Is There Casual Relationship Between Compensation Claims and Post Concussion Syndrome?

By Richard H. Adler, Attorney at Law

With post-concussion syndrome, also known as post-traumatic syndrome, symptoms can sometimes be difficult to verify objectively. The usual components of this syndrome are headaches, dizziness, and nervous instability. In addition to this triad of symptoms, the syndrome is also characterized by a tendency to worsen instead of improving as expected after injury, treatment, and convalescence. There is also lack of correlation between the occurrence of the syndrome and the severity of the injury, duration of amnesia, or other indices of cranio-cerebral trauma. Because of this, some doctors are sensitive to the possibility of conscious simulation of symptoms due to the so called “compensation neurosis.”

In 1961, Henry Miller, M.D., reported on 200 head-injury patients with long-term subjective complaints whose cases were still under insurance review. He concluded that nearly ¼ had what he called “unequivocally” psycho-neurotic complaints. In these 45 cases, he felt that there was an inverse relationship between the severity of the accident neurosis and the severity of the injury. In Miller’s view, only persons with opportunity for compensation developed the post-concussion syndrome. All but 4 of the 45 returned to work after their claim was settled, and he concluded that settlement of the claim helped them to return to work. British Medical Journal, 1: 919 – 925 and 992 – 998 (1961).

Recent studies, however, have failed to show any relationship between the frequency of these symptoms and compensation claims in either minor or severe closed-head injuries. Rimel, Giordani, and Barth, Disability Caused by Minor Head Injury, Neurosurgery, Vol 9: 221 – 228 (1981). McKinley, Brooks, and Bond, Post-Concussion Symptoms, Financial Compensation, and Outcome of Severe Blunt Head Injury, Journal Neurol Neurosurg Psychiatry, 46: 1084 – 1091 (1983). Furthermore, clinical and experimental studies indicate organic damage in both minor and severe closed-head injuries. Adams, Gennarelli, and Graham, Diffuse Axonal Injury in Non-Missile Head Injury, and Villani, Papo, Giovannelli, Advances in Neuro-Traumatology, International Congress Series, No. 612, Amsterdam: Excerpta Medica, pgs 53 – 57 (1983).

When new symptoms develop after an initial hospitalization, some investigators question whether they are organically related to the trauma. Levin, H. S., Benton, A. L., and Grossman, R. G. Neuro-Behavioral Consequences of Closed-Head Injury, Oxford Press, New York (1982). When symptoms were not verified with objective findings, the researchers concluded that symptoms of late onset were related to compensation or psychological factors. Cartlidge, N. E.; Post-Concussional Syndrome, Scottish Medical Journal, 23; 103 (1978). Half the patients with symptoms 1 year after trauma had at least 1 symptom that was not mentioned 6 weeks post-injury. Ruterford, W. H., Merrett, J. D., and McDonald, J. R., Symptoms at One Year Following Concussion From Minor Head Injuries, Injury, 10: 225 – 230 (1979). However, before assuming that symptoms developing after hospitalization are non-organic, 2 findings of note should be considered:

Slowed cerebral circulation in 1 patient was not evident the day after trauma, but was measurable 8 and 38 days afterwards. Taylor and Bell, Slowing of Cerebral Circulation After Concussional Head Injury, Lancet, 178 – 180 (1966).

Amnesia may take several hours to develop after trauma. Russell, W. R., The Traumatic Amnesias, Oxford Press, New York (1971).

Some patients may not report symptoms if they are not asked; especially if they have other, more troublesome symptoms. Such patients might give the appearance of developing new symptoms, when they are actually reporting old symptoms for the first time.

In contrast to Miller’s opinion, there is a great deal of evidence that prolonged symptomatology can follow mild head injuries, even in the absence of compensation claims or litigation. In a University of Virginia study, for example, many patients with persistent symptoms were not pursuing compensation or litigation. Rimel, R. W., Jiordani, B., Barth, J. T., Disability Caused by Minor Head Injury, Neuro-Surgery, 9: 221 – 228 (1981).

Although Miller reported that closing a claim ended a disability over 90 percent of the time, others have found that post-concussion syndrome patients often return to work despite ongoing symptomatology or compensation claims. Kelly, R., The Post-Traumatic Syndrome: An Iatrogenic Disease, Forensic Science, 6: 17 – 24 (1975); Oddy, et al., Subjective Impairment and Social Recovery After Closed Head Injury, Journal of Neurology, Neuro-Surgery, and Psychiatry, Vol 41; 611 – 616 (1978); and Wrightson and Gronwall, Time Off Work and Symptoms After Minor Head Injury, Injury, Vol 12; 445 – 454 (1981).

Litigation and compensation claims are an additional stressor, and, therefore, may contribute to symptoms of some patients, but there is no empirical evidence that post-concussion syndrome is caused by the claims process. A study in Great Britain noted a strong association between the existence of symptoms 1 year after a minor head injury and litigation. However, the same study noted that 15 percent of the patients were symptomatic after 1 year, but only 6 percent were in litigation. Ruterford, W. H., Merrett, J.D., and McDonald, J. R., Symptoms at One Year Following Concussion From Minor Head Injuries, Injury, 10: 225 – 230 (1979).

There are observations that prolonged symptomatology is not necessarily resolved by settlement of a claim. This provides additional evidence that financial incentives are not the primary cause of post-concussion syndrome. Denker, P. G., Post-Concussion Syndrome, Prognosis and Evaluation of the Organic Factors, New York State Medical Journal, Vol 44: 379 – 384 (1944); Jacobson, Mechanism of the Sequelae of Minor Cranio-Cervical Trauma; Walker, W. F., The Late Effects of Head Injury, Charles Thomas Publishers, Springfield, 35 – 45 (1969); Merskey and Woodford, Psychiatrist Sequelae of Minor Head Injury, Brain, Vol 95, 521 – 528 (1972); and Stedman and Graham, Head Injuries: An Analysis and Follow-Up Study, Proceedings of the Royal Society of Medicine, Vol 63, 23 – 28 (1970).

There is some suggestion that differences in symptomatology between patients in litigation and those not in litigation are more subjective than objective. Patients pursuing compensation claims had a greater number of subjective complaints than patients who did not have compensation claims. McKinlay, W. W., Post-Concussion Symptoms, Financial Compensation, and Outcome of Severe Blunt Head Injury, Journal of Neurology, Neuro-Surgery, and Psychiatry, Vol 46, 1084 – 1091 (1983). Kozol also found that litigants had more subjective complaints than non-litigants. Pre-traumatic Personality and the Psychiatrist Sequelae of Head Injury, Archives of Neurology and Psychiatry, Vol 56, 245 – 275 (1946). In contrast, however, M.M.P.I. profiles were not affected by litigation in a sample of all severities of head injury. Casey and Fennell, Emotional Consequences of Brain Injury: Effect of Litigation, Sex, and Laterality of Lesion, Presented at International Neuro-Psychological Society (February 1981).

It has been argued that athletic injuries, which generally offer no opportunity for compensation, provide an informative comparison group to industrial and vehicular accidents. In 1 study, automobile accidents resulted in longer disabilities than athletic injuries (Wrightson and Kronwall, supra). Miller (1961) contended that the relatively favorable prognosis after athletic injuries suggested that prolonged symptoms could be attributed to factors other than organic injury. Taylor, however, argued that athletic injuries resulted in less damage because they involved less impact velocity and softer impact surfaces than did automobile accidents and most industrial accidents. Post-Concussion Sequelae, British Medical Journal, Vol 3, 67 – 71 (1967).

Studies showing an association between claims and disability or persisting subjective symptoms have failed to prove that the association is causal. (Cook, 1972; Kosall, 1946; McKinlay, 1983.) Malingering can only be detected through the use of clinical judgment, as there are no empirically validated objective criteria for the identification of malingering on neuro-psychological testing. Binder, Laurence, Persisting Symptoms After Mild Head Injury: A Review of the Post-Concussive Syndrome, Journal of Clinical and Experimental Neuro-Psychology, Vol 8, 323 – 346 (1986). A study of neuro-psychological protocols which included data from several neuropsychological tests, including the W.A.I.S., M.M.P.I., and Halstead-Reitan Battery, found that experts conducting blind reviews of test scores could not correctly classify the results as belonging to malingerers or head-trauma patients. Heaton, Smith, Lehman, and Vogt, Prospects for Faking Believable Deficits on Neuro-Psychological Testing, Journal of Consulting and Clinical Psychology, Vol 46, 892 – 900 (1978).

If any of your patients have symptoms related to post-concussion syndrome, they may very well have a head injury. Rather than second-guessing yourself or your patient, it is recommended that you refer your patient to a neurologist for evaluation and/or neuropsychologist for testing. Moreover, if the cause of the post-concussion syndrome stems from an accident caused by someone else, then it is recommended that your patient seek counsel from an attorney who practices personal injury and insurance law.

If you have further questions regarding this issue, please do not hesitate to contact our office.