Author: Betsylew R. Miale-Gix

Fibromyalgia was definitively established as a disorder with specific diagnostic criterian by the American College of Rheumatology in 1990. It has been accepted by the National Institutes of Health, the American College of Rheumatology, the FDA, and the World Health Organization as a systemic disease process. As defined, an individual must have a history of widespread, chronic pain involving all quadrants of the body as well as the axial skeleton, along with a positive finding in 11 of 18 “tender points” on physical examination before the diagnosis may be made. One study suggested using a one page, two sided patient questionnaire which provides quantitative information as an additional diagnostic tool.

Since the 1980s there have been over 4,000 studies dealing with various aspects of fibromyalgia. Those studies have progressed knowledge of what systems are implicated in fibromyalgia as well as treatments that are efficacious for it. For example, these studies have demonstrated evidence for abnormal pain processing including peripheral and/or central sensitization and poor pain inhibition; dysfunctional autonomic nervous system and hypothalamic-pituitary-adrenal axis; as well as increased spinal fluid levels of neuromodulators such as substance P, and NGF.¹

When a claim is being made by the attorney for the injured person that the trauma caused the individual to develop fibromyalgia, or aggravated an existing condition, the attorney must produce evidence which supports a positive answer to two key questions:

1. Whether the condition is real; and
2. Whether the condition arose from the traumatic injury in the case.

The answer to the first question is clear, and evidenced by noting a majority of the medical community, insurers, and the federal government agree that fibromyalgia is a real, debilitating condition. The response to the second question on causation, is more difficult to prove affirmatively because there appears to be no majority consensus on the relationship of trauma to the development of fibromyalgia.

There are significant studies showing a link between traumatic and fibromyalgia, both in the context of a single traumatic injury event, as well as in the context of repetitive injuries. These include an Israeli study in which adults with neck injuries had greater risk of developing fibromyalgia within 1 year of their injury and a UK study which found physical trauma in the preceding 6 months was significantly associated with the onset of fibromyalgia syndrome. There are other studies finding a relationship between fibromyalgia and sleep abnormalities following traumatic injury, local injury sites as a source of chronic distant regional pain, and post traumatic stress disorder and other stress response components. Others, however, studies have concluded traumatic injury incidents do not influence the development of fibromyalgia.²

At the heart of the issue is this simple statement in materials posted on the National Institute of Arthritis and Musculoskeletal and Skin Diseases website which sums up the current state of etiological understanding of fibromyalgia:

The causes of fibromyalgia are unknown. There may be a number of factors involved.

In order for a condition to be allowed into evidence and considered as part of a traumatic personal injury claim it must be shown more probably true than not that the condition arose because of, was aggravated by, or made symptomatic due to the injury incident at issue in the case. In order to establish in court that a traumatic incident caused fibromyalgia, counsel for the injured party must meet certain rules designed to insure the evidence submitted, is reliable and generally accepted in the medical community. The insurance company’s attorney will challenge the admissibility of such evidence by arguing there is a lack of established and generally accepted support in the medical community at large for the assertion traumatic injury causes individuals to develop fibromyalgia.

While state and federal courts have not been uniform in deciding the causal question, many courts have not allowed injured plaintiffs to assert their condition, treatment costs and other damages were caused by traumatic fibromyalgia. State courts in Nebraska, Minnesota, Indiana and Florida have ruled evidence of trauma causing fibromyalgia may not be entered into evidence, as have two Federal Court Circuits. In doing so, however, one court included a quote from fibromyalgia researcher Dr.Thomas J. Romano who stated:

Clearly when entities such as the American Academy of Pain Management as well as numerous other doctors have formally stated that trauma may cause fibromyalgia , the concept that trauma may cause fibromyalgia is a solid one. Marsh v. Valyou
917 So.2d 313 ( Fla.App. 5 Dist. 2005)

Further, as another court noted:

“In reaching this decision, this court does not hold that trauma does not cause fibromyalgia or that admission of such evidence is forever barred, only that at the current time the medical science linking such a causal relationship does not exist.” Vargas v. Lee, 317 F.3d 498. (5th Cir. 2003) [emphasis added]

Washington state courts apply the standard from Frye v. United States, 293 F. 1013, 54 App. D.C. 46 (D.C.Cir.1923) to decide whether or not expert testimony on novel scientific theories may be admitted in court. To be admissible, the offering party must show the underlying theory is generally accepted in the scientific community and that there are techniques, experiments, or studies utilizing that theory which are capable of producing reliable results and are generally accepted in the scientific community.

In Grant v. Boccia 133 Wn.App. 176, 137 P.3d 20 (2006) when reviewing a trial court decision, the Court of Appeals Division III first held that relating fibromyalgia to trauma was a novel scientific theory to which the rule applied. It then went on to hold that because the causal relationship between trauma and fibromyalgia has not been decisively established in the medical literature, it is not generally accepted in the relevant scientific community. Accordingly, expert testimony linking the injured person’s fibromyalgia to an automobile collision was properly excluded as evidence by the trial judge.

Despite that ruling, an Okanogan County trial court admitted expert medical testimony into evidence both for and against traumatically induced fibromyalgia in a later motor vehicle injury case. When deciding multiple issues on appeal following the verdict in that case, the Washington Court of Appeals, Division III noted testimony regarding fibrmyalgia was admitted as evidence by the trial court, without comment as to whether or not it should have been admitted and considered by the jury in reaching their verdict. Herriman v. May, 142 Wash.App. 226, 174 P.3d 156 (2007).

There is clearly room in the law of Washington and elsewhere, for evolution in the recognition of fibromyalgia as a traumatically induced and aggravated condition for which patients may be fairly compensated when represented by knowledgeable personal injury attorneys.

For patients injured in a traumatic incident from which a personal injury claim may arise, it is critical that all differential diagnosis be explored, and all applicable conditions be documented in findings and diagnosis. Fibromyalgia is a recognized condition for which treatment will be paid by insurance. In a personal injury claim context, it is in the patient’s interests for the provider to indicate the multiple diagnoses causing the injury person’s condition along with fibromyalgia.

Even though fibromyalgia is now recognized as one of the more common chronic pain syndromes, its diagnosis has proven as frustrating as its treatment. A better understanding of the fibromyalgia diagnosis by physicians and counsel may help patients avoid extensive and time consuming work-ups only to learn that they have been mis-diagnosed and have a chronic permanent condition.

If one of your patients involved in a motor vehicle collision, a trip and fall, pedestrian, bicycle injury or construction site injury incident, presents with chronic pain symptoms, rather than second-guessing yourself or the patient, it is recommended you refer your patient to a specialist in rheumatology or one otherwise familiar with fibromyalgia. Moreover, if the cause of the injury was someone else’s actions, it is recommended your patient seek the advice of an attorney who focuses on personal injury and insurance law who is familiar with the fibromyalgia condition.

The knowledgeable and experienced personal injury attorneys at Adler Giersch PS stand ready to assist you and your patients through our offices in Seattle, Bellevue, Everett and Kent.

 

 

1. See such as:
Clin Exp Rheumatol. 2004 Jul-Aug;22(4):453-61.Further clues to recognition of patients with fibromyalgia from a simple 2-page patient multidimensional health assessment questionnaire (MDHAQ). DeWalt DA, Reed GW, .

CNS Spectr. 2008 Mar;13(3 Suppl 5):6-11. Fibromyalgia syndrome: presentation, diagnosis, differential diagnosis, and vulnerability. , . University Clinical Research Center, University of Texas Health Science Center, San Antonio, TX 78229-3900, USA.

Joint Bone Spine. 2008 May;75(3):273-9. Epub 2008 Mar 28. Pathogenesis of fibromyalgia - a review. Ablin J, , .

Curr Rheumatol Rep. 2000 Apr;2(2):131-40. Evidence for metabolic abnormalities in the muscles of patients with fibromyalgia. Park JH, Niermann KJ, Olsen N.

Psychoneuroendocrinology. Fibromyalgia pain: do we know the source? Rehabilitation medicine in rheumatic diseases Current Opinion in Rheumatology. 16(2):157-163, March 2004. Staud, Roland.

2008 May 9 [Epub ahead of print] Glucocorticoid sensitivity in fibromyalgia patients: Decreased expression of corticosteroid receptors and glucocorticoid-induced leucine zipper. Macedo JA, , , Meyer J, Hellhammer DH, Muller CP.

2.. See such as:
Am J Phys Med Rehabil. 1994 Nov-Dec;73(6):403-12. Post-traumatic fibromyalgia. A long-term follow-up. Waylonis GW, Perkins RH.

Arthritis Care Res 1994 ,7:161-165 Post -traumatic firbomyalgia: a case report narrated by the patient. Wolfe, F.

Department of PM&R, Riverside Methodist Hospitals, College of Medicine, Ohio State University, Columbus 43214. Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability, 23:3

The Journal of Rheumatology 534, 534 (1996). (Consensus Report). Arthritis Rheum. 1997 Mar;40(3):446-52. Increased rates of fibromyalgia following cervical spine injury. A controlled study of 161 cases of traumatic injury. Buskila D, Neumann L, Vaisberg G, Alkalay D, Wolfe F.

Ben-Gurion University of the Negev, Beer Sheva, Israel.Rheumatology (Oxford). 2002 Apr;41(4):450-3. A case-control study examining the role of physical trauma in the onset of fibromyalgia syndrome. Al-Allaf AW, Dunbar KL, Hallum NS, Nosratzadeh B, Templeton KD, Pullar T.

Rheumatic Disease Unit, Ninewells Hospital and Medical School, Dundee DD1 9SY, UK..

Trauma and fibromyalgia: Is there an association and what does it mean? Seminars in Arthritis and Rheumatism Volume 29 , Issue 4 , Pages 200 - 216 K . White , S . Carette , M . Harth , R . Teasell

Curr Rheumatol Rep. 2004 Aug;6(4):259-60. Outcome of posttraumatic fibromyalgia: a 3-year follow-up of 7 cases of cervical spine injuries. Neumann L, Zeldets V, Bolotin A, Buskila D.

J. Clin Rheumatol 1997. 3:324-327 Firbromyalgia concensus report: additional comments. Yonus MB, Bennett RM, Romano TJ et al.

Curr Rheumatol Rep. 2000 Apr;2(2):104-8.Musculoskeletal injury as a trigger for fibromyalgia/posttraumatic fibromyalgia. Buskila D, Neumann L.

J Rheumatol. 2006 Jun;33(6):1183-5. Epub 2006 May 1.Neck injury and fibromyalgia-- are they really associated?
Tishler M, Levy O, Maslakov I, Bar-Chaim S, Amit-Vazina M.

Semin Arthritis Rheum. 2002 Aug;32(1):38-50. Prevalence of post-traumatic stress disorder in fibromyalgia patients: overlapping syndromes or post-traumatic fibromyalgia syndrome? Cohen H, Neumann L, Haiman Y, Matar MA, Press J, Buskila D