23rd February 2015
The recent passing of The Criminal Justice and Courts Act 2015 has imparted into law the concept that a Claimant who seeks to progress an injury claim that contains any element found to be “fundamentally dishonest” will lose their whole claim for compensation. In many respects the examining medical expert is at the forefront of pinpointing cases where, how to put it delicately, the Claimants complaints of injury just defy belief. So how does the examiner go about establishing a Claimant might not be genuine? Is it just an “educated guess; ” or is there a more scientific approach?
In 1980 Scottish Orthopaedic Surgeon Gordon Waddell observed “inappropriate” signs in the behaviour of some patients claiming to be injured. His subsequent article published at the time lead to recognition of a series of tests, known collectively as “Waddells tests” that would indicate whether the Claimant was genuine in their complaints or not. Waddell suggested 5 separate categories tested that remain in use today. These are:-
- Superficial and widespread tenderness or Nonanatomic tenderness – basically discomfort caused by the lightest of touch, or pain crossing over anatomical boundaries (ie pain which cannot physically exist given the area tested);
- Simulation tests – making the patient move in a way that cannot cause pain to the area affected. The most used example is pressing down on the patients head when testing a lower back injury. This cannot cause pain in the lower back.
- Distraction tests – a test on the patient is repeated when their guard is down. Most commonly the straight leg raise is repeated.
- Non-anatomic sensory changes – basically regional weakness or sensory changes which are at variance with accepted neuroanatomical.
- Last, but not least – over reaction. The patients demeanour such as showing exaggerated pain response.
Waddell argued that with patients who displayed 3 or more of these 5 signs there was a high probability the origin of the pain was non-organic.
Personal Injury practitioners are no doubt overjoyed when a line in the report states “Waddells tests negative,” but where does that leave the Claimant if there is a positive result?
Waddells tests themselves are not conclusive proof that the Claimant is being dishonest as they do not completely rule out an organic cause for any pain. You will of course be fearing the worst that the Claimant is malingering. Subsequent studies have however shown an association between positive testing and psychiatric conditions such as depression and hysteria. So, rather than bad, the Claimant might be genuine, and falling into the mad or sad categories.
Takes us to what is likely to be the next piece of the medico-legal jigsaw. You take the Claimant at face value and have faith that they are complaining of something genuine. Physical problems having been most likely ruled out by the positive Waddells results, then what next? Well, if the pain complained of does not have a physical cause, then the cause must be psychological. So, in all likelihood you are going to want to obtain an opinion from a Consultant Psychiatrist, briefed to explain why, having excluded any physical problem, the Claimant should be suffering pain (and perhaps disability as well). Let’s be honest, as a society, fostered on the “stiff upper lip” British attitude, we are on the whole unsympathetic to non physical injuries. Pain itself however merits a whole chapter within the Judicial College Guidelines, with the introduction to chapter 8 stating “Many such disorders are characterized by subjective pain without any, or any commensurate, organic basis.” Clearly therefore such cases are not as rare as you would think.
So what difference to all of this does The Criminal Justice and Courts Act 2015 make? The obvious fear is that if such cases were previously viewed with suspicion and scepticism, then they will now be received with outright hostility, compensators being acutely aware that if they can demonstrate the Claimant is “fundamentally dishonest” then the claim will fail in its entirety. Compelling supportive medical evidence is therefore a must.
The message is quite simply this – we can’t tell at first blush from an initial report that produces positive Waddells results that the Claimant is being dishonest. Further evidence may well be necessary before we can say with any faith mad, bad or sad.