Chronic Pain and Personal Injury Litigation

Notes by J. William Wellborn, M.D.

Pain

• An unpleasant sensory or emotional experience
• Associated with actual or potential tissue damage

Chronic Pain Defined

• Pain that extends beyond the expected period of tissue healing
• May be defined as pain that lasts longer than six months
• Usually accompanied by psychosocial factors

Chronic Pain and Secondary Gain

• Secondary gain is a significant psychosocial factor
• Chronic pain more common when secondary gain may be present
• Clinical outcome studies exclude Workers' Comp and patients in litigation
• Such patients sometimes have poor outcomes

Other Factors Implicated in Chronic Pain

• More common in those who have experienced physical, emotional and sexual abuse
• More common in cases of early abandonment during childhood
• More common with history of substance abuse: alcohol and drugs
• Often used to obtain narcotic pain medication

Important Information You and Your Consultant Should Use in Evaluating Chronic Pain Claims

Important Information

• The history provided by the claimant correlated with the medical records
• The physical examination
• The diagnostic studies

Use of Medical Records

• Sometimes consultants will rely only what claimants tell them about an accident and their medical treatment (no record review)
• This is a disservice to you and to the court
• Discrepancies between the medical records and the claimant's history can affect issues of causation

1. Medical Record Review

• Do early records reflect an injury to that "chronic pain" body part?
• Remember, symptoms are complaints and signs are objective findings
• Was there objective evidence of injury? (bruising, swelling, x-ray findings)
• Beware of contusion, and loss of range of motion

Contusion

• Defined as bruising
• May be used as a diagnosis in the absence of any visible changes
• Look at the physical examination findings to evaluate

Range of Motion

• Active means under the control of the claimant — it is not objective
• Passive means the examiner moves the extremity himself — usually objective

2. Medical Record Review

• Did the claimant seek immediate medical care?
• Did the examining physician order diagnostic tests?
• Were there referrals to specialty physicians?

3. Medical Record Review

• Did a physician recommend the claimant not work?
• Does the claimant tell all of their treating physicians about their severe disabling condition?
• Does the claimant have timely follow-up doctor visits for their "severe" injury?

It Often Boils Down to Behavior

• The physician's "behavior" reflects his concern for the severity of the injury
• The claimant's "behavior" is reflected in their medical care:
  – timeliness of their first visit
  – frequency of follow-up visits
  – consistency of their complaints to all of their medical providers

What Complaints are Related to the Accident?

• Generally, those that are documented shortly after the accident
• New onset of symptoms weeks or months later are usually not related
• Typically get better with time rather than worse — may reflect new conditions or psychosocial issues

Independent Medical Evaluations (IME)

• Should be thorough, impartial, objective and well-documented
• All complaints the claimant attributes to the accident need to be addressed
• Examining physicians are at risk of being accused of causing injury or improper behavior

1. IME Physical Examination General

• Inspection for swelling, spasm, inflammation
• Look for evidence of activity such as calluses on the hands, stains or grease on the hands or a "farmer's tan"
• Range of motion of joints and spine - active v. passive
• Waddell's
• Symptom magnification
• Can be helpful if objective physical abnormalities exist

2. IME Physical Examination - Strength

• Strength testing — manual muscle testing
• True weakness shows a uniform loss of resistance
• Non-physiologic weakness is "breakaway" or "give away"
• Should be accompanied by atrophy

3. IME Physical Examination - Sensation

• Sensory testing is not objective — depends on the response of the claimant
• Typically done with pin or toothpick
• Should fit a dermatomal distribution (means it should follow a nerve pattern)
• Nondermatomal sensory loss is non-physiologic

1. Diagnostic Tests

• Radiologists comment on all findings regardless of their clinical significance
• Myelograms, CT scans, MRI scans of the lumbar spine show spine disc bulges, disc degeneration and disc herniations in normal, asymptomatic people
• These tests need to be interpreted by the IME physician in light of the clinical exam

2. Diagnostic Tests

• Can be misinterpreted or "over-interpreted" by:
  – Physicians
  – Therapists (PT, OT)
  – Chiropractors
  – Claimants
  – Attorneys

Summary

• Obtain all of the medical records — before and after the accident
• Use thorough, objective and meticulous medical consultants
• Look at the behavior of the claimant and their treating physicians

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