Claimants presenting with ongoing pain and varying disability present the Court with difficulties concerning causation diagnosis and prognosis. In this paper, an orthopaedic expert and two psychologists explain how to see through the apparent confusion and ambiguity
An injury from an accident will produce physical pain. This can include typically non-specific, soft tissue, back or joint pain. Non-specific soft tissue pain usually resolves within at most 6 weeks.
Certain soft tissue injuries can be painful for longer, especially if there has been damage to nerves, by either crushing or traction, for example. These are clinically coherent and identifiable, in most cases.
Certain soft tissue injuries have an element of or are entirely driven by alteration in the physiology of a particular musculo/ligamentous system, the so called “whiplash injury” and back pain being classical examples. These are now thought of more as a neuromuscular disorder of function than a mechanical injury in the form of a cut, tear or bruise.
Bone pain, from a fracture or bone bruise will often resolve within 6 weeks in smaller bones, 3 months in the long bones, by which time healing has usually occurred. Associated soft tissue injury at the site of a fracture may take a longer time to settle.
Joint damage which significantly disrupts the joint surfaces can go on producing pain indefinitely, as the joint then slowly self destructs as it has been rendered mechanically incompetent.
The above injuries statistically and clinically have a prognosis which is reasonably predictable.
There are then injuries which one would expect to settle with time, but which do not. These are frequently seen in the medico-legal field, and assessing them is quite difficult.
How can we assess the minority of patients who do not experience or report resolution of pain or full restoration of function.
Are they genuinely suffering or not?
Careful orthopaedic history taking and examination will produce either no obvious cause for the ongoing pains or something specific which could explain the symptoms. In the case of ongoing back pain, for example, the orthopaedic surgeon will pay attention to Waddell’s Tests, a series of observations and tests which suggest presence of a genuine an organic problem, or not. A test example is axial loading of the spine by pressing on someone’s head: this cannot deform the lumbar spine enough to produce pain, a positive sign is intense pain with withdrawal. An observational example is grimacing and vocalisation when being examined.
A high ‘loading’ on these 6 signs indicates to the examiner that two additional hypotheses need to be considered:
1) the person has a genuine psychological make up, or a definable ‘problem’ which affects their pain tolerance and experience.
2) the person wants, consciously, to make the doctor think their pain is worse than it actually is.
Psychological Pain Assessment
The next step is to carry out a psychological assessment to see if there is a reliable psychological contribution to a claimant’s pain perception and experience.
The psychological or psychiatrist with a special interest in chronic pain then carries out a full assessment to try to understand what, if any, psychological factors might be contributing to ongoing pain perception, pain intolerance and reduced functioning.
This examination will look for:
1) Evidence of non-pain related psychological disorder e.g., depression, anxiety, stress and associated stress in the claimants current life. These may be index accident related or non-index accident related. As we know, the experience of a pain is made worse by other levels of distress. A ‘vicious circle’ can be set up between pain and stress.
2) Evidence of pain-related psychological disorder in which the claimants thinking, behaviour and communication are partly/all disrupted by their pain experience. These disrupted psycho-social factors then help to maintain pain intolerance, experience and perception which typically results in ongoing disability and pain-avoidance behaviour. Examples of this might be ‘The pain is constant and could not be worse’ (Thinking), ‘I cannot do anything and don’t do anything at home’ (Behaviour) and ‘You have to help me do everything’ (Communication).
Both 1) and 2) above will typically result in the ‘functional overlay’ or ‘inappropriate signs’ picked up by the orthopaedic expert. Both are legitimate psychological conditions and have practical and/or treatment implications (e.g. CBT within the context of pain management approach).
Reliability and truthfulness
The psychologist and the orthopaedic one also look for evidence that the claimants may be consciously exaggerating for some other sort of gain e.g financial. Both experts and the court have a responsibility to assess the reliability of evidence. Some of the indications of them are:
1. Inconsistency of data (verbal information on one day/verbal information on another; difference between verbal and written self report; discrepancy of self report with GP or hospital records).
2. Inconsistency between data and video surveillance report.
Care needs to be taken not to over-emphasise the above ‘exaggeration’ as intentional, especially in item 1 above-other factors such as memory and interview factors need to be taken into account.
Having diagnosed a Pain Disorder in which both medical and psychological factors play a part, careful history taking can clarify if either factor pre-existed the index accident i.e, previous pain, previous GP attendance for one or more multi site pain over several years. References in the GP notes to current or past ‘abnormal illness’ behaviour and links between pain perception and mood variability are helpful to point towards a diagnosis of a ‘mixed’ pain disorder or somatization disorder. Review of GP notes is essential (Koch, Lillie & Kevan 2006).
Chronic Pain and Employment
A crucial component of orthopaedic and psychological evidence is the prognosis as it relates to occupational ability and ‘return to work’ (RTW). On a clear day, both Orthopaedic and Psychological experts can state with a level of confidence what, from either an orthopaedic or psychological point of view (respectively), the likely future incapacity to work, or what a reasonable duration off work was. However, it is not atypical for there to be a discrepancy between orthopaedic or psychological predictions and actual level of perceived pain and occupational activity.
The Joint Interview: Back to Back
There are significant advantages of consecutive orthopaedic and psychological interviews on the same day in terms not only of claimant convenience (travel, stress) but also term of the opportunity for both clinicians to share clinical, diagnostic and prognostic views with each other immediately. This results in a more immediate and reliable sharing of views than would normally occur 6 – 24 months later on sharing of reports which have been compiled at different times in the course of a claimant’s pain symptoms. Both authors have experience of this joint working.
The Joint Opinion: Explaining Ongoing Pain Experience
The majority of ‘joint opinions’ or ‘Heads of Agreement and Disagreement’ are compiled by two experts of the same or similar discipline. However, there is an increasing frequency of commissioning cross-speciality joint opinions, typically between psychological/psychiatric experts and other experts e.g., orthopaedic or pain medicine (relating to pain) or neurological (relating to head injury, concussion and cognitive effects).
The orthopaedic/psychological joint opinion has particular relevance in the Court’s quest to explain a claimant’s ongoing pain experience. It allows the often-present ambiguity surrounding ‘abnormal illness behaviour’ and ‘behavioural motivation’ to be clarified by the experts together, rather than separately via a proliferation of addendum letters or by the lawyers or barristers with informed guess-work.
Lawyers Orthopaedic and Psychological/psychiatric experts need to work together to clarify the several types of relevant evidence to reliably understand what pain any one claimant is experiencing. Pain whether, mediated by organic or non-organic factors, typically can be managed better with the appropriate understanding, advice and treatment in the motivated claimant.
Koch HCH & Kevan T (2005) Psychological Injury. XPL Press. St Albans
Koch HCH & Mackinnon (1997) Taking Pain Seriously APIL Vol. 7
Koch HCH, Lillie FJL & Kevan T (2006 – Perfect Attendance Legal & Medical. January issue 16).
Waddell G, McCulloch JA, Kummel E, Venner RM (1980). “Nonorganic physical signs in low-back pain”. Spine 5: 117-25.