Here is a question someone sent to me last week:
In 2011, my client was rear-ended and had lumbar surgery with hardware implanted. The surgery failed. I have PCP records for 5 years prior to this crash where every month she complained of low back pain that ranges from mild to severe. Most times it was rated a moderate to severe. In those 5 years my client never complained of neck pain. In about mid 2017, her PCP began to document opiate dependence and opiate induced disorder, yet continues to prescribe Norco 325mg 4 times per day. In this new crash her back pain has worsened, shooting pain is more frequent. In addition, she now also has severe neck pain. There are findings on her cervical MRI, so her neurosurgeon recommended an ACDF at C3- C4. Her neck pain is worse than back pain on most days.
Can you please help me? I learned from you to embrace the prior injury, I am not afraid of that. What worries me is the alleged opiate dependence. Is this really a PROBLEM? Is there a way to put it into context, explain it, so it is NOT a problem. How do I own up to this fact in a way that my client won’t be frowned upon?
Here was my response:
Start with my “as is justice” framework for preexisting conditions/ aggravation cases: We will prove to you Ms. Jones qualifies for the protections of this law. We will establish she did have a prior condition. (Then, add the dual concepts of “coping” and “reserves”):
The more reserves people have, the better equipped they are to cope with burdens. The less they have, the higher the impact of added burdens. Unfortunately, Ms. Jones’ reserves were depleted before this crash. She had significant back problems before the fallout from this crash was heaped on top of the load she was already carrying. Her reserves were significantly depleted at the time of this crash. The best proof of that comes from the fact she had become dependent on opioids prescribed by her doctor to help her cope with low back pain.
The good news was the upper half of her spine was healthy. Half was depleted, half was in reserve. This crash took away the healthy half. She was the last person who needed to have a neck injury thrust into her life unnaturally, by no fault of her own. Now her whole spine is a source of pain. In fact, her neck is even more of a problem than the back ever was before. To make matters worse, her low back was made even worse by the crash.
If she had a healthy low back to start with, she would have been in a much better position to cope with this neck injury. The fact she needed powerful prescription pain meds to maintain her quality of life tells us Ms. Jones didn’t have much left in reserve to cope with this new and worse pain. Under the circumstances, the harm caused by this crash has had a profound impact on Ms. Jones, more so than it would on someone who did not have that level of low back pain to deal with already.