The Race to Recommend Spinal Cord Stimulators

Medicare Set-Aside Blog on June 8, 2012
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Although I have apparently established myself as highly opinionated about all that is work comp, I try to limit my posts to things that I’ve personally witnessed in the millions (yes millions, given that some claims show up via UPS in multiple boxes) of pages of medical reports that I’ve personally read over the past 12 years (add 7 more if you count all the structured settlements I witnessed prior to that) originating from claims in 49 states (don’t worry, we have a lead in that last state), Guam and Puerto Rico. While I’ve already voiced my opinion about physician abuse in the prescribing of opioids (greatly supported by the way in the recent NCCI Narcotics Report and extremely prominent in the recent Risk Scenario presented by Risk & Insurance), I’ve always been rather disturbed by the frequency of spinal cord stimulator (SCS) recommendations found in work comp medical records. Inserting a plastic box into the human body with electrical leads that could migrate and cause all kinds of other nasty problems, with a battery that needs to be replaced every 5 to 7 years, is neither very appealing nor does it appear only in life or death situations, and on top of that, it seems to prove ineffective more often than not. But before I mount my high horse and start ranting about the medical wrongs I perceive in the world, let me first say that my views are skewed by the fact that I generally only see high dollar claims that hope to settle. I have no doubt there are legitimate injuries resulting in genuine pain which good doctors attempt to treat – that is why the system is there and I’m sure it works because I don’t see those claims. But since I only typically see the claims that are the problems with the system, that’s all you’re going to get here.

More often than not, the routine back injury that goes wrong starts with Vicodin or Percocet within the first week prescribed with rest. On follow-up, the claimant claims continued pain so the narcotic is filled for a month along with PT. Maybe one to three PT visits are attempted before the claimant returns to the physician complaining that the PT aggravated the pain, leading to another increase in the prescription and surgery discussions begin. Many will go down the failed back syndrome path and have anywhere from one to three surgeries that seem to create real pain because you can’t surgically fix something that doesn’t physically exist (much like you can’t legislate fixes to a voluntary federal agency program that is not governed by statute or regulation, but I digress). Others will refuse, having a preference for medication management. Typically, this is the point where the spinal cord stimulators and intrathecal pumps come into play. I have seen the recommendations start as early as months two to three. Interestingly, in most cases, the recommendation will appear in every physician report for years as those physicians never give up. Either they genuinely believe that SCSs are effective, or they have an ulterior motive. Well, perhaps we have found the motivation in California.

The California Workers’ Compensation Institute recently released analysis requested by the Senate Committee on Labor and Industrial Relations that may explain some motivations. Under the current California Workers’ Compensation Official Medical Fee Schedule, hospitals are paid 120% of the Medicare rate for specific types of back surgeries performed on injured workers, plus additional fees for the hardware, even though the Medicare rate already includes surgical instrumentation costs. There are 14 back surgery diagnostic categories that are eligible for such a pass-through fee, so it is not just SCSs in question here. The CWCI estimates for 2010 show an average of $20,137 added to 3,350 claims totaling nearly $67.5 million for the year. Fortunately for carriers writing in the state, SB 959 (a bill that will repeal these pass-through payments) was sent to the Assembly for consideration last week, so maybe there is some hope on the horizon. Now to figure out the motivation in all the other states…