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					                     LONG-TERM SOFT-TISSUE INJURY CLAIMS

Introduction

         Soft-tissue injury claims make up by far the bulk of the personal injury claims
handled by casualty insurance companies. While it is tempting to attempt to deal with
soft-tissue injury claims with a template of some fashion, the very nature of soft-tissue
injury claims means that a unique response may often be called for, especially in
dealing with complex or long term soft-tissue injury cases. In this course, we will
examine various issues related to complex soft-tissue injury cases such as
determination of appropriate treatment, identifying over treatment, identifying Chronic
Pain Syndrome and related claims. In addition, we will examine psychiatric disorders
and their effect on soft-tissue injury claims and other medical conditions such as Lyme
disease, spinal stenosis and arthritis and how those conditions interrelate with soft-
tissue injury claims. In addition, we will focus on specific defense tactics in dealing with
the long term treatment case. Finally, we will examine the role of experts in dealing with
difficult soft-tissue injury cases.

I.     COMMON ISSUES IN COMPLEX SOFT-TISSUE INJURY CASES

       A.      Determining Appropriate Length of Treatment

         Ask ten doctors what the term "appropriate medical treatment" means and you
will likely get ten different answers. Even more disconcerting, placing ten doctors in a
room, providing them with a patient's medical history, complaints and symptoms, will
also very likely lead to ten different treatment plans. Therein lies the difficulty in
determining what "appropriate medical treatment" is, even for the simplest of soft-tissue
injury claims, let alone complex soft-tissue injuries. However, most doctors will agree
that physical therapy for soft-tissue injuries extending over more than a six week period
should be viewed with skepticism. However, we cannot simply look at a medical record
and determine that a particular patient has treated for more than six weeks and
therefore conclude that the patient has received more than "appropriate" medical
treatment. Rather, we must look at the specific treatment received during those six
weeks for particular clues that the case has been over treated. Specifically, if the
patient has received the same treatment over and over again without any re-
examination or change in the treatment plan, such a record should be viewed with
skepticism. A true patient with a serious complex soft-tissue injury claim will have that
injury re-evaluated by a doctor periodically with changes in the treatment plan in order
to consistently move the patient toward recovery. Simply treating a patient with hot
packs, electro muscle stimulation, stretching and massage three times a week for ten
weeks, is not an appropriate way to deal with a complex soft-tissue injury claim. Re-
evaluation and change in the treatment plan is the key.




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       While we are often quick to attempt to identify the over treated case and use the
overtreatment as a means to argue for a settlement less than the medical records might
otherwise indicate would be reasonable, we must also be careful not to penalize those
claimants who have lightly treated a particular soft-tissue injury claim. Accordingly, it is
important to focus on the injury and the recovery made from that injury, separate and
apart from the duration of medical treatment received, in order to get a true picture of
the value of a personal injury claim. Just because a patient treated for two or three
weeks, then commenced an at home regimen of physical therapy, stretching and
exercising, does not necessarily lessen the injury. Arguably, those claimant's that
undertake that type of regimen should be rewarded rather than punished, as far as the
size of their settlement is concerned. The old, outdated adage of "three times medical
specials" must be avoided at all times. Such a simplistic analysis has no place in
modern claims handling. Rather, the focus must be on injury, the care plan, and the
recovery.

       B.     Why Do Some Claimants Over Treat?

       Although claimants may over treat for a variety of reasons, there are two that are
the most prevalent. The first is that physical therapy, quite simply, feels good. Whether
massage, hot packs, electrical muscle stimulation, or a combination of the above,
patients often become addicted to the treatment, especially those with injuries to several
different muscle groups or areas of the body. Such patients must be weaned off of their
physical therapy just as a drug addict might be weaned off of heroin with methadone or
a cigarette smoker might use a nicotine patch.

       Another possible reason for overtreatment is "compensation neurosis" defined as
"a neurosis or symptoms that maybe be associated with a real or presumed disability
that may bring financial compensation." Although there has been much debate in the
medical literature about whether or not "compensation neurosis" is an actual diagnosis
that can be made from a psychological standpoint, most researchers would agree that
the possibility of financial gain after a compensable injury should be regarded as one of
several potential factors that need to be considered in the medical assessment and
treatment of litigants who complain of continuing symptoms after expected recovery
from physical injury. Obviously, this type of psychological overlay on a physical injury is
something that must be considered, especially when retaining experts for the defense
(see below).

       C.     Chronic Pain Syndrome (CPS)

        Chronic Pain Syndrome is generally defined as pain that persists longer than the
reasonable expected healing time for particular soft-tissue injury. The minimum
duration of time to qualify for the Chronic Pain Syndrome diagnosis is generally
identified between three to six months. With Chronic Pain Syndrome, there is most
often a lack of any objective indication of ongoing pain such as muscle weakness, joint
swelling, weight loss or fever. As might be expected, the disability incurred from
Chronic Pain Syndrome is usually out of proportion to the impairment or any objective
findings related to the impairment. Chronic Pain Syndrome is often associated with


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patients who suffer from drug or alcohol abuse, and depression. Diagnosis which must
be ruled out when considering Chronic Pain Syndrome include rheumatoid arthritis,
hyperthyroidism, multiple sclerosis, and nerve entrapment.

       Basically, a diagnosis of Chronic Pain Syndrome from a physician means that the
doctor really can't explain the symptoms that the patient is complaining of. Accordingly,
there are no set guidelines for the treatment. Physicians often adopt a several pronged
approach in treating Chronic Pain Syndrome including pain relief, behavior modification,
and psychotherapy.

       Complications from Chronic Pain Syndrome often include sleep disturbance, loss
of employment, marital or family problems, and impaired sleeping. The prognosis for
patients with Chronic Pain Syndrome varies, but is often poor.

       D.     Fibromyalgia

       Whether as a separate syndrome or a subset of Chronic Pain Syndrome,
fibromyalgia is another diagnosis that must be considered. Fibromyalgia is
characterized by symptoms throughout the body which often overlap with each other.
Two of the primary criteria are widespread pain in both sides of the body, above and
below the waste, but not generally in the hands and feet. Second, pain must be noted
when pressure is applied to specific tender points of the body including muscles, joints,
and tendon junctions. As with Chronic Pain Syndrome, there is no diagnostic test that a
doctor can do to specifically yield the diagnosis of fibromyalgia. Accordingly,
fibromyalgia is often diagnosed by eliminating other potential diagnosis. Some
researchers believe that fibromyalgia may be related to over sensitive nerve cells in the
spinal cord and brain, an imbalance in the brain chemical that controls mood, and
imbalance of hormones, or a disturbance in the deep phase of sleep.

       Although patients often trace the development of their fibromyalgia symptoms to
a specific event such as an accident, it well may be that there is no actual physical
connection, but rather a connection in the patient's mind between a specific event and
the development of fibromyalgia syndrome. One clue to many doctors' thoughts
regarding fibromyalgia is that one of the leading medical treatments for fibromyalgia is
antidepressant medication.

II.    EFFECT OF OTHER MEDICAL CONDITIONS ON SOFT-TISSUE CLAIMS

       A.     Psychiatric Disorders

              1.     Depression

         It is not unusual for anyone to feel sad or less interested in daily activities on an
occasional basis. However, the diagnosis of depression requires those types of
feelings, particularly for activities that previously gave a great deal of pleasure to one's
life, to persist for two weeks or more. Depression can be difficult to diagnose because
of the opposite effects its may have on particular people. Some patients oversleep as a
result of depression, some have sleep depravation. Some people overeat, as a result of


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depression, while some don't eat enough. Additional symptoms that are usually
associated with depression are feeling restless or sluggish to the point that others
notice, fatigue or loss of energy, feelings of worthlessness or excessive or inappropriate
guilt, diminished ability to think or concentrate, and recurrent thoughts of death or
suicide. As indicated above, depression is often related to Chronic Pain Syndrome or
fibromyalgia and often those conditions are treated with, among other things,
antidepressant medication.

              2.     Bipolar Disorder

       Bipolar disorder, sometimes also referred to as manic/depressive disorder, is
another psychiatric disorder which can often be related to patients with long-term soft-
tissue injury claims and/or chronic pain. This syndrome is characterized by wild mood
swings from euphoria and extreme optimism on one end of the spectrum, to sadness,
hopelessness, and anxiety at the other end. Interestingly, the depressive phase of
bipolar disorder is often associated with chronic pain. There is a subset of bipolar
disorder known as cyclothymia, which is a mild form of bipolar disorder, that includes
mood swings, but the highs and lows are not as severe as those of actual bipolar
disorder. Although doctors do not know the specific causes of bipolar disorder, there is
some evidence that it may be related to physical changes in the brain. Additional
causes may be genetic and environmental. Risk factors for bipolar disorder include
other biological family members with the disease, periods of high stress, drug abuse,
and major life changes such as death of a loved one, and/or traumatic physical injury.

              3.     Post-Traumatic Stress Disorder

        Post-traumatic stress disorder is an emotional illness that develops as a result of
a terribly frightening, life threatening or other traumatic event. Post-traumatic stress
disorder was first associated with soldiers returning from World War I, when it was first
referred to as combat fatigue or "shell shock." Other examples outside of the combat
situation include plane crashes, severe automobile accidents, natural disasters,
terrorism, and torture. Symptoms which may vary in severity, include flashbacks, sleep
disturbances, occupational instability, and family discord. A primary component of post-
traumatic stress disorder is that the patient will take every opportunity to avoid
stimulation associated with the occurrence. For example, someone truly suffering from
post-traumatic stress disorder related to surviving an airplane crash will most likely
never get on an airplane. This type of analysis can be useful when dealing with a
plaintiff who claims post-traumatic stress disorder as a result of an automobile accident.
A simple inquiry might be to ask how the plaintiff got to the deposition that morning. A
true plaintiff suffering from post-traumatic stress disorder related to an auto accident
would not have driven to the deposition in a car.

         Treatment for post-traumatic stress disorder often includes both psychotherapy
and medication, including the anti-depressants Zoloft or Paxil. These medications help
control the PTSD symptoms such as sadness, worry, and anger, and may also help
facilitate the psychotherapy process.



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      B.     Sleep Disorders

       Although some impairment in the normal sleep pattern is associated with each of
the disorders above, sleep disorders themselves, separate and apart from a
psychological overlay, can play a role in chronic pain. Common factors associated with
insomnia include physical illness, depression, anxiety, over use of caffeine, drug or
alcohol use, smoking. Accordingly, any patient complaining of chronic or long term soft-
tissue injuries should be evaluated for sleep disorders as well.

      C.     Other Medical Conditions

             1.     Lyme Disease

        Lyme Disease was first diagnosed in the United States in 1975, in the town of
Lyme, Connecticut, after doctors first diagnosed a group of children with rheumatoid
arthritis. As we all know now, it was subsequently determined that this particular
disease is spread by ticks and is most prevalent in the northeastern United States
although it does occur throughout the country. Symptoms include a red rash, flue like
symptoms, joint pain, chest pain, and sensory nerve pain. The arthritis of Lyme
Disease also looks like the other forms of inflammatory arthritis and can become
chronic. Researchers have also found that anxiety and depression occur with an
increased rate with people with Lyme Disease.

      If detected early, Lyme Disease can be diagnosed by the initial red rash,
however, subsequent diagnosis usually requires a blood test. Generally, Lyme Disease
can be treated with antibiotics and anti-inflammatory medication.

             2.     TMJ Syndrome

        The Temporal Mandibular Joint is the joint that connects the lower jaw to the
skull. It is comprised of muscles, nerves and bones. Problems in the temporal
mandibular joint can cause head pain, neck pain, eye pain and ear pain. TMJ can also
cause ringing in the ears, and hearing loss. TMJ can be caused by trauma including
everything from grinding the teeth to a punch in the jaw or an impact from an accident.
In addition, the temporal mandibular joint can be effected by Osteoarthritis, and
Rheumatoid Arthritis.

        As most causes of TMJ syndrome are temporary, treatment is generally
conservative, including anti-inflammatories, warm compresses, soft diet, physical
therapy, and psychotherapy. Often times, orthotics are used that resemble the mouth
guard that an athlete might wear. On some occasions, a cortisone injection into both
joints can be effective. The National Institute of Health recognizes TMJ syndrome as a
"chronic syndrome."




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              3.     Costochondritis

       Costochondritis is an inflammation of the area where the upper ribs join with the
cartridge that holds the ribs to the breast bone (sternum). This condition causes
localized chest pain. In an adult it can sometimes be confused with a heart attack or
heart disease. Costochondritis is generally thought to be an inflammatory process but
with no definite cause. Causes can be viral, like a respiratory infection, or bacterial.
The symptoms can be very painful at onset, but generally dissipate for a few weeks to
months.

       Costochondritis is most often identified with adolescents or young adults and can
become chronic if the condition is not resolved. The treatments include use of non-
steroidal anti-inflammatory medications, local heat or ice, and rest until the symptoms
resolve. Returning to physical activity too quickly can lead recurrence of symptoms and
potential development of chronic pain in the ribs, and chest area.

              4.     Spinal Stenosis

       Spinal Stenosis is a medical condition in which the spinal canal narrows and
compresses the spinal cord and nerves. While this is usually due to a natural process
of spinal degeneration from aging, it can also be caused by a spinal disc herniation
related to an accident. This is most often seen as lumbar Spinal Stenosis resulting in
low back pain and pain radiating through the legs, thighs, feet or buttocks. Often,
patients with pre-existing Spinal Stenosis can suffer significant injury from even a minor
traumatic event such as a low impact, rear-end automobile accident. Spinal Stenosis is
most often diagnosed through use of Magnetic Resonance Imaging (MRI). However,
detection of Spinal Stenosis via MRI must also be correlated with clinical findings such
as radiculopathy, muscle weakness, or muscular atrophy.

       There is much debate in the medical literature regarding conservative treatment
versus surgery for patients with Spinal Stenosis. Spinal Stenosis can often lead to
chronic pain and depression which as discussed above, often accompanies long-term
conditions.

              5.     Arthritis

        Although we often tend to lump all types of Arthritis together, it is important to
remember that there are two distinct varieties of Arthritis, Osteoarthritis, and
Rheumatoid Arthritis. Osteoarthritis occurs in the cartilage that cushions the bones as
your joints to deteriorate over time. Eventually, the cartilage can wear down completely,
leaving bone rubbing on bone, causing the ends of your bones to become damaged and
the joints to become painful. Common risk factors include, aging, gender, woman are
more likely to develop Osteoarthritis, obesity, and joint injuries such as sports injuries,
or traumatic injuries from an accident.

       Conversely, Rheumatoid Arthritis is an autoimmune disease which often causes
swelling in the hands, ankles, feet. Generally, the symptoms are worse in the morning,
or after long rest or inactivity. Rheumatoid Arthritis usually occurs in people between 30


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and 50 years of age. Comparatively, Osteoarthritis is approximately 20 times more
prevalent in the United States than Rheumatoid Arthritis. A simple blood test can often
be used to aid in the diagnosis of Rheumatoid Arthritis.

       Although there is no known cure for Rheumatoid Arthritis, treatment goals seek
to reduce joint inflammation and pain, maximize joint function, and prevent joint
destruction and deformity. Cortisone can be used to reduce pain and inflammation and
more aggressive injections such as gold, to promote disease remission.

III.   DEFENDING THE LONG-TERM TREATMENT CASE

        The first step in defending the long-term treatment case is to get a good handle
on all of the medical issues presented in the case. It is very important to get as
complete a medical history of the facts as possible including not only all of the medical
records related to the particular claim you are handling, but also any medical records
that can be discovered from any prior accident or claims, including Worker's
Compensation records, dental records, physical therapy records, and psychotherapy
records if plaintiff has a mental condition at issue in the case.

        Once the medical issues in the case have been determined to be complex or
long-term, a top medical expert should be retained. Care should be given to retain an
expert in a particular area involved in the plaintiff's complaint, however, there are
certainly many doctors now that specialize in Chronic Pain Syndrome, Complex
Regional Pain Syndrome, Fibromyalgia, and the like that it should not be too difficult to
find a well qualified expert to assist in the analysis of plaintiff's condition. Once the
expert has had an opportunity to review records, a medical examination of the plaintiff
should be requested. In most states, this is a simple discovery request made to the
plaintiff. In some jurisdictions, a court order is necessary.

       Often, a great deal of ancillary information can be gleaned from the medical
records, such as statements concerning the accident or incident that led to the injury, or
potentially inconsistent or overlapping medical treatment being received by the claimant.

       In the long-term treatment case, it is also often helpful to depose the treating
physicians in order to obtain information from them regarding their thoughts and goals
as far as treating a particular patient is concerned. What do they think the causes of
long-term pain are? Why do they believe that the symptoms haven't resolved? This
information can also be helpful for the expert you have retained in formulating his or her
opinions in the case.

IV.    OTHER TACTICS

       There are several other tactics that can be used in the defense of long-term care
case that do not specifically relate to medical issues. The first such tactic, which must
be used with caution, is sub rosa investigation of the plaintiff. My personal preference is
to use sub rosa investigation at the end of the case, just prior to trial, so that the
existence of any sub rosa videotape cannot be discovered by the plaintiff in case the
investigation does not prove fruitful for the defense. Most times, sub rosa investigation


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yields information that is of minimal impact in the case. However, every once in a while,
a claimant can be observed undertaking activities that either the claimant or the
claimant's physician has already testified cannot be undertaken by this particular person
given the injuries involved. This type of evidence can be dramatic and can have a
devastating impact on plaintiff's case if properly obtained and properly presented.
Please check in your particular jurisdictions to see if there are any procedural limitations
on sub rosa investigation and its use.

        Videotaping the plaintiff's deposition is often a good way to heighten the intensity
of the process and lead to better results for the defense. Personally, I certainly do not
videotape every plaintiff's deposition, but I do believe that videotaping depositions in
long-term or chronic injury cases or cases where the plaintiff is suspect as far as
truthfulness is concerned, can be beneficial to the defense and lead to more forthright
answers from the plaintiff. There is something about having a camera pointed at them
that just makes it more difficult for a plaintiff to be untruthful in a deposition and this can
also lead to very beneficial use of the video of the deposition at trial.

       Additional items to be considered by the defense include conducting a thorough
background check on the plaintiff in order to see if there is something else going on in
the particular plaintiff's life that might be driving the claim in addition to chronic pain,
such as overwhelming financial problems, divorce, or other domestic disputes.
Similarly, obtaining a complete employment history, including any information regarding
any Worker's Compensation claims might lead to prior incidents where the plaintiff has
claimed pain in the particular area that he or she is also claiming as a result of the
incident you are handling. Obviously, any pre-existing complaint in anyway related to
the one you are handling is very significant information for the defense.

V.     ROLE OF DEFENSE EXPERTS IN COMPLEX SOFT-TISSUE CASES

       A.     Medical Experts

       As indicated above, it is vitally important for the defense to be very careful in the
selection of experts in complex soft-tissue cases. For example, even if chiropractic
treatment is ongoing and long-term, my recommendation would be that an orthopedist
be retained as a defense expert, rather than a chiropractor. These cases may require
several experts or consultants including internal medicine specialists, psychologists,
pain management doctors, rheumatologists. All of these may be necessary in order to
obtain a complete picture for the jury related to the plaintiff's ongoing medical condition
and the relation of the medical condition to the incident claimed by the plaintiff.
Although these experts can be expensive to retain, this expense could yield a several
fold benefit in the resolution of the case as opposed to simply attacking the case with a
chiropractor or physical therapist.




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         B.        Non-Medical Experts

        We often overlook the role of non-medical experts in long-term treatment cases.
These experts can often work in conjunction with the medical experts in order to paint a
complete picture of the incident, the trauma allegedly suffered by the plaintiff, and the
resulting injury and treatment. Such experts to consider include biomechanical
engineer, vocational and occupational therapist, human factors engineer, accident
reconstructionist, and an economist. It is putting together of this defense "team" that will
provide the best results in dealing with long-term, complex soft-tissue cases.


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