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Don’t Lose Sight of What You Cannot See - A Roadmap for Demonstrating Hidden Injury of the Neck & Spine

Presented at the Western Trial Lawyers Annual Conference
Maui, Hawaii, May, 2014


            National Highway Transportation Safety Administration data estimates that, on average, 2.35 million people are injured or disabled in car accidents in the United States each year.  It naturally follows that the spectrum of injury resulting from such accidents is broad.  As lawyers, we generally develop a degree of competence in evaluating cases on the basis of injury type, severity of injury, fault and so on.  Nonetheless, situated somewhere along the injury spectrum is one that has been both elusive and controversial and is the subject of this writing.  The goal of this author is to raise an awareness among lawyers and to impart a methodology, a roadmap of sorts, for recognizing and managing injuries to the zygapophysial, or facet, joints of the spinal column.  Facet joint injury, like most any other type of injury, can lead to complaints of chronic pain including headache, neck pain and back pain, all of which are types of pain routinely diagnosed and treated by healthcare professionals every day.  A distinguishing factor in the determination of facet joint injury however, relates to the manner by which the injury is diagnosed. 
As lawyers, it is critical to recognize and understand the distinguishing features of facet joint injury and to have the proper roadmap for achieving a successful outcome for clients.  That journey begins with a brief refresher of the anatomy of the spinal column.        

Spinal Mechanics
Somewhere along our educational continuum, we’ve all learned that the spinal column is comprised of a series of bony processes which we know as vertebrae. The human spinal column is comprised of 7 cervical vertebrae, 12 thoracic vertebrae, 5 lumbar, 5 sacral and 4 coccygeal vertebrae, for a total of thirty-three. The first 24 of the 33 vertebrae are stacked one upon another.  The 5 sacral vertebrae begin as individual vertebrae but begin to fuse into a single bony structure around age sixteen.  The fusion is usually completed by age thirty-four.  The coccygeal vertebrae form what is commonly known as the tailbone. Together with other types of tissue, these bones form the vertical column of bone that allows us to stand upright and, most importantly, protects the spinal cord and the spinal nerves which exit the spinal column at all levels. Separating the first 24 vertebrae is a spongy, disk-shaped material that acts as a shock absorber for the various forces encountered by our spinal column as we go about our everyday lives.  At the same time, the disks prevent the bony vertebrae from grinding against each other and allow for an exit path for spinal nerves that’s smooth and without impingement.
With that in mind, it becomes easier to visualize the manner by which our vertebrae articulate. Clearly, the human spinal column is a rigid structure and the rigidity comes about by the four connections (two upper, two lower) that exist between each of our vertebrae.  The upper and lower connection points between the stacked vertebrae form what are known as the zygapophysial, or facet, joints.
Function of the Facet Joints

            Facet joints are true synovial joints in that they are padded by a synovial membrane, contain synovial fluid which lubricates the joint and are covered by a strong, yet thin, cartilage membrane.  Facet joints facilitate the spinal column’s ability to bend, twist, flex and extend in different directions.  While the joints enable movement, they also restrict excess movement such as hyperextension/flexion, commonly known as whiplash.            By their very nature, facet joints are prone to wear-and-tear and the same types of degenerative disease that occurs in everyone as we age.  Unfortunately, facet joints are also susceptible to trauma such as that which comes about when the forces of an accident cause the spinal column to move in unnatural ways. Trauma to these joints can cause an inflammatory process which results in pain not only in the facet joint but also pain that can be elicited from the muscle and other tissues surrounding the facet joints. Further, depending on the severity of injury, either inflammation or deformity of the joint itself can result in a narrowing of the canal through which nerve roots pass as they exit the central spinal canal.  Such narrowing can impinge upon the nerve and cause severe and oftentimes radiating pain. 
Diagnosing Facet Joint Injury

            Properly diagnosing a facet joint injury is of paramount importance to your client’s damages claim. The steps taken to arrive at a diagnosis of facet joint injury will almost certainly be challenged by the defense, and for good reason.  The facet joints are not only small but are encapsulated in dense connective tissue and are covered by multiple layers of muscle and other soft tissue. As a result, facet joint injury does not result in visible pathology by means of traditional imaging studies.  Stated another way, there will be no directly objective evidence of facet joint injury.  It is this fact that any competent defense attorney will exploit, even when treatment is successful.  Being unprepared to respond can eviscerate a plaintiff’s claim.   Accordingly, to arrive at a diagnosis of facet joint injury, it becomes necessary to rule out the objectively recognizable, well documented potential
sources of a client’s pain.  
Nikolai Bogduk, MD, PhD is among the leading authorities in the diagnosis and
treatment of facet joint injury.  In his early research, Dr. Bogduk studied the physics of auto accidents hoping to associate accident mechanics with predictable severity of injury in an effort to identify the appropriate medical technology and techniques for diagnosing facet joint injury. Dr. Bogduk’s conclusion was not groundbreaking science though it holds true to this day. He concluded that: “modern imaging techniques do not provide the resolution necessary to detect the types of lesions predicted by biomechanics studies.”1   
Bogduk and his colleagues from the fields of orthopedic surgery, neurosurgery, neurology and physiatry (pain medicine), continued their efforts and ultimately arrived at what is viewed as today’s “gold standard” for the diagnosis of facet joint injury. First, however, as eluded to earlier, the manner by which one gets to the “gold standard”, all other potential sources of pain must be ruled out.  Outlined below is a typical course of treatment for pain when the severity of injury was moderate and the source of ongoing pain is undetermined.

  1. Monthly or bi-monthly follow-up with primary care doctor;
  2. 6 week course of physical therapy (longer for severe injury);
  3. Course of physical therapy may be repeated;
  4. Referral to an orthopedic surgeon, neurosurgeon or both;
  5. Ascertain whether a disc or other spinal process is implicated in the pain;
  6. MRI Scan is negative and no suspicion of internal disc disruption;
  7. May attempt epidural injection resulting in some or no relief from pain;
  8. Referred back to primary care doctor;
  9. Referral to a pain management specialist (Physiatrist);
  10. Physiatrist may repeat a course of physical therapy and/or epidural injections.  

            At this point, your client will have seen anywhere from 4-5, or more, physicians or adjunct health providers, none of whom will have successfully resolved your client’s pain. The timeline associated with the course of “treatment” outlined above can be anywhere from 6-9 months, or longer, but is largely dependent on the number of repeat courses of physical therapy ordered; multiple attempts at epidural injection, etc.  It should be noted that pain arising from injury to a facet joint will not respond to any amount of physical therapy.  The attorney must take note of this outcome when the client diligently complied with treatment. 
In 2009, Nikolai Bogduk, MD, PhD and his team wrote that to reach a proper diagnosis of facet joint injury, “it must be shown that the target nerves are responsible for the patient’s pain.”2 To do so, the client’s physician should recommend medial branch blocks of the dorsal rami of the spinal nerves that supply the putative painful facet joint or joints; this is done to determine whether the facet joints are the cause of pain.  Following injection, if the patient reports 50% or greater relief, on two separate occasions, the diagnosis is complete and treatment should ensue.
Treatment for Chronic Pain Associated with Facet Joint Injury

            Fortunately, there is far less controversy, if any, as to the recommended treatment for facet joint injury. Radiofrequency neurotomy, sometimes also called rhizotomy, is an outpatient procedure whereby the medial branch nerve of the dorsal ramus is heated to roughly 176 degrees, effectively coagulating the nerve and rendering it unable to transmit a pain signal to the brain. At each joint two, and sometimes three, nerves are heated in this way. Radiofrequency neurotomy has been shown to provide substantial relief for approximately 8 to 12 months, or longer, and can be repeated indefinitely as needed.
By definition, medial branch neurotomy is not a permanent cure for pain. It is natural, and to be expected, that the coagulated nerve will regenerate. Over time, the affected nerves will regenerate and the pain will return at which time the procedure can be repeated, and relief reinstated. 
Cervical radiofrequency neurotomy, also known as cervical rhizotomy, has been shown to be “the only therapeutic procedure for pain stemming from the cervical zygapophysial [facet] joints.”3 Similarly, for pain stemming from the lower back, lumbar radiofrequency neurotomy may be performed. On occasion, long-term treatment with medication may be indicated and although rare, anterior cervical or lumbar diskectomy and fusion may become necessary.4
Cost of Treatment
As noted above, radiofrequency neurotomy is an outpatient procedure.  The cost of treatment is widely varied by one’s geographic location.  In the city and county of San Francisco, the experience of this author is that the per procedure costs run anywhere from $5,000 to $35,000 dollars depending on the number of medial nerves being treated.
Facet joint injury has no visible pathology.  It is critical, when preparing your case, that the injury be confirmed through the accepted diagnostic procedure. While any surgical procedure carries inherent risk, radiofrequency neurotomy is considered a safe treatment, an effective treatment and one that may be repeated as needed for the client’s lifetime and thus should become a key issue when arguing for lifetime care.



1.            Bogduk, N. M. (2006). Conjoint Professor of Pain Medicine, University of             Newcastle, Newcastle Bone and Joint Institute, Royal Newcastle Centre,             Newcastle, Australia. In F. Cervero, Whiplash Injury: Handbook of Clinical             Neurology, Vol. 81 (p. Ch. 53). Amsterdam: Elsevier.

2.            Bogduk, N. M. (2009, Vol. 10, Issue 6). A Narrative Review of Lumbar Medial             Branch Neurotomy for the Treatment of Back Pain. Pain Medicine, 1035-            45.

3.            Barnsley, Lee, Percutaneous Radiofrequency Neurotomy for Chronic Neck Pain:                             Outcomes in a Series of Consecutive Patients; Pain Medicine, Vol. 6,                                     No.4, 282-286 (2005)

4.            Jerome Schofferman, M. N. (2007). Chronic Whiplash and Whiplash-Associated             Disorders: An Evidence-Based Approach. Journal of the American             Academy of Orthopedic Surgeons, 596-606.


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