APPORTIONMENT: (1-23-06)

LABOR CODE SECTION 4663:

Although there was evidence of moderate degenerative disc disease and degenerative joint disease on MRI and X-ray that was pre-existing in nature (see page 12-13), there is no substantial medical evidence within the current medical literature that relates said diseases to patient vulnerability for future chronic pain or permanent impairment. Therefore it is my opinion, based on reasonable medical probability, that 100% of the above described permanent impairment is attached to the industrial injury of 10-01-02 that occurred during the course of employment with The Daughters of Charity; 0% is attached to said degenerative disc disease and/or degenerative joint disease.

LABOR CODE SECTION 4664:

There is no evidence that this patient has previously been awarded a permanent disability award. Hence, it would appear that this section of the Code is non-applicable in this case.

SUPPORT OF APPORTIONMENT OPINION:

In attempts to create a report that constitutes substantial medical evidence, allow me to support my opinion on apportionment by using evidence based peer-review medical investigations, which is my right and duty per Title 8 CCR §10606(n) and the recent WCAB en banc decision of Escobedo vs. CNA (2005) 70 CCC 604, which states "...a medical report is not substantial evidence unless it sets forth the reasoning behind the physician’s opinion, not merely his or her conclusions."

Degenerative Joint Disease (DJD) :

I believe Professor Nikolai Bogduk, MD, (famous researcher, author, and two-time Volvo Award winner) addressed the contention that Degenerative Joint Disease (“DJD”) was predictive of future spine pain quite well by stating:

“Spondylosis, disc degeneration, facet degeneration or osteoarthritis are not legitimate diagnoses of the cause or source of back pain . The correlations with pain are either nil or poor. On plain films, spondylosis equally common in both symptomatic and asymptomatic individuals and does not, therefore, constitute a diagnosis of the cause of pain.” (826)

To further the contention that the presents of spondylosis (degenerative joint disease) is NOT indicative of patient pain or disability, let us review the Torgerson investigation: in 1976 Torgerson et al. (827) published one of the only prospective investigations into whether or not the presents DDD or DJD was predict of spinal pain. The research team meticulously assessed the radiographs of 387 symptomatic low back pain patients and 217 asymptomatic patients (who were x-rayed for reasons other than back pain) for signs of DDD or DJD. The results of this investigation indicated that spondylosis (aka: degenerative joint disease or DJD) was seen just as frequently in the back pain patients as it was in the patients with no back pain. More explicitly, 47% of the asymptomatic group had spondylosis, and 57% of the symptomatic group had spondylosis; a non-statistically significant difference. (827) Therefore, there was no way to predict, via radiographs, which people were suffering back pain and which ones were not. In relevance to this case, there is no way to prove that the patient presence of DJD is causative of pain, disability, or impairment.

More recently, in 2001 Lee et al. demonstrated that endplate sclerosis (aka: spondylosis) was just a prevalent in symptomatic neck pain patients as it was in asymptomatic volunteers of the same age. They concluded, “Our results suggest that the radiographic density of cervical vertebral end plates (spondylosis) correlates neither with neck pain nor with increasing age.” (828)

Degenerative Disc Disease (DDD):

To support my opinion that pre-existing DDD is not indicative of future pain or disability, I would like to present the Volvo Award Winning and Young Investigator Award winning work of Dr. Norbert Boos et al. (829) as evidence that DDD is not at all predictive of future patient chronic pain and functional disability:

In 1995 Dr. Norbert Boos et al. (829) won his third prestigious Volvo Award in Clinical Science for his work surrounding the clinic significance of MRI findings. In a nut shell, Boos compared the MRI findings of 46 symptomatic patients who were scheduled for lumbar disc surgery, against MRI findings in 46 pain-free volunteers who were matched for age, sex, and occupation. To “stack-the-deck” in favor of degenerative disc disease (DDD) showing-up on MRI, all 46 pain-free volunteers had occupations that are considered “high risk” for the development of back pain and disability, i.e., jobs that demanded heavy lifting; repeated bending, twisting, and stopping at the waist; vibration; and sedimentary work. Surprisingly, with respect to the presence of DDD on MRI, there was virtually no difference between the symptomatic patients and the pain-free volunteers, i.e., 96% of the symptomatic patients had DDD, versus 85% of the pain-free volunteers had DDD; this is not a statistical difference. The results of this investigation clearly demonstrated that the meer presents of DDD on imaging is not predictive of patient symptomatology or functional disability, for despite the presents of DDD in 85% of the pain-free volunteers, none of them had back pain or functional disability. (829)

In attempts to ascertain whether or not these same DDD-infested pain-free volunteers would eventually develop disabling back pain in the future, Boos followed the same group for five more years. (830) The 2002 results of this most ingenious investigation won Boos yet another prestigious award, i.e., The Young Investigator Award. Surprisingly, despite the ominous looking pre-existing DDD in 85% of the pain-free volunteers’ lumbar spines and their high-risk occupations, only 12% developed back pain strong enough to require a doctor visit over those five years, and 0% became permanently disabled or even required a trip to the hospital because of back pain. (830) Again, these results clearly demonstrate that the meer presents pre-existing DDD is completely non-predictive of patient future pain and/or permanent disability.

Conclusion to Apportionment Support:

Therefore, based on forgoing Award-Winning Investigations, the current medical literature does not support apportionment to pre-existing degenerative disc disease and/or degenerative joint disease in this case.

Section References:

(826) Professor Nikolai Bogduk, MD, Multiple Volvo Award Winner ‘Evidence-Based Clinical Guidelines For The Management Of Acute Low Back Pain’ The Australasian Faculty of Musculoskeletal Medicine November 1999; Chapter 9

(827) Torgerson WR, Dotter WE. Comparative roentgenographic study of the asymptomatic and symptomatic lumbar spine. J Bone Joint Surg 1976;58A:850-853.

(828) Lee SW, et al. “Investigation of Vertebral Endplate Sclerosis.” Skeletal Radiol 2001 Aug;30(8):454-9.

(829) Boos N, Rieder R, et al. '95 Volvo Award in clinical sciences. The diagnostic accuracy of magnetic resonance imaging, work perception, and psychosocial factors in identifying symptomatic disc herniations.'Spine. 1995 Dec 15;20(24):2613-25

(830) Elfering A., Boos N. et al. "Young Investigator Award 2001 Winner: Risk Factors for Lumbar Disc Degeneration: A 5-Year Prospective MRI Study in Asymptomatic Individuals." Spine 2002; Volume 27, Number 2, pp 125–134