Disability Evaluation / Medical-Legal Consultation

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 3–6 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 a personal or family history of substance abuse
  • Often used to obtain 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
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
  • Video and sound recording can detract from the clinical aspects of the IME encounter and turn it into a performance

Diagnostic Tests

  • Radiologists comment on all findings regardless of their clinical significance
  • Myelograms, CT scans, MRI scans of the uninjured 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
  • 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