neurosurge disagrees with Drs. S & T’s report, SAFE asks them to respond with a report of their own explaining their disagreement.
No one is paying Dr. Primecare or Dr. Neurosurge, handsomely or otherwise, for preparing their response — certainly not the injured worker, who has only been receiving at most a reduced percentage of his regular pay while unable to work. He is worried about how he is going to pay for his upcoming surgery, his only hope of relief from his pain and of returning to work.
For, you see, upon receiving the CME report with its predictable responses, SAFE has issued a “Current Condition Denial” of Hertz O. Badd’s low back condition stating that no further payment for medical expenses will be forthcoming, since the accepted lumbar strain is no longer the major cause of the worker’s current low back condition.
At this time SAFE may also issue an “Amended Acceptance,” in which it adds to the already accepted lumbar strain, “…preexisting degenerative disc disease unrelated to the work injury of April 1, 2003.”
SAFE will then follow its Amended Acceptance with a “Notice of Closure,” indicating Badd had become medically stationary and his right to Temporary Total Disability ended as of the time his lumbar strain should have healed.
Meanwhile, due to his patient load and other demands on his time, Dr. Primecare understandably may be hard pressed for the time to undertake a critical review of Drs. S & T’s extensive detailed report. Far be it from him, a GP, to question the expertise of these specialists anyway.
Dr. Primecare’s signature, then, becomes medical evidence in SAFE’s hands of the attending physician’s endorsement and approval of every detail of Drs. S & T’s Compulsory Examination Report. This is a weighty piece of evidence indeed, backing SAFE’s Current Condition Denial.
Upon receipt of the denial, Hertz O. Badd seeks legal counsel, who requests a hearing to appeal the denial.
Preexisting Condition Definition Revisited
Let us now define a key term. Consider this scenario in light of the definition of “preexisting condition” adopted by the legislature in 2002 and explained in Volume 22 of this Medical-Legal Journal.
Consider what a preexisting condition is not: a preexisting condition is not something which “predisposes” a worker to an injury. The word “predisposes” has been removed from the definition. Also, a preexisting condition is explicitly not something which “merely renders the worker more susceptible to the injury.”
The preexisting condition must “contribute to the disability or need for treatment.” This language indicates active causation.
Suppose Badd’s degenerative disc condition was undetected and asymptomatic before the work incident. Does this mean it was unaffected by the work incident? Because Dr. Primecare’s immediate impression was that of a lumbar strain, does that mean the work incident only injured the muscles of the low back, and did not affect the disc?
Because the herniated disc was not suspected and detected until radicular symptoms were reported and an MRI taken, does this mean the herniated disc occurred independently, caused primarily by the degenerative condition and at a later time somehow “combined” with the strained lumbar muscles? Or was the disc, as well as the muscles, injured at the time of the work incident?
An undiagnosed and asymptomatic disc probably would not have called for an MRI or any other radiographic evidence prior to the work injury, so there is no evidence for comparing the pre-injury and post-injury disc.*
Medical Opinion Needed to Prove Causation
This leaves it to the judgment of examining and treating physicians to opine with reasonable medical probability how much (what percentage, whether over 50%) the work injury caused Badd’s disability and need for surgery, as opposed to the percentage of the contribution (causation) by the “preexisting” degenerative disc.
The law presumes medical experts are capable of making such judgments and that the medical opinions offered are grounded in more than who is paying for the examination report, on the one hand, or the assurance of being paid for performing the needed surgery, on the other.
Medical opinions must be explained by more than simply the temporal relationship. That is, it is not enough to say, “Badd did not need disc surgery before the injury and now he does, so the injury must have caused it.” An analysis based on complete knowledge of both the bio-mechanics of the injury and a detailed knowledge of the medical facts (signs, symptoms, objective findings, treatments & responses, history, etc.) is needed.
The judge and the Workers’ Compensation Board have the discretion to choose which medical opinion they find most persuasive considering how well-explained it is, whether it is based on complete and accurate facts, and the source of the opinion.
Preventing the Predicament
The above example illustrates how through no fault of his own (he did not need an attorney until he received a denial), an injured worker may find himself in a very difficult situation.
Your patient could avoid such a predicament if you gave a tentative and open-ended diagnosis until you have had an opportunity to observe the progression of the injury. For example, if the injury, symptoms and other circumstances call for it, a tentative diagnosis of strain “…and possible disc injury” or “rule out disc injury” will help preclude inappropriate assumptions where a complete and final diagnosis is not possible.
Also, if you do not agree with the CME report in every detail, but do not have time to prepare a response, you may sign and return the letter in a timely manner clearly indicating your disagreement with the CME report and asking the employer/insurer to call you if he/she has any questions.
This article was prepared by Robert L. Chapman and Peter E. Yeager
*Note that the new definition of preexisting condition requires evidence of diagnosis and treatment of the condition before the claimed work injury, with the exception of arthritis or an arthritic condition. In this case, if the degenerative disc disease is an arthritic condition, no evidence that it was diagnosed or treated before the injury is needed.
Posted in: Workers' Compensation Lawyer Articles