Fraud Detection which Stands Up in Court


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The Power Point reviews various methods used for fraud detection, and points out that many are erroneous or not cost effective. It offers information about an Internet test which has been admitted as evidence in many court cases in many states

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Fraud Detection which Stands Up in Court

  1. 1. Lecture 21 of 22 Fraud Detection in Chronic Pain -what stands up in court and what doesn’twww.MarylandClinicalDiagnostics.comNelson Hendler, MD, MSFormer Assistant Professor of NeurosurgeryJohns Hopkins University School of MedicinePast president- American Academy of Pain Management
  2. 2. Spotting Fraud• National Council on Compensation Insurance (NCCI) published a report Assessing Pain, Real and Imagined(11/29/98).•• Hendler reports that 6% of non-litigant patients are exaggerating pain patients, while 10% of Long term disability and 13% of workers’ compensation are exaggerating their claims• For $300, The Pain Validity Test can identify exaggerating pain patients• Average savings of $1,654/claim by eliminating IMEs, FCE, surveillance, & nurse case reviewer in the objective pain patient, and focusing the resources on the exaggerating pain patient.
  3. 3. California Does a Poor Job of Combating Worker’s Comp Fraud (Workers Compensation Report, Vol 15, No. 11, p.206 May 17, 2004)• State Auditor Elaine Howle says the $30,000,000 annual assessment to combat fraud may be wasted.• Insurance companies cannot measure the effectiveness of their efforts using IMEs and surveillance.• The companies are relying on anecdotal testimony from stakeholders in the workers compensation community, unscientific estimates, and description of local cases involving fraud.• The fraud division publishes statistics showing the number of investigations, arrests, convictions, and restitution, but cannot show if anti-fraud efforts are cost-effective• How to detect fraud vs. a normal response to chronic pain
  4. 4. Types of Chronic Pain Patients Hendler, Diagnosis and Non-Surgical Management of Chronic Pain, Raven Press, ‘81• Objective Pain Patient: Good pre-morbid adjustment, objective findings, and goes through the 4 stages of pain (case study: Car Exec.) (87%-94% of all chronic pain patients)• Exaggerating Pain Patient: poor pre-morbid adjustment, minimal findings, and absence of depression (case study: hysterical scoliosis).• (Between 6% to 13% of all chronic pain patients)• Mixed Objective-Exaggerating Pain Patient: poor pre-morbid adjustment, objective findings and very difficult to manage by medical or psych (case study: sexual abuse, histrionic, TOS, disc)
  5. 5. Research Methodology• Physicians want to know if a patient has a valid complaint of pain• Earlier research is flawed, because it say if a patient has pain and depression, the cause of the pain is the depression- a depressive equivalent.• Researchers never looked at the effect of pain over time.• Have to study a normal response to appreciate an abnormal response-• Study anatomy to recognize pathology-it’s different• What is a normal response?• You know what is abnormal, because it is different
  6. 6. Objective Pain Patient-A normal responseCase Study: A 56 year old executive for a Big Three auto maker was marriedfor 25 years, had three children, none on drugs, all of whom were in college,and was earning over $1,000,000/year. He was working on his boat, when theengine fell, and traumatically amputated his thumb. He went to work the nextday, and continued to work, and he expected the pain to subside. However,after two months, the pain in his thumb became so severe, that he could notconcentrate, nor sleep. He was diagnosed with a neuroma in the stump of thethumb. Any sensation to the stump would cause severe pain to shoot up hisarm. When he was seen at a hospital in Baltimore, he had been suffering fortwo years. He scored 14 points on the Mensana Clinic Pain Validity Test,putting him the Objective Pain Patient category. He was suicidal, sleeping onlytwo hours a night, and was on three types of narcotics, sleeping medication,and diazepam. He wanted to divorce his wife because he felt like a burden toher. He was severely depressed and had never been depressed before theonset of pain. He was so desperate to get rid of his pain that he had a thalamicstimulator put into his brain. Unfortunately, this gave him only partial relief.Eight years after the onset of his pain, he was less depressed, was offnarcotics, and sleeping medication, and was getting four hours of sleep anight. He still had pain, but had adjusted to the pain. He had retired from theauto company. (Hendler, Diagnosis and Non-Surgical Management of Chronic Pain, RavenPress, New York, 1981).
  7. 7. 4 Stages of Chronic Pain in an Objective Pain Patient- A Normal Response to Pain(Hendler, in Diagnosis and Treatment of Chronic Pain, Edited by Hendler, Long and Weiss, Wright-PSG, ’82)• Chronic pain patients go through 4 stages remarkable similar to the 5 stages a patient experiences when dying (Kubler-Ross-’69)- this is a normal response to pain.• Acute Stage 0-2 months –Pt. expects to get well, so no psychological changes (MMPI is normal).• Sub-acute stage-2-6 months- Pt. had anxiety and somatic concerns develop (MMPI scales 1 & 3 are elevated)• Chronic stage 6 months-8 years- Pt. is depressed (MMPI has elevated scale 2, called a pain neurosis by Blumer, pain prone patient by Pilling, low back loser by Sternbach)• Sub-chronic stage-3-12 years Pt. resets goals-adaptation (MMPI scales 1 & 3 elevated, hypochondriasis and hysteria)
  8. 8. Exaggerating Pain Patient-The Abnormal Response to PainA 43 year old woman was hospitalized in Baltimore, complaining of markedscoliosis, that had just developed, in the past year. Further evaluation did notverify the typical radiological findings seen with a constant scoliosis. She scored24 points on the Mensana Clinic Pain Validity Test, putting her in theExaggerating Pain Patient category. A trial with an Amytal (truth serum) interviewfailed to resolved the scoliosis, but when the patient was anesthetized, thescoliosis resolved temporarily. Further Amytal interviews revealed the patienthad a stormy marital relationship, and she avoided sex with her husband,because he was abusive. The patient was reassured she need not have sex withher husband if he was abusive. The next day, she walked upright, and continuedin this posture, until her husband visited. The day of the visit, the scoliosisreturned. Additional Amytal interviews revealed she had been abused as a child.She had a she had been afraid to seek divorce from her husband, but with socialworker intervention, she found the support to do so. The scoliosis resolved. Onfive year follow-up, she was divorced, and remained free of scoliosis. (Hendler, N,Filtzer, D, Talo, S, Panzetta, M, and Long, D, Hysterical Scoliosis Treated with AmobarbitalNarcosynthesis, The Clinical Journal of Pain, 2:179-182, 1987).
  9. 9. Mixed Objective-Exaggerating Pain PatientThe patient was a 33 year old white female, married for the third time. She had agradual onset of lower neck and right arm pain. She complained of “excruciatingpain,” “devastating pain,” and “unbearable pain.” She arrived for her first interviewwearing heavy blue eye-shadow, bright red-lipstick, three rings on each hand,reeking of perfume, wearing a low cut revealing blouse, and very short skirt. Sheused superlatives for everything. Despite her clear histrionic personality disorder,she scored 20 on the Mensana Clinic Pain Validity Test, placing her in the MixedExaggerating-Objective pain patient category. Her MMPI scores showed elevatedscales 1 and 3: “a conversion V.” Her husband was 20 years older than she was,and was a very successful business man, who provided her every creaturecomfort, from the finest cars, to a maid. She clearly was overusing her narcoticmedication. Her pain was made worse with extension of her neck, and shesubsequently had C4-7 facet blocks which gave her 80% relief of her neck pain.Facet denervations gave her 50% relief of her neck pain. After this treatment, shewas able to improve her level of functioning, and eliminate the use of narcotics.(Hendler, Diagnosis and Non-Surgical Management of Chronic Pain, Raven Press, New York, 1981).
  10. 10. Functional Capacity Evaluation• Functional Capacity Evaluations (FCE) uses isometric (static) strength to predict dynamic lifting capacity• In one study, 107,755 male and 23,078 female were tested for strength using three standard static lifts and four dynamic lifts.• The data confirms that standard errors of estimate for all isometric-to- dynamic predictions make such predictions meaningless for the purpose for which they are most commonly used.• Conclusions: The Static Leg Lift, Static Arm Lift and Static Back (Torso) Lift are not appropriate for making predictions relative to dynamic lifting capacity.• Given the degree of error in such predictions employers, clinicians and risk managers now have substantial objective evidence to call FCE testing into question.Larry Feeler, James D. St. James, & Darrell W. Schapmire, Isometric strength assessment, Part I: Static testing does not accurately predict dynamic lifting capacity Work 37 (2010) 301–308 301
  11. 11. 6 Things to know about Surveillance • As an injured worker, there are 6 things you should know about surveillance: • Many private investigators take advantage of the times that you are at doctor appointments. They’ll make sure they can properly identify you, your vehicle, where you live, and how active you are. • The investigator might not find anything suspicious, but that doesn’t mean that he or she won’t try again. The surveillance may happen again in a few weeks or even months. • Investigators don’t just work from 9-5 on weekdays. They’ll also work on nights and weekends, when you may not expect them to be watching. • Try not to talk about your daily activities with people. After filing a claim, your employer may try to get information from your co-workers about where you like to go in your spare time. Investigators may go to these places to check up on you. • Make sure you follow your doctor’s instructions. If you are caught doing something that you were told not to, your case may become less valuable. You should avoid activities like carrying heavy groceries, playing sports, making car repairs, or working on the exterior of your home. • The only income you receive should be from your weekly benefit checks. If you earn additional income, even from odd jobs like babysitting or cutting grass, it is considered to be fraud.
  12. 12. Surveillance surveillance-to-catch-fraud-for-wor/?page=all• The Postal Service inspector general uses of video surveillance to target disability fraud• The Government Accountability Office (GAO), the investigative arm of Congress, disclosed the surveillance practices as part of a broader review of workers’ compensation fraud controls at a half-dozen agencies across government.• The Transportation Security Administration (TSA) has an internal affairs unit to review potential fraud and make referrals to investigators, who in turn conduct video surveillance, according to the GAO.• The GAO also said the Air Force plans to hire staff early in fiscal 2012 to perform background checks & conduct surveillance to make sure recipients are entitled to benefits.• Still, the GAO also found that agencies face challenges investigating and prosecuting such cases. For one thing, so-called “targeted investigations” can be costly and resource- intensive, the GAO said. What’s more, the “limited resources” of some federal prosecutors make it hard to bring fraud cases involving less than $100,000, the Postal Service inspector general’s office told the GAO.• Successful cases “can help deter future fraud and ultimately save money,” the GAO found.• Overall, from April 1, 2010, to Sept. 30, 2011, the Postal Service inspector general told Congress in a recent report that its workers’ compensation fraud investigations resulted in $65 million in savings, with 19 arrests and 60 personnel actions.• However, the report doesn’t mention how much it cost to save $60,000,000.
  13. 13. Independent Medical Evaluations• Independent Medical Evaluations (IMEs) are occupational health evaluations performed by a licensed medical examiner who is not involved in the regular care of the employee.• They are used by the workers’ compensation system, and are also used to clarify other occupational health, disability and liability case issues.• These are physicians who see a majority of their patients at the request of an insurance company, and have either no medical practice of their own, or small one.• They provide Second opinions, Peer evaluations. Chart reviews. Legal testimony, Physical capacity exams, Pre-employment physicals. Fitness for duty exams, Permanent impairment rating• The vast majority of their cases require writing an opinion letter for an insurance company.• Very often, these physicians are use to determine if the injury was work related, and do more detective work than medical work
  14. 14. Waddell signs as part of an IME• The original article lists five Waddells signs. (Waddell G, McCulloch HA, Kummel E, Venner RM. Non-organic physical signs in low-back pain. Spine 1980; Mar- April (5)-2: 117-25 )• 1. Superficial and Widespread tenderness or non-anatomic tenderness –subjective (seen in CRPS I)• 2. Stimulation tests: Axial loading (actually a Spurling test which really is pathological) and Pain on simulated rotation, i. e. bending and turning.• 3. Negative distracted straight leg raise (seated straight leg raising, rather than supine-not valuable for facet syndrome)• 4. Non-anatomic sensory changes: stocking or glove anesthesia. (Peripheral neuropathy, carpel tunnel or Lymes disease may manifest as this)• 5. Overreaction-totally subjective. (Seen with fear of pain)• According to “common wisdom”, if there are more than 3 of 5 present then there is high probability that patient has non- organic pain. In reality, many Waddell signs really are found in other diseases as indications of pathology.
  15. 15. Waddell Signs as part of a physical exam • Fishbain, et. al., (Pain Medicine, vol. 4, ’03). • Meta analysis of 61 studies (a review of 61 published articles) • Positive Waddell signs do not correlate with malingering, secondary gain, hysteria, psychological distress, abnormal illness behavior, nor somatic amplification • They do not discriminate organic vs. non- organic problems • They do predict poor treatment outcome. • There may be a real organic basis for + signs.
  16. 16. No scale on the MMPI can invalidate the complaint of pain• MMPI: a 566 true-false question personality test• MMPI can not consistently predict the presence or absence of organic pathology. Four articles report not one single scale ever correlates, consistently, with the presence or absence of organic pathology.• The MMPI cannot be used to diagnose faking or malingering. It only measures personality problems or psychiatric disease.( Pain, ’85, J. Occ. Medicine,’88, J. Neurolog & Ortho. Med. & Surgery, ’85, Clinical
  17. 17. Comparison• Pain Validity Test • MMPI -Fake Bad Scale• Predicts objective • Cannot predict objective organic test pathology organic test using any with 95% accuracy scale of the MMPI• Proves that 87%-94% • Says 85% of all people of all people have valid are fakers, even if they pain complaints are not• Tested on 794 people • Tested on many more• Available on Internet • Available on Internet• Measure impact of pain • Measures psychological on a person problems• Always admitted in • Thrown out of court as court -8 states “junk science”
  18. 18. Comparison of Fraud Tests UsedTest Cost Physical or Accuracy Accuracy Verbal Predicting medical test abnormality Proving fraudMCD Pain $300 Verbal 95% 85%Validity TestFunctional $1,400+ physical No NoCapacityEvaluation correlation correlationDetectives $2,000+ visual poor variableIndependent $1,500+ both poor MedicalMedical certainty >51%ExaminationWaddell signs Part of physical poor poor physicalMMPI $3,500 verbal Articles report Articles report none none
  19. 19. PVT compared to other tests• The Pain Validity Test is the most accurate & least expensive way of documenting fraud• The Pain Validity Test is based on published articles by top physicians, in medical journals• The Pain Validity Test as been admitted in court in 8 different states as part of testimony• The Pain Validity Test offers an objective method for determining fraud• Go to for more information.
  20. 20. This is a small representative sample of the court casesand depositions where the Pain Validity Test was used as part of physician testimony and always admitted asevidence. Go to to see a sample of the actual test results.
  21. 21. More Cases where PVT was used
  22. 22. More Cases where PVT was used
  23. 23. Daubert Criteria-Rule 702-A• If you want to know if your expert’s use of the PVT would be admissible in a federal district court, you should review Rule 702 of the Federal Rules of Evidence.• That Rule provides:• If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (l) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
  24. 24. Daubert Criteria-Rule 702-B• Rule 702 was amended in 2002 in response to the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and many cases applying Daubert, including the Supreme Court’s decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
  25. 25. Daubert Criteria-Rule 702-C• In Daubert, the Supreme Court held that the district court undertakes a “gate-keeping” function, and determines “whether the reasoning or methodology underlying the testimony is scientifically valid. and whether that reasoning or methodology properly can be applied to the facts in issue.” - 509 U.S. at 592-593. (This gate- keeping role has been described as a mechanism to guard the jury from considering “. . . as proof pure speculation presented in the guise of legitimate scientifically-based expert opinion. It is not intended to turn judges into jurors or surrogate scientists.” Joiner v. Gen. Elec.. Co.. 78 F.3d 524,530(11th Cir. 1996), 4, 522 U.S. 136 (1997). Anthony Z. Roisman, The Courts, Daubert and Environmental Torts: Gatekeepers or Auditors, 14 Pace Envtl. L. Rev. 545 (1997).
  26. 26. Daubert Criteria-Rule 702-D• The specific factors set forth in Daubert are as follows:• 1. Whether the expert’s technique or theory can be or has been tested, i.e., whether the theory can be challenged in some objective manner, whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability. (509 U.S. at 593) and Advisory Committee Notes to Rule 702;• 2. Whether the theory or technique has been subject to peer review and publication. (509 U.S. at 593). According to the Court, peer review is important in that the likelihood is increased that substantive flaws in methodology will be detected. ~. Accordingly, publication, or the lack thereof, in a peer review journal is a relevant, although not dispositive, consideration in determining the scientific validity of a particular technique or methodology on which an opinion is based. (509 U.S. at 594);• 3. The known or potential rate of error of the technique or theory when applied, as well as the existence and maintenance of standards controlling the technique’s operation. 509 U.S. at 594;• 4. Whether the technique or theory has been generally accepted in the scientific community. According to the Court, a technique which has only been able to attract minimal support within the community may properly be viewed by the district court with skepticism. Id.
  27. 27. “Fake Bad” Scale of MMPI MMPI scale invalid as forensic lie detector, courts rule March 5, 2008Psychologys most widely used personality test, the MMPI evoked controversy, bypitting corporate interests such as Halliburton against the proverbial little guy.At issue is the "Fake Bad Scale" that was incorporated into the MinnesotaMultiphasic Personality Inventory last year for use in personal injury litigationAlthough a majority of forensic neuropsychologists said in a recent survey that theyuse the scale, critics say it brands too many people - especially women - as liars.Research finding an unacceptably large false-positive rate includes a large-scalestudy by MMPI expert James Butcher, who found that the scale classified highpercentages of bonafide psychiatric inpatients as fakers.The controversy came to a head last year in two Florida courtrooms, wherejudges barred use of the scale after special hearings on its scientific validity. In acase being brought against a petroleum company, a judge ruled that there was "nohard medical science to support the use of this scale to predict truthfulness.”
  28. 28. The “”Fake Bad” Scale of the MMPIButcher JN, Arbisi PA, Atlis MM, McNulty JLThe construct validity of the Lees-Haley Fake Bad Scale (FBS). Does this scale measure somaticmalingering and feigned emotional distress? Arch Clin Neuropsychol. 2004 Apr;19(3):337-9;author reply 341-5.The Fake Bad Scale (FBS [Psychol. Rep. 68 (1991) 203]) was created fromMMPI-2 items to assess faking of physical complaints among personalinjury claimants.Little psychometric information is available on the FBS measure.This study was conducted to investigate the psychometric characteristicsof the FBS in over 20,000 patients, in 6 different settings.The FBS classified 2.4%-30.6% of individuals as malingerers.Compared to men, in most samples, almost twice as many women wereclassified as malingerers.The results indicate that the FBS is more likely to measure generalmaladjustment and somatic complaints rather than malingering.The rate of false positives produced by the scale is unacceptably high,especially in psychiatric settings.The scale is likely to classify an unacceptably large number of individualswho are experiencing genuine psychological distress as malingerers.It is recommended that the FBS not be used in clinical settings nor shouldit be used during disability evaluations to determine malingering.
  29. 29. Minnesota Multiphasic Personality Inventory (MMPI): lack of predictive capabilities• Hagedorn et al (Pain, ’84) followed 50,000 patients for 25 years. This is the only prospective study on MMPI ever done.• They all received the MMPI when they first entered the Mayo Clinic system.• 68 of them had back surgery.• No difference in pre-surgery MMPI between those who did do well or didn’t do well with surgery.
  30. 30. Validating the Complaint of Pain• MMPI is not consistent in predicting the presence or absence of organic pathology. Not one single scale ever correlates, consistently, with the presence or absence of organic pathology (Hendler et al, Pain, ’85, J. Occ. Medicine,’88, J. Neurolog & Ortho. Med. & Surgery, ’85, Clinical Neurosurgery, ‘89)
  31. 31. Longitudinal Studies on DepressionPatients admitted to Mensana Clinic:77% of the chronic pain patients were depressed, as confirmed by Beck scores.However, 89% had never been depressed before the onset of their pain ( Hendler, Clinical Neurosurgery, ‘89)After six months or more, chronic pain produces depression (Hendler, J. Clinical Psych, ’84)
  32. 32. How to use the PVT properly• Medical research shows • 87%-94% of claimants have that 6%-13% of claimants a valid complaint of pain are fakers and malingerers • Use the MCD Pain Validity• The PVT can detect these Test to identify clients who cases instead of investing have valid pain complaints time and money in • The MCD Pain Validity Test detectives, FCE and IME predicts who will have• The insurance company abnormal medical testing can settle these cases for a with 95% accuracy. small amount of money • 40%-67% of these cases• Saves you time and money are misdiagnosed, and 50%• The Pain Validity Test will need surgery to get well identifies exaggerators with • Use Diagnostic Paradigm 85% accuracy for proper diagnosis
  33. 33. Overused Psychiatric Diagnoses in Chronic Pain Patients• Conversion reaction is defined as an unconscious manifestation of a physical problem (usually visible) without an organic basis (300.11- DSM-IV).• Malingering is defined as a conscious attempt to deceive for personal gain (316.V65.2-DSM- IV). Patients refuse to go for tests.• Pain Disorder (307.80- DSM-IV) defined as a pain for which is there is no medical explanation.• Somatoform Disorder (300.81- DMM –IV) defined as a cluster of 4 pain, 2 GI, 1 sexual and 1 pseudo-neurological symptoms without medical diagnosis.
  34. 34. Overused Psychiatric Diagnoses in Chronic Pain Patients• Conversion reaction: What is the incidence? Kemp, Am. J. of Insanity, 1913 less than 1% of admission to Phipps were conversion.• Stephens, J. of Nervous and Mental Disease, ’62, less than 2% of Phipps admits were conversion• Hendler. N. Neurosurgical Management of Pain , ’97, Edited by Richard North, MD and Robert Levy, MD, Chap. #2, reports only 3/6,000 chronic pain patients with conversion reactions.
  35. 35. Overused Psychiatric Diagnoses in Chronic Pain Patients• Slater, E. Br. Med. J. ’65 did 9 year follow-up on 85 patients diagnosed as conversion hysteria at Queens Square Neurological Hospital in London.• Only 7/85 were confirmed as conversion• The rest has atypical myopathy, trigeminal neuralgia, disseminated sclerosis, dementia, thoracic outlet syndrome, epilepsy, vestibular lesions, Takayasu’s syndrome, neoplasms, schizophrenia, somatizing disorders, cord compression, and endogenous depression.
  36. 36. Overused Psychiatric Diagnoses in Chronic Pain Patients1) The incidence of hysterical conversionreaction is small in a general psychiatricpopulation (1%-2% of admissions). 2)The incidence of hysterical conversion in achronic pain population that is properlydiagnosed, is even smaller (3/6000 or .05%).3) Even after diagnosed with conversionreaction, there is less than a 10% chance thepatient really has this, and most likely hasmedical disease.
  37. 37. Overused Psychiatric Diagnoses in Chronic Pain Patients• Conversion reactions (300.11 DSM IV), such as paralyzed limb, blindness, or falling -visible signs• Not in DSM IV- The disorder does not produce distress in the patient (“La belle indifference”).• The symptoms will remit with amobarbital narcosynthesis, at adequate doses (>450mg)• Hendler et al Clinical J. of Pain, ‘87 described a case of hysterical scoliosis diagnosed by the orthopedic surgeon, which did not respond to Amytal, but responded under general anesthesia.
  38. 38. Hysterical Conversion Reaction Hendler, N., Filtzer, D., Talo, S., Panzetta, M., Long, D.: "Hysterical Scoliosis Treated with Amobarbital Narcosynthesis." The Clinical Journal of Pain. Vol. 2, No. 3:179-182, 1987.• Hysterical Scoliosis =walking with back twisted to one side.• Note-visible symptom – “I am sick.”• Note-responded to narcosynthesis.• Note – represented an unexpressed psychological conflict• Pain is a bad conversion symptom, because it is not visible, and even people with real pain have trouble convincing people they have something wrong.
  39. 39. Overused Psychiatric Diagnoses in Chronic Pain Patients• Malingering: No statistics about frequency (Hendler and Talo, Current Therapy of Pain, edited by Kathy Foley and Richard Payne, BC Decker, ’89).• Pain Disorder is defined as a pain for which is there is no medical explanation. However, if 40%-67% of chronic pain patients are misdiagnosed medically, then these patients receive a faulty psychiatric diagnosis, because of a poor medical diagnosis.• Depressive Equivalents: Depression causes pain.• Circular logic in the diagnostic criteria in DSM-IV for somatoform disorder, pain disorder, and depressive equivalents. With a poor medical work-up, these “diagnoses” becomes self fulfilling prophecies.
  40. 40. Malingering- V65.2-DSM IV• This is a conscious attempt to deceive people• The malingerer picks highly visible disabilities, like limping, or totally subjective ones, like chronic pain which can’t be measured.• The hallmark of a malingerer is a refusal to participate in objective medical testing, which, of course, would detect an absence of any pathology.Hendler and Talo, Current Therapy of Pain, edited by Kathy Foley and Richard Payne, BC Decker, ’89
  41. 41. Somatoform Disorder-300.81• Diagnostic and Statistical Manual IV code for Somatoform Disorder is 300.81 or Somatization disorder. This is also known as Briquets syndrome. Patients with this type have a long history of medical problems that starts before the age of 30.The symptoms involve several different organs and body systems. The patient may report a combination of:• Pain,neurologic problems,gastrointestinal complaints.sexual symptoms• Many people who have somatization disorder will also have an anxiety disorder.
  42. 42. Pain Disorder Associated With Both Psychological307.89 Factors and a General Medical Condition Pain Disorder Associated307.80 With Psychological Factors The distinction between these disorders, as defined by the DSM IV, is the severity of the psychiatric disorder. However, these definitions totally overlook the cause effect relationship between pain and psychological factors. There is no provision for the fact that pain produces depression, and that this is a normal response to pain. Also, in the later diagnosis, Pain Disorder Associated with Psychological Factors, if a physician misdiagnoses a patient, or can’t find the cause of the pain, the DSM-IV allows the physician to blame the patient, and say the patient has psychological factors causing his complaint of pain. This is faulty logic, and faulty medicine.
  43. 43. Suicide and PainChronic pain patient commit suicide at a higher rate than the general population (Fishbain et al Clin. J. of Pain, ‘91).White males with pain complete suicide at a rate 2X higher than the general population.White females with pain complete suicide at a rate 3 X higher than the general population.White males with pain, involved in workers compensation litigation complete suicide at a rate 3 X higher than the general population.
  44. 44. Rational Clinical Approach• Patients can have both psychiatric disease and organic pathology co-existing• Schizophrenics get brain tumors, and hysterics get disc disease. Psychiatric disease does not confer an immunity against getting a medical disease.• Treat each patient as if they have organic pathology.• Give patient the benefit of the doubt.• See for the Pain Validity Test
  45. 45. What are the Questions?• Does the patient have a valid complaint of pain?• Variables: pre-existing psychopathology, resultant psychopathology, negative tests, positive tests that do not correlate with the anatomical complaint of pain (i.e. L5-S1 disc on MRI: pain in top of thigh = L2-L3)• KEY Concept: Severe chronic pain produces consistent psychological and sociological responses in a patient, regardless of pre-existing or co-existing psychiatric disease.• If the response to pain is normal, believe the patient, not the tests, and keep looking• People with pre-pain psychiatric illness can also get medical illness. This is not conversion.
  46. 46. From; Hendler and Talo, Current Therapy of Pain, edited by Kathy Foley and Richard Payne, BC Decker, ’89
  47. 47. Available Help• Pain Validity Test is available on Internet to validate pain, and improve diagnostic accuracy, as a screening tool to help get an accurate diagnosis, and supplement the use of IMEs, and surveillance.• Preliminary studies (next slide) show an average cost savings of $1,654/case for answering the question – “Is the pain valid?” using Pain Validity Test for $300.• Average $97,000/case cost containment for “What is the diagnosis and treatment?” (Appendix A) using Diagnostic Paradigm.
  48. 48. Spotting Fraud• National Council on Compensation Insurance (NCCI) published a report Assessing Pain, Real and Imagined(11/29/98).•• Hendler reports that 6% of non-litigant patients are exaggerating pain patients, 10% of LTD, and 13% of workers compensation.• For $300, The Pain Validity Test can identify exaggerating pain patients• Average savings of $1,654/claim by eliminating IMEs, surveillance, and nurse case reviewer in the objective pain patient, and focusing the resources on the exaggerating pain patient.
  49. 49. California Does a Poor Job of Combating Worker’s Comp Fraud (Workers Compensation Report, Vol 15, No. 11, p.206 May 17, 2004)• State Auditor Elaine Howle says the $30,000,000 annual assessment to combat fraud may be wasted.• Insurance companies cannot measure the effectiveness of their efforts using IMEs and surveillance.• The companies are relying on anecdotal testimony from stakeholders in the workers compensation community, unscientific estimates, and description of local cases involving fraud.• The fraud division publishes statistics showing the number of investigations, arrests, convictions, and restitution, but cannot show if anti-fraud efforts are cost-effective• How to detect fraud vs. a normal response to chronic pain
  50. 50. Scattergram of Computer Scored Pain Validity Test. On the left, 3* is a severe abnormality, 2 a moderate abnormality, 1 a mild abnormality, and 0 is no abnormality on at least one objective medical test. At the bottom, 8-25represent the score on the Pain Validity Test. 17 or less is an Objective Pain Patient, 21 point or higher is an Exaggerating Pain Patient*3 65/69 = 95% 2 Exaggerating Objective Pain Patient Pain Patient1 11/13 = 85%0 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
  51. 51. Explanation of the Scattergram• 87%- to 94% of clients score as an objective pain patient on the Pain Validity Test.• Look at Scattergram- Objective Pain Patients have a 95% chance of having moderate or severe abnormalities on at least one objective measure of organic pathology, such as EMG nerve conduction studies, root blocks, facet block, provocative discograms, MRI, CT, etc. Medical articles prove that the MMPI has no predictive medical capabilities. Insurance companies often claim that the MMPI does, but can’t prove it.• Pain Validity Test can identify patients who will not have medical abnormalities with 85% accuracy. Only 6%-13% of patients are exaggerating
  52. 52. Efficacy?• Other than the PVT, no test was cost effective• A literature search using Google, Jeeves, National Library of Medicine, National Council of Compensation Insurers, AOL, Yahoo, etc. never revealed an article documenting the cost effectiveness of IMEs, surveillance, P.T., Functional Capacities Evaluations, and Case Reviews. There were lots of case reports.• 54 cases reviewed for “XZY” insurance had an average of 3.8 IMEs (1-7), and cases were still active, out of work an average of 3.9 years• Fraud detection cost were over $5,000/case
  53. 53. Richard Pimentel at National Council on Compensation Insurance Symposium,May 6,’04 (Workers’ Compensation Report Vol. 15, No. 11, p. 206, May 17, 2004)• Insurers hold the key to reducing claims duration with effective Return to Work Strategies• Currently: Worker goes to doctor, Worker files a claim with insurer, Worker doesn’t want to return to work, Insurance company contacts employer for a job description, and send RTW form to doctor, who fills out form and sends it to insurance carrier, who contacts the employer to to to get worker to RTW.• His plan: remove the insurer from the equation.• Having a supervisor of the worker from the company go to the doctor with the worker saved $1,400/claim.
  54. 54. Conclusions• The current methods of assessing fraud are not cost effective, and not accurate.• Misdiagnosed patients cost insurance companies much more than fraudulent cases.• The Pain Validity Test is a reliable method for detecting fraud.• Physical therapy has not been documented as cost effective in chronic pain patient treatment.• Insurance carriers should demand Evidence Based Medicine proof of efficacy of treatment.• See