In 1961, Henry Miller published an article in the British Medical Journal titled (1):
In this article, Dr. Miller stated that whiplash-injured patients are:
“… likely to improve with cessation of litigation”
The concept that chronic symptoms following whiplash injury exist as a consequence of an attempt to gain monetarily is often encountered. Insurance adjusters and defense medical experts often express this concept, referring to it as “litigation neurosis” or “secondary gain.” The concept remains the most frequently expressed defense opinion on the prognosis for recovery from whiplash injury.
However, Dr. Miller’s article has significant methodological problems which damage his conclusions. Dr. Miller saw a group of litigants who were pre-selected for referral by the insurers and their legal advisors; this constitutes selection bias. In Dr. Miller’s final follow-up, he selected fifty patients who showed “gross neurotic symptoms;” once again, this constitutes selection bias.
In 1982, Dr. George Mendelson published an article in the Medical Journal of Australia, titled (2):
Not cured by a verdict:
Effect of legal settlement on compensation claimants
Dr. Mendelson is from the Department of Psychological Medicine at Monash University (Australia) and an Assistant Psychiatrist at Prince Henry’s Hospital, Melbourne. In this article he reviews 20 years of literature on compensation neurosis, and notes the following:
“There appears to be a widely held belief that litigants claiming compensation after industrial and road-traffic accidents improve and return to work within a short time of the finalisation of the claim…”
“There is a body of evidence that, in a significant proportion of patients with acceleration/deceleration injuries of the cervical spine, and in those after relatively slight closed head injury, organic disorder is responsible for prolonged symptoms and incapacity. Therefore, to label these patients as suffering from ‘compensation neurosis’ in the expectation that their symptoms and disability will be cured by financial settlement is clearly erroneous.”
“That the simplistic notion of financial gain as the all-important motive is not borne out by follow-up studies of patients when there is no further prospect of monetary reward from continuing disability.”
Dr. Mendelson notes that the literature does not support the view that patients invariably become symptom-free and resume work within months of the finalization of their injury claims. In contrast, he states that up to 75% of those injured in compensable accidents fail to return to gainful employment two years after legal settlement.
Additionally, Dr. Mendelson specifically comments on the conclusions of Dr. Miller from 1961, indicating that Dr. Miller’s study stands alone in showing that patients nearly always recover after the conclusion of litigation. He specifically states:
“To the best of my knowledge, all studies published in the past 20 years have shown Miller’s conclusions to be incorrect…” and “myths.”
Dr. Mendelson’s conclusion is: “At present, there is no justification for a medical practitioner to stand up in court and state that it is well known that litigants lose their symptoms and return to work shortly after their claim has been settled.”
In 1993, Parmar and Raymakers published an article in the journal Injury: The British Journal of Accident Surgery, titled (3):
Neck Injuries from Rear Impact Road Traffic Accidents:
Prognosis in Persons Seeking Compensation
In this study, the authors retrospectively studied the natural history and prognostic factors in 100 patients (60 women, 40 men, mean age at injury 47 years) who sustained neck sprains from rear impact road traffic accidents for eight years, with the following results:
50% had significant pain at 8 months
44% had significant pain at 1 year
22% had significant pain at 2 years
18% had significant pain at 3 years
14% had significant pain at 8 years
42% were pain free at 8 years
58% had continued pain at 8 years
These authors noted that between years 3 to 8 (a 5 year period of time), only 4% of the patients continued to symptomatically improve. The authors therefore stated:
“After 3 years there is unlikely to be any improvement”
“We conclude that for those still in pain, 3 years from injury is a reasonable time to make final medicolegal assessment.”
Interestingly, the author found 5 factors that were associated with a longer duration of significant pain. They were:
1) Front seat position during collision
2) Pain onset within 12 hours of injury
3) Past history of neck pain: this factor had the greatest influence on the duration of significant pain
4) Pre-injury degenerative changes on radiographs
5) Being older than 45 years at the time of collision
Additionally, these authors found:
Hyperextension strains cause prolonged symptoms because they are “clearly mechanically different from other neck strains.”
“There was no relationship between the prognosis and the type of car or the severity of damage it sustained.”
The “use of seat belts and head restraints did not alter the outcome.”
“Some factors bore no relationship to the prognosis, and they included root pain, mechanical influences such as use of seat belts and head rests, and the amount of damage sustained by the vehicle.”
Pertaining to compensation, these authors made the following comments:
“The timing of compensation was not associated with improvement in symptoms.”
“The majority of our patients were free of significant pain before the settlement of their claims, and only four improved soon after receiving compensation. The belief that compensation neurosis is likely to develop after this type of neck injury is not borne out by our study.”
In 1993, clinical anatomist Nikolai Bogduk MD, PhD, and physician Charles Aprill, MD, were able to show that in 23% of individuals who were suffering from chronic post-traumatic neck pain, the tissue source for the pain was a single cervical zygapophyseal joint (4). This finding has allowed the Australian research team of Leslie Barnsley, Susan Lord, Barbara Wallis, and Nikolai Bogduk to investigate the relationship between whiplash pain psychology and organic whiplash pain (5, 6, 7).
In 1996, Barbara Wallis and colleagues published an article in the journal Spine, titled (5):
Pain and Psychologic Symptoms of Australian Patients with Whiplash
In this study, the authors evaluated 140 consecutive patients with chronic neck pain (defined as more than 3 months duration) following a motor vehicle accident with the SCL-90-R psychological profile and the McGill Pain Questionnaire to assess if their pain was due to organic or psychological causes. The study group of 137 patients (52 males and 85 females, aged 21-69) with a median illness length of 37.5 years (range 6 months to 530 months), presented with the following symptoms:
100% neck pain
76% shoulder pain
69% disturbance of concentration or memory
65% sleep disturbance
54% dizziness / light headedness
37% visual disturbance
25% arm pain
In their review of the literature, these authors make the following comments:
- The late or chronic whiplash syndrome is characterized by pain persisting for months or years after an accident.
- 10-25% of those injured in whiplash develop chronic symptoms, mostly neck pain.
- Chronic whiplash symptoms have been ascribed to:
- secondary gain
- pain-prone disorder
- abnormal illness behavior
- compensation neurosis
- The argument for compensation neurosis is based only on single cases or anecdotal evidence and is unsupported by any valid epidemiological or sociological studies.
- Formal studies and reviews have shown that financial compensation does not effect a cure and that despite settlement a substantial proportion of patients suffer persistent pain and distress.
- Recent reviews failed to identify any substantive data implicating psychological factors as the primary cause for persisting whiplash pain.
In their study, these authors found that the psychological profiles and pain intensity ratings of these chronic pain whiplash patients was similar to the psychological profiles obtained from patients suffering from rheumatoid arthritis and organic low back pain. Because both rheumatic arthritis and organic back pain are considered to be organic and not psychological, they concluded that chronic neck pain following whiplash injury is organic. The authors state the psychological profile: “… leads itself readily to the interpretation that psychological distress exhibited by patients with whiplash is secondary to chronic pain.”
In 1996 Bogdan Radanov and colleagues published an article in the journal Pain, titled (8):
Course of psychological variables in whiplash injury: A 2-year follow-up with age, gender and education pair-matched patients
These authors evaluated the course of psychological variables during a 2-year follow-up in patients after common whiplash of the cervical spine. Patients with head impact or traumatic loss of consciousness were excluded from their study. 21 of 117 (18%) patients suffered trauma related symptoms 2 years following their initial injury. These symptomatic patients were psychologically compared to twenty-one age, gender and education matched patients who had completely recovered during the 2-year follow-up period from their symptoms following whiplash injury (asymptomatic group).
The authors concluded:
“These results highlight that patients’ psychological problems are rather a consequence than a cause of somatic symptoms in whiplash.”
In 1996, Squires and colleagues published an article in the Journal of Bone and Joint Surgery (British) titled (9):
Soft-tissue injuries of the cervical spine: 15-year follow-up
The authors reported on the status of 40 patients who sustained whiplash injury 14-17 years prior (mean of 15.5 years), by physical examination (cervical range of motion and neurological testing), pain (visual analogue scale, pain map, and McGill), and psychometric testing. Two of the authors of this study had evaluated this same group of patients after a mean of 10.8 years. Consequently, the aim of this study was to establish whether there was improvement in symptoms between 10 and 15 years after injury, and whether psychological abnormalities were seen in the long term. The author’s findings include:
- 70% of the patients continued to complain of symptoms referable to the original accident
- 30% of the patients were asymptomatic
- Between 10 and 15 years after the accident symptoms remained static in 54%, improved in 18%, and deteriorated in 28%
Pertaining to the influence of psychological influence in continued symptoms, the authors concluded:
“Our study shows an abnormal psychological profile in patients with symptoms after 15 years suggesting that this is both reactive to physical pain and persistent.”
Again in 1996, Barbara Wallis and colleagues published a study in the journal Pain, titled (6):
Faking a profile:
Can naive subjects simulate whiplash responses?
The authors evaluated 132 whiplash patients and compared them to 40 pain-free university students who were asked to simulate chronic pain 6 months after a motor vehicle accident in order to ensure compensation. The evaluation included the SCL-90-R psychological profile, the McGill Pain Questionnaire, and the visual analogue pain scale.
The authors note that two factors bedevil the field of whiplash:
1) The belief that patients suffering with neck pain after whiplash are not suffering as a result of an organic lesion, but have pain as a function of psychological disturbance.
2) The fear that patients with whiplash may be malingering because of the financial gain associated with insurance claims.
The authors review the evidence for why the SCL-90-R psychological assessment is a suitable device to assess psychological distress as well as to screen the ingenuine patient. They conclude:
- Students would be expected to be more intelligent than the average population. Patients are less likely to be as skillful at acting an ingenuine role than these students. Accordingly, the results are equivalent to ‘worse case’ possibility.
- The students were not able to reproduce the true whiplash patient psychological profile.
- “The results indicates that the SCL-90-R is robust against deliberate faking. Hence, it is very difficult for an ingenuine individual to fake a psychological profile typical of a whiplash patient.”
- Since psychological profiles of genuine distress in whiplash patients cannot be faked, “there are no legitimate grounds for dismissing such profiles as those of a malingerer.”
In 1996, Swartzman and colleagues published a study in the journal Spine titled (10):
The effect of litigation status on adjustment to whiplash injury
The authors retrospectively evaluated 82 whiplash patients to determine the effect of litigation on adjustment to chronic pain. Of the 82 patients, 41 of them were currently in the process of litigation and 21 had already completed the litigation process. The author’s conclusions include:
“That litigation status does not predict employment status suggests that secondary gain does not figure prominently in influencing the functionality of these patients.”
“…current litigants were not more psychologically distressed than postlitigants, nor did they report more sleep problems.”
“Current litigants for the most part were not more functionally impaired than postlitigants.”
“The results of this study suggests that litigation does not affect pain related disability nor psychological distress.”
“Our data does not suggest that chronic pain completely resolves and functionality is restored after litigation is concluded.”
In 1997, Barbara Wallis once again published a study in the journal Pain, titled (7):
Resolution of psychological distress of whiplash patients following treatment by radiofrequency neurotomy:
A randomized, double-blind, placebo-controlled trial
The author’s goal was to determine between:
1) The psychological model of chronic neck pain following whiplash: whether psychological distress precedes and causes the chronic pain, or
2) The medical model: whether the psychological distress is a consequence of chronic pain.
The authors used the SCL-90-R psychological profile, the McGill Pain Questionnaire, and the visual analogue pain scale to evaluate 17 randomized, double-blind, placebo-controlled patients with a single painful cervical zygapophyseal joint, using percutaneous radiofrequency neurotomy. These 17 patients were found to have a single painful zygapophyseal joint diagnosed by double-blind, placebo-controlled cervical medial branch blocks. The placebo group received the same invasive procedure, but no radiofrequency current was delivered.
These authors note:
- There is little evidence of useful clinical improvement following psychological treatment in these patients. “Even when psychological improvement has been demonstrated, it has not been associated with clinically useful degree of pain reduction, let alone complete relief of pain. At best, psychological interventions enable patients to return to work in spite of their pain.”
- Percutaneous radiofrequency neurotomy is a 3 hour, local anesthetic, operative neuroablative procedure which provides long-term, complete pain relief by coagulating the nerves that innervate the painful zygapophyseal joint. This neurosurgical procedure has been validated in a randomized, double-blind, placebo-controlled study.
- Radiofrequency neurotomy does not effect a permanent cure. It provides long-term analgesia (months to years). Recurrence of the pain is natural as the coagulated nerve heals.
The results of this study were:
- At 3-months post-operative assessment, all patients who were pain free exhibited resolution of psychological distress. In contrast, only one patient whose pain was present at 3-month assessment exhibited improvement in her level of psychological distress. “The association between complete relief of pain and resolution of psychological distress was very strong.”
- “As their original pain recurred, so did their psychological distress, but when successful active neurosurgical treatment again achieved pain relief, the psychological distress was again resolved.”
- “None of the patients received any formal psychological therapy. The only intervention was the operative procedure. Therefore, such changes in the psychological profile as were observed can only be ascribed to the neurosurgical intervention.”
- The results of this study clearly refute the psychological model, which would have predicted that because no psychological intervention was administered, no patient should have exhibited improvement in either their pain or psychological status. “Yet, ten patients exhibited complete resolution of psychological distress.”
These authors concluded:
“This result calls into question the present nihilism about chronic pain, that proclaims medical therapy alone to be ineffectual, and psychological co-therapy to be imperative.”
“All patients who obtained complete pain relief exhibited resolution of their pre-operative psychological distress. In contrast, all but one of the patients whose pain remained unrelieved continued to suffer from psychological distress. Because psychological distress resolved following a neurosurgical treatment which completely relieved pain, without psychological co-therapy, it is concluded that the psychological distress exhibited by these patients was a consequence of the chronic somatic pain.”
In 1997, Martin Gargan and colleagues published a study in the Journal of Bone and Joint Surgery (British), titled 11):
The Behavioural Response To Whiplash Injury
These authors prospectively evaluated 50 consecutive patients after a rear-end vehicle collision and recorded symptoms and psychological profile within 1 week of injury, at 3 months, and 2 years. Cervical range of motion was noted at 3 months. All patients had plain cervical spine radiographs and initial treatment with a soft cervical collar, non-steroidal anti-inflammatory drugs and a self-help advice sheet. The authors noted:
- Two years following injury, 40% of whiplash patients report continuing discomfort and 10% are unable to work.
- Whiplash symptoms which are still present after 2 years, tend to persist.
- If litigation had been consciously adopted for financial gain, it is curious that it should persist for so long after compensation had been paid.
These authors concluded:
“Our findings suggest that the symptoms of whiplash injury have both physical and psychological components, and that the psychological response develops after the physical damage.”
In another study in 1997, Mayou and colleagues published a study in the journal Psychosomatic Medicine, titled (12):
Long-term outcome of motor vehicle injury
These authors assessed the psychological outcome of 111 consecutive non-head injured motor vehicle accident victims at 3 months, 1 year, and 5 years. Their conclusion were:
“Although most subjects reported a good outcome, a substantial minority described continuing social, physical, and psychological difficulties and a quarter of those studied suffered phobic anxiety about travel as a driver or passenger.”
Psychological complications are important and persistent after injury in a motor vehicle accident and are associated with adverse effects on everyday activities.
Trends for a poor outcome may be due to having more serious physical problems.
Compensation proceedings were often a cause of distress, but were not significantly associated with outcomes.
In 2001, Sapir and colleagues published a study in the journal Spine, titled (13):
Radiofrequency Medial Branch Neurotomy in Litigant and Nonlitigant Patients With Cervical Whiplash: A Prospective Study
These authors state:
“The influence of litigation on treatment [of whiplash injury] outcome is a subject of controversy in both the medical and legal professions.”
This is the first study to examine this issue in a prospective manner using a previously proven diagnostic and therapeutic method, radiofrequency neurotomy. Sixty patients with cervical whiplash who remained symptomatic after 20 weeks of conservative management were referred for radiofrequency cervical medial neurotomy. The patients were classified as litigant or nonlitigant based on whether the potential for monetary gain via litigation existed. Each group underwent identical evaluation and treatment. Patients were observed for 1 year, examined and evaluated.
These authors make the following conclusions:
“These results demonstrate that the potential for secondary gain in patients who have cervical facet arthropathy as a result of a whiplash injury does not influence response to treatment.”
“These data contradict the common notion that litigation promotes malingering.”
“To consider whiplash injury only as a secondary gain syndrome and deny treatment based on a presumption of malingering is a grave injustice to patients who have this syndrome.”
“The fact that litigants and nonlitigants both experienced significant and equivalent reductions in pain after radiofrequency neurotomy refutes the contention that litigation exacerbates symptoms of whiplash injury.”
“An inevitable consequence that some physicians have drawn is that patients with whiplash syndrome suffer only from a ‘litigation neurosis’ rather than an organically based disorder. Our data do not support this conclusion.”
“Another bias has been that treatment resistance in whiplash syndrome is caused by psychological factors.” However, the “uniform response to treatment supports the contention that psychological problems were not a major factor either in producing symptoms or in modulating the response to treatment.”
“Litigation is not an etiologic factor in the genesis of pain in cervical whiplash injury and that treatment is not likely to be more or less effective in patients with pending or potential litigation.”
“There is no statistical difference in medical outcome between litigant and nonlitigant whiplash patients.”
In 2003, Scholten Peeters and colleagues published a study in the journal Pain, titled (14):
Prognostic factors of whiplash-associated disorders:
A systematic review of prospective cohort studies
These authors presented a systematic review of prospective cohort studies to assess prognostic factors associated with functional recovery of patients with whiplash injuries. This study is considered to be the best-done study on the topic to date (2010, (15)) because it is judged to have the best methodological quality.
In their conclusions, these authors found:
“There was strong evidence that compensation is not associated with an adverse prognosis.”
This year (2010), Spearing and colleague published a study in the journal Injury, titled (15):
Is compensation “bad for health”? A systematic meta-review
These authors performed a systematic meta-review (a “review of reviews”) on this topic, and constitutes the most comprehensive review pertaining to compensation and health outcomes to date. Their conclusions include:
“There is a common perception that injury compensation has a negative impact on health status among those with verifiable and non-verifiable injuries, and systematic reviews supporting this thesis have been used to influence policy and practice. However, such reviews are of varying quality and present conflicting conclusions.”
“Systematic reviews that have sought to examine the link between compensation and health outcomes are subject to the inherent methodological weaknesses of observational studies and many do not evaluate the quality of the studies that comprise the dataset for their analysis. Moreover, the extant approaches to health outcomes measurement in this literature may bear a dubious relation to the latent health state of interest, and their use is not validated.”
“There is evidence from one well-conducted systematic review (focusing on one legal process and on health outcome measures) of no association between litigation and poor health outcomes among people with whiplash, contradicting the hypothesis that such an approach contributes to poorer health status.” (14)
The contention that “compensation is ‘bad for health’, should be viewed with caution.”
The study that these authors judged to be the best quality (14) found no association between compensation and whiplash recovery.
The studies presented in this review were published in the best journals over a period of decades. Based upon these studies, it can be said:
- Studies that claim that those suffering from chronic problems following whiplash injury do so in hope of gaining financial compensation have methodological flaws.
- The best methodologically done studies show there is no association between litigation/compensation and recovery from whiplash injury.
- Individuals suffering from chronic whiplash injuries do exhibit an abnormal psychological profile. However, their abnormal psychological profile is consistent with the abnormal psychological profile of those who are suffering from other types of organically based chronic pain syndromes.
- Smart individuals attempting to obtain financial compensation are unable to fake the psychological profile of a true chronic pain whiplash sufferer.
- Psychotherapy has not been shown to be effective in treating chronic whiplash pain. This does not undervalue psychotherapy for the treatment of other aspects of whiplash trauma, such as post-traumatic stress disorder, etc.
- Successful treatment of a whiplash patient’s chronic pain normalizes their psychological profile.
- The abnormal psychological profile of chronic whiplash patients is secondary to the chronic pain.
- It is wrong to claim that chronic whiplash symptoms are primarily the consequence of litigation and desire for monetary gain.
1) Miller H, Accident Neurosis; British Medical Journal; April 8, 1961; 1(5231):pp. 992-8.
2) Mendelson G, Not cured by a verdict: Effect of legal settlement on compensation claimants; Medical Journal of Australia; August 7, 1982; pp. 132-134
3) Parmar HV, Raymakers, R; Neck injuries from rear impact road traffic accidents: prognosis in persons seeking compensation; Injury: The British Journal of Accident Surgery; 1993, Vol. 24, No. 2, pp.75-78.
4) Bogduk N, Aprill C; On the nature of neck pain, discography and cervical zygapophysial joint blocks; Pain, 54, 1993, 213-217.
5) Wallis, BJ, Lord, SM, Barnsley, L and Bogduk, N (1996). “Pain and psychologic symptoms of Australian patients with whiplash.” Spine 21(7): 804-810.
6) Wallis, BJ and Bogduk, N (1996). “Faking a profile: can naive subjects simulate whiplash responses?” Pain 66: 223-227.
7) Wallis, BJ, Lord, SM and Bogduk, N (1997). “Resolution of psychological distress of whiplash patients following treatment by radiofrequency neurotomy: a randomized, double-blind, placebo-controlled trial.” Pain; 73: 15-22.
8) Radanov, BP, Begre, S, Sturzenegger, M and Augustiny, KF (1996). “Course of psychological variables in whiplash injury: A 2 year follow-up with age, gender and education pair-matched patients.” Pain 64: 429-434.
9) Squires, B, Gargan, MF and Bannister, GC (1996). “Soft-tissue injuries of the cervical spine: 15-year follow-up.” J Bone Joint Surg [Br] 78 B(6): 955-7.
10) Swartzman LC, Teasell RW, Shapiro AP, McDermid AJ; The effect of litigation status on adjustment to whiplash injury; Spine, Vol. 21, No 1, pp. 53-58.
11) Gargan, M, Bannister, G, Main, C and Hollis, S (1997). “The behavioural response to whiplash injury.” J Bone Joint Surg [Br], 79-B(4): 523-6.
12) Mayou, R, Tyndel, S and Bryant, B (1997). “Long-term outcome of motor vehicle injury.” Psychosomatic Medicine; 59: 578-584.
13) Sapir DA, Gorup JM; Radiofrequency Medial Branch Neurotomy in Litigant and Nonlitigant Patients With Cervical Whiplash’ A Prospective Study; Spine; June 15, 2001;26:e268-e273.
14) Scholten-Peeters GGM, Verhagen AP, Bekkering GE, van der Windt DAWM, Barnsley L, Oostendorp RAB, Hendriks EJM; Prognostic factors of whiplash-associated disorders: A systematic review of prospective cohort studies; Pain ; July 2003, Vol. 104, pp. 303–322.
15) Spearing NM, Connelly LB; Is compensation “bad for health”? A systematic meta-review; Injury January 8, 2010.