Samuel D Hodge Jr | Law and Anatomy



16 Mich. St. U. J. Med. & L. 143Michigan State University Journal of Medicine & LawWinter, 2012WHAT DOES IT MEAN WHEN A PHYSICIAN REPORTS THAT A PATIENT EXHIBITS WADDELL'S SIGNS?Samuel?D.?Hodge, Jr.1?Nicole Marie Saitta2Copyright ? 2012 Michigan State University Journal of Medicine & Law;?Samuel?D.?Hodge, Jr., Nicole Marie SaittaAbstract143I.Introduction144II.Scope Of The Problem144III.The Construction Of The Low Back146A.Bones147B.Joints148C.Ligaments149D.Intervertebral Discs149E.Spinal Nerves151F.Skeletal Muscle153IV.Malingering154V.Waddell's Signs: A Background156VI.Waddell's Signs in a Legal Context: The Pros and Cons160VII.Waddell's Signs And The Courts161VIII.Cases: When Waddell's Signs Uphold Malingering162IX.Cases: When Waddell's Signs are Disregarded by The Court164X.Conclusion166AbstractLow back pain is a significant economic problem, and the medical literature reveals that at least seventy-five percent of the population will experience?*144?back discomfort at least once in their lifetime, and twenty-five percent of these individuals will have recurrent discomfort within one year. Distinguishing between individuals who have a significant nonorganic component to their lower back pain and those who do not is challenging. In this regard, several tests have been developed to detect nonorganic causes of low back pain, and Waddell's signs are the most well-known. Although not originally developed to discern a claimant's malingering, Waddell's signs have been featured prominently in court cases for this purpose. This Article will provide an overview of the anatomy of the low back along with a discussion of malingering. Waddell's signs, in both a legal and medical context, will also be discussed along with cases that have either considered or disregarded a patient's presentation of these signs.Malingering is to pretend or exaggerate illness in order to escape duty or work; to feign or produce physical or psychological symptoms to obtain financial compensation or other reward.- Oxford English DictionaryI. IntroductionBeth was involved in a motor vehicle accident and visited an orthopedic surgeon. This physician believed that the patient sustained a minor soft tissue injury to her lower back and prescribed three months of physical therapy. At the completion of that treatment, Beth still complained of tremendous pain in the lumbar region that radiated down both legs, so she underwent an MRI and electrodiagnostic testing, which were normal. During a follow-up examination, the patient exclaimed that the pain had become much worse preventing her from engaging in any form of activity. The discomfort was so severe that the patient complained when the doctor merely touched the skin on her back, and he was unable to lift her leg off the table without it producing radiating pain. The doctor was puzzled by these symptoms since he could not appreciate any muscle spasms, her neurological exam was normal, and the pain did not follow a known anatomic pathway. Upon completion of the examination, he wrote in Beth's chart that she was focused on the accident and exhibited multiple Waddell's signs. What did the doctor mean by these comments? Is he saying that his patient is a malingerer and a fraud?II. Scope of the ProblemIt has been estimated that between seventy to eighty-five percent of the population will have back pain during their lifetime,3?and “[twenty-five] percent?*145?of these individuals will have recurrent discomfort within one year.”4?Back pain is also one of the most frequent reasons people will miss time from work.5?In fact, this form of discomfort is the second most common reason for visits to a physician.6?However, most people with low back pain back enjoy a good recovery, with sixty percent of those individuals becoming asymptomatic within six weeks7?and the overwhelming majority of all low back pain sufferers becoming pain free within three months of the start of their symptoms.8?Surprisingly, only a small percentage of those with chronic symptoms incur the bulk of the cost in treating low back pain.9?In fact, about three-quarters of these expenses are incurred by a mere twenty percent of these individuals.10?“The fact that a benign physical [problem] has such an important socioeconomic [impact] can probably be explained by complex psychological, societal, and legal factors.”11“Distinguishing between [individuals] who have a [significant] non-organic component to their lower back pain and those who do not is [challenging].”12?This is complicated by the fact that those with chronic low back pain who no longer have compensation claims pending tend to have much better treatment outcomes than those involved in active litigation.13?It has even been “suggest[ed] that 20-30% of compensation claimants who have a [legitimate] injury show some degree of ‘lack of effort’ or exaggeration of their?*146?complaints.”14“Secondary gain may [also] be a significant [contributing factor] in illness and disability.”15?In this regard, several tests have been developed to detect nonorganic causes of low back pain, and Waddell's signs are the most well known. Although not originally developed to discern a claimant's malingering, Waddell's signs have been featured prominently in court cases for this purpose. This Article will provide an overview of the anatomy of the low back along with a discussion of malingering. Waddell's signs, in both a legal and medical context, will also be discussed along with cases that have either considered or disregarded a patient's presentation of these signs.III. The Construction of the Low BackIn order to understand the complexities of low back pain in a compensation setting, one must first gain an appreciation of the anatomy of the lower back. For purposes of this Article, the lower back will be described as the point starting just under the last thoracic vertebra16to its attachment to the pelvis,17?an area known as the lumbosacral region.18?The major parts of this anatomical structure consist of “bones, joints, ligaments, discs, muscles, and nerve roots.”19?Since any of these parts can be the source of pain, physicians can have difficulty in ascertaining the origins of an individual's low back discomfort.20*147?A. BonesThe lumbar region contains “the five largest vertebrae [in the spine] because their increased size is needed to support the majority of the body's weight.”21?The initial lumbar bone, or L1, is situated directly under the last thoracic vertebrae, and the termination point of the lumbar spine is located around the level of the waist.22?This bone is known as L5.23?This region is followed by the sacrum, a single-fused unit made up of five bones that look like an upside down triangle.24?The function of the sacrum is to connect the spine to the pelvis via the sacroiliac joint (“SI joint”).25?“The [body's weight] is transmitted to the [lower extremities] through the pelvic girdle at these joints.”26The coccyx, or tailbone, forms the termination point of the low back and is made up of several small pieces of bone.27?These bones are surrounded by nerves, and a movement or deviation of the coccyx can catch one of those nerves thereby causing pain.28?“Coccydynia is the [medical] term used to identify [discomfort] in this location.”29?These combined regions then make up the low back or lumbosacral region.Bones themselves are not pain sensitive. Rather, it is the periosteum,30?or the covering of the bones, that causes discomfort from trauma such as a bone bruise,31?or from a non-traumatic cause, such as a malignancy.32*148?B. JointsA joint describes the “physical point of connection between two bones.”33?In the low back, the joint is made up of parts of the vertebrae on each side of the corresponding intervertebral disc.34?The joints in the back allow the spine to turn and bend and consist of the facet portion of the vertebra and the SI joints.35?The facets are small stabilizing joints located between and behind adjacent vertebrae thereby providing for movement.36?Facet joints usually move along with the spine and simply wear out or become degenerated as people age.37?When this occurs, “the cartilage may become thin or disappear and there may be a reaction of the bone of the joint underneath” causing bone spurs and an enlargement of the joints.38?This inflammatory process can produce a significant amount of back pain on motion.39?This problem is known as “facet joint disease” or “facet joint syndrome.”40The SI joint41?is “formed by the connection [between] the sacrum and the [two] iliac” or pelvic bones.42?This joint is not as mobile as the facets because the bones are fused together, allowing for only small movements.43?Like the facets, however, the SI joint is an important pain generator in the low back accounting for thirteen percent to thirty percent of discomfort in this region.44?While it is unclear how that discomfort is generated, it is believed that a change in normal joint motion may be the cause of sacroiliac pain.45?For instance, the source of this discomfort has been related to either too much or too little movement.46*149?C. LigamentsLigaments are somewhat elastic tissues that “hold one bone to another, forming a joint.”47?These structures can control the amount of movement of a joint or stabilize the joint so that the bones move in their proper anatomic alignment.48?In the low back, ligaments keep the vertebrae in place, providing stability to the spine.49?The “two primary ligament systems in the spine [are] the intrasegmental and intersegmental systems.”50Ligaments can accommodate the “normal amount of stress” that occurs when they are stretched to their “natural limit, and will return to their normal length once the stress is removed.”51?However, if a force is applied that stretches the tissue beyond its “natural range of extension - the ligament will not return to its normal length.”52?Instead, the ligament will remain “overstretched, [thereby] diminishing its power.”53?Although ligaments are supplied by sensory nerves, it is not certain whether ligaments are a significant pain generator in the low back.54D. Intervertebral DiscsThe intervertebral discs are pillow like cushions that act as shock absorbers and allow the back to move, bend and twist.55?These cushions also allow the vertebrae to slide against one another providing for a small degree of mobility.56?Each disc is made up of two parts, a soft gel-like center called the nucleus pulposus, and the annulus fibrosus, which includes a tough outer edge made up of a number of fibrous concentric rings.57*150?Discs are usually named based upon the vertebrae above and below them.58?Thus, the L2-3 disc is located between the second and third lumbar vertebrae.?When a disc is damaged, it may rupture or bulge.59?If a full tear of the annulus occurs, pressure may force the liquid center to escape beyond the outer edge of the structure, known as a herniated, pinched or slipped disc, depending upon its appearance.60?A caramel crème candy offers a good example of a herniation. If the outside portion of the candy completely rips apart and the soft liquid center oozes out, a herniation has occurred. This condition exemplifies a herniated disc and can be the source of a great deal of back pain or neurological abnormality, like radiating pain down an extremity, weakness, or loss of function.61Discs generally rupture posteriorly to the left or right sides (lateral disc) or occasionally in the middle (central or midline disc) and the offending disc may trap the exiting nerve root.62?When this type of entrapment occurs, surgery63?may be performed to remove the extruded nucleus pulpous thereby removing the pressure from the nerve root.64?In addition to causing pain by direct compression on the nearby nerve roots, an extruded disk can also cause pain by releasing inflammatory proteins found within the nucleus pulposus, which irritate surrounding tissues.65?However, “the term herniated disc does?*151?not infer knowledge of cause, relation to injury or activity, concordance with symptoms, or need for treatment.”66?In fact, a damaged disc can repair itself in a number of cases, and a portion of the population, particularly in a study conducted on women, have degernated discs that are asymptomatic.67A disc receives its nourishment through the fluid-absorbing characteristics of the nucleus pulposus.68?The rocking motion of the back achieved with movement is helpful in creating intermittent traction and compression that assists the regenerative process. During non-weight bearing functions, the disc increases in size and soaks up nourishing fluids, thereby helping in the healing process.69A bulging disc, on the other hand, refers to a weak spot that develops in the disc that causes it to extend out beyond its normal perimeter.70?However, none of the liquid center has escaped. A number of individuals might have a bulging disc and not even be aware of the condition, as long as it does not press upon surrounding tissues.71?Symptoms from a bulging disc typically occur when the abnormality “impinges on the nerves of the spinal column.”72?It is also important to remember that the contour of a disc changes depending upon the weight and force exerted upon the structure. For instance, merely standing up will cause a disc to bulge and this is a normal anatomical change.73E. Spinal NervesSpinal nerves or nerve roots extend from the spinal cord and exit through a hole in the vertebrae known as the foramen.74?These peripheral nerves transmit information from the spinal cord to the rest of the body, and signals return to the spinal cord for transmission to the brain.75?The spinal cord ends at an area dubbed the conus medullaris and this happens near the lumbar nerves L1 and L2 in the average adult.76?Following the termination of the spinal cord, the nerves continue as a bundle called the cauda equine or?*152?horse's tail.77?These nerves transmit signals to and from the lower limbs and pelvic organs.78The spinal nerves in the low back consist of five lumbar nerves, five sacral nerves, and one coccygeal nerve.79?These nerve roots run through the bony canal and at each level a pair of nerve roots exits from the spine,80?one on the left and one on the right.?Anatomically, each of these nerves consists of sensory and motor nerve roots.81?“Sensory nerves relay information such as pain, temperature and touch from the legs upward toward the spinal cord on its way to the brain[,]”82?while “motor nerves carry signals from the spinal cord to the muscles of the legs, causing the muscles to contract and the legs to move.”83Each sensory nerve controls sensation in a specific patch of skin known as a dermatome.84?These predictable patterns are named based upon the spinal nerves that supply them.85?By knowing the sensory pattern that the nerve root follows, a physician can ascertain which nerve root is affected, thereby identifying which level of the lumbar spine is involved.86?For instance, discomfort going “down the leg to the small toe in the general pattern of the S1 dermatome”?*153?provides evidence “that a herniated disk may be pinching the S1 nerve root in the spine.”87?If the motor nerve is also implicated, the person will develop weakness in particular muscles supplied by that nerve root.88?This is known as a myotome89?and refers to a set of muscles supplied by an individual nerve root.90F. Skeletal MuscleMuscles come in a variety of sizes and shapes depending upon what specific functions they perform. A skeletal muscle, however, connects to bone, skin and other structures to move those parts of the body.91?The spine is supported by a complex set of muscles that work together to support the low back, assist in holding the body upright and in allowing the trunk to bend, move, and twist in a variety of directions.92The muscles of the spine are often an overlooked source of low back pain though they are important pain generators.93?Pain from a muscle can be classified as acute, such as the pain generated in the low back immediately following a car accident, or chronic, pain that is persistent over a long period of time.94*154?IV. MalingeringStatistics reveal that a request for compensation reduces the success rate of any treatment for low back pain and sciatica by about one third.95?Therefore, exaggerated pain complaints, secondary gain, and deception are always considerations that must be investigated in a compensation context. Invariably, any suspicion of these factors triggers the perception of malingering.The Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) provides that “Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.”96?In fact, U.S. v. Gigante97?offers the same explanation of malingering.Malingering should be strongly suspected if any combination of the following is noted:1. Medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for examination)2. Marked discrepancy between the person's claimed stress or disability and the objective findings3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen4. The presence of Antisocial Personality Disorder98The degree of malingering among personal injury claimants is thought to be between twenty to fifty-nine percent, and some suggest that these figures are low, “since those who are successful in their deception would not be counted” in these statistics.99?It is also estimated that malingering is present in approximately one to ten percent of chronic pain patients, although it is difficult to determine a true prevalence rate.100Making a definitive diagnosis of malingering is a mine field for a physician since it is impossible to truly know a patient's agenda or intent.101*155?There are some clues, however, that can lead to that suspicion. Starting with the history, since deceit is the basis of malingering, a prior occurrence of an arrest record, history of drug addiction, multiple claims for workers compensation and/or personal injury accidents are red flags.102Requests for a strong narcotic for relatively minor or non-existent findings as well as refusal or reluctance to pursue diagnostic testing and non-narcotic treatments are also suspicious factors.103?A combination of a dramatic or an atypical presentation of symptoms coupled with vague and inconsistent details are additional historical features of a malingerer.104?These individuals may become hostile and angry, especially if their symptoms are questioned. Such individuals have a textbook understanding of their supposed condition, easily obtained through the internet, and are sometimes employed in a medically related field.105In a medical context, however, words such as “malingerer” and “malingering” are not often seen in doctor's reports. Instead, physicians utilize phrases such as “‘[p]ositive Waddell's signs,’ ‘secondary gain,’ ‘factious disorder,’ ‘within the patient's voluntary control,’ ‘motions voluntarily limited by the patient,’ and ‘subjective symptoms and complaints out of proportion to the objective signs,”’ to indicate malingering behavior.106?In this regard, several tests have been developed to detect nonorganic causes of low back pain, and Waddell's signs are the most well known.107?These signs are physical maneuvers that are helpful in evaluating those complaining of low back pain.108?A positive Waddell's sign may indicate that the patient's pain has a psychological?*156?component rather than organic causes.109?While it is a common perception in the litigation arena that these signs are proof of malingering and fraud, they merely describe a constellation of signs used to identify pain in those who need more detailed psychological assessments.110?This Article will explore the clinical significance of Waddell's signs and will offer a summary of some of the ways in which this test has been cited in a litigation context.V. Waddell's Signs: A BackgroundGordon Waddell and co-workers first mentioned Waddell's signs in 1980, though these signs were not known by Waddell's specific name at the time,111?as “a group of inappropriate responses to physical examination [.]”112?In the introduction to their paper, the authors noted that low back pain and the resulting disability often includes nonorganic, psychological, and social elements that make it difficult for physicians to assess.113?Historically, people describe their pain and related symptoms close to the usual anatomic pattern for that medical problem.114?Occasionally, however, patients provide complaints that are at variance to general clinical experience.115?These symptoms seem to be inappropriate and are frequently associated with psychological features.116To assist in the task of distinguishing normal from nonorganic responses, the authors proposed a series of physical signs that offer a simple and rapid method to help identify those patients who need a more detailed evaluation.117?Encompassing a standardized group of five different categories, these nonorganic physical signs are utilized to determine whether low-back pain is truly physical or has psychological overtones.118?As noted in Anderson v. Astrue, “[t]he Waddell test establishes five ‘signs' of nonorganic sources of lower back pain[,]”119?which include:? tenderness (superficial or nonanatomic)? simulation (axial loading or rotation)? distraction (straight leg raising)? regional (weakness or sensory)*157?? overreaction120A physical examination that reveals “a finding of three or more of the five types is clinically significant. Isolated positive signs are ignored.”121In application, the signs work in the following manner. The first sign, tenderness, is tested with a superficial skin pinch where “[t]he skin is tender to light pinch over a wide area of lumbar skin.”122?Tenderness would not normally be expected from such a maneuver, so if a patient responds with complaints of pain, this finding is significant.123?In addition, deep tenderness that is felt over a wide area and is not localized to a specific body part is considered a non-anatomic variation that equates to a positive Waddell's sign.124The second sign, simulation testing, tricks the patient into believing that a physical examination is taking place when, in fact, nothing is truly being examined.125?If a particular movement causes pain, that same movement is simulated but not actually performed to see if the patient continues to report discomfort.126?For example, the axial loading test provides “vertical loading over the standing patient's skull by the examiner's hands....”127?The patient's head is gently pushed down, and if low-back pain is reported, the finding is considered a positive Waddell's sign since it is not anatomically possible for this maneuver to replicate low back pain.128?As for the rotation test, “[b]ack pain is reported when shoulders and pelvis are passively rotated in the same plane as the patient stands relaxed with the feet together....”129The distraction test forms the third classification and is designed to catch a patient off-guard. For instance, maneuvers are performed by the doctor that should be “nonpainful, nonemotional, and nonsurprising.”130?Essentially, the doctor watches the patient's reaction while the individual is unaware of the testing.131?The most useful of these procedures is the Straight Leg Raising (“SLR”) test.132?Here, “[t]he patient whose back pain has a nonorganic component shows marked improvement in straight leg raising on distraction as compared with formal testing.”133?This test can be accomplished by asking the patient to sit on a chair and to extend a leg to see if it replicates sciatic*158?pain.134?The patient does not realize that this maneuver stretches the sciatic nerve in the same fashion as a patient who is asked to raise a leg while lying on an examining table.135The fourth category, regional disturbances, indicates a nonorganic source of pain, such as muscle weakness, that “cannot be explained on a localized neurologic basis” and “diminished sensation to light touch....”136?In other words, these changes deviate from normal accepted neuroanatomy.137Finally, overreaction to stimuli during the examination should be noted, though Waddell states, “[j]udgments should, however, be made with caution, minimizing the examiner's own emotional reaction....”138?Examples would include “disproportional verbalization, facial expression, muscle tension and tremor, collapsing, or sweating....”139?Russell v. Invensys Cooking & Refrigeration explained this category as “very graphic and exaggerated pain responses, grunting [or] groaning....”140?Overreaction to stimuli is considered the most important nonorganic physical sign, and it is easily influenced by a doctor's own subjective expectations.141Waddell offered several caveats when presenting his original findings.142?First, the test was not recommended for elderly patients since there is an increase in Waddell's signs in these individuals.143?It was also emphasized that “behavioral signs can and do occur with clear organic findings,” so the presence of signs does not negate organic findings.144?And finally, he reinforced that isolated events are not considered significant.145In 1998, Waddell published a follow-up study in which he suggested that “behavioral signs should be understood as part of a wider set of pain behavior assessment tools,” and that there is an “association between fear, lack of self-confidence, and guarded movements.”146Considering these factors, Waddell stressed that one cannot automatically assume that someone's behavior signs are suspicious without further evidence, especially if the patient is fearful of pain or has other problems such as neck pain or fibromyalgia.147?Several years*159?later, Waddell editorialized that in the context of a claims setting, nonorganic signs may reasonably raise an issue of malingering, but these signs are frequently seen in chronic pain patients even when no monetary claim is being advanced.148?Therefore, the mere “presence of nonorganic signs per se does not necessarily mean that a patient is lying or attempting to deceive the examiner, and that conclusion cannot be based on this clinical finding alone.”149Other clinical experiments, however, have shown the value of using Waddell's signs. For instance, Waddell's symptoms have been used to gauge treatment complexity and outcomes150?and to provide clues as to whether further psychological assessment of a patient is needed.151?In addition, these signs can be utilized in determining a patient's recovery time, for those individuals with Waddell's signs had a “four times lengthier time for return to unrestricted, regular work and a greater use of physical therapy and lumbar computed tomographic scans.”152?Positive Waddell findings have also been found to be highly correlated with measures of physical impairment, pain severity and disability but not with depression or anxiety.153Waddell signs have been criticized as to their validity in demonstrating nonorganic pain and secondary gain and must be interpreted with caution, especially if the goal is to determine malingering.154?Waddell findings may, in fact, occur in medically-based conditions, such as complex regional pain syndrome (“CRPS”).155?The literature also reveals that there is no association between positive Waddell signs and the identification of secondary gain and malingering.156?Patients with strong psychological components to their pain often display these signs as well.157?Another extensive evidence-based review concluded that Waddell signs:1. Do not correlate with psychological distress2. Do not discriminate organic from nonorganic problems*160?3. May represent an organic phenomenon4. Are associated with poorer treatment outcome5. Are associated with greater pain levels6. Are not associated with secondary gain7. As a group, demonstrate some methodological problems.158VI. Waddell's Signs in a Legal Context: The Pros and ConsThere are a number of cases that mention Waddell signs in a compensation context. For instance, the court in Reinertson v. Barnhart explained that physicians utilize “Waddell tests to detect nonorganic sources, such as psychological conditions or malingering, for lower back pain.”159?Nevertheless, Waddell addressed the misuse and misrepresentation of his signs in a medico-legal context.160?Even though the signs are often used as an indication of faking or malingering, Waddell pointed out that such an assumption is incorrect.161[B]ehavioral signs may be learned responses to pain that have developed since the original injury and of which the patient is largely unaware. Even if the behavioral signs are assumed to be under voluntary control, however, and if the patient is consciously responding in a guarded manner, it cannot be assumed de facto that the signs are evidence of simulation for the purpose of financial gain.162More recent studies have “reported no association between Waddell signs and the four possible methods of identifying patients with secondary gain and/or malingering.”163?This article “concluded that there was little evidence for the claims of an association between Waddell signs and secondary gain and malingering.”164Despite Waddell's obvious reluctance for his signs to be used in a legal context, they have made their way into many aspects of the legal arena, specifically to prove an individual's malingering or feigning of symptoms. For instance, the Attorneys Medical Advisor mentions these signs as a method for “[d]etecting feigned effort on strength testing.”165?This same publication also lists Waddell's signs under the role of psychosocial factors in disorders of the?*161?back, neck and spine.166?The Claim Adjuster's Automobile Liability Handbook lists Waddell's signs under its chapter for psychological testing.167?In this instance, the handbook states that a physical exam that includes Waddell's signs along with a doctor's own self report lends credence to the “suspicion of the patient having some type of somatoform disorder or even are malingering.”168?Subjects with high Waddell's signs are noted as having “heightened awareness of their interpersonal discomfort” and displaying “self-absorbed ways of experiencing or expressing pain.”169VII. Waddell's Signs and the CourtsThere is a question in a legal setting as to the exact significance of Waddell signs and what they can show. An analysis of the topic is contained in Crowhorn v. Boyle, where it is noted that “[i]n 1980, Dr. Gordon Waddell and others developed a ‘standardized assessment of behavioral responses to [physical] examination.’ This assessment is commonly referred to as ‘Waddell testing’ or “Waddell signs.”'170The court also discussed the limitations of this test in some detail.171?As noted, Waddell himself admits that his “behavioral tests (for “nonorganic” signs) are widely used “in medico-legal assessment,” and “[t]heir typical use is as a tool to develop ‘evidence of malingering.”’172However, clinical studies show that Waddell signs commonly appear in those with no motive toward malingering. This is especially true, Waddell notes, “in patients with chronic pain and a history of failed treatment.”173?The author further commented that “positive reactions to ‘behavioral’ tests (like the Waddell tests) do not indicate the absence of physical pathology.”174?The idea that “positive Waddell signs should be ‘interpreted as evidence of simulated incapacity for the purpose of financial gain’ has been rejected as invalid.”175?Instead, positive nonorganic signs show fear and are indicative of learned responses.176?Waddell further noted that “patients with low back pain may have other problems.”177?Neck pain, for instance, may need to be examined as another explanation “for behaviors elicited in the context of an assessment of low back pain.”178?“According to Waddell, the worst abuse of?*162?behavioral signs ‘has occurred in medicolegal contexts.”’179?In those situations, the author points out, “positive behavioral signs are often assumed (in the first instance) to [exclude] physical pathology.”180?Unless the doctor has taken steps to exclude the primary source of positive behavioral signs—the “‘learned responses to pain that have developed since the original injury and of which the patient is largely unaware,’—these positive signs must be [considered] nothing more than the typical [instances] of ‘pain behavior.”’181VIII. Cases: When Waddell's Signs Uphold MalingeringWaddell's signs have been used in several cases to uphold determinations of malingering. For instance, in Cotton v Astrue, the claimant appealed a decision by the Social Security Administration denying her disability benefits.182?During trial, “Cotton's occupational therapist noted [an] abnormal response to all five of Waddell's signs of nonorganic pain, and found Cotton's pain diagram was indicative of symptom magnification which could not be explained on an organic basis.”183?The appellate court upheld the decision, finding that Cotton did exaggerate her symptoms.184Hilmes v. Barnhart is another example of a Social Security case in which the court upheld the denial of benefits for low back pain on the basis of Waddell signs.185?The treating doctor observed that the patient “exhibited ‘a marked degree of pain behavior throughout the exam’ and ‘numerous positive Waddell's signs including axial loading, skin pinch, and hip rotation.”’186?Waddell signs were explained as “manifestations of pain [as the result] of specific maneuvers that should not [produce] back pain, and are used to identify patients reacting to ‘psychosocial’ factors, such as economics or social issues, including pending litigation.”187?The “[claimant] argue [d] that the ALJ's credibility determination [was] flawed because the [judge] took out of context [the physician's] statement that [the plaintiff] showed marked ‘behavioral overlay.”’188?The claimant further argued, “‘a marked behavioral overlay’ means only that [she] [demonstrated] ‘visible signs of pain throughout the exam from her body, facial expressions and her behavior due to pain she was experiencing’ and not that she exaggerated her pain.”189?The court rejected this claim for benefits and noted the “[plaintiff] provide[d] no citation for this?*163definition of ‘behavioral overlay,’ and there is no evidence that the ALJ misunderstood [the doctor's] use of the term.”190?“In diagnosing [the claimant] as [demonstrating] evidence of behavioral overlay, [the doctor] [stated] that [the plaintiff] had [shown] several Waddell signs, which fit with the understanding the ALJ gave to ‘behavioral overlay'-manifestations of pain that do not have an organic origin.”191In Rush v Jostock, a victim of a rear-ended accident appealed the court's determination denying the plaintiff's motion in limine with regards to a doctor's testimony asserting that the accident victim exhibited Waddell's signs.192?Rush claimed she suffered cervical spine injuries as the result of the collision.193?The claimant was examined by a physician for the defense on two occasions who concluded that the claimant displayed one of five Waddell's signs.194?Furthermore, “[the doctor] opined that [Rush] was malingering or exaggerating her symptoms of [discomfort].”195?On appeal, the plaintiff argued:Waddell's signs are clinically insignificant because they are used to detect non-organic physical signs of low back pain not cervical spine pain and that in order for the Waddell's test to be significant, a patient must show a minimum of three positive Waddell's signs, and she displayed only one or two.196Despite these objections, the court found that physician's testimony was properly admitted by the trial court.197In Fishburne v. ATI Systems International, Waddell signs were used to deny an injured worker further medical treatment, other than to be weaned off of narcotic medication.198?The facts show that a neurosurgeon examined the claimant and detected four out of five nonorganic physical Waddell signs.199?The court described these as:*164?[A] group of physical signs that may indicate a non-organic or psychological component to chronic low back pain. If more than three out of the five signs are present, there is high probability the patient has non-organic pain. Doctors have used these signs to detect ‘malingering’ patients with back pain.200In support of its decision to deny additional medical treatment, the court stated that the employee demonstrated multiple Waddell's “non-organic physical signs and had non-organic pain behaviors that affected her gait; her subjective complaints of pain far outweighed the objective findings; and [the examining doctor] did not see any necessity for [the claimant] to continue taking narcotic medication.”201?It was further noted that the plaintiff “grimaced and sighed with all movement....”202IX. Cases: When Waddell's Signs are Disregarded by the CourtIn Whitley v. Hartford Life & Accident Insurance Company, a former truck driver brought suit against his insurance company for termination of his long-term disability benefits.203?Whitley submitted evidence of having degenerative disc disease and was subsequently evaluated on behalf of the insurance company,204?during which he scored a seven out of sixteen when tested for Waddell's signs; a score of “3 or more are strongly suggestive of symptom magnification.”205?While these findings were initially used to deny the claim for benefits, the Court of Appeals found that the administrator's decision was not supported by substantial evidence.206?Given the medical evidence that supported Whitley's disability and the unreliability of the contrary evidence (i.e. the presence of Waddell's signs), a finding was entered in favor of the plaintiff.207In Kirby v Astrue, the claimant brought suit against the Commissioner of Social Security because his application for disability insurance was denied.208?The plaintiff had positive Waddell's signs, and “[a]lthough the use of Waddell's signs in making a disability determination has not been established in the Tenth Circuit, the law from other courts is instructive in order to be relevant, at least three of the five Waddell's signs must be present.”209?Since the Waddell's signs exhibited by the plaintiff were an isolated incident, the lower?*165?court stated that their presence was inadequate when determining the plaintiff's non-disability.210?The matter was remanded with the following instructions:[I]f the ALJ determines the medical record regarding Plaintiff's Waddell's signs is ambiguous or conflicting or otherwise inadequate to determine Plaintiff's disability—keeping in mind that an ALJ ‘is not entitled to pick and choose from a medical opinion, using only those parts that are favorable to a finding of non-disability’ - the ALJ should contact Plaintiff's treating physicians for additional information....211A similar outcome occurred in Jordan v. Commissioner of Social Security where the claimant alleged she was unable to work because of severe back pain.212?The ALJ relied upon the opinions of two doctors, who opined that the plaintiff was exaggerating her symptoms, in denying her claim for benefits.213?In fact, one physician who performed an independent medical examination noted that the worker showed “obvious signs of symptom magnification.”214?Another physician stated that the claimant exhibited all five Waddell's signs, he had “no physiological basis for [the claimant's] complaints....” and she had “no work restrictions.”215?Although the appellate court did not deny the findings of the claimant's exaggeration, it did find fault with the ALJ's reliance on the Social Security Administration's grids for discerning the availability of other types of work for claimant.216?In light of these findings, the appellate court vacated the judgment and remanded the matter to the ALJ for “consideration of evidence other than the grids.”217Grabczyk v. Astrue provides an example of when the court will reverse a decision denying Social Security benefits that improperly relies on Waddell's signs.218?The facts show that, in support of a finding that the claimant demonstrated “symptom magnification.” The ALJ believed that the claimant showed “symptom magnification” and pointed to the fact that a treating physician initially determined that the claimant “had 5/5 Waddell's signs then improperly quote[d], without citation, an explanation of these Waddell's signs.”219?The court on appeal noted, “‘Waddell's signs are indications that a patient has non-organic pain’ ‘[t]hey are used to identify patients who may require detailed psychological assessment’ and ‘[t]hree or more Waddell's signs?*166?are deemed clinically significant.”’220?“Thus, Waddell ['s] signs may be indicative of psychological issues rather than malingering and are not conclusive evidence of symptom magnification.”221The court in Wick v. Barnhart also noted that “the Waddell test does not by itself constitute ‘affirmative evidence’ of malingering. The test establishes five ‘signs' of nonorganic sources of lower back pain and does not distinguish between malingering and psychological conditions.”222X. ConclusionWaddell's signs were not intended to demonstrate malingering in a litigation context, but they have become synonymous with that finding in some circles. While Waddell specifically warned against the use of his signs in a medico-legal arena, current litigation points to a gray area with regards to the admission and use of these signs. Some cases have allowed these signs to be utilized in order to uphold a denial of benefits; however, others have shown the exclusion of these findings, allowing individuals to receive previously denied benefits.Footnotes1Samuel?D.?Hodge, Jr. is a Professor and Chair of the Legal Studies Department at Temple University where he teaches both law and anatomy. He lectures nationally on anatomy and trauma and is considered one of the most popular speakers of continuing legal education courses in the country. He is the co-author of Anatomy for Litigators, ALI-ABA (2011) and has written more than 150 articles on medical/legal topics. Professor?Hodge?is a graduate of Temple University Beasley School of Law and the Graduate Division of the Law School. He is also a member of the Pennsylvania Bar Association and the American College of Legal Medicine.2Nicole Marie Saitta is an assistant to Professor?Samuel?D.?Hodge?Jr., Chair of the Legal Studies Department at Temple University. She received an M.A. in English Literature from Villanova University and will be attending the Temple University Beasley School of Law in the fall of 2012. An experienced academic researcher with a background in pre-medical studies, she is particularly interested in research pertaining to the intersection of law and medicine.3Back Pain Facts & Statistics, AMER. CHIROPRACTIC ASS'N, http:// pdf/back_pain.pdf (last visited Mar. 14, 2012).4SAMUEL?D.?HODGE, JR. & JACK E. HUBBARD, ANATOMY FOR LITIGATORS 111 (2nd ed. 2011); See JOHN J. BONICA, BONICA'S MANAGEMENT OF PAIN 1508, 1508 (John D. Loeser et al. eds., 3rd ed. 2001), for further discussion.5See Simon Dagenais et al., A Systematic Review of Low Back Pain Cost of Illness Studies in the United States and Internationally, 8 SPINE J. 8, 14 (2008). A number of studies have tried to determine the “direct, indirect, or total costs associated with [low back pain] in [a variety of] countries using heterogeneous methodology. Estimates of the economic costs vary [a great deal based upon the] study methodology [utilized] but by any standards [it] must be considered a substantial burden on society.” Id. at 8.6Univ. Hosp. and Manhattan Campus for the Albert Einstein Coll. of Med., How Frequently Does Low Back Pain Occur?, , http:// content/backpain/frequency.asp (last visited Apr. 6, 2012).7John D. Lurie, Evidence-Based Management of Chronic Low Back Pain, 1 ADVANCES IN PAIN MGMT. 141, 141 (2008).8Id. Recovery occurred at twelve weeks for approximately 80-90% of low back pain sufferers. Id.9HODGE?& HUBBARD, supra note 4, at 111-12; see also Francis H. Shen et al., Nonsurgical Management of Acute and Chronic Low Back Pain, 14 J. AM. ACAD. ORTHOPEDIC SURGEON 477, 478 (2006); Charles C. Engel et al., Back Pain in Primary Care: Predictors of High Health-Care Costs, 65 PAIN 197, 200, 202 (1996).10Engel et al., supra note 9, at 198.11John W. Frymoyer, Back Pain and Sciatica, 318 NEW ENG. J. MED. 291, 291 (1988).12Ashley Blom et al., A New Sign of Inappropriate Lower Back Pain, 84 ANNALS ROYAL COLL. SURGEONS ENG. 342, 342 (2002).13Paula Treif & Norman Stein, Pending Litigation and Rehabilitation Outcome of Chronic Back Pain, 66 ARCH. PHYSICAL MED. REHAB. 95, 98 (1985).14Gordon Waddell, Waddell's Signs - Do They Mean Malingering?, 4 DISABILITY MED. 38, 38 (2004), available at http:// documents/JOURNL42g.pdf.15Jeff Dersh et al., Assessing Secondary Gain In Chronic Pain Patients, 6(4) PRACTICAL PAIN MGMT. (May/June 2006), available at http:// resources/assessing-secondary-gain-chronic-pain-patients.16SAMUEL?D.?HODGE, JR., ANATOMY FOR LITIGATORS 97 (1st ed. 2006). The spine is explained in?Celeste v. Progressive Silk Finishing Co., 178 A.2d 74, 79 (N.J. Super. Ct. App. Div. 1962), as “a supporting structure for the entire body made up of several bones layer on layer just like a brick with cement in between each brick.”17See?Southern Pac. Co. v. Martin, 83 S.W. 675, 676 (Tex. 1904)?(“The bones that constitute the hip are the pelvis bone and the femur.”).18Samuel?D.?Hodge, Jr. & Jack E. Hubbard, “Show Me the Pain”: Limitations and Pitfalls of Medical Diagnostic Imaging of the Low Back, 14 MICH. ST. U. J. MED. & L. 129, 132 (2010)?(emphasis added); AM. MED. ASS'N, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT 94 (4th ed. 1993) (recognizing two methods to evaluate spinal impairment: the “Diagnosis-Related Estimates Model (“DRE”) that pertains to people who have sustained traumatic injuries and the Range of Motion Model). Id. “The DRE method divides the main spine into three parts, the cervicothoracic, thoracolumbar, and lumbosacral regions.” Id. at 95; see also? HYPERLINK "(sc.Search)" Verdijo v. Skyline Painting, No. C.A. 99A-05-003, 2000 WL 970676, at *3 (Del. Super. Ct. Jan. 28, 2000). The lumbosacral spine is assigned a seventy-five percent value for total body function. Id. This differs from the Range of Motion model which separates the spine into the cervical, thoracic, lumbar and sacral regions. Id. With that model, the lumbosacral spine is involved with ninety percent of total body function. Id.19Hodge?& Hubbard, supra note 18, at 133.20Hodge?& Hubbard, supra note 18, at 133.21HODGE, supra note 16 (emphasis added).22Id.23Id.24Id. (emphasis added).25See?Horn v. Yellow Cab Co., 263 P. 1025, 1025 (Cal. Dist. Ct. App. 1928)?(emphasis added). The sacroiliac joint and its relationship to trauma was discussed by the court a number of years ago:[T]he point of junction of the sacrum, which is a portion of the lower spine, with two of the bones of the pelvis. It is not a movable joint, but consists of flat surfaces held together by ligaments. A slip of the segments of the sacroiliac joint is caused by a wrench or twist severe enough to tear the ligaments, and when this occurs there is necessarily a painful injury to a cluster of nerves centering in the sacral plexus, two of them being the sciatic nerves extending down the back of the thigh and which are eventually distributed in the lower leg and the foot. The immediate effect of such an injury is to prevent the patient from stooping or turning, or from lifting any weight or performing any kind of work calling into play the muscles attending the spine.Id.26Human Spine Vertebra & Disk, , http:// image_skel05/skel14_spine.html (last visited Mar. 14, 2012).27HODGE, supra note 16, at 97 (emphasis added); see also?Mueller v. St. Louis Pub. Serv. Co., 44 S.W.2d 875, 876 (Mo. Ct. App. 1932).28Moehle v. St. Louis Pub. Serv. Co., 229 S.W.2d 285, 289 (Mo. Ct. App. 1950).29HODGE, supra note 16 (emphasis added).30This definition was recognized as early as 1896 in?Bryant v. Omaha & C. B. Railway & Bridge Co., 67 N.W. 392, 394 (Iowa 1896), where the court noted that the “periosteum” is the “covering of bone.” Id.31Id.; see generally?HODGE, supra note 16, at 69-77.32See also?Hodge?& Hubbard, supra note 18, at 133.33Elizabeth Quinn, What is a Joint? , http:// sportsmedicine.od/glossary/g/joint_def.htm (last updated Oct. 7, 2011) (emphasis added).34HODGE?& HUBBARD, supra note 4, at 114;?Hodge?& Hubbard, supra note 18, at 134.35Hodge?& Hubbard, supra note 18, at 135.36Charles Ray, Facet Joint Disorders and Back Pain, SPINE-HEALTH (Dec. 10, 2002), v. Astrue, No. 4:07cv574-DJS, 2008 WL 3890497, at *9 n.26 (E.D. Mo. Aug. 19, 2008)?(further citations omitted). The SI joint refers to the bones of the sacrum and ilium. Id. “The sacrum bone is the segment of the vertebra, which forms part of the pelvis.” Id. In turn, the “ilium bone is a broad, flaring portion of the hip bone.” Id.42Jason C. Eck, Sacroiliac Joint Dysfunction (SI Joint Pain), , (last edited Aug. 25, 2010).43Id.44Anthony C. Schwarzer, et al., The Sacroiliac Joint in Chronic Low Back Pain, 20 SPINE 31, 36 (1995).45Steven G. Yeomans, Sacroiliac Joint Dysfunction (SI Joint Pain), SPINE-HEALTH (Apr. 19, 2000), Are Ligaments, WISEGEEK, (last visited Mar. 19, 2012).48Id.49Stewart G. Eidelson, Spinal Ligaments and Tendons, SPINEUNIVERSE, (last visited Feb. 24, 2012).50Id.51Marc Darrow, The Diagnosis of Low Back Pain, PROLOTHERAPY INSTITUTE, (last visited Mar. 23, 2012).52Id.53Id.54JOSEPH M. CZERNIECKI & BARRY GOLDSTEIN, General Considerations of Pain in the Low Back, Hips, and Lower Extremities, in BONICA'S MANAGEMENT OF PAIN 1475, 1477 (John D. Loeser et al. eds., 3rd ed. 2001).55HODGE, supra note 16, at 100; Keith Bridwell, Intervetebral Discs, SPINEUNIVERSE, (last visited Feb. 25, 2012).56See Bridwell, supra note 55.57See Bridwell, supra note 55. The nucleus pulposus has been discussed in any number of court cases because of the role it plays in herniated disks. See?Langford v. Emps. Ret. Sys. of Tex., 73 S.W.3d 560, 567 n.9 (Tex. App. 2002)?(“an elastic semi-fluid mass in the center of an intervertebral disk, being the persistent remains of the embryonic notochord. The nucleus pulposus or portions of it may rupture into the spinal canal and this condition is a common cause of chronic sciatica.”) (further citation omitted).58Jennifer Essary, The Spine and Lower Back Pain, HUB PAGES, http:// jenniferessary.hub/The-Spine-and-Back-Pain (last visited Mar. 23, 2012).59What is a Herniated Disc?, WEBMD, (last visited Mar. 19, 2012).60HODGE, supra note 16, at 100, 101; Peter F. Ullrich, Jr., What's a Herniated Disc, Pinched Nerve, Bulging Disc?, SPINE-HEALTH, (last visited Apr. 3, 2012).61HODGE, supra note 16, at 100, 101.62This phenomenon was discussed by plaintiff's medical expert in?Royal Indem. Co. v. Jones, 201 S.W.2d 129, 132 (Tex. App. 1947), when he stated:[W]hen you part the membrane that keeps the disk material between the vertebrae, the material of the disks shoots through the break when an intervertebral disk collapses, it can only collapse in one direction, the material has to go somewhere, it can't go laterally, because the ligaments on each side are too strong it doesn't break forward for the same reason, those ligaments are intensely tough, so it can only bulge backwards into the area where the spinal cord goes down.Id.63A discectomy is a common surgical procedure involving the removal of herniated disc material that presses on a nerve root or the spinal cord.? HYPERLINK "(sc.Search)" \l "co_pp_sp_595_367" Kostel v. Schwartz, 756 N.W.2d 363, 367 n.3 (S.D. 2008). The difference between a discectomy and a laminectomy was explained in?La. Workers' Comp. Corp. v. La. Workers' Comp. Second Injury Bd., 5 So.3d 211, 216 (La. App. 2008), “[a] laminectomy is the excision of the posterior arch of a vertebra a diskectomy is the excision of an intervertebral disc.” Id. (internal quotations and internal citations omitted).64HODGE, supra note 16, at 108; Discectomy, MD GUIDELINES, http:// discectomy (last visited Apr. 2, 2012).65Jason Lipetz, Pathophysiology of Inflammatory, Degenerative, and Compressive Radiculopathies, 13 PHYS. MED. REHAB. CLINICS OF N. AM. 439, 443 (2002); see also Micheal T. Modic & Jeffrey S. Ross, Lumbar Degenerative Disk Disease, 245 RADIOLOGY 43, 51 (2007).66Nomenclature and Classification of Lumbar Disc Pathology, AJNR, . (last visited Apr. 2, 2012).See also Modic & Ross, supra note 65.67M.C. Powell et al., Prevalence of Lumbar Disc Degeneration Observed by Magnetic Resonance in Symptomless Women, 2 THE LANCET 1366, 1367 (1986) (a herniated disc can be caused by degeneration).68HODGE, supra note 16, at 100.69HODGE, supra note 16, at 100.70About Bulging Discs: Bulging Disc Overview, LASER SPINE INSTITUTE, (last visited Mar. 19, 2012).71Id.72Id.73HODGE, supra note 16, at 101.74Spinal Cord Anatomy, APPARELIZED, http:// spinalcord.html (last visited Feb. 24, 2012).75Id.76Id.77Id. A complication of back surgery is cauda equina syndrome.?Jones v. Minster, 635 N.E.2d 123 (Ill. App. 2 Dist. 1994). Cauda equina syndrome has been the subject of a number of medical malpractice lawsuits. See?White v. Vanderbilt University, 21 S.W.3d 215 (Tenn. Ct. App. 1999);? HYPERLINK "(sc.Search)" Harsin v. E. Or. Cmty. Med. Ctr, Inc., 739 P.2d 1093 (Or. App. 1987);Kling v. DiSclafani, 983 So.2d 648 (Fla. App. 5 Dist. 2008); and?Cook v. Rankin, 657 N.W.2d 440 (Wis. App. 2002).78Cauda Equina, MEDLINE PLUS, http:// nlm.medlineplus/ency/imagepages/19504.htm (last updated Jun. 4, 2011).79Peter F. Ullrich, Jr., Spinal Cord and Spinal Nerve Roots, SPINE-HEALTH, (Sept. 7, 1999) Spinal Cord Anatomy, supra note 74.81Hodge?& Hubbard, supra note 18, at 139.82Hodge?& Hubbard, supra note 18, at 139, n.69.Sensory nerves emerge from the spine and travel to skin areas. For example, the nerve that emerges at L-4 comes down the buttock and over the front of the thigh and down into the big toe; from L-5 the sensory nerve comes down the side of the buttock and to the middle toes; and from S-1 the nerves come down the back of the thigh into the little toe. These sensory nerves, which allow one to feel sensations, are closely associated with the sympathetic nervous system over which we no control [when this becomes] irritated through trauma or otherwise, the sympathetic nerve fiber associated with that nerve causes vasoconstriction of the capillaries under the skin.Hodge?& Hubbard, supra note 18, at 139, n.69. (quoting?Thermographic Diagnostics, Inc. v. Allstate Ins. Co, 530 A.2d 56, 58 (N.J. Super. Ct. Law Div 1987)) (emphasis added).83Hodge?& Hubbard, supra note 18, at 139 (emphasis added).84HODGE?& HUBBARD, supra note 4, at 74.85Myotomes and Dermatomes, APPARELYZED, http:// myo-dermatomes.html (last visited Feb. 24, 2012).86Pui Chi Cheng, Direct Examination of the Plaintiff's Medical Expert, ATLA Winter Convention Reference Materials Advocacy Track: The Trial of Damages in a Muscle Sprain Case, Winter 2001 ATLA-CLE 113 (2001) (“[C]omplaints of pain, such as low back pain, follows a distinct anatomical path which will help a doctor diagnose a problem at a particular disc level.”).87AARON G. FILLER, DO YOU REALLY NEED BACK SURGERY? A SURGEON'S GUIDE TO NECK AND BACK PAIN AND HOW TO CHOOSE YOUR TREATMENT 87 (2004).88Hodge?& Hubbard, supra note 18, at 140.89Richards v. AT&T Mobility Disability Benefits Program, No. 10-cv-92-PB, 2011 WL 635431, at *4 (D.N.H. 2011)?defined a myotome as “‘muscles derived from one somite and innervated by one segmental spinal nerve.”’ (quoting STEDMAN'S MEDICAL DICTIONARY 698 (27th ed. 2000)).90Hodge?& Hubbard, supra note 18, at 140.91JAMES E. CROUCH, FUNCTIONAL HUMAN ANATOMY 176-77, 179 (Lea and Febigin eds., 3d ed. 1978).92Peter Ullrich, Jr., Back Muscle and Low Back Pain, SPINE-HEALTH, (last visited Feb. 25, 2012).93Rand Swenson, Differential Diagnosis: A Reasonable Clinical Approach, 17 NEUROLOGIC CLINICS 43, 57-58; JANET G. TRAVELL & DAVID G. SIMONS, MYOFASCIAL PAIN AND DYSFUNCTION, THE TRIGGER POINT MANUAL 5 (1983).94Stewart Eidelson, What Causes Spinal Pain?, SOUTH PALM ORTHOSPINE INSTITUTE, (last visited Apr. 2, 2012). Trigger points are used in a litigation setting to justify awards of compensation. For instance, in Larrabee v.?State of New York, 216 A.D.2d 77 (N.Y. App. Div. 1995), the court found that trigger points were “objectively ascertained and quantified.” But see? HYPERLINK "(sc.Search)" Raygoza v. IBP, Inc., No. 91,237, 2004 WL 720233, at *4, *5 (Kan. Ct. App. 2004).95Gordon Waddell et al., Failed Lumbar Disc Surgery and Repeat Surgery Following Industrial Injuries, 61-A J. BONE & JOINT SURGERY 201, 204 (1979).96AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS: DSM-IV 683 (4th ed. 1994); See Steven Greer, Lee Chambliss & Leslie Mackler, What Physical Exam Techniques Are Useful to Detect Malingering?, 54 J. FAMILY PRACTICE 719 (2005), for additional material.97996 F. Supp. 194, 200 (E.D.N.Y. 1998).98Id.99Steve Rubenzer, Malingering Psychiatric Disorders and Cognitive Impairment in Personal Injury Settings, Apr. 2005, available at http:// Malingering-Brain-Damage.php (last visited Sept. 13, 2011).100David A. Fishbain et al., Chronic Pain Disability Exaggeration/Malingering and Submaximal Effort Research, 15 CLIN. J. OF PAIN 244 (1999).101SAMUEL?HODGE, JR., & JACK HUBBARD, SYSTEMS OF THE BODY (forthcoming 2012).102N. Hendler & S. Talo., Chronic Pain Patient Versus the Malingering Patient, in CURRENT THERAPY OF PAIN 14, 19 (Foley, Payne & Decker eds., 1989).103HODGE?& HUBBARD, supra note 101.104Id.105Id.106Rudolph L. Rose, Reigning in Malingering & Fraud: Construction Responses to Workers' Compensation Leave, in 602 Practicing Law Institute/Litigation and Administrative Practice Course Handbook Series 365, 371 (1999).107In?Phelps v. Astrue, No. 7:09cv0210, 2010 WL 3632730, at *5 (W.D. Va. 2010):[T]he court [took] judicial notice that the Waddell's Test refers to an article published in Spine in 1980 authored by G. Waddell, J.A. McCulloch, and R.M. Venner. The abstract of the article appearing at , U.S. National Library of Medicine, National Institutes of Health, states as follows:Nonorganic physical signs in low-back pain are described and standardized in 350 North American and British patients. These nonorganic signs are distinguishable from the standard clinical signs of physical pathology and correlate with other psychological data. By helping to separate the physical from the nonorganic they clarify the assessment of purely physical pathologic conditions. It is suggested also that the nonorganic signs can be used as a simple clinical screen to help identify patients who require more detailed psychological assessment.Id.108HODGE?AND HUBBARD, supra note 101.109Miller v. Astrue, No. C08-4016-PAZ, 2009 WL 761131, at *3 (N.D. Iowa 2009).110Greer, Chambliss & Mackler, supra note 96, at 719.111Gordon Waddell et. al., Nonorganic Physical Signs in Low-Back Pain, 5 SPINE 117, (March/April 1980).112Waddell Signs, MLS GROUP OF COMPANIES, INC., (last visited Oct. 8, 2011).113Waddell et. al., supra note 111, at 117.114Waddell Signs, supra note 112.115Id.116Id.117Waddell et. al., supra note 111, at 117.118Id.119Anderson v. Astrue, No. 09-0971-TC, 2011 WL 1655552, at *8 (D. Or. 2011).120Waddell et al., supra note 111, at 117-18.121Waddell et al., supra note 111, at 118.122Id.123See?Walgreen Co. v. Carver, 770 So. 2d 172, 174 (Fla. Dist. Ct. App. 2000), for an example of a case discussing exaggerating pain to a light touch.124Waddell et al., supra note 111, at 118.125Id.126Id.127Id.128Id.129Id.130Waddell et al., supra note 111, at 118.131Id.132Id.133Id.134Id.135Id.136Waddell et al., supra note 111, at 119.137See id. at 118.138Id. at 119.139Chai Rasavong, PT Classroom - A Review of Waddell's Nonorganic Signs for Low Back Pain, CYPERPT (Oct. 18, 2010), http:// waddellssigns.asp.140Russell v. Invensys Cooking & Refrigeration, 174 S.W.3d 15, 19 (Mo. Ct. App. 2005)?(internal quotations omitted).141See Waddell et al., supra note 111, at 118.142Gordon Waddell & Chris Main, Behavioral Responses to Examination: A Reappraisal of the Interpretation of “Nonorganic Signs”, 23 SPINE 2367 (1998).143Id.144Id.145Id.146Id.147Id.148Gordon Waddell, Waddell's Signs - Do They Mean Malingering?, 4 DISABILITY MED. 38 (2004).149Id. at 38.150R. N. Carleton et al., Waddell's Symptoms as Indicators of Psychological Distress, Perceived Disability, and Treatment Outcomes, 19 J. OCCUPATIONAL REHAB. 41 (2009).151R. N. Carleton et al., Waddell's Symptoms as Correlates of Vulnerabilities Associated with Fear-Anxiety-Avoidance Models of Pain: Pain-Related Anxiety, Catastrophic Thinking, Perceived Disability, and Treatment Outcome, 19 J. OCCUPATIONAL REHAB. 364 (2009).152William Gaines & Kurt Hegmann, Effectiveness of Waddell's Nonorganic Signs In Predicting A Delayed Return To Regular Work In Patients Experiencing Acute Occupational Low Back Pain, 24 SPINE 396, 396 (1999).153Chris Dickens, Malcolm Jayson, & Francis Creed, Psychological Correlates of Pain Behavior In Patients With Chronic Low Back Pain, 43 PSYCHOSOMATICS 42, 42 (2002).154Rollin M. Gallagher, Waddell Signs: Objectifying Pain and the Limits of Medical Altruism, 4 PAIN MED. 113, 113-4 (2003).155Id.156David A. Fishbain et al., Is There A Relationship Between Nonorganic Physical Findings (Waddell signs) And Secondary Gain/Malingering?, 20 CLINICAL J. PAIN 399, 408 (2004).157Id.158David A. Fishbain et al., A Structured Evidence-Based Review on the Meaning of Nonorganic Physical Signs: Waddell Signs, 4 PAIN MED. 141, 151 (2003).159127 F. App'x 285, 289 (9th Cir. 2005).160Waddell & Main, supra note 142.161Id.162Id.163Fishbain et al., supra note 156, at 399.164Id.165LEE R. RUSS ET AL., ATTORNEYS MEDICAL ADVISOR § 22:133 (Lee R. Russ & Bruce F. Freeman eds., 2005). This particular section of the Attorneys Medical Advisor deals with an APGAR assessment in which the “acting” part of the Acceptance-Pain-Gut-Acting-Reimbursement system deals with the distraction tests of the Waddell's signs.166Id. § 71:73.167JOHN T. BECK & STEVE PLITT, THE CLAIM ADJUSTERS AUTOMOBILE LIABILITY HANDBOOK § 14:17 (2012).168Id.169RUSS ET AL., supra note 165.170Crowhorn v. Boyle, 793 A.2d 422, 426 n. 15 (Del. Super. Ct. 2002).171Id. at 426.172Id.173Id.174Id.175Id.176Crowhorn, 793 A.2d at 426.177Id. at 427.178Id.179Id.180Id.181Id.182Cotton v. Astrue, 374 F. App'x 769, 770 (9th Cir. 2010).183Id.184Id. at 61.185Hilmes v. Barnhart, 118 F. App'x 56, 61 (7th Cir. 2004).186Id. at 58.187Id.188Id. at 60.189Id.190Id. at 61.191Hilmes, 118 F. App'x at 61. It is important to note, however, that the appellate court made the following observation:[t]he ALJ's assumption that Hilmes' behavioral overlay necessarily means that she exaggerated her symptoms is where the ALJ runs into trouble. Malingering is not the only conclusion to be drawn from the exhibiting of Waddell signs The reactions may stem from economic or social factors or even pending litigation, but they may also be traced to a psychological source, which this court has held to be no less disabling But Hilmes never argues this point.Id.192Rush v. Jostock, 710 N.W. 2d 570, 574 (Minn. Ct. App. 2006).193Id. at 573.194Id.195Id.196Id. at 575.197Id. at 583.198Fishburne v. ATI Sys. Int'l, 681 S.E.2d 595, 598 (S.C. Ct. App., 2009).199Id.200Id. at 598, n.2 (internal citations omitted).201Id. at 602.202Id.203Whitley v. Hartford Life & Acc. Ins., No. 06-2189, 2008 WL 238558, at *1 (4th Cir. Jan. 29, 2008).204Id.205Id. at *2, n. 1 (emphasis in original).206Id. at *9.207Id.208Kirby v. Astrue, 568 F. Supp. 2d 1225, 1227 (D. Colo. 2008).209Id. at 1233-34.210Id. at 1234.211Id.212Jordan v. Comm'r of Soc. Sec., 548 F.3d 417 (6th Cir. 2008).213Id.214Id. at 419.215Id. at 420.216Id. at 424.217Id.218Grabczyk v. Astrue, No. 09-cv-02155-WYD, 2010 WL 3894113, at *10, *12 (D. Colo. 2010).219Id. at *10.220Id.221Id.222Wick v. Barnhart, 173 F. App'x 597, 589 (9th Cir. 2005). ................
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