The issue of spinal fusion surgery and artificial disc replacement is an evolving issue in workers’ compensation and personal injury cases. While this medical technology is increasingly becoming accepted, it remains an expensive component of medical costs in workers’ compensation claims.
An All Too Common Scenario
Employee sustains a compensable low back injury and receives conservative medical treatment, which does not provide long-term pain relief. The employee is eventually referred to a spine surgeon for evaluation and an anterior fusion at L5-S1 with disc replacement at L4-5 is recommended.
Following this recommendation, the employee undergoes an independent medical examination. According to the IME report, the risks of the proposed fusion surgery are questioned and it is noted the proposed procedure outweighs the potential benefits. It is also opined the proposed anterior approach is not “reasonable and necessary.” At a later deposition, the IME doctor testifies that it was his understanding that based on the diagnosis of the injury, the proposed surgery with a disc replacement is not approved by the US Food and Drug Administration.
The matter later goes to a hearing in front of a compensation judge who receives into evidence documentation from the FDA regarding the proposed surgery. Based on this evidence, as well as the testimony of the IME doctor, the proposed surgery is denied. In the order, it is also noted the proposed surgery is not approved based on the diagnosis.
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Artificial Disc Replacement and Workers’ Compensation
This hypothetical represents a growing line of instances where artificial disc replacements are being used in workers’ compensation matters. Several years ago, this advance in medical technology was rarely considered and viewed by many as questionable even though it was being used with increasing frequency outside the United States.
Due to increases in medical technology, the use of artificial disc replacement surgeries are gaining acceptance as being a “reasonable and necessary” alternative to fusion surgeries. These procedures are also gaining more acceptances in the United States, as the technology used in demonstrating a reliable history of use in other parts of the world. Notwithstanding this greater acceptance, it is still viewed by many as a costly procedure with uncertain outcomes as the disc technology has a tendency to breakdown over the course of time.
As with any workers’ compensation case, claim professionals need to be cautious and do their homework before accepting claims for artificial disc technology and understand likely medical outcomes:
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- Establish a team of claim handlers dedicating to spinal injuries that will likely result in a claim for fusion and/or disc replacement surgery. This allows your teams to manage better costly claims and provides for a better understanding regarding likely outcomes.
- Early investigation is key to properly defending back injury claims. This is especially important when dealing with claimant’s who work in occupations with an increased exposure to back injuries or have documented histories of pre-existing back problems. It is also important to take special note of populations who use tobacco, which impedes the healing process following a highly invasive surgery.
- Selection of the correct medical expert is also important. When reviewing a claims file on intake, it is essential to evaluate it for possible future treatment. Instead of selecting an orthopedic surgeon who only performs certain procedures, it may be an opportunity to select someone with additional background in neurosurgery and is familiar with disc replacement procedures. Carefully review the doctor’s curriculum vitae and take note of residency experiences, work history, training and articles the doctor has written.
Other Factors to Consider
As the practice of workers’ compensation law becomes more sophisticated, law firms across the country are also developing practice groups that move behind the “one size fits all” mentality often associated with this area. In some instances, attorneys are developing their defense practices around area like back claims or surgeries. This includes a concentration on medical trends, technology and scientific study of human movement.
During the course of discovery, it is also important to coordinate with members of the defense team. This can include:
- Recommendations on other means of investigation including surveillance
- Expert deposition preparation and use at hearing
- Regular file reviews on matters involving troublesome claims.
Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool. As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/. Contact: mstack@reduceyourworkerscomp.com.
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