-ORIT HURTS THE WORST WHEN I TAKE DEPOSITIONS ***This is not legal advice because the author is not a lawyer; however, we hope you find it helpful, anyway*** Marilyn T. Oakes, CRC, LPC Certified Pain Practitioner INTRODUCTION AND STATEMENT OF THE ISSUE The International Association for the Study of Pain (IASP) (Merskey & Bogduk, 1994) defines pain as "an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage"(p.210). According to the biopsychosocial model, pain begins with input from sensory structures, which cognitive processes interpret. Next, individuals respond at a feeling level, and then act on their feelings. The progression is sensory -> cognitive -> affective -> illness behavior (Waddell & Turk, 1992). Chronic pain syndrome is often a pejorative descriptor (Merskey & Bogduk, 1994). According to Guides to the Evaluation of Permanent Impairment (4th ed.)(AMA, 1993): Pain is endemic in the United States population, yet knowledge and understanding about this complex entity and its determinants, diagnosis, and treatment are only rudimentary. This is especially true of chronic pain (p. 303). Pain evaluation does not lend itself to strict laboratory standards of sensitivity, specificity, and other scientific criteria Chronic pain is not measurable or detectable on the basis of the classic, tissue- oriented disease model. Pain evaluation requires acknowledging and understanding a multifaceted, biopsychosocial model that transcends the usual, more limited disease model. Pain impairment estimates are based on the physician's training, experience, skill, and thoroughness. As with most medical care, the physician's judgment about pain represents a blend of the art and science of medicine, and the judgment must be characterized not so much by scientific accuracy as by procedural regularity (p. 304).

Many attorneys experience pain, at least figuratively, when deposing physicians about chronic pain. Part of the problem is that chronic pain management differs significantly from acute pain management. Because of the associated challenges, some physicians treat chronic pain patients (and their attorneys) with hostility. These doctors seem to believe that if the patient had been really sick or hurt, then he would be well by now. Sooner or later, the patient's pain affronts the physician - "you can't be hurting; I fixed you." From sheer frustration, physicians may disparage the pain. Plaintiffs' attorneys should expect personal pain, if they do not study chronic pain before depositions. The purpose of this lecture is to identify ten common pain myths, potential solutions to the problems posed by the myths, and relevant Alabama case law. By using the pain literature to frame better questions, attorneys may improve outcomes for their clients, while decreasing personal pain. PAIN MYTHS Myth #1: "It's only subjective." Pain is a subjective construct and each individual learns the meaning of pain through early life experiences (Merskey & Bogduk, 1994). In science, an objective phenomenon is one that is "perceptible to the external senses," (Dorland's, 1994, p. 1166) while a subjective phenomenon is one that pertains to or is "perceived only by the affected individual; not perceptible to the senses of another person" (Dorland's, 1994, p. 1595). Behavioral observations and patient self-report indirectly measure subjective phenomena; direct methods, e.g., laboratory tests or radiology films, can measure objective phenomena. Physicians treat about 70% of all patients for subjective complaints (Harsha, 1990), so chronic pain patients are hardly unusual. What makes chronic pain patients unique is that they generally do not get better spontaneously. Indeed, they often do not get better after considerable intervention, especially after incorrect treatment strategies. Subjectivity has several sub-myths. A. Subjective equals imaginary. Despite being subjective, chronic pain is not imaginary. The constructs of depression, anxiety, IQ, and love are similarly subjective, and yet, no one questions their existence. When framing questions, attorneys should illustrate that while pain is subjective, pain is real. For example: Q - Doctor - do you love your wife? (Children, parents or pet will also suffice.) A - Yes, of course. Q - Well, what objective medical test could you order to prove that you love your wife? A - None. Q - Then how do we know objectively that you love your wife (parents, children, pet)? Do we have to take your word for it?

A - Yes, I guess so. Q - Then how is that different from Mr. Jones' pain problems? We just have to take his word for it, don't we? A - Sure. B. Subjective equals lying (fraud, malingering). Ask the physician if he has any reason to doubt the client's account of his problems. Unless the physician is willing to call the patient a liar, most will agree that they have no basis to doubt the client's report. Read the formal definition of a malingerer (see Addendum "A") from the Diagnostic and Statistical Manual (4th ed.) (DSM-IV) of the American Psychiatric Association, then ask if the pain patient meets the definition of a malingerer. Only rarely do chronic pain patients meet the formal definition of malingering. DSM-IV is not perfect, but is the gold standard for psychiatric and psychological diagnostics. Few physicians or professional psychologists will argue with DSM-IV definitions. One defense attorney pushed a pain psychologist to say that the chronic pain patient was a malingerer. The pain psychologist responded with the DSM-IV definition. The defense lawyer said: Q - But isn't that a narrow definition, sir? A - This is the formal DSM-IV definition and the only one I follow. Malingering is difficult to prove and videotape is virtually the only effective means. One may watch several miles of videotape for every few feet that are revealing. Discovery should include all videotape, not just the summary tapes. Attorneys should also discover private investigator's time records, to show how long the PI filmed to get the meager activity that most tapes display. C. Subjective equals psychological. Dr. Gordon Waddell (1992) says that a physician's examination itself is subjective. "The inherent subjectivity of physical examination is most evident when it is noted that agreement between physicians may be better for items of patient history than for some items of the physical examination. The reproducibility of clinical findings even among experienced physicians is low, and medical judgment as to organic versus nonorganic pain has only a moderate level of reliability across raters" (p.16). The physician's inability to find an objective explanation may be a feature of the physician's lack of expertise, not a feature of the client's lack of illness. As Dr. Waddell (1992) wrote, ". . . our knowledge is limited and the fact that we cannot understand a physical problem does not mean that it is psychological" (p. 25). Dr. Nelson Hendler, director of the Mensana Pain Clinic and formerly of the pain clinic at Johns Hopkins University, and Dr. Kozikowski (1993) conducted a study of 60 chronic pain patients, all of whom had attorneys. They found that the group required an additional 276 medical tests, an average of 4.6 tests per patient, before physicians could reach a

diagnosis, despite orthopedic and neurosurgeon physicians having referred 96% of the patients. Seventy percent of the new tests showed abnormal findings. Upon referral, 66.7% of the patients had incorrect diagnoses, of which 41% were vague descriptors such as failed back syndrome, chronic pain, psychogenic pain or muscle strain, instead of a medical diagnosis. Fifty percent of the 60 patients needed additional surgery, from one to four surgeries each, and each was at least five years postinjury. A second study of 120 patients, many of whom had descriptors and not medical diagnoses, found significant abnormalities in the diagnostic tests. When they included 3-D CT and qualitative flow meter analysis, physicians found an organic reason for the pain in 98% of the study group. Discharge diagnoses included facet disease, nerve entrapment, temporomandibular joint disease, thoracic outlet syndrome, and herniated discs (Hendler, Bergson & Morrison, 1996). Earlier, Zinreich and colleagues (1986) studied 50 patients, 25 with substantial spinal trauma and 25 described with failed back syndrome. The 3-D CT imaging identified additional diagnostic information in 76% of the trauma patients and 60% of the failed back patients. Dr. Hendler strongly believes that many diagnoses of strain are actually torn ligaments (Hendler & Sandler, 1996). One can hardly assume that Alabama pain patients fare better than the patients discussed by Dr. Hendler, Dr. Zinreich and their respective colleagues. If the physician thinks the problems are psychological, show him Dr. Hendler's and Dr. Zinreich's findings. Ask if the physician has ordered every test that might reveal an objective cause. Can he state to a reasonable degree of medical certainty that he has exhausted every diagnostic procedure that might identify an objective problem? Besides MRI, CT, or myelogram, what about a 3-D CT scan? Or qualitative flow meter? Literally, dozens (if not hundreds) of tests may apply to any individual pain patient, and many physicians, especially surgeons, do not have the patience or tolerance to explore all the problems, even if they have access to the technology. When deposing physicians, always formally define reasonable degree of medical certainty. Many physicians do not realize that an American Medical Association publication (Brigham, Babitsky, & Mangraviti, 1996) defines reasonable certainty as "more probable than not (i.e., there is more than a 50% probability) that a certain condition did or did not arise from the accident or event in question"(p. 61). A possibility "implies less than a 50% likelihood and in most cases is legally insufficient to prove causal relationship" (p. 61). D. Subjective equals coexisting conditions. 1. Coexisting factors. Many medical conditions that coexist with trauma may also cause pain. Sometimes the trauma contributes to other pathological conditions, e.g., myofascial pain or traumatic arthritis, and sometimes the trauma exacerbates or accelerates the progression of another disease process, e.g., degenerative disk disease. When dealing with a specialist, no objective findings may mean that the specialist can find nothing within his field of expertise. Unless the attorney asks, a specialist probably will not say that he only considers his field of expertise.

2. Back pain. When patients have diagnoses such as degenerative disc disease, traumatic arthritis, myofascial pain, compression fractures, or chronic back strain, physicians may say they cannot identify any objective factors causing the pain. What the physicians often intend, especially surgeons, is that the patient does not have a ruptured disc or neural impingement. Many structures in the back can cause pain without rupturing a disc or compromising the spinal canal, including tendons, ligaments, facet joints, peridural structures, sacroiliac joints, and internal disk derangement. Attorneys should ask physicians what phenomena they consider objective factors. The list may be surprisingly short. When asked, physicians usually admit that many structures can cause back pain besides ruptured disks and spinal cord compromise. Physicians usually admit that trauma can aggravate or exacerbate other structures than ruptured disks or spinal cord compromise. 3. Internal disk disruptions. Internal disc disruptions are still controversial diagnoses (Bogduk & Modic, 1996), but a growing body of research literature supports the idea that internal disk pathology causes pain. Schechter, France, & Lee (1991) reviewed 25 patients with chronic, persistent or frequently recurring low back pain. The patients had no prior back surgery and their radiology films (CT, MRI, xray, myelogram) were negative. Discograms identified internal disc derangements, which were then corrected surgically by subtotal excision and interbody fusion. Eighty-nine percent of patients reported good to excellent results, 11% fair results, and none reported poor results. Lee, Vessa, & Lee (1995) reviewed 62 consecutive patients, with similar profiles to the Schechter study. About 89% has satisfactory results, 93% returned to work, and 94% obtained successful fusion. The mechanism of internal disk derangement is not biomechanical, but biochemical, the production of Phospholipase A2 (substance P), resulting from trauma (Sella, 1992). Discography can identify abnormalities in patients with persistent symptoms despite a normal or equivocal MRI (Brightbill, Eichelberger, Pile, & Whitman, 1994). McFadden (1988) studied 549 discs in 200 patients during times when the patients had significant low back pain. He identified 302 internally-disrupted discs, but found extruded annular material (ruptured discs) in only 19 discs. He concluded that stress discography is useful in low back pain evaluations. Some physicians dismiss discograms as quackery. The docs who do not like discograms often quote a very small study by Walsh, Weinstein, Spratt, Lehmann, Aprill, and Sayre (1990). Discographers incorrectly identified bad discs 17% of the time, five of 30 discs, in five of ten normal subjects simulating back pain. (One radiologist told the writer that the normal subjects simulating back pain were medical students, but the abstract did not identify them.) Another small study showed that in 25 patients, 68% improved, 8% stayed the same, and 24% (six patients) worsened. Of the six patients that worsened, 75% (four patients) had "psychiatric disease" (Smith, Darden, Rhyne & Wood, 1995), a term undefined in the article abstract. An Internet search did not locate similar studies, larger studies with similar results, or replications. Such geographically-diverse medical facilities as the Hughston Clinic, Montclair Orthopedics, Yale University Department of Orthopedics and Johns Hopkins University physicians use discograms to diagnose internally disrupted disks. Many medical journal articles discuss internal disc defects and discography. Reasonably, one cannot conclude that discography is quackery.

Hand pain. a. Pain. In cases of repetitive hand trauma, nothing objective usually means that nothing appears on electromyography and nerve conduction testing. However, severe pain may be the only signal of a cumulative trauma process requiring immediate surgery (Wilson & Lin, 1997). One hand surgeon, Dr. John Bacon, has testified that by the time nerve damage appears on EMG/NCV, the damage is permanent and it's too late for the surgeon to reverse the problem. Dr. Bacon noted that sending a person back to the repetitive work that caused the problem in the first place causes the person much more trouble later. Some cumulative trauma patients literally cannot do their own basic grooming or bathing, especially after repeated surgeries and several failed work attempts. When neurologists testify that EMG/NCV are within normal limits, attorneys Bob Baker and Jim Alexander ask the physicians which method is the most reliable in determining the condition of the nerve: 1) Phalen's or Tinel's signs, 2) EMG/NCV or 3) a surgeon who opens the wrist and observes the scarred nerve. So far, physicians have testified that the surgeon's observation is the most accurate determinant. b. Limitations. Sometimes physicians and FCE therapists fail to adequately assess functional limitations related to hand pain and repetitive motion. Several vocational dexterity tests exist that measure upper extremity function, both gross and fine motor. Because the test authors developed them for vocational use, one can include the data as part of a vocational assessment. Myth #2 -"I follow the disease model, all pain is alike, what's the big deal?" Chronic pain does not follow the disease model and all pain is not alike. The disease model is "a pathologic process or disorder at the tissue or organ system level" (AMA, p. 305), codified by French philosopher Rene Descartes in the 17th century, though the idea dates back to ancient Greece. The disease model assumes that every disease or syndrome has an objective, quantifiable explanation (Turk, 1996). Informally, some physicians call the disease model the plumber's approach to medicine - a body part breaks, the doc repairs it, and the patient is supposed to be as good as new. The human body is not that simple. No one-to-one ratio exists between tissue damage and pain. Sometimes one sees pain without pathology, and, other times, pathology without pain. As many as 85% of low back pain patients never get an organic diagnosis. In low back pain, a precise pathological diagnosis or anatomic identification may not even be possible (Waddell & Turk, 1992). Seemingly insignificant injuries may lead to severe pain problems, and all pain has a psychological component. Dr. David Tollison (1990) writes "While psychological factors are known to influence pain expression, the burden of pain itself can produce profound emotional distress" (p. 1-8). Ask the physician to classify the pain according to the IASP system (Merskey & Bogduk, 1994). Ask if he has read the AMA (1993) Guides (4th ed.), Chapter 15, the pain chapter. The five major pain categories are acute, acute recurrent, chronic, chronic progressive, and laboratory-induced (experimental) (Turk & Melzack, 1992). A championship athlete with a blown-out knee has acute pain. A migraine sufferer has acute recurrent pain. Chronic pain is pain that lasts longer than anticipated for a particular disease or

syndrome, or, arbitrarily, more than six months; chronic pain in terminal cancer patients is more than three months. Arachnoiditis (adhesive scarring around nerve roots) is an example of chronic progressive pain. Experimental pain is that induced in clinical settings for research purposes. Myth #3 - "It's just psychological overlay (subjective complaints, malingering, compensation neurosis, symptom magnification, exaggeration) and he could get well if he were motivated." Many physicians use pain terms inexactly, inappropriately and not according to formal scientific definitions. To counter the buzz words, ask the physician to define terms formally: subjective, malingering, symptom magnification, pain prone patient, psychological overlay, and the like. Reframe deposition questions by using more precise terms and scientific definitions. In many such cases, the physician using the buzz words cannot formally define them. One physician, for example, testified that subjective pain symptoms were "that person's opinion." True enough in the sense that all people have opinions about their internal states, but that response does not fit the formal scientific definition of subjective. Opinion implies that another person's opinion might be equally valid. Pain measurement is not that simple. Ultimately, the pain is what the patient says it is (McCaffery & Beebe, 1989), although test data, treatment recommendations and interventions by pain practitioners may be helpful in changing what the patient says about the pain. Psychogenic pain is rare and physicians tend to overdiagnose the condition (Hendler & Kozikowski, 1993). Malingering is a psychiatric diagnosis and requires "intentional production of false or grossly exaggerated symptoms" (APA, 1994, p. 683). About 5% of chronic pain patients are malingerers, according to pain research data (Chapman & Brena, 1989; Leavitt & Sweet, 1986). Subconscious symptom production, psychological problems (e.g., anger, depression or anxiety), and somatization are not malingering, because none of these conditions include intentional symptom production. Exaggeration, symptom magnification and psychological overlay are terms lacking a scientific research base in medical, psychiatric, or psychological literature. Such terms are vague, not subject to formal definition, and probably will not pass the evidentiary standards of Daubert vs. Merrill Dow, for the same reasons that dictionary definitions do not meet evidentiary standards. When given the choice of being scientifically correct or looking foolish while testifying under oath, most physicians choose scientific correctness. One physician wrote repeatedly that he could not identify any objective findings to support the patient's pain complaints. He returned her to full duty repetitive motion work, and she failed her work attempts. She scored in the bottom first percentile on hand dexterity tests and she attributed her poor performance to pain. During the deposition, attorney Patrick Hughes confronted the physician, because the doctor had said the same things about another client. Mr. Hughes then asked the physician if he thought all patients were malingering liars. The physician testified that the patient was not malingering, was sincere in her presentation, might have postsurgical effects to explain the pain, might have

psychological factors complicating her recovery, was telling the truth as she saw it, and not all chronic pain problems have a current physical basis. Myth #4 - "I tried everything and nothing worked; he must be a malingerer." Just because the physician has not found the problem does not mean the patient is a malingerer. CT scans enabled physicians to identify physical problems that they could not find on plain x-rays. MRI and PET scanners have improved physical diagnosis, as have 3-D CT scanners. As medical technology progresses, physicians can identify more causes of painful conditions (Dotson, 1997). A. Inadequate treatment. Patients continue to suffer from inadequate treatment and inadequate medical understanding, for generally three reasons: 1. The cause of the pain is apparent but the treatment is inadequate (deep tissue disorders, peripheral nerve disorders, root and cord disorders). 2 The pain's cause is unknown but treatment works (trigeminal neuralgia, tension headaches). 3. The pain has both an unknown cause and the treatment is inadequate (back pain, idiopathic pelvic and abdominal pain, migraine headaches) (Cole, 1990). B. Pain management approaches. Successful pain management greatly depends on matching patients to appropriate treatment. Pain treatment may include many strategies, multiple approaches, trial and error, numerous stops and starts, several physicians, and myriad other professionals. While the process may be tedious and tiresome, chronic pain patients simply must give their best efforts, within reason. Even when the list of failures grows long, the next attempt may be the one that works. Representative approaches include: 1. "Needle" clinics: Physicians, usually anesthesiologists, treat the painful site by injecting steroids, anesthetics, or other medicine. Sites may include facet joints, sympathetic ganglia, or nerve roots. Generally, needle treatment works most effectively in the acute injury phase, the first few days or weeks, though blocks may palliate chronic painful conditions. Needle treatments may also be diagnostic for chronic painful conditions. Intractable patients who respond well to blocks may be candidates for implantation. Generally, patients may have few blocks yearly without risking serious iatrogenic complications, such as arachnoiditis. 2. Interventional pain clinics: Physicians, often anesthesiologists but occasionally surgeons, implant electrode stimulator implants or morphine pain pumps into the abdominal cavity. The electrodes deliver stimulation and the pain pumps deliver tiny drops of strong medicine, usually morphine, at the site of the problem. Proper patient selection can reduce most of the problems associated with implants, and the most experienced physicians install a temporary trial device, then wait several days or a week before implanting a permanent device. This chronic pain population is the most complex

and the least likely to regain work capacity. Attorneys should always ask the interventional physician how many implant patients have returned to work. Ask the physician how many returned to manual labor or factory work. Anecdotally, the few that return to work generally had skills before their injuries. Alternately, the implant patient is sufficiently intelligent to acquire additional skills. Few blue-collar chronic pain patients fit either profile. Keys to selecting an implant physician include: Training Years of experience with implants Infection rates Implant removal rates Board certification in pain management; board certification in pain medicine. Use of a pain psychologist to help with patient selection. The most qualified psychologist to assist an interventional pain physician is boardcertified in both psychology and pain management. The psychologist's inexperience can hurt a legal case, so prudent attorneys should be wary of psychological evaluations unless the psychologist is appropriately-certified in pain management. According to the American Academy of Pain Management, Alabama has three psychologists and two psychiatrists with current board-certification in pain. Please see Addendum "B". Some interventional physicians do ablative procedures, burning or destroying nerves by surgical, chemical, or by radiofrequency means. Examples include sympathectomies and rhizotomies. As one might imagine, few ablative patients regain work capacity, especially blue collar workers or manual laborers. Attorneys should be cautious when considering work issues for implant or ablative pain patients, especially safety issues. The OSHA general duty clause prohibits employers from placing workers in situations where they endanger themselves or others. Returning an implant or ablative patient to factory work could pose such a severe hazard that, if notified, OSHA would make an emergency inspection. One recently-inspected plant, whose owners were quite sure that the federal rules did not mean them, must spend an estimated $2 million to bring hazards into compliance, not counting fines and penalties. Invoking an OSHA inspection is not an idle threat, because by federal regulation, OSHA gauges fines and penalties on plant profitability. (Should one get a rogue OSHA inspector and should one subsequently discover that the inspector falsified reports to hide employer wrongdoing, file a formal OSHA complaint against the inspector. OSHA does not like rogue inspectors. OSHA does not even like inspectors who make mistakes.)

Plant nurses and insurance case managers may be the culprits when unsafe and inappropriate return-to-work schemes arise, although other suspects sometimes appear. Standard malpractice policies for rehabilitation providers are now $2 million/$4 million. Attorneys should consider lawsuits when case managers, FCE therapists, or others hurt or recklessly endanger implant or ablative patients. However, when considering malpractice litigation, do not overlook the significance of expert witness testimony (Holt, 1984; Vaughn, 1997). When cost is an issue, better to refer to a larger firm than to lose a case for lack of proffered expert testimony. 3. Multidisciplinary Pain Clinics. A multidisciplinary pain clinic uses several approaches to solve pain problems, including cognitive-behavioral management, pain education, hypnosis, biofeedback, physical therapy, occupational therapy, vocational guidance, exercise, pool exercise, family involvement, and medicine. Multidisciplinary pain clinics often identify and recommend additional medical procedures, including blocks, surgery, and implants. A good multidisciplinary evaluation can identify and treat previously-overlooked pain problems, or arrange for treatment. In best case scenarios, multidisciplinary management precedes invasive or ablative pain management. Myth #5 - "A truck may have run him over, but the cause of his pain is psychological (psychiatric)." A. The pain prone patient. Early pain theorists, such as Engel, Maruta, Swanson, & Swanson (Hendler, 1990), and Bruner & Heilbronn, hypothesized that the pain prone patient was a variant of depression. However, despite years of pain research, no one has identified the definitive pain prone patient profile (Turk & Melzack, 1992). While it is true that psychological factors or pre-existing psychiatric conditions can aggravate and complicate recuperation from chronic pain, many people with personality disorders (the old folks called it being "peculiar") function well until a traumatic event destabilizes their personalities. However, pre-existing personality traits make it harder for some patients to overcome trauma, because they had fewer personal resources before their injury. Having fewer resources does not excuse the patient from doing what he can to make the situation better, but his limited resources may not be enough to meet all the demands placed on him. B. Psychiatric terms from physicians not certified in psychiatry. Some physicians make sidewalk psychiatric diagnoses without proper psychiatric credentials. Quoting from a recent orthopedic surgeon's note: The rehabilitation nurse came to discuss with me in the hall about her, at which time the patient and her husband came by. It is obvious to me that any restrictions that I give this patient, she will not return to work. There is obviously a great deal of psychological and perhaps a refusal of this patient to return to work on her part. There is no reason to continue any further medical treatment because no matter what we do for her medically, she will not return to work. I have released her to regular duty. There is nothing in her hands that is going to cause her any chronic problems. She does have a torn triangular

fibrocartilage, but she has not complained of pain over that area. She complained of popping which I am not able to locate. There is obviously a great deal of emotional and psychological overlay on this patient and probably a great deal of malingering and probable insurance fraud. Apart from his near-incoherent command of the English language, the doctor mentions several things that are mutually exclusive. Emotional and psychological overlay are illdefined terms, but medical practitioners usually mean that unconscious psychological processes contribute to poor performance. Malingering requires conscious motivation, as does insurance fraud. The doctor speculates that the patient will not go back to work, no matter what he does. The patient scored in the bottom second percentile on vocational dexterity testing, which predicted failure in repetitive motion work. In such situations, attorneys should ask for the objective reasons behind the doctor's statement. More likely than not, he has nothing objective and his own lack of pain management success frustrated the physician. However, getting the physician to admit his lacks is another matter. When one cannot overcome hostility, then one should change physicians. Hand the physician a copy of the American Psychiatric Association (1993) Diagnostic and Statistical Manual (now in the fourth edition, DSM-IV), and ask him to identify all the emotional and psychological diagnoses that apply to this patient. Most likely, he cannot. Ask if he has any formal credentials, residency, or board-certification in psychology, psychiatry, or pain management. If the doctor says he studied psychology or pain medicine in medical school, then ask him how long. Many medical schools do not require more than a few weeks' training in psychology and many require no significant training in pain management. Ask for the objective basis of his opinion, including speculation about patient response to work. If he offers multiple failed work attempts as evidence, then ask if people commonly leave work when they are hurting. (They do.) Ask what objective factors say that the patient's pain is not what she says it is. C. Other pejorative terms: hysterical conversion and psychogenic pain. The physician (or the "other side") may use pejorative terms such as compensation neurosis, pain prone patient, hysterical conversion, conversion reaction, psychogenic pain, and psychological overlay. Ask the physician to define the terms formally. Ask the incidence of that diagnosis in a trauma or chronic pain population. If the physician cites medical literature, ask him to produce specific articles. The articles do not always say what biased physicians say they say. 1. Hysterical personality disorder and hysterical conversion. Hysterical personality disorder can result when a previously well adjusted patient experiences extreme stress. Hysterical conversion occurs rarely, even in psychiatric populations, reportedly about 2% of all psychiatric clinic admissions at Johns Hopkins University. In the Johns Hopkins pain clinic, Dr. Hendler found three hysterical conversions out of more than 4,000 patients. Hysterical conversion appears rare in chronic pain patients (Hendler, 1990). Dr. Hendler cited Dr. Slater's (1965) classic nine-year follow-up study of 85 patients diagnosed with hysterical conversion. Nineteen of the 85 patients had no symptoms. Of

the remaining 66, seven had recurrent endogenous depression, two were schizophrenic, three had undetected neoplasms, and four had committed suicide. Two of the suicide victims had atypical myopathy and disseminated sclerosis. Two had trigeminal neuralgia, one had thoracic outlet syndrome, three had early dementia, and one had Takayasu's syndrome. The remainder had organic diseases, including epilepsy, vestibular lesions, and total block of the spinal cord. Of the original 85, only seven had hysterical conversion and 14 had Briquet's syndrome, a polysomatic hysterical neurosis akin to hypochondriasis or somatizing disorders. 2. Psychogenic pain. DSM-IV (APA, 1993) does not include a diagnosis of psychogenic pain. Hinsie and Campbell (1970) define psychogenesis as "origination in the mind or psyche" (p. 613) and psychogenic as "relating to or characterized by psychogenesis; due to psychic, mental, or emotional factors and not to detectable organic or somatic factors" (p. 613). If something physical causes the pain, then the pain is not psychogenic. Many physical structures can cause pain, including postsurgical residuals, and not all physical structures are easily measurable. Dr. Hendler (1992) estimates that psychogenic pain occurs in about one in 3,000 pain patients. 3. Compensation Neurosis. Mendelsohn (1995) did an excellent review of the history of and literature on compensation neurosis. Also known as the greenback poultice, compensation neurosis arose from a post-World War II theory that few Danes had postaccident neuroses, while 95% of similarly-situated Germans had neuroses. Theorists blamed disability benefits for fostering neurotic dependency. The bias persists today, despite little concrete evidence to support the claim. Anecdotal evidence seems enough to keep this myth alive. Mendelsohn cited a 1965 study of 190 cases of post-traumatic psychoneurotic patients, 15% of whom reported "they were better after litigation had been terminated" (p. 697). Mendelsohn cited nine studies in which 50% to 85% of head injured patients failed to return to work after concluding claims. Of people with low back injuries, 35% were unemployed at least three years following settlement. Severe disability persisted after litigation for neck injuries, in 12% to 60% of cases. One study included several injuries and 75% of the subjects failed to return to work after a mean of 25 months. A follow-up study of 108 workers' compensation claimants, 79 of which had settled, found that only 22% described themselves as "better" after concluding their claims. Fifty-one percent were not working, 42% rated themselves as having a "worse" job, and more than 10% had retired. A study of 50 post-traumatic headache patients found that only four experienced improvements in their headache pattern after concluding their legal claims, and all patients had persistent headache symptoms one year or more after their cases resolved. Mendelsohn studied 760 litigants and found that, of the 264 subjects who were not working when they concluded their court cases, 198 (75%) were not working an average of 23 months later. The literature simply does not support compensation neurosis as a theory.

Myth #6 - "His motivation is colored by 'secondary gain' aspects; you know, people with litigation pending (workers' compensation, who have attorneys) don't recover as well as regular patients." Secondary gain. 1. Secondary gain as traumatic neurosis. DSM-IV (APA, 1993) does not list secondary gain in the index. DSM-IV mentions external incentives in the malingering discussion. (See Addendum "B"). Few physicians understand the formal definition of secondary gain. Dorland's Illustrated Medical Dictionary (28th ed.) (1994) does not define secondary gain. Hinsie and Campbell (1970) define secondary gain as epinosic gain, a traumatic neurosis or psychoneurosis: Secondary advantages accruing from an illness, such as gratification of dependency yearnings or attention seeking, ' in the traumatic neuroses, secondary gains play an even more important role than in the psychoneuroses; there are certain uses the patient can make of his illness which have nothing to do with the origin of neurosis but which may attain the utmost practical importance . . . Obtaining financial compensation or fighting for one creates a poor atmosphere for psychotherapy, the more so if the compensation brings not only traditional advantages but has acquired the unconscious meaning of love and protecting security as well . . . Perhaps the idea of giving one single compensation at the right time may be the best way out.' (Fenichel, O. The Psychoanalytic Theory of Neurosis, Norton, New York, 1945)" (p. 316). In Taylor v. Mobile Pulley & Machine Works (1997), released November 21, 1997, the Alabama Court of Civil Appeals held: In its findings of fact, the trial court determined that the physical injury Taylor suffered "accelerated or triggered the manifestation of a latent disease or infirmity [the schizoaffective disorder] . . . producing permanent, total disability." In Alabama, a neurosis brought about by an on-the-job injury is compensable. City of Montgomery v. Kittler, 621 So.2d 295 (Ala. Civ. App. 1993); Transco Energy Co. v. Tyson, 497 So.2d 184 (Ala. Civ. App. 1986); Bickerstaff Clay Products Co. v. Dixon, 444 So. 2d 390 (Ala. Civ. App. 1983): Freuhauf Corporation v. Prater, 350 So. 2d 999 (Ala. Civ. App. 1978). It is well settled that no preexisting condition is deemed to exist for the purposes of a workers' compensation award if the employee was able to perform the duties of his job prior to the subject injury. Jackson v. Comptronix Corporation, 679 So.2d 1079 (Ala. Civ. App. 1996); Holmes v. Gold Kist, Inc., 673 So.2d 449 (Ala. Civ. App. 1995). This court has stated: "If the employee was able to perform his duties prior to the injury, no preexisting condition is present for [the] purpose of [workers'] compensation. If a job related injury combines with a preexisting condition to produce a disability, it does not affect a compensation award. Blue Bell, Inc. v. Nichols, 479 So.2d 1264 (Ala. Civ. App. 1985). Further, if a preexisting condition is aggravated by a work-related injury, the condition is still compensable even though the accident may not have caused the same injury in a

normal person. [International Paper Co. V. Rogers, 400 So.2d 1102 (Ala. Civ. App. 1986).]" Secondary gain, as traumatic neurosis, may not be a defense, and may be compensable. 2. Secondary gain contrasted with secondary loss. Ask the physician to define secondary gain, then question him about traumatic neurosis and unconscious motivation, to establish that the patient is not malingering. Next, ask the physician to consider whether one can attribute secondary gain to a chronic pain patient without looking at concomitant secondary losses (Materson, 1990). While chronic pain patients may experience secondary gains, such as respite from unpleasant work or unpleasant work environments, freedom from family demands, or even the illusion of financial rewards, many chronic pain patients experience significant secondary losses. How much is it worth that the chronic pain patient has lost his work identity, probably forever? Or his ego satisfaction in providing for his family? What about his pride, since "disability" is not an esteemed job title in our society? (If one does not believe that one's job title affects one's identity, then try going to a party and introducing oneself another way than by one's occupation.) His lost job promotions, his sexual identity, sports, hobbies, and recreational activities that he enjoyed? The stress of having to go to the legal system to receive proper medical treatment and compensation for his injuries? Or his utter humiliation when the company discarded him as unprofitable, after he had been a dedicated company man? As one rehabilitation client put it, "I was a good (black person) until I got hurt." List the chronic pain patient's specific losses and ask the physician if he thinks the patient remotely gained anything worth more than the things he lost. Ask the physician to consider a hypothetical situation. Depending on the physician, personalizing the hypothetical may be appropriate. ("Walk a mile in this guy's shoes, doc.") The patient is 58 years old, he has worked at unskilled manual labor his entire career, he cannot read and write, he injured his back and had significant perceived pain, he had to file bankruptcy and the bank repossessed his home; his wife had never worked outside the home and she is working in a chicken plant now; in such a scenario, does the physician think that the person experiences secondary loss? Few physicians want to trade places with the injured worker, and some even say so. Many physicians do not consider the negative emotional and financial consequences of disability. C. Tertiary gain. We seldom discuss tertiary gain. Third parties who benefit from the person's injury realize tertiary gain. People do not operate in a vacuum, not even physicians or rehabilitation counselors. A whole host of tertiary beneficiaries exists, including medical professionals, allied health workers, insurance case managers, rehabilitation counselors and lawyers on both sides (Tuck, 1983 a & b; Beck & Lustig, 1990). One must be continuously alert to safeguard objectivity and balanced professional judgment. As Fr. Desmond Reagan says, not even mathematics teachers can separate their work from their personal philosophies. When health care providers fail to care appropriately for chronic pain patients, they inadvertently add to the difficulty and increase the patient's problems, primarily

confusion, frustration, and hopelessness. Beck & Lustig (1990) cite common problems, including: Health care providers disbelieve that patients have pain in the absence of demonstrable pathology. They treat chronic pain from an acute pain model They tend to undermedicate patients and overestimate the seriousness of iatrogenic drug addiction They use placebos incorrectly They do not refer patients to psychological or psychiatric services until other treatment strategies fail (p. 732). Many patients respond to tertiary gain by turning up the volume, literally and figuratively. By trying harder to get the doctors' attention, pain patients increase their chances for a pejorative label. Attorneys should caution pain clients to tell their stories succinctly, without ornamentation, and to stick to the facts. Augmenting stories with loud volume and emotionality does not help. If the physician does not respond, then change physicians. If changing physicians is not an option, then hire an objective case manager to assist the patient (Oakes, 1997). D. Litigation and lawyers. Some physicians blame lawyers for poor patient outcomes, as though the lawyer told the patient not to get well. A few physicians even cite studies pointing to worse surgical results from workers' compensation and litigation populations. One wonders if the physicians blame the pain patients for the poor medical outcomes, as though the pain patients create the bureaucratic morass and systemic complexities. Dr. Hendler roundly condemns the workers' compensation bureaucracy for "placing the patients in the ridiculous position of having to maintain their symptomatic complaints to get just compensation" (Hendler & Sandler, 1996). Some physicians strongly imply, and a few doctors say, that were it not for the disability benefits, then Bubba would already be back to work. As we noted in Myth #5, reality is a little different. Rainville and colleagues (1997) studied 192 chronic low back pain patients, and found more pain, depression and disability at one-year follow-up among compensation patients compared with uncompensated patients. Vaccaro and colleagues (1997) studied 24 consecutive patients with chronic low back pain and low grade isthmic spondylolisthesis, and found that workers' compensation and litigation issues strongly associated with poor operative results. What neither study explained was why workers' compensation and litigation patients did worse. Smith and colleagues (1995) found that 80% of workers' compensation patients with low back pain and positive discograms improved appropriately without surgery.

Tait, Chibnall, & Richardson (1990) studied 201 chronic pain patients, in four groups: 1) working, 2) workers' compensation not working, 3) working and litigating, and 4) workers' compensation litigation and not working. They found that while workers' compensation patients reported significant depression and anxiety, the litigating patients experienced less distress than the nonlitigants. The authors suggested that litigation served as a coping response for distressed patients, in response to the adversarial nature of workers' compensation systems. Gallagher and colleagues (1995) studied 169 unemployed chronic low-back pain patients and found at six-month follow-up, compensation benefits and litigation did not reduce probability of return to work. In fact, for individuals with a high external locus of control (a predictor of poor outcomes in pain control programs), legal representation increased the likelihood that the pain patient returned to work. Solomon & Tunks (1991) studied 127 chronic pain patients, and found that litigants showed higher levels of depression, but had no statistically significant difference in return to work rates. Schofferman & Wasserman (1994) studied 39 consecutive MVA patients with low back pain or neck pain, and found statistically significant improvement after treatment, despite ongoing litigation. No litigation-related study has asked why the chronic pain patient hired a lawyer in the first place. Oakes (1998) collected data on more than 70 consecutive chronic pain patients and will publish the data when she reaches 100 patients. The study design was simple: Why did you get a lawyer? If they had not done that (reframe the patient's explanation), would you have gotten a lawyer? Have you ever had a lawyer before or sued anyone before? About 90% of the people had never retained a lawyer except for commonplace reasons buying or selling real estate, bankruptcy, deeds, adoption, divorces, child custody, wills, child support, and similar. Fewer than ten had been in the criminal system, and most of those had never had a lawyer except for pedestrian reasons. Several had been through divorces without lawyers, and one had even been through the criminal system without representation. Rarely had the patients sued anyone before, even those patients with prior injuries or accidents. The opposite of being litigious, many patients volunteered that they did not want to be in the legal system and viewed legal representation as their last resort. One said, "Only white trash hires lawyers and sues people." He said his elderly mother was still mad at him for having an attorney in his workers' compensation case. Another said "I did not want a lawyer. I never wanted a lawyer. I never needed a lawyer until I went to work in that company."

Betrayed trust was the main issue that motivated people to seek legal advice. Most of the patients sought legal representation for three reasons: 1) they received no medical care or inadequate care, 2) they had trouble obtaining or keeping weekly benefits, or 3) they had trouble both with benefits and medical care. After they felt the responsible parties treated them unfairly, they did not trust the responsible parties to conclude their claims equitably. A few did not wait until something bad happened, because they observed co-workers or friends whom they thought had experienced unfair treatment. One had experienced a significant prior back injury, from which he recuperated enough to return to work. He settled his case without an attorney for $2,500, much less than its actual worth. He felt that his employer had treated him unfairly, but because he could work, he did not contest their decision in his first injury. His second injury was more serious, though unrelated to his first injury. He did not feel his employer would treat him fairly with his second injury, and since he could not work, he sought legal assistance because the stakes were much higher. Several patients said that their insurance case managers harassed them and hounded the physicians so much that they felt they needed advice about their legal rights. These chronic pain patients were rather ordinary people and not motivated to litigate. Most said they would not have sought legal representation, had they not felt seriously provoked. These data suggest those chronic pain patients turned to lawyers only as last resorts, when provoked by stressful environment conditions. Case manager behavior inspired some litigation, and until conditions improve in Alabama, attorneys should not permit insurance case manager access to chronic pain patients (Oakes, 1997). E. Litigation-related costs. Many factors besides litigation raise the cost of chronic pain management. Chronic pain patients make frequent doctor visits and are an expensive medical population, one that HMOs view as a medical black hole (Dotson, 1997). In a five-year study of Michigan employers, Hunt and colleagues (1993) found that insurance case managers raised the cost of workers compensation, in the absence of a positive work environment. Disability case monitoring ("case management") raised lost work day case rates nearly 15 percent at the 90 percent confidence level. Workers perceived disability case monitoring as punitive in the absence of a supportive work environment. Ten percent improvement in disability case monitoring revealed a 10 percent rise in lost work day cases. A company nurse in Iowa harassed a disabled worker so much that he sued her and won. Slander was one of his counts. The jury awarded $15 million, reduced to $2 million by the Iowa Supreme Court (Wilson, 1996). Myth #7 - "He's only a family doctor; he doesn't know as much as the specialists." Never underestimate the worth of a family physician when establishing the validity of the chronic pain patient's problems, especially when the physician has had a long relationship with the chronic pain patient. Even better are family physicians in small towns, where everyone knows everyone. No better historian can be found than the family doctor who has known your client for several years. Sometimes the same doctor treats the whole family. Many family physicians are better advocates for the needs and rights of chronic pain patients than specialists. The family doctor may even refuse to defer to the specialist on pain issues, unless the specialist is a board-certified pain physician. Family physicians

spend so much time treating pain in a general medical practice that specialists do not awe them. Deposition questions for family physicians. Pertinent deposition questions include: How long have you known Mr. Jones? Would you say Mr. Jones has always been a hard-working man and took good care of his family? Has Mr. Jones ever shown drug seeking behavior? Has Mr. Jones ever asked you to help him stay off work inappropriately? Has Mr. Jones ever asked you to falsify disability for him? Have you ever known Mr. Jones to lie about his medical condition or his physical symptoms? Read the formal DSM-IV definition, then ask - Is Mr. Jones a malingerer? Do you believe Mr. Jones is speaking truthfully about his pain? I know you are not a psychologist, but did Mr. Jones' personality change after his injury? How did his personality change? Do you attribute his personality changes to his painful condition? Questioning independent medical examination physicians and specialists. When questioning the specialists, particularly independent medical examiners, consider the following questions: How long have you known Mr. Jones? How often have you seen Mr. Jones? How long did you spend with each visit? Do you know what he was like before he got hurt? So you cannot really say whether his injury changed his life, can you? And you cannot really say he was a bum before his injury, can you? Read the formal DSM-IV definition, then ask - Is Mr. Jones a malingerer?

Myth #8 "He'll get better when his court case is over." Most people feel better when they conclude their court cases, including many lawyers who represent them. One should hardly be surprised that chronic pain patients feel better. However, the studies that Dr. Mendelsohn (1995) cited show that reality refutes this myth. Two other realities associated with chronic pain are stress and suicide. A. Stress. Researchers have not closely studied stress as a pain aggravater, and this is a gap in the literature. Bradley, Haile & Jaworski (1992) cited three studies that found that self-reported stress negatively affected patients with fibromyalgia, rheumatoid arthritis, and Crohn's disease. B. Suicide. A small sample from the University of Miami pain center suggests that chronic pain patients have two to three times the suicide rate of adults in the general population (Fishbain, Goldberg, Rosomoff , & Rosomoff, 1991). Three case studies presented by the Vanderbilt Pain Control Center suggest that since suicidal behavior or ideation are medical emergencies, pain populations greatly need early detection and triage measures for suicide prevention. (Livengood & Parris, 1992). Myth #9 - "He flunked his FCE (Waddell signs, pain tests, validity studies, psychological tests, vocational tests, work trial), so he must be a malingerer." A. Flunking FCEs and "validity" criterion. Until the FCE state of the art improves, the writer recommends old-fashioned FCEs - that is, hands-on examinations done by experienced, licensed physical or occupational therapists. Ideally, the PT or OT has chronic pain experience and understands the multifactorial problems of chronic pain. Below, we list problems we have observed with commercially-available FCE systems. 1. Malingering identification. Malingering identification via functional testing may be the most destructive of the chronic pain myths. Abdel-Moty and colleagues (1993) noted that functional capacity testing and residual functional capacity lack clear definitions, which interferes with designing test batteries to assess work capacity of chronic pain patients. Most commercial FCEs claim to measure the good-faith effort of pain patients via so-called patient validity testing. Few published data (and sometimes, none) establish the scientific basis (validity and reliability) of the FCE test procedures. One suspects that few (or none) of the commercially-available FCEs would pass the evidentiary standards of Daubert vs. Merrill Dow. Attorneys should always compare FCEs test procedures with Daubert standards before allowing functional assessments into evidence. A partial list of commercial systems includes BTE, Blankenship, Ergos, Physical Work Performance Evaluation (ErgoScience, PWPE), Isernhagen, Key, Matheson, Physio-Tek and Sweat. Anecdotally, many chronic pain patients flunk the "validity" tests, but their flunking relates little to their personal performance. Right now, FCE is more art than science. Many factors affect a disabled person's participation in functional testing, and chronic pain patients are especially vulnerable. Commercially-available FCEs cannot address variables such as test taker inexperience, test giver inexperience, sleep deprivation, anxiety, anger, depression, fear, job uncertainty, bad days, litigation stress, family

problems, acute pain, or chronic pain. People experiencing acute pain cannot do well on functional testing. Anecdotally, many chronic pain patients flunk functional testing. Sometimes one sees multiple signers on FCEs. Rarely are all signers licensed therapists; some signers are aides or sports trainers. Licensed therapists may delegate huge portions of testing to underlings, then sign the paperwork as though they did all testing themselves. Attorneys should routinely discover credentials of the test-givers. Attorneys should especially scrutinize division of labor. Most of the commercially-available FCEs claim that myriad tests can identify a goodfaith effort and spot submaximum effort, symptom magnification, exaggeration, or malingering. The scientific literature does not support this claim. Tests include a coefficient of variation ratio, Waddell signs, a pain score to heart rate ratio, bell shaped curve, rapid exchange grip, pain behavior, and relationship of pain scores to pain behavior. Some FCE systems use multiple patient validity tests, then average them, which violates the basic rules of math by averaging percentages of unlike mathematic sets. Assessing patient effort is inherently subjective, not scientific. Until researchers have rigorously tested the test methods for validity and reliability, attorneys should be skeptical. One wonders what would happen if attorneys scrutinized test developers and therapists for fraud, libel, or slander. 2. Exaggeration. Even if a low back pain patient exaggerates, exaggeration may not affect his work performance or return to work rates. Hazard and colleagues (1991) studied 258 low back pain patients and defined exaggerators as those whose selfassessments of pain and disabilities were in the most severe range despite high levels of physical capacity. The patients underwent comprehensive functional restoration, including psychological assessment. Two-year follow-up revealed no significant associations between any individual factor and two-year work status. None of the 12 disability exaggeration models accurately predicted return to work. 3. The Grissom case. James R. Grissom (Grissom, n.d.), via his attorney John Leroy Long, challenged the pejorative FCE findings. Unfortunately, Mr. Grissom died, and under Mississippi law, so did his case. Nevertheless, the pleadings are instructive in Alabama cases. On November 12, 1990, Mr. Grissom, a construction worker, fell backward across forms at the construction site, where they were adding a wing to Baptist Hospital in Oxford, Mississippi. He injured his lower back and neck and went to the local emergency room. Physicians later gave him pain medicine, muscle relaxers, and epidural blocks. The physicians thought he had a musculoskeletal problem, in that they could not identify a neurological problem. He experienced considerable pain and limits to his range of motion. The physicians decided they could offer only symptomatic treatment, they could not rehabilitate him, he should not try to go back to work, and he was not a candidate for surgery. In March 1993, the administrative law judge ruled that Mr. Grissom was permanently and totally disabled, but on appeal, the Commission ordered a vocational rehabilitation study. In April 1993, Mr. Grissom had functional testing at The Rehab

Group in Jackson, Tennessee, which used the Blankenship system. Mississippi attorney John Leroy Long sued The Rehab Group, General Rehabilitation Services, the Blankenship Corporation, Crawford and Company, Spencer Drake (the FCE worker), and Planet Insurance. Mr. Long alleged suppression of truth, fraud, emotional and mental distress, falsification of academic credentials, pain, suffering, concealed and/or intentional or reckless misrepresentations and/or outrageous and tortious conduct. Quoting from the pleadings: 36. The testing and evaluation methods which have been developed, advanced and published by Blankenship were used to reach fraudulent conclusions which were submitted to the Mississippi Workers' Compensation Commission by report dated April 13, 1993. 37. Blankenship has developed various specious testing and evaluation methods so that technicians trained in Blankenship's specious methods of testing and valuation may reach inappropriate, improper and fraudulent conclusions. Said inappropriate, improper and fraudulent conclusions were submitted to the Mississippi Worker's Compensation Commission for review and were relied upon by said authority to enter an order dated May 26, 1993, by which Plaintiff was accused of failing to cooperate, thereby requiring Plaintiff to prove that he had put forth an honest effort in the evaluation previously ordered by the commission. 39. Plaintiff avers that said fraudulent report was submitted to Mississippi Worker's Compensation Commission for no legitimate reason but was submitted for an illegal reason in an effort to force a settlement of Plaintiff's claim for an inadequate sum by the use of economic pressure created by the purposeful delay in Plaintiff's claim. Such act or acts were done with gross recklessness and utter indifference to the rights of the Plaintiff (Grissom, n.d.). 4. The Blankenship FCE System. The minimum patient validity score on the Blankenship model for good to excellent effort is 80%. Attorney Max Cassady elicited testimony from a Blankenship trainer that "in 1994 in Thomasville, Georgia, out of 200 and some odd tests, it was less than 33% of all patients tested scored 81%." The Blankenship supporting data computer printout cites extrapolated static strength test data with a potential error of approximately 25%, which was plus or minus 25%. Since attorneys argued Daubert vs. Merrill Dow over plus or minus 5%, the scientific standard measure of error, plus or minus 25% means that extrapolated scores have a potential error range of 50%. Fifty percent hardly seems better than a coin toss. Chronic pain patients might do as well with a dart board as with an FCE. 5. Physical Work Performance Evaluation (PWPE). Lechner, Jackson, Roth & Straaton (1994) published both validity and reliability data on PWPE. ErgoScience owns PWPE and UAB researchers developed it. PWPE's protocols show promise, but until researchers advance the protocols, the writer cannot confidently recommend their use in

litigated trauma cases or with chronic pain patients. In our opinion, the problems are as follows: Researchers validated PWPE using a population of rheumatology patients. Unless one can link a rheumatic condition to trauma and an actionable cause, the validation demographics seem to greatly limit the test's utility in litigation. The study population was small, 50 patients. The writer has been unable to find either a replicated study or a replicated study using chronic pain, trauma, or workers' compensation patients. The published demographics are skimpy: "The mean age of the subjects was 43.9 years (SD = 11.6). The mean duration of musculoskeletal impairment was 7.5 years (SD = 7.8). The majority had a diagnosis of rheumatoid arthritis (28%), low back pain (24%), or osteoarthritis (18%). The most common locations of pain and limited motion were the neck, back, knees, wrists, and hands. The average pain score on a scale from 0 to 10 (with 0 being no pain and 10 being maximum pain) before initiating the test was 3.0 (SD = 2.0)" (p. 1000). Low back pain and musculoskeletal impairment are descriptors, not diagnoses (Hendler & Sandler, 1996). The one-to-ten pain scale divides into mild (1 - 2 - 3), moderate (4 - 5 6), moderately severe (7 - 8) and severe (9 - 10). Ten pain requires immediate medical attention or emergency room care, as people cannot live in ten pain. An example of ten pain for women is hard labor pains; passing a kidney stone is an example of ten pain for men. PWPE's pain range was 1.0 to 5.0, no more than moderate pain. By contrast, a chronic pain population typically ranges from 6.0 to 10.0. Despite multiple requests for specific medical diagnoses and ICD-9 codes, we were unable to get the specificity we requested. Ms. Lechner provided additional information that 16% of their sample had orthopedic surgery procedures during the six months prior to testing (Lechner, 1997a). (mto note: 16% of 60 is 9.6 patients.) Again, in our opinion, the information is too vague to be useful in pain-related litigation. PWPE's owner responded: "I suggest that, if the information in the JOM article does not satisfactorily address your particular concerns, you do not recommend the Physical Work Performance Evaluation for your patients" (Lechner, 1997b). We will try to get specific demographics through other sources. One hopes that Lechner and colleagues will refine their protocols, to measure a chronic pain population better. Most helpful would be protocols validated for specific chronic pain populations, such as postsurgical low backs, arachnoiditis, cumulative trauma, Complex Regional Pain Syndrome, fibromyalgia, mechanical low backs, postsurgical necks, stumps, neurosurgical patients, back fusions, and so forth. Ideally, replication studies would follow initial studies.

B. Flunking pain tests. Assessing pain is complex. Many psychological tools help identify potential treatments, but unfortunately, uninformed or poorly-motivated practitioners have misappropriated some pain tests. The FCE industry collectively seems to have particular difficulty interpreting pain psychological tests appropriately, and some psychologists seem to have similar difficulty. Attorneys should carefully scrutinize any practitioner who claims to use pain psychological tests, especially if he says flunking the test definitively shows malingering, exaggeration, or symptom magnification. Common self-report scales include the Low Back Pain Symptom Checklist, McGill Pain Questionnaire, Mensana Low Back Pain Checklist, Millon Behavioral Health Inventory, Minnesota Multiphasic Personality Inventory, Oswestry Low Back Pain Disability Questionnaire, Pain Patient Profile (P-3), Ransford Pain Drawing, West Haven Yale Multidimensional Pain Inventory, and many others. Psychologists who are also Certified Pain Practitioners are the most qualified practitioners to administer and interpret psychological pain tests. A case example - Mr. Benny Green was a pulpwooder who sustained three thoracic compression fractures and a mild brain injury when a tree fell on him. The "other side" hired a psychologist who was not a Certified Pain Practitioner, and, neither boardcertified nor board-eligible in neuropsychology. (A board-certified neuropsychologist has completed the American Board of Professional Psychology's [ABPP] neuropsychological section certification process. A board-eligible neuropsychologist is one who has completed an APA-approved PhD plus a one- or twoyear APA-approved postdoctoral internship in neuropsychology, plus relevant work experience. Without both credentials, caveat emptor applies.) In Mr. Green's case, the "other side's" psychologist gave a few tests, then reported that Mr. Green had a profile more consistent with malingering than with a head injury. The psychologist administered P-3 and the Low Back Pain Simulation Scale during his assessment. Both a board-certified neurosurgeon and a board-certified neuropsychologist thought Mr. Green had genuine problems. The psychologist ignored repeated discovery requests for the Low Back Simulation Scale manual. The writer contacted the test author, Dr. Frank Leavitt, who graciously provided the Low Back Pain Symptom Check List manual. In an enclosed letter, Dr. Leavitt stated, ". . . the Low Back Pain Simulation Scale is incorporated in the Low Back Pain Symptom Check List which is available commercially. The Low Back Pain Symptom Check List is used nationally by many firms such as yours; however, the research at this time is not sufficiently clear to allow us to score pain protocols for simulation on a clinical basis" (Leavitt, 1997a). In a subsequent letter, Dr. Leavitt confirmed that he had validated the test for low back pain only, from L1 down, with the most common sites being L5-S1 (Leavitt, 1997b). The test that Mr. Green supposedly flunked was not valid for his problem. Review of the P-3 test manual showed that the psychologist had substantially misrepresented Mr. Green's performance. When attorney Bill Abell conducted crossexamination, the psychologist admitted that four of his five tests did not show

malingering and that the fifth test applied only to people with lower back pain. Mr. Abell's systematic scrutiny of the psychologist's work caused the psychologist great consternation. ("You're twisting my words!" "Sir, what is twisted about your 'no' response? I asked you in your deposition if Mr. Green met the DSM-IV definition of malingering and you said 'no.' This is snake oil on paper, isn't it?") The Court awarded permanent, total disability. C. Flunking vocational tests. 1. Vocational tests do not objectively measure efforts. Vocational tests include literacy, dexterity, career choice, and intelligence, among others. Vocational tests do not have good faith effort (fake) scales. Unfortunately, some vocational counselors have taken a lesson from the FCE people. Attorneys should carefully scrutinize vocational counselors' statements that the client did poorly, barely tried, or failed to cooperate during an interview and testing. Sometimes one observes behaviors that strongly suggest poor cooperation (e.g., tearing up the test paper, refusing to take a test segment), but one cannot otherwise prove lack of cooperation during vocational testing. Attorneys should ask the vocational counselor for the objective and behavioral reasons that illustrate the client's lack of cooperation. A case example - a chronic pain patient, who was also a chronic asthmatic, had a bad asthma day when she saw the "other side's" vocational counselor. The client did poorly on her vocational testing, no big surprise. Sleep-deprivation from inability to breathe are two significant reasons why someone might not do well on vocational testing. Nevertheless, the counselor wrote that the client did poorly because she had not cooperated. According to the American Psychological Association publication, Standards for Educational and Psychological Testing (Novick, 1985), "Many test manuals point out variables that should be considered in interpreting test scores . . . medication, visual impairments, or other handicapping conditions may affect a test taker's performance . . . Such alternate explanations for a test taker's level of performance should be considered before interpreting the test taker's score as reflecting ability level with respect to the skills being tested" (p. 43). If the vocational counselor could not reschedule the testing for a day when the patient's asthma was better, then he should not have faulted her cooperation. Reasonably, the most he could say was that she was physically impaired and her impairment affected her test performance. 2. Vocational testing as an objective measure of vocational abilities. Some attorneys portray vocational testing as subjective, especially when the pain patient has low vocational abilities. Assuming a good-faith effort from the pain patient, vocational testing is objective. All vocational test authors standardize tests, with published validity and reliability data readily available. When stating that test data do not reflect client abilities, counselors should make specific behavioral observations. If counselors do not make behavioral observations, then attorneys should ask. Usually the most one can say is that one is uncertain about the validity of the test scores, even when one documents

behavioral observations. Unlike MMPI, vocational tests do not have fake scales, so poor test scores alone do not determine maximum effort. When patients do poorly on vocational tests, the usual reason is that they have few vocational abilities. D. Flunking Waddell signs. Physicians or FCE therapists may suggest that high Waddell scores prove faking. Waddell signs do not measure faking, but point to psychological suffering or unconscious neurotic behavior. If patients with high Waddell scores receive only medical treatment and do not receive psychological intervention, then they probably will not improve. Dr. Waddell identified seven signs: Tail bone pain in a patient with a back injury, unless they experienced direct trauma to the tail bone. Whole leg pain in a stocking glove pattern, except in diabetic or alcoholic neuropathy. Whole leg numbness, except in diabetic or alcoholic neuropathy. Whole leg giving way. Complete absence of any periods without pain. Intolerance and reactions to treatment. Emergency room admission to a hospital for simple low back pain. (Inappropriate behavior by the doctor, not the patient) (Waddell & Turk, 1992, pp. 25 - 26). Polantin and colleagues (1997), in a study of 50 low back pain patients, found that Waddell signs do not significantly predict return to work rates when patients have longer duration back pain and have undergone comprehensive functional restoration. One year follow-up found no statistical difference in return to work rates and other behavioral measures. E. Flunking work trials. Sometimes people flunk work trials because they cannot work, they cannot work right then, or they perceive that they cannot work. The best way to examine failed work trials is multidisciplinary pain management, which gives at least 40 hours' observation of a patient's performance in the clinic. Hildebrandt and colleagues (1997) reviewed 90 low-back pain patients who had completed an eight-week multidisciplinary treatment program. They included one-year follow-up for 82 patients. Medical background, medical diagnosis, and physical impairment had no predictive value. Mobility, strength, endurance and physical performance had limited predictive value. The most important variable in determining a successful outcome was reducing the subjective feelings of disability in the patients. Myth #10 - "You can't talk about pain - you're not a doctor."

Chronic pain is a multifactorial problem and many professionals help chronic pain patients. The American Academy of Pain Management (AAPM), a not-for-profit credentialing agency incorporated in 1988, recommends multidisciplinary management. AAPM certifies multidisciplinary practitioners in pain management. Among other requirements, Certified Pain Practitioners first must become Board Eligible: Diplomates and Fellows must have an earned doctorate or an earned Master's Degree, respectively, in a health care field, and two years' clinical experience working with individuals suffering pain; Clinical Associates must have a Bachelor's Degree in a health care field and five years' clinical experience. All certificate holders must pass the American Academy of Pain Management Examination, covering the following areas: anatomy & physiology, patient assessment, cognitive, behavioral, emotional, nutrition, social, spiritual, cultural, diagnosis-related methods, treatment plans, treatment-related methods, ethical, professional, legal, and business. All certificate holders must practice according to the AAPM Code of Ethics and the Patient's Bill of Rights, and must maintain current licenses to practice. Certificate holders must practice within their fields of expertise (e.g., physicians do not provide skills transfer analysis and rehabilitation counselors do not prescribe drugs), but otherwise may discuss pain issues and their implications in life. AAPM certification does not guarantee excellence, but does help to establish minimum competency in pain issues. For more information about AAPM, please check their web site at A LAGNIAPPE - ALABAMA CASE LAW IS NOT A MYTH. Some significant pain cases exist in Alabama case law. These cases help workers' compensation attorneys, but also may suggest trial strategies for other pain cases. Asplundh Tree Expert Co., Inc. v. Latham. 656 So. 2d 839 (Ala. Civ. App. 1995). How the chronic pain patient presents himself to the trial judge is crucial. The Court of Civil Appeals reiterated the Jim Walter v. Budnick case (see below): "An injured employee's own subjective complaints of pain are legal evidence which may support a finding of disability." Mr. Latham's psychiatrist wanted him to undergo vocational rehabilitation and Mr. Latham did not think he was ready for vocational rehabilitation. The trial judge agreed and found him totally disabled. The Court of Civil Appeals upheld the trial judge and wrote that "The question whether an employee can be rehabilitated is a question of fact, and the weight of the evidence before the court is not within this court's purview." Bickerstaff Clay Products Co. v. Dixon, 444 So. 2d 390 (Ala. Civ. App. 1983) See Myth #6. Charles Blackmon Drywall v. Steve Perkins. 669 So. 2d 899 (Ala. Civ. App. 1994). Mr. Perkins testified that he told his physician, his rehab facility and his workers' compensation carrier that he experienced tremendous pain and began using alcohol to relieve his pain. He drank himself into alcoholic pancreatitis, and his employer argued

that it was his alcoholism, not his work injury, that caused his total disability. The Court of Civil Appeals found that the evidence supported the trial judge's conclusion that permanent, total disability resulted from the neck injury, despite subsequent medical problems. (While we've all known people that if we had to tolerate what they must tolerate, we'd probably drink, too, please note that pain practitioners usually take a dim view of drinking or drugging for pain relief. Ordinarily, alcoholic pancreatitis is part of end-stage alcoholism and takes years to develop. One should strongly discourage drinking or recreational drugs for pain relief, as counter-productive. Pain patients may be habituated on legal medicine, but pain practitioners make a distinction between physiologic habituation and additive, drug-seeking behavior. The actual incidence of drug addiction among pain patients is quite low.) City of Auburn v. Brown, 638 So. 2d 1339 (Ala. Civ. App. 1993). Dr. Ken Rainer, the approved workers' compensation treating physician, testified that Mr Brown needed surgery. The employer refused surgery and obtained two more opinions that the patient needed conservative management, not surgery. The Court of Civil Appeals wrote: We hold that, as a general rule, the employer may not dictate to the employee that he may not have the medical treatment recommended by his authorized, treating physician. We further hold that the trial court did not err in authorizing Brown to seek the surgical treatment recommended by Dr. Rainer, who was authorized by the employer to be Brown's treating physician. If the employer or their workers' compensation carrier approve the doctor, then they may not dictate the treatment. City of Montgomery v. Kittler, 621 So.2d 295 (Ala. Civ. App. 1993). See Myth #6. Elite Transportation Services v. Larry L. Humphreys. Alabama Court of Civil Appeals manuscript #2951306, released March 7, 1997. Never underestimate the significance of the personal physician. Dr. Smith, Mr. Humphrey's personal physician, testified that the worker would never again perform gainful work because of his injury. Mr. Humphreys suffered extreme pain and depression, according to Dr. Smith, who placed him on various pain medications and Prozac for his symptoms. "Dr. Smith's physical-capacity evaluation [mto note: a physician checklist, not an FCE] appears in the record, as well, and it reflects, among other things that the worker would have difficult sitting, walking, or standing for more than two hours at a time, that he could drive only 10 to 30 minutes at a time, that he could lift no more than ten pounds, and that he could not use his hands for repetitive work. Dr. Smith continues to treat the worker for pain." Freuhauf Corporation v. Prater, 350 So. 2d 999 (Ala. Civ. App. 1978). See Myth #6. Fuqua v. City of Fairhope, 628 So.2d 758 (Ala. Civ. App. 1993).

Mr. Fuqua was an unskilled manual laborer with few vocational resources, limited intellect, and who was unable to perform manual labor. The Social Security Administration approved him for benefits and the trial court allowed the Social Security Disability information into the record. The trial judge awarded 43% permanent partial disability. The Court of Civil Appeals reversed the trial court and remanded the case for a finding of permanent, total disability. From our careful review of the record, we are convinced that the trial court erred in refusing to find Fuqua to be totally and permanently disabled. The evidence is overwhelming that Fuqua is not able to perform manual labor. All of the experts, including [the defense vocational expert], testified that he was virtually unemployable. He has been determined to be totally disabled for Social Security and retirement purposes. We find that no reasonable view of the evidence could support any conclusion other than under the law Fuqua is totally and permanently disabled. Georgia-Pacific Corp. v. Medley, 621 So.2d 306, (Ala. Civ. App. 1993). Ms. Medley had multiple medical problems, but could do her job without limitations or restrictions before she fractured her sternum. Her sternum did not heal properly and she developed a chronic painful condition. The court ruled that her work injury proximately caused her disability. Interstate Truck Leasing v. Bryan, 537 So.2d (Ala. Civ. App. 1988). When physical therapists (or other therapists, aides, or trainers) attempt to overrule physicians, this case can help reestablish the professional boundaries. A physician, as defined by the workers' compensation act, is a medical doctor, surgeon, or chiropractor, not a physical therapist. Betty M. Lowe v. City of Bayou La Batre, Alabama. Alabama Court of Civil Appeals manuscript #2951336, released 2/28/97. Ms. Lowe was a dispatcher before she fell backwards, striking her head on a counter, resulting in a neck injury. Her treating physician stated that he felt that, "although she had suffered from degenerative problems with her spine that were caused by aging, the fall may have been the event that made her neck and back pain intolerable." The trial judge awarded 5%, despite uncontradicted vocational testimony that Ms. Lowe had much higher vocational loss. The Court of Civil Appeals reversed and remanded for a finding of lost earning capacity. John Shaw v. Cannon Sline, Inc., a corporation. 678 So. 2d 193 (Ala. Civ. App. 1996). This case illustrates why attorneys should rigorously scrutinize FCE testing by the Daubert junk science standards. Mr. Shaw flunked his FCE patient validity profile and the FCE information apparently was uncontradicted. The trial court ruled that he had no lost earning capacity and no physical impairment. The Court of Civil Appeals upheld the trial court, based on the evidence in the record. No one disputed the FCE methods, at

least, not that showed in the Court of Civil Appeals decision. The trial judge is the arbiter of fact and credibility. If one is uncertain how fairly the judge will review the facts, then one should plan for review by the appeals courts from the beginning. One way to prepare for an appeal is being certain that one includes all available evidence in the hearing, especially vocationally-related evidence. Tarver v. Diamond Rubber Products Company, 664 So. 2d 207, (Ala. Civ. App. 1994). In a workers' compensation action, the trial court found that Tarver had "not carried the minimal burden of proof establishing that an accident occurred while in the line and scope of his employment with the defendant." The trial court ruled Tarver's disability arose from his "preexisting Stargardt's Disease" and that the back injury was not a contributing factor to his disability, despite Tarver's having returned to work for short periods after his back injury. A careful review of the record reveals that although Tarver had symptoms of Stargardt's Disease dating to 1980, he was not diagnosed as having the disease until after he started to work with Diamond. In fact, Tarver's VA hospital records indicated that he was diagnosed with Stargardt's disease on October 22, 1990, months after his employment at Diamond had been terminated. There was no evidence to support the trial court's finding that Tarver's disability was caused by Stargardt's disease. This court has stated that "[a] preexisting condition will not affect a workmen's compensation award if a job-related injury combined with that preexisting condition to produce disability." Reynolds Metals Co. v. Stults, 532 So.2d 1035, 1038 (Ala.Civ.App. 1988). Furthermore, if a previous injury or infirmity has not demonstrated itself as disabling and has not prevented the employee from performing his job in a normal manner, then the preexisting condition or disability does not disqualify the claim under the "arising out of and in the course of his employment" requirement of the statute. Blue Bell, Inc. v. Nichols, 479 So.2d 1264 (Ala.Civ.App. 1985); Ex parte Lewis, 469 So.2d 599 (Ala. 1985). We find that the trial court erred in denying Tarver's claim for workmen's compensation benefits based on the preexistence of his Stargardt's disease. Tarver's undisputed testimony was that before his back injury, his job performance was not affected by any problems with his eyes. Taylor v. Mobile Pulley & Machines Works, Alabama Court of Civil Appeals manuscript #2961007, ALW 6-28-19, released November 21, 1997. See Myth #6 Transco Energy Co. v. Tyson, 497 So.2d 184 (Ala. Civ. App. 1986). See Myth #6 Wade Vaughn v. DCH Health Care Authority, Alabama Court of Civil Appeals manuscript

#2961253, released 12-5-97. Sometimes attorneys view experts as expensive, excess baggage, especially when an act resulted in an injury. This case illustrates the importance of expert testimony when considering breaches to professional rehabilitation or medical standards. Another therapist might have disagreed with the two DCH therapists, but we will never know because the plaintiff did not proffer a professional expert. Mr. Vaughn hurt his back and had neurosurgery. His surgeon referred him for physical therapy. A physical therapy aide left a weight machine set at 60 pounds, instead of the 50 pounds ordered by the physical therapist, and Mr. Vaughn got hurt. Two DCH physical therapists (one was the supervising therapist for the aide) signed affidavits that no one breached community standards. The supervising therapist signed an amended affidavit that 10 pounds' increase was insignificant for that particular machine. The plaintiff did not produce expert testimony refuting these two affidavits, and lost on summary judgment. The Court of Civil Appeals upheld summary judgment. Jim Walter Resources, Inc. v. Budnick, 619 So.2d 926 (Ala. Civ. App.1993). "An injured employee's own subjective complaints of pain are legal evidence which may support a finding of disability." The pain patient's credibility depends on his concise, appropriate and accurate presentation of his problems. Pain patients should tell their stories as succinctly as possible, preferably in 15 minutes, and ten minutes is better. The pain patient's story should be factually correct and focus on his functional limits. If he can sit longer on some days than on others, then he should say that. For example, if the pain patient says that he cannot sit at all, and his statement is not factually correct, then he will probably have to explain videotaped evidence to the contrary. If he sat all afternoon on a park bench while watching the grandchildren, then he may have trouble explaining himself. Having to explain contradictory videotape does not help his case and the truth is always better. He should not embroider or embellish, even when discussing the emotional impact of his pain. Excessive emotionality usually detracts from credibility, and anger nearly always seems to backfire. Some pain patients view their day at trial as their only opportunity to unload, and while that approach is human nature, such a tactic is usually counterproductive in litigation. Pain patients should understand that the "other side" will belittle their problems and may try to provoke an emotional outburst, but pain patients should resist the urge. A matter-of-fact, low-key approach is much better at communicating their situations - "I have had a hard time, but I have done the best I can, and here is what I have done to help myself." If the patient has had inadequate medical care, then attorneys should seek judicial orders for emergency relief, if necessary, to obtain medical care, including pain management. Kevin Wilson v. IBP, Inc. and Diane Arndt, 558 NW 2d 132 (Supreme Court of Iowa, 1996).

Although not an Alabama case, this case is instructive to Alabama attorneys, as the abuses described occur here, too. The Iowa Supreme Court held that: (1) employee's claims for breach of fiduciary duty and defamation fell outside the scope of remedies available under Workers' Compensation Act and district court could properly exercise jurisdiction, (2) jury question existed as to whether fiduciary relationship existed between employee and nurse, (3) jury question existed as to whether nurse's statements to physician were slanderous per se, (4) evidence supported general verdict to $4,000 as compensatory damages on defamation claim, (5) 'substantial truth' defense was not applicable, (6) substantial evidence support submission of punitive damage claim to jury; and (7) punitive damage award of $15 million was excessive, but award of $2 million was supported by record. ANOTHER LAGNIAPPE - PRACTICE TIPS. For big cases, a case manager who understands pain management is an effective use of resources. No matter what academic discipline the case needs, retain competent pain practitioners. Opinions for hire generally fail on rigorous cross-examination, especially in a subject as complex as chronic pain. Consider fast-tracking appropriate pain patients to Social Security Disability. Having SSD provides a safety net and medical coverage that are invaluable, if litigation gets protracted. Use the pain literature when framing deposition questions. Pain literature is a gold mine. Use pain practitioners to help frame deposition questions. People who know the pain literature can save attorneys time, energy, aggravation, and personal pain. Consider safety factors in proposed job placements, especially for ablative or implant patients. Pain patients who can work should work. However, the goal is to perform reasonably gainful employment, not sentence the pain patient to death via industrial accident. Job task analysis and a brief safety consultation can help you decide whether to permit the job placement. The most important legal work one can do is convincing the pain patient to calm himself, tell his story succinctly, and forsake emotionality while testifying. Less is more when presenting chronic pain to a judge or jury. SUMMARY AND CONCLUSIONS. His Holiness John Paul II (1984), a man who understands pain more than most, writes: Medicine as the science and also the art of healing, discovers in the vast field of human suffering the best known area, the one identified with greater precision and relatively more counterbalanced by the methods of "reaction" (that is, the methods of therapy). Nonetheless, this is only one area. The field of human suffering is much wider, more

varied and multidimensional. Man suffers in different ways, ways not always considered by medicine, not even in its most advance specializations. Suffering is something which is still wider than sickness, more complex and at the same time still more deeply rooted in humanity itself (p. 3). Suffering is certainly part of the mystery of man. Perhaps suffering is not wrapped up as much as man is by the mystery, which is an especially impenetrable one (p. 39). Members of Alcoholics Anonymous have a wise saying - Pain is part of life; suffering is optional. Chronic pain management seeks to reduce patient suffering and increase quality of life. Sometimes the most one can achieve is palliation, because a cure is not possible. When representing chronic pain patients, attorneys must counter the chronic pain myths. By using chronic pain literature and research when framing questions, attorneys may improve case outcomes and also reduce their personal pain. Time does not permit individual case discussion. If readers have questions, then please telephone the author at 205/967-9798 or by email: Please visit our web site at ADDENDUM "A" Source: American Psychiatric Association, Diagnostic and Statistical Manual, Fourth Edition (DSM-IV), page 683: V65.2 Malingering The essential feature of Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs. Under some circumstances, Malingering may represent adaptive behavior - for example, feigning illness while a captive of the enemy during war time. Malingering should be strongly suspected if any combination of the following is noted: Medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for examination). Marked discrepancy between the person's claimed stress or disability and the objective findings. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen. The presence of Antisocial Personality Disorder.

Malingering differs from Factitious Disorder in that the motivation for the symptom production in Malingering is an external incentive, whereas in Factitious Disorder external incentives are absent. Evidence of an intrapsychic need to maintain the sick role suggests Factitious Disorder. Malingering is differentiated from Conversion Disorder and other Somatoform Disorders by the intentional production of symptoms and by the obvious, external incentives associated with it. In Malingering (in contrast to Conversion Disorder), symptom relief is not often obtained by suggestion or hypnosis. ADDENDUM "B" Alabama psychologists certified by the American Academy of Pain Management: 1. Daniel M. Doleys, PhD Montclair Pain and Rehabilitation Institute 720 Montclair Road, Suite 204 Birmingham, AL 35213 205/591-7246 2. Joan L. Kogelschatz, PhD 937 Honeysuckle Road Dothan, Alabama 36301 334/794-0719 (Also sees patients in Montgomery) Andrew J. Rozsa, PhD Southern Pain Specialists, PC 7500 Hugh Daniel Drive Birmingham, AL 35242 205/995-9967 Alabama psychiatrists certified by the American Academy of Pain Management: James S. Harrold, Jr., M.D

1565 Hillcrest Road Mobile, AL 36695-3929 334/607-7610 Luis F. Pineda, M.D. 2022 Brookwood Medical Center Drive Suite G-105 Birmingham, Alabama 35209 205/877-2880 For other Alabama practitioners who are certified by the American Academy of Pain Management, see the AAPM website: REFERENCE LIST Abdel-Moty, E., Fishbain, D.A., Khalil, T.M., Sadek, S., Cutler, R., Rosomoff, R.S., & Rosomoff, H.L. Functional capacity and residual functional capacity and their utility in measuring work capacity. Clinical Journal of Pain, 1993, 9(3):168-73. American Medical Association. Guides to the Evaluation of Permanent Impairment (4th ed.). Chicago: Author, 1993. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders (4th ed.). Washington, DC: Author, 1994. Asplundh Tree Expert Co., Inc. v. Latham. 656 So. 2d 839 (Ala. Civ. App. 1995). Beck, R.J., & Lustig, P. Counseling the Chronic Pain Patient. In Miller, T.W. (Ed.), Chronic Pain (Vol. 2). Madison, Connecticut: International University Press, 1990. Bickerstaff Clay Products Co. v. Dixon, 444 So. 2d 390 (Ala. Civ. App. 1983). Charles Blackmon Drywall v. Steve Perkins. 669 So. 2d 899 (Ala. Civ. App.1994.) Bogduk, N., & Modic, M.T. Lumbar Discography. Spine, 1996, 21(3): 402-4. Bradley, L.A., Haile, J.M., & Jaworski, T.M. Assessment of Psychological Status Using Interview and Self-Report Instruments. In Turk, D.C., & Melzack, R. (Eds.), Handbook of Pain Assessment. New York: Guilford Press, 1992.

Brigham, C.R., Babitsky, S., & Mangraviti, J.J., Jr. The Independent Medical Evaluation Report: A Step-by-Step Guide with Models. Falmouth, Massachussetts, SEAK, Inc., 1996. Brightbill, T.C., Eichelberger, R.P., Pile, N., & Whitman, M., Jr. Normal magnetic resonance imaging and abnormal discography in lumbar disc disruption. Spine, 1994, 19(9): 1075-7. Chapman, S.L. & Brena, S.F., Pain and litigation. In: P.D. Wall and R. Melzack (Eds.), Textbook of Pain, Edinburgh: Churchill Livingstone, 1989. Cited in Fields, H. L. (Ed.) Core Curriculum for Professional Education in Pain (2nd ed.). Seattle: IASP Press, 1995, reprinted 1997. City of Auburn v. Brown, 638 So. 2d 1339 (Ala. Civ. App. 1993). City of Montgomery v. Kittler, 621 So.2d 295 (Ala. Civ. App. 1993). Cole, B.E. The Classification of Pain. In Weiner, R.S. (Ed.), Innovations in Pain Management: A Practical Guide for Clinicians (Vol. 1). Orlando: Paul M. Deutsch Press, 1990. Dorland's Illustrated Medical Dictionary (28th ed.). Philadelphia: W. B. Saunders, 1994. Dotson, D. A. Treat the Disease or Treat the Patient? American Journal of Pain Management, 1997, 7(4):130-132. Elite Transportation Services v. Larry L. Humphreys. Alabama Court of Civil Appeals manuscript #2951306, released March 7, 1997. Fishbain, D.A., Goldberg, M., Rosomoff, R.S., & Rosomoff, H. Completed suicide in chronic pain, Clinical Journal of Pain, 1991, 7(1): 29-36. Freuhauf Corporation v. Prater, 350 So. 2d 999 (Ala. Civ. App. 1978). Fuqua v. City of Fairhope, 628 So.2d 758 (Ala. Civ. App. 1993). Gallagher, R.M., Williams, R.A., Skelly, J., Haugh, L.D., Raugh, V., Milhous, R., & Frymoyer, J., Workers' Compensation and return-to-work in low back pain. Pain, 1995, 61(2):299-307. Georgia-Pacific Corp. v. Medley, 621 So.2d 306 (Ala. Civ. App. 1993). James R. Grissom vs. The Rehab Group, Inc., General Rehabilitation Services, Inc., The Blankenship Corporation, Crawford and Company, Inc., Spencer Drake, Planet Insurance Company, et. al., Civil Action 3:94CV321 BrN, United States District Court, Southern Division of Mississippi, Jackson Division, n.d.

Harsha, W.N. The Relationship of Patient, Physician and Attorney. In Weiner, R. S. (Ed.), Innovations in Pain Management: A Practical Guide for Clinicians (Vol. 2). Orlando: Paul M. Deutsch Press, 1990. Hazard, R.G., Bendix, A., & Fenwick, J.W. Disability exaggeration as a predictor of functional restoration outcomes for patients with chronic low-back pain. Spine, 1991, 15(9):1062-7. Hendler, N. The Psychiatrist's Role in Pain Management. In Weiner, R.S. (Ed.), Innovations in Pain Management: A Practical Guide for Clinicians (Vol. 1). Orlando: Paul M. Deutsch Press, 1990. Hendler, N., Bergson C., & Morrison, C. Overlooked physical diagnoses in chronic pain patients involved in litigation, Part 2. The addition of MRI, nerve blocks, 3-D CT, and qualitative flow meter. Psychosomatics, 1996, 37(6):509-17. Hendler, N.H., & Kolodny, A.L. Using medication wisely in chronic pain. Patient Care, 1992, 15:125. Cited in Dotson, D. A. Treat the Disease or Treat the Patient? American Journal of Pain Management, 1997, 7(4):130-132. Hendler, N.H., & Kozikowski, J. G. Overlooked Physical Diagnoses in Chronic Pain Patients Involved in Litigation. Psychosomatics, 1993, 34(6), 494-501. Hendler, N., & Sandler, H. Dealing with Chronic Pain: Loss Control and Treatment. Lecture,National Workers' Compensation and Disability Conference, Washington, D.C., 1996. Hildebrandt, J., Pfingsten, M., Saur, P., & Jansen J. Prediction of success from a multidisciplinary treatment program for chronic low back pain. Spine, 1997, 22(9):9901001. Hinsie, L.E., & Campbell, R. Psychiatric Dictionary (4th ed.). New York: Oxford University Press, 1970. Holt v. Godsil, 447 So. 2d 191 (Ala. 1984). Hunt, H. A., Habeck, R.V., VanTol, B., & Scully, S. M. Disability Prevention among Michigan Employers, 1988-1993 (Upjohn Institute Technical Report No. 93-004). Kalamazoo, Michigan: W. E. Upjohn Institute for Employment Research, 1993. Interstate Truck Leasing v. Bryan, 537 So.2d 53 (Ala. Civ. App. 1988). John Paul II. On the Christian Meaning of Human Suffering (Salvifici Doloris). Washington, D.C.: United States Catholic Conference, 1984.

Leavitt F., & Sweet J. J. Characteristics and frequency of malingering among patients with low back pain. Pain, 1986, 25(3):357-64. Leavitt, F. Letter to author. August 7, 1997a. Leavitt, F. Fax transmittal to author. September 5, 1997b. Lechner, D.L., Roth, D., & Straaton, K. Functional Capacity Evaluation in Work Disability. Work, 1991, 1(3): 37-47. Lechner, D.L., Jackson, J.R., Roth, D.L., & Straaton, K.V. Reliability and Validity of a Newly Developed Test of Physical Work Performance. Journal of Occupational Medicine, 1994, 36(9):997-1004. Lechner, D.L. Letter to author. October 22, 1997a. Lechner, D.L. Letter to author. December 11, 1997b. Lee, C.K., Vessa, P., & Lee, J.K., Chronic disabling low back pain caused by internal disc derangements: The results of disc excision and posterior lumbar interbody fusion. Spine, 1995, 20(3): 356-61. Livengood, J.M., & Parris, W.C., Early detection measures and triage procedures for suicide ideation in chronic pain patients. Clinical Journal of Pain, 1992, 8(2):164-9. Betty M. Lowe v.City of Bayou La Batre, Alabama. Alabama Court of Civil Appeals manuscript #2951336, released 2/28/97. McCaffery, M. & Beebe, A. Pain, Clinical manual for nursing practice. St. Louis: C. V. Mosby Company, 1989. Cited in Cole, B.E., & Douglass, M.C. Hospice, Cancer Pain Management and Symptom Control. In Weiner, R.S. (Ed.), Innovations in Pain Management: A Practical Guide for Clinicians (Vol. 1). Orlando: Paul M. Deutsch Press, 1990. McFadden, J. W. The stress lumbar discogram. Spine, 1988, 13(8):931-3. Materson, R. Assessment and Diagnostic Techniques. In Weiner, R.S. (Ed.), Innovations in Pain Management: A Practical Guide for Clinicians (Vol. 1). Orlando: Paul M. Deutsch Press, 1990. Mendelsohn, G. 'Compensation Neurosis' Revisited: Outcome Studies of the Effects of Litigation. Journal of Psychosomatic Research, 1995, 39(6): 695-706. Merskey, H. & Bogduk, N. Classification of Chronic Pain: Descriptions of Chronic Pain Syndromes and Definitions of Pain Terms (2nd ed.). Seattle: IASP Press, 1994.

Novick, M. R. (Chair, Committee to Develop Standards for the American Educational Research Association, American Psychological Association, and National Council of Measurement in Education). Standards for Educational and Psychological Testing. Washington, D.C.: American Psychological Association, 1985. Oakes, M.T. Factors influencing chronic pain patients who seek legal assistance: 100 consecutive cases. Unpublished manuscript, available from the author in the Summer 1998. Oakes, M.T. Managing Unruly Case Managers in Workers' Compensation and Beyond. Alabama Trial Lawyers Journal, 1997, 17(4):7-15. Polantin, P.B., Cox, B., Gatchel, R.J., & Mayer T.G. A prospective study of Waddell signs in patients with chronic low back pain. When they may not be predictive. Spine, 1997, 22(14):1618-21. Rainville, J., Sobel, J.B., Hartigan, C., & Wright, A. The effect of compensation involvement on the reporting of pain and disability by patients referred for rehabilitation of chronic low back pain. Spine, 1991, 22(17):2016-24. Schechter, N.A., France, M.P., & Lee, C. K. Painful internal disc derangements of the lumbosacral spine: discographic diagnosis and treatment by posterior lumbar interbody fusion. Orthopedics, 1991, 14(4):447-51. Schofferman, J., & Wasserman S. Successful treatment of low back pain and neck pain after a motor vehicle accident despite litigation. Spine, 1994, 19(9):1007-10. Sella, E.J. Noncompressive spinal radiculitis. Orthopedic Review, 1992, 21(7):827-32. John Shaw v. Cannon Sline, Inc., a corporation. 678 So. 2d 193 (Ala. Civ. App. 1996). Solomon, P., & Tunks, E. The role of litigation in predicting disability outcomes in chronic pain patients. Clinical Journal of Pain, 1991, 7(4):300-4. Slater, E. Diagnosis of "hysteria." British Medical Journal, 1965, 1:1395-1399. Cited in Hendler, N. The Psychiatrist's Role in Pain Management. In Weiner, R.S. (Ed.), Innovations in Pain Management: A Practical Guide for Clinicians (Vol. 1). Orlando: Paul M. Deutsch Press, 1990. Smith, S. E., Darden, B.V., Rhyne, A. L., & Wood, K. E. Outcome of unoperated discogram- positive low back pain. Spine, 1995, 20(18):1997-2001. Tait R.C., Chibnall, J.T., & Richardson, W.D., Litigation and employment status: effects on patients with chronic pain. Pain, 1990, 43(1):37-46. Tarver v. Diamond Rubber Products Company, 664 So. 2d 207 (Ala. Civ. App. 1994).

Taylor v. Mobile Pulley & Machine Works, Alabama Court of Civil Appeals manuscript #2961007, ALW 6-28-19, released November 21, 1997. Tollison, C.D. The Magnitude of the Pain Problem. In Weiner, R.S. (Ed.), Innovations in Pain Management: A Practical Guide for Clinicians (Vol. 1). Orlando: Paul M. Deutsch Press, 1990. Transco Energy Co. v. Tyson, 497 So.2d 184 (Ala. Civ. App. 1986). Tuck, M. Counseling Perspectives of Chronic Pain Management. Journal of Applied Rehabilitation Counseling, 1983a, 14(2):9-16. Tuck, M. Psychological and Sociological Aspects of Industrial Injury. Journal of Rehabilitation, 1983b, 49(3):20-25. Turk, D.C. Biopsychosocial Perspective on Chronic Pain. In Gatchel, R. J., &Turk, D.C. (Eds.) Psychological Approaches to Pain Management: A Practitioner's Handbook. New York: Guilford Press, 1996. Turk, D.C., & Melzack, R. Measurement of Pain. In Turk, D.C. & Melzack, R. (Eds.),Handbook of Pain Assessment. New York: Guilford Press, 1992. Turk, D.C. & Melzack, R. Measurement of Pain. In Turk, D.C., & Melzack, R. (Eds.), Handbook of Pain Assessment. New York: Guilford Press, 1992. Vaccaro, A.R., Ring, D., Scuderi, G., Cohen, D.S., & Garfin, S.R. Predictors of outcome inpatients with chronic back pain and low-grade spondylolisthesis. Spine, 1997, 22(17):2030-5. Wade Vaughn v. DCH Health Care Authority. Alabama Court of Civil Appeals manuscript #2961253, 6 ALW 30-31, released December 5, 1997. Waddell, G. & Turk, D.C. Clinical Assessment of Low Back Pain. In Turk, D.C. & Melzack, R.(Eds.), Handbook of Pain Assessment. New York: Guilford Press, 1992. Walsh, T.R., Weinstein, J. N., Spratt, K. F., Lehmann, R. T., Aprill, C., & Sayre, H. Lumbar Discography in normal subjects. A controlled, prospective study. Journal of Bone and Joint Surgery (American), 1990, 72(7):1081-8. Jim Walter Resources, Inc. v. Budnick, 619 So.2d 926 (Ala. Civ. App.1993). Wilson, F. C., & Lin, P. P. General Orthopaedics. New York: McGraw-Hill, 1997. Kevin Wilson v. IBP, Inc. and Diane Arndt, 558 NW 2d 132 (Supreme Court of Iowa, 1996). Zinreich, S. J., Rosenbaum, A. E., Wang, H., Quinn, C. B., Townsend, T. R., Kim, W. S., Ahn, H. S., Rybock, J. D., McAfee, P. C., & Long, D. M. The critical role of 3-D

CT reconstructions for defining spinal disease. Acta Radiology Supplement (Stockholm), 1986, 369:699-702.

Barry & Marilyn Oakes Oakes & Oakes. Rehabilitation Consultants, Inc. P.O. Box 43254, Birmingham, Alabama 35243 205/967-9798 fax: 205/970-0487 email: (or)

To top