By David Langham[1]
Deputy Chief Judge
Florida Judges of Compensation Claims
Pensacola, FL
What is the point of surgery, therapy, or immobilization? Often, such treatment will be delivered for relief of symptoms. Or, just as likely, the care will be for remediation, or “removal/correction of a defect or disease.” The distinction is important in workers’ compensation. Various jurisdictions often divide medical care into two main categories: “remedial” and “palliative.” This is seemingly simple, though there is great potential for any particular treatment to evade clear categorization. Still, working definitions are worthwhile:
palliative care: treatment that relieves the symptoms of a serious illness, but does not cure the disease itself.[2]
remedial: concerned with the correction, removal, or abatement of an evil, defect, or disease.[3]
Among the remedial potentials is surgery. When surgery is performed, the outcome might be characterized as successful, or not. However, these are not binary choices, the degree of success in either removing or correcting physical dysfunction may vary depending on the patient, premorbidity, comorbidity, and more. Beyond these distinctions, “success” may lie in the eye of the beholder and may include both subjective and objective indicia. That said, the intent of surgery is clear — correction of a physical manifestation or cause with the intent to render improvement.
There has been mention of a “surgery penalty” that warrants consideration and discussion. The question is typically phrased “why is there a surgery penalty in workers’ compensation?” This references that a malady or diagnosis (herniated disc) may equate to a higher impairment rating if “unoperated” or “not surgically treated,” but the same condition results in a lower rating if surgery is performed.
The clear answer to the inquiry is that there is no such penalty. The assignment of impairment ratings is not about benefit or detriment, but merely measurement. The role of the expert physician is not a determination of what is right, fair, or equitable in gross or financial terms. The physician determines the impairment based on the coincidence of science, consensus, and equity in the sense of rational relationship between the physical outcome of any particular malady or injury compared to the constellation of other maladies.
To say that there is a “surgery penalty” overstates a negative perception. Any perception of a penalty ignores the purpose of surgery, the logic of impairment, and the sanctity of professional roles. Surgery is supposed to repair and remediate. A patient is supposed to experience increased function and decreased symptoms. There are admittedly unsuccessful surgeries. There are potentials for adjusting ratings in those instances. Nonetheless, in various cases, a patient undergoing surgical repair may be assessed with a lower rating and be paid less resulting compensation because of determinations of some regulatory or statutory construct (there is less compensation in some systems when there is a lower rating). Correspondingly, however, the surgery most often also means a better recovery or remediation, better function. There is no penalty, merely a recognition of benefit versus loss.
This is illustrated in a scenario in which a mistake occurred. The patient, with an admittedly compensable left knee injury, is scheduled for surgery to repair specific trauma, and the surgeon is authorized to also repair some preexisting degenerative changes during the surgery. Those premorbidities were not per se the employer/carrier’s responsibility, but the repairs are intended to facilitate the worker returning to function and work. The patient awakens from an uneventful and successful surgery, with degenerative changes repaired. But the successful surgery was inadvertently performed on the right knee. The surgeon discovered the error after inserting the scope in the right knee, and repairing degenerative changes as planned. But when the surgeon looked for the specific work injury, it was not found (it was in the other knee). The surgeon apologized and did not charge for the right knee surgery. The patient was pleased with the result and returned months later for the same surgeon to perform the originally planned left knee surgery, which occurred without complication. Recovery was uneventful, and by the time the case came to trial, the worker had returned to work.
The trial was about the injured worker seeking to have the employer/carrier remain responsible then for the right knee, fortuitously repaired. The legal logic was that any surgical intervention might leave a patient susceptible to future problems, complications, and require further care. The lawyer’s theory was simple – “the E/C’s agent (doctor) cut the right knee open and the E/C should be responsible for it from now on.” The case was tried basically on the information above. The medical records from the doctor and the surgery facility were placed in evidence. There were no expert opinions and no medical testimony. The injured worker did not prevail.
The injured worker in that case sought relief not through calculus, trigonometry, algebra, or scientific medical opinion. The theory was simple math: “surgery equals injury.” The lawyer brought various appellate decisions cited in support of the concept that an E/C could be held responsible for the future results of surgery. That is, if there were untoward results proven related to the right (wrong) knee surgery. The legal failure was that the attorney sought to have such results, poor ones, assumed, presumed, conjectured, and compensated.
The attorney wanted a judicial decision that surgery equals harm, damage, and injury. That said, there are many surgeries performed every day. One article in the International Journal of Surgery estimates that “Globally, a staggering 310 million major surgeries are performed each year; around 40 to 50 million in USA.”[4] If the low end of that is accurate, that is about 110,000 each day. That is just the “major” surgeries. Can we presume that all these are damaging people? That assumption would be unsupportable and preposterous.
Surgery is usually remedial. It is intended to be, and often is, successful. It treats symptoms, ameliorates structural flaws or damage, and facilitates the return of function. It is beneficial and reparative. That said, surgery is not miraculous or foolproof. Results can be less than hoped in a given case. There are patients whose outcome from surgery is a worsening of complaints, symptoms, and function. There are likely patients whose post-surgical condition is grievous or worse.
The point for the physician assigning a rating is not that poor outcomes cannot occur. They can and sometimes do. The point is that outstanding outcomes can and do also occur. The lawyer in the story above was not “wrong” in the claim for compensability under the law. Poor results, if the surgery in fact caused them, may be compensable. The flaw in logic there was in the failure to bring evidence. The missing element was any evidence from a medical professional that in that specific instance, the mistaken right knee surgery was damaging or detrimental.
This came to mind recently, when a question was raised in a public meeting regarding the idea of permanent impairment and effect of surgery. The question was, essentially, “why do the impairment guides punish a patient for having surgery.” That is a challenging question to answer because it is foundationally flawed.
The questioner’s point rests on the foundation of the misuse and misdirection that legislators and regulators have foisted upon rating guides. Essentially, laws have used impairment (loss of function in some body process) as a proxy for disability. In striving to compensate disability, and frustrated in their search for a reasonably simple, replicable, and transparent method of measure, jurisdictions have set forth formulae through which broad and arguably discriminatory, arbitrary, entitlement to benefits are determined by impairment assignments. That governments use this method does not mean impairment equates to disability. It means that the laws and lawmakers have decided to forgo the daunting task of disability determination and focused instead on the serendipitous availability of a proxy or substitute (impairment), which brings with it transparency, replicability, acceptance (consensus), and science.
Examples abound in which the higher the impairment number, the more benefits paid to the injured worker. There are many distinctions from state to state both in valuing such impairment and in striving for legislative equity or parity. There are examples of arbitrary results. but those are legal, legislative, or regulatory results which are the law of a jurisdiction, subject to its statutory and regulatory process. That such a process produces a particular figure is not the concern of the medical professional assigning a rating.
A physician might conclude that some injury(ies) should be compensated at some dollar value. With a knowledge of the jurisdiction’s law, the facts about the patient’s pre-injury earnings, and a bit of math, the physician might back out the necessary impairment to equate to the arbitrary total value first assumed or presumed. That algebra is certainly possible.
However, that exceeds the physician scope. That removes the physician from scientific arbiter of injury, remediation, and function, which is the impairment opinion. Instead, such a reverse-engineering substitutes an arbitrary and conclusory monetary value judgement. It does not result in a scientific outcome that is the appropriate role of the physician. It affords the physician a subjective perception and expression of fairness or equity that would be different with each examiner. It undermines predictability, transparency, and consistency. It undermines the science and consensus elements of medicine.
Admittedly, when the physician sticks to the science, process, and guides, there may nonetheless be arbitrary outcomes. Impairment guides are that, guides. They are scientific, but at time militate to consensus rather than science. They are crafted and edited by humans, and will thus be imperfect products from imperfect beings. Still, those result not from subjective intercession, but from the operation of the law. If that law is unbalanced or inhospitable, it is for the legislature or regulator to change.
The critic in that meeting was troubled that when a patient undergoes surgery, there is a probability that the impairment rating will be less. That is, surgery will equal remediation (to some degree) and thus increased function. The treatment will result in the intended effect. The care will promote recovery. The residual disfunction, the impairment, will be less. The logic of this outcome is readily apparent.
The critic mislabeled the result as a “penalty.” No patient is penalized by successful medical care. This is true regardless of modality, be it the most basic or most complex. The patient who receives relief, return of function, and recovery is not “penalized.” In fact, that patient is greatly benefitted, though he or she may receive less monetary compensation.
The major purpose of medical care is remediation of function and amelioration of symptoms. The major purpose of workers’ compensation is restoration of function and return to activity and work. There is no “penalty” in being restored and repaired. The degree of impairment is equated to some compensation for loss. That statutory conversion is at least partially arbitrary and statutory. The workers’ compensation systems are not providing “damages” for injury, pain, suffering, and other loss. These laws provide for compensation for loss. They are specific in this regard. When loss is decreased through repair/remediation, it is logical that compensation may likewise decrease. Whether that is logical or not is a decision for the legislators or regulators. For the physician, the logic is simply when there is remediation and restoration of function, the loss is less and the impairment is less.
Thus, if a patient has a surgery and therefore suffers less loss, then there is less workers’ compensation. And it must be remembered, there is also more rapid return to work and other function.
In this regard, it has been noted often that professional athletes have had seemingly miraculous recoveries. They often benefit from their excellent fitness and hard pre-injury training. They also may have different motivations and abilities in the wake of injury. Even so, their recoveries are often dependent on surgical intervention. Is the player benefitted by a denial of surgery, to preserve dysfunction and prolong recuperation or convalescence? No, the player benefits, as do all injured workers, from prompt, careful, compassionate, and thorough care. That may decrease convalescence, but no one should argue that the player is penalized by returning to function and the field. Returning to function and productivity is the reason for care and treatment.
The evaluator should remain in the lane defined in the applicable guides. The physical injury, diagnosis, and recovery should be considered. The monetary outcome directed by the appropriate rating is not the scientist’s concern or consideration. That outcome, equity, fairness, and compensation is for the law and regulators. The doctor sticks to the science and consensus of the guides and determines impairment. In doing so, a consideration may be whether remediation, the surgery, occurred. The intent and the effect both bear consideration, but the consensus stands that surgery generally improves function and remediates loss. Less permanent impact means less impairment. That is not a “surgery penalty,” it is a logical and simple reality.
[1] David Langham is the Florida Deputy Chief Judge of Compensation Claims. He has published four books, dozens of articles, hundreds of blog posts and delivered hundreds of lectures on the law, process, and judicial ethics. Although he serves as an advisor to the AMA Guides to Permanent Impairment Editorial Panel, and is involved with various workers’ compensation professional organizations, intuitions, and professions, the views expressed here are his own and do not represent any employer, organization, or affiliation.
[2] Palliative, Oxford Reference, https://www.oxfordreference.com/display/10.1093/oi/authority.20110803100302553.
[3] Remedial, Meriam Webster, https://www.merriam-webster.com/dictionary/remedial#medicalDictionary.
[4] Geoffrey P. Dobson, Trauma of Major Surgery: A Global Problem that is not Going Away, International Journal of Surgery, 2020 Sep; 81: 47–54.
