Hugh Koch and John Mackinnon discuss the relationship between orthopaedic and psychological evidence
It is frequently the case that medico-legal experts have difficulty understanding and explaining a claimant’s ongoing pain experience using purely an orthopaedic, medical or psychological/psychiatric perspective. However, despite a wide acknowledgement of this circumstance, there is room for improvement in both clinicians’ and lawyers’ approach to reconciling or accommodating these three perspectives.
The first port of call for the claimant lawyer is typically an orthopaedic assessment, which considers the physical aspects of pain and will usually find either:
1. Evidence of significant organic/anatomical structural damage where pain is obvious in its origin and is not controversial.
2. Evidence of minor organicity where pain is expected but not significant or
3. Lack of evidence of organicity where ongoing pain is unexpected and controversial.
Spinal pain is more frequently a problem in this sphere than, for example, limb pain. With all three, the orthopaedic surgeon will be sensitive to unusual physical signs (Waddel tests). Key psychological aspects of chronic pain include: interview behaviour; physical behaviours; non-verbal behaviour (frequency and type of expressions of pain and gesturing); and verbal description of pain.
There is a need for a rigorous assessment of both the physical, organic evidence and the psychological evidence of pain and contributory psychological factors. It is important to clarify unconscious and conscious aspects, resulting in a range of opinions: pain disorder (physical only); pain disorder (physical and psychological); pain disorder (psychological only); and no pain disorder.
A crucial component of orthopaedic and psychological evidence is the prognosis as it relates to occupational ability and ‘return to work’ (RTW). At times 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 will be, or what a reasonable duration off work was. However, it is not atypical for there to be a discrepancy between either orthopaedic or psychological predictions and actual level of perceived pain and occupational activity.
The joint opinion: explaining ongoing pain experience
The majority of joint opinion reports are complied by two experts of the same or similar discipline. However, there is an increased frequency for commissioning cross-speciality joint opinions, typically between psychological/psychiatric experts and other experts. 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 guesswork.
The next steps
It will help lawyers and experts alike to have greater definition of what constitutes a pain disorder and further clarification of how cognitive, behavioural and social factors highlighted here interact with pain intolerance. This will help to describe reliable pain experience and the factors that maintain them.
Dr Bone and Dr Brain receive a letter from Mr X’s solicitors which states that ‘The current issue with the medical evidence is that Mr Bone in his report says that Mr X does suffer with intermittent neck symptoms that occur a couple of times a week for no apparent reason. Mr Bone opinioned that there was no physical cause for the intermittent symptoms at this stage, any symptoms beyond 12 months are likely to be due to psychological factors and the physical injury itself. We would be obliged if Dr Bone and Dr Brain would prepare a joint report detailing the issue, and providing an explanation as to what is causing our client’s ongoing neck symptoms’.
Sample joint opinion
1. We agree Mr X was in an accident in May 2004. He has continued to experience pain since then
2. Dr Bone diagnosed whiplash, with neck and back pain. Dr Brain diagnosed a situational phobic disorder. Both these disorders occurred in the month after the event
3. Dr Bone predicted that the pain associated with the whiplash injury alone would probably have resolved in six to nine months. He could find no medical or radiological evidence to explain the ongoing pain beyond nine months
4. Dr Brain found evidence of ongoing phobic anxiety and more significantly, a developing depressive episode associated with mobility problems and behavioural withdrawal associated with the initial pain experience. In his opinion, the pain disorder which initially was primarily medical, transformed into ‘mixed’ pain disorder in which there was an interaction between the ongoing pain and mood variability. This resulted in pain magnification, negative thinking and behavioural withdrawal
5. At interview, Dr Bone found positive Waddel signs of abnormal illness behaviour. He accepts Dr Brain’s explanation of pain magnification.
6. Dr Bone and Dr Brain agree that, in their experience, Mr X’s ongoing pain experience should gradually decrease over six to 12 months