Evidence Based, Cost Effective, And Compassionate Surgical Care of the Spine Injured Worker: Comprehensive Review of the Literature and Experience-Based Fair and Balanced Approach

MSC

INTRODUCTION:

RAFAEL LEVIN, MD, MSC

I was 33 years old when I was fortunate enough to join a well-established and highly reputable spine surgery practice in northern New Jersey. This was my first position as an attending spine surgeon. I was coming straight out of training and aspiring to become a partner in the practice one day. By that time, I had earned two engineering degrees from MIT and a medical degree from Johns Hopkins School of Medicine, and completed a five-year internship and orthopedic surgery residency training at Boston University, followed by a one-year spine surgery fellowship at NYU’s Hospital for Joint Diseases. And yet, with all that education and training, admittedly, I knew close to nothing about the unique aspects of diagnosing and treating patients with work-related spine injuries.

I was fortunate to have yet another great mentor in the form of my senior partner, Dr. Ari Ben-Yishay, who was able and willing to teach me the basics and guide me through the intricate challenges of what I have come to designate as my sub-sub-specialty—worker’s compensation spine surgery. The invaluable lessons I learned from my mentor were primarily based on his vast professional experience of treating and observing thousands of spine-injured workers for two decades. Truth be told, there was simply no other reliable source for me to turn to, at least at that time. I had to learn fast and pay close attention to my mentor and to my own growing experience because many of my own patients presented with work-related injuries. I had to make critical clinical decisions, seeking the best outcome for my patients while factoring in a fair and balanced approach to all parties involved in these cases.

Coming out of training as a spine surgeon, I knew close to nothing about treating worker compensation patients. As with many other situations, I have come to realize that knowing just a little about treating the spine-injured worker can be far more dangerous than knowing nothing at all. The primary danger of knowing just a little is that one tends to underestimate how much one does not know. Overestimating one’s true level of understanding leads to an oversimplified approach that disregards the inherent complexity of the subject. When it came to treating workers with spinal injuries, the little information I had coming out of an otherwise excellent academic training program was nothing more than generalized statements and slogans such as:

•Workers comp patients never want to get better.

•You should never operate on a WC patient.

•WC patients never return to work.

•You are much more likely to get sued operating on a WC patient.

While many of these statements had a grain of truth in them and perhaps some evidence-based medical literature to support them, I quickly witnessed these axioms shatter one by one against the complex reality of treating this patient population. I should not have been surprised by the inadequacy of a rudimentary, conventional-wisdom approach to this elaborate challenge. After all, why should the surgical treatment of the spine-injured worker be any simpler than the already challenging decision-making process of treating any spine patient? Those of us who have treated many work-related spine injuries know the exact opposite to be the case. Understandably, some of my colleagues have chosen to exclude spine-injured workers from their practices, thus avoiding many of the complex issues involved in this patient population. Following in the footsteps of my mentor, I have learned to accept some frustration while embracing the professional challenge, which has rewarded me often enough to keep me going.

Now, at 48 years old, and 14 years into my practice, I have had the privilege of treating thousands of spine-injured workers. In retrospect, I have made my fair share of mistakes, all of which have been valuable lessons and learning opportunities for the benefit of my patients and all parties involved in their cases. With each new case, I strive to balance fairly not only all clinical options but also the complex and sometimes conflicting interests of all parties involved in the compensation case. I decided to write this book not because I have figured out all the answers, but because I have gained enough knowledge and clinical experience to grasp how complex and challenging the surgical treatment of the spine-injured worker really is. I am writing from a position of humility, both as a spine surgeon and as a student of the art and science of diagnosing and treating this patient population. So, while I am certain the reader will not learn all the answers from this text, I am hopeful that he or she will at least gain from my experience and develop a productive framework to keep questioning conventional wisdom and seeking better explanations and remedies for the spine-injured worker.

THE PARTIES INVOLVED IN THE CASE OF A WORK-RELATED SPINE INJURY:

RAFAEL LEVIN, MD, MSC

THE SPINE INJURED WORKER, BE IT THE CLAIMANT, EXAMINEE, PETITIONER, OR THE PATIENT

You are not my doctor; you work for the insurance company.

There has not been a week since I started practicing worker’s comp spine surgery in which I have not heard an accusation along these lines. Whether or not the spine-injured worker explicitly verbalizes this genuine concern to me during our interaction is immaterial. The perception is often there, and it is our duty as physicians to directly address it with the examinee in the clearest terms possible. Notice that I used the term examinee (or claimant or petitioner, which I consider interchangeable for our purpose) rather than patient. This is not arbitrary, as the two are not always one and the same. Naturally, a spine-injured worker who files a claim (typically through his employer) becomes a claimant or sometimes a petitioner (when litigation is involved). However, in situations where the workers-comp insurance carrier or another third party asks the surgeon to provide an opinion regarding causality or to evaluate the need for treatment, the examinee is by definition not a patient. In other words, a patient-physician relationship is not established. The definition of a patient is simply a person who is receiving medical care, especially in a hospital, or who is cared for by a particular doctor or dentist when necessary.¹ Therefore, a worker who is specifically referred for an independent medical evaluation, or a one-time evaluation but not for treatment is not a patient but rather an examinee, or a claimant or petitioner, if you will. In fact, that individual may never become a patient in relation to his or her claimed work injury, especially if no spine injury or work-related causal relationship is established by the examining surgeon.

The surgeon needs to explicitly explain his relationship with the examinee, especially if he is not a patient. While some examinees may be well informed of their status, many are not, and this information gap needs to be directly addressed, leaving no room for any assumptions on behalf of the surgeon or the examinee. Accordingly, when I am not the treating surgeon but rather a specialist rendering my professional opinion on the issue of causality at the request of a third party, for example, I take the time to explain my relationship to the examinee. I personally inform him that I was requested by another party to opine on his case. I explain that I am not allowed to discuss my opinion with him or make any treatment recommendations, let alone prescribe any treatment. I always reassure the worker that I will take my time to obtain all the information from him and give him the opportunity to provide any additional comments should he feel the need to. Finally, I stress to the patient that even though my evaluation may be requested (and paid for) by a party that he may consider not aligned with his best interests, my ethical and professional obligation as a physician is to render my best possible objective, independent, and unbiased opinion based on all the information available to me and relying on evidence-based medicine.

Once a spine-injured worker becomes a patient, the relationship with the treating surgeon often becomes significantly more complicated. At the core fundamental level, the patient-physician relationship should remain uncompromised and independent of any third-party influence. In reality, however, the worker-surgeon relationship is embedded and intertwined within a larger picture that should not be ignored either. It is absolutely critical that the patient understands and believes that his treating surgeon is ethically and professionally obligated to provide him with the best possible care within the context of the injury. This is not to say that a surgeon treating a worker’s compensation patient should render treatment to address spine pathology that is not causally related to the injury. In such a scenario, the spine surgeon is naturally obligated to discuss the findings with the patient, and even make treatment recommendations while at the same time clarifying to the patient that treatment should be rendered under his regular coverage, not worker’s compensation. Whatever the course of treatment may be in causal relation to the index injury, the surgeon needs to reassure the patient of their relationship as the foundation for mutual trust and progress.

I explicitly reassure my work-injured spine patients who express any doubt in my commitment to them or who give me a sense of distrust that I work for them, not for the insurance company, as some of them may suggest. Furthermore, I explain that the worker’s compensation insurance carrier is simply a third-party payer, operating in many ways like other commercial health insurance carriers. While cost containment is certainly of vital importance to the insurer and the employer, in most cases these parties share the patient’s interest in an optimal recovery as the best path to assure maximum resource utilization. Since I happen to practice in New Jersey, a state in which the worker’s comp insurance carriers direct care to providers and control referrals to specialists, injured workers often feel a loss of autonomy in choosing their providers. Many spine-injured workers erroneously believe that their treatment and care oppose the interests of the worker’s comp insurance carrier. I explain that directed care by the insurance company is in fact designed to assure optimal outcome that is evidence-based and thus often aligned with reduced waste of resources. By directly addressing these issues with the injured worker in a compassionate manner and confronting their understandable anxiety and vulnerability, the spine surgeon will lay the necessary foundation for a trustful patient-physician relationship. Without such trust, even the most accurate diagnosis and perfectly executed spine treatment is at significant risk of failure.

I was just about ready to finish writing this section when I received an email from my office manager telling me that one of my work-injured spine patients, who has been under my care now for several weeks and was in fact a surgical candidate, asked to switch his care to another provider. There was no further explanation on his part; he simply did not want me to be his spine surgeon moving forward. Such occurrences have been rather rare in my practice, but I want to use this case to make an extremely important point for all healthcare providers, especially spine surgeons, and especially those treating spine-injured workers: You simply cannot make each and every patient happy. You cannot make all patients appreciate your service, let alone like you. This cliché is much easier to memorize than to fully accept and embrace in our everyday practice. As physicians, we are wired and programmed to please. We thrive on positive feedback and reinforcement that keeps us going during the toughest times. It took me a few years to accept the notion that, despite my best efforts, I could not make all my patients appreciate my efforts, let alone be satisfied with my care or like me as a person. Certainly, this does not mean that I no longer try my hardest to provide the care I truly believe to be in the best interest of my patients. In fact, when the patient feels dissatisfied, frustrated, or angry at me, I go out of my way to try to understand the root cause of his or her disappointment. In some instances, a simple mistake on my part or even a misunderstanding with my staff can easily be addressed and corrected. In reality, however, we have to accept that there are some patients, of whom a disproportionate number are injured workers, whose deep dissatisfaction stems from life circumstances and/or pathology far beyond their spine and out of our reach as spine surgeons.

With this in mind, while I always find it helpful to be aware of each patient’s personal circumstances and socio-economic status, I particularly value such information as it pertains to my spine-injured workers. As health-care providers, we are obligated to resist any natural tendencies to stigmatize our patients based on social characteristics in a way that might have a negative impact on our treatment recommendations. However, when treating the spine-injured worker, understanding the patient’s socio-economic circumstances can add a valuable perspective that improves our diagnostic accuracy, causation analysis, and the success of treatment. I will mention a few common scenarios I encounter on a routine basis as illustrative examples.

Consider injured workers who are pregnant, single parents (especially with infants), or primary caretakers of other family members like their spouse or their own parents, oftentimes with special needs. Such workers are naturally more inclined to leverage their injury to maximize time spent at home caring for their loved ones. Workers who are also students and may be preparing for exams can certainly use some time off to focus on their studies (and get paid in the process). It should not be surprising that these patients tend to resist any form of light-duty work activity as an alternative to strictly being kept out of work. Similarly, workers who have immediate or extended families outside the country and who need to leave because of a death in the family, for example, greatly value the opportunity to do so while being kept out of work on worker’s compensation. The spine surgeon should also be sensitive to injured workers who are on their own, away from their families that are still residing in their countries of origin.