By Richard H. Adler, Attorney at Law
When the facts and law of a case do not favor the insurance company, they often resort to accusing the injured person of faking their injuries or ‘playing the system’ as a way to undermine that party’s compensation rights. Insurers have perfected their methods of raising suspicion or innuendo against the credibility of the injured party. Here are a few approaches and positions insurers use time and again.
A. The Secondary Gain Argument
The insurer will claim that ‘the patient is motivated to seek health care only to get a bigger settlement. If it weren’t for the prospect of winning a personal injury claim, this person would have been fine long ago. Being hurt is working for them – they think it will get them more money.’ In other words, many insurers argue that an injured person is simply trying to bilk the system for their own monetary or secondary gain.
There are several published studies that refute this argument. One such study appeared in the June 26, 2001 issue of Neurology, the scientific journal of the American Academy of Neurology. The study, “Handicap After Acute Whiplash Injury, a 1-year Prospective Study of Risk Factors,” concluded that “initiation of [a] lawsuit within [the] first month after injury did not influence recovery.”
This study examined 141 Danish patients who were involved in rear-end car collisions. All patients had gone to the emergency room with complaints of neck pain or headaches within two days of their accidents.
The authors found that having a claim was not related to the length of care or recovery; and that specific pain complaints of headaches, neck pain, and range of motion were the best indicators of the length of treatment following a whiplash injury.
B. Litigation Neurosis
Similar to the “secondary gain” argument, insurers will argue that personal injury claims or lawsuits are the result of “litigation neurosis.”
The term “litigation neurosis” became popular following Dr. Henry Miller’s 1961 study. Dr. Miller, a prominent British neurologist, reported on 200 head injury patients with long-term subjective complaints whose cases were still under insurance review. Based on his conclusion that 24% of his patients with worker’s compensation and personal injury claims were suffering from psychoneurotic complaints with no organic basis, many patients have subsequently been labeled as neurotic in one form or another. In Miller’s view, only persons with the opportunity for compensation developed post-concussion syndrome. All but four of the 45 cases returned to work after their claims were settled. Therefore, Miller concluded that settlement of the claim helped them return to work.1
Miller’s work has received rigorous and growing criticism over the years. Nevertheless, his article remains surprisingly influential in medical-legal circles today, predominantly used as leverage by insurers, insurance defense attorneys, and IME examiners who argue that patients claiming post-concussive syndrome or residuals from musculoskeletal injuries suffer from a functional (psychological) problem rather than real, organic, physical pain.
Here is how the insurer will use this argument particularly when responding to cervical, thoracic, lumbar and concussion type injuries from a motor vehicle collision since the injured person often presents with symptoms of forgetfulness, irritability, cognitive deficits, sleeping difficulties, headaches, visual disturbances, neck and/or low back pain, physicians may be hard-pressed to account for these symptoms on an objective basis. In some cases, the doctors hired by the insurance company to conduct insurance medical examinations (IMEs) simply label the injured party with “litigation neurosis” when a physical exam or imaging test fails to produce objective evidence of injury.
Recent research, however, has provided compelling evidence that such subjective complaints arise from organic and objective injuries, though hard to see on common imaging tests such as X-ray, MRI, or CT Scan.
A research article by Arthur Croft, DC in the Journal of Neuromusculoskeletal System, conducted an exhaustive review of all literature concerning “litigation neurosis.” Dr. Croft’s review of the published research studies provides compelling evidence that the terms “litigation neurosis” or “compensation neurosis” should be abandoned. According to Dr. Croft, the literature indicates:
- In 1965, dePalma and Subin reported that only 25% of 386 of their patients became involved in litigation and the treatment outcome was no different in the litigation and non-litigation groups.
- In 1968, Schutt and Dohanv published their analysis of women injured in whiplash type accidents and reported no significant difference in the prevalence of symptoms in patients with pending litigation versus those whose litigation had been resolved.
- Hohl, in 1974, found that in litigated cases, those whose claims were settled after 18 months had a worse prognosis than those settling in the first six months. Predictably, prolonged treatment will be correlated with protracted litigation and a worse prognosis. However, of the non-litigated group, only 50% were found to be asymptomatic at a five-year follow-up period.
- In 1988, Maimaris, et al., published the results of their retrospective study of 102 whiplash patients and concluded that litigation did not influence the natural progression of symptoms since all litigating patients were symptomatic for 2 to 2 ½ years following injury, even though the average time until settlement was nine months.
- Hodgson and Grundy, in 1989, reported on a group of 40 patients who had been injured in a whiplash trauma (26 had been exposed to rear impact trauma). The follow-up period varied from 10 to 15 years. The 30 patients who remained unchanged since settlement provided more evidence that resolution of symptoms does not always follow settlement of legal claims.
- In 1991, Watkinson et al., evaluated a group of individuals suffering from cervical acceleration/deceleration soft tissue injuries. They found that 86% were continuing to complain of symptoms after a mean follow-up period of 10.8 years. The study argued that the increased symptomatic degenerative changes noted on cervical spine x-rays after 10 years refutes the notion of compensation neurosis and argues for an organic lesion.
- Pennie and Agambar in 1991, reported that no statistically significant correlation existed in the recovery between litigated and non-litigated cases of cervical acceleration/deceleration injuries. This finding is echoed by Parmar and Raymakers (1993), who wrote that their group of 100 patients was followed for a mean of eight years after injury. The majority of their cases were free of significant pain before the settlement of their claims and only four improved soon after settlement.
- In 1993, Robinson and Cassar-Pullicino published that the majority of their cases (86%) ranging from 10 to 19 years after injury remained symptomatic after settlement.
Understanding how and why insurers use and misuse labels as “secondary gain,” “faker,” and “litigations neurosis,” is an important element in preventing them from wrongfully denying legitimate claims for physical, economic, and emotional recovery.
In today’s environment we see insurers more interested in pushing cases into litigation than trying to resolve claims for fair and reasonable compensation. In alignment with this aggressive litigation posture, we also see insurers resorting to attacks on the credibility of the injured party more frequently.
If your patient is involved in a traumatic injury claim, we recommend a legal consultation so that they can be informed of some of the ‘unwritten rules’ in how their claim will be processed and viewed. An ounce of prevention and advice, will save them unnecessary stressful encounters with insurers. If we can help, simply have him/her give us a call for a complimentary consultation.
1 See British Medical Journal, 1961, Vol. 1, pp. 919-925 and 992-998