Soft Tissue Injuries To Extremities Calling For Multiple Surgeries May Be Disabling

“Soft tissue injuries of an upper or lower extremity requiring a series of staged surgical procedures within 12 months after onset” are included among the disorders of the musculoskeletal system which are “disabling” as a matter of law under the Social Security Administration “Listings.”

A patient with a soft tissue injury which interferes with the major function of any extremity may qualify for Social Security disability benefits as of the time of the injury.

The surgery series to be performed within 12 months must be to salvage and/or restore the major function of the extremity; yet the major function must not have been not restored nor expected to be restored within 12 months, in order to meet the criteria of this Listing.

In the following case, functional use was not restored after a series of surgical procedures taking more than 12 months, over several years. Nevertheless, the claimant was ruled “disabled” since the disabling effect equaled the Listing.

The case in which this Listing was applied involved a client (“the claimant”) who was injured working as a large equipment mechanic in 1993. While holding in his left (dominant) hand an 80-pound starter which he was installing in a crane, the creeper he was seated on moved backwards causing a twisting injury to his left shoulder. Since then, he has been afflicted with left shoulder pain and numbness, numbness in the fingers, hand weakness and loss of range of motion in the arm and shoulder, as well as daily headaches, anterior wall pain and paresthesia.

After conservative measures failed, the claimant underwent left shoulder subacromial decompression surgery about 5 months after the injury. However, his pain, numbness and headaches persisted.

One year after the injury, he was referred to a neuropathic pain specialist who supervised physical therapy, oral medications and antiproliferant injections. These, however, only provided minimal temporary relief. 16 months after the injury, he underwent thoracic outlet decompression surgery.

Unfortunately, any beneficial effects of this second surgery were reversed 3 months later when someone grabbed him fiercely by the left trapezius. The neuropathic pain specialist (“the treating doctor”) continued to treat him with injections and oral medications, all with no significant relief.

The following year, 1997, claimant’s treating doctor treated his pain and headaches with two nerve blocks. The year after that, he performed a scalenectomy. Another nerve block was performed in 1999. Again, these treatments only provided limited relief for short periods of time. The claimant continued on pain medications, including Percocet, Vicodin, Valium and Fiorinal. The treating doctor opined that the claimant’s condition equaled the above-described Listing. However, whether someone is disabled under Social Security law is for the judge to decide. The judge is not required to adopt the opinion of the treating doctor on disability.

Under the Social Security Act, disabling conditions that do not meet the specific criteria of a Listing, yet have the same disabling effect, may be ruled disabling as equal or equivalent to the Listing.

Here, even though the series of staged surgical procedures were not performed within 12 months after the onset (the injury), the judge adopted the opinion of the treating doctor since the major function of the claimant’s left upper extremity had never been restored following the injury, despite the multiple surgeries.

The phrase, “series of staged surgical procedures” is not defined as to any minimum specific number. It may refer to as few as two.

So, if you have a patient with a soft tissue injury which interferes with the major function of any extremity and that function is not restored despite at least two surgical procedures, your patient probably qualifies for Social Security disability benefits as of the time of the injury.

Also, the minimum period of disability allowed is 12 months. That is, if a claimant is disabled (as defined by the Social Security Act) for at least 12 months, disability benefits will be awarded for the period of disability, even if ability to work is subsequently restored.

Therefore, even if major use of the extremity is ultimately restored, if there was a period of at least 12 months during which a series of surgeries failed to restore major function, disability benefits will be awarded for the period of time the individual was unable to work.

This article was prepared by Arthur W. Stevens III