IME (Independent/Insurance Medical Exam)

An IME is an examination conducted by a non-treating medical provider to obtain an opinion onthe medical issues in a case. Most often, the employer/carrier asks for the IME. Less frequently,one may be requested by claimant. The party requesting the examination usually selects andpays for the physician. An IME also may be ordered by the Commission., although this is rare.

Common issues include: the necessity for certain medical treatment; the relationshipbetween the accident and injury; the nature and extent of disability; the nature and extent ofpermanent impairments, and the ability to return to work full or light duty. The claimant may berequired to attend several IMEs during a case.

Statutes:

• Va. Code Ann. § 65.2-603 Duty to furnish medical attention, and vocationalrehabilitation; effect of refusal of employee to accept

o (A)(1) After employee injury, the employer shall furnish (for free) a physicianchosen by the injured employee from a panel of at least three physicians selectedby employer.

o (B) The unjustified refusal of the employee to accept such medical service orvocational rehabilitation services when provided by the employer shall bar theemployee from further compensation until such refusal ceases and nocompensation shall at any time be paid for the period of suspension unless, in theopinion of the Commission, the circumstances justified the refusal. In any suchcase the Commission may order a change in the medical or hospital service orvocational rehabilitation services.

• Va. Code Ann. § 65.2-607 Medical Examination; Physician-Patient PrivilegeInapplicable; autopsy

o (A) After an injury and so long as he claims compensation, the employee, if sorequested by his employer or ordered by the Commission, shall submit himself toexamination, at reasonable times and places, by a duly qualified physician orsurgeon designated and paid by the employer or Commission. However, noemployer may obtain more than one examination per medical specialty withoutprior authorization from the commission, based upon a showing of good cause ornecessity. The employee shall have the right to have present at such examinationany duly qualified physician or surgeon provided employee pays for it. Nophysician present at such examination shall be able to claim privilege.

o (B) If the employee refuses to submit himself or in any other way obstructs suchexamination requested by and paid for by the employer, his right to compensationand his right to take or prosecute any proceedings under this title shall besuspended until such refusal or objection ceases and no compensation shall at anytime be payable for the period of suspension unless in the opinion of thecommission the circumstances justify the refusal or obstruction.

The presenters wish to thank Joe Matherly, an intern with PennStuart, Richmond, for his efforts n researching the materialscontained in this outline.

Cases:

• R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211 (1990)o If an employee, without justification, refuses to submit to or in some way

obstructs a medical examination to which employer is entitled, compensationbenefits will be suspended during the refusal. Id. at 214.

o Refusing an independent medical examination (IME) with justification will notresult in suspension of claimant’s compensation. Id.

• Sherwin Williams Co. v. England, 2006 Va. App. Lexis 157 (Sherwin Williams Co. v. England, 2006 WL 1069112)

o Justification for one obstruction under Va. Code Ann. § 65.2-607 does notprovide justification for other obstructions. Id. at 10. (WL at 3).

• Tageldin v. St. Paul Fire & Marine Ins. Co., 1995 Va. App. Lexis 118 (1995)(Tageldin v. St. Paul Fire & Marine Ins. Co., 1995 WL 61307)

o If no mitigating factors excuse an employee’s refusal to attend an independentmedical examination, the Virginia’s Workers’ Compensation Commission mayproperly hold that the employee’s benefits should not resume until the employeeactually attends the independent medical examination. Id. at 5. (WL at 2)

o When there is no justification for failing to attend an IME actual attendance, andnot expressed intent, is necessary. Id.

o Proffered justification for missing an IME by claimant may be cast aside if theproffered justification conflicts with other circumstances regarding claimant. Id.at 3.

o Although an employee has a right under 65.2-607(A) to have her doctor present atthe IME, this right may not be used to obstruct the employer’s right to conductthe examination. Id.

• Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830 (1979)o The Commission’s factual findings will stand if supported by credible evidence.

Id. at 833.

• Buchanan Gen. Hosp. v. Hunt, 2001 Va. App. Lexis 602, 2001 WL 1332881 (@@)o Medical evidence is not necessarily conclusive but is subject to the Virginia’s

workers’ compensation Commission’s consideration and weighing. Moreover,conflicting medical opinions may be weighed by the Commission. Id. at 6.

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• Henry v. Professional Bldg. Maintenance, 1995 Va. App. Lexis 907(Henry v. Professional Building Maintenance, 1995 WL 748639)

o If sufficient time has passed between injury sustained by claimant and claimant’slast IME it is reasonable for employer to request and schedule another IME. Id. at2. (WL at 1)

o After considering Code 65.2-607, the time which had passed since claimant’sinjury (9 years), and the date which he has last received an IME (3 years), theCommission ruled that employer’s request for an IME was reasonable andnecessary. Id.

• Wiggins v. Fairfax Park Ltd. Pshp., 22 Va. App. 432 (1996)o The literal construction of Code 65.2-607(A) does not limit the waiver of the

physician/patient privilege to facts communicated or learned by a physician onlyduring an IME. Id. at 441.

o Plain language dictates that any facts communicated to or learned by anyphysician who may have attended or examined the claimant or been present atany examination are not privileged in any hearings under the Act or actions atlaw. Id.

• Blakey v. University of Va. Health System, 2015 Va. App. Lexis 52(Blakey v. University of Virginia Health System, 2015 WL 674683)

o When a reviewing court can find no credible evidence that supports theCommission’s findings, the findings will be vacated. Id. at 18. (WL at 5)

Litigation Issues:

• R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 214 (1990)o From whose perspective does a refusal of an IME have to be justified?

§ The patient’s (In workers’ compensation the injured employees).§ The dispositive question is not whether the test was justified in a doctor’s

professional judgement, or even from an objective medical standard.Justification for refusal must be determined from the viewpoint of theclaimant.

§ Justification is a factual determination made upon an objective view of allthe circumstances as they reasonably appeared to the claimant.

§ Here, in this case the claimant was justified in refusing to take a stress testbecause of her genuine fear of the testing and the potential for injury.

• Thorpe v. Poore, 83 Va. Cir. 453, 454 (2011)o Who can be present during an IME?

§ Plaintiff is entitled to have a professional videographer present to recordthe IME. Plaintiff is required in such case to provide the defendant with acopy of the recording and is responsible for recording costs.

§ Plaintiff may also have another person in the exam room such as a spouse,family member or close personal friend. Such person shall not interferewith exam.

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• Sherwin Williams Co. v. England, 2006 Va. App. Lexis 157(Sherwin Williams Co. v. England, 2006 WL 1069112)

o What constitutes a refusal of an IME? (this is the most litigated issue)§ Where worker refused to fill out medical history form before exam this

constituted a refusal of an IME. Id. at 10. (WL at 3)

• Tageldin v. St. Paul Fire & Marine Ins. Co., 1995 Va. App. Lexis 118 (1995)(Tageldin v. St. Paul Fire & Marine Ins. Co., 1995 WL 61307)

o What constitutes a refusal of an IME?§ Here, claimant had three excuses for failing to attend an IME. § (1) First her allegation of an overseas trip to care for her sick daughter

conflicted with her prior letter that mentioned only her husband’s illness. In addition, she submitted only a boarding pass for a commuter flight toPhiladelphia. Id. at 3. (WL at 1)

§ (2) Second, her religious objection was not supported by the evidence. Documentation showed prior examinations by a male doctor duringRamadan. Id.

§ (3) Third, her last-minute demand for a personal physician’s presence atthe examination was not justified in the light of the circumstances.

§ (4) Fourth, her desire to examine the records and communications sent toDr. Mosehelle prior to his examination of her was not justified. Id.

• Am. Red Cross v. Verma, 2009 Va. App. Lexis 383.(American Red Cross v. Kaushlya Verma, 2009 WL 2743441)

o Does cancelling an IME when going out of town constitute a justifiablerefusal?§ Depending on the circumstances it can.§ Here, Claimant provided documentation from her father’s physician that

claimant was in India caring for her ailing father when employerscheduled an IME. Id. at 3. (WL at 1)

§ Assuming claimant was timely notified of the IME, credible evidence inthe record supports the Commission’s factual findings that claimant’sabsence from the IME was justified since she was out of the country andcould not make arrangements to return on such short notice. Id.

Discussion - IME Practical Considerations:

A. From the Employer/Carrier Perspective.

B. From the Claimant’s Perspective

4

FCE (Functional Capacity Evaluation)

A Functional Capacity Evaluation consists of a series of physical tests andmeasurements, ordinarily performed by a physical therapist, usually designed to evaluate aclaimant’s physical limits and ability to return to a full or light duty position. Ideally, theexaminer should have at least some idea of duties and physical requirements of the proposedposition.

The FCE is usually requested by the carrier and/or ordered by the treating or IMEphysician. Unless requested by the claimant, a FCE is considered a reasonable and necessarycomponent of medical treatment, to be paid by the employer/insurer. The treating physician mayconsider, but is not bound by a FCE.

The employer/carrier frequently examines the results of the FCE, as well as any of thepatient’s comments that are included in the report. The role of FCEs appears to be increasing asemployers and insurers rely more heavily on them for decision making.

Statutes:

• §§ 65.2-603 and 65.2-607, Va. Code Anno, supra.

Cases:

• Stamper v. Williams Indus., 1996 Va. App. Lexis 537(Stamper v. Williams Industries, Inc., 1996 WL 421890)

o A FCE report can be used as evidence of a claimant’s ability to work. Id. at 4-5.(WL at 2)

o “Based upon the content of the FCE report, the Commission could reasonablyinfer that claimant knew that his physicians believed he could perform light dutywork, and that he had knowledge of his specific work restrictions.” Id.

• DeVaughn v. Fairfax Cty. Pub. Sch., 2018 Va. App. Lexis 294(DeVaughn v. Fairfax County Public Schools, 2018 WL 5516713)

o The purpose of an FCE is to gauge an individual’s ability to perform variousphysical tasks so that the physician can recommend the appropriate scope of anindividual’s authorized work. Id. (Footnote 1)

• Green v. CSX Hotels, Inc., 650 F. Supp. 2d 512 (2009)o A request for a functional capacity evaluation that complies with the statutory

restrictions will never, in the absence of other evidence, be sufficient todemonstrate that an employer regarded the employee as disabled. Id. at 520.

o The scope of the functional capacity evaluations must be job related andconsistent with business necessity. Id. at 522.

5

• Moon Eng’g Co. v. Baum, 1998 U.S. App. Lexis 6683(Moon Engineering Company v. Baum, 1998 WL 153419)

o A FCE offered by employer was discredited, partially because the personconducting the FCE was not a physician. Id. at 9. (WL at 2)

• UPS of Am. v. Blackfoot, 2001 Va. App. Lexis 438(United Parcel Service of America v. Blackfoot, 2001 WL 826569)

o Because the FCE indicated that claimant could not perform his pre-injury work,the commission was entitled to conclude that employer’s evidence wasinsufficient to prove that claimant was capable of performing all of the duties ofhis pre-injury employment as of that date. Id. at 3-4. (WL at 1)

• Montalbano v. Richmond Ford, LLC, 57 Va. App. 235 (2010)o Claimant had undergone an FCE, which showed 48% total disablement of

employee, however because employee was fired with cause due to his harassmentof coworkers, he was not eligible to receive workers’ compensation benefits.

• Breeding v. Clinchfield Coal Co./the Pittston Co., 2001 Va. App. Lexis 510.(Breeding v. Clinchfield Coal Co./Pittston Co., 2001 WL 1035055)

o Medical evidence is not necessarily conclusive in a workers’ compensation actionbut is subject to consideration and weighing by the workers’ compensationcommission. Thus, questions raised by conflicting medical opinions must bedecided by the commission. Id. at 2. (WL at 1)

• Butler v. City of Va. Beach, 2001 Va. App. Lexis 651(Butler v. City of Virginia Beach, 2001 WL 1491381)

o Evidence that an employee could work and use her legs found in a FCE reportconstituted credible evidence that could be used to support the Commission’sfindings. Id. at 5. (WL at 1)

• Dominion Va. Power & Dominion Res., Inc. v. Greene, 2010 Va. App. Lexis 105(Dominion Virginia Power and Dominion Resources, Inc., v. Greene, 2010 WL 1027532)

o A functional capacity evaluation showed that claimant could perform some lightwork tasks. Subsequent testimony from a physician saying that claimant’scondition was progressively getting worse and was now totally disabled wasgiven more weight than the prior FCE test. Id. at 9-10. (WL at 1)

o FCE’s can give great weight to testimony and can serve as credible evidence thatwill support a commission’s finding, but it is not the sole determinative factor.

• Food/Bev Serv-Crystal City & Hyatt Corp. v. Al-Boarab, 2017 Va. App. Lexis 194(Food/Bev Serv-Crystal City v. Al-Boarab, 2017 WL 3388487)

o The Virginia Workers’ Compensation Act requires an employee to furnish aninjured employee with “reasonable and necessary vocational rehabilitationservices.” The injured employee in return, is required to accept such services. Any unjustified refusal to do so shall suspend the employee from any further

6

compensation until such refusal ceases, and no compensation is to be paid for theperiod of suspension unless the refusal was justified in the opinion of thecommission. Whether the employee has unjustifiably refused to cooperate is aquestion of fact to be determined from the totality of the circumstances. Id. at 9.(WL at 3)

o The claimant’s doctor’s conclusion that claimant was unable to return to workwas not outweighed by the results of two functional capacity evaluations thatclaimant underwent. (this was a totality of the circumstances where doctor sawclaimant much more frequently than the physical therapist who performed theFCE’s and where there was no other physician who testified contrary to theclaimant’s doctor). Id.

• Anthony Smith v. Liberty University Inc/Southern Air Inc, JCN VA00001060365 (April18, 2019)

o An FCE alone, without confirmation and approval by a physician, cannot supporta claim for permanent partial disability benefits. The PPD rating must be“ratified and incorporated” by a physician to be valid.

FCE Litigation Issues:

• Food/Bev Serv-Crystal City & Hyatt Corp. v. Al-Boarab, 2017 Va. App. Lexis 194(Food/Bev Serv-Crystal City v. Al-Boarab, 2017 WL 3388487)

o Was the refusal to cooperate and accept vocational rehabilitation justified?o Here, the refusal was justified.o “Given the evidence that the initial meeting was voluntarily rescheduled by both

of the parties prior to the original June 23, 2015 meeting date, and the claimantattended this rescheduled meeting, we do not find the circumstances to show theclaimant unjustifiably failed to cooperate with vocational rehabilitation effortsprior to August 5, 2015.” Id. at 10. (WL at 4)

o “After August 5, 2015, Claimant was totally disabled, per Doctor Chung. Wefind that credible evidence supported this finding. The parties and theCommission agree that total disability obviates the need to comply withvocational rehabilitation. (If Appellee was properly within total disability status,then he was justified in refusing to accept vocational rehabilitation).” Id.

o Also, important to note with this case is that the Commission had already madethe finding to allow employee to keep benefits, and the Commission’s findingsare very rarely overturned on appeal.

Discussion - FCE Practical Considerations:

A. From the Employer/Carrier Perspective.

B. From the Claimant’s Perspective

7

APPENDIX

1. Sample Motion - Claimant’s Objection to Defense Independent Medical Exam

2. Main & Waddell, A Reappraisal of the Interpretation of “Nonorganic Signs”, 12SPINE 21, p 2367 (1998)

8

POST OFFICE BOX 18042 E-MAIL: TPL-Law@Cox.net

LAW OFFICES

THOMAS P. LLOYD

204 McCLANAHAN AVENUE. S.W.

ROANOKE, VIRGINIA 24014

November 12, 2018

TEL: (540). 982.0517 FAX: (540) 982-0422

Jason Quattropani, Clerk Virginia Worker's Compensation Commission Richmond, Virginia 23219

RE: v Pro Unlimited. Inc. JCN: JCN VA00001401023 D/A: October 18,2017 VIA WEBFILE Document • Objection to Defense Medical Exam

Dear Mr. Jason Quattropani:

Claimant objects to the §65.2-607 examination requested by adjuster India Dow, Gallagher Bassett Claims, set with neurologist Victor Owusu-Yaw, M.D., set for November 28, 2018, at 12:45 p.m. The notice is attached.

Our objection is based upon the following:

1. Location. The location of the exam is not "reasonable" under §65.2-607.

Dr. Owusu-Yaw is located in Danville, Virginia, about 90 miles from claimant's residence in Roanoke. Her attendance will require about 3.5 hours round trip travel, excluding time for the evaluation.

According to Healthgrades.com, there are approximately 35 neurologists located closer to claimant than Dr. Owusu-Yaw:

• 29 neurologists located within 25 miles of Roanoke, Virginia;

• 6 neurologists located within 25 miles of Lynchburg, Virginia;

Jason Quattropani, Clerk ~over:nber12,2018

Page2

2. Transportation. Clair:nant requires transportation to the appointr:nent. The head injury sustained in her workplace accident resulted in blurred vision, especially while driving. Her ophthalr:nologist's records are attached.

3. Ir:naging Records. The carrier requires clair:nant to bring "all x-ray, MRI and/or CT filr:ns" to her appointr:nent. These are equally available to all parties.

4. Review of Forms. To the extent you allow this or any other exar:nination of clair:nant under §65.2-607, we ask the carrier to provide a copy of any payr:nent agreer:nents, release of liability, questionnaires or other forr:ns required by the exar:niner, for r:ne to review at least five business days before the evaluation, to avoid any last r:ninute probler:ns.

For these reasons, we ask that clair:nant not be required to attend the exar:n scheduled and, if clair:nant she required to attend the exar:nination, that it be conditioned upon the carrier providing:

a. transportation to and fror:n any appointr:nent;

b. all necessary ir:naging and records to the exar:niner; and

c. all written payr:nent agreer:nents, release of liability, questionnaires or other forms required by the exar:niner, to r:ne at least five business days before the evaluation.

By copy of this letter to Ms. Dow, I ar:n advisin of our position in this regard.

TPL/dsr Enclosures cc: Ms. (e-r:nail)

Ms. India Dow, Adj. (via e-r:nail)

(~COVENTRY r November 1, 2018

Richard Swanson

445 North Pennsylvania Street, Apt/Suite 401 Indianapolis, IN 46204

Claimant: Claims Processing Co: Claim Number: Date of Incident: Claims Adjuster: Specialty: Insured: Service Type: Coventry SR#:

Dear Richard Swanson,

GALLAGHER BASSETT 011483-002559-WC-01 10/18/2017 India Dow Neurology Pro Unlimited Global Solutions,lnc Independent Medical Exam 7125209

The above referenced claims processing company has requested and authorized Coventry Independent Medical Examinations to schedule a medical examination in connection with the above referenced incident. Your client's examination has been scheduled as follows:

DATE: Wednesday, November 28, 2018 TIME: 12:45 PM

HEALTH CARE PROFESSIONALILOCA TION:

Victor Owusu-Yaw, MD Danville Neurology Associates, Inc. 129 Broad Street, Apt/Suite B Danville, VA 24541

Phone: (434) 791-2600

Please have your client bring any X-rays, CT scans, EMG studies, & MRI studies which have been completed during the course of this treatment. Please have your client bring a photo ID to the appointment for identification purposes and an interpreter if necessary.

In the event that you must reschedule this appointment for another time, you must make alternate arrangements through our office at least two (2) business days before the scheduled examination.

Please have your client arrive 15 minutes prior to appointment to complete paperwork.

Thank you for your assistance and cooperation. Coventry Independent Medical Examinations

CC: India Dow GALLAGHER BASSETT POBox 2007 COLUMBIA, MD 21045

3611 Queen Palm Drive ·Tampa. Fl. 33619 Phone: (800) 662-:!3lJ3 Fa.\: (H77J 675-4465

SR#:7125209

CC:

CC:

CC:

4309 Belford Street SW Roanoke, VA 24018

N<wcmber I, 2018

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SPINE Volume 23, Number 21, pp 2367-2371 ©1998, Lippincott Williams & Wilkins

• Spine Update Behavioral Responses to Examination A Reappraisal of the Interpretation of "Nonorganic Signs"

Chris J Main. PhD. and Gordon Waddell. DSc. MD

Weddell In ,.. cl4MlopM .... nderdIIed .. __ .... nt ff ............ ~ to uamInetIon. The ..... ..,. ather .......... of .... .....,....... end ... Nt lImPlY. fu-ture of ............ pr ..... t.doM. DeepIte .... .,.... about u.. ""-Pi.bIdun of .......... ttt.y haw been rnIII ........ eted end ....... boIh IAnIceIly end rnedloo-..... ...,..,.. ' ....... to....mn.tlon provide u..ruI ..... InfunMdor;. but need to be ..... preted WIth......... ....... ..... fhouId not be ovw............... ....... tINIt the pa-tient doee not haw ........... ward phy.loal problem, but need to be oonaid-..... eo... IIIItY ..... botII phpIoaI man-.......... of piIIIIoIogy and more canlul ...... _ of the pavahaaoclW and behavioral .. peD of their ...... """"'ligu should bellnder· dood ,.....onaea ..... by fear In the oontQt of reco.,..., from Injury Mel the •• Iapment of chronic l .. paoIty. They ... only • ~1caI -yellow­.. - and not. ~ paytIhoIaglcal •••••• w.m. ...... vfor8Ilig ..... not on their own • t.t of credibil­Ity or t.Idng. SpIna 1111;21:2J17-D71

Clinical assessment usually begins with a clinical history and continues with a physical examination. In the assess­ment of back pain, the patient's response to examination is particularly important. Waddell et aJ1 9 drew attention to nonorganic signs in back pain in 1980 and attempted to integrate them into modern concepts of pain and ill­ness behavior. In the past two decades, they have become widely used and appeared under a variety of names such as Waddell signs, inappropriate signs, medically incon­gruent signs, and behavioral signs. The signs will be re­ferred to as behavioral signs in this article.

Despite clear caveats about the interpretation of the signs,22 they have been misinterpreted and misused both in clinical contexts and in medicolegal assessment. The purpose of this article is to offer a reconsideration of their use and interpretation.

From the Deparrmen r of behavioral Medicine, Hope Hospital, Manchesrer, England, Acknowledgment date: September 30, 1997. First revision date: January 1, 1998. Acceptance date: February 13, 1998,

• Behavioral Responses to Examination

Since the turn of the century, responses to examination that were considered excessive or not entirely consistent with the physical findings were taken quite simply as evidence of malingering. Initially such assessments were carried out for evaluation of compensation. Although in later years behavioral signs came to form part of clinical assessment, the assessments were impressionistic and un­standardized.

Waddell et al19 developed a standardized assessment of behavioral responses to examination. They initially examined 26 clinical signs commonly used in clinical practice, but a large number of these signs proved to be unrepeatable, unstable, or so rare as to be unuseable. A number of statistical and clinical criteria were used to decide on the final set of signs. Each of the signs had to be individually satisfactory, but, in addition, the final set had to form an integrated assessment. The eight original signs are shown in Table 1, together with the elements of the Behavioral Observation Test,8 which can be thought of as a further refinement of "overreaction to examina­tion." Efforts are still being made to identify new signs. Many patients with back pain display one or two such signs, and isolated findings must not be over interpreted.

The behavioral signs were shown to be reliable, were correlated with each other, and were distinguishable from other aspects of physical examination. Detailed de­scriptions are given in the source references. 8,19

The signs were found to be associated with other clin­ical measures of illness behavior and with distress. They therefore were shown not to be simply a feature of med­icolegal presentation (as previously supposed), but also to occur in patients seeking clinical treatment, particu­larly in patients with chronic pain and a history of failed treatment.

The behavioral signs were considered to clarify clini ­cal assessment by:

1) enabling the separate assessment of physical and nonorganic elements of clinical presentation and therefore clarified clinical decision-making;

2.%7

2368 • Volume 23· Number 21·1998

Table 1. Behavioral Signs

Behavioral Signs

Superficial tenderness Nonanatomic tenderness Axial loading Simulated rotation Distraction straight leg raising Regional weakness Regional sensory change "Overreaction" to examination Overt pain behavior (grimacing,

sighing, guarding, bracing, rubbing)

2) directing physical treatment specifically toward physical pathology; 3) preventing the administration of inappropriate treatment; and 4) assisting in the identification of illness behavior;

In summary, the presence of several signs was taken as indicating that the patient does not have a straightfor­ward physical problem. Three specific caveats however were contained in the original article:

1) An increase in signs was associated with older pa­tients and the test was not recommended for use with elderly patients. 2) It was emphasized, however, that behavioral signs can and do occur with clear organic findings. The presence of signs, therefore, does not contradict or­ganic findings. 3) It was stressed that isolated behavioral signs should not be considered clinically significant. A cut-off at three or more was suggested.

Finally, the relation between physical and psycholog­ical factors in the original article l9 was summarized as follows:

It is safer to assume that all patients complaining of back pain have a physical source of pain in their back. Equally, all patients with pain show some emotional and

reaction. Physical pathology and nonorganic

.. Further Research

on three inter-rater ity. It is surprising, therefore, that McCombe et al14 did not confirm the high inter-rater reliability of the individ­ual signs, but this may have been a result of the very low incidence of the signs in their clinical sample. Only the

The clinical validity of the signs has been assessed independently, and similar associations between behav­ioral signs, levels of disability, clinical history variables, and psychological variables have been found. 16

The value of the signs as psychological screeners also has been confirmed,4 but it has also been shown that the signs may be less sensitive than psychometric measures of distress,13 possibly because of the relatively low inci­dence of behavioral signs in general orthopaedic clinics.

Hayes et al5 found a higher incidence of behavioral signs in patients receiving compensation than in those not receiving compensation. Those authors used this finding to conclude that the signs were essentially "no­mogenic" in character, i.e., to be interpreted as evidence of simulated incapacity for the purpose of financial gain. Unfortunately Hayes et al did not take into account other clear differences between the two groups in question, and their conclusions cannot be regarded as valid.

Finally, patients exhibiting significant numbers of be­havioral signs have been shown to have poorer outcome of treatment3 ,7,11,20 and a poorer rate of return to work. 1O,15,17 However, Brandish et all found no corre­lation with return to work,l so the precise relation of the behavioral signs with return to work has not been estab­lished definitively as yet.

• A Reconsideration Based on Current Knowledge

Clinical History and Chronic Incapacity When the signs were standardized, their relation to psy­chological factors was not fully understood. It was rec­ognized, however, that these behavioral responses con­tributed to the explanation of disability and were, in turn, associated' with failed previous treatment. Behav­ioral signs essentially were considered to be a feature only of chronic incapacity. Recent studies have suggested that, although rarer, signs can be identified much earlier in the course of treatment. 2 ,9 They therefore may be im­plicated in the development of chronicity and may be more than simply an aspect, effect, or result of chronicity.

The Nature of Pain Behavior

ing of behavioral symptoms,22 need for walking aids, and need for extended down-time. ls

Relation to Other Psychological Factors Originally, the behavioral signs were demonstrated to be

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and coping strategies6 and specific fears of hurting and harming. 2J The rela tion between such parameters and behavioral signs would seem to merit further mvesttga­tlon.

Relation to Fear and Guarded Movements Recent studies using surface electromyography from the paraspinal muscles have found patterns of response that distinGuish patients with back pain from healthy can-

t> d d' d d' d t 2 4,25 trois at rest an unng stan ar lze movemen . The ~EMG abnormality in the patients with back pain improved significantly after they participated in a pain management program. The best predictor of normaliza­tion proved to be reduction in fear-avoidance beliefs and increased confidence in managing pain. The study dem­onstrated a clear association between fear , lack of self­confidence, and guarded mov.ements. In another study of patients with chronic low back pain who participated in

2 3 h' hit" s a pain management program, a Ig corre a IOn wa demonstrated between behavioral signs and perfor­mance on specific functiona l tasks. These studies suggest that the behavioral signs are perhaps best understood as responses affected by fear.

• Theoretical Misunderstandings in Currant Orthopedic and Physiotherapeutic Practice

There are a number of ways in which the behavioral signs have been misunderstood and misused in practice . A number of theoretical misunderstandings may underlie this misuse.

Conscious Versus Unconscious Origins of Pain Behavior

It sometimes is assumed that behavioral responses to ex­amination necessarily are evidence of deliberate and con­scious simulation on the part of the patient. Altho ugh it is poss ible to fake such responses, it cannot be assumed without furth er ev idence tha t beha vioral signs are de facto to be viewed with suspicion.

Failure to Understand Fear-Mediated Responses The reacti ve natu re of assessment is no t always appreci­ated . Pa tients arrive for a consulta tion with indi vidua l expectations and beliefs. Specific fears o f pain o r furth er injur y ca n have a powerful inf1u ence on how a patient responds to physical exa min ation. If patients have be­come fearful of pa in , they may be nervous ahout being examined and show fear responses in the form of behav­ioraJ signs during physical examination.

Nature of Recovery From Injury and the Development of Chronic Incapacity

Not a ll patients make a complete recovery from injury (w hether or not litigation is in vol ved) . Even if srructura l damage has not been clea rl y identified, soft ti ssuc injury may ha ve led to rhe deve lo pment of chronic incapaciry through a variety of mechanisms, sllch as rdlex spasm and specific fea rs of hurting, harming, or reinjury. If pain has persisted, it may ha ve led to th e development o f a

Behavioral Responses to Examination · Main and Waddell 2369

disuse syndrome characterized by avoidance of painful movements or activities. It is necessary to appreciate the context of assessment and stage in the patient's history. The behavioral signs, therefore, can be identified and described as they occur during a clinical examination, but can only be understood fully as an aspect of the patient's clinical history. Their interpretation should be clarified further by identification of other clinical and psychological features that may coexist at time of phys­ical examination.

It is important to identify general nervousness about consultations and consider factors that may affect how the patient responds to assessment . Specific memories and expectations of painful examinations may produce inconsistencies in presentation as a result of fear. Specific fears of examination should be identified during the clin­ical interview before a physical examination is per­formed, because they may influence the patient's reaction to examination. Consideration of fear of pain, misunder­standings regarding hurting/harming, and beliefs regard­ing treatment outcome and future incapacity may assist in the interpretation of behavioral signs.

Coexistence With Physical Signs The behavioral signs test was designed specifically to identify behavioral responses in patients with low back pain. In that particular clinical group, the signs could be separated from physical signs not associated with dis­tress . It should be recognized, however, that patients with low back pain may have other problems. Neck pain or fibromyalgia, for example, may need to be considered as alternative explanations for behaviors elicited in the context of an assessment of low back pain.

Objectivity, Judgment, and Bias The behavioral signs test was developed as an objective assessment that could be carried out consi stently by dif­ferent examiners. Inevitably, however, a degree of judg­ment is req uired . Differences in the number of si gns fo un d bv different examiners may not necessa ril y indi­ca te reai clinica l differences among the groups of pa ­ri ents. Cons isrent differences among assessors in th e number of beha viora l signs found may illustrare incon ­sistencies JI1 the mann er in wh ich the signs are eli ci ted , unwitting bia s, or even prejudice .

• Misuses and Misinterpretations in Clinical Contexts

Failure to Adhere to the Recommended Cut-Offs (Overinterpretation of Isolated Signs)

Overinterpretation o f individual signs is common. The origin al article clearly stated that the tes t is designed ro identify a pattern of responses to ph ys ica l exa mination.

Mistaking the Signs Test for a Full Psychological Assessment

Assessment of behaviora l signs is not a complete psycho­logical assessillent. It is no more than a screening test.

2370 Spine· Volume 23· Number 21·1998

Significantly distressed and disabled patients require a specific psychological assessment.

Justification of Refusal to OIer Adequate/Appropriate Physical Treatment

Clear evidence of behavioral responses to examination indicate that the patient does not have a straightforward physical problem. He or she still may require an ortho­pedic intervention. In such cases, pain management as well as surgery may be necessary.

Inappropriate Diferential Diagnoses Evidence of a clear behavioral component in the individ­ual's presentation does not mean that there is no need to investigate the rest of a patient's physical signs and symp­toms. Significant physical impairment may produce high levels of distress.

• Misuses and Misinterpretations in Medicolegal Contexts

Failure to Recover From Injury Failure to recover from injury should not necessarily be viewed with suspicion. An important and significant mi­nority of patients become chronically incapacitated after injury, regardless of whether litigation is involved.

Interpreting Signs as Indicators of Faking Perhaps the most serious misuse and misinterpretation of behavioral signs has occurred in medicolegal contexts. The signs frequently are used as an indication of faking or simulated incapacity. It is certainly true that all sorts of behavior can be faked, and responses to examination are not exempt from this charge. As stated above, how­ever, behavioral signs may be learned responses to pain that have developed since the original injury and of which the patient is largely unaware. Even if the behav­ioral signs are assumed to be under voluntary control, however, and if the patient is consciously responding in a guarded manner, it cannot be assumed de facto that the signs are evidence of simulation for the purpose of finan­cial gain. In the first instance, the signs should be viewed as an indicator of pain behavior. Their interpretation should be considered with reference to other psycholog­ical and behavioral information. In the absence of dis­tress, fear, mistaken beliefs, maladaptive coping strate­gies, and active attempts to seek treatment, it is perhaps more likely that the signs are evidence of simulation, but the behavioral signs cannot be interpreted in isolation.

Behavioral signs are suggestive of a "nonorganic" component in the patient's overall presentation. They do not represent a comprehensive psychological evaluation, and formulations such as "functional overlay" should not be taken as definitive. Assessment of psychological impact of pain requires consideration of distress, fears, beliefs about pain, and coping strategies. 12

• Conclusions and Recommendations

1) The term "pain behavior" can be used to describe a number of aspects of the patient's response to pain, but "behavioral signs" should be used only to describe specifically how the patient responds to examination. 2) The signs are therefore most accurately described as "behavioral responses to examination" and should be understood as such. 3) The behavioral signs offer an assessment of pain behavior in response to a standardized assessment. 4) They are a form of communication between patient and doctor and therefore are influenced by expecta­tions (both by the patient and the doctor). 5) They must be understood in the context of the patient's history. 6) They offer only a psychological "screener," not a complete psychological assessment. 7) TheY;lre not a reason to deny appropriate physical treatment. Some patients may require both physical management of their physical pathology and more careful management of the psychosocial and behav­ioral aspects of their illness. The signs should be used to decide not whether to offer treatment, but the type of treatment to offer. 8) The behavioral signs are not on their own a test of credibility or veracity. Interpretation of the signs is only possible within the context of a broader clinical or psychosocial assessment.

Acknowledgments

The authors thank Donal Fortune and Paul Watson.

References

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Chris J. Main, PhD Hope Hospital

Eccles Old Road Salford, Manchester M6 8HD

England, United Kingdom