Dr. Robert A. Bailey
DC, DADFP, CICE, CIRE
812-882-4108 or drbailey@drrobertbailey.com

Low back pain and its complications is a pandemic condition that affects millions of people each year, and the costs associated with it has risen into the billions. In fact, a recent study on the prevalence of musculoskeletal disorders in the U.S. estimated that 40 million Americans aged 20-64 will experience "frequent" low back pain (LBP), with 15% suffering from LBP lasting up to two weeks at a time! (1) Additionally, an estimated 150 million workdays are lost each year because of back pain, accounting for billions of dollars each year in lost wages and workers' compensation claims. (2) If that were not enough, the Occupational Safety and Health Administration reports that 1.8 million work-related musculoskeletal disorders are recorded every year. These on-the-job injuries including back strains result in a staggering $15-20 billion in workers' compensation costs alone. (3)

The challenge is in finding experts to investigate and understand the complexities of work-related back injury cases from causation to chronic pain behaviors. In fact, many who work in the med-legal arena have to deal with complex challenges brought fourth in workers' compensation claims, which include whether there has been a misrepresentation of the injuries claimed. All too often, the causation of a work-related injury as it pertains to a work-related activity is the primary need for investigation. Further questions may arise that involve inappropriate medical care, iatrogenic disability, and fraud and abuse issues. These situations may arise as a result of potential monetary gain by the physician or the alleged injured worker or as a result of incompetent case management skills. Still, there can be confusion over medicolegal concepts and terminology that affect the outcome of a case.

Many individuals with work-related back injuries seek care within the "Medical Model", with treatment including rest, anti-inflammatories, muscle relaxants and physical therapy. However, as a result of an increasing recognition of the cost-effectiveness and non-invasive approach to treatment, other individuals seek out chiropractic care as the portal of entry in their treatment. Still, others choose chiropractic care as a result of their lack of progress within the medical model. When people treat within the "Chiropractic Model", many attorneys, judges, insurers and workers' compensation commissioners often have questions concerning chiropractic evaluation, examination and case management. This is because many of them do not understand the function that chiropractic performs in the management of musculoskeletal problems in the workers' compensation arena. With chiropractic intervention increasing, it is imperative to educate everyone involved in chiropractic examination and case management.

In response to the med-legal community's search for qualified experts in chiropractic medicine, a new breed of expert has stepped up to meet the challenge. This innovative expert is the certified forensic chiropractic examiner. By definition, forensic chiropractic is a science and methodology that deals with the relation and application of chiropractic and scientific facts to legal problems. Through their extensive training, a forensic chiropractic examiner possesses specialized knowledge to assist the trier of fact with issues such as diagnosis, prognosis, causation, impairment and disability. Forensic chiropractic examiners seek only the truth by conducting thorough examinations, evaluation and inquiries, and report their findings in an unbiased and objective manner that any legal nurse consultant, attorney, judge or juror should understand.

As a result of the issues raised in the Daubert case (Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 1993), the Supreme Court held that the trial court is the so-called "gatekeeper" under Rule 702. According to Rule 702, "If scientific, technical, or other specialized knowledge will assist the trier of fact (judge/gatekeeper) to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion or otherwise." The expert "must ensure that any and all scientific testimony or evidence is not only relevant, but reliable," and that there must be "grounding in the methods and procedures." The knowledge "must be derived by the scientific method" to establish reliability, and the knowledge must be relevant to the facts of the case. Thus, as a result of Rule 702, the chiropractic expert must be qualified by their knowledge, skill, expertise, training and education to offer testimony about their opinions. (4, 5)

The skill sets of a forensic chiropractic examiner includes performing independent medical examinations, document and diagnostic review, evaluation for work functional capacities, impairment ratings, scientific peer review of literature, analysis of standards of care and investigation of fraudulent billing activities. The primary work of the forensic chiropractic examiner includes assisting the trier of fact before a case enters the court. The expert opinion of the forensic chiropractor is based on scientific or document investigation, not circumstantial evidence or the unreliable testimony of witnesses (junk science). It is imperative that the chiropractic examiner have a concrete understanding of clinical skills to perform a thorough orthopedic and neurological examination, while integrating medically accepted references and algorithms (6-10). With this knowledge and skill level, the chiropractic forensic examiner can contribute to procedural processes by using science in the search for facts in federal, civil and regulatory matters.

Today, board certified chiropractic forensic examiners have completed extensive training and are certified by the American Board of Forensic Professionals (ABFP) which is the certifying board of the College on Forensic Sciences (CFS). The ABFP is the only national chiropractic organization, which operates and administers board certification (300+ hours for diplomate) and re-certification for forensics, impairment rating, and Department of Transportation (DOT) programs. The ABFP is a member of the National Organization for Competency Assurance (NOCA) and is National Commission of Credentialing Agencies (NCCA) compliant. The College on Forensic Sciences is a not-for-profit organization, which established educational and training parameters for the practice of forensics. Finally, the College on Forensic Sciences is a subsidiary of the Council on Chiropractic Orthopedics (CCO) of the American Chiropractic Association (ACA).

There are a variety of reasons a legal nurse consultant should consider using the expertise of a chiropractic forensic examiner in the review of workers' compensation claims. The first and most paramount reason would be to resolve conflict between the alleged injured individual and their employer. This may take on several different facets of the claim such as defining diagnoses, rendering opinions on appropriateness of care and clinical issues, assessing causation and evaluating prognosis. Further, if you are unfamiliar with chiropractic claims, a forensic chiropractor can determine if the subjective complaints are supported by the objective findings. Lastly, the forensic chiropractor can be used to offer recommendations surrounding maximum medical improvement, permanency and functional work capacity.

The next time you encounter a work-related case that has utilized chiropractic care as the primary source of case management consider the services of a chiropractic forensic examination.

References:

1. Nyiendo J, Haas M, Goodwin P. Patient characteristics, practice activities, and one-month outcomes for chronic, recurrent low-back pain treated by chiropractors and family medical physicians: a practice-based feasibility study. Journal of Manipulative and Physiological Therapeutics, May 2000: Vol. 23, No. 4, pp239-45.
2. Tate RB, Yassi A, Cooper J. Predictors of time loss after back injury in nurses. Spine, Sept. 15, 1999: Vol. 24, No. 18, pp1930-36.
3. Ergonomics Program. Occupational Safety and Health Administration (OSHA), Department of Labor. November 23, 1999.
4. Expert Evidence: A Practitioner's Guide to Law Science, and the FJC Manual, St. Paul, Minnesota, 2000. West Group
5. Federal Judicial Center 1994, Reference Manual on Scientific Evidence. 1995, Clark Boardman Callaghan, a division of Thomson Legal Publishing, Inc.
6. Bickley LS. Bates Guide to Physical Examination and History Taking, seventh edition, Lippincott, 1999.
7. Hoppenfeld S. Physical Examination of The Spine and Extremities, Appleton & Lange, 1976.
8. Evan RC. Illustrated Orthopedic Physical Assessment, second edition. Mosby-Year Book, Inc., 2001.
9. May VR, Martelli MF. Guide to Functional Capacity Evaluation with Impairment Rating Applications, Richmond, Virginia, The National Association of Disability Evaluating Professionals Publications, 1999.
10. Cocchiarella L. Anderson GBJ. Guides to the Evaluation of Permanent Impairment, fifth edition, Chicago, Ill, American Medical Association, 2001.