There has been a common notion that people with injury claims over-report their symptoms and that their symptoms resolve once their claims are over. Most whiplash-associated injuries cannot be verified after their acute stage, even when the patient continues to have pain. Medical technology cannot identify a lesion or other verifiable cause of the patient’s symptoms. This lack of verification invites speculation that the patient’s reported symptoms are not real. But it is only speculation, and valid medical studies over the last 30 years have shown that injured patients with legal claims are not cured by a settlement.
A 2012 study by an international consortium of medical professionals on chronic pain from whiplash-associated injuries is especially enlightening: Spearing NM, Gyrd-Hansen D, Pobereskin LH, Rowell DS, Connelly LB. Are people who claim compensation “cured by a verdict”? A longitudinal study of health outcomes after whiplash. J Law Med, 20:82-92 (2012).
The study rests on solid medical research principles. First, the study group was relatively large – 503 people.
Second, the study involved a representative sample of people who had experienced the same mechanism of injury, a rear-end traffic collision, and were exposed to the same compensation system. The study compared the reported levels of pain of people who had settled their claims with the level of pain reported by claimants who had not yet settled.
Third, the study spanned sufficient time for a thorough comparison of injury patients with claims to those without claims. All subjects were contacted within two weeks of their injury and followed for a year. Data was collected on both compensation-related factors and health outcomes.
Fourth, the study groups were “relatively homogeneous,” with similar baseline neck pain scores rather than varying symptoms that might make comparisons difficult.The result of the study was clear:
“The results clearly demonstrate no statistically significant difference in neck VAS scores among those who had settled compared to those who had not yet settled their claims, after the effect of time all recovery is taken into account. * * * Furthermore, the authors noted a steady decline in the level of neck pain among all claimants at each interval, irrespective of whether their compensation claims were settled or not.” (p. 90).
The authors reviewed studies going back to 1971 that found no evidence that a claimant’s health improves after claim settlement. They explain that studies asserting a contrary finding are the product of suspicion and are methodologically flawed.
“Doubts among insurers about the veracity of injury claims were fuelled by Miller’s infamous case series [Miller H, “Accident Neurosis” 52.30 BMJ 919 (1961)] describing a small, highly selected sample of people with severe head injuries involved in protracted legal disputes. As most of his patients did not recover until after their cases were settled, Miller concluded that litigants exaggerated their injuries to maximise their compensation payments and will therefore not respond to treatment. Despite its methodological limitations, the results of this study are heralded as proof of moral hazard [malingering or fraudulent behavior]. Miller’s findings have not been replicated in any other studies comparing pre- and post-settlement health.” (p. 90-91).
The 2012 study refers to “sensationalist media portrayals, sometimes of genuinely fraudulent claimants, [that] may create the impression that all claimants are attempting to cheat the system. Indeed, there is some evidence that large proportions of health professionals believe this to be the case, even though there is little to support this perspective.” (p. 91). The authors point out that, at least as recently as 2008, the “cured by settlement” theory has been asserted in a flawed European study that involved differing compensation systems.
“For example, compared to jurisdictions that accept self-reported whiplash symptoms as evidence of injury for compensation purposes, countries requiring radiological evidence of an injury as a means of “verifying” whiplash have very low rates of whiplash. This finding is unsurprising as most whiplash injuries involve soft tissue, and are therefore not detectable on x-ray.”
The “longitudinal data” has shown and continues to reinforce that, contrary to wide-spread belief, there is no evidence that financial incentive causes patients to overstate their symptoms. “This finding is at odds with the argument that claimants are ‘cured by a verdict’, but it accords with the empirical results of numerous studies on this topic. (p 92).