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Overcompensating

Does mild traumatic brain injury actually cause ongoing, compensable effects, or are you overpaying?

August 26, 2010 Photo
Some 1.4 million to 3 million people nationwide suffer a traumatic brain injury each year, and it's the leading cause of death and disability among youth in the United States. Up to 40% of trauma-related fatalities in the U.S. occur after a traumatic brain injury, totaling an estimated 50,000 to 100,000 deaths yearly. The causes and severity of traumatic brain injury vary and are rated on a scale: mild, moderate, or severe. Some studies indicate that motor vehicle crashes account for 40% to 60% annually. However, other forms of transportation accidents, such as motorcycle, bicycle and motor vehicle-pedestrian crashes, also cause brain injuries. Athletic events, falls and assaults also play a significant role.

While some brain trauma obviously causes permanent disability, not all claims of residual cognitive, physical or psychiatric damage are true. There is prevalent and persistent confusion as to the long-term effects of brain trauma—especially mild traumatic brain injury, or MTBI. Doctors sometimes assume that post-trauma problems are linked to the insult to the brain when, in fact, there could be underlying or pre-existing reasons that are missed as diagnostics focus on cranial trauma.

Questionable MTBI Claims
Many brain injuries wind up in litigation, seeking compensation for various alleged cognitive or physical deficits. In claims of moderate or severe traumatic events, the evidence of brain injury is typically quite obvious. This is not usually the case in MTBI, which is also referred to as mild closed head injury, post-concussion syndrome, post-concussional disorder, and post-traumatic syndrome. All of these have in common the lack of any objective medical evidence of brain injury, as there will be no abnormal MRIs, CT scans or EEGs.

Typically, there will also not be an independently documented loss of consciousness. However, that's not necessary to diagnose MTBI since only a disruption in consciousness, such as being dazed, is required. Post-traumatic amnesia of events that occurred a few seconds to minutes prior to (retrograde) or after (anterograde) the incident is generally present in MTBI, and the patient will score between 13 and 15 (9-12 for moderate and 3-8 for severe) on the Glasgow Coma Scale.

Often, individuals with MTBI will claim total disability, significant memory impairment, inability to maintain concentration, and/or headaches. In fact, there appears to be a significant number of suspect claims for MTBI. Mittenberg, Pattan, Canyock and Condit reported in a 2002 article titled "Base Rates of Malingering and Symptom Exaggeration" that 41.24% of MTBI claims involve malingering or symptom exaggeration. Fraudsters may try to manipulate test results, feigning cognitive or physical deficits to alter their medical testing performance in support of false claims. The National Academy of Neuropsychologists has said that measures of response validity should be incorporated into every neuropsychological battery. These include measures of motivation to perform well on neuropsychological tests.
Other Causes of Cognitive Deficits

Other illness or conditions* may account for cognitive deficits seen in neuropsychological testing and may be confused with a traumatic brain injury.
  • Addison's disease
  • Amyotrophic Lateral Sclerosis
  • Brain tumors
  • Chronic Obstructive Pulmonary Disease
  • Chronic pain
  • Combined Systems Disease
  • Coronary Artery Disease
  • Creutzfeldt-Jakob Disease
  • Cushing's Syndrome
  • Diabetes
  • Electrolyte imbalance
  • Encephalitis
  • Epilepsy
  • Herpes Simplex Encephalitis
  • HIV
  • Homocystinuria
  • Huntington's Disease
  • Hypercortisolism
  • Hyperglycemia
  • Hyperparathyroidism
  • Hypertension
  • Hypertensive Encephalitis
  • Hyperthyroidism
  • Hypoglycemia
  • Hypotension
  • Hypothyroidism
  • Leukemia
  • Lupus Erythematosus, Systemic
  • Lymphatic Encephalopathy
  • Marchifava-Bignami
  • Meniere's Disease
  • Meningitis
  • Multiple Sclerosis
  • Nieman Pick Disease
  • Normal Pressure Hydrocephalus
  • Obstructive Sleep Apnea
  • Parkinson's disease
  • Pernicious Anemia
  • Porphyria
  • Progressive Supranuclear Palsy
  • Shy-Drager Syndrome
  • Supravascular disease
  • Syphilis
  • Uremia
  • Vitamin Deficiency - Niacin
  • Wilson's disease
*Note: This list of physical disorders is not exhaustive.
Psychiatric Disorders Can Mimic Brain Injury

Psychiatric disorders can also produce signs that mimic cognitive impairment found in traumatic brain injury.
  • Age-Related Cognitive Decline
  • Amnestic Disorders
  • Anxiety disorders
  • Attention Deficit/Hyperactivity Disorder
  • Borderline Intellectual Functioning
  • Dementia disorders
  • Depression
  • Factitious disorders
  • Learning disabilities
  • Malingering
  • Mental retardation
  • Pervasive Development Disorders
  • Schizophrenia
  • Somatoform disorders, such as Somatoform Pain Disorder
  • Substance abuse/dependence disorders

Some of the Science
It was traditionally assumed that the mechanism that caused mild brain injury was a diffuse axonal injury. This occurs when the axons of the cerebral neurons are stretched and damaged leading to subsequent neuronal death. This is likely to occur in moderate to severe traumatic brain injury but not in MTBI. The lack of diffuse axonal injury in MTBI contributes to negative findings on imaging studies, such as MRIs and CT scans. Recent research has come to better show what occurs in a mild injury. It is now believed that cellular dysfunction, instead of cellular death, occurs in MTBI. This cellular dysfunction begins to heal within days to weeks and leaves no ongoing permanent disability. In fact, it is now estimated that as few as 1% to 2% of individuals who experience MTBI will go on to have permanent symptoms.

Research indicates that, following a concussion, the brain experiences a period of metabolic dysfunction that rapidly reverses, resulting in a quick return to normal metabolic function within days. This finding is consistent with prior research by Binder, Gualtieri, and Iverson, which reported that chronic symptoms following a mild traumatic brain injury would most likely have other etiologies or causes. The World Health Organization Collaborating Centre Task Force on Mild Traumatic Brain Injury concluded that the prognosis for a mild traumatic brain injury was good and that the majority of studies report recovery within three to 12 months. Its conclusion: "There was consistent and methodologically sound evidence that children's prognosis after mild traumatic brain injury is good, with quick resolution of symptoms and little evidence of residual cognitive, behavioural or academic deficits. For adults, cognitive deficits and symptoms are common in the acute stage, and the majority of studies report recovery for most within three to 12 months… The literature on this area is of varying quality, and causal inferences are often mistakenly drawn from cross-sectional studies."
Additionally, this article reports: "There is consistent evidence that adults experience symptoms, especially headache, in the acute stage and during the first month after MTBI. Although symptoms are common after MTBI, they are not unique to this type of injury since they are also evident in chronic pain patients, in other types of injuries and in healthy controls. Therefore, post-concussion symptoms should be assessed in the light of the background prevalence of these symptoms and with attention to other possible contributing factors."

MTBI can produce symptoms non-specific to brain injury. For example, headaches, which are often reported, resolve very quickly. Persistent headaches can be a sign of depression, pre-existing structural defects in the spine, illness or other factors unrelated to brain injury.

More Than a Medical Exam
In cases of mild traumatic brain injury, legal discovery is imperative in evaluating the claim. It is recommended that the examiner obtain the following:

Medical History:
Records should be obtained from all treatment providers, including the claimant's: pediatrician, family practice, OB/GYN, internist, the emergency response medical service, the emergency room, pharmacies and hospitals. Records of the claimant's Glasgow Coma Score, reported loss of consciousness or post-traumatic amnesia, and results of objective medical testing—such as MRI, CT, EEG, PET, or SPECT scans—should all be reviewed.

Academic Records:
School records are essential and should be discovered and evaluated. It is unnecessary to estimate pre-morbid (pre-accident) intellect as a basis to compare present neuropsychological test data. One can simply obtain school records and have pre-accident objective measures of cognitive performance. Things to look for include: class rank, standardized test results, intelligence testing, achievement test results, highest grade completed and degrees completed.

Neuropsychological Evaluation:
One should always discover the foundation for evidence alleged to document the presence of a brain injury. Often, a neuropsychologist will not release raw data to insurers or claims attorneys, but will release them to other neuropsychologists. It can often be of great assistance to have an independent professional review your claim regarding brain injury. The neuropsychologist's file might contain valuable information, including:
  • Evidence of incomplete or abbreviated testing
  • Evidence of recommended tests of motivation and malingering
  • Tests of psychopathology, such as the Minnesota Multiphasic Personality Inventory-2
  • Tests of academic function
  • Tests of intellectual functioning
  • Tests of neuropsychological functioning.

It is important to identify who administered the tests and also to look for any computerized or actuarial interpretive scoring and interpretations of the tests.

Other records that are important to note are military records, employment records and past psychiatric records.

The Role of the Claims Professional
It is important to remember that not all erroneous conclusions about residual cognitive, physical or psychiatric effects of brain trauma are fraudulent. Some are simply misdiagnoses. Either way, why pay out on claims that have nothing to do with the actual covered injury?

Distinctions between MTBI and moderate or severe brain trauma are meaningful when it comes to evaluating ongoing cognitive or physical problems, but even in those more serious cases, legal discovery and thorough, subordinate examinations of historical records and psychological dispositions that might affect test results are necessary. In cases of mild injury, symptoms and ailments can persist for as long as a year. Problems that persist longer or those that have debilitating effects should be investigated as potential error or fraud.
David R. Price, Ph.D., is president of The Forensic Network in Greenville, S.C. drpricephd@aol.com
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