NOTICE: Brain Injury Claims Concussion Mild Traumatic Brain Injury Postconcussion Syndrome Posttraumatic Headache More severe brain injuries

(1)

Brain Injury Claims

•

Concussion

•

Mild Traumatic Brain Injury

•

Postconcussion Syndrome

•

Posttraumatic Headache

•

More severe brain injuries

NOTICE:

All contents of this

presentation remain the

property of Dr. Barth, and

cannot be used for any

purpose in the absence of

Dr. Barth’s specific

authorization.

Contact Information:

Robert J. Barth, Ph.D.

Parkridge Hospital Plaza Two

2339 McCallie Ave.

Chattanooga, TN 37404

423/624-2000

[email protected]

www.BarthNeuroScience.org

Introduction

Final reviewer for the

AMA Guides protocol

for brain injury.

(also final reviewer for the pain and mental

illness chapters, and contributor for the

discussion of CRPS, the upper extremity

chapter, and the lower extremity chapter)

Introduction

Selected to teach formal continuing

medical education programs regarding

brain injury for:

•

American Medical Association

•

American College of Occupational and

Environmental Medicine

•

American Academy of Disability

Evaluating Physicians

Introduction

Named a Fellow of the

National Academy of Neuropsychology

for having made a significant

contribution to the science and

profession of neuropsychology

(2)

Introduction

Invited by

ODG Treatment in Workers Comp

to assist with the development of

their guidelines for

mild traumatic brain injury

(when a state government specifically

requested such guidelines)

Mind-warping

scientific fact #1

There is NO relationship

(zero, naught, nada,

nil, zip, zilch, zippo)

between postconcussion

syndrome and concussion

Mind-warping

scientific fact #2

There is NO relationship

(zero, naught, nada,

nil, zip, zilch, zippo)

between prolonged

“posttraumatic” headache and

head trauma

Fact #3

All of the following

organizations have

published attempts at

comprehensively reviewing

the scientific literature…

All of these organizations have published attempts at comprehensively reviewing the

scientific literature…

…and their reviews revealed that

there is

no credible scientific support

for claims of permanent

impairment from concussion /

mild traumatic brain injury

(or even persistent impairment)…

no credible scientific support for claims of permanent impairment from concussion…

•

American Medical

Association

•

World Health Organization

•

American Academy of

(3)

What about

the NFL and

“chronic traumatic

encephalopathy”?

What about the NFL and

encephalopathy”?

British Journal of Sports Med

2013

Consensus statement on

concussion in sport: the 4th

International Conference on

Concussion in Sport held in Zurich,

November 2012

What about the NFL and

encephalopathy”?

British Journal of Sports Med

2013

“…it is not possible

to determine the causality or risk factors

with any certainty. As such, the

speculation that repeated concussion or

subconcussive impacts cause CTE

remains unproven.”

Body mass index, playing position,

race, and the cardiovascular mortality of

retired professional football players.

Baron SL, et al.

National Institute for Occupational

Safety and Health

Am J Cardiol. 2012 Mar

15;109(6):889-96.

National Institute for

Occupational Safety and

Health, 2012

•

3,439 National Football League players

with

≥

5 seasons from 1959 to 1988

•

compared player mortality through

2007 to the United States population of

men stratified by age, race, and

calendar year

•

Overall player mortality was

significantly

decreased

National Institute for

Occupational Safety and

Health, 2012

Cause of death:

Mental, psychoneurotic,

and personality disorders

NFL:

4

Expected number based on matched

controls (non-NFL):

11.7

NFL experience is PROTECTIVE against

the effects of death associated with

(4)

Mayo Clinic Proceedings. 2012

Apr;87(4):335-40

High school football and

risk of neurodegeneration:

a community-based study.

Savica R, et al.

Mayo Clin Proc. 2012

American football players from 1946 to

1956 did not have an increased risk of

later developing dementia, Parkinson’s

Disease, or ALS (Lou Gehrig’s Disease)

compared with non-football-playing high

school males, despite poorer equipment

and less regard for concussions

compared with today and no rules

prohibiting head-first tackling (spearing).

Mayo Clin Proc. 2012

Indeed, the rate of PD and

ALS was

LOWER

in the

football group than in the

glee club, choir, and

marching band group.

Mild Traumatic Brain Injury

(MTBI)

Question and

Answer format…

MTBI Questions



Is permanent cognitive

impairment associated with

MTBI / concussion?



Is postconcussion syndrome

caused by MTBI / concussion?



Does head trauma cause

prolonged headaches?

MTBI Questions



How do you determine that a brain

injury is mild?



How do you determine that a MTBI

has occurred (and does it matter)?



What are the typical causes of a

claim of prolonged postconcussion

syndrome?

(5)

MTBI Questions



Are these people faking?



What does neuropsychology

testing have to offer for such

cases?



What can we do for someone

with prolonged complaints?

MTBI Bottom Line:

 Not associated with permanent impairment.

 PCS is not correlated with MTBI-concussion.

 Head trauma is not correlated with prolonged headache.

 Non-injury-related factors are the best predictors of prolonged complaints following MTBI.

 A doctor’s job in the assessment of such cases is to identify relevant non-injury-related issues for the individual examinee, and to create a treatment plan based on those findings.

Simple

Definitions

Traumatic Brain Injury

American Psychological Association

Dictionary of Psychology, 2007

“damage to brain tissue caused by

external mechanical forces, as

evidence by objective neurological

findings, posttraumatic amnesia, skull

fracture, or loss of consciousness

because of brain trauma.”

International Neuropsychological Society Dictionary of Neuropsychology, 1999 “Brain injury caused by an external mechanical

force such as a blow to the head, concussive forces, acceleration-deceleration forces, or projectile missile (e.g., bullet). The primary causes

of TBI are motor vehicle accidents, falls, and interpersonal violence. Severity of injury can be assessed with the Glasgow Coma Scale score or by

measuring the duration of loss of consciousness (coma, LOC), with each measure adding increased

prognostic value.”

Mild Traumatic Brain Injury

World Health Organization

definition

WHO Collaborating Centre Task Force on

Mild Traumatic Brain Injury Operational

Definition of MTBI

Holm L, et al. J Rehab Med, 2005, 37(3): 137-41.

(6)

WHO Collaborating Centre Task Force on Mild Traumatic Brain Injury Operational Definition of

MTBI



MTBI is an acute brain injury

resulting from mechanical

energy to the head from external

forces



Operational criteria for clinical

identification include…

WHO Operational criteria for clinical identification include…

A. One or more of the following

1. Confusion or disorientation

2. Loss of consciousness for 30 minutes or

less

3. post-traumatic amnesia for less than 24

hours

4. Other transient neurological

abnormalities such as focal signs,

seizure, intracranial lesion not

requiring surgery

(continued)

WHO Operational criteria for clinical identification include…

B. Glasgow Coma Scale score of 13-15 after 30 minutes postinjury or later upon

presentation for healthcare

C. These manifestations of MTBI must not be: 1. Due to drugs, alcohol, medication 2. Caused by other injuries or treatment for other injuries

3. Caused by other problems

4. Caused by penetrating craniocerebral injury

Concussion

“Concussion” is typically

used to refer to a

MILD traumatic brain injury

International Neuropsychological Society Dictionary of Neuropsychology, 1999

“mild traumatic brain injury characterized

by at least a brief loss of consciousness

or brief post-traumatic amnesia”

Concussion

Technically, is simply means any brain

injury caused by a blow to the head or

sudden movement

Dorland’s Illustrated Medical Dictionary 32ndEdition, 2012

“concussion of the brain”

“loss of consciousness as the result of a blow to the head or sudden movement of the brain within the head as from violent shaking of the head. In mild concussion there is transient loss of consciousness with

possible impairment of higher mental functions, such as retrograde amnesia and emotional lability. In severe concussion there’s prolonged unconsciousness with impairment of the functions of the

brain stem, such as transient loss of respiratory reflex, vasomotor activity, and dilatation of the pupils.”

Postconcussion

Syndrome

International Classification of

Diseases,

10

th

Revision (1992)

ICD-10

The

only

formalized definition

(7)

ICD-10

“Postconcussion

al

Syndrome”

ICD-10

“Postconcussional Syndrome”

“The syndrome occurs

following head trauma

(

usually sufficiently severe

to result in loss of

consciousness

), …”

“Postconcussional

Syndrome”

“and includes a number of disparate

symptoms such as

headache

,

dizziness

(usually lacking the

features of true vertigo),

fatigue

,

irritability

, difficulty in

concentrating

and

performing mental tasks

,

impairment of

memory

,

insomnia

,

and…”

“Postconcussional

Syndrome”

“and reduced tolerance to

•

stress,

•

emotional excitement, or

•

alcohol. …”

“Postconcussional

Syndrome”

“These symptoms may be

accompanied by feelings of

depression or anxiety

, resulting

from some

loss of self-esteem

and

fear of permanent brain damage

.

Such feelings enhance the original

symptoms and a

vicious circle

results. …”

“Postconcussional

Syndrome”

“Some patients become

hypochondriacal

, embark

on a search for diagnosis

and care, and

may adopt

(8)

“Postconcussional Syndrome”

This passage is basically saying that

the syndrome might simply be

psychological, rather than

neurological or injury-related.

“The etiology of the symptoms is not always clear, and both organic and psychological factors have

been proposed to account for them. The nosological status of this condition is thus somewhat uncertain. There is little doubt however,

that the syndrome is common and distressing to the patient….”

“Postconcussional Syndrome”

“Diagnostic guidelines

At least three of the features described above

should be present for a definite diagnosis.

Careful evaluation with laboratory techniques

(electroencephalography, brainstem evoked

potentials, brain imaging,

oculonastagmography) may yield objective

evidence to substantiate the symptoms but

results are often negative. The complaints are

not necessarily associated with compensation

motives.”

Postconcussion Syndrome

NOTE:

A different definition and diagnostic

protocol was actually formulated for

potential inclusion in the American

Psychiatric Association’s diagnostic

system (DSM), but it as

rejected.

DSM-IV, rejection specified p. 703-706

DSM-IV-TR, rejection specified p. 759-762

DSM-5, not indexed

Contusion, brain

International Neuropsychological Society

Dictionary of Neuropsychology, 1999

“a bruise, typically on the

brain surface, without

cerebral hemorrhage”

MTBI Question #1

Is permanent cognitive

impairment associated

with MTBI?

1. Is permanent cognitive

impairment associated with

MTBI?

Answer:

(9)

Permanent cognitive

impairment is NOT

associated with MTBI.

Examples of relevant

literature…

literature

The World Health

Organization’s Collaborating

Center Task Force on Mild

Carroll LJ, Cassidy JD. PROGNOSIS FOR MILD TRAUMATIC BRAIN INJURY: RESULTS OF THE

WHO COLLABORATING CENTRE TASK FORCE ON MILD TRAUMATIC BRAIN INJURY.

J Rehabil Med 2004; Suppl. 43: 84–105.

World Health Organization



reviewed more than 38,000 scientific

citations



"The stronger studies, utilizing appropriate

control groups and controlling for

confounding factors, suggest that

post-concussion symptoms are largely resolved

within three months to a year.“



“Studies that examined the relationship

between

litigation and/or compensation

issues

and slower recovery after mild

traumatic brain injury consistently reported

an association between them.”

literature

American Medical Association

Guides to the Evaluation of

Permanent Impairment

6

th

Edition (2008,2009)

“the symptoms of MTBI generally

resolve in days to weeks, and leave

the patient with no impairment”

literature

American Academy of Clinical

Neuropsychology

Mild Traumatic Brain Injury And

Postconcussion Syndrome.

Author: McCrea MA.

Oxford University Press. 2008.

literature

Meta-Analysis of

neuropsychological test

data:

Binder, L. M., Rohling, M. L., and Larrabee,

G. J. (1997). A Review of Mild Head

Trauma, Part I. Journal of Clinical and

Experimental Neuropsychology, 19, pp.

(10)

Meta-Analysis of

neuropsychological test data:



The effect size for MTBI

is smaller than the

effect sizes associated

with…



Litigation



Hypertension

MTBI Question #2

Is postconcussion

syndrome caused

by MTBI –

concussion?

NO…

Postconcussion syndrome is NOT

caused by MTBI – concussion

Meares S, et al. The Prospective Course of Postconcussion Syndrome: The Role of Mild Traumatic Brain Injury.

Neuropsychology, 2011, 25, 4, 454-465.

“Prospective consecutive admissions to

a Level 1 trauma hospital were assessed

a mean 4.9 days and again 106.2 days

post-injury. The final sample comprised

62 mTBI and 58 non-brain-injured

trauma controls.”

“MTBI did not predict PCS.”

PCS in the

non-brain-injured general

population…

Iverson GL & Lange RT. Applied

Neuropsychology, 2003, 10:

137-144.

How many healthy people

without a history of head

injury satisfied diagnostic

criteria for PCS?

DSM-IV Criteria

79.6%

How many healthy people without a

history of head injury satisfied

diagnostic criteria for PCS?

ICD-10 Criteria

72.1%

(11)

PCS in the

non-brain-injured general population

Bottom Line:

The historical-formal

conceptualizations of

postconcussion syndrome

are not actually correlated

with whether someone has

had a concussion…

PCS in the non-brain-injured

claimant/plaintiff

population

Dunn JT et al. J Clin Psychology, 1995, 51: 577-584.

Ingebrigtsen T et al. J Neurology, 1998, 245: 609-612.

PCS in the non-brain-injured

claimant/plaintiff population

Non-TBI MTBI Claimants 3 months post

Headache 77% 42% Dizziness 41% 26% Irritability 63% 28% Memory sx 46% 36% Concentration sx 71% 25%

PCS in the non-brain-injured

claimant/plaintiff population

Bottom Line:

The historical conceptualizations of

postconcussion syndrome are

more strongly associated with filing

a medical-legal claim, rather than

being specific to a history of

concussion.

postconcussion syndrome is not

actually correlated with whether

someone has had a concussion

This is one of many reasons why

“postconcussional disorder” was

REJECTED

by the American Psychiatric

Association, when considered for

inclusion in the Association’s

diagnostic system (DSM-IV-TR

p759).

MTBI Question #3

Does trauma cause

prolonged headaches?

NO…

Barth RJ. Obstacles to Claiming Permanence and Injury-Relatedness for “Posttraumatic” Headache. The Guides Newsletter, May/June,

(12)

Trauma is not a cause of prolonged

headaches

Berry H. Chronic whiplash syndrome as a functional disorder. Arch Neurol. 2000 Apr;57(4):592-4.



Study of Demolition Derby

Drivers



Average collision experience

per driver:

1900 collisions/driver



How many have clinically

significant headache problems:

0

Trauma is not a cause of prolonged

headaches

Couch JR, Bearss C.

Chronic daily headache in the posttrauma syndrome: relation to extent of head injury.

Headache. 2001 Jun;41(6):559-64.

“…the risk of developing

posttraumatic chronic daily

headache is

greater

for

less severe head injury

…”

headaches

In other words:



In terms of both incidence and

severity,

trauma is not correlated

with headache

.



All of this is

the exact opposite of a

causative connection

between

trauma and the headaches,

according to health causation

standards.

headaches

Obelieniene D, et al. J Neurol Neurosurg

Psychiatry. 1999 Mar;66(3):279-83.

Headache is common immediately following

head trauma, but such headache is associated with an overwhelmingly positive

prognosis (maximum duration outside of a compensation context = 20 days). Outside of a legal claims context, the percentage of trauma patients who continue

to complain of headache is essentially the same as the percentage of non-injured

peoplewho complain of persistent headaches.

Trauma is not a cause of prolonged

headaches

Schrader H, et al. Lancet. 1996 May 4;347(9010):1207-11.

the vast majority (85%) of people who

complain of frequent headaches

following a trauma, but who are

removed from litigation/compensation

contingencies, acknowledge that they

also had frequent headaches

prior to

the trauma.

headaches

Warner, J. S. and Fenichel, GM (1996). Chronic posttraumatic headache often a myth? Neurology,

46, pp. 915-916.

 In research focused on claims of persistent

posttraumatic headache, more than 80% of the sample of such patients were found to actually have a non-injury-related headache syndrome.

 In most cases, the true diagnosis was medication-inducedheadache.

 For those cases, a treatment plan focused on

medication eliminationled to the headache going away.

(13)

Trauma is not a cause of prolonged

headaches

Such scientific findings are supportive of

textbook conclusions that

medication

(e.g. narcotics, ergotamine derivatives,

nsaids, etc.)

is the necessary and

sufficient cause

of chronic daily

headache complaints.

Levenson JL. Textbook of

Psychosomatic Medicine. American

Psychiatric Publishing; 2005.

Trauma is not a cause of prolonged

headaches

Mathew NT. Chronic refractory headache. Neurology. 1993 Jun;43(6 Suppl 3):S26-33.

“630 patients with chronic daily headache… 73% overused symptomatic medication, particularly analgesics and ergotamine, and as a result, suffered from drug-induced headacheor rebound headache.”

The medication over-utilizers also commonly reported:

 Fatigue  Irritability  Depression  Memory difficulties

 Headache worsening with small amounts of

effort (mental or physical)…

Trauma is not a cause of prolonged

headaches

Mathew NT. Chronic refractory headache. Neurology. 1993 Jun;43(6 Suppl 3):S26-33.

 The medication over-utilizers also commonly reported:

 Chronic headache  Fatigue  Irritability  Depression  Memory difficulties

 Headache worsening with small amounts of effort (mental or

physical)…



Is it just me???



Or does this medication

over-utilization syndrome appear to be

awfully similar to the failed

concepts of PCS?

headaches

In the absence of a claims context and

medications, the most common cause

of persistent headaches is various

forms of

depression or anxiety

.

Ropper AH, and Brown, RH (2005). Adams

and Victor's Principles of Neurology,

Eighth Edition. McGraw-Hill.

Question #4:

How do you

determine that a

brain injury is

mild?

How do you determine that a

brain injury is mild?

Glasgow Coma Scale

Mild = initial score of

13 or higher

Jennett B & Teasdale G. Management of Head Injuries. FA Davis 1981.

(14)

Question #5:

How do you determine

that a MTBI has

occurred (and does it

matter)?

How do you determine that a MTBI has

occurred?

Ropper AH, and Brown, RH (2005). Adams and Victor's Principles of Neurology, Eighth Edition.

 Clinical manifestations of concussion:  The immediate abolition of consciousness,

 suppression of reflexes (falling to the ground if standing),  transient arrest of respiration,

 a brief period of bradycardia,

 fall in blood pressure following a momentary rise at the time of impact

 Rarely, if these abnormalities are sufficiently intense, death may occur at the moment of impact, presumably from respiratory arrest.

 usually vital signs return to normal and stabilize within a few seconds while the patient remains unconscious.

 Brief tonic extension of the limbs, clonic convulsive movements lasting up to about 20 seconds and other peculiar movements may occur immediately after the loss of consciousness…

How do you determine that a MTBI has

occurred?

Ropper AH, and Brown, RH (2005). Adams and Victor's Principles of Neurology, Eighth Edition.

 Clinical manifestations of concussion:

“In all patients with cerebral

concussive injury, there remains a

gap in memory (traumatic amnesia)

spanning a variable period from

before the accident to some point

following it. This gap is

permanent…”

How do you determine BOTH

that a brain injury occurred,

and that it was mild?

WHO Collaborating Centre Task Force on

Mild Traumatic Brain Injury Operational

Definition of MTBI

Holm L, et al. J Rehab Med, 2005, 37(3): 137-41.

WHO Collaborating Centre Task Force on Mild Traumatic Brain Injury Operational Definition of

MTBI



MTBI is an acute brain injury

resulting from mechanical

energy to the head from external

forces



Operational criteria for clinical

identification include…

WHO Operational criteria for clinical identification include…

A. One or more of the following

1. Confusion or disorientation

2. Loss of consciousness for 30 minutes or

less

3. post-traumatic amnesia for less than 24

hours

4. Other transient neurological

abnormalities such as focal signs,

seizure, intracranial lesion not

requiring surgery

(15)

WHO Operational criteria for clinical identification include…

B. Glasgow Coma Scale score of 13-15 after 30 minutes postinjury or later upon

presentation for healthcare

C. These manifestations of MTBI must not be: 1. Due to drugs, alcohol, medication 2. Caused by other injuries or treatment for other injuries

3. Caused by other problems

4. Caused by penetrating craniocerebral injury

Contra-Indications

of a

Brain Injury

scenario:

Contra-Indications of Brain Injury:

1. Posttraumatic Stress Disorder, and

many of its symptoms.

The scientific literature tells us that

brain injury and PTSD do not occur

together. Subsequently, if a patient is

presenting with PTSD, or even with

just a few PTSD-like symptoms (such

as nightmares and flashbacks), then a

brain injury probably did not occur.

>>>

1. Posttraumatic Stress Disorder

Claimants who simultaneously

claim brain injury and PTSD,

from the same event,

demonstrate an elevated rate of

faking on objective testing.

2. Complaints that

worsen over time

are specifically

inconsistent with a

brain injury scenario.

Question #6:

What are the typical

causes of a claim of

prolonged

postconcussion

(16)

What are the typical causes of a claim of

prolonged postconcussion syndrome?

The World Health

Organization’s Collaborating

Center Task Force on Mild

Carroll LJ, Cassidy JD. PROGNOSIS FOR MILD TRAUMATIC BRAIN INJURY: RESULTS OF THE

WHO COLLABORATING CENTRE TASK FORCE ON MILD TRAUMATIC BRAIN INJURY.

J Rehabil Med 2004; Suppl. 43: 84–105. (continued)

The World Health Organization’s Collaborating Center Task Force on Mild Traumatic Brain Injury

"The most consistent

predictors of delayed

recovery after mild traumatic

brain injury are

compensation

and litigation factors

,

independent of mild traumatic

brain injury severity."

The World Health Organization’s Collaborating Center Task Force on Mild Traumatic Brain

Injury

“…the question of whether pre-morbid personalityis an important predictor of

persistent symptoms after mild traumatic brain injury.”

“One study that addresses this issue in a unique and highly selected sample of individuals who had been administered psychological tests

prior to their injury found that post-mild traumatic brain injury psychological problems

reflected pre-morbid personality, rather than the effects of the injury."

What are the typical causes of a claim of

prolonged postconcussion syndrome?

Iverson GL. Outcome from mild traumatic brain

injury. Current Opinion In Psychiatry, 2005, May, 18 (3), 301-17.

All of the following have

a stronger effect than

does MTBI…

All of the following have a stronger

effect than does MTBI…

Claims context

Mood disorders

ADHD

Exaggeration/malingering

Benzodiazepines

Marijuana

Symptomatic HIV

>>>

prolonged postconcussion syndrome?



Remember that we already saw that

hypertension

has a stronger effect than

does MTBI.



We have only talked about the issues

that have been shown, in head to head

comparison, to have a stronger effect

than MTBI. Note that there are

many

other neuropsychological risk factors

that we have not yet talked about, which

also need to be considered.

(17)

prolonged postconcussion syndrome?

Mittenberg W., et al. (1992). Symptoms Following Mild Head Injury:

Expectation As Etiology. Journal of Neurology, Neurosurgery, and Psychiatry, 55, pp. 200-204.

 PCS is dependent upon the extent to which the postconcussive individual attributes

non-injury-related shortcomings to the injury (example, they overlook any history of pre-existing headache, and attribute all current

headaches to the MTBI).

 catastrophizing, avoidance, maladaptive coping, creating

distress, stress, and disability.

Question #7

Are these people faking?

“These data show base rates of

malingering that approach or

exceed 50%...”

Larrabee GJ. Assessment of Malingered

Neuropsychological Deficits. Oxford, 2007.

Question #8

What does

neuropsychological

consultation have to

offer for such cases?

Neuropsychological consultation

does NOT offer…

Assessment of impairment

from MTBI…

Because there is no credible

basis for claiming that

such impairment exists.

Neuropsychological

consultation offers

Objective assessment of

whether there is any

type of cognitive

impairment

(there might not be)

Neuropsychological

consultation offers

If there is significant impairment, the

consultation might provide

diagnostic clues

(we know that the MTBI is not the cause

of the impairment, so a

neuropsychology consultation might

help us develop alternative

(18)

Neuropsychological consultation

offers…

Objective assessment of

whether the examinee’s

presentation is

consistent with faking…

Psychology has extensively

researched the phenomenon of

malingering…

Many tests have been scientifically

validated for the objective

assessment of malingering for…

-cognitive complaints

-mental illness

-pain complaints

Psychology has extensively researched the

phenomenon of malingering…

Warning!!!

 Researchers are scared of being sued, therefore…

 Almost all of the research is designed to miss many to most examinees who are faking

 This helps to insure that when a malingering-like result is obtained, we are indeed

probably dealing with someone who is faking

 But when a honest-like result is obtained, we cannot claim with probability that the examinee has been honest with us.

Psychology has extensively researched the

phenomenon of malingering…

Warning!!!

Unscrupulous doctors will use inadequate

tests so that they can claim that they tested

for faking, when in fact these tests

frequently produce “honest” results for

people who are actually faking.

Examples:

Test of Memory Malingering (TOMM)

Rey 15 Item Test

Personality Assessment Inventory (PAI)

Question #9

What can we do for someone with

prolonged postconcussive

complaints?

Credible treatment for

claims of prolonged PCS

Cognitive behavior psychotherapy focused on:

 Teaching the patient to re-evaluate “symptoms” as

possibly normal shortcomings

 Teaching patient to avoid over-reacting to such

perceived symptoms

 Teaching the patient to avoid becoming stressed

by such perceived symptoms

NOTE: This psychotherapy approach is the ONLY scientifically validated specific treatment for PCS.

Mittenberg W, et al. Cognitive-behavioral prevention of postconcussion syndrome. Archives of Clinical Neuropsychology, 1996, 11, 139-145.

(19)

First Steps in Analyzing a

brain injury claim:

1. Determining severity

2. Objectively scrutinizing

neuropsychology test

results

First Steps:

1. Determining Severity

•

Most brain injuries are of

mild

severity

•

Mild brain injury is not associated with

any permanent impairment, or even

persistent impairment (everything seems

to normalize within a week).

•

Therefore, the first step involves

determining whether this was a mild

brain injury (or perhaps not a brain injury

at all).

First Steps:

1. Determining Severity

Real life example:

Brain Injury Claim

File Review

From California

Brain Injury Claim:

File Review From California

1.Determining Severity

The adjustor sent me the

records

from the day of injury.

Note: Arranging for a review of

just this one day of records can

usually eliminate the need for an

IME, or for any treatment.

Brain Injury Claim:

File Review From California

1. Determining Severity

In this case:

• The reported loss of consciousness lasted 20 minutes (30 minutes of less indicates mild). • Glasgow Coma Scale at ER was 15 (13 and

above indicates mild).

• No posttraumatic amnesia (24 hours or less of PTA indicates mild).

• There were some brain imaging findings, but they were not of a nature that warranted brain surgery.

Brain Injury Claim: File

Review From California

Therefore, the case clearly involved a

MILD

traumatic brain injury, which

means…

•

No permanent impairment

•

No persistent impairment or problems

can credibly be attributed to the injury

•

Everything should normalize within a

week (if it does not, then something

other than the injury is responsible)

(20)

Brain Injury Claim: File

Review From California

•

The adjustor asked me to provide a

fully referenced report – enabling all

parties to see that the conclusions

from the previous slides were

fact-based

rather than opinion-based.

•

Case reportedly settled quickly and

easily. No need to authorize any

further healthcare, and

no need for an IME.

First Steps in Analyzing a brain injury

claim:

1.

Determining severity

2. Objectively scrutinizing

neuropsychology test

results

Objectively scrutinizing

neuropsychology test results

If neuropsychology testing has

been administered to the

claimant,

arrange for those results to be

reviewed by a competent and

honest neuropsychologist…

Objectively scrutinizing

neuropsychology test results

•

…by simply comparing the test results to

the relevant scientific literature…

•

the reviewer can tell you, objectively, no

opinions necessary, whether the results

are consistent with brain injury…

•

or if instead the results are consistent

with some other explanation

(approximately 50% of the time, the

results will be objectively more consistent

with faking).

Arrange for test results to be reviewed by a competent and honest neuropsychologist…

Such a review has several

advantages over an IME:

•

Less expense

•

Review can be done by the best

neuropsychologists, rather than by local

neuropsychologists

•

No one can accuse the reviewer of

manipulating the test results

•

No nonsense about observing or recording

an evaluation

First Steps:

2. Arrange for test results to be reviewed by

an honest and competent neuropsychologist

Real life example:

Brain Injury Claim

File Review

From New York

(21)

Sorting Test

Honest brain injury patients averaged up to

39

errors

Examinees faking impairment averaged up to

79

errors

Claimant’s score

97

errors

Tracking Test

Honest mild brain injury patients averaged

65.31 seconds

Honest severe brain injury patients averaged

98.4 seconds

Research participants faking impairment

averaged

121.3 seconds

Claimant’s score from his doctor

423 seconds

Claimant’s score from doctor hired by his

attorney

960 seconds

Malingering-like

weakness AND strength

Puzzles Test

Brain Injury Fakers Claimant

Average

39.1

32.3

30

Analogies Test

Brain Injury Malingerers Plaintiff

Average

9.99

12.05

14

Severe Brain Injury

Scientific Findings

Severe Brain Injury

Scientific Findings

•

Recovery continues for at

least ten years

•

Return to a normal life is

probable

•

Regaining the ability to work

for a living is probable

Severe Brain Injury

Scientific Findings

When a doctor predicts,

within the first five years of

the injury,

a bleak outlook,

that doctor is probably

wrong.

(22)

Real life example:

Severe

Brain Injury

Lawsuit

from Alabama

Severe Brain Injury Lawsuit

Plaintiff attorneys claim

that the plaintiff’s

impairment is permanent

because it has been a year

since the injury.

Defense attorneys actually

believe this, and ask me to

do an IME in order to

determine severity of

impairment.

I explain that there is no point in

doing an IME to establish

severity of impairment in a case

that is one year post injury,

because such patients continue

to demonstrate improvement for

at least ten years.

The defense attorneys cancel their

request for IME, and ask me to

provide a fully referenced report

explaining that the plaintiff will most

likely demonstrate continued

improvement over the next decade,

and eventually will be able to resume

a normal life.

Settlement demand drops

from $10M to $1M after

plaintiff’s attorneys read

my report and the

referenced scientific