Sample questions to counter defense claims of exaggerated pain.
By Dorothy Clay Sims
One of the most common injuries to the spine is a herniated disc. This occurs when the annulus (like the jelly in a jelly donut) leaves the center of the disc and the chemical from the disc can leak out and act as an irritant, causing nerve root pathology. A herniated disc can also indent the spinal canal, causing similar problems. DMEs may be unaware of the effect of the chemical irritant or ignore it by claiming a herniated disc cannot cause problems unless it impinges on the nerve.
A herniation occurs when there is “localized displacement of disc material beyond the limits of the intervertebral disc space”[ii] This is important because it means that any disc that has an asymmetrical bulge is, by definition, herniated. That’s what “localized displacement” means. (There is, however, one rare exception to this rule: scoliosis.[iii]) Otherwise, according to the North American Spine Society, as well as the American Society of Spine Radiology and the American Society of Neuroradiology, an asymmetrical bulge is a herniation.[iv] Period.
Ask the DME:
Q: Doctor, can you find any other publication, by any more respected organization, that defines “herniation” any differently?
Q: Well, if we go with this definition, then my client’s asymmetrical bulge is really a herniated disc, isn’t it?
A: Yes. If you go with that single definition, I suppose so.
Q: Can you name any publication that contradicts that conclusion?
A: Uh, no.
Ask the DME to draw you a bulging disc that is asymmetrical; then ask him to explain how that drawing is anything but a “localized displacement of disc beyond the limits of the intervertebral disc space.” If he still disagrees, ask the doctor to draw a bulging disc that is asymmetrical; then ask him to draw a disc that has a “localized displacement of disc material beyond the limits of the intervertebral disc space.” The drawings will look exactly the same and he will look foolish.
An excellent article which explains various disc abnormalities can be found in Spine, Volume 26, Number 3, p. E93-113 entitled “Nomenclature and Classification of Lumbar Disc Pathology: Recommendations of the Combined Task Forces of the North American Spine Society, American Society of Spine Radiology, and American Society of Neuroradiology” by doctors Fardon and Milette. The article is available online at . Any lawyer trying his or her first disc case should read the entire article…several times. The pictures in the article also help to explain the conditions, as well as how and why they can generate pain.
Practice Point: Check your client’s shoes.
Check you client’s shoes. You may find evidence of a disc herniation. Is the wear different on one foot than the other? Is the outside of the shoe worn more than the inside or the other way around? Perhaps he is dragging that leg? If so, that can indicate a herniated disc or spinal abnormality which affects how and where your client places his feet when he walks. Similarly, compare your client’s hands. If your client uses a cane frequently, he may have calluses on that hand secondary to clutching the cane.
Over time, a herniated disc will degenerate and lose disc height. The defense may try to use this fact against the plaintiff by claiming the scans show the disc is degenerated and a traumatic event does not cause degeneration. The DME is technically correct. However, this is exactly what one would expect. Because a herniated disc will degenerate, an MRI taken 2 years post-injury would not show an “acute” injury, but the results of the “acute” injury, i.e., degeneration. See §17:10, Common Defenses.
Most DMEs will admit that trauma can cause a herniated disc, but deny that is what happened in your client’s case. Rather, the DME may claim the disc herniated with age and is unrelated to the accident. Consider the following:
Q: Doctor, a crash can cause a disc to be herniated, correct?
Q: Some disc herniations can be worse than others, correct?
Q: So, a crash like this can cause a tear in the disc, such that it becomes herniated or prolapsed, right?
Q: But, it can be mild in nature, correct?
Q: Haven’t you testified in the past that many people are walking around today with herniated discs that are completely asymptomatic?
Q: Now, let’s consider a crash that causes a disc to herniated. Let’s even assume my client has no pain whatsoever after the crash, until he goes back to work a few days later.
Q: Doctor, do you deny that the heavy lifting my client did at work can cause an already ruptured or prolapsed disc to become even more herniated, more painful?
Q: Do you deny that the process that started it all could be this crash?
Q: My client worked performing heavy lifting for years without this kind of pain, didn’t he?
Q: So if we think about this logically:
- Before this accident, my client had a disc that caused him no pain, in spite of heavy lifting;
- My client suffers a crash, which can herniate a disc, which can get worse over time;
- My client is diagnosed with a herniated disc, which gets worse as he places more strain on his spine.
Q: Doctor, what other event in my client’s life was more likely to cause the onset of pain after this crash, other than this crash?
Heavy lifting can cause a herniated disc. If you represent injured workers, consider the fact that “herniated discs” are “closely associated with heavy lifting but not with other features of spinal degeneration or age suggesting that prolapse is not an integral part of the aging process.”[v](Emphasis supplied.) Therefore, if the worker’s compensation carrier hires a doctor who says your client’s heavy lifting didn’t cause the herniation, ask:
Q: Doctor, where is the research citing the probabilities of a herniation just spontaneously developing, as opposed to developing after heavy lifting?
Q: You agree, don’t you, that heavy lifting can cause a herniated disc, correct?
Q: Are you aware of the research indicating that a herniated disc is “closely” associated with heavy lifting and not with aging?[vi]
Q: Do you have any literature indicating the research I’ve just cited is wrong?
Presence of disc tissue “circumferentially” (50-100%) beyond the edges of the ring apophyses may be called ‘bulging’ and is not considered a form of herniation.”[vii] In layman’s terms, a bulging disc is a symmetrically expanded disc. Think of a round balloon which you compress. That is how a bulging disc would appear.
The defense will claim it is normal to have a bulging disc; however, a bulging disc can be caused by trauma and cause pain. If your client had no pain prior to a crash and has a bulging disc in the area in which pain is to be expected, then logic would dictate a relationship. Ask the DME:
Q: Do you deny that a bulging disc can cause pain?
Q: Do you deny that my client has a bulging disc?
Q: Do you deny that trauma can cause a disc to bulge?
Q: Do you deny my client suffered trauma?
Q: Do you deny that, anatomically, it is possible for the force that existed in this accident to cause a disc to bulge?
Q: Doctor, if you do not deny that this accident could cause a disc to bulge, can you identify some other specific event that was statistically more likely to cause this bulging disc, which caused pain in the area of the bulge immediately after the accident?
[i] 10/11/08 http://www.emedicine.com/pmr/byname/Cervical-Disc-Disease.htm
[ii] 9/29/08 http://www.asnr.org/spine_nomenclature/recommendations.shtml
[iii]Fardon, Dd and. Milette, P., Nomenclature and Classification of Lumbar
Disc Pathology: Recommendations of the Combined Task Forces of the North
American Spine Society, American Society of Spine Radiology, and
American Society of Neuroradiology, Spine 26:5, ppE93-E113 at E97
[v] Adams, Ph.D, Michael, Roughley, Peter, Ph.D., What is Intervertebral Disc Degeneration, and what causes it? Spine, vol. 31; l8, pp l25l-2161 at 2156.
Dorothy Clay Sims has perhaps the most unusual legal practice in the nation. She helps lawyers cross-examine doctors in cases involving personal injury, long-term disability, medical malpractice, criminal law, family law, and workers’ compensation. In her 25 years as a lawyer, Ms. Sims has cross-examined thousands of doctors throughout the U.S. In addition to cross-examining doctors herself, Ms. Sims provides notebooks for lawyers to use in examining doctors which include background material on the expert as well as questions to use in deposition and trial. Ms. Sims is senior partner in Sims & Stakenbourg in Gainesvilleand Ocala, Florida, where her firm practices social security disability law and assists lawyers in understanding medical issues. Ms. Sims is the author of Exposing Deceptive Defense Doctors, from which this article is excerpted.