Keefe, Campbell & Associates, LLC

Editor’s comment: We have heard the cry from hundreds of workers, “I have worked hard all my life and now I am injured from it.” As defense attorneys, we despise the claim “repetitive work” is a supposed “cause” of disc degeneration and back problems—the opposite conclusion may be more scientifically accurate. Workers who work regularly and lift properly may be healthier and have stronger discs than workers who lead more sedentary lifestyles. What could be a better comparison than birth twins?

To attack this truly non-scientific concept, researchers at the University of Alberta studied the effects of work on twins and reached some surprising conclusions. Michele Crites Battié, Ph.D. from the University of Alberta’s Faculty of Rehabilitation Medicine was the lead researcher in a long-term project they called the Twin Spine Study. Dr. Battié learned that when it comes to the world of disc degeneration, one should move slowly.

Dr. Battié: “In the last half-century the predominant model of disc degeneration was wear and tear from environmental influences, such as heavy lifting, smoking and exposure to whole-body vibration from motorized vehicles. Yet, there were conflicting findings about the effects of these environmental influences. In many epidemiological studies it is difficult to isolate the effect of a particular factor to determine whether it really contributes to an outcome of interest, in this case disc degeneration. With this in mind, we set out to conduct highly controlled studies.”

The Twin Spine Study, which began in 1991, was an international effort that grew to include researchers from the U.S., Finland, Canada, and the UK. Dr. Battié explains, “[w]e started off with a series of studies of identical twins who were exposure discordant, meaning that one twin was heavily exposed to the factor of interest, such as smoking or heavy lifting, and the other twin was not. Otherwise, the pairs of twins were the same gender, had the same genes, and were raised in the same childhood environment, so they shared many early exposures. It turned out that whether someone had a sedentary, light, or heavy physical job like logging actually had quite a modest effect on disc degeneration, even when exposed to these conditions over a lifetime. In one study we looked at 45 pairs of identical twins, with one twin of each pair having spent much more time driving (the issue being whole body vibration). Our results did not reflect any significant difference between twins where one drove and the other did not.”

As the researchers gathered around the MRIs from these early studies, they were particularly struck by one thing, says Dr. Battié. “We were quite surprised by the strong resemblance in disc degeneration between twin siblings, not only in the degree of degeneration, but also in the types of findings and locations involved. My colleagues and I then became very interested in exploring a genetic component to disc degeneration. To this end, we collected data on non-identical twins (same sex) who were raised in the same household. Thus most environmental exposures were similar as in the case of the identical twins. However, non-identical twins share only 50% of their genes on average. We found a very substantial genetic influence on disc degeneration in the lumbar spine. Also, the results of one of the recent studies indicate that the effect of factors such as body weight and muscle strength on disc degeneration, although modest, may be greater than that of physical exposures. Furthermore, regularly experienced physical loading may actually have a beneficial effect on disc degeneration.”

Dr. Battié continues, “Using both monozygotic and dizygotic twins we were able to conduct ‘classic’ twin studies on disc degeneration. Through these studies we were able to estimate the overall genetic contribution to disc degeneration and back pain history. We also looked at whether disc degeneration is a pathway through which genes influence back pain. Making this all more complex is that pain is subjective and difficult to measure. However, we did find evidence that disc degeneration is one pathway through which genes influence back pain, but it is only a small part of the back pain story.”

Getting to the nucleus of the issue, Dr. Battié states, “We looked at disc desiccation (drying), a primary aspect of disc degeneration, and found that routine loading is actually associated with less [drying]. So it may be that the disc isn’t totally unlike other musculoskeletal structures, but it is responding in a positive way to routine loading. It is sort of like a training effect. If you load a musculoskeletal structure gradually and routinely, it will strengthen, as is the case with muscles, tendons, and bones. Also, various environmental and behavioral exposures appear to have somewhat disparate effects on different signs of disc degeneration, such as disc desiccation and narrowing. In the past it was often thought that greater physical loading was bad for the disc across the board.”

In the future, says Dr. Battié, the field will have to expand its thinking beyond a biomechanical or simple wear and tear model of disc degeneration. “Going forward it will be important to understand that while we’ve been focused for decades on biomechanical factors as the cause of back problems, and the place to look for the answer, if we want to make headway we’ve got to broaden our approach to the problem. We also need to look in new ways at biomechanical factors; for example, not just looking at heavy or light physical demands, but at their interactions with other factors, such as genetics.”

As many things do, these new ideas about the origins of disc degeneration could involve a bit of a butterfly effect…one “small” change has implications for wider society. “There are definitely policy implications to this research,” states Dr. Battié. “Back pain was once attributed to degenerative findings and degenerative findings were attributed to work or leisure time physical demands. This implied an injury model―physical demands cause structural damage, which in turn leads to pain. Our data, however, suggests that the injury model may not be the most appropriate model for back pain and the degenerative changes seen on spine imaging. Some of the systems that operate on an injury model, such as North American workers’ compensation systems, will have to grapple with this issue. The bottom line is that if we don’t have a reasonable model or understanding of the problem we’ll never have a good solution.”

And with such a solid foundation, the team of North American and European researchers is marching forward. “We are embarking on research to identify the specific genes and biological mechanisms that influence disc degeneration and back pain problems, and we aim to clarify the role of environmental factors. It is also important to gain a sense of how degeneration occurs over time, and tease out what represents the natural progression and what can lead to back pain.”

Their research is continuing and we will continue to watch and report updated results. This is based on an article from the web at: http://ryortho.com/NEWSSHORTS/volume4/issue35/11-04-08-Double.html.

Please reply with your thoughts and comments.

Editor’s comment: We invite our readers’ thoughts and comments on these concepts. In the last week we have learned:

1. A treating doctor actively referred his patient to an attorney to insure the doctor’s medical bills were paid.
2. There is an Illinois mesothelioma physician who is advertising to seek patients with meso while simultaneously telling the world his son; the lawyer will handle their personal injury claims.
3. There is a medical clinic in California that is trying to become a one-stop-shop for workers’ compensation claimants—providing primary post-accident care, recommending surgeons, lawyers, physical therapists, every professional an “injured worker” needs.
4. We had a Petitioner’s attorney direct his client not to see one doctor he was referred to, and then quietly call the primary care physician to have that physician refer the patient to a doctor of counsel’s choice.
5. We reviewed a Petitioner’s attorney’s website where they are actively recommending and thereby advertising their approved list of physicians.
6. We are aware of a number of physicians that donate gifts or money to bar association functions in order to allow their names to be presented at attorney golf outings, dinners or other bar association events.

We note these issues continue to spring up and we want to hear how Illinois business and our various readers think of the many moral, legal and ethical issues raised by these interesting facts. We are certain it is illegal for:

• Lawyers and doctors to split fees or otherwise “kickback” monies to each other in handling the needs of a client/patient.
• Doctors to own diagnostic, physical therapy or other medical facilities and send all their patients to such facilities, and then receive secondary compensation.

The rest of this falls into a strange ethical netherworld. We have no true idea if any or all of this may be both ‘legal’ and ethical—whatever that may mean.

Do you feel:

• A doctor should be ethically able to refer a patient to a specific attorney to allow the doctor to get his bills paid?

Please assume there is no fee-splitting agreement in practice or in principle

The doctor is simply telling all his patients to go to a specific attorney for their legal needs and one of those needs is to get their bills paid.

Please note the attorney may be able to advise the doctor how to get monies for interest consistent with our Act. A sharp Illinois attorney may also be able to get penalties and fees on unpaid medical bills in a fashion considered punitive for the employer or insurance carrier.

• A doctor should join with a lawyer to jointly advertise their respective services for patients/clients with a specific medical condition.
• A doctor or medical clinic should be able to create a list of preferred providers for post-surgical physical or occupational therapy, legal work, vocational counseling or other services?
• It would be a conflict of interest for an attorney to take an active role in recommending physicians/surgeons their clients treat with?

Again, assume the attorney is not making any money in the process but is actively directing patient care. Please also assume the patient and primary care physician is not asking the attorney for such services.

• An attorney can create and promulgate an approved physician panel and advertise such doctors on their firm’s website? Can the same attorney “require” or actively encourage their clients to only treat with certain doctors?
• Physicians can ethically donate to bar association functions to advertise their practices?

On these issues, we don’t have the answers, we just know there are very troubling questions. The defense industry should address all of them and consider rule-making to insure your interests are protected.

We hate to see doctors actively befriending attorneys and then both work together to treat patients in the image and likeness of what the lawyers want done. We also dislike the spectre of treating doctors fomenting litigation against Illinois employers in the workers’ comp setting.

On the other side, we truly feel it is a conflict of interest for attorneys to actively guide or direct medical care of a client by telling them not to see one doctor and then seek referrals to specific physicians or surgeons who are not IME providers. It is no surprise that extensive medical care leads to higher awards and settlements.

Please reply with your thoughts and comments.