A way to quantify pain?
By Alan Cooper
Published: April 5, 2010
Virginia Lawyers Weekly
Volume 24, Number 44
A Richmond lawyer has won a $5 million settlement after determining a method to quantify the debilitating effects of chronic pain.
The method: Use the same neuropsychological tests used to diagnose traumatic brain injury.
W. Coleman Allen Jr. provided a limited picture of his client’s case last month at the annual convention of the Virginia Trial Lawyers Association – limited because of the terms of a confidentiality agreement.
The agreement allows Allen to describe some aspects of the case at legal seminars but otherwise bars him from discussing it. Allen said the case was settled after two mistrials were declared because of juror misconduct in Richmond Circuit Court.
The plaintiff was rear-ended in November 2002 by a fully loaded garbage truck traveling at about 35 mph. He was 44 years old at the time and employed as an engineer for Newport News Shipbuilding. He had received glowing performance evaluations before the crash.
His emergency room diagnosis was cervical and lumbar strain, but he continued to have pain and eventually underwent two lumbar reconstructive surgeries that resulted in a satisfactory fusion of two vertebrae.
Orthopedists concluded in October 2006 that he had reached maximum medical improvement with a diagnosis of failed back surgery syndrome and radicular back pain. His lawsuit alleged that he was permanently disabled because of chronic pain.
A neuropsychiatrist performed a series of 16 tests, starting with the Wechsler Adult Intelligence Scale-III test, which showed the plaintiff had a full-scale IQ of 123.
Allen said pain typically does not affect performance on an IQ tests and provides a base from which to compare other tests.
Those tests showed the plaintiff performed at substantially lower levels than his IQ would indicate on such cognitive functions as memory, multitasking, information processing and the ability to follow directions. “Objective assessment supports his subjective complaints,” the neuropsychiatrist concluded.
That conclusion represents the Holy Grail for a personal injury attorney – being able to produce objective proof of the degree of pain, Allen said.
He emphasized that the pattern of cognitive deficits that result from chronic pain is different from that caused by a brain injury, which may show up on brain scans in addition to being reflected on neuropsychological tests.
The test results provide a foundation for the admissibility of tests from other experts, such as pain specialists and life care analysts, Allen said.
Once a test is administered, the text for the manual for it can be matched with the plaintiff’s experience to validate his condition and to provide a logical explanation for the pain he is enduring.
Such evidence can be even more compelling for a victim of chronic pain than for a TBI plaintiff, Allen said. Jurors know and understand what pain feels like. They usually are less familiar with the often subtle diminution of intellectual capacity that results from a traumatic brain injury.
Allen said the neuropsychological evidence is most appropriate when the plaintiff has a high IQ, an advanced degree, a job history of cognitively demanding work and moderate to severe levels of pain.
Plaintiffs’ attorneys should expect a vigorous challenge to the conclusions of their neuropsychological expert, he said.
However, the most direct challenge to the conclusions, an independent medical exam performed by a neuropsychologist of the defense’s choosing, probably will reinforce the validity of neuropsychological testing.
In this case, the defense expert found many of the same impairments described by the plaintiff’s expert and concluded that they were “consistent with chronic pain history and not a head injury history.”
The two experts differed in their analysis of the plaintiff’s ability to obtain and maintain competitive employment. The plaintiff’s expert concluded that he is permanently disabled, a finding that is consistent with his receipt of Social Security disability benefits.
The defense expert suggested that the plaintiff start work part-time with a flexible work location and schedule, which the expert predicted would reduce the plaintiff’s level of depression and lessen the subjective level of pain.
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