David B. Torrey

BOOK REVIEW

STABBED IN THE BACK:
CONFRONTING BACK PAIN
IN AN OVERTREATED SOCIETY
by Nortin M. Hadler, M.D.
University of North Carolina Press. 2009. 204 pp.

“This evil, wrong-minded, illness-inducing maze that masquerades as social insurance ….”

I.

This characterization of workers’ compensation, found in Dr. Nortin Hadler’s book Stabbed in the Back, is, of course, an affront. It’s also disconcerting to those who work in the system, and believe that some good is done when it works properly.

On the other hand, Dr. Hadler has expressed his doubts about the system for decades. Reviewing his textbook on musculoskeletal ailments some fifteen years ago, Professor John Burton warned the compensation community that Hadler’s “views on the causes, treatment, and compensation of regional disorders will annoy most of the intended audience.”

Dr. Hadler’s opinions are strongly held, and they can indeed be annoying. Still, all members of the workers’ compensation community would do well to be familiar with the themes of Dr. Hadler’s book. Here I will try to summarize those themes and explain why the author believes that workers’ compensation is so dysfunctional.

I will also identify the points in the book that directly address the issues we see in cases both before and during litigation. To the extent these will work as fodder for cross-examination of medical experts, they are chiefly for the defense.

Hadler is, however, no mouthpiece for insurance companies and the defense – he despises, notably, the institution of the IME, and he would abolish comp and group health insurance in favor of a single payer system. Still, his positions, viewed in isolation, are consistently cynical on the pivotal litigation issues of diagnosis, work causation, and duration of disability. A lawyer who is seeking to challenge a back expert’s opinion on these issues may profit by considering Dr. Hadler’s opinions and the medical literature that he cites in support of the same.

Dr. Hadler would likely take a dim view of this approach to his book, but that’s a hazard of publishing for a lay audience.

II.

Nortin Hadler is a rheumatologist who has had a career in academic medicine at the University of North Carolina-Chapel Hill, where he is professor of microbiology and immunology. He has long specialized in occupational medicine, focusing particularly on the back. He is the author of the manual, Occupational Musculoskeletal Disorders. He is well published in the medical literature. I first recall seeing his name, and reading one of his articles, when Professor Burton published Hadler’s dissenting view relative to work causation and carpal tunnel syndrome in the LRP Workers’ Compensation Yearbook.

Recently, he has published three books for popular audiences, the third of which, Stabbed in the Back, is the book under consideration here. The first is The Last Well Person: How to Stay Well Despite the Health System (2004), and the second is Worried Sick: A Prescription for Health in an Overtreated America (2008). All three are largely drawn from his many academic articles and his textbook. All, similarly, address in part workers’ compensation and back pain, and are worth careful reading and scrutiny. However, considerable thematic overlap, and even word-for-word reproduction, exist between the three books. Thus, the workers’ compensation lawyer with limited time will probably want to stick to Stabbed in the Back.

All three books have two themes. The first is that many conditions that used to be considered part of the living – and aging – process, have become “medicalized,” and that individuals suffering from such conditions are inappropriately treated by doctors. A second theme is that Americans over-treat for their medical problems, real or imagined. Major players in this dysfunctional system are in fact his fellow physicians, who prescribe medications and procedures that have not been proven helpful via scientific experiment.

In this regard, Hadler’s critical comments about workers’ compensation are foreshadowed in his second book, where he offers harsh and even damning comments about his physician colleagues. He condemns, in particular, invasive cardiologists and cardiac surgeons. He charges that these doctors are ethically compromised in their prescriptions of tens of thousands of invasive procedures – bypass surgery, angioplasty, stenting – that have not been shown efficacious. Hadler submits that “interventional cardiology and cardiovascular surgery have written one of the bleakest chapters in the history of Western Medicine.” In his first and second books, he also questions the efficacy of standard treatments and prescriptions for knee pain, diabetes, high blood pressure, cholesterol problems, colon health, and breast and prostate cancer.

The primacy of scientific experiment in the reasonableness and necessity analysis of treatment is central to Hadler’s various critiques. If a random controlled trial of a medication or procedure has not proven that a substantial cohort of patients will benefit from a medication or procedure, the physician has no justification for prescribing the same. Gestalt, “clinical judgment,” and medical consensus are unacceptable and unsatisfactory bases for medical diagnosis and treatment. He prefers “evidence-based medicine” over “eminence-based medicine.”

Furthermore, the patient has no business agreeing to such treatment, and a patient acts in an uncivic manner in incurring the expense and raising everyone’s insurance premiums by doing so.

This is the evidence-based medicine movement on steroids.

And this type of thinking is brought, with a vengeance, to his latest book on back pain.

III.

The thesis of Stabbed in the Back? I will try to summarize it in this section, and briefly answer why Hadler charges that workers’ compensation is evil, wrong-minded, and illness-inducing.

Non-trauma induced back pain in adults is a normal part of living and aging. Individuals who do not have episodes of back pain are in fact abnormal. Regional backache “is a frequent, ubiquitous, and intermittent predicament of life.” Because of various historical, social, and even commercial forces, however, “regional backache” (lumbago and the like) and the related “persistent widespread pain” (fibromyalgia), have become medicalized and thought of as pathologies that must be treated aggressively. On frequent occasions, further, these fictional diagnoses are the subject of a permanent disability award, or the like, via SSI, SSDI, or workers’ compensation.

All of this, in his view, is egregious error.

Hadler asserts that individuals who suffer from non-trauma induced low back pain and fibromyalgia simply can’t cope with other stresses in their lives, and the pain is in fact a “surrogate” for these hypochondriacs.

The physician’s proper role should be to counsel the patient and reassure him that he has no pathology. In some cases, perhaps one chiropractic visit would be acceptable, and non-steroidal anti-inflammatories may be efficacious. But this treatment approach does not usually unfold. Instead, physicians, drug companies, and medical device makers come up with all sorts of treatments that have been failures, or not shown scientifically to have provided a cure. Doctors know this, yet through incompetence or greed keep up the treatment, or the search for a new one. All of this victimizes the feckless patient and, at the same time, needlessly raises healthcare costs.

The reader of all three books will never forget: Dr. Hadler radically challenges the idea that herniated discs, or other pathologies surrounding the disc, are responsible for non-trauma induced back pain:

"I have no problem questioning the credo [that discectomy, and other treatments aimed at the disc, is curative of low back pain.] As we noted earlier, there is no pathology at the disc that is specific or sensitive for regional back pain. No matter what the disc looks like, a person can be asymptomatic and usually is. No one has a reliable and valid way to distinguish the disc that is hurting, despite generations of inventiveness…." (Stabbed in the Back, p.83).

In any event, the “body politic” compounds the situation by allowing disability compensation for these conditions. To gain, or retain, his award for regional back pain or fibromyalgia, the patient must continually try to prove he is hurting, and hence he can never get better. On this point, Dr. Hadler has an admonition that he brings forth in all three books, and which can be found in his writing for at least twenty years: “No one can get well if he or she has to prove continued illness in order to continue to receive benefits! To the contrary, they are at risk of getting sicker….” Thus the “illness-inducing” charge of the initial quote.

Workers’ compensation, in particular, is the “wrong-minded” system that caps off the whole mess, by arbitrarily assigning to the sufferer, at a fictional “MMI,” an unscientific permanent partial disability award for a condition which was, in the first place, largely imagined. Dr. Hadler is a long-time foe, accordingly, of impairment-based disability as essentially codified in the AMA Guides.

The “evil” moniker? This harsh adjective is apparently earned because one study with which Hadler was participant showed that African-Americans in “one jurisdiction” of Missouri received less in PPD awards than whites for similar injuries.

IV.

I sought out Stabbed in the Back after hearing it recommended during a lecture by a disciple of Hadler, Dr. Robert Barth. Barth, a fierce advocate of the evidence-based medicine movement, declared that Dr. Hadler was the “greatest medical thinker writing in the country today.” About that claim I am not sure, but, as posited at the outset, I can still recommend this book to lawyers, judges, and others in the workers’ compensation community.

The book is valuable in setting forth in one place, and contextualizing, the many issues that we in the workers’ compensation field deal with every day. The critical, ubiquitous issues are, of course, causation, accuracy of diagnosis, disability duration, and employee credibility. Critical analyses of these elements, particularly by dissenting voices, tend to blow by quickly during CLE power-points and IME cross-examination sessions. Stabbed in the Back treats all these issues meticulously. Dr. Hadler’s assertions are heavily footnoted, and they are discussed with intelligence, if not without cynicism and occasional bite.

Hadler, who is of a highly philosophical bent, also departs from these medical issues to treat the psychosocial aspects of low back disability. As lawyers for both claimant and employer know, no claim can be assessed accurately without considering such aspects. Hadler nicely sets forth the conceptual ideas of “social construction,” “medicalization,” and illness behavior that must be understood to appreciate how psychosocial factors influence disability.

Perhaps the most intriguing chapter is “Invasion of the Spine Surgeons.” In this chapter, nicely illustrated with basic anatomical figures, Hadler runs through all of the various procedures that we see the claimants undergo. Hadler asserts, however, that scientific evidence does not exist to support the idea that surgery is effective for regional back pain. (He will admit, however, that evidence exists to support the idea that surgery can be effective for relief of radicular symptoms.) Of course, Dr. Hadler questions the received wisdom that a disc is, in fact, a pain generator. “There is no pathology,” he insists, “at the disc that is specific or sensitive for regional back pain.” Thus, injecting the disc, removing the disc (percutaneously or otherwise), fusing the spine, and inserting artificial discs, are all lacking scientific support.

Also of interest is Hadler’s discussion of chiropractic. He provides a brief history of the profession, and he makes the perhaps surprising acknowledgement that extremely limited manipulation may be effective to treat regional back pain. In general, however, he is a doubter, suspecting that the purported success of chiropractic is the placebo-like attentiveness of the chiropractor himself. Hadler also explains that what chiropractors describe as subluxations are “imaginary” and have nothing to do with the subluxations described by allopathic physicians. He explains what is happening when the chiropractor “cracks” a patient’s back, but he ultimately expresses dismay at the idea that “anyone can imagine that such an event can salve asthma, or diabetes, or the like ….”

Hadler believes that the system is inherently corrupt because of the perverse motivations that attend the insurance carrier desiring to make a profit from its insuring enterprise.

Dr. Hadler also despises the disability determination process, that is, the process of determining MMI and the assignment of a permanent partial disability based on the AMA Guides. However, he portrays every state system as featuring such determinations, when this is not true. Pennsylvania, of course, still has no such system. One senses that Dr. Hadler knows this – that is, that wage-loss states exist – yet he is nevertheless willing to paint with a broad brush and condemn the entire compensation regime as “evil and wrong-minded.” One would expect an applied scientist such as Hadler to apply some evidence-based social studies before articulating such a radical assertion.

Hadler is certainly correct, however, that the PPD determination process is based on a fiction. The AMA Guides is more legal manual than medical treatise, and the percentages established in the book, however thoughtfully conceived, are hardly scientific. This angers Dr. Hadler. Still, the awards injured workers received based on permanent impairment, as proxies for future wage loss, are no more fanciful than the damage settlements and awards received (sometimes) by tort victims. Most lawyers are acquainted with scheduled losses, formulas, and the vagaries of damages, and are constitutionally unmoved by the PPD fiction.

Hadler is also surely correct that in some systems the long wait to reach MMI, and get the most generous PPD award, produces illness behaviors and a lot of consequent misery. While in Pennsylvania we do not have such a scheme, TTD is payable indefinitely, and TPD is payable for up to 500 weeks. We often speak of long-term claimants being “trapped in the system,” and claimants regularly state that the reason they are settling their cases is that they are tired of being on workers’ compensation and “want to get on with their lives.” A benefit of allowing the compromise settlement, as mediators always remind me, is to allow the injured worker to “escape the system.”

Thus, at least in Pennsylvania, candid members of the workers’ compensation community are already speaking Hadler’s language on this point.

A disconnect of sorts exists between Hadler’s subject and the Pennsylvania scene. Dr. Hadler’s target is non-traumatic back pain, also referred to as regional back pain, and the related diagnosis of fibromyalgia. He does not, however, address “aggravation of preexisting arthritis,” the diagnosis, under current Pennsylvania practice, usually accorded non-specific disabling chronic back pain. Fibromyalgia, in contrast, is rarely heard of in the present day in Pennsylvania workers’ compensation hearings.

V.

Get this book, read it, learn a lot – and be annoyed. But be forewarned: Dr. Hadler’s treatise on back injuries and workers’ compensation is attended by more than a frisson of meanness. Isn’t it kind of harsh, after all, to dismiss the complaints of back pain sufferers, tell them to “cope,” to “get over it,” and get back to life and work?

Some, indeed, have charged that Dr. Hadler lacks compassion. He is, however, ready to answer such a charge. “Doubts are more cruel than the worst truths,” he quips. In other words, better to counsel the regional back pain sufferer that his problems are in his head, than to curse him with a speculative diagnosis and let him enter workers’ compensation’s Kafkaesque “vortex of disability determination.”