You are likely reading this article because you were involved in a motor vehicle crash or work accident resulting in low back pain.
And in addition to the pain, disability, and uncertainty about how you will pay your bills with no income, the insurance company and orthopedic doctor are now accusing you of malingering. This is a fancy way of saying you are faking or exaggerating your low back pain without calling you a liar.
Waddell’s signs are probably the reason for this accusation. Many insurance defense attorneys, claim adjusters, and Independent Medical Examination (IME) doctors believe that positive Waddell testing shows you are not credible. And they will use Waddell’s signs to argue that your low back pain complaints are exaggerated and solely to increase compensation from your workers comp claim or personal injury lawsuit (secondary gain).
But that opinion is incorrect and ignores the original purpose of Waddell sign testing. Indeed, positive Waddell’s signs do not mean you are malingering. And you can even use them to show that in addition to your low back pain and resulting medical work restrictions (light duty), you require additional medical treatment for your work injury or auto accident to address its psychological impact.
This article explains how.
Read more about Waddell’s signs in workers comp and personal injury claims for back pain.
And if you have questions about workers compensation law or car accident lawsuits, call my firm for a free consultation: (804) 251-1620 or (757) 810-5614.
We have negotiated hundreds of workers comp settlements for employees with back injuries such as muscular strains, herniated discs, and degenerative disc disease (osteoarthritis) requiring discectomies and lumbar spinal fusions. And we want to help you.
You must understand how doctors and insurers view the potential causes of back pain to understand the role that Waddell’s signs have in workers comp and auto accident litigation.
Causation – the reason for your low back pain – is often disputed in workers compensation and motor vehicle accident claims. And this dispute is resolved by medical evidence and your testimony (and that of witnesses)
When you report low back pain after a work accident, your doctor will try to determine the cause. This process involves taking your medical (patient) history, performing a physical examination, and ordering diagnostic imaging tests (x-ray, MRI, CT scan, etc.).
The different causes of low back pain fall into three categories: traumatic, organic, and non-organic.
Your low back pain results from trauma when there is a clear link between it and a specific work accident or car crash.
For example, your doctor will likely state that acute trauma caused your low back pain if you were doing well and had no past problems involving your back, then experienced pain and disability after one of the following incidents:
These cases are easier to win (not easy, just more straightforward). However, unexpected problems and litigation may arise.
For example, may have to litigate your claim at a workers comp hearing if:
You should expect the insurance company to deny your claim or make a lowball first settlement offer if a doctor states your low back pain is organic or non-organic, not traumatic.
You can still win your case or get a fair settlement value, but you must know what medical evidence is needed.
There is an organic cause for your back pain if your doctor can identify a non-traumatic cause, such as a preexisting condition.
Common organic causes of low back pain include:
If an organic cause is present, the critical question becomes whether you can prove that your work injury (or auto accident) aggravated, exacerbated, worsened, or flared this organic cause. Under the law, an employer and its insurer must pay workers comp benefits when a specific incident exacerbates a preexisting condition.
A doctor will find a non-organic cause for your back pain if the physical findings do not have a direct anatomical reason (often seen by diagnostic imaging). Or if your complaints do not align with what the imaging shows (for example, you report pain in an area that does not correlate with the herniated disc on MRI).
And Waddell’s signs are a tool to determine if there is a non-organic cause of your low back pain. This explains why Waddell sign testing often has a role in workers comp and motor vehicle accident claims.
Possible non-organic causes of low back pain include:
It is possible to have both a traumatic or organic cause of back pain and a non-organic cause of back pain at the same time.
In a 1980 article in the medical journal Spine, orthopedic surgeon Gordon Waddell described five inappropriate responses to a physical examination that may indicate a non-organic or emotional component to chronic low back pain.
Dr. Waddell thought that if a patient complained of pain when a doctor performed specific maneuvers on the patient’s body that should not cause pain, psychological factors could be contributing to the pain and disability.
The term Waddell test refers to these five signs:
Health care providers (surgeons, doctors, chiropractors, physical therapists, etc.) perform tests to determine the presence of any of these five signs.
We will take a closer look at each of the five Waddell signs.
Tenderness is the first sign that a non-organic or psychological cause is responsible for your low back pain.
The doctor performs the Waddell test for tenderness by pinching the skin’s surface in your lumbar (low back) area.
You have a positive Waddell sign if you report tenderness (defined as deep pain) over a large part of your lower back or in an area not known for radicular or peripheral nerve distributions.
The second Waddell sign, simulation, is tested by asking if you feel pain when performing a maneuver not known to cause pain (a sham movement). If you answer yes, you have a positive Waddell sign for simulation.
Examples of movements used for simulation testing include:
You have a positive Waddell sign for distraction if you show no (or less) signs of pain or discomfort when distracted during the maneuver.
The distraction maneuver should be a non-painful and unsurprising act.
The straight leg raising (SLR) test is the most common example of distraction testing for low back pain. Here, the doctor will raise your leg when lying down and again when seated. You have a positive Waddell sign if you report pain lying down during the straight leg raise test.
Regional disturbances are the fourth Waddell’s sign.
With this test, the doctor will measure your motor and sensory abilities.
You have a positive Waddell sign if you report changes in feeling over a widespread part of your body that does not correspond with known nerve distributions or does not correspond with certain activities.
For example, your test for regional disturbances is positive if you have weakness in the shoulders and hands while maintaining strength in your forearms.
The fifth sign looks at whether you have an overreaction during the clinical examination.
Pain behavior such as crying, wincing when touched or asked to move, facial expressions, verbalizing your pain, trembling when being touched, or moaning may result in the examiner finding an exaggerated pain response and a positive Waddell’s sign for overreaction.
Dr. Waddell considered overreaction to stimuli to be the most important non-organic physical sign.
Various studies have found that many people with low back pain recover fully within three months of the start of their symptoms.
If you have not recovered completely and returned to work within this period, the insurer will likely look at your medical records to find a way to cut off your care.
The presence of a positive Waddell sign – or related terms such as “secondary gain may be a contributing factor to the pain and disability or subjective symptoms and complaints out of proportion to the MRI findings” – may give the insurer a basis to deny benefits or the payment of ongoing medical care. Indeed, many claim adjusters and insurance defense attorneys argue that positive Waddell’s signs prove that you are exaggerating or faking back pain to get more money through workers comp or a tort claim. And some insurance adjusters may go so far as to accuse you of insurance fraud or perjury.
There are a few reasons for this position.
First, some insurance and medical industries members use Waddell signs to show malingering.
Second, some research shows a connection between Waddell’s signs and an employee’s ability and desire to return to work – either full duty or light duty. For example, one study found at least one positive Waddell sign was present in almost half of patients whose work status did not improve after an occupational injury. And another found that less than 40 percent of patients with non-organic signs identified by Waddell testing do not return to work.
Third, some insurance adjusters are simply cynical and believe that most claimants are lying to one degree or another to get more money. And anything that supports their view is deemed valid.
The insurer may conduct extensive discovery to find ways to challenge your credibility and defeat your claim before the Workers Compensation Commission or trial court if there are non-organic signs of chronic low back pain. These efforts may include pulling your ISO Report, taking depositions, and sending interrogatories and requests for production of documents.
Contrary to the belief of some adjusters and insurance defense attorneys, positive Waddell signs do not mean you are faking your injury or chronic low back pain.
Instead, Dr. Waddell created this test to determine if a patient needed a psychiatric referral to address all contributing causes of their low back pain. Not to detect malingering.
And Dr. Waddell warned against misusing these tools, noting that positive signs “certainly do not mean that the patient does not have ‘real’ physical pain and they do not mean that the pain is psychogenic or hysteric.” Nor do they mean that the patient is acting, malingering, or faking the pain. In fact, many pain patients with positive Waddell signs are not involved in personal injury litigation.
Further, Dr. Waddell indicated that someone’s positive signs are not suspicious without further evidence. He stated: “Behavioral 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 e facto that the signs are evidence of simulation for the purpose of financial gain.
Other studies have reached the same conclusion -there is no association between positive Waddell’s signs and being motivated by secondary gain.
Despite the medical literature, many insurers ignore that Waddell rejected using his tests as definitive proof that a person is exaggerating or faking low back pain. Indeed, he understood and recognized that psychological factors contribute to back pain following a work accident or car crash and that psychiatric treatment may be necessary for a complete recovery.
In my experience, it is rare for a client to lie about their symptoms or disability (inability to work). Litigation is too uncertain, and they have lost too much to make up things during the process.
Below are some areas to analyze and develop when responding to the allegation that you are not as injured as you alleged. You can use this information to determine the best way to respond to the insurer’s accusation that positive Waddell’s signs prove that you are exaggerating your symptoms.
Many people with objective findings (such as an x-ray that shows fractured vertebrae or an MRI or CT scan that detects signs of trauma or degenerative disc disease) may also have one or two positive Waddell’s signs.
Therefore, the medical community consensus is that isolated Waddell signs are insignificant when evaluating potential malingering.
If not, then Waddell’s signs are useless. He developed this test for lower back injuries only, not concussions or injuries to the neck or other body parts.
Dr. Waddell has indicated that you should ignore multiple Waddell signs in:
In most cases, the first time I see or hear any suggestion that my client is magnifying their symptoms is when I read the IME Report.
IME doctors are notorious for finding that the injured worker exaggerates their symptoms and can do more than the treating physician thinks. The IME physician often says something like this: “The objective findings do not support the intensity of the patient’s complaints. He exhibited 3/5 Waddell signs.”
Fortunately, the general rule in workers comp is that the treating physician’s opinions receive controlling weight when based on an accurate medical history and a longer relationship, not a one-time defense medical examination.
Therefore, an IME doctor’s opinion that you are malingering is not as concerning as a treating physician’s statement that you exaggerate your symptoms.
If not, you can use this lack of knowledge to attack the doctor’s opinion that you are faking your pain.
Specific pain symptoms are signs that you are suffering from depression or anxiety, not that you are exaggerating your pain. If the doctor is unaware of your usual demeanor or mood, or pre-existing psychiatric condition, their opinion should receive less weight.
You might be hesitant to ask for mental health help. But there is no reason to be ashamed. Many injured workers and accident victims experience depression and anxiety when going through litigation or the workers comp claims process.
These mental health conditions are often compensable consequences under workers comp.
A referral for a psychiatric evaluation is a reasonable next step if you have positive Waddell signs. And the findings of this neuropsychological exam or counseling may explain your ongoing disability.
The doctor’s examination technique and bias can influence Waddell testing.
In particular, a finding of overreaction is based entirely on the examiner’s method and subjective opinions, making it easier to discredit.
In addition, the doctor might perform Waddell testing at the end of the examination, when you are tired or feeling more pain. Therefore, the timing of the tests can impact your performance.
Your attorney may ask the doctor who concluded you are malingering to demonstrate the Waddell tests.
This request is important because many doctors do not perform the tests accurately. And an inaccurate test is meaningless and cannot harm your case.
Clinically significant Waddell scores do not eliminate an organic cause of your pain. They only indicate some symptom magnification or the potential need for a psychiatric evaluation.
If you haven’t had it already, your doctor should order diagnostic imaging to rule out spinal cord injury and refer you to a mental health provider.
You likely respect medical professionals and view physicians as authority figures.
If so, you may hesitate to disagree with the doctor.
This reluctance may result in positive Waddell signs.
For example, if the doctor indicates you should have pain with a particular maneuver, you might say you are hurting because you believe that is the correct answer.
Our firm develops and explores these areas (and others) when the insurance company disputes an injury victim’s credibility, symptoms, and restrictions.
And we submit motions in limine to exclude the defendant or its expert witnesses from presenting evidence or testimony about positive Waddell’s signs or malingering when appropriate.
Has an insurer such as Travelers, The Hartford, or Liberty Mutual, or a third-party administrator such as Sedgwick or Gallagher Bassett accused you of faking or exaggerating your chronic low back pain?
Have your wage loss payments stopped or has your auto liability insurance claim been denied based on a doctor’s opinion that you are malingering?
Then contact my firm today.
We will help you explain Waddell’s signs’ real purpose and meaning, develop appropriate medical evidence to boost your credibility, and cross-examine the doctor who says you exaggerate your low back pain. Do not let the defendant misuse Waddell signs to hurt your claim.
But you must act quickly. Specific statutes of limitation and deadlines may apply.