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Follow-up studies of personal injury litigants
InternabonaI Pnnted
Journal
I” the U.S.A.
of Law and Psychratty.
Vol. 7. pp. 179-198.
1994
All rights reserved.
Follow-up
CopyrIght
t
0160-2527194 $3.00 + .OO 1995 Pergamon Press Ltd
Studies Of Personal Injury Litigants
George Mendelson* “I would have everie man write what he knowes and no more.” Montaigne The term “post accident syndrome” is but one of a wide variety of labels which have been applied to those injured in industrial and motor car accidents, who may go on to develop an apparent psychological disturbance when the physical injuries - which may have been minor to start with - appear to have been resolved. In my view the phrase “personal injury litigants” is preferable as a descriptive term which has no diagnostic pretensions. In reviewing the literature dealing with both clinical aspects and outcome studies of personal injury litigants it becomes very quickly apparent that it is a nosological quaqmire, with a profusion of terms used to describe the patients. Authors using these terms tend to imply that these are clinical diagnoses, yet in no study does there appear any attempt to establish the diagnostic validity of these terms. The wide variety of terms used by different authors is illustrated in Table 1. This wide usage is one of the difficulties in reviewing studies of personal injury litigants: furthermore, authors often use terms which are idiosyncratic, inclusion and/or exclusion criteria are not defined, duration of followup may not be stated, and the outcome variables are usually different and illdefined. The majority of studies of personal injury litigants published in the past 20 years refer to Henry Miller’s study (i961). In this influential paper Miller set out five propositions, which are summarised in Table 2. These propositions have been repeated frequently, both in the medico-legal literature and in courts of law. However, research since 1961 has indicated that Miller’s views have not been supported by results of other studies of personal injury litigants; nevertheless, opinions based on Miller’s work continue to be expressed. It is to the fifth of Miller’s propositions that this discussion is addressed: what happens to personal injury litigants after their claim is finalized? In a discussion on traumatic neurasthenia and litigation neurosis, PurvesStewart (1928) referred to 17 patients diagnosed as showing “compensation hysteria”. On follow-up he was succesful in tracing only seven of these patients: six had recovered within a short period of time and returned to work, while the seventh received a pension for some years. When the pension was terminated, he also resumed work. A different result was reported by Denker (1939). In a group of 15 patients who received a lump-sum settlement, seven showed “a distinctly favorable * Honorary Lecturer, Department of Psychological Medicine, Monash University, Prince Henry’s Hospital. Melbourne. Australia. Address correspondence to: 7130 Queens Road, Melbourne. 3004. 179
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TABLE 1
Sequelae of Compensable Accident neurosis Accident victim syndrome Aftermath neurosis American disease Attitudinal pathosis Compensation hysteria Compensationitis Compensation neurosis Fright neurosis Greek disease Greenback neurosis Justice neurosis Litigation neurosis Mediterranean back Mediterranean disease
Accidents
Neurotic neurosis Post-accident anxiety syndrome Post-accident syndrome Post-traumatic syndrome Profit neurosis Railway spine Secondary gain neurosis Traumatic hysteria Traumatic neurasthenia Traumatic neurosis Triggered neurosis Unconscious malingering Vertebral neurosis Wharfie’s back Whiolash neurosis
Five patients did not show any clear-cut result, while the remaining three patients continued to experience “disabling symptoms” for a long time. Denker quoted a study of the recipients of Workmen’s Compensation in New York, which reported that marked improvement followed settlement in only 17 out of 64 cases (Norcross, 1936). These three studies reported contradictory findings as to whether or not patients improve within a short period of time of the settlement of their compensation claim. While having litigation finalized is often a relief to the patient, a more careful analysis of other factors is necessary. The issue of prognosis following the finalization of a compensation claim is linked to psychological and personality factors. Frequently, therefore. the psychiatrist is called as an expert witness and examined - and cross-examined - at length about the probability of the plaintiff’s symptoms resolving and his or her return to work within a relatively short period of the conclusion of the claim. In the past 25 years there have been several studies published which, I believe, allow us to answer this question with some likelihood of correct prediction. Some of these studies are concerned with a particular type of initial injury and, of these, the first group discusses neck injuries. result”.
Propositions
TABLE 2 Concerning ‘Accident Neurosis’ (from Miller, 1981)
1. “An absolute failure to respond to therapy until the compensation issue was settled.” 2. “The accident must have occurred in circumstances where the payment of financial compensation is potentially involved.” 3. “It is comparatively uncommon where injury has been severe. . the inverse relationship to the severity of injury is crucial to its understanding.” 4. “Such a development is favoured by a low social and occupational status.” 5. “After (the compensation issuewas settled)nearly all the cases described recovered completely without treatment.”
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Neck Injuries An early follow-up study by Gotten (1956), reported on 100 patients with “whiplash injury” after all compensation ciaims had been finalized. Fiftyfour patients out of the 100 stated that they had “no appreciable trouble” at the time of interview. Thirty-four patients reported continuing “minor discomfort”, while 12 patients continued to experience symptoms severe enough to warrant sleeping in traction, wearing a support collar, and continuing other forms of therapy. Follow-up was over a range of one to 26 months after settlement; patients over the age of 60 years had a slower rate of recovery. In a study of neck injuries in a group of 67 women involved in car accidents, Schutt and Dohan (1967) divided the patients into groups of 43 women with litigation pending, 7 women with litigation finalized, and 17 women not involved in litigation. They found no difference in the proportion of patients with symptoms among the three groups, and commented that their findings did not support “the ‘apparently popular opinion that prolonged symptoms are usually due to the possibility of secondary gain”. Macnab (197 1) reported on a series of patients with hyperextension injury of the neck following motor vehicle accidents. He reviewed 145 patients, chosen at random from a group of 266, at least two years after the conclusion of litigation. Out of the 145 patients reviewed, 121 were still complaining of symptoms. The frequency of persisting symptoms was thus 83% among the 145 patients reviewed, and it was 45% among the whole group of 266 patients. Another follow-up study of patients with neck injuries was that by Hohl (1974). His group consisted of 146 patients with no pre-existing cervical degenerative changes, re-examined five years after injury. Forty-four patients had no legal claim and no compensation involved; of these 50% were symptom free. All the other 102 patients had their litigation finalized at the time of follow-up. Patients whose claims were settled within the first six months after injury showed complete recovery in 83% of cases, as compared with 38% of patients in the group whose claims were settled after more than 18 months. Poor results were found in patients who had pain or numbness in an upper extremity shortly after the injury, those with reversal of cervical lordosis, and those needing a collar for more than 12 weeks. Head Injuries The case material discussed by Miller (1961) was based on 206 patients, selected out of about 4,000 examined by him over a 12-year period. Fifty of these patients were followed-up at least two years after settlement; these 50 patients were selected on the basis of “gross neurotic symptoms” noted at the initial consultation. While 12 out of the 50 patients had sustained severe injuries, there had been no physical injury in three cases, and ‘trivial’ injury in the remaining 35 patients. Among the patients with minor injuries were 17 with head injuries and 18 with injuries to other parts of the body. At follow-up, 41 out of 45 patients previously employed had returned to work. Two out of the 50 patients were described as “still disabled” by their psychiatric symptoms, and in receipt of disability allowance. The symptoms of one patient
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“cleared up rapidly when a tough doctor terminated the payments”. (Miller & Cartlidge, 1974, p. 642) In a report on 12 1 patients assessed by the Workmen’s Compensation Board of Ontario, Richardson ( 197 1) classified the head injuries as minor, moderate, or severe, according to the duration of post-traumatic amnesia. At follow-up after five years, only 8 out of the 33 patients with minor injuries were back at work. The remaining 25 patients in this group were either unemployed or in sheltered workshops, in nearly equal proportion. Out of 50 patients in the severely injured group, 36 were unemployed; patients in the group with moderate injuries had only slightly better outcome than those with minor injuries. In a review of 11 studies providing details on return to work following head injury, Humphrey and Oddy (1980) showed that the rate of return to work varied from 50 to 99%. However, the authors comment that these results were based “on superficial evidence”. They found that age and length of post-traumatic amnesia were the most important determinants of return to work, with some indication that previous occupational status, intellectual deficits and personality change also had some influence on the outcome. Kelly & Smith ( 198 1) reported on a follow-up of patients with ‘post-traumatic syndrome’ due to closed head injury. They found that out of 26 patients not working at the time of settlement, 22 remained unemployed after an average of 2.8 years from conclusion of litigation. Those not returning to work tended to be older, and employed in more dangerous occupations. Low Back Injuries
A study performed for the Workers’ Compensation Commission of New South Wales (Encel & Johnston, 1978) involved a follow-up of litigants at least three years (and in some cases six or seven) after the settlement of their claims. Out of the 646 workers followed up, information was obtained from 193. The authors found that among the 175 patients younger than the statutory retiring age at the time of follow-up, 62 (35%) were not working. The authors commented that among those who returned to work there was a trend towards lighter types of work for lower wages, and that most never regained their pre-injury work status. Other Studies
Several studies have reported on patients with a variety of injuries where the number of patients suffering from a particular injury was too small to warrant a separate report. A study by Morgan Snider & Sobol, (1959) reported on 485 workers in the state of Michigan who had received lump sum settlements during 1956 and 1957. The authors found that 3 1% of this group were at work prior to settlement. Of those not employed at the time of settlement, 35Y0 returned to work, while 65% were not employed an average of a yearand-a-half later. In a study of 1,3 16 men involved in industrial accidents in New York State during the 1950s (Jaffe, Day & Adams, 1964), at follow-up it was found that 14% were unemployed and another 6% were “worse off” than before the
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injury. Those not employed were older, less educated, less skilled, and more likely to be black or Puerto Rican. Thompson (1965) reported on 500 patients with “post-traumatic psychoneurosis”; no details were provided of the original accidents and injuries. Out of 190 patients in this group whose claims had been finalized, 15% reported that their symptoms were “better” after litigation had concluded. Cole (1970) discussed the psychiatric aspects of compensable injury in an analysis of 292 patients referred for psychiatric assessment. In his study he devoted three paragraphs to a discussion of “progress after settlement” (p. 95). This section described 14 patients who were in treatment at the time of settlement. Out of eight patients seen following an industrial accident, three continued to complain of symptoms, one was “considerably relieved”, and four were lost to follow-up. Among the six patients treated following other accidents, in four cases “settlement did not appear to influence their progress materially”; the other two cases were lost to follow-up. Cole also referred to three other patients who were not seen prior to settlement, but were referred and treated following finalization of their claims, and who “appeared to have changed little after the settlement”. Balla and Moraitis (1970) described 82 patients of Greek migrant origin, seen in a family practice in Melbourne. They found that 40 patients returned to work prior to settlement, while 42 were not working when their compensation claim was finalized. On follow-up after an average of 25 months since conclusion of litigation, 11 patients had returned to work while 31 out of the 42 had not resumed gainful employment. The authors commented that patients with back injuries had a worse prognosis, as also did those who complained of loss of libido. A study of patients referred for psychiatric assessment for medico-legal purposes was reported by Culpan and Taylor (1973). Out of 60 patients employed at the time of the accident, 52 returned to work prior to settlement of the claim, with 30 of these working at a “lower” level. Out of the eight patients not employed at the time of settlement, the authors state that “it appeared” ali but one were at work within a year or so of conclusion of litigation. Out of the total group of 71 patients followed-up in this study, 15 (21%) were described as “still more or less disabled” following conclusion of litigation. A follow-up study of 101 patients referred for psychiatric evaluation or treatment following industrial or motor car accidents was reported by Mendelson ( 198 1). These patients were reviewed following the finalization of their claims for compensation; they were drawn from a consecutive group of 262 patients, all assessed prior to the settlement of their claims; all these patients were working at the time of their accidents. Thirty-five patients returned to work prior to settlement: a significantly higher proportion of post-motor car accident litigants resumed work prior to settlement (25 out of 42) than litigants following an industrial accident (ten out of 59). Of the 66 patients not employed at the time of finalization of their claim, 13 were lost to follow-up; these patients were significantly younger than the 53 patients reviewed at follow-up. At follow-up nine out of the 53 patients were employed; these nine patients were also significantly younger than the 44 patients not working. As the group of
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patients “lost” to follow-up was similar in age to that employed, these two groups were combined so that the overall result was of 44 out of 66 patients not employed a mean of 16 months after settlement, and 22 out of 66 employed or presumed to be employed. Discussion In this review of 18 follow-up studies of personal injury litigants, three studies (Purves-Stewart, 1928; Miller, 1961; Culpan and Taylor, 1973) favour the view that claimants improve within a fairly short time of the finalization of their claims. The other studies reviewed do not support the view that litigants almost invariably become symptom-free and return to work after finalization of their claim. Of these studies, six (Norcross, 1936; Denker, 1939; Morgan et al., 1959; Jaffe et al., 1964; Schutt and Dohan, 1968; Cole, 1970) deal with small numbers of patients or were published a relatively long time ago, so that their findings may not be readily extrapolated. to the present. The results of the remaining nine studies indicate that among patients following head injury between 50% (Richardson, 1971) and 85% (Kelly and Smith, 1981) fail to return to work after settlement, although the latter result may not be valid because of the large number of patients lost to follow-up in this particular study. For patients with a low back injury, Encel and Johnston (1978) found that 35% were unemployed after a minimum of three years following settlement. Patients with neck injuries have persistent disability of a severe degree in from 12% (Gotten, 1956) to perhaps 60% (Hohl, 1974) of cases five years after injury. Among groups of patients with a variety of initial injuries, failure to return to work after legal settlement was found in 75% after a mean of 25 months (Balla and Moraitis, 1970), and in 67% after a mean of 16 months (Mendelson, 1981). A likely reason for the disparity in findings between the study by Miller (1961) and the others cited above lies in the fact that Miller examined a preselected group of patients referred to him on behalf of insurers, and his follow-up group of 50 patients was further pre-selected on the basis of the “gross neurotic symptoms” which they exhibited. Studies reporting high rates of persistence of symptoms and work disability following legal settlement are based on follow-up of patients not only referred for assessment for medicolegal purposes, but also referred for treatment. It is important to examine some of the possible factors involved in the initiation and maintenance of psychological symptoms and disability following accidental injury in these patients. The issue of motivation in its forensic setting is of course a complex one (Samuels, 1970), and subject to much debate and disagreement. Henry Miller’s view - earlier stated by Dana (1920) and Kennedy (1946) - was that compensation claimants are motivated by financial considerations, and his own findings were used to bolster this simplistic notion. Important factors which influence the outcome following accidental injury include those related to personality predisposition, cultural and occupational considerations, the nature of interpersonal relationships, and general psychological effects of the accident and injury.
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TABLE 3 Factors Influencing Outcome Following Personal Injury Psychological effect of accident and injury:
-psychiatric illness -alterations in self-concept and body image -personality disorganisation -regression Ethnic factors: -abnormal illness behaviour -anxiety proneness -folk beliefs concerning disease Occupational factors: -work dissatisfaction -heavy physical work -repetitive work -dangerous work Pre-morbid personality: -dependency -hypochondriasis -early emotional deprivation Psychodynamic factors: -interpersonal within family -within social milieu
It is well recognized in general clinical practice - and of special interest to those of us involved in liaison-consultation psychiatry - that physical illness and injury is invariably associated with psychological reactions (Peterson, 1974). These may be short-lived if the illness or injury produces a brief period of impairment, but prolonged ill health and disability - in circumstances where issues of compensation are not involved - frequently produces psychiatric impairment which may at times reach psychotic proportions (Cutting, 1980), and depression is the most frequent finding (Bustamente and Ford, 1981), accompanied by alterations in self-concept and body image, personality disorganisation and regression. It has also been recognized that ethnic influences on the perception of illness are important, and this is of particular relevance in the context of industrial accidents and subsequent disability. These influences have been described in relation to illness behaviour and hypochondriasis by Pilowsky and Spence (1977), and the psychological similarities can be demonstrated whether studied in the immigrants in Australia or in their native Greece (Skinner, 1966; Bottomley , 1976). Cross-cultural studies have show that some ethnic groups have a greater level of measurable anxiety (Okasha and Ashour, 1981), and this clearly will make members of such groups more prone to psychological reactions of greater severity should an illness or accidental injury affect them. Similarly, it has been shown that psychological reactions associated with physical illness among rural communities in Spain (Vazquez Barquero, Munoz & Madoz Jauregni, 1981) - where there is no provision for compensation - differ very little from those described among those injured in compensable accidents in Australia (Parker, 1977).
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It has been demonstrated that an important social factor in the maintenance of work disability is dissatisfaction with the job (Allodi & Montgomery, 1979) - a highly relevant consideration, in view of the finding in a recent Sydney survey that 25% of 20,000 men and 20% of 17,000 women attending for a Medicheck screening expressed dissatisfaction with their job (Rizzo, Reynolds & Gallagher, 1981). Other important factors which predispose to prolonged disability include hypochondriasis and dependency (Parker & Lipscombe, 1980; Stone & Neale, 1981), as well as deprivation of emotional needs in early life: this has been termed “the meal ticket syndrome” (Fann & Sussex, 1976). Finally, significant factors which come into play within the family of the injured person have also been described (Rickarby , 1979; Stagoll, I98 1). The status of the injured person alters both within the family and within his or her social milieu. The newly-acquired “patient” role is validated and careeliciting behaviour reinforced. Mint (1963) has drawn attention to the fact that in some European communities the sick person becomes the focus of the family’s concern, with attention and support lavished upon him. As Ellard (1970) has pointed out, this may be of value in accelerating recovery, but it can result in prolonged disability if family members have an emotional investment in maintaining the injured person in a passive and dependent role. The importance of these dynamic factors operating at what can be described as “unconscious” levels within the family have been graphically described by Adler (1981) in the case history of a ten-year-old boy with the Ganser syndrome (pseudodementia). In conclusion, I would like to quote from Kelly’s (1981) recent review a proposition impossible, I believe, to disagree with on the basis of the survey of literature quoted in this presentation: “It seems clear that there is no longer any justification for a neurologist or a lawyer to stand up in Court and affirm that it is well known that patients with such symptoms immediately return to work after their claim has been settled” (p. 244). References Adler, R. t 198 1). Pseudodementia or Ganser syndrome in a ten-year-old boy. Ausrralian and New Zealand Journal of Psychiatry, 15, 339-342. Allodi, F. & Montgomery, R. C1979). Psychosocial aspects of occupational injury. Social Psychiarry. 14, 25-29. Balla. J. I. & Moraitis, S. (1870). Knights in armour: a follow-up study of injuries after legal settlement. Medical Journal of Australia, 2. 355-36 1. Bottomley. G. (1976). Rural Greeks and illness: an anthropologist’s viewpoint. Medical Journal ofAusrralia, I, 798-800. Bustamente, J. P. & Ford, C. V. ( 198 1). Characteristics of general hospital patients referred for psychiatric consultation. Journal of Clinical Psychiaq, 42, 338-341. Cole, E. S. (1970). Psychiatric aspects of compensable injury. Medical Journal of Australia, 1, 93-100. Culpan, R. & Taylor, C. (1973). Psychiatric disorders following road traffic and industrial injuries. Australian and New Zealand Journal of Psychiatry, 7. 32-39. Cutting, J. C. (1980). Physical illness and psychosis. Brirish Journalof Psychiarry. 136. 109-I 19. Dana, C. L. ( 1920). Wounds of the head and compensation laws. Archives of Neurology and Psychiarry, 4. 479-483. Denker. P. G. (1939). Prognosis of insured neurotics: study of 1,000 disability insurance claims. New York Scare Journal of Medicine, 39. 238-247.
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Ellard, J (1970). The problems of the migrant. Proceedings of the Medico-Legal Society of New South Wales, 4, 87-98. Encel, S. &Johnston, C. E. (1978). Compensation andrehabilitation. A survey of workers’ compensation cases involving back injuries and lump sum settlements. New South Wales University Press: Sydney. Fann, W. E. & Sussex, J. N. (1976). Late effects of early dependency need deprivation: meal ticket syndrome. British Journal of Psychiatry, 1.28, 262-268. Gotten, N. (1956). Survey of one hundred cases of whiplash injury after settlement of litigation. Journal of the American
Medical Association,
Hohl, M. (1974). Soft-tissue
162, 865-867.
injuries of the neck in automobile accidents: factors influencing prognosis.
Journal of Bone and Joint Surgery,
56-A.
1675-1682.
Humphrey, M. 8~ Oddy, M. Return to work after head injury: a review of post-war studies. Injury, 12, 107-l 14. Jaffe, A. J., Day, L. H. & Adams, W. (1964). Disabled Workers in the Labor Market. The Bedminster Press: Totowa (New Jersey). Kelly, R. ( 198 1). The post-traumatic syndrome. Journal of the Royal Socieo of Medicine, 74. 242-245. Kelly, R. and Smith, B. N. (1981). Post-traumatic syndrome: another myth discredited. Journal of the Royal Society of Medicine,
Kennedy.
74, 275-277.
F. (1946). The mind of the injured worker: its effect on disability
Medicine,
periods.
Compensation
1, 19-24.
Macnab, 1. (1971). The “whiplash syndrome”. Orthopedic Clinics of North America, 2, 389-403. Mendelson. G. (1981). Persistent work disability following settlement of compensation claims. Law Institute Journal
(Melbourne),
55, 342-345.
Miller, H. (1961). Accident neurosis. British Medical Journal, I, 919-925; 992-998. Miller, H. & Cartlidge, N. (1974). Simulation and malingering in relation to injuries of the brain and spinal cord. In E. H. Feiring (Ed.). Brock’s Injuries of the Brain and Spinal Cord, 5th ed., Springer Publishing Co.: New York, pp. 638-667. Mint, S. (1963). Of new Australian patients, their medical lore and major anxieties. Medical Journal ofAustralia,
1, 681-687.
Morgan, J. N., Snider, M., & Sobol, M. G. ‘Lump Sum Redemption Settlements and Rehabilitation’. Survey Research Center, lnstitute for Social Research, University of Michigan, 1959. Quoted in Encel and Johnston, op. cit. Norcross, C. ( 1936). Vocational Rehabilitation and Workmen’s Compensation. Rehabilitation Clinic: New York. Quoted in Denker. op. cit. Okasha, A. & Ashour, A. (1981). Psycho-demographic study of anxiety in Egypt: the PSE in its Arabic version. British Journal of Psychiatry, 139, 70-73. Parker, G. & Lipscombe, P. (1980). The relevance of early parental experiences to adult dependency, hypochondriasis and utilization of primary physicians. British Journal of Medical Psychology, 53. 355363.
Parker, N. (1977). Accident litigants with neurotic symptoms. MedicalJournal ofAustralia, 2, 318-322. Peterson, B. H. (1974). Psychological reactions to acute physical illness in adults. Medical Journal of Australia,
Pilowsky,
1, 311-316.
I. & Spence, N. D. (1977). Ethnicity and illness behaviour. Psychological
Medicine,
7, 447-
452.
Purves-Stewart,
J. (1928). Discussion on traumatic neurasthenia
of the Royal Society of Medicine,
and the litigation neurosis. Proceedings
21, 359-361.
Richardson, 1. C. (197 1). The late management of industrial head injuries. In Proceedings of an international syjmposium on head injuries, Churchill Livingstone: Edinburgh, p, 127. Quoted in Humphrey and Oddy. op. cit. Rickarby, G. (1979). Compensation neurosis and the psycho-social requirements of the family. British Journal of Medical Psychology,
Rizzo, C.. Reynolds,
Journal of Social Issues, Sciences.
H. (1981). Job satisfaction:
a study of Sydney adults. Australian
16. 138-148.
Samuels. G. F. (1970). Motivation of Forensic
52, 333-338.
I. & Gallagher,
of human conduct and its forensic implications.
Australian Journal
3, 44-52.
Schutt, C. H. & Dohan, F. C. (1968). Neck injury to women in auto accidents: a metropolitan Journal of the American
Medical Association,
206,
Skinner. J. C. (1966). Symptom and defence in contemporary of Nervous
and Mental Diseases,
141, 478-489.
plague.
2689-2692.
Greece: a cross-cultural
inquiry. Journal
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Stagoll, B. (1981). Work-injuries of Family Therapy,
MENDELSON
and invalidism in migrant families: a systems view. Ausfralian Journal
2, 63-75.
Stone, A. A. & Neale, J. M. (1981). Hypochondriasis and tendency to adopt the sick role as rnt&lduxa of the relationship between life-events and somatic symptomatology. British Journal of Medical Psychology,
54, 75-81.
Thompson, Psychiatry,
G. N. (1965). Post-traumatic 121,
psychoneurosis
- a statistical
survey. American
.lournal of
1043-1048.
Vazquez Barquero, J. L., Munoz, P. E. & Madoz Jauregui, V. (1981). The interaction between physical illness and neurotic morbidity in the community. British Journal of Psychiatq 139, 328-335.
Journal
I” the U.S.A.
of Law and Psychratty.
Vol. 7. pp. 179-198.
1994
All rights reserved.
Follow-up
CopyrIght
t
0160-2527194 $3.00 + .OO 1995 Pergamon Press Ltd
Studies Of Personal Injury Litigants
George Mendelson* “I would have everie man write what he knowes and no more.” Montaigne The term “post accident syndrome” is but one of a wide variety of labels which have been applied to those injured in industrial and motor car accidents, who may go on to develop an apparent psychological disturbance when the physical injuries - which may have been minor to start with - appear to have been resolved. In my view the phrase “personal injury litigants” is preferable as a descriptive term which has no diagnostic pretensions. In reviewing the literature dealing with both clinical aspects and outcome studies of personal injury litigants it becomes very quickly apparent that it is a nosological quaqmire, with a profusion of terms used to describe the patients. Authors using these terms tend to imply that these are clinical diagnoses, yet in no study does there appear any attempt to establish the diagnostic validity of these terms. The wide variety of terms used by different authors is illustrated in Table 1. This wide usage is one of the difficulties in reviewing studies of personal injury litigants: furthermore, authors often use terms which are idiosyncratic, inclusion and/or exclusion criteria are not defined, duration of followup may not be stated, and the outcome variables are usually different and illdefined. The majority of studies of personal injury litigants published in the past 20 years refer to Henry Miller’s study (i961). In this influential paper Miller set out five propositions, which are summarised in Table 2. These propositions have been repeated frequently, both in the medico-legal literature and in courts of law. However, research since 1961 has indicated that Miller’s views have not been supported by results of other studies of personal injury litigants; nevertheless, opinions based on Miller’s work continue to be expressed. It is to the fifth of Miller’s propositions that this discussion is addressed: what happens to personal injury litigants after their claim is finalized? In a discussion on traumatic neurasthenia and litigation neurosis, PurvesStewart (1928) referred to 17 patients diagnosed as showing “compensation hysteria”. On follow-up he was succesful in tracing only seven of these patients: six had recovered within a short period of time and returned to work, while the seventh received a pension for some years. When the pension was terminated, he also resumed work. A different result was reported by Denker (1939). In a group of 15 patients who received a lump-sum settlement, seven showed “a distinctly favorable * Honorary Lecturer, Department of Psychological Medicine, Monash University, Prince Henry’s Hospital. Melbourne. Australia. Address correspondence to: 7130 Queens Road, Melbourne. 3004. 179
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TABLE 1
Sequelae of Compensable Accident neurosis Accident victim syndrome Aftermath neurosis American disease Attitudinal pathosis Compensation hysteria Compensationitis Compensation neurosis Fright neurosis Greek disease Greenback neurosis Justice neurosis Litigation neurosis Mediterranean back Mediterranean disease
Accidents
Neurotic neurosis Post-accident anxiety syndrome Post-accident syndrome Post-traumatic syndrome Profit neurosis Railway spine Secondary gain neurosis Traumatic hysteria Traumatic neurasthenia Traumatic neurosis Triggered neurosis Unconscious malingering Vertebral neurosis Wharfie’s back Whiolash neurosis
Five patients did not show any clear-cut result, while the remaining three patients continued to experience “disabling symptoms” for a long time. Denker quoted a study of the recipients of Workmen’s Compensation in New York, which reported that marked improvement followed settlement in only 17 out of 64 cases (Norcross, 1936). These three studies reported contradictory findings as to whether or not patients improve within a short period of time of the settlement of their compensation claim. While having litigation finalized is often a relief to the patient, a more careful analysis of other factors is necessary. The issue of prognosis following the finalization of a compensation claim is linked to psychological and personality factors. Frequently, therefore. the psychiatrist is called as an expert witness and examined - and cross-examined - at length about the probability of the plaintiff’s symptoms resolving and his or her return to work within a relatively short period of the conclusion of the claim. In the past 25 years there have been several studies published which, I believe, allow us to answer this question with some likelihood of correct prediction. Some of these studies are concerned with a particular type of initial injury and, of these, the first group discusses neck injuries. result”.
Propositions
TABLE 2 Concerning ‘Accident Neurosis’ (from Miller, 1981)
1. “An absolute failure to respond to therapy until the compensation issue was settled.” 2. “The accident must have occurred in circumstances where the payment of financial compensation is potentially involved.” 3. “It is comparatively uncommon where injury has been severe. . the inverse relationship to the severity of injury is crucial to its understanding.” 4. “Such a development is favoured by a low social and occupational status.” 5. “After (the compensation issuewas settled)nearly all the cases described recovered completely without treatment.”
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Neck Injuries An early follow-up study by Gotten (1956), reported on 100 patients with “whiplash injury” after all compensation ciaims had been finalized. Fiftyfour patients out of the 100 stated that they had “no appreciable trouble” at the time of interview. Thirty-four patients reported continuing “minor discomfort”, while 12 patients continued to experience symptoms severe enough to warrant sleeping in traction, wearing a support collar, and continuing other forms of therapy. Follow-up was over a range of one to 26 months after settlement; patients over the age of 60 years had a slower rate of recovery. In a study of neck injuries in a group of 67 women involved in car accidents, Schutt and Dohan (1967) divided the patients into groups of 43 women with litigation pending, 7 women with litigation finalized, and 17 women not involved in litigation. They found no difference in the proportion of patients with symptoms among the three groups, and commented that their findings did not support “the ‘apparently popular opinion that prolonged symptoms are usually due to the possibility of secondary gain”. Macnab (197 1) reported on a series of patients with hyperextension injury of the neck following motor vehicle accidents. He reviewed 145 patients, chosen at random from a group of 266, at least two years after the conclusion of litigation. Out of the 145 patients reviewed, 121 were still complaining of symptoms. The frequency of persisting symptoms was thus 83% among the 145 patients reviewed, and it was 45% among the whole group of 266 patients. Another follow-up study of patients with neck injuries was that by Hohl (1974). His group consisted of 146 patients with no pre-existing cervical degenerative changes, re-examined five years after injury. Forty-four patients had no legal claim and no compensation involved; of these 50% were symptom free. All the other 102 patients had their litigation finalized at the time of follow-up. Patients whose claims were settled within the first six months after injury showed complete recovery in 83% of cases, as compared with 38% of patients in the group whose claims were settled after more than 18 months. Poor results were found in patients who had pain or numbness in an upper extremity shortly after the injury, those with reversal of cervical lordosis, and those needing a collar for more than 12 weeks. Head Injuries The case material discussed by Miller (1961) was based on 206 patients, selected out of about 4,000 examined by him over a 12-year period. Fifty of these patients were followed-up at least two years after settlement; these 50 patients were selected on the basis of “gross neurotic symptoms” noted at the initial consultation. While 12 out of the 50 patients had sustained severe injuries, there had been no physical injury in three cases, and ‘trivial’ injury in the remaining 35 patients. Among the patients with minor injuries were 17 with head injuries and 18 with injuries to other parts of the body. At follow-up, 41 out of 45 patients previously employed had returned to work. Two out of the 50 patients were described as “still disabled” by their psychiatric symptoms, and in receipt of disability allowance. The symptoms of one patient
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“cleared up rapidly when a tough doctor terminated the payments”. (Miller & Cartlidge, 1974, p. 642) In a report on 12 1 patients assessed by the Workmen’s Compensation Board of Ontario, Richardson ( 197 1) classified the head injuries as minor, moderate, or severe, according to the duration of post-traumatic amnesia. At follow-up after five years, only 8 out of the 33 patients with minor injuries were back at work. The remaining 25 patients in this group were either unemployed or in sheltered workshops, in nearly equal proportion. Out of 50 patients in the severely injured group, 36 were unemployed; patients in the group with moderate injuries had only slightly better outcome than those with minor injuries. In a review of 11 studies providing details on return to work following head injury, Humphrey and Oddy (1980) showed that the rate of return to work varied from 50 to 99%. However, the authors comment that these results were based “on superficial evidence”. They found that age and length of post-traumatic amnesia were the most important determinants of return to work, with some indication that previous occupational status, intellectual deficits and personality change also had some influence on the outcome. Kelly & Smith ( 198 1) reported on a follow-up of patients with ‘post-traumatic syndrome’ due to closed head injury. They found that out of 26 patients not working at the time of settlement, 22 remained unemployed after an average of 2.8 years from conclusion of litigation. Those not returning to work tended to be older, and employed in more dangerous occupations. Low Back Injuries
A study performed for the Workers’ Compensation Commission of New South Wales (Encel & Johnston, 1978) involved a follow-up of litigants at least three years (and in some cases six or seven) after the settlement of their claims. Out of the 646 workers followed up, information was obtained from 193. The authors found that among the 175 patients younger than the statutory retiring age at the time of follow-up, 62 (35%) were not working. The authors commented that among those who returned to work there was a trend towards lighter types of work for lower wages, and that most never regained their pre-injury work status. Other Studies
Several studies have reported on patients with a variety of injuries where the number of patients suffering from a particular injury was too small to warrant a separate report. A study by Morgan Snider & Sobol, (1959) reported on 485 workers in the state of Michigan who had received lump sum settlements during 1956 and 1957. The authors found that 3 1% of this group were at work prior to settlement. Of those not employed at the time of settlement, 35Y0 returned to work, while 65% were not employed an average of a yearand-a-half later. In a study of 1,3 16 men involved in industrial accidents in New York State during the 1950s (Jaffe, Day & Adams, 1964), at follow-up it was found that 14% were unemployed and another 6% were “worse off” than before the
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injury. Those not employed were older, less educated, less skilled, and more likely to be black or Puerto Rican. Thompson (1965) reported on 500 patients with “post-traumatic psychoneurosis”; no details were provided of the original accidents and injuries. Out of 190 patients in this group whose claims had been finalized, 15% reported that their symptoms were “better” after litigation had concluded. Cole (1970) discussed the psychiatric aspects of compensable injury in an analysis of 292 patients referred for psychiatric assessment. In his study he devoted three paragraphs to a discussion of “progress after settlement” (p. 95). This section described 14 patients who were in treatment at the time of settlement. Out of eight patients seen following an industrial accident, three continued to complain of symptoms, one was “considerably relieved”, and four were lost to follow-up. Among the six patients treated following other accidents, in four cases “settlement did not appear to influence their progress materially”; the other two cases were lost to follow-up. Cole also referred to three other patients who were not seen prior to settlement, but were referred and treated following finalization of their claims, and who “appeared to have changed little after the settlement”. Balla and Moraitis (1970) described 82 patients of Greek migrant origin, seen in a family practice in Melbourne. They found that 40 patients returned to work prior to settlement, while 42 were not working when their compensation claim was finalized. On follow-up after an average of 25 months since conclusion of litigation, 11 patients had returned to work while 31 out of the 42 had not resumed gainful employment. The authors commented that patients with back injuries had a worse prognosis, as also did those who complained of loss of libido. A study of patients referred for psychiatric assessment for medico-legal purposes was reported by Culpan and Taylor (1973). Out of 60 patients employed at the time of the accident, 52 returned to work prior to settlement of the claim, with 30 of these working at a “lower” level. Out of the eight patients not employed at the time of settlement, the authors state that “it appeared” ali but one were at work within a year or so of conclusion of litigation. Out of the total group of 71 patients followed-up in this study, 15 (21%) were described as “still more or less disabled” following conclusion of litigation. A follow-up study of 101 patients referred for psychiatric evaluation or treatment following industrial or motor car accidents was reported by Mendelson ( 198 1). These patients were reviewed following the finalization of their claims for compensation; they were drawn from a consecutive group of 262 patients, all assessed prior to the settlement of their claims; all these patients were working at the time of their accidents. Thirty-five patients returned to work prior to settlement: a significantly higher proportion of post-motor car accident litigants resumed work prior to settlement (25 out of 42) than litigants following an industrial accident (ten out of 59). Of the 66 patients not employed at the time of finalization of their claim, 13 were lost to follow-up; these patients were significantly younger than the 53 patients reviewed at follow-up. At follow-up nine out of the 53 patients were employed; these nine patients were also significantly younger than the 44 patients not working. As the group of
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patients “lost” to follow-up was similar in age to that employed, these two groups were combined so that the overall result was of 44 out of 66 patients not employed a mean of 16 months after settlement, and 22 out of 66 employed or presumed to be employed. Discussion In this review of 18 follow-up studies of personal injury litigants, three studies (Purves-Stewart, 1928; Miller, 1961; Culpan and Taylor, 1973) favour the view that claimants improve within a fairly short time of the finalization of their claims. The other studies reviewed do not support the view that litigants almost invariably become symptom-free and return to work after finalization of their claim. Of these studies, six (Norcross, 1936; Denker, 1939; Morgan et al., 1959; Jaffe et al., 1964; Schutt and Dohan, 1968; Cole, 1970) deal with small numbers of patients or were published a relatively long time ago, so that their findings may not be readily extrapolated. to the present. The results of the remaining nine studies indicate that among patients following head injury between 50% (Richardson, 1971) and 85% (Kelly and Smith, 1981) fail to return to work after settlement, although the latter result may not be valid because of the large number of patients lost to follow-up in this particular study. For patients with a low back injury, Encel and Johnston (1978) found that 35% were unemployed after a minimum of three years following settlement. Patients with neck injuries have persistent disability of a severe degree in from 12% (Gotten, 1956) to perhaps 60% (Hohl, 1974) of cases five years after injury. Among groups of patients with a variety of initial injuries, failure to return to work after legal settlement was found in 75% after a mean of 25 months (Balla and Moraitis, 1970), and in 67% after a mean of 16 months (Mendelson, 1981). A likely reason for the disparity in findings between the study by Miller (1961) and the others cited above lies in the fact that Miller examined a preselected group of patients referred to him on behalf of insurers, and his follow-up group of 50 patients was further pre-selected on the basis of the “gross neurotic symptoms” which they exhibited. Studies reporting high rates of persistence of symptoms and work disability following legal settlement are based on follow-up of patients not only referred for assessment for medicolegal purposes, but also referred for treatment. It is important to examine some of the possible factors involved in the initiation and maintenance of psychological symptoms and disability following accidental injury in these patients. The issue of motivation in its forensic setting is of course a complex one (Samuels, 1970), and subject to much debate and disagreement. Henry Miller’s view - earlier stated by Dana (1920) and Kennedy (1946) - was that compensation claimants are motivated by financial considerations, and his own findings were used to bolster this simplistic notion. Important factors which influence the outcome following accidental injury include those related to personality predisposition, cultural and occupational considerations, the nature of interpersonal relationships, and general psychological effects of the accident and injury.
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TABLE 3 Factors Influencing Outcome Following Personal Injury Psychological effect of accident and injury:
-psychiatric illness -alterations in self-concept and body image -personality disorganisation -regression Ethnic factors: -abnormal illness behaviour -anxiety proneness -folk beliefs concerning disease Occupational factors: -work dissatisfaction -heavy physical work -repetitive work -dangerous work Pre-morbid personality: -dependency -hypochondriasis -early emotional deprivation Psychodynamic factors: -interpersonal within family -within social milieu
It is well recognized in general clinical practice - and of special interest to those of us involved in liaison-consultation psychiatry - that physical illness and injury is invariably associated with psychological reactions (Peterson, 1974). These may be short-lived if the illness or injury produces a brief period of impairment, but prolonged ill health and disability - in circumstances where issues of compensation are not involved - frequently produces psychiatric impairment which may at times reach psychotic proportions (Cutting, 1980), and depression is the most frequent finding (Bustamente and Ford, 1981), accompanied by alterations in self-concept and body image, personality disorganisation and regression. It has also been recognized that ethnic influences on the perception of illness are important, and this is of particular relevance in the context of industrial accidents and subsequent disability. These influences have been described in relation to illness behaviour and hypochondriasis by Pilowsky and Spence (1977), and the psychological similarities can be demonstrated whether studied in the immigrants in Australia or in their native Greece (Skinner, 1966; Bottomley , 1976). Cross-cultural studies have show that some ethnic groups have a greater level of measurable anxiety (Okasha and Ashour, 1981), and this clearly will make members of such groups more prone to psychological reactions of greater severity should an illness or accidental injury affect them. Similarly, it has been shown that psychological reactions associated with physical illness among rural communities in Spain (Vazquez Barquero, Munoz & Madoz Jauregni, 1981) - where there is no provision for compensation - differ very little from those described among those injured in compensable accidents in Australia (Parker, 1977).
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It has been demonstrated that an important social factor in the maintenance of work disability is dissatisfaction with the job (Allodi & Montgomery, 1979) - a highly relevant consideration, in view of the finding in a recent Sydney survey that 25% of 20,000 men and 20% of 17,000 women attending for a Medicheck screening expressed dissatisfaction with their job (Rizzo, Reynolds & Gallagher, 1981). Other important factors which predispose to prolonged disability include hypochondriasis and dependency (Parker & Lipscombe, 1980; Stone & Neale, 1981), as well as deprivation of emotional needs in early life: this has been termed “the meal ticket syndrome” (Fann & Sussex, 1976). Finally, significant factors which come into play within the family of the injured person have also been described (Rickarby , 1979; Stagoll, I98 1). The status of the injured person alters both within the family and within his or her social milieu. The newly-acquired “patient” role is validated and careeliciting behaviour reinforced. Mint (1963) has drawn attention to the fact that in some European communities the sick person becomes the focus of the family’s concern, with attention and support lavished upon him. As Ellard (1970) has pointed out, this may be of value in accelerating recovery, but it can result in prolonged disability if family members have an emotional investment in maintaining the injured person in a passive and dependent role. The importance of these dynamic factors operating at what can be described as “unconscious” levels within the family have been graphically described by Adler (1981) in the case history of a ten-year-old boy with the Ganser syndrome (pseudodementia). In conclusion, I would like to quote from Kelly’s (1981) recent review a proposition impossible, I believe, to disagree with on the basis of the survey of literature quoted in this presentation: “It seems clear that there is no longer any justification for a neurologist or a lawyer to stand up in Court and affirm that it is well known that patients with such symptoms immediately return to work after their claim has been settled” (p. 244). References Adler, R. t 198 1). Pseudodementia or Ganser syndrome in a ten-year-old boy. Ausrralian and New Zealand Journal of Psychiatry, 15, 339-342. Allodi, F. & Montgomery, R. C1979). Psychosocial aspects of occupational injury. Social Psychiarry. 14, 25-29. Balla. J. I. & Moraitis, S. (1870). Knights in armour: a follow-up study of injuries after legal settlement. Medical Journal of Australia, 2. 355-36 1. Bottomley. G. (1976). Rural Greeks and illness: an anthropologist’s viewpoint. Medical Journal ofAusrralia, I, 798-800. Bustamente, J. P. & Ford, C. V. ( 198 1). Characteristics of general hospital patients referred for psychiatric consultation. Journal of Clinical Psychiaq, 42, 338-341. Cole, E. S. (1970). Psychiatric aspects of compensable injury. Medical Journal of Australia, 1, 93-100. Culpan, R. & Taylor, C. (1973). Psychiatric disorders following road traffic and industrial injuries. Australian and New Zealand Journal of Psychiatry, 7. 32-39. Cutting, J. C. (1980). Physical illness and psychosis. Brirish Journalof Psychiarry. 136. 109-I 19. Dana, C. L. ( 1920). Wounds of the head and compensation laws. Archives of Neurology and Psychiarry, 4. 479-483. Denker. P. G. (1939). Prognosis of insured neurotics: study of 1,000 disability insurance claims. New York Scare Journal of Medicine, 39. 238-247.
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Ellard, J (1970). The problems of the migrant. Proceedings of the Medico-Legal Society of New South Wales, 4, 87-98. Encel, S. &Johnston, C. E. (1978). Compensation andrehabilitation. A survey of workers’ compensation cases involving back injuries and lump sum settlements. New South Wales University Press: Sydney. Fann, W. E. & Sussex, J. N. (1976). Late effects of early dependency need deprivation: meal ticket syndrome. British Journal of Psychiatry, 1.28, 262-268. Gotten, N. (1956). Survey of one hundred cases of whiplash injury after settlement of litigation. Journal of the American
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Miller, H. (1961). Accident neurosis. British Medical Journal, I, 919-925; 992-998. Miller, H. & Cartlidge, N. (1974). Simulation and malingering in relation to injuries of the brain and spinal cord. In E. H. Feiring (Ed.). Brock’s Injuries of the Brain and Spinal Cord, 5th ed., Springer Publishing Co.: New York, pp. 638-667. Mint, S. (1963). Of new Australian patients, their medical lore and major anxieties. Medical Journal ofAustralia,
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Morgan, J. N., Snider, M., & Sobol, M. G. ‘Lump Sum Redemption Settlements and Rehabilitation’. Survey Research Center, lnstitute for Social Research, University of Michigan, 1959. Quoted in Encel and Johnston, op. cit. Norcross, C. ( 1936). Vocational Rehabilitation and Workmen’s Compensation. Rehabilitation Clinic: New York. Quoted in Denker. op. cit. Okasha, A. & Ashour, A. (1981). Psycho-demographic study of anxiety in Egypt: the PSE in its Arabic version. British Journal of Psychiatry, 139, 70-73. Parker, G. & Lipscombe, P. (1980). The relevance of early parental experiences to adult dependency, hypochondriasis and utilization of primary physicians. British Journal of Medical Psychology, 53. 355363.
Parker, N. (1977). Accident litigants with neurotic symptoms. MedicalJournal ofAustralia, 2, 318-322. Peterson, B. H. (1974). Psychological reactions to acute physical illness in adults. Medical Journal of Australia,
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Richardson, 1. C. (197 1). The late management of industrial head injuries. In Proceedings of an international syjmposium on head injuries, Churchill Livingstone: Edinburgh, p, 127. Quoted in Humphrey and Oddy. op. cit. Rickarby, G. (1979). Compensation neurosis and the psycho-social requirements of the family. British Journal of Medical Psychology,
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