Robert J. Gatchel and Izabela Z. Schultz (eds.)Handbook of Musculoskeletal Pain and Disability Disorders in the WorkplaceHandbooks in Health, Work, and Disability10.1007/978-1-4939-0612-3_14

14. Disability and Impairment in Medicolegal Settings: Pain Disability Controversies

Izabela Z. Schultz¹ and Catherine M. Chlebak²

(1)

Counselling Psychology Program, Department of Educational & Counselling Psychology, and Special Education, UBC, 2125 Main Mall, Vancouver, BC, Canada, V6T 1Z4

(2)

Counselling Psychology Program, Department of Educational & Counselling Psychology, and Special Education, UBC, Vancouver, BC, Canada

Izabela Z. Schultz

Email: ischultz@telus.net

Catherine M. Chlebak (Corresponding author)

Email: cchlebak@shaw.ca

Introduction: Predicting Disability

Clearly, developing an effective model in disability prediction research forms a central bridging issue in the relationship between disability and impairmant. Significant barriers for the development of a disability prediction and determination model in medicolegal settings include ambiguity and multiplicity of definitions of pain, impairment, and disability, as well as methodological challenges in assessment and in work disability prevention and reduction (Schultz, 2008; Schultz & Chlebak, 2013; Schultz, Stowell, Feuerstein, & Gatchel, 2007). In the context of minimal availability of graduate and postgraduate training opportunities in the field of disability determination (Schultz, 2009), for clinicians, the demands of a stressed workers’ compensation and other disability insurance systems (in particular, an increasing proportion of higher compensation costs arising from complex pain and mental health disability cases) might have exceeded research developments in the field (Gnam, 2005). This area forms a uniquely difficult area of research and practice in medicolegal settings.

Defining Disability and Impairment: Dissecting the Relationship Challenges

Theoretical Foundations

The concepts of disability and impairment are frequently intertwined in research literature, where often models and definitions of disability embed impairment definitions. The conceptual foundations emerge from a fragmented research history, creating three theoretical frameworks: biomedical, social construction, and biopsychosocial (Bickenbach, Chatterji, Badley, & Ustin, 1999; Lutz & Bowers, 2007; Schultz, Krupa, & Rogers, 2011; Schultz, Stowell et al., 2007; Schultz, Winter, & Wald, 2011; Schultz, Winter et al., 2007). These frameworks have themselves produced six models of occupational disability with parallel return-to-work models: biomedical, psychosocial, forensic, economic, ecological, and biopsychosocial. Differing research traditions, key tenets and values, constructs, emphasis on the individual, environment and disability determinants, and practice implications are represented in these models (Schultz, Stowell et al., 2007; Smart, 2001). Recent developments have collapsed these models into four groups of biomedical and forensic, psychosocial, ecologic/case management and economic, and biopsychosocial (Schultz, Stowell et al., 2007). Our handbook reviews and updates these models from current research perspective, highlighting their strengths and limitations (Knauf & Schultz, 2013).

Stepping back, within the biomedical framework, a medical condition produces a disability through an observable deviation from biomedical norms of structure or function (Bickenbach et al., 1999; Boorse, 1975, 1977; Schultz, Crook, Fraser, & Joy, 2000; Schultz, Stowell et al., 2007; Smart, 2001). Here, psychological injury is informed and governed by the psychiatric field, specifically the diagnostic manuals (i.e., the Diagnostic and Statistical Manual of Mental Disorders-IV-TR [DSM-IV-TR; American Psychiatric Association [APA], 2000] or the Diagnostic and Statistical Manual of Mental Disorders-5 [DSM-5; APA, 2013]) and the practice of treating most mental diagnoses psychopharmacologically, with the associated dramatic growth in this form of treatment across all age groups (Comer, Olfson, & Mojtabai, 2010; Mojtabai & Olfson, 2008, 2011).

The social construction approach assumes that disability is a complex set of conditions, relationships, and activities, not just an attribute of an individual, that have been largely produced by the individual’s social environment (Bickenbach et al., 1999; DePoy & Gilson, 2004; Olkin & Pledger, 2003; Tate & Pledger, 2003). Disability is conceptualized in terms of how a specific environment creates social and physical barriers to hinder functioning and full participation (Linton, 2001). Thus, disability is viewed as dependent on societal response; with an appropriate response, disability would be nonexistent (Smart, 2001; Smart & Smart, 2007). With impairment and disability, a distinction is made. Disability is based on demands and supports within a specific environment where the specific impairment occurs (Schultz, 2008).

The biopsychosocial theory integrates clinical and social approaches. Classic work by Engel proposed a micro- (interactional), meso- (organizational or community), and macro- (structural)ecological and structural levels to predict social and clinical outcomes (1977; Tate & Pledger, 2003). This approach has evolved to highlight disability as multifactorial, including environmental, personal (Fine & Asch, 1988; Meyerson, 1988), psychosocial elements (Schultz et al., 2000; Tate & Pledger, 2003). An interactive disability model has also been postulated—disability is viewed as situational and functional limitations that can be altered by social and environmental factors (Verbrugge & Jette, 1994). Other evolvements include the Institute of Medicine (Pope & Tarlov, 1991) and World Health Organization’s (WHO) International Classification of Impairments, Disabilities, and Handicaps (ICIDH) model (1980).

The most recent iteration of the biopsychosocial model is the WHO’s International Classification of Functioning, Disability, and Health model (ICF). The disablement concept, previously focused on handicap, impairment, and disability, has been replaced by a more inclusive concept of enablement. Participations, impairments, and activities now form the new focus. More specifically, disablement is viewed as difficulty encountered with any or all of the interconnected functional areas: activity limitations, participation restrictions, and impairments (problems with body structure or structure) (WHO, 2001).

The dimensions of disablement have implications on systemic and clinical interventions (Bickenbach et al., 1999). At the impairment level, rehabilitative or medical responses are the most appropriate; here, the medical model is an accurate disablement representation. Evaluating an individual’s performance against a set or standardized environment identifies activity limitations. Appropriate responses are to strive to extend or correct a range of an individual’s own capabilities through rehabilitation or to provide assistive devices to compensate for activity limitations. Participation, where an individual’s actual social and physical environment is included and the primary interventions either add environmental facilitators or remove environmental barriers to full participation.

This ICF model is intended as worldwide reference tool for assessing individual functioning and disability. Complex and dynamic interactions among disability, impairment, and other personal and contextual factors are shown here; specifically, impairment is viewed as reflecting a reciprocal relationship with activity. Activity, in turn, is a conceptualized as a reciprocal interaction with participation. Contextual factors, including environmental and personal, mediate the relationship between disability and impairment (WHO, 2001).

Within the psychological injury, pain, and law field, this paradigm is considered the most promising development theoretically. Here, the strengths are in recognizing the dynamic relationship between the individual and the environment, a functional focus, and the absence of stigmatizing, diagnostic labels. Its approach is relational, dynamic, and multifocal, integrating medical and social perspectives, and supports operationalization in health and social sciences (Peterson & Paul, 2009). The ICF model has also demonstrated utility as a “standard for defining concepts, building constructs, hypothesizing relationships, and proposing new theories that will further research and psychology” (Peterson, 2011, p. 4). The alignment of these strengths with key disability determination objectives supports utilization of the ICF model within the psychological injury and pain field. For this field, it is important to move beyond the assessment of the individual (as complicated it might already be) to assessing environmental supports and demands including the community, workplace, and the family and their relationships with health and personal factors. These systems interactively produce activity limitations and participation restrictions that are disabling (Schultz, 2009).

Applied Perspectives

Adding to the complexity, from the three major theoretical frameworks of biomedical, social construction, and biopsychosocial, three applied perspectives of disability emerge to impact research and practice, including in forensic applications and in varying interactions: legal and administrative, scholarly research, and clinical (Altman, 2001; Schultz, 2005, 2008).

Legal/Administrative Applications

Private and public administrative bodies have developed their own legal disability definitions due to the legal ramifications such as benefits, rights, and responsibilities. However, Altman (2001) has noted that disability is often defined as “situations associated with injury, health, or physical conditions that create specific limitations that have lasted (or are expected to last) for a named period of time” (p. 98). For disability compensation systems, such as workers’ compensation and long-term disability insurance companies, a historical preference for administrative disability definitions is shown. These narrow and functionally specific definitions usually highlight the need for “objective proof” of impairment to justify work disability (Schultz, 2005, 2008). Such standards of proof vary widely across jurisdictions and systems.

Within the public area, disability is defined more broadly, moving away from more narrow, function-specific definitions (Schultz, 2008). One example is within the American with Disabilities Act (ADA, 1990) (Schultz, 2008; Smart, 2001). Disability is defined here as (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individuals, (2) a record of such impairment, or (3) being regarded as having such an impairment (Sec. 3 [2] 42 U.S.C. 12102 1990). Impairment is classified as “any emotional or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities” (29CFR Part 1630.1[h2]). Classification as an “individual with disability” involves evidence showing (1) a physical, cognitive, or intellectual, and psychiatric condition or multiple mental impairment conditions; (2) discrimination and/or stigma; and (3) a significant limitation in at least one major life activity (Schultz, 2008; Smart, 2001).

Federal and state agencies use definitions specific to the service provided. For example, with social security disability benefits, individuals are required to have a severe disability that is (1) predicted to last minimally 1 year or result in death and (2) prevents work at a “substantially gainful activity level.” Currently, this organization does not recognize the American Medical Association (AMA) Guides’ rating impairments. Veterans Affairs is another agency utilizing their own criteria for disability rating (Feinburg & Brigham, 2013).

Within this arena, the definitions of disability draw heavily on both biomedical and social construction traditions (Smart, 2001). Schultz (2008) observed that, because the relationship is undefined between these two theories, ongoing legal difficulties and risks are fueled. For individuals with minimal limitations, such as stuttering, obesity, facial disfigurement, and mental health disabilities, the ADA definition for disability may be met because of the experience of stigma and or discrimination (Schultz, 2008; Smart, 2001; WHO, 2001). Across systems and programs, impairment is defined as more consistent and measurable; however, disability is viewed as a social construct and thus different weights and benefits are assigned. In one system, an individual can be “disabled” and in another not, based on the same impairment (Feinburg & Brigham, 2013).

Comparing these fields, a divergence in conceptualizing disability is seen: one is narrow in its scope to create financially viable and objectively verifiable compensable solutions for the institutions granting disability status, and the other shows a broader perspective to ensure equal rights for individuals with disability. This trend persists today (Schultz, 2005, 2008).

Scholarly Research

The definitions of work disability in rehabilitation outcome literature are primarily economically or clinically derived and are even more varied than in legal or clinical definitions. Schultz and colleagues (Schultz, 2005; Schultz, Stowell et al., 2007) named six substantive categories for classifying much of the literature:

Self-report of disability by an individual with disability, e.g., sickness impact profile (Bergner et al., 1981; Gilson et al., 1975) or the Work Limitations Questionnaire (Amick, Rogers, Malspies, Bungay, & Cynn, 2001; Lerner et al., 2001) or various other disability indices.
Report of disability by a clinician and/or significant other.
Health-care utilization.
Duration of disability.
Return to work and/or employability, including cycling between disability and RTW and repeating patterns of return to work.
Health-care- and wage-loss-based costs of disability.

Examining the definitions, a number of themes emerge. Most definitions are cross-diagnostic and cross-categorical, and a common factor is a function focus. This is despite the multiplicity of disability classifications, such as severe versus mild, absent versus present, acquired versus congenital, and stigmatizing versus non-stigmatizing, and the conceptualization of disability in an “all or nothing” dichotomy or in a continuum (Schultz, 2008, 2009; Smart, 2001).

Fair application for individuals with disabilities, and having a significant body of systematic, evidence-based research, is critical for reliability, validity, and relevance for legal and clinical definitions and related disability determination methodologies. A number of barriers exist, hampering progress. This includes:

Diversity of approaches and inconsistency among research, clinical, and administrative applications have hampered disability prediction, early identification of high-risk individuals, and disability prevention (Schultz, 2005).
Definition multiplicity and related methodological approaches create difficulties in integrating research on the relationship between disability and impairment (Linton et al., 2005; Pransky, Gatchel, Linton, & Loisel, 2005).
Stakeholders (e.g., employers, the government, compensation systems, health care, and societal institutions) are vested in their own desired disability outcomes included in related research (Young et al., 2005).
Measurement properties, especially validity evidence, have not been considered in the largely market-driven disability determination industry (Schultz, 2005).
Conceptualization of the biopsychosocial model as a theory and the resulting acceptable level of specificity for systematic, empirical validation has not yet been reached; this is despite an accumulation of quantitative and qualitative research evidence (Imrie, 2004).

Impairment Determination Practice: The AMA Guides’ Approach

Within the clinical realm, health-care providers use disability definitions to predict (provide prognosis of) future function, focusing on the pathology’s identification, qualification, and quantification. Prognosis is based on individual characteristics and condition type. The AMA has governed evaluation guidelines that both standardize and create best practices around determining impairment since 1958. Termed the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides), they are primarily used as a reference tool to assess compensation losses from illness or injury in compensation and legal settings. This methodology is “intended to assist adjudicators and others involved in the adjudicative process” (Rondinelli, 2009; Rondinelli & Eskay-Auerbach, 2009, p. 27). Significantly, the most recent AMA Guides, Sixth Edition (Rondinelli, 2009) has adopted the ICF model of disability, signaling a theoretical departure from the traditional biomedical approaches and associated antiquated language of about 30 years old into a more integrated biopsychosocial paradigm (WHO, 2001). As a result, definitions of disability and impairment have shifted.

For the AMA, disability is defined as an activity or participation limitation in domains including work, society, and home within an impairment context. Disability is conceptualized as a “relational outcome,” reflecting an individual’s capacity to perform a specific task or activity within a unique environment (Brandt & Pope, 1997). This definition is similar to both the previous iteration of the AMA Guides (Cocchiarella & Andersson, 2000) and the current ICF model (WHO, 2001). The latter defines disability as “an outcome or result of the complex relationship between an individual’s health condition and personal factors, and of the external factors that represent the circumstances in which an individual lives” (p. 17). As discussed earlier in this chapter, disability is seen through “activity limitations” (p. 213); activity is understood as a task execution such as driving or writing, and “participation restrictions” are defined as interactions that impact life experiences (WHO, 2001).

For the AMA Guides, Sixth Edition, the definition of impairment has had more significant changes since its previous iteration in 2000, broadening its scope. Currently, impairment is defined as “a significant deviation, loss, or loss of use of any body structure or body function in an individual with a health condition, disorder, or disease” (p. 5). The term “function” includes physiological and psychological elements, while the term “structure” continues to maintain an exclusively medical focus (Rondinelli, 2009). This shift has created some controversy in the medical community, producing an “ambiguous position where impairment seems to require framing in the context of its functional consequences” (Bellamy & Campbell, 2009, p. 47).

In an attempt to address long-standing validity and reliability issues, in part due to a historical dependency on expert opinion, intuition, and consensus versus systematic, evidence-based research to build the Guides (Rondinelli, 2010), the AMA Guides Sixth Edition (Rondinelli, 2009) developed five axioms to define priorities, articulate the shift in paradigm, and provide clarity around use of evidence-based practices, methodological congruity, and diagnosis. The assessment approach has a greater function focus, emphasizes evidence-based research to support decision making, has a reduction in unreliable measures including those for range of motion, and expands their multimodal assessment approach (Rondinelli & Eskay-Auerbach, 2009).

The Guides caution against using impairment ratings as a proxy or a “surrogate” for disability determination (Rondinelli & Eskay-Auerbach, 2009, p. 27). This important assertion contrasts with much of clinical literature, research, and practices where disability and impairment concepts are frequently used interchangeably. Clinicians, instead of focusing on determining impairment and its impacts on work performance, quite regularly provide opinions of disability. Individuals are assessed as “not disabled” or “totally disabled” despite the lack of evidence on the impact of impairment on work ability, general performance, and workplace characteristic factors. This problem occurs in current clinical and medicolegal contexts and within the measurement field (Schultz, 2005), frequently in cases of chronic musculoskeletal pain disability.

Within medicolegal contexts, an important issue is expectation differences among disability stakeholders. For example, referring sources requesting independent medical examinations with information on work performance impact from clinicians may instead receive opinions on employability (Schultz and Brady, 2003; Schultz, 2005). Professionally, only vocational experts are uniquely prepared to render these opinions—they are qualified to evaluate the impairment context, such as job availability, labor market, and accommodations and thus contribute to determining disability directly based on both contextual findings and clinical impairment. However, disability entitlement decisions are often ultimately reserved to judges, disability status adjudicators, and other related triers of fact in the legal system (Schultz, 2005).

The clinical definitions of disability and impairment, unlike legal and administrative definitions, must adhere to methodological evaluation standards of measurability, validity, reliability, and fairness. Within forensic psychology specifically, high-stakes assessments demand adherence to existing best practices and continual improvements based on research advances. Yet, clinicians are pressured to address disability-related issues where evidentiary support or clarity is lacking, moving beyond scientific boundaries. Although the legal field traditionally operates in “black and white contexts,” legal decision-making advancements will most likely occur with recognition of the complexity, of person-environment interaction, and multidimensionality of disability determination (Schultz, 2009).

Disability Determination in Complex Disabilities: Musculoskeletal Pain

Disability determination becomes increasingly challenging with the growing demands involving medicolegal assessments and claims decisions regarding complex disabilities. Knowledge in defined areas, such as pain or somatic disorders, as well as conditions frequently comorbid with pain in medicolegal assessments, including depression, post-traumatic stress disorder (PTSD), or traumatic brain injury, has been expanding more rapidly than practitioners and researchers can assimilate and integrate the data, improve practices, and develop trans-diagnostic or cross-diagnostic knowledge (Schultz, 2009; Wald & Taylor, 2009). Another factor is the early developmental stages of the measurement properties of the AMA Guides’ procedures (Schultz, 2005). Low back pain, the most common work disability, is an example of a complex disability with determination difficulties. Serious concerns have been documented on reliability issues, including Zuberbier et al. (2001) regarding the range-of-motion physical assessment protocol with the AMA Guides Fourth Edition (1993) and Forst, Friedman, & Chukwu, (2010) on minimal improvements in reliability in assessing impairment ratings from the AMA Guides Fifth Edition (Cocchiarella & Andersson, 2000) to the Sixth Edition (Rondinelli, 2009). Interestingly, in the transition to the newest edition, the contentious range-of-motion assessment protocol was removed and replaced by a diagnosis-focused procedure (Rondinelli & Eskay-Auerbach, 2009). For psychiatric disabilities, Bellamy and Campbell (2009) asserted that for the AMA Guides Sixth Edition, although permanent impairment determination is more structured and results in an impairment rating (versus earlier guides), validity, reliability, and acceptability are not discussed or described.

Occupational therapists and vocational rehabilitation evaluators tend to determine the majority of work disability cases. However, health professionals not trained specifically in assessing interaction between individual characteristics and environmental demands and supports, namely, forensic psychologists, neuropsychologists, physiatrists, and psychiatrists, are also called upon. Moreover, multiple concerns have been raised by researchers, practitioners, and stakeholders with respect to current and historic disability determination practices, including the absence of appropriate taxonomies and functional impairment conceptualizations, a historical precedent for psychologists and physicians to focus on individual pathology and diagnosis versus function, confusion and difficulty around relationship between impairment and disability, lack of an environmental/contextual lens in forensic practice to complement the individual focus, and limited psychometrically and biometrically appropriate tools used to evaluate functional impairment in assessments of an ecological nature (except for behavioral scales used with children and individuals with severe disability-related barriers) (Halpern & Fuhrer, 1984; Shriver, Anderson, & Proctor, 2001; Yoman & Edelstein, 1994). In addition, although de-biasing approaches have been advanced in the literature for high-stakes assessments, they have not been consistently implemented in forensic practice and controversies in this area abound, adversely affecting credibility of medicolegal determinations.

Disability Prediction in Complex Pain Disabilities: Searching for an Algorithm

Knowledge mobilization of researched quantifiable predictors of disability to the practice of disability determination in medicolegal contexts is in an early stage. Notably, it is most advanced in musculoskeletal pain disorders. Advancement in the field is hampered by the absence of integrative, empirically supported models of disability prediction for both medicolegal and clinical (prevention, case management, and rehabilitation) applications and the prevalence of outdated biomedical and forensic models of disability determination in compensation and legal settings. Before any compensation-related analyses are completed, decisions on the severity of occupational disability must be made. Yet such decisions, whether made by a vocational expert, a judge, jury, or a compensation specialist, are extremely complex and require bridging impairment and disability via contextual, individual, and work-related factors (Schultz, 2005).

A qualitative exploration of the implicit criteria used in determining occupational disability in psychological injury, and occupational chronic pain cases within the workers’ compensation system, resulted in the formulation of a preliminary decision-making tree informed by Gladwin’s ethnographic decision-making model (Beck & Schultz, 2000; Gladwin, 1989). Box 14.1 outlines a number of questions implicated in the subsequent steps of decision making regarding the severity of occupational disability. These questions exemplify a qualitatively determined algorithm used in decision making for occupational disability in a compensation setting to be used for future validation research. Notably, existing predictive actuarial formulae and research-supported models of occupational disability are group based. Decision making in an individual medicolegal cases is not permitted due to problems including validity such as sensitivity and specificity (Schultz et al., 2004) and insufficient validation of the model for such applications. At the current state of development and validation, these models are better used to serve in identifying individuals at elevated risk for disability and to apply early intervention and secondary prevention than to aid in disability determination in medicolegal settings.

Box 14.1: Decision-Making Steps to Determine Occupational Disability Due to Psychological and Pain Disability (Adapted from Schultz and Brady 2003)

Are the symptoms of diagnosable psychological/pain impairment present?

Is there a preexisting psychological/pain impairment?

Is there a portion of the psychological/pain impairment, which arises from injury at claim?

Does the psychological/pain impairment affect current work capacity?

Is the person able to return to his/her pre-injury employment?

If so, is there a significant risk for deterioration and/or of residual symptoms after return to work?

Can a job change attenuate or eliminate the psychological/pain impairment?

Does the person have work capacity in a competitive environment?

Is the person capable, or expected, to adapt adequately, with or without job accommodation, despite the psychological/pain impairment?

10.

Is the person able to perform most activities of daily living despite the psychological/pain impairment?

11.

Is there significant executive dysfunction and/or significant lack of adaptability to change and stress?

This study improves our understanding of decision-making processes of evaluators making disability determination judgments in clinical and medicolegal settings. Research on the effectiveness of training judges/evaluators in such improved understanding of their implicit decision-making criteria, by making these implicit criteria explicit, would contribute to future training and standardization of approaches in pain and disability policy applications in medicolegal and compensation settings.

Pain Disability Epidemic?

A primary focus of this chapter is on the complex disability, pain. Within the USA, pain is one of the most common symptoms for patients to consult a physician for (Hing, Cherry, & Woodswell, 2006), accounting for about 2.3 % of all visits (Cherry, Burt, & Woodwell, 2001). Pain is considered the most common cause of disability (Feinburg & Brigham, 2013); of this, the majority of costs are attributed to 5–10 % of individuals who also develop chronic pain and disability (Waddell, Aylward, & Sawney, 2002). For medicolegal claims, it has become a “major issue.” Thus, with a diagnosis of chronic pain, an “overwhelming probability” exists that the individual will file a medicolegal claim (Barth, 2009b, p. 1).

Musculoskeletal injuries of the lower back form the largest subgroup of pain disabilities, forming the “leading cause of work disability” for the 45– 65-year-old group (Costa-Black, Loisel, Anema, & Pransky, 2010, p. 227; Picavet & Schouten, 2003). Disappointingly, although no significant change in back pain injury rates have occurred over time, disability related to back pain has increased (Feinburg & Brigham, 2013). This group now forms the largest burden socioeconomically when factoring costs such as health-care payments, productivity losses, work disability burden, and complications, such as a minimum 20 % risk to mortality, permanent disability, and increased probability of mental health problems in the range of 2–3 times (Costa-Black et al., 2010). In the USA, these costs can exceed $214.9 billion yearly (Praemer, Furner, & Rice, 1999). Indirect costs include social and quality of life losses and personal suffering (WHO, 2003).

Challenges in Pain Assessment

Despite this significant burden and rapid research advances in the field in the last two decades, most forms of chronic pain are still poorly understood; when understood, pain severity is poorly managed (Turk & Melzack, 2011). The most significant challenge lies in its subjectivity, a problem documented as early as the 1960s. Specifically, the pain assessment continues to rely on self-report, yet the pain rater’s ability to retrieve information from memory, including subjective memory, is notoriously prone to error (Broderick et al., 2008). Within the pain disability context, for example, Stone, Broderick, Shiffman, and Schwartz (2004) documented that patients both significantly overestimate and underestimate pain in self-reports of severity. Barth (2009a) summarized existing research in both claims and nonclaims settings and asserted unreliability of self-reporting. For example, one study showed that individuals who had a medicolegal claim reported significantly higher pre-claim functioning than individuals who had not made a claim; this finding was replicated. Another replicated study found that individuals denied preexisting conditions that were particularly relevant for persistent back or neck pain, including histories of back or neck pain complaints and a history of psychological distress. This issue was named as a direct barrier to an objective assessment with the AMA Guides Sixth Edition (Rondinelli & Eskay-Auerbach, 2009). Other complications include confounding psychological, behavioral, personal, and categorical issues (Schultz, 2009).

Another significant challenge to disability determination is the link between pathology and pain. Only a small percentage of individuals with chronic low back pain have a specific injury or diagnosis, with less than 5 % of cases showing potentially serious pathology (Costa-Black et al., 2010); the presented disability is often disproportionate to the evident disease (Dersh, Polatin, Leeman, & Gatchel, 2005). The functional loss experienced by an individual can clearly be linked with pathology or can far exceed expectations; the pain has poor correlation with objective indicators of dysfunction in the body. These hallmarks prove controversial for determining pain impairment using the AMA Guides, which are highly focused on objective findings (Rondinelli & Eskay-Auerbach, 2009). Malingering, symptom exaggeration, and a variety of gains and losses associated with the pain can occur. This topic will be discussed in another section of the present chapter (Choi, Asih, & Polatin, 2013; Feinburg & Brigham, 2013). Within the litigation context, symptom magnification and/or over-endorsement are more common than in general clinical practice, and with purposeful misrepresentation or when the individual presents with diminished credibility, this issue further muddies disability definitions (Feinburg & Brigham, 2013).

Navigating the administrative maze of different benefit systems and definitions of pain, disability, and impairment is another significant issue (Feinburg & Brigham, 2013). Pain, disability, and impairment may be independent or coexist (Robinson, Turk, & Loeser, 2004). The International Association for the Study of Pain (IASP) defined pain as a subjective experience that is “an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage.” Due to its subjective and relativistic nature, this definition is exceedingly difficult to operationalize in medicolegal settings, especially those focusing on “objective proof” of impairment. Further, the Association distinguishes between neuropathic and nociceptive pain. The latter is usually related to impairment, while the former exists regularly with dysfunction (Feinburg & Brigham, 2013; IASP, 2011). Moreover, within disability research, pain is viewed as a symptom—not a diagnosis, disease, or a clinical sign (Waddell, 2004)—and “managing the pain does not guarantee that the disability will resolve” (Feinburg & Brigham, 2013, p. 1032).

The AMA Guides Sixth Edition (Rondinelli, 2009) adheres to the IASP pain definition; the AMA’s chronic pain definition follows established norms of persistent pain of about 3 months for tissue injury. Not surprisingly, difficulty arises with determining impairment and disability related to pain. For the AMA, impairment typically is determined through objective findings, and disability is viewed as an activity limitation and/or a participation restriction resulting from a disease, disorder, or health condition.

In the medicolegal context, impairment related to pain has been a controversial issue. Historically, protocol on impairment determination started in the AMA Guides Fourth Edition (1993); the AMA Guides Fifth Edition (Cocchiarella & Andersson, 2000) had recommendations that were “at odds with the editorial principles, based on evidence-based medicine, validation, and inter-rater physician reliability” (Atkinson, 2009, p. 79). The ambiguities and inconsistencies of this edition are also documented elsewhere (e.g., Robinson et al., 2004). The AMA Guides Sixth Edition (Rondinelli, 2009) is viewed as more simplified in comparison. For example, in the absence of an anatomical and objective impairment, the subjective pain complaint is allotted an arbitrary impairment of up to 3 % (Atkinson, 2009). However, this allotment can only be applied in unusual circumstances, including having no other basis for impairment rating (Rondinelli, 2009).

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