You should understand the basics of the lumbar, thoracic and cervical spine if you want to pursue a personal injury case involving your neck and back.
1. Understanding Neck and Back Pain
You may see the term “axial” pain in your medical records or on a diagnostic report (MRI or CT scan report, etc.). Axial pain is limited to the neck and back.
Most neck or back pain resolves in about 4-8 weeks or so. Therefore, in the first 8 weeks following an accident, your doctor may refer to your back or neck injury as a sprain or strain.
When you are initially injured in an accident, it is tough to know whether your injury to your spine is a sprain or strain or an injury to a disc or a facet joint. Below is an image of a facet joint.
It is incorrect for a doctor to call your back or neck injury a chronic sprain or strain after one to two years of treatment. So if a claims adjuster tells you that you have a chronic back or neck sprain or strain and it is one to two years following the accident, you may want to correct them.
You should also do the same if the adjuster sends you their expert’s report which refers to your 1-2 years of back or neck pain as a chronic strain or sprain.
Radicular pain means that you have pain that is radiating into your arm or leg. Radicular symptoms can include pain, numbness and tingling, and usually occur when you have a compressed nerve in the spine.
Numbness and tingling in the spine should probably be evaluated by a physician (orthopedic or neurologist) or spine specialist, and not a chiropractor. Some Florida neurologists are patient advocates and I recommend them. If you have numbness or tingling, then you should see a physician or spine specialist quickly instead of waiting.
The liability claims adjuster may tell you that if you do not have any radicular symptoms, then you are not injured. Disc injuries and facet are true injuries, as they are injuries to cartilage and you do not have to have direct nerve compression to have pain.
I settled for $100,000 where my client was diagnosed with a herniated disc, without nerve compression. This settlement was before deduction for attorney’s fees and expenses. Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.
In that claim, Geico adjuster Lawrence Fredrick initially offered $5,500 to settle. His basis for that offer was that the “diagnostics appear negative or degenerative with no cord or nerve root involvement.” As I said above, Geico later settled for $100,000.
While my client had other injuries, I stood strong with the argument that a herniated disc can still be a bad injury even if there is no nerve compression. This was confirmed by an independent conservative orthopedic surgeon who I had review the MRI cd with me as well as go through the medical records with me.
There are several important factors that you should look at when analyzing your spinal injury case:
- How did you get hurt?
- Have you had prior motor vehicle accidents?
- Do you have prior Workers compensation claims?
The claims adjuster may argue that since you were undergoing “maintenance” chiropractic care before the incident that means that you required ongoing treatment when the accident happened.
If you do have a past accident, then the issue becomes whether you had medical treatment for that prior accident, as well as the complexity of the medical treatment and when your symptoms resolved prior to the current accident.
If you have had successful treatment and no more symptoms for 1 to 2 years before the current accident, then it generally means that the new accident is a substantial factor in the cause of your current pain.
It is important to tell your doctor whether you have had back pain in the past. If you want to make an injury claim, then you should write down any back or neck pain that you have complained of in the past. You should write it down before you forget about it, and so that you will remember to tell your current treating doctor.
You should gather you pre-accident medical records and review them as soon as possible so that you can let the doctor know your past medical history. This is important information for a doctor who is treating you for your current injury.
It is better to accurately tell the doctor your past medical history as opposed to later telling him later that you had past pain or a prior accident.
2. Did the incident cause your spinal injuries?
Injured people are generally poor historians, but a claims adjuster may use this against you and make it seem like you are trying to hide your past history. An adjuster may argue or note in his or her file that you are malingering or deceitful if you did not tell your treating physicians about your past history.
The same is true if you gave the adjuster a recorded statement. This is one of the reasons why you should not speak with the liability claims adjuster in many cases.
Again, you should tell your doctor, at the time of your treatment, about your past medical history. This includes telling him or her whether you have seen a doctor before for your back, neck, abdomen or pelvis.
I know of a neuroradiologist who was hired by the defense in a case where the injured person was claiming that a herniated disc was caused by the accident.
The doctor stated that the herniated discs were present on a CT scan of the abdomen and pelvis which was done 2 years before the subject accident. He said that the herniation was pre-existing and therefore not caused by the accident in question.
The lumbar spine is the spine behind our abdomen. The CT scan of the abdomen and pelvis includes the bones of the pelvis and the hips, it includes the lumbar spine, it includes the lower thoracic spine, and some of the ribs that come from our chest that extend down below the diaphragm.
So you can see everything from the lower chest to the hips on a CT scan.
MRI scanning has replaced CT scanning except for patients who can’t have an MRI. If you have a pacemaker, you can’t have an MRI. So if a doctor wants to look at the lumbar spine, they still use CT scan.
A radiologist may say that disc disease is associated with bony changes and all of those changes at multiple levels are typical for degenerative disease and there is nothing that was new, acute, or related to a traumatic injury.
A radiologist may say that bony overgrowth and the spurring could not have occurred in as little as 15 days. The doctor may also radiologist may also say that if you had an acute disc abnormality unrelated to bone that was 1 day old, you would see edema around that disc and swelling in the spinal canal, around the disc, or in the cervical spine.
Edema is a condition characterized by an excess of watery fluid collecting in the cavities or tissues of the body. Without that edema, the doctor may say that there is no kind of acute traumatic injury.
A CT scan may show an abnormal disc in the lumbar spine that involves both a bulging component and a herniated component. Herniated disc can be small, medium or large.
If your doctor later gets deposed, then he won’t get blindsided when the defense attorney hands him a medical record that talks about a previous injury of yours of which the doctor was unaware.
Please remember that your doctor may be the most important witness in your case. This is another reason to treat with a Florida orthopedic doctor who I recommend, instead of choosing one “randomly.” Good internet reviews do not necessarily mean that the orthopedic doctor will be a patient advocate.
You do not want your doctor to get asked about an MRI scan that you had 4 years ago of which the doctor was unaware. If the treating doctor gives poor testimony in a deposition, it becomes part of the case record and can significantly decrease the value of your case.
If you have pre-existing injuries that were made worse by the current accident, then the doctor will look at whether:
a. You have had a substantial decline in function by the recent accident.
b. There has been a change in your MRI.
For example, if your current MRI shows that your disc or facet joint has been worsened by the trauma, then your doctor may attribute this worsening to the incident.
c. The intensity of your treatment has significantly increased.
For example, if you are treating more frequently with a doctor or physical therapist after the accident, then the doctor may state that you have had an aggravation of a pre-existing injury.
3. How to Argue That Your Pre-existing Injury Should Not Affect Settlement Value
If you have a pre-existing injury, then you may be an “eggshell” plaintiff. An analogy is that you may pick up a dozen eggs in a carton at a supermarket and most eggs are fine, one is chipped and one is cracked. We will assume that the carton was dropped or something bumped it before you picked it up.
We will assume that the egg that cracked had the weakest shell before it was dropped, and the other eggs had a stronger shell and did not crack. Even if you had a weak spine before the accident, you are still entitled to get compensated for the aggravation of your pre-existing injury.
You do not get compared to someone who has a healthy spine. Basically, you take the injured person as you find them. Unfortunately many doctors do not understand this concept and believe that an accident either caused your injury or did not. Some of these doctors do not really believe in testifying that an accident worsened a spinal injury.
It is not a defense at all for the adjuster to argue that you had a weak spine before the accident.
Degenerative vs. Traumatic Finding on the MRI
The insurance company puts heavy weight on the MRI reading. Radiologists almost always use the word “degenerative”, for almost every condition in the spine other than a herniated disc. When most people hear the word “degenerative,” they think of a chronic condition or wear and tear. Desiccation is decreased water in the disc and the disc looks dark or black.
The findings on an MRI generally do not correlate (match up) with the symptoms or future required medical care by the patient. It is impossible to use an MRI alone without a patient’s history to understand the medical issues as they relate to the patient’s symptoms. This is why a doctor takes a history and examines you.
The doctor will be the one who determines if what they see on your MRI matches up with your symptoms. There was a study by Scott Boden, M.D. where an MRI was given sixty-seven individuals who had never had low-back pain, sciatica, or neurogenic claudication. The results were:
- About 30% of the subjects were found to have a substantial abnormality.
- Less than sixty years old, 20 per cent had a herniated nucleus pulposus and one had spinal stenosis.
- Sixty years old or older, the findings were abnormal on about 57 per cent of the scans.
- Degeneration or bulging of a disc at least one lumbar level in 35% of between 20-39 years old and in all but one of the 60-80 yr. olds
The conclusion of the study was in asymptomatic individuals, abnormalities on MRI scans must be correlated with age and clinical symptoms before considering an operation. Insurance companies have used this study to say that if you see a bulging or herniated disc on an MRI, then it does not correlate with their symptoms and it must be a typical finding.
But in this study the patients had no low back pain. Therefore, it is improper for an adjuster to cite this study. Unfortunately, most adjusters still misunderstand this study.
A follow-up study was done with these same patients about 10 years later and they found that there was no correlation between that MRI study and whether they were going to develop lower back pain. A claims adjuster may argue that it was inevitable you were going to develop a problem in your spine anyway.
What is surprising with the follow-up study was that the patients who, 10 years later, had the most low-back pain were not the patients who had the most abnormalities on the MRI scan. MRI scans are never interpreted by doctors without a history and physical examination.
You can tell the adjuster that the defense doctor would not decide whether someone needs surgery based only on an MRI.
If you did not have symptoms pre-dating an accident and now have terrible pain for a year, the doctor should be using words like protrusion or desiccation so that it does not get interpreted to mean that you have a long term degenerative disease.
You can send the claims adjuster your MRI with the area of the injury highlighted so this gives context. There are companies that you can send the MRI to and they can highlight the area of the injury for you.
It is a great idea to send any positive diagnostic studies to the adjuster as soon as possible, because it may be helpful for a claims adjuster to see what the injury looks like. It also shows the location of the injury.
If an orthopedic surgeon performs spine surgery on you, he or she has the benefit of seeing what the disc looks like. Most radiologist have not done spine surgery, therefore the treating orthopedic doctor’s opinion may have more credibility than the radiologist’s opinion.
Some doctors will not want to see photos of the damage to the cars in the accident, because they will say that whiplash and spinal injuries to not always correlate to the speed or damage to the vehicles. Unfortunately, insurance companies think differently and place a huge value on property damage vehicles.
Insurance companies are much more likely to assign a larger full value for the pain and suffering component of a case if the damage to the car(s) is big.
4. Gaps in treatment
If you have a gap in your treatment, the adjuster may infer that your symptoms are not that bad or they resolved. When you are not complaining to the doctor’s about your pain, then the adjuster may argue that you are not in pain.
5. Impact of Intensity of Treatment on Proving a Worsening of a Pre-existing condition
If you have a previous injury but just went 2 or 3 times to the chiropractor and took an over the counter pain reducer (Motrin, Advil, etc.), but after the current accident you have an MRI, spinal injections (epidurals), a surgical recommendation, then the treating orthopedic doctor may state that may say that you cannot even compare the severity of the pre-existing injuries to the current injuries.
The treating orthopedic may say that this is a new injury or also an aggravation of a pre-existing injury.
If the adjuster hires an expert doctor who says that you have a chronic muscular sprain or strain, then I may tell the adjuster that CMS (Medicare) or health insurance companies do not consider this an accepted diagnosis.
Myofascial pain syndrome is a diagnosis which is not an accepted diagnosis by CMS (Medicare) or health insurance companies. I may tell this to an adjuster if he tells me that his expert says that my client has Myofascial pain syndrome.
Most patients who have disc degeneration do not have symptoms. Some need medical care and a small amount need surgery. Just because you have degenerative disc disease it does not mean that you have pain. MRIs which show that you have degeneration do not necessarily mean that you have or will have symptoms.
If a disc is degenerative prior to an accident, than it is weaker and easier to injure with the same amount of trauma.
Many doctors think that the word “probable” in an injury case means 80% to 90%, but it means 50%. It is important that the treating doctor knows this. Some doctors think that the term “substantial factor” means the “only” factor, but it does not.
6. What is the Difference Between a Disc Protrusion, Disc Herniation and Disc Bulge?
A disc protrusion is a focal area of a disc that has a point on it. It is more commonly associated with a tear in the outer rim of the disc and/or a compression of a nerve. A disc herniation is a larger protruded disc with definite contact against the spinal nerves.
The easiest way to prove that you have aggravated a pre-existing injury if before the accident you have a major change in the MRI such as a small disc protrusion before the accident but after the accident you have a herniation or disc extrusion. But the reality is that most often the MRIs look the same.
The best way to try to prove the aggravation is if the prior treating physician states that there has been a substantial change in the claimant’s symptoms. The prior treating physician is in the best position to testify as to the aggravation because they saw the patient before the accident.
The difficulty with spine injuries is that the majority of the time the finding is pain, which is usually subjective and not objective. It can be objective is someone has neurological issues which may be revealed on an EMG test. An EMG is not that helpful if the only post-accident change is that the claimant has more pain in their neck.
As we get older our spines weaken. The average age of a herniated disc patient is 34. This does not mean that you cannot get a herniated disc if you are 15-year-old or so. I have heard of an orthopedic doctor who operated on someone who was as young as 15 years old and had a herniated disc.
The MRI may mention disc height. I will use a car tire to explain disc height. If a car tire is normal and full of air it is tall. If it is losing air and leaking then it is getting smaller. A disc will lose height as it becomes more worn out and loses more water or material. Loss of disc space height is a finding seen in a degenerative spine and can happen as a result of an injury.
You can use a decrease in disc height as an objective finding, but it is not the most specific way to link an injury to an accident. Change in disc space height can show a worsening situation for a disc.
7. Discogenic Pain
Discogenic pain means that the pain is coming from a disc. The outer one-third of our disc has nerve endings. If someone sustains a tear in the cartilage, it does not have to touch a nerve for it to cause pain. People with discogenic pain normally have an abnormal MRI and generally have a desiccated disc.
Sometimes there will be an annular tear or a high intensity zone, which is seen on an MRI and it correlates highly with a tear in the disc and pain. The person does not automatically have a herniation or protrusion touching a nerve. Most of the time discogenic pain causes back or neck pain without nerve pain in the extremities.
Discogenic pain normally does not get better with injections, because there is nowhere to put a steroid inside the disc. The pain is sometimes treated by injections to the facet joints (see image below).
If the pain continues, the doctor may either perform a disc replacement or a fusion.
8. Disc Desiccation
Disc desiccation means less water than normal, and dry. A disc that is desiccated on an MRI will be darker than the other discs. Desiccation is a normal finding as we get older.
Disc desiccation can be related to trauma but can be difficult to relate. If someone has no pre-existing issues with their back and they later have a problem as a result of an injury, a doctor can state that the specific disc that is desiccated is the one that is hurting because the desiccated discs are structurally abnormal.
Without an annular tear or high intensity zone on the MRI inside the desiccated disc, it can be difficult to prove that the finding is traumatic and not a normal finding based on them being aged 40 through 60.
9. Effect of Auto Property Damage on Proving a Herniated Disc is Related to Accident
I know doctors who will say that you can herniate a disc while rolling over in bed, lifting groceries or tying your shoes. You can herniate a disc if you are in a particular position, even with a low energy impact such as a minor car crash. If you have a car accident with minor property damage, then your past medical history becomes very important.
If there is minor property damage, the claimant must have very little or no prior treatment to have a good chance of a jury relating the injury to the accident.
Check out some of the many personal injury cases in Florida that we have settled, including but not limited to car accidents and slip and falls. We want to represent you if you were injured in an accident in Florida, or on a cruise ship or boat. If you live in Florida but were injured in another state I may be able to represent you as well.
10. Disc desiccation on multiple discs.
Someone with severe degenerative disc disease will have disc desiccation at multiple discs, which is more likely a degenerative finding and not related to trauma.
If someone has no major pre-existing history and is just wearing out their discs, then usually L4-L5 and L5-S1 (the bottom 2 discs) make up 80% of the wear and tear in the spine from everyday bending, twisting and lifting without trauma.
Example
A 40 year old has an MRI and all the discs are well hydrated and she has a herniation at L5-S1. The defense doctor states that L5-S1 is completely desiccated, and he says that the herniation must have been caused by the desiccation at L5-S1.
The claimant has no significant past medical history and no substantial medical treatment before the accident. The claimant can argue that the L5-S1 disc was at risk because it is the weakest disc in the spine and it is more easily herniated.
11. Multiple Herniations
Depending on how bad an accident is, it tough to say that 6 or 7 herniated discs are related to an accident. It is much more common to herniate one or two discs from a car accident than four to six.
12. Size of Herniation
Not every symptom is related to the size of a herniation. A 2 millimeter herniation is on the border of being normal. This is because 2 to 3 millimeters is basically microscopic and borderline normal without any other issues. You also have to look at whether there is a high intensity zone, annular tear or some other structural abnormality.
Doctors measure a herniation by using a ruler on the computer monitor. They usually look at a side view of the herniation and use a vertical line on the monitor. It is hard to measure two millimeters.
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Editor’s Note: This post was originally published in June 2014 and has been completely revamped and updated.