When defending difficult injury litigation or managing a complex insurance claim, it helps to show that the facts are on your side. A recent Case Study prepared by one of MKC’s legal nurse consultants proved this for one of our law firm clients, providing critical medical data mitigating points related to an MVA injury claim.
Our case study process for this assignment in Fall 2019 followed the methodology we’ve developed in 30-plus years of legal nurse consulting. The information provided here to the client is an overview and not meant to represent an exhaustive report of the case details, but instead points out key issues that should be addressed with all cases.
MKC’s team began by scouring the police accident report, the medical records associated with the injury, as well as other information submitted by the claimant. Unfortunately, in this case, EMS, police report and initial physician assessments were missing. This in itself is a telling sign and one that we consider a huge red flag. We wrapped up our case study process with a LNC analysis and medical summary clinical report to our client that clearly stated the medical data points and our conclusions.
Our law firm client – a national litigation boutique headquartered in the Southeast U.S. – was in court defending a large-value claim asserted by a 50-something man involved in a Motor Vehicle Accident (MVA) back in the fall of 2016. The claimant told his providers that he was driving his pick-up truck when another car ran a stop sign and hit the rear-end of the RV the claimant was towing. The RV became unhitched, and his pick up spun.
The driver of the pick-up alleged that the MVA caused significant cervical, lumbar and bilateral shoulder areas with resultant injuries. These alleged injuries necessitated cervical and lumbar surgeries along with right rotator cuff repair.
What we discovered: Past medical history
The claimant stated that he had a lumbar laminectomy two months before the date of loss (DOL). Pre-DOL medical records revealed a significant history of degenerative disc disease of the lumbar spine. The claimant was actively treating for complaints of low back pain in the year leading up to the MVA. He is morbidly obese and has a history of smoking, which can contribute to the progression of degenerative pathology: Lumbar- L2-3 and L5-S1 osteophyte complex, multi-level faforaminal and lateral recess stenosis, retrospondylolisthesis and multi-level facet and ligamentum flavum hypertrophyand multi-level disc protrusion. A few months before the DOL, the claimant underwent a L3-4 and L4-5 decompression, L4 laminectomy. Post-operatively (and pre-DOL), he continued to complain of lumbar pain with radiation to the leg. In his last visit about a month prior to the DOL, he outlined continued radicular complaints despite pain management, conservative care, transforaminal epidural steroid injections and oral narcotics. Bilateral shoulders with mild-moderate degenerative processes. He did not report a specific history or injury regarding the bilateral shoulder pain, though. He also had a prior history of a right rotator cuff repair in 1999.
Being clear on the past medical history is critical to understanding the claim, with specific attention and detail to the objective physical findings, operative date and radiological information. The past/pre-DOL history is the part of the foundation for any claim and needs to be completely understood and analyzed. Depending on the issues at hand, the pre-DOL baseline can be contributory or unrelated to the DOL injuries. ALL information must be analyzed carefully, including the specific spinal levels in question. Any changes in the specific levels or associated findings such as radiculopathy must be scrutinized.
What we discovered: the Mechanism of Injury (MOI)
The claimant reported that he was the restrained driver of a pick-up truck towing an RV. He reported that after being struck from behind, his vehicle spun, although the force and degree of spin is unknown. The claimant revealed to providers that he was able to drive home after the accident.
While we don’t hold ourselves out to be biomechanical engineers, in our view, however, there was no data to support a significant cervical, lumbar or shoulder injury from the reported MOI and available documents. And while I am not over-simplify or minimizing the importance of the biomechanics, I am generalizing the definition for the purpose of this case study.
In our world, the MOI is more than just the accident or event. The MOI is all information pertaining to what and how a specific force/energy impacts (trauma) the body (skin, muscles, organs etc.). The claimant was restrained, and the shoulder and lap belts would limit movement of his upper torso and lower back. There are typically movements (i.e., twisting, acceleration, deceleration, etc.) required for any type of bodily injury. In addition, the claimant’s pick-up truck did not take the full impact from the rear-end collision. The RV being towed by the pick-up truck would have absorbed most of the force of the impact. The lack of significant medical data points is further supported by the lack of objectively positive medical and radiological information.
What we discovered: the course of medical treatment
There was no indication that EMS came to the scene and nothing in the demand to support that the claimant sought immediate medical attention. In fact, he did not seek medical evaluation until four days later. He presented to his pre-DOL provider (a physical medicine and rehabilitation specialist) four days after the DOL with complaints of low back pain and left sciatica. Physical examination was essentially normal with the exception of diminished reflexes which were unchanged from before the accident. Remember our discussion about the spinal levels? This information indicates no new or acute changes post DOL. Subjective pain was 2-3/10. Plain X-ray was negative for acute pathology. He was diagnosed with spinal stenosis and lumbar radiculopathy; unchanged from before the DOL.
Five months post DOL, he complained of left side neck and right shoulder pain. Diagnostic radiological studies revealed no acute shoulder pathology, but did show degenerative changes such as osteoarthritis, tendinosis and tenosynovitis. In the cervical spine, there was multi-level canal stenosis; neural foraminal stenosis and various degrees of disc protrusion and herniation were noted throughout.
What we discovered: Comparing pre-DOL and post-DOL records
The records documented a second MVA following our DOL. No effort was made to distinguish between the events and any associated injuries. The specific details of the second event were not documented.
In comparing this post-DOL evaluation to the pre-DOL medical records, MKC’s legal nurse consultant noted that the subjective and objective findings at this initial post-DOL visit were consistent with the claimant’s last physician assessment, about one month prior to the DOL. There were no objective findings to support acute injuries to the low back. Several months later, the claimant reported neck and shoulder pain. The delay in reporting any pain or subjective issues typically belies an acute injury.
The diagnoses of spinal stenosis and lumbar radiculopathy are also consistent with his pre-DOL diagnoses for which he was treating for at least eight months prior to this loss. He was advised to follow up with his neurosurgeon. The claimant did comply with this; however, he did not see the surgeon for another five weeks. This is another indication that his symptoms had not worsened post-DOL.
Complaints of left shoulder pain began one year post-DOL, and the claimant alleged that he sustained a re-tear of his rotator cuff in the MVA. There was no MOI for an acute rotator cuff tear, and his initial post-accident presentation is not consistent with that condition.. Acute rotator cuff tears are typically immediately painful and cause joint swelling and impaired function of the extremity. Significant degenerative findings per MRI confirmed that this was the likely origin of his pain and joint pathology.
The claimant continued to treat for his complaints of low back pain and neck pain for two years post-DOL. Treatment included PT, epidural steroid injections, and additional lumbar surgery one year post-DOL. Initial evaluations had established that he sustained no acute injuries from the MVA and no disruption to the lumbar surgical area. Once that had been established — and particularly with the lack of MRI evidence of any structural changes to the lumbar spine post accident — further evaluation and treatment would not be recommended as related to this claim. The claimant was found to have severe degenerative disc disease that had been progressing pre-DOL and also post-DOL. Complaints of lumbar pain and then cervical pain would be related to this progressive, degenerative pathology. While self-limiting soft tissue injuries may have been possible, nothing more was identified. It should be remembered that nothing acute was noted even after two separate MVAs.
Ultimately, the claimant underwent conservative treatments and surgical intervention including C5-6 and C6-7 arthrodesis; diagnostic right shoulder arthroscopy with subacromial decompression and acromioplasty; and L3-4 laminectomy, L4-5 laminectomy revision with bilateral foraminotomy and partial laminectomy at L5-S1.
MKC’s bottom-line conclusions
The MKC nurse reviewer’s recommendations to our law firm client were to allow for the initial evaluation post-DOL and his follow up with the neurosurgeon. To assist in negotiation, the lumbar MRI would be reasonable to establish a lack of change in his lumbar pathology when compared to the pre-DOL records.
Here are more specific take-aways from our case study:
- Mechanism of Injury
As much as possible, understand thoroughly the MOI details. In this case, the reported MOI did not cause documented acute injuries that led to subsequent surgeries. It is imperative to review biomechanical forces of an accident against those alleged bodily injuries. Do they make sense? Did an injury occur when would be expected, or conversely an injury allegedly occurred when one should not. For example, injury to the right shoulder in a rear-end collision would be extremely unusual. A more expected shoulder-related MOI would be a fall on an outstretched arm. A strong argument could be made that the second accident was contributory on some level, though the details of that accident are unknown.
- Subjective and Objective Data Points
Take time to compare and contrast ALL subjective and objective physical findings as well as changes (or not) of the radiological studies. In this case, most levels were unchanged acutely, with noted degenerative changes and progression. The subsequent accident needs to be investigated and analyzed.
Considering the claimant’s past medical and surgical history, it is important to compare pre-DOL and post-DOL objective exam findings and imaging studies. In this case, the pre-DOL records included a lumbar MRI from 2011 and a lumbar MRI performed eight months prior to the DOL. Comparison of these two results revealed the expected progression of degenerative pathology at multiple lumbar spine levels. In comparing these results to a post-DOL lumbar MRI performed in early 2017, it was noted that the same progressive spinal pathology was seen. There were no findings of acute injury noted.
- Timeline Issues
Does the timeline fit? Initial diagnoses, as well as delayed complaints and subsequent diagnoses, matter. Typically acute injuries are very painful (ie, herniated discs and rotator cuff tears). Neither were identified initially. In fact the claimant was diagnosed with stable pre-existing degenerative changes and radiculopathy. And a much later shoulder surgery revealed degenerative labral tears.
- Maxim-Correlation does not equal causation
Just because complaints and even allegedly related findings come AFTER the event date, it does not necessarily mean those findings are directly related to the event.
- Know PRE-EXISTING
Pre-existing conditions such as boney degeneration, obesity and smoking can be contributory to the medical baseline as well as post-accident conditions.
The litigator’s perspective
The legal nurse consultant’s reported inconsistencies in the claimant’s complaints, pre-DOL pathology and very limited post DOL injuries.
The most compelling data point from MKC’s Case Study was the lack of Mechanism of Injury that correlated to the purported injury. It takes a lot of energy to affect a disc, and the we discovered that the medical data did not support this claim. We had a similar take-away for the rotator cuff piece of the claim, as such a condition is not typical of a MVA, especially absent compelling MOI evidence and initial supporting data points.