15 Mich. St. U. J. Med. & L. 71Michigan State University Journal of Medicine & Law

Winter, 2010

SMALL CIRCLES OF PAIN CAUSE BIG HEADACHES IN COURT - A PRIMER ON MYOFASCIAL PAIN AND TRIGGER POINTS

Samuel D. Hodge, Jr. a1  Jack E. Hubbardaa1 Daniel Mitsakosaaa1

Copyright © 2010 Michigan State University Journal of Medicine & Law; Samuel D. Hodge, Jr., Jack

E. Hubbard, Daniel Mitsakos

I. Introduction 72II. Myofascial Trigger Points 74III. Neurological Symptoms 76A. Headaches 76B. Dizziness 78C. Sensory Symptoms 79IV. Treatment 80A. Non-pharmacologic Therapy 80B. Pharmacologic Treatment 81C. Follow-up Care 81V. Myofascial Pain in a Claim Setting 82A. Causes of Myofascial Pain 83B. Myofascial Pain and Social Security Disability Insurance 841. The Five-Step Evaluation Process for Determining SSDI Eligibility as it Relates to Myofascial Pain

Syndrome84

a. Step One - Substantial Gainful Activity 85b. Step Two - Severe Impairment 85c. Step Three - The Listings and Durational Requirements 87d. Step Four - Residual Functioning Capacity 87e. Step Five - Ability to Do Other Work 90C. Workers' Compensation 92D. American Medical Association's Guides to the Evaluation of Permanent Impairment 94E. Myofascial Pain and Third Party Claims 991. Causation 99a. The Frye Standard for Expert Testimony 99b. The Daubert Test for Expert Testimony 100c. State Statutes on Expert Testimony 1012. Damages 102F. Disability Insurance 103G. Americans with Disabilities Act 105VI. Conclusion 107VII. Practice Checklist for Myofascial Pain Syndrome 108VIII.

Research Tools 109

A. West Key Numbers 109B. American Jurisprudence 109

C. A.L.R. 109D. Law Reviews and Other Periodicals 110

*72 TANESHA WAS INVOLVED in a motor vehicle accident and complained of pain in her neck, left

shoulder and lower back.1 She had a series of chiropractic treatments and a neurologist opined that

she suffered from post-traumatic myofascial pain.2 An MRI, however, revealed no

abnormalities.3 Eighteen months after the incident, Tanesha was still complaining of localized pain in

her spine as well as headaches.4 At trial, the medical expert for the defense disagreed with the

diagnosis, claiming that the myofascitis would have been visible on an MRI as either inflammation or

swelling.5 The jury disagreed and concluded that the plaintiff had sustained a permanent soft tissue

injury, and awarded $400,000 in damages.6 On appeal, the defense argued that the plaintiff's

myofascial pain was not verified by objective medical evidence and was inadequate to prove a

permanent condition as required under the no-fault law of the state.7 The appellate court was not

impressed with this position and allowed the verdict to stand.8 Welcome to the world of myofascial

pain and trigger points in a personal injury setting, a source of continuing controversy.

I. Introduction

Whiplash, sprains and strains, herniated disks, fibromyalgia and even complex regional pain

syndrome are fairly well known conditions that have become part of an attorney's vocabulary. But

what is myofascial pain, a term that is showing up with some frequency in the medical reports of

personal injury and disability claimants? This article will explore the medical and legal implications of

this condition, including an examination of how the problem *73 is diagnosed and treated along with

a review of how the diagnosis has been viewed by the courts.

Defining the name given to this diagnosis is an appropriate first step. “Myo” is the prefix for muscle

and “fascia” refers to the protective covering surrounding a muscle. Myofascial pain, therefore, is a

disorder of a muscle and its covering that is responsible for many patient visits to doctors'

offices. Myofascial pain is a localized condition that can “affect any skeletal muscle” and can cause

such manifestations as tenderness, local or referred pain, stiffness, and “muscle weakness without

atrophy.”9 Discomfort “arises from referred pain and muscle dysfunction caused by trigger points

[T]ight bands of skeletal muscle with palpable [nodes].”10 In non-medical terms, this is known as a

“muscle knot.”11

While the diagnosis may be alien to some attorneys, it is well known in the medical community. In

fact, myofascial trigger points, or MFTPs, were first described by Dr. Janet Travell and colleagues in

194212 and have been recognized as a common cause of chronic neck and back pain.13 Less well-

known is the fact that MFTPs can also cause a wide spectrum of associated symptoms. For

example, in one survey of patients with this malady, it was reported that neurological,

gastrointestinal, musculoskeletal, and otological symptoms occurred in 10% to 40% of the cases.14 In

a litigation setting, a court described the problem in the following way:

Unlike the generic problem of ‘back strain’, myofascial pain syndrome is a chronic form of muscle

pain which, unlike normal muscle pain, does not resolve in a few days. The pain is centered around

sensitive muscle points called trigger points which are painful when touched;*74 locations of the

trigger points include the jaw, neck, low back, pelvis and extremities.15

II. Myofascial Trigger Points

Myofascial trigger points are localized segments of muscle that have been subjected to trauma

either by acute injury or micro-trauma from repetitive stress, and in some cases, are the result of a

systemic illness.16 Any skeletal muscle can develop MFTPs, which can be identified by a careful

examination of the affected muscle groups for “knots” two to five millimeters in diameter and tight

bands that are painful when palpated.17 “A trigger point is a small patch of a tightly contracted

muscle, [or a more] isolated spasm affecting just a small patch of muscle tissue [Unlike a spasm that

affects the entire muscle similar to a] ‘charley horse’ or cramp.”18 In turn, a collection of painful trigger

points is called “myofascial pain syndrome” or MPS.19

The diagnosis of MPS is based on the patient's history and examination, as there are no laboratory

tests or imaging studies that can confirm the presence of MFTPs.20 Therefore, the criteria for

diagnosing this problem is somewhat controversial,21 and debate exists over whether or not they are

true pathologic entities.22

Although some theories suggest that MFTPs are on the same spectrum of disorders as

fibromyalgia,23 MFTPs and fibromyalgia24 are not one and the *75 same.25 MFTPs are localized

areas of injury and discomfort, whereas the pain from fibromyalgia is more diffuse and thought to

reflect a central pain syndrome.26 Myofascial trigger points can be objectively identified during a

careful examination of the patient; whereas a fibromyalgia diagnosis relies on the subjective

responses of the patient as he or she is examined for sensitive trigger zones.27 Finally, and most

importantly, MFTPs are more easily treated than fibromyalgia.28

Myofascial trigger points are quite common, especially in the cervical musculature, and are most

often found in patients 31 to 50 years of age,29 with a greater incidence in women than

men.30 Several studies have even reported that up to 85% of back pain and 54% of neck pain

accompanied by headaches are caused by myofascial discomfort.31 Developing most frequently in

the axial musculature (neck and back), MFTPs are associated with poor posture and can develop

insidiously from occupational activities such as cradling the telephone handset between the head

and shoulder, sitting in an awkward position in front of a computer, or non-vocational activities such

as bending one's *76 head for a prolonged period of time while knitting or reading.32 Another

common cause of MFTPs is acute trauma, such as a flexion/extension injury from a motor vehicle

accident.33 In some cases, however, a specific cause cannot be identified.

The pathophysiology of a myofascial trigger point remains speculative. One theory is that muscle

injury stress disrupts the sarcoplasmic reticulum, a tubular network structure found in striated muscle

fibers, releasing free calcium ions.34 In the presence of adenosine triphosphate (ATP), a molecule

that stores energy, ionic calcium causes the actin and myosin of the muscle fibers to lock into place.

This action results in diminished blood flow and release of painful substances such as serotonin,

histamine, kinins, and prostaglandins in the injured area.35

III. Neurological Symptoms

Myofascial trigger points frequently produce neurological symptoms such as headache, dizziness,

and sensory problems including tingling and numbness. Therefore, physicians need to be aware of

the possibility of MFTPs when patients present with such symptoms.

A. Headaches

Headache is a frequent consequence of a neck injury and, conversely, neck pain is common in

patients who suffer from headaches.36Headaches occur in 55% to 66% of patients who sustain a

whiplash-type injury, and neck pain is reported in 73% of patients with migraine

headaches.37 Although the cause of headache following a whiplash injury is often the result of

cervical *77 facet dysfunction,38MFTPs may also develop at the same time and account for

persistent headache in many patients.39

The mechanism of headaches generated or exacerbated by MFTPs most likely involves the

trigeminocervical complex, a sensory network that integrates pain input from the neck with pain

centers for the face and head.40 Constant painful stimuli from neck muscle trigger points converge on

the trigeminal nucleus caudalis located in the upper cervical spinal cord, which is a nerve-center that

controls sensation to the head.41 This continuous stimulation results in an amplification of pain

signals to the trigeminal pathways, which relay sensory information from the head and face.42

Myofascial trigger points typically cause “tension” headaches that originate either directly from the

trigger points in the muscles of the head such as the temporalis, or indirectly from the cervical

musculature.43 These headaches may be severe and debilitating, raising concerns of an expanding

intracranial mass or infection. Myofascial trigger points also can precipitate migraines or contribute to

their worsening. Continuous painful input from the neck muscle trigger points stimulates the migraine

neural pathways, resulting in an increase in the frequency and/or severity of migraine headaches.44

As early as 1981, the head and neck muscles were recognized as important for headache

generation.45 Trigger points can influence the frequency, severity, and treatment of migraines.46 With

appropriate trigger-point therapy, these headaches often come under better control, decreasing in

both frequency and severity.47

Individuals who have frequent migraine headaches, as in one to three per week, or those who do not

respond to appropriate preventive and/or abortive therapy often have cervical MFTPs. With the

application of specific myofascial therapy to the cervical musculature, patients report that the

frequency of their headaches decreases significantly, eliminating the need for preventive

medications. When these individuals do experience migraines, they find that their headaches

generally respond more effectively to medication such as a triptan or other abortive therapy including

drugs like Imitrex, Imigran, Zomig, or Relpax. Also, those patients who experience daily tension

headaches that *78 are present with the superimposed migraine pattern see improvement in their

chronic headaches as well.

B. Dizziness

A frequent complaint of those with cervical MFTPs is dizziness. They describe their dizziness in

nonspecific terms such as feeling off balance and unsteady or in the context of “walking on a cloud.”

In one study of patients with cervical MFTPs, 23% reported experiencing dizziness.48 Interestingly,

these patients also were found to have other otological symptoms such as tinnitus (42%), ear pain

(41%), and reduced hearing (17%). Nausea also was common, but vomiting was not a symptom.49

Such patients often indicate that their dizziness worsens with prolonged or repetitive bending of the

head and neck. For instance, Travell and Simons noted patients reporting feelings that they would

“pitch over backwards” when looking up or fall forward when looking down.50 Patients with these

types of symptoms are usually referred for neurological or otolaryngological evaluation. Although

most patients with this “cervicogenic vertigo” have concomitant neck pain and/or headaches, some,

especially those who are elderly, will deny any neck discomfort when questioned or report only minor

stiffness.

These patients should have a careful examination for trigger points in the cervical area. When the

trigger points are treated with appropriate myofascial therapy, the dizziness usually resolves. The

mechanism of the dizziness is likely related to excessive proprioceptive51 input from the cervical

muscles,52 especially the clavicular division of the sternocleidomastoid muscle and the trapezius

muscle.53 Travell and Simons theorize that dizziness results from proprioceptive information from the

cervical musculature that helps orient the body.54 Because of its attachment to the mastoid process,

the sternocleidomastoid muscle also may refer pain deep into the ear and cause tinnitus.55

*79 C. Sensory Symptoms

More than a quarter of patients with cervical MFTPs experience sensory symptoms in the upper

extremities and face, such as numbness and tingling.56 Pain also can be referred distally from

MFTPs in patterns that do “not follow [known] dermatomal57, myotomal58, or sclerotomal

patterns59.”60 In fact, one researcher suggests that pain referred from MFTPs follows the distribution

of acupuncture meridians.61

The distribution of sensory symptoms caused by MFTPs depends on the location of the trigger

points. For instance, cervical trigger points can refer numbness and tingling to the face, head or

upper extremities.62 Upper extremity motor impairment, such as weakness or incoordination, can

arise from pain generators in the neck.63 Trigger points in the lumbar region can refer sensory

symptoms to the legs.64 On the other hand, thoracic trigger points may mimic a thoracic

radiculitis.65 Patients who have such symptoms are often referred to a specialist to rule out other

causes such as multiple sclerosis or neuropathy. Sensory symptoms and findings caused by MFTPs

closely mimic those of radiculopathy.

The referral of sensory symptoms distant from trigger points is likely because of changes in

processing within the brain and spinal cord.66 For example, Niddam and colleagues demonstrate that

a center within the brainstem, *80 the periaqueductal gray67 of the midbrain, can alter and regulate

pain signals from neck muscle MFTPs.68 Other suggested mechanisms include the convergence of

sensory inputs with projections to higher sensory centers of the cerebral cortex, branching with

multiplication of the pain nerve fibers from the affected muscle, amplification of pain signals from the

trigger point, and spread of neuronal activity from sympathetic nerve fibers.69

IV. Treatment

Successful treatment of MFTPs usually eliminates or significantly reduces the associated

neurological symptoms. The goal in trigger-point management, therefore, is to restore muscle fiber

length in the affected segments.70 Management of MFTPs includes both non-pharmacologic and

pharmacologic therapies.

A. Non-pharmacologic Therapy

Myofascial trigger point therapy is a manual technique that involves applying pressure to a trigger

point to release the pathologic contraction of the muscle segment and to stretch that segment in

order to restore normal muscle fiber length. The duration of treatment varies from person to person,

but an initial course is usually manual therapy twice a week for three to four weeks. To be effective,

trigger point therapy must be performed by a physical therapist skilled in manual therapy with

myofascial release techniques.71 Traditional physical therapy that initially involves vigorous exercise

and traction often does not help and sometimes causes the symptoms to worsen. In addition,

acupuncture, stress management, and relaxation techniques, when combined with myofascial

release therapy, can help patients with pain caused by MFTPs.72

*81 B. Pharmacologic Treatment

There is no pharmacologic agent that is specific for treating MFTPs. Any pharmacotherapy must be

administered in conjunction with physical therapy and can be administered orally, topically, or by

injection. Oral medications such as muscle relaxants can improve muscle function.73 Nonspecific

agents such as antidepressants, non-steroid anti-inflammatory drugs, anticonvulsants, and opioids

are usually used for pain control. Topical agents include local anesthetics or nonsteroidals in patch

or gel form. Local anesthetics with or without corticosteroids, neurolytic agents, or botulinum

toxin74 can be injected directly into trigger points to “break up” the localized muscle knots.75 Some

investigators have even concluded that simple dry needling of the trigger points can be effective.76

C. Follow-up Care

A post-treatment program is necessary to maintain the achieved clinical improvement. Myofascial

therapy may not entirely eliminate symptomatic active trigger points, which are characterized by a

local twitch response followed by pain during palpation, but may convert them to asymptomatic

latent points, which can be activated by re-injury.77 To prevent this from happening, patients need to

make appropriate ergonomic changes in their work and day-to-day activities to avoid repetitive

stress on the injured muscles.78 For example,*82 patients with cervical myofascial trigger points

should use a telephone headset when spending long periods of time on the phone, or change their

position to avoid bending their heads while knitting or reading. In addition, a strengthening and

conditioning regimen for the affected muscle groups, usually taught by the physical therapist, is

beneficial.

V. Myofascial Pain in a Claim Setting

A disorder like myofascial pain syndrome demonstrates the distinction between the analyses and

procedures found in the medical fields and the nature of scrutiny found in adversarial legal practice.

Although myofasical trigger points and myofascial pain syndrome are routinely diagnosed and

treated by physicians, the criteria used for its diagnosis remains somewhat controversial since no

routine biochemical, electromyographic or diagnostic imaging procedures reliably detect the

presence of MFTPs.79 The diagnosis is literally in the hands of the doctor, as MFTPs are objectively

identified by a skilled examiner through careful palpation of the injured musculature.This palpation

results in an involuntary painful response, or a positive jump sign resulting in a patient response.80 In

a claims setting, the lack of a definitive test to establish this disorder creates a recipe for

disagreement and suspicion, as does the fact that a doctor must rely on the injured party's feedback.

These facts have led to different views in various federal and state courts regarding this medical

problem. One court cited to a report that referenced a Mayo Clinic pronouncement that MPS “is a

chronic form of muscle pain” that “centers around [sensitive] points in [the] muscles” that are “painful

when touched.”81 Another court had to resolve a battle of experts, where one doctor opined that MPS

is a “‘contentious' diagnosis in the medical community,” and the opposing expert physician replied

with a “point-by-point defense, arguing that [the other expert's] opinions were outdated....”82 This next

portion of the article will examine some of the various law related contexts in which myofascial pain

and its associated myofascial trigger points have arisen.

*83 A. Causes of Myofascial Pain

Assuming that a claimant has demonstrated that he or she has the hallmark signs of myofascial pain

or myofascial trigger points, an attorney's job is not finished. The next inquiry is to ascertain the

cause of that pain response or, in a legal context, to determine if the problem is proximately caused

by a tortfeasor's actions or an injury that can be claimed in a worker's compensation or other

disability setting. Although the most common reason for MPS is trauma, either acute or repetitive,

there are some less recognized causes; and these are important areas of investigation that should

be explored in a litigation or administrative setting.

As a starting point, it is not always possible to establish the cause for MPS. As noted in Awad v.

Secretary of Health and Human Services,83 “‘myofascial pain syndrome’ is a term used to describe a

situation in which an individual over a period of months or longer has chronic fibrous tissue pain of

unknown cause in a localized area of the body.”84 Other potential causes include the micro-trauma of

daily living or the chronic strain from sedentary habits. Myofascial pain may also be related to

systemic inflammation disorders, infection, minor stress, overstretching of muscles or overuse in

repetitive movement, arthritis, a psychogenic anxiety tension state, hypothyroidism, estrogen

deficiency, mild anemia and certain vitamin deficiencies.85 A few studies suggest that the condition

could be related to general fatigue, a heart attack, stomach irritation,86 and inadequate

sleep.87 Counsel, therefore, should scour the medical records for other possible causes for

myofascial pain and not merely assume it is from trauma.

When a medical report describes findings of myofascial trigger points, there is no way of knowing

whether the symptoms developed in the past five days or the past five years. In other words, there is

nothing unique on examination which dates the onset of these findings. This information needs to be

gleaned from the client's history, examination, and medical records. For example, if a client with no

prior history of neck pain was involved in a motor vehicle accident and complained of pain localized

to the left side of his neck with the finding of trigger points in those muscles, then most likely the

trigger points developed as result of the accident. If, on the other hand, the client has a prior history

of neck pain with documented trigger points on examination *84 and increased neck pain following a

new accident, this would be, at most, an exacerbation of a pre-existing condition.

B. Myofascial Pain and Social Security Disability Insurance

“[T]he Social Security Administration is authorized to pay disability insurance benefits [“SSDI”] and

Supplemental Security Income to [those] who have a ‘disability”’;88 a rigidly defined term that is

based on the inability to work.89 In order to qualify for SSDI, the applicant must generally show: “(1) a

medically determinable physical or mental impairment that has lasted, or can be expected to last, for

twelve months; (2) an inability to engage in any substantial gainful activity; and (3) that this inability

results from the impairment.”90Furthermore, an individual will only be declared disabled “if his

physical impairments are of such severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage in any other kind of substantial

gainful work which exists in the national economy.”91

The applicant must also have an impairment that can be established by objective “medical evidence

consisting of signs, symptoms, and laboratory findings, not only [the claimant's] statement of

symptoms.”92 That “impairment must result from anatomical, physiological, or psychological

abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic

techniques.”93 In the context of myofascial pain, this can be a daunting task because there are no

laboratory tests or imaging studies that can objectively confirm the presence of myofascial trigger

points.

1. The Five-Step Evaluation Process for Determining SSDI Eligibility as it Relates to Myofascial Pain Syndrome

The Commissioner of Social Security has established a five-step process in order to ascertain if an

applicant is disabled and this process must be followed in a set order in all disability

determinations.94 In fact, “[e]ach step in the disability determination entails a separate analysis and

legal standard.”95

*85 a. Step One - Substantial Gainful Activity

Initially, a determination must be made as to whether the claimant is engaged in “substantial gainful

activity.”96 If the individual is engaged in any type of work activity, the claimant cannot be considered

disabled and the inquiry stops.97 Generally, the Social Security Administration does not consider

personal care, “household tasks, hobbies, therapy, school attendance, club activities, or social

programs to be substantial gainful activity.”98

For example, a claimant was diagnosed with MPS and fibromyalgia, but worked for her daughter's

private school as a lunch monitor two hours a day.99 An ALJ determined that this job was not

substantial gainful employment.100 The record suggests that the fact finder made this determination

because the claimant's hourly wage was credited to her daughter's tuition, and because she took on

the monitoring duties as part of psychological therapy in adjusting to her impairments so “she could

regain a part of her life.”101

b. Step Two - Severe Impairment

The second step in the analysis is to determine whether the claimant has a severe

impairment.102 This term is defined as “any impairment or combination of impairments which

significantly limits [the claimant's] physical or mental ability to do basic work activities.”103 Basic work

activities are essentially the “abilit[y] and aptitude[] necessary to do most jobs,” including:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying,

or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and

remembering simple instructions; (4) Use of judgment; (5) Responding appropriately to supervision,

co-workers and usual work situations; and (6) Dealing with changes in a routine work setting.104

If the claimant's impairment “would have no more than a minimal impact on [the] ability to work,” then

the claimant is not disabled.105 A finding that the claimant's condition is not severe stops the inquiry

into disability and benefits are denied.106 Practically speaking, however, one appellate court

has *86 warned that this step may not do much more than “screen out de minimis claims.”107

Myofascial pain syndrome has been recognized as a severe impairment that may qualify a claimant

for disability benefits by a number of courts.108 In Brunson v. Barnhart, it was determined that an ALJ

could not reject a diagnosis of MPS despite the fact that there were few, if any, clinical examinations

which tested for the presence or severity of the condition.109 Another ALJ, in Smith v. Astrue, was

found to have committed error for the failure to discuss the claimant's diagnosis of MPS or list it as a

severe impairment.110 These favorable decisions have their limits, however. When there were only

isolated references to MPS in an evaluation form filled out by a claimant's doctor without a formal

diagnosis or recommendations for treatment, one court affirmed an ALJ's ruling that MPS could not

be a severe impairment under the facts presented.111 The court also considered the “lack of

[objective] medical records,” the claimant's “reports to her physician that she did not suffer from

fatigue, stiffness, or muscle pain,” and her “testimony that she perform[ed] a variety of tasks,

including step aerobics.”112

Administrative law judges have also been chastised by appellate courts for inserting their own

opinions into the disability analysis. One appellate court has referred to this practice as “sit and

squirm jurisprudence,” which is grounds for reversal.113 For example, in Guarino v. Commissioner of

Social Security,114 the ALJ dismissed the claimant's ten-year history of MPS because “treatment

notes from the pain management center do not document trigger points in 11 of 18 areas of the

upper and lower torso and extremities, which the American College of Rheumatology denotes as

being one of the diagnostic features of myofascial pain syndrome or fibromyalgia.”115 By improperly

ascribing a symptom of fibromyalgia to MPS, the ALJ drew a warning that his *87 statement

“smack[ed] of ‘set[ting] his own expertise against that of a physician who [submitted an opinion to or]

testified before him.”’116

c. Step Three - The Listings and Durational Requirements

The third step in the process requires a determination of whether the claimant's severe impairment

meets or equals one of the listings found in the Code of Federal Regulations117 and whether such

impairment meets the twelve-month durational requirement.118 The impairments in these listings

have been acknowledged by the Commissioner of Social Security to “be of sufficient [magnitude] to

preclude gainful employment.”119 If the claimant's impairment is equivalent to one of the impairments

in the listings, the claimant is conclusively disabled and is entitled to benefits.120

As it relates to MPS, the listings contain a categorization of musculoskeletal impairment, but make

no explicit reference to pain disorders.121 Therefore, a claimant suffering from MPS must prove that

his or her diagnosis alone or in combination with other ailments equals one of the listed impairments.

Feliciano v. Barnhart122 provides an example where the claimant failed to present sufficient medical

evidence that her MPS matched a listed impairment. In this case, the claimant was diagnosed with

myofascial pain syndrome after the primary care doctors examined the results of X-rays and an

MRI.123 However, these same doctors reported that the claimant had “no limitations in overall mobility

and ambulation” on the medical assessment forms sent by the Social Security Administration.124 The

court affirmed the ALJ's determination that the claimant's MPS was not coupled with a limitation in

motion or other significant musculoskeletal impairment to rise to the level of severity required to

satisfy one of the listed impairments.125

d. Step Four - Residual Functioning Capacity

If a claimant is unable to satisfy step three, the individual must proceed to a fourth step that requires

the applicant to show a lack of residual functioning capacity (“RFC”) to perform his or her past

work.126 The administrative *88 officials must then assess the claimant's RFC, which, put another

way, “is the most a claimant can do [physically] despite [his or] her limitations.”127 If the claimant is

found to have the ability to perform that past work, the person is not disabled and the analysis

ends.128

In Marden v. Barnhart, an ALJ determined that the claimant's MPS was severe, but did not “meet or

equal” the impairments set forth in the listings, leading the Commissioner to determine at step four

that the claimant had the requisite RFC to “return[] to her past relevant work as a cashier [or a]

waitress.”129 According to the record, the claimant's MPS stemmed from an incident involving an

attack by a resident in the nursing home where she worked, who “squeezed [the claimant's]

shoulders so tightly in a bear hug that [the claimant] temporarily lost consciousness.”130 On appeal,

the ALJ was found to have committed error during step four of the analysis.131 It was held to be

improper for the ALJ to simply ignore three other RFC assessments in favor of an RFC assessment

from an independent medical examiner (“IME”) that examined the claimant pursuant to a separate

worker's compensation claim.132 In fact, the doctor who performed the IME opined that the claimant

did not exhibit any significant disability and had no medically determinable impairment because she

“had not presented any objective sign of any significant problem” that the examiner could “see, feel,

touch, or measure.”133But because the ALJ also chose to credit other evidence that the claimant

suffered from severe MPS, the court found that the ALJ's determination was logically inconsistent

without sufficient explanation.134 In the eyes of the reviewing court, this logical inconsistency at step

four was critical enough to “filter[] through to and undermine[]” the rest of the five-step analysis.135

In Wilson v. Astrue,136 a claimant argued that the ALJ “failed to properly consider her myofascial pain

syndrome diagnosis [when] determining her RFC.”137 The court's analysis ultimately turned on the

claimant's credibility, considering the lack of objective medical evidence.138 The appellate court gave

weight to the fact that the claimant was diagnosed with “possible myofascial pain syndrome” by her

doctor, but noted that she manifested no physical *89 cause for her complaints of severe pain.139 The

court also considered the fact that other doctors diagnosed the claimant with somatoform

disorder.140 The court was further dissuaded by the fact that the claimant told the doctors that she

had chronic fatigue syndrome when it was never diagnosed.141 The claimant also told clinicians that

she was hoping to obtain Social Security Disability benefits so she could spend more time with her

son.142 Given the claimant's misrepresentations and inconsistencies regarding her physical

limitations, as well as deception regarding drug and alcohol abuse, the court affirmed the ALJ's

determination that the claimant's testimony was not credible.143

In Bennett v. Barnhart,144 an ALJ determined that the claimant suffered from severe MPS, but denied

benefits because the ALJ determined that the plaintiff was not prevented from performing her prior

work.145 The ALJ factored into the analysis his observations that the claimant “did not have [trouble]

sitting during the hearing.”146 He also noted that none of the plaintiff's physicians recommended

surgery, “which indicate[d] the claimant's condition [was] not as severe as alleged.”147 The district

court reversed this finding, noting that the ALJ erred in conducting an improper credibility analysis

and refusing to credit the plaintiff's pain testimony.148 By interjecting his opinion without citing to

medical evidence in the record, the ALJ “succumbed to the [forbidden] temptation to play doctor and

make [his] own independent medical findings[,]” according to the court.149 The court found it

“particularly troubling that the ALJ recited the lack of a surgical recommendation” while

acknowledging that the claimant had severe MPS, a disorder not alleviated by surgical

treatment.150Ultimately, the district court remanded the case with specific instructions that the

claimant be awarded benefits.151

*90 e. Step Five - Ability to Do Other Work

In the last step of the inquiry, if the claimant is able to show that he or she lacks the RFC to perform

the applicant's past work, the burden shifts to the Commissioner who must show that the claimant is

capable of less demanding employment.152 This means that the claimant remains capable of

performing some other type of substantial, gainful employment in the national economy.153

This fifth-step inquiry is divided into two stages.154 First, specific, relevant characteristics of the

claimant are considered, such as “physical ability, age, education, and work experience.”155 Second,

an inquiry must be made into “whether jobs exist in the national economy that a person having the

claimant's qualifications could perform.”156

The Commissioner may meet the requisite burden at the fifth step by resorting to the applicable

Medical-Vocational Guidelines157 (“the grids”), also found in the Code of Federal Regulations.158 The

grids consider the claimant's age, residual functional capacity, work experience, and education and

“indicate whether the claimant can engage in any substantial gainful work existing in the national

economy.”159 Furthermore, “[a]lthough the grid results are generally dispositive, exclusive reliance on

the grids is inappropriate where the guidelines fail to describe the full extent of a claimant's physical

limitations.”160 This is also the case when “non-exertional limitations” like pain and mental or sensory

impairments might reduce the claimant's range of work.161 In these situations, the Commissioner

must obtain the testimony of a vocational expert, who generally makes an independent evaluation of

the *91 claimant's ability.162 The vocational expert may use the grids as a framework for making a

decision if she so desires.163 However, the testimony of the vocational expert is relevant only to the

extent it is offered in response to questions about hypothetical claimants that correspond to the

medical evidence of record.164 Appellate courts have noted that the hypothetical questions need not

contain every impairment alleged by the claimant, but must include the impairments supported by

substantial evidence on the record as a whole.165

Because MPS is a type of pain disorder, vocational experts must be utilized at step five in order to

evaluate the effect of the claimant's complaints of pain on the person's range of work.166 However,

hypothetical questions posed to these experts may be scrutinized by a court on appeal if the

questions omit substantial evidence of documented limitations.

An illustration of such scrutiny can be found in Tyron v. Astrue.167 In this case, the claimant was

found to be severely impaired by an ALJ as a result of “cervical strain, myofascial pain syndrome,

and left lateral epicondylitis.”168 At step three, the ALJ determined that the claimant did not have an

impairment that was either explicitly included in, or equivalent to an impairment in the listings.169 At

step four, the ALJ considered the claimant's RFC and found *92 that she could perform unskilled

light work, but “did not retain [the] sufficient capacity to perform her past relevant work as a truck

driver.”170 At step five, the ALJ heard testimony from a vocational expert.171 On the basis of the

vocational expert's responses to the ALJ's hypothetical, the ALJ found that Tyron could perform any

number of unskilled, light work jobs.172 Thus, the ALJ “concluded that [the claimant] was not

disabled.”173 On appeal, it was found that there was substantial evidence that the claimant's MPS

triggered headaches three to four times per week.174 The court ruled that the claimant's headaches

were improperly discredited by the ALJ and should have been factored into the hypothetical

questions posed to the vocational expert.175The case was then remanded so that the administration

could correctly “re-assess the severity and/or length of [claimant's] headaches because they directly

impact her ability to hold gainful employment.”176

C. Workers' Compensation

The premise of workers' compensation is to provide benefits to an employee who suffers an injury

“arising out of and in the course of employment.”177 In this regard, MPS is a compensable injury

under the appropriate circumstances. The burden of proof, however, remains on the claimant to

prove that the condition was caused by a work-related injury.178 Whether the courts accept MPS as

the cause of the employee's disability, however, depends on the facts of the case and

jurisdiction.179 Because medical opinions regarding this diagnosis can be contentious, case law

demonstrates that injured workers achieve more successful outcomes when they present multiple

opinions from medical experts that MPS is the primary cause of disability.

A case in point is Catic v. IBP, Inc.,180 where the claimant sustained cumulative injuries at his job in a

pork processing plant, including right shoulder, *93 neck, and head injuries after two hogs fell from

an overhead rail onto him.181 Two doctors diagnosed the claimant with several conditions, including

myofascial pain syndrome in the right upper extremity.182 However, there was contradictory evidence

that the claimant suffered injuries to his right shoulder while serving in the Bosnian War.183 The

Workers' Compensation Commissioner determined that the consensus of the medical opinions

indicated that the war-related injuries were distinct from the work injuries, and noted that the

claimant had been employed by the defendant for several years before developing MPS and other

conditions.184Accordingly, the Commissioner held that the claimant suffered an on-the-job injury, was

permanently disabled in his right shoulder, and suffered a 35% loss of earning capacity as a result of

MPS and other maladies in the employee's right shoulder.185

Both sides are capable of securing witnesses who will opine about whether a worker does or does

not have myofascial pain syndrome. Physicians may even reach opposite conclusions as to the

extent of the worker's impairment. This is demonstrated in Jackson County v. Wehren,186 where

conflicting medical opinions emerged regarding whether the employee's neck pain stemmed from a

work-related injury.187 One doctor believed that the neck pain was related to work-related MPS. The

employer's expert countered that the claimant suffered from a non-work related idiopathic

injury.188 Ultimately, the court sided with the injured worker and gave more credence to his doctor's

opinion, which was premised on a diagnosis of myofascial pain syndrome.189 The court felt that this

expert considered all potential contributing factors, including those suggested by the employer's

doctor, before concluding that the work-related injury caused MPS.190

Myofascial pain cases have even arisen in the context of a worker performing repetitive tasks over a

period of time.191 Some jurisdictions, however, *94 require clear and convincing evidence when such

cumulative injuries are claimed to have arisen out of employment; a burden that may be quite

difficult to meet.192 Furthermore, the credibility of injured employees and the weight of conflicting

evidence play important roles in the outcome of litigation. For example in Oden v. Gulf States Steel,

Inc., the employee was diagnosed with myofascial pain syndrome after complaining of gradually-

increasing soreness while working.193 However, there was also evidence that the employee was

malingering and had unrelated congenital spinal problems.194 The court concluded that the

employee's causation evidence was not clear and convincing, and affirmed the denial of workers'

compensation benefits by the trial court.195 A concurring opinion gave support to the trial court's

conclusion that “[m]uch of the employee's testimony was not credible, based on observation of

demeanor, comparison with records and other substantiated testimony and the like.”196

D. American Medical Association's Guides to the Evaluation of Permanent Impairment

The Guides to the Evaluation of Permanent Impairment of the American Medical Association

(“Guides”) are currently in their sixth edition and contain standardized assessment ratings for health

care providers to use when assessing an individual's permanent impairment.197Although written by

physicians, the Guides present an objective impairment rating system that is designed primarily to

help judges and others determine the appropriate benefits for an individual who has suffered a

measurable physical loss as a result of injury or illness.198

The Guides acknowledge that the impairment rating systems constitute a form of expert

testimony.199 This requires that physician users rely on “objective criteria and all available clinical

knowledge, skill, and abilities” when using the rating guidelines in order to make the evaluations

admissible in a legal *95 proceeding under Rule 702 of the Federal Rules of Evidence and relevant

case law on the issue of expert testimony.200

Use of the Guides in administrative proceedings, however, varies widely by jurisdiction. On one end

of the spectrum is a state like Alaska that adheres strictly to the Guides.201 Texas has also enacted a

statutory pronouncement in workers' compensation matters requiring that an award of impairment

income benefits be based upon the Guides.202 In contrast, a handful of states, including Illinois, have

established state-specific disability schedules to rate permanent impairment without reference to the

Guides.203 Other jurisdictions, such as California, have developed state impairment schedules based

on the Guides.204 In fact, the California Workers' Compensation Appeals Board has recently held that

the state's schedule for rating permanent disability is rebuttable under certain circumstances.205

Although there is hardly a consensus on how the Guides are to be used or even what edition of the

Guides should be consulted, a number of doctors issue reports referencing the impairment rating

systems articulated in the Guides because of its widespread acceptance.206 As noted by a Kentucky

court in Jones v. Brasch-Barry General Contractors:

*96 [T]he AMA Guides are an integral tool for assessing a claimant's disability rating and monetary

award. So to be useful for a fact-finder, a physician's opinion must be grounded in the AMA Guides

And any assessment that disregards the express terms of the AMA Guides cannot constitute

substantial evidence to support an award of workers' compensation benefits.207

Not all states adopt this rigid approach to the Guides as outlined in the above case. For instance, an

Arizona court noted that the “Guides are only a tool adopted by administrative regulation to assist in

[determining] an injured [employee's] percentage of disability.”208 When the Guides are inadequate to

reflect a claimant's loss, a fact-finder may use his or her discretion to take additional evidence and to

establish a rating separate from the Guides.209

Regardless of an individual state's approach, the Guides can be a useful tool in a compensation

setting since they contain objective pronouncements on many medical conditions.

Myofascial pain syndrome is one of a number of chronic pain disorders that is subject to a fierce

debate that extends even to the formulation of rating systems in the Guides.210 This controversy

includes various arguments over the way these disorders should be measured, if at all, by the

Guides, since doctors must incorporate certain subjective responses from patients when attempting

to make an objective assessment of a disability.211 In fact, several specific conditions are explicitly

not ratable under the Fifth Edition of the Guides, including myofascial pain syndrome.212

Myofascial pain syndrome does not warrant this type of treatment in the Sixth Edition of the Guides.

Presumably then, doctors are authorized by the Guides to rate MPS by analogy, which they are

allowed to do “only if the Guides provides no other method for rating [an] objectively identifiable

impairment.”213 For example, if myofascial pain syndrome affects the shoulder, a doctor may assign

an impairment rating using the tables found in the upper extremities section of the

Guides.214 Alternatively, if the patient's myofascial pain cannot be rated using another section in the

Guides, then the doctor may assign an impairment rating based upon pain alone.215 In that scenario,

however, doctors cannot tack the rating ascribed to a myofascial pain-related impairment *97 to

another rating from a different section of the Guides, as this practice is explicitly prohibited.216

Pain-related impairment can be measured, in part, by a five-step process referenced in both the Fifth

and Sixth Editions of the Guides.217 The pain-related impairment (PRI) protocol involves a

questionnaire filled out by the patient.218 According to both editions, the maximum impairment rating

that can be given for chronic pain is 3%.219 Notwithstanding those similarities between editions, the

most current volume of the Guides provides a Pain Disability Questionnaire (PDQ) with precise

instructions as a response to criticisms of persuasive patients potentially “gam[ing] the system”

under the earlier PRI rating protocol.220 Physicians can also reduce the impairment rating if they

suspect that the patient is malingering.221

The current PDQ is markedly different from the Fifth Edition's PRI questionnaire. First, the PDQ

reduces the number of questions from twenty-six to fifteen.222 Second, the questions in the PDQ are

primarily geared towards measuring a patient's functional status in response to pain.223 These

questions gauge work activities, personal care, traveling, lifting objects, and walking.224 Last and

perhaps most significantly, the PDQ completely changes the way a patient's personal feelings of

pain and mood are factored into the PRI calculus.225

In fact, the PDQ in the Sixth Edition of the Guides all but eliminates patient-centered assessments of

pain and mood in an attempt by the Guides to eliminate malingering.226 The PDQ includes only one

question regarding the emotional status of the patient, immediately followed by an inquiry concerning

how emotions interfere with family, social, or work activities.227 The PDQ also includes inquiries

about income decline, intake of pain medication, and frequency of doctor visits.228

Several cases have been published involving myofascial pain and the Guides. For instance, New

Hampshire changed the way the Guides were used in that jurisdiction when presented with an

appeal of a state worker's compensation *98 board decision that denied the claim of a person who

suffered from myofascial pain syndrome.229 In the matter of Rainville, the evaluating doctor admitted

to the board that he used the claimant's diagnosis of myofascial pain syndrome to determine an 18%

whole person impairment rating, even though the Fourth Edition of the Guides did not refer to

myofascial pain syndrome.230 Despite this omission from the Guides, the New Hampshire Supreme

Court recognized myofasical pain syndrome as potentially not ratable under the permanent

impairment ratings found in that edition of the Guides.231 As a result, the Rainville court held that “a

physician, exercising competent professional skill and judgment” may use other methods to estimate

permanent impairment if: (1) the physician finds that the recommended procedures in the Guides are

inapplicable to the condition; (2) these methods were not otherwise prohibited by the Guides; and (3)

the physician fully explains in his or her report, the alternative methodology in sufficient detail, as

well as the reasons for a deviation from the Guides.232

Other courts have used evidence based on the impairment rating systems found in the Guides to

rule in favor of and against worker's compensation claimants involving myofascial pain.

For instance, in a matter where a former diesel mechanic was pinned by a hoisted transmission and

suffered injuries including myofascial pain in the lumbar area, the worker's application for permanent

total disability was denied, as was a subsequent request for a writ of mandamus asking for the

compensation commission's decision to be vacated.233 Interestingly, the diesel mechanic was

examined at the request of the commission, by an occupational medicine specialist who ascribed a

combined 42% whole person impairment under the tables found in the Fifth Edition to the

Guides.234 This determination, however, could not support the issuance of a writ of mandamus

ordering an entry of permanent total disability compensation for the mechanic.235

In Richie Pharmacal v. Dunn,236 a sales executive who had previously been awarded partial worker's

compensation benefits was subsequently granted full income benefits after the case was

reopened. After being initially diagnosed with reflex sympathetic dystrophy, the claimant's condition

apparently deteriorated.237 In affirming the ALJ's decision to grant full worker's compensation

benefits, the Supreme Court of Kentucky relied on evidence that the claimant was later diagnosed

with myofascial pain syndrome that affected the *99spinae erector and rhomboid muscles.238 The

court also justified its decision based on evidence that the claimant had been assigned a combined

9% whole person impairment rating under the Fifth Edition of the AMA Guides.239

E. Myofascial Pain and Third Party Claims

1. Causation

Perhaps the most critical element in a negligence case involving myofascial pain is causation. Court

decisions have shown that claimants may experience various hurdles in establishing a casual link

between the injury and diagnosis. An important factor in this analysis is whether the jurisdiction

follows the older Frye240 standard for expert opinion testimony or the more contemporary view

advanced under the Daubert test.241

a. The Frye Standard for Expert Testimony

Marsh v. Valyou242 offers an example of the legal battle over expert testimony in a Frye jurisdiction

that mandates general acceptance in the relevant scientific community. In Marsh, the defendants

filed a motion to exclude expert testimony from a physician on chronic pain.243 The testimony

included an opinion that the plaintiff's myofascial pain syndrome and fibromyalgia were caused by

the trauma of “four separate and unrelated [car] accidents.”244 A second expert, a former medical

examiner, talked about his observations of myofascial pain syndrome in trauma victims, which the

expert observed while performing autopsies.245 The defendants asserted that this evidence should

be excluded under the Frye standard, arming themselves with an affidavit prepared by a

rheumatologist who opined:

(1) there is no scientific evidence which suggests that MPS and fibromyalgia syndrome are discrete

clinical disorders, distinct from one another, or that they are of known pathophysiology or causation;

(2) there are no criteria for even a classification diagnosis of MPS, [sic] (3) there has been no

scientific study which shows the hypothetical criteria for MPS had statistical validity; and (4) there

are no valid scientific *100 publications establishing a causal relationship between trauma and either

MPS or fibromyalgia.246

The trial court granted the defendant's motion to bar the opinion testimony linking the accidents to

the plaintiff's myofascial pain syndrome.247 The appellate court noted the trial court's finding that

“‘there is even less of a scientific consensus regarding causes of and diagnostic procedures for

MPS' than there were for fibromyalgia.”248 On appeal, the plaintiff asserted that the proposed

testimony was not subject to a Frye analysis because her expert opinion was based on the personal

experience and clinical observations of her medical experts.249 The appellate court disagreed and

noted that “the diagnostic criteria for MPS were developed by Drs. Travell and Simons, but

subsequent studies have found these criteria unreliable and invalid.”250 The Florida Supreme Court

reversed this determination and found in favor of the plaintiff.251 The court held that the Frye standard

did not apply in that jurisdiction to expert testimony linking the cause of fibromyalgia to trauma, but if

it did, such opinion testimony would satisfy the Frye test.252 Interestingly, the plaintiff “apparently

abandoned the MPS issue as it was largely ignored in her briefs.”253 As a result, the Florida Supreme

Court declined to address whether Frye applied to expert opinion testimony linking trauma to

myofascial pain syndrome.254

b. The Daubert Test for Expert Testimony

Some courts who follow the Daubert test premised upon Federal Rule of Evidence 702 have failed to

find a causal link between an alleged injury and myofascial pain syndrome. For instance, in Valente

v. Sofamor, S.N.C.,255 doctors utilized orthopedic bone screws in the course of spinal fusion surgery,

which the plaintiffs alleged were defective and caused them to suffer from myofascial pain syndrome

and other injuries.256 The plaintiffs attempted to introduce the testimony of an expert who opined that

the plaintiffs' myofascial pain syndrome was “most likely” caused by the screws, rods, and other

hardware used during the plaintiffs' spinal fusion surgeries.257 The defendants filed a motion to

exclude this testimony under Daubert as scientifically unsubstantiated. *101 258 The court noted that

it had a “‘gate keeping’ obligation” under Daubert “to first determine [whether] the proffered

testimony of an expert satisfies the reliability and relevancy foundation for admissibility[,]” and that

the testimony “‘fit’ the facts of the case.”259 This requires a determination that the reasoning or

methodology underlying the expert's testimony is scientifically valid based upon: “1) whether the

theory has been or can be tested; 2) whether the theory or technique has been subjected to

publication and peer review; 3) the theory's or technique's rate of error; and 4) whether the theory or

technique is generally accepted among the expert's peers.”260

The defense aggressively challenged the proposed expert opinion under Daubert. It argued that the

plaintiffs' expert relied upon a purely chronological relationship between the plaintiffs' surgeries and

the onset of myofascial pain syndrome and that their expert's opinions were unscientific because the

expert: (1) could not demonstrate actual causation; (2) was inexperienced with the particular

procedure; (3) “formed his opinions regarding pedicle screws solely in the context of his employment

as an expert witness”; and (4) “failed to cite medical literature to support his opinions.”261

The Valente court was ultimately persuaded by the arguments from the defense. The court held that

the plaintiffs failed to show causation between the bone screw devices and myofascial pain

syndrome because the expert's opinions were conclusory; that is, the expert did not identify a design

defect in the devices, nor did the expert address whether other factors might have caused the

plaintiff's injuries.262 In fact, the court stated that the expert's manner of forming his opinion on

causation was “anthetical to the scientific method,” and failed to meet Daubert standards.263

c. State Statutes on Expert Testimony

Some states have applicable statutes that qualify experts for the purposes of opinion testimony as to

causation. In Wooten v. Warren,264the defendant challenged a court's decision admitting the

testimony of a chiropractor, arguing that the testimony was “beyond the expertise” of a chiropractic

practitioner under the state statute.265 The chiropractor testified that he diagnosed and treated the

plaintiff for myofascial pain syndrome, which, in the chiropractor's opinion, stemmed from an

improper healing of the structures of the plaintiff's neck and back after an injury from a car

accident.266 The appellate court allowed *102 the testimony, holding that it was within the scope of

the chiropractor's expertise under the state statute applicable to chiropractic practitioners.267

2. Damages

Where there is an award for myofascial pain syndrome that is inadequate or contrary to law, a jury

verdict for trauma-induced MPS may be reversed.268 For instance, a court held that the failure of a

jury to award a full range of damages to an injured plaintiff suffering from myofascial pain syndrome

as the result of two traffic accidents was “against the manifest weight of the evidence and shock[ed]

reasonable sensibilities.”269

On the other hand, a jury verdict may be overturned as excessive if a defendant can demonstrate

that the verdict shocked the conscience of the court and/or was the result of passion, prejudice, or

corruption. As Westphal v. Wal-Mart Stores, Inc.,270 shows, challenging the validity of myofascial

pain syndrome may not lead to a favorable result for a defendant on appeal. In Westphal, the plaintiff

fell on a wet concrete floor and was diagnosed with myofascial pain syndrome.271 She was awarded

$150,000 for pain and suffering and $8,000 for economic damages including lost wages.272

On appeal, the defendant argued that the jury verdict was excessive; the plaintiff countered that the

appeal was frivolous.273 The defendant asserted that the “[plaintiff] suffered little more than a bruised

tailbone” and challenged the diagnosis of myofascial pain syndrome because it was based on

“reflections of plaintiff's subjective complaints[,]” and because the “[p]laintiff ... did not sustain any

fractures, broken bones, and did not require any surgery.”274 These arguments were rebuffed by the

court as it noted that the defendant would have been better off utilizing other arguments rather than

to criticize a widely-accepted diagnosis.275 The court referenced the lack of expert evidence to

support the defendant's argument and pointed to a compendium of medical encyclopedias and case

law supporting the validity of myofascial *103 pain syndrome.276 The court also imposed sanctions

against the defendant for attacking the plaintiff's injuries without merit and “omit[ting] pertinent

testimony or gloss [ing] over the degree of plaintiff's pain and suffering.”277

F. Disability Insurance

Myofascial pain has been the subject of several claims by policyholders to collect disability benefits

with varying degrees of success.

When disability insurance is part of an employer-provided health benefits plan, it is subject to

regulation by the Employment Retirement Income Security Act (“ERISA”)278 and federal courts are

vested with jurisdiction to review benefit determinations.279 In this context, the critical issues appear

to be the standard of review given to the denial of benefits under ERISA case law and how a

reviewing court weighs various factors in its fact-dependent analysis.280

Richey v. Hartford Insurance Company is instructive because the court notes that “ERISA disability

is not established by the existence of pain, even chronic pain, in the absence of proof that the

claimant's [discomfort] actually preludes him or her from working.”281 Richey suffered from a variety

of medical problems including cervical myofascitis.282 However, “ERISA case *104 law establishes

that [this type of] ailment[] [is] among the many medical conditions that vary in degree of severity and

often do not prevent a person from working.”283In Richey, the employee's long term disability policy

placed the burden on the employee to prove that she was incapable of working in “any

occupation.”284 The administrative record, in the eyes of the reviewing court, established that Richey

was capable of sedentary-to-light work.285 The court stated that since “individuals capable of

performing sedentary-to-light work are not totally disabled under ‘any occupation’ ERISA [benefit]

polic[ies][,]” the claimant was not entitled to long-term disability payments.286

In Pelchat v. UNUM Life Insurance Co. of America,287 an employee was diagnosed with myofascial

pain syndrome after several motor vehicle accidents, resulting in back and neck discomfort that

interfered with her ability to breathe.288 The insurer denied the employee's claim for long-term

disability, arguing that there was no objective medical evidence in the file that would prevent the

claimant from performing her sedentary job.289 In finding this decision arbitrary and capricious, the

court remarked that the insurer relied on a selective assessment of the employee's medical records

and the carrier “identified no more ‘objective’ evidence that plaintiff could have submitted, in addition

to her doctor's observations, to support her claim of disability.”290 The court concluded by noting that

the defendant failed to reasonably interpret the benefits policy because there was no requirement in

the contract that the employee present objective medical evidence in filing a claim.291

The opposite result was reached in Matney v. Hartford Life Insurance Co.292 The facts show that the

plaintiff was required to provide updated medical information under her plan after having collected

benefits for a number of years.293 Upon learning that several of the plaintiff's conditions had resolved

and that she had not seen a physician in over eighteen months, the insurer *105 concluded that the

plaintiff was not disabled and terminated her benefits.294 During the administrative appeal process,

the plaintiff presented evidence that she suffered from a variety of physical and psychological issues,

including myofascial pain syndrome.295 In fact, an examining physiatrist noted that the claimant

“invented a number of implements that she use[d] to release myofascial tightness[,]” including “a drill

on the nail beds of her fingers.”296 This unusual “myofascial release treatment” was a form of “self-

mutilating behavior,” which led the physiatrist to attribute the employee's disabling condition to

psychological factors.297 However, the claimant never advanced a claim for a psychological disability,

several other examining doctors refused to put a restriction on her ability to work, and the claimant

refused to provide the medical records from her treating specialists.298 On review, the court

concluded that no objective evidence of disability from myofascial pain syndrome was presented, so

it upheld the insurer's decision that the employee was not disabled.299

G. Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against those

with disabilities in hiring, firing, advancement, and other conditions of employment.300 To receive the

protections afforded by the Act, the employee must be “disabled” and that term is defined as “(A) a

physical or mental impairment that substantially limits one or more major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having such an

impairment.”301 In turn, what constitutes a physical or mental impairment is set forth in the Code of

Federal Regulations.302

There are only a few claims of alleged discrimination under the ADA involving myofascial pain, but

the reported decisions overwhelmingly find in favor of the employer. There are several decisions

worthy of mention that offer guidance in this area.

*106 In Thornton v. McClatchy Newspapers, Inc.,303 a newspaper reporter with myofascial pain

syndrome argued that her employer failed to reasonably accommodate her workplace limitations

under the ADA, as she could not type or write for an extended period of time.304 The plaintiff argued

that her myofascial pain syndrome was a disability because it “substantially limited [her] major life

activities of ‘working’ and ‘performing manual tasks.”’305 The court concluded that the reporter was

not substantially limited from “working,” as the defendant presented unquestioned evidence of the

plaintiff's level of education, her work as a journalism professor, and her ability to be a freelance

writer during the litigation.306 The court also determined that the plaintiff could perform manual tasks

based on her ability to shop, drive, perform housework, and dress herself; her inability to type and

write for extended periods of time was found not to outweigh the large number of manual tasks that

she could perform.307 Furthermore, because the employer did attempt to reasonably accommodate

the reporter while she was employed, the court dismissed the plaintiff's argument that the employer

regarded her as disabled for purposes of the ADA.308

In Webb v. Wynne,309 the plaintiff asserted that her employer failed to reasonably accommodate her

disability and wrongfully terminated her in violation of the Act.310 Webb was a non-government

contract employee with the United States Air Force who suffered from myofascial pain syndrome

and successfully filed for short-term Social Security Disability and workers' compensation

benefits.311 After returning to work on a modified schedule, the Air Force refused her requests to take

a leave of absence without pay, citing a lack of medical documentation.312 Webb was later

terminated for taking unapproved time off.313 Although the employee suggested that her disability

could be reasonably accommodated if she worked from home part-time, the Air Force presented

evidence that the employee's physical presence at the office on a regular, full-time basis was an

essential function of the job.314 The lower court held that the employee was not a qualified individual

with a disability because she was unable to perform the essential functions of her job even *107with

reasonable accommodations.315 The Circuit Court affirmed this decision even after considering

evidence that the Air Force previously had allowed the plaintiff to work four hours a day from

home.316

VI. Conclusion

Myofascial trigger points are pathologic changes within muscle segments that are usually caused by

trauma such as a motor vehicle accident, repetitive movements, or remaining in a static position for

a prolonged period. Identified on examination as painful knots and taut bands within the affected

muscle, trigger points are capable of producing neurological symptoms including headache,

dizziness, and sensory disturbances. As such, they can imitate more serious neurological disorders

such as intracranial mass, nerve injury, radiculopathy, and multiple sclerosis. Patients who present

with such neurological symptoms that are not explained by any other cause should have the

appropriate musculature carefully examined for trigger points. With appropriate treatment, pain and

symptoms associated with trigger points can improve over time.

In a compensation setting, relying on a claimant's feedback and the lack of a definitive test to

establish the diagnosis of myofascial pain are a recipe for disagreement and suspicion. Defense

attorneys and insurance carriers continue to be suspicious of these claims especially when these

“small circles of pain” cause persistent complaints and lost time from work over a prolonged period

of time. As a result, the legitimacy of myofascial pain continues to be a source of contention between

the plaintiff and defense bars. In fact, it may be viewed in a claims setting with even more suspicion

than a whiplash injury; a diagnosis which is much better known and understood. Cases involving

myofascial pain have been met with varying degrees of success for both plaintiffs and defendants

with the credibility of the claimant being one of the most important factors in determining the

outcome of the litigation.

*108 VII. Practice Checklist for Myofascial Pain Syndrome

• Myofascial pain is a disorder of a muscle and its covering, which can affect any skeletal muscle

and cause tenderness, local or referred pain, stiffness, and muscle weakness without atrophy.

• A collection of trigger points is called myofascial pain syndrome or MPS.

• MFTPs are localized parts of muscle that have been subjected to acute injury or micro-trauma from

repetitive stress. In some cases, MFTPs are the result of a systemic illness.

• MFTPs can be identified by a careful examination of the affected muscle groups for knots two to

five millimeters in diameter and tight bands of muscle that are painful when palpated. The diagnosis

is based on the patient's history and examination, as there are no laboratory tests or imaging studies

that can confirm the presence of MFTPs.

• Myofascial pain syndrome differs from fibromyalgia because MFTPs are localized and can be

objectively identified by examination, whereas fibromyalgia is a more centralized pain disorder with a

separate diagnostic procedure and treatment.

• MFTPs frequently produce symptoms such as headache, dizziness, and sensory problems

including tingling and numbness. Physicians need to be aware of the possibility of MFTPs when

patients present with such symptoms.

• Despite the widespread acceptance of MPS as a clinical entity, the criteria used for its diagnosis

are somewhat controversial in claims settings, since no routine biochemical, electromyographic or

diagnostic imaging procedures reliably detect the presence of MFTPs.

• In seeking Social Security Disability Insurance benefits, the claimant faces a five-step inquiry by the

Social Security Administration; MPS has been recognized by various courts as a severe disability.

• In a worker's compensation setting, the claimant carries the burden of proof in showing that her

myofascial pain syndrome stems from a work-related injury. Some jurisdictions may impose a higher

burden of proof if the MPS is claimed to have developed from repetitive work functions.

• The Guides to the Evaluation of Permanent Impairment of the American Medical Association are

often used in administrative proceedings for doctors to assess and quantify an individual's

permanent impairment. Myofascial pain syndrome is not listed in the Sixth Edition of the Guides.

However, doctors assumedly may rate MPS by analogy using other sections of the Guides.

Alternatively, doctors may rate an individual's permanent impairment up to 3% using the pain-related

impairment protocols.

*109 VIII. Research Tools

A. West Key Numbers

DAMAGES

115k127.33 Back and spinal injuries in general > In general.

SOCIAL SECURITY AND PUBLIC WELFARE

356Ak142.10 Proceedings in general > Findings and conclusions.

356Ak142.5 Proceedings in general > Hearing and administrative review.

356Ak143.65 Disability claims, evidence as to > Medical evidence of disability, sufficiency.

LABOR AND EMPLOYMENT

231Hk629(2) Disability claims > Weight and sufficiency.

B. American Jurisprudence

31A AM. JUR. 2D Expert and Opinion Evidence § 211(2010).

60A AM. JUR. 2D Pensions § 526 (2010).

70C AM. JUR. 2D Social Security and Medicare § 2021 (2010).

70C AM. JUR. 2D Social Security and Medicare § 2026 (2010).

5 AM. JUR. TRIALS § 921 (1966 & 2010 West Elec. Supp.).

C. A.L.R.

Carl T. Drechsler, Excessivness or Adequacy of Damages Awarded for Injuries to Back, Neck, or

Spine, 15 A.L.R. 4th 294 (1982).

Ann K. Wooster, Determination and Application of Correct Legal Standard in Weighing Medical

Opinion of Treating Source in Social Security Disability Cases, 149 A.L.R. Fed. 1 (1998).

Ann K. Wooster, Standard and Sufficiency of Evidence When Evaluating Severity of Claimant's Pain

in Social Security Disability Case under §3(a)(1) of Social Security Disability Reform Act of 1984, 42

U.S.C.A. § 423(d)(5)(A), 165 A.L.R. Fed. 203 (2000).

Ann K. Wooster, Effect of Administrative Law Judge's Failure to Explain Rejection of Probative

Evidence in Social Security Disability Case, 167 A.L.R. Fed. 65 (2001).

Ann K. Wooster, Judicial Review of Denial of Disability Benefits Under Employee Benefit Plan

Governed by Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. § 1132(a)(1)(B)—

Selection and Scope of Particular Standards of Review—Post-Firestone Cases, 12 A.L.R. Fed. 2d 1

(2006).

Danny R. Veilleux, Sufficiency of Evidence to Prove Future Medical Expenses as Result of Injury to

Back, Neck, or Spine, 26 A.L.R.5th 401 (1995).

*110 D. Law Reviews and Other Periodicals

Michael Finch, Law and the Problem of Pain, 74 U. CIN. L. REV. 285 (2005).

Gene Stephens Connolly, Hidden Illness, Chronic Pain: The Problems of Treatment and Recognition

of Fibromyalgia in the Medical Community, 5 DEPAUL J. HEALTH CARE L. 111 (2001).

Footnotesa1

Esquire. The author is a Professor and Chair of the Legal Studies Department at Temple University

where he teaches both law and anatomy.

aa1

Ph.D, M.D. Board certified in Neurology and Pain Medicine, Ph.D. in Anatomy. The author is

currently in private practice with the Minneapolis Clinic of Neurology and is an Adjunct Professor of

Neurology at the University of Minnesota, School of Medicine.

aaa1

Third year law student at the Beasley School of Law at Temple University.

1

Staton v. Adenuga, No. L-656-05, 2009 WL 3170456, at *1 (N.J. Super. Ct. App. Div. Oct. 5, 2009),

cert. denied, 988 A.2d 1179 (N.J. 2010).

2

Id.

3

Id. at *4.

4

Id. at *1.

5

Id. at *3-*4.

6

Id. at *2.

7

Staton v. Adenuga, No. L-656-05, 2009 WL 3170456, at *2 (N.J. Super. Ct. App. Div. Oct. 5, 2009),

cert. denied, 988 A.2d 1179 (N.J. 2010).

8

Id. at *4.

9

Jennifer E. Finley, Myofascial Pain: eMedicine Physical Medicine and Rehabilitation, WEBMD

PROFESSIONAL, http:// emedicine.medscap.com/article/313007-overview (last visited Oct. 24,

2010).

10

Mikel A. Rothenberg, Myofascial Pain Syndrome, in PREPARING ORTHOPEDIC DISABILITY

CASES, § 6.02 at 1 (2006).

11

Paul Ingraham & Tim Taylor, Save Yourself from Trigger Points & Myofascial Pain Syndrome!,

SAVEYOURSELF.CA, http:// saveyourself.ca/tutorials/trigger-points.php (last visited Oct. 24, 2010).

12

Janet Travell et al., Pain and Disability of the Shoulder and Arm: Treatment by Intramuscular

Infiltration with Procaine Hydrochloride, 120 JAMA 417, 417 (1942).

13

Edward S. Rachlin, Trigger Points, in MYOFASACIAL PAIN AND FIBROMYALGIA: TRIGGER

POINT MANAGEMENT 203, 203 (Edward S. Rachlin & Isabel S. Rachlin eds., 2d ed. 2002); Janet

Travell & David Simons, 1 TRAVELL & SIMONS' MYOFASCIAL PAIN AND DYSFUNCTION: THE

TRIGGER POINT MANUAL 5, 14 (1st ed. 1983).

14

James R. Fricton, Myofascial Pain Syndrome: Characteristics and Epidemiology, in 17 ADVANCES

IN PAIN RESEARCH AND THERAPY: MYOFASCIAL PAIN SYNDROME AND FIBROMYALGIA

107, 119 (James R. Fricton & Essam A. Awad eds., 1990).

15

Furtivo v. Astrue, No. 07-1332, 2009 WL 650735, at *3 n.2 (W.D. Pa. Mar. 12, 2009) (citing MAYO

CLINIC, www.mayoclinic.com/health/myofascial-pain-syndrome/DS01042 (last visited Oct. 24,

2010)).

16

See Travell et al., supra note 12, at 417-22; Rachlin, supra note 13, at 204-05; Travell & Simons,

supra note 13, at 6.

17

See Travell et al., supra note 12, at 417-22; Rachlin, supra note 13, at 203-16; Travell & Simons,

supra note 13, at 25, 29.

18

Ingraham & Taylor, supra note 11.

19

Id.

20

See Travell et al., supra note 12, at 417-22; Rachlin, supra note 13, at 205; Travell & Simons, supra

note 13, at 22.

21

Elizabeth A. Tough et al., Variability of Criteria Used to Diagnose Myofascial Trigger Point Pain

Syndrome—Evidence from a Review of the Literature, 23 CLINICAL J. PAIN 278, 278 (2007).

22

Thomas Behr, Problems with Myofascial Pain Syndrome and Fibromyalgia Syndrome, 46

NEUROLOGY 593, 593-94 (1996); Robert M. Bennett, Myofascial Pain Syndromes and the

Fibromyalgia Syndrome: A Comparative Analysis, in 17 ADVANCES IN PAIN RESEARCH AND

THERAPY: MYOFASCIAL PAIN AND FIBROMYALGIA 43, 46 (1990).

23

See Behr, supra note 22, at 593-97; Bennet, supra note 22, at 43-65.

24

In Russell v. UNUM Life Insurance Co. of America, 40 F. Supp. 2d 747, 751 (D.S.C. 1999), the court

made the following comment: “[f]ibromyalgia is a type of muscular or soft tissue rheumatism that

affects primarily muscles and their attachment to bones, but which is also commonly accompanied

by fatigue, sleep disturbances, lack of concentration, changes in mood or thinking, anxiety, and

depression.” (quoting Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125

F.3d 794, 796 (9th Cir. 1997)). It further stated that, “‘fibromyalgia can be severely disabling and can

only be diagnosed by examination of the patient.’ Therefore, courts are aware that fibromyalgia is a

diagnosable condition. More importantly, the medical community also recognizes this fact.”

(quoting Godfrey v. BellSouth Tele-communications, Inc., 89 F.3d 755, 759-60 (11th Cir. 1996)).

25

These two medical problems have caused confusion in the courts. For example, in Beauclair v.

Barnhart, 453 F.Supp.2d. 1259, 1276 (D. Kan. 2006), the court noted that “[i]n the Merck Manual,

‘Myofascial Pain Syndrome’ is classified under ‘Fibromyalgia’ as one of ‘[a] group of common

nonarticular disorders characterized by achy pain, tenderness, and stiffness of muscles, areas of

tendon insertions, and adjacent soft tissue structures.”’ (quoting THE MERCK MANUAL OF

DIAGNOSIS AND THERAPY 481 (Mark H. Beers & Robert Berkow eds., 17th ed. 1999)). Thus, the

court noted that “the two impairments are closely related.” Id. In Beauclair, the Administrative Law

Judge (“ALJ”) used the terms trigger points and tender points interchangeably. Id. In reality, tender

points relate to fibromyalgia and trigger points relate to myofascial pain syndrome. The court, in

review of the ALJ, noted that mistaking the two disorders and confusing the symptoms is a common

phenomena. Id. (citing Johnson v. Metro. Life Ins. Co., 437 F.3d 809, 814 (8th Cir. 2006); Moore v.

Barnhart, 114 Fed. Appx. 983, 991 (10th Cir. 2004); Bartyzel v. Comm'r of Soc. Sec., 74 Fed. Appx.

515, 526 (6th Cir. 2003) (discussing both “focal tender points” and “focal trigger points”); Kelly v.

Callahan, 133 F.3d 583, 586-87 (8th Cir. 1998) (“one physician cited-using both terms at different

times in progress notes”); Gister v. Massanari, 189 F. Supp. 2d 930, 934-35 (E.D. Wis. 2001); Ward

v. Apfel, 65 F. Supp. 2d 1208, 1216 n.1 (D. Kan. 1999) (“finding it unnecessary to decide whether

the difference is merely semantic”)).

26

Muhammad B. Yunus & Fatma Inanici, Fibromyalgia Syndrome: Clinical Features, Diagnosis, and

Biopathophysiologic Mechanisms, in Myofasacial Pain and Fibromyalgia: Trigger Point Management

2-4 (EDWARD S. RACHLIN & ISABEL S. RACHLIN EDS., 2D ED. 2002).

27

Yunus & Inanici, supra note 27; Edwin D. Dunteman, Fibromyalgia and Myofascial Pain Syndromes,

PRACTICAL PAIN MANAGEMENT, July/Aug. 2004, at 26.

28

See Yunus & Inanici, supra note 27 at 3-24; Dunteman, supra note 27, at 27, 29.

29

Rachlin, supra note 13.

30

Id.; Travell & Simons, supra note 13, at 30.

31

David A. Fishbain, et al., DSM-III Diagnoses of Patients with Myofascial Pain Syndrome (Fibrositis),

70 ARCHIVES PHYSICAL MED. & REHABILITATION 433, 434 (1989); James R. Fricton, et al.,

Myofascial Pain Syndrome of the Head and Neck: A Review of Clinical Characteristics of 164

Patients, 60 ORAL SURGERY ORAL MED. ORAL PATHOLOGY 615, 616 (1985).

32

See Travell & Simons, supra note 13, at 5, 14.

33

See id.

34

See Rachlin, supra note 13, at 203-16.

35

Jay P. Shah, New Frontiers in the Pathophysiology of Myofascial Pain, 19 PAIN PRACTITIONER

40, 40-41 (2009).

36

A. Binder, The Diagnosis and Treatment of Nonspecific Neck Pain and Whiplash, 43 EUROPA

MEDICOPHYS 79, 82 (2007); Monica Drottning, Cervicogenic Headache After Whiplash Injury, 7

CURRENT HEADACHE REPORTS 384, 384 (2003); Jeffrey Nelson et al., Cervical Myofascial

Trigger Points in Headache Disorders, PRACTICAL PAIN MANAGEMENT, Sept. 2008, 59, 59;

Loretta Mueller, Cervicogenic Headache: A Diagnostic and Therapeutic Dilemma, 14 HEADACHE &

PAIN 29, 29 (2003); Dawn A. Marcus, Headache and Musculoskeletal Abnormalities: A Guide to

Treatment Approaches, 18 HEADACHE & PAIN 58, 59-60 (2007).

37

P. Tfelt-Hansen, Prevalence and Significance of Muscle Tenderness During Common Migraine

Attacks, 21 HEADACHE 49-54 (1981); see also Binder, supra note 36; Drottning, supra note 36 at

384-85; Nelson et al., supra note 36; Mueller, supra note 36, at 31, 33; Marcus, supra note 36 at 58-

65.

38

Way Yin & Nikolai Bogduk, The Nature of Neck Pain in a Private Pain Clinic in the United States, 9

PAIN MED. 196, 197 (2008).

39

Thomas J. Romano, Trauma and Chronic Soft Tissue Pain, 13 AM. J. PREVENTIVE MED. 98-105

(2003); see also, Rachlin, supra note 13, at 203-16.

40

Maria Adele Giamberardino et al., Contribution of Myofascial Trigger Points to Migraine Symptoms,

8 J. PAIN 869, 869-78 (2007).

41

Nelson et al., supra note 36.

42

Mueller, supra note 36, at 29-37.

43

Travell & Simons, supra note 13, at 18.

44

Giamberardino et al., supra note 40, at 869-78; Travell & Simons, supra note 13, at 335.

45

Yin & Bogduk, supra note 38, at 196-203.

46

Nelson et al., supra note 36, at 60; Travell & Simons, supra note 13, at 335.

47

Giamberardino et al., supra note 40, at 876.

48

Fricton, supra note 14, at 119.

49

Id.; Travell & Simons, supra note 13, at 310.

50

Id.

51

A proprioceptive is “the ability to sense stimuli arising within the body. Definition of Proprioceptive,

MEDICINENET.COM, http:// www.medterms.com/script/main/art.asp?articlekey=6393 (last visited

Oct. 24, 2010).

52

Travell & Simons, supra note 13, at 21; Isabelle Paulus & Simon Brumagne, Altered Interpretation of

Neck Proprioceptive Signals in Persons with Subclinical Recurrent Neck Pain, 40 J. REHABIL. MED.

426, 427 (2008); Michael G. Good, Senile Vertigo Caused by Curable Cervical Myopathy, 5 J. AM.

GERIATR. SOC. 662-67 (1957).

53

Travell & Simons, supra note 13, at 21; Paulus & Brumagne, supra note 52, at 431; Good, supra

note 52.

54

Travell & Simons, supra note 13, at 310.

55

Id. at 309.

56

Fricton, supra note 14, at 119.

57

A dermatome is a patch of skin whose sensory nerves come from a single spinal nerve root. The

Merck Manuals: Online Medical Library, MERCK,

http://www.merck.com/mmhe/sec06/ch093/ch093a.html (last visited Oct. 24, 2010).

58

A myotome is a “group of muscles supplied by a pair of intercostal nerves.” Keith Moore and Arthur

Dalley, CLINICALLY ORIENTED ANATOMY 85 (Lippincott, Wilkens & Wilkens eds., 4th ed. 1998).

59

A sclerotome is an “area of a bone innervated from a single spinal segment.” Sclerotome,

DORLANDS MEDICAL DICTIONARY, http://

www.mercksource.com/pp/us/cns/cns_hl_dorlands_split.jsp?pg=/

ppdocs/us/common/dorlands/dorland/seven/000095242.htm (last visited Oct. 24, 2010).

60

Peter T. Dorsher, Myofascial Referred-Pain Data Provide Physiologic Evidence of Acupuncture

Meridians, 10 J. PAIN 723, 729 (2009); see also, Travell & Simons, supra note 13, at 6.

61

Dorsher, supra note 60.

62

Travell & Simons, supra note 13, at 43.

63

Paulus & Brumagne, supra note 52, at 426-32.

64

Edwin D. Dunteman, Myofascial Elements of Low Back Pain, PRACTICAL PAIN MANAGEMENT,

Mar. 2005, at 29-34; see generally Janet Travell & David Simons, 2 TRAVELL & SIMONS'

MYOFASCIAL PAIN AND DYSFUNCTION: THE TRIGGER POINT MANUAL: THE LOWER

EXTREMITIES (1992).

65

Radiculitis is a nonspecific term utilized to generally to describe numbness or pain in the distribution

of a single spinal nerve root. However, it lacks objective signs of neurologic dysfunction. Radiculitis

is believed to result from the inflammation of nerve roots located within the lowest portion of nerves

contained in the spine. Neuralgia, Neuritis, and Radiculitis, MD GUIDELINES,

http://www.mdguidelines.com/neuralgia-neuritis-and-radiculitis (last visited Oct. 24, 2010).

66

Giamberardino et al., supra note 40.

67

Periaqueductal gray refers to “[a] core of gray matter nervous tissue surrounding the cerebral

aqueduct in the midbrain It plays a role in the modulation of pain and in defensive [behaviors].”

Periaqueductal gray, ANSWERS.COM, http://www.answers.com/t-opic/periaqueductal-gray (last

visited Oct. 16, 2010).

68

See generally David M. Niddam et al., Central Modulation of Pain Evoked from Myofascial Trigger

Point, 23 CLIN. J. PAIN 440 (2007).

69

Rachlin, supra note 13, at 211-12.

70

Travell & Simons, supra note 13, at 5-44.

71

Beth Paris, The Practical Application of Trigger Point Work in Physical Therapy, in MYOFASCIAL

PAIN & FIBROMYALGIA 525-43 (Edward S. Rachlin & Isabel S. Rachlin eds., 2d ed. 2002).

72

Joseph A. Audette & Russell A. Blinder, Acupuncture in the Management of Myofascial Pain and

Headache, 7 CURRENT HEADACHE REPORTS 395, 399 (2003); Hans Kraus, Muscle Deficiency,

in MYOFASCIAL PAIN & FIBROMYALGIA 437-65 (Edward S. Rachlin & Isabel S. Rachlin eds., 2d

ed. 2002); Travell & Simons, supra note 13, at 45-102.

73

Anthony H. Wheeler, Myofascial Pain Disorders: Theory to Therapy, 64 DRUGS 45, 45 (2004).

74

According to Natalio Schwartz, M.D., J.D., a pain specialist and anesthesiologist in Philadelphia, in a

letter to Samuel D.Hodge, Jr., the practice guidelines in the area of pain management address

treatments with botulinum toxin for the treatment of myofascial pain and trigger points. (Aug. 16,

2010) (on file with author, Samuel D. Hodge, Jr.). Based upon the April 2010 practice guidelines

issued by the American Society of Anesthesiology in Anesthesiology in Practice Guidelines for

Chronic Pain Management: An Updated Report by the American Society of Anesthesiologists Task

Force on Chronic Pain Management and the American Society of Regional Anesthesia and Pain

Medicine, 112 ANESTHESIOLOGY 810, 810-33, “botulinum toxin should not be used in the routine

care of patients with myofascial pain.” A review of the current literature by Dr. Schwartz reveals that

Botulinum Toxin is indicated for certain spastic conditions (e.g., cerebral palsy, stroke, head trauma,

spinal cord injuries, and multiple sclerosis) while all other uses in the treatment of other types of

spasm, related to smooth or skeletal muscle types, is considered investigational and unsupported by

current literature.

75

Wheeler, supra note 73, at 45-62; N. Ann Scott et al., Trigger Point Injections for Chronic Non-

Malignant Pain: A Systematic Review, 10 PAIN MED. 54, 54-69 (2009).

76

Edward S. Rachlin, History and Physical Examination for Myofascial Pain Syndrome, in

MYOFASCIAL PAIN & FIBROMYALGIA 217-30 (Edward S. Rachlin & Isabel S. Rachlin eds., 2d ed.

2002).

77

Travell & Simons, supra note 13, at 45-102.

78

Elsayed Abdel-Moty et al., The Role of Ergonomics in the Prevention and Management of

Myofascial Pain, in MYOFASCIAL PAIN & FIBROMYALGIA 561-87 (Edward S. Rachlin & Isabel S.

Rachlin eds., 2d ed. 2002).

79

Eduardo Vazquez Delgado et al., Myofascial Pain Syndrome Associated with Trigger Points: A

Literature Review. (I): Epidemiology, Clinical Treatment and Etiopathogeny, 14 MEDICINA ORAL

PATOLOGIA ORAL CIRUGIA BUCAL 494, 496 (2009).

80

Luke Rickards, Diagnosing Myofascial Trigger Points: A Critical Review of the Evidence and Clinical

Implications, LUKE RICKARD'S BLOG, http:// www.lukerickardsosteopath.net/diagnosing-

myofascial-trigger-points-a-critical-review-of-the-evidence-and-clinical-implications/ (last visited Oct.

24, 2010).

81

Guarino v. Comm'r of Soc. Sec., No. 7:07-cv-1252 (GLS/VEB), slip op. at 3 n.5 (N.D.N.Y. Jan. 14,

2010) (quoting Myofascial Pain Syndrome, MAYO CLINIC,

http://www.mayoclinic.com/health/myofascial-pain-syndrome/DS01042 (last visited Oct. 25, 2010)).

82

Jackson County v. Wehren, 63 P.3d 1233, 1235 (Or. Ct. App. 2003).

83

No. 92-79V, 1995 WL 366013 at *6 (Fed. Cl. June 5, 1995).

84

Id.

85

Jaime Wilensky, Myofascial Soft Tissue Pain, in EVALUATION AND TREATMENT OF CHRONIC

PAIN 200 (Gerald M. Aronoff ed., 1985).

86

Pain Management: Myofascial Pain Syndrome (Muscle Pain), WEBMD,

http://www.webmd.com/pain-management/guide/myofascial-pain-syndrome (last visited Oct. 25,

2010).

87

Pelchat v. UNUM Life Ins. Co. of America, No. 3:02CV7282, 2003 WL 21105075 at *1 n.1 (N.D.

Ohio June 16, 2003) (citing THE MERCK MANUAL OF MEDICAL INFORMATION 250 (Robert

Berkow et al. eds., Home ed. 1995)).

88

Barnhart v. Thomas, 540 U.S. 20, 21 (2003).

89

20 C.F.R. § 404.1508 (1991).

90

Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing 42 U.S.C. § 423(d)(1)

(A) (emphasis omitted)).

91

42 U.S.C. § 423(d)(2)(A) (2004).

92

20 C.F.R. §§ 404.1508, 416.908 (1991).

93

Id.

94

See 20 C.F.R. § 404.1520 (2003); 20 C.F.R. § 416.920 (2003); Bowen v. Yuckert, 482 U.S. 137,

140-42 (1987).

95

Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006) (citing 20 C.F.R. §§ 404.1520(a)

(4), 416.920(a)(4) (2003)).

96

20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i) (2003).

97

Id.

98

20 C.F.R §§ 404.1572(c), 416.972(c) (1980).

99

Vogrin v. Barnhart, No. Civ.A. 01-2545-KHV, 2002 WL 31156842 at *4 (D. Kan. Aug. 20, 2002).

100

Id. at *9 (D. Kan. Aug. 20, 2002).

101

Id. at *4, 6.

102

20 C.F.R. §§ 404.1520(c), 416.920(c) (2003).

103

Id.

104

20 CFR § 404.1521 (1985); 20 C.F.R. § 416.921 (1991).

105

Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen v. Chater, 75 F.3d 429,

430-31 (8th Cir. 1996)).

106

20 C.F.R. §§ 404.1520(c), 416.920(c).

107

Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (citing Yuckert, 482 U.S. at 158 (O'Connor, J.,

concurring)).

108

See, e.g., Baker v. Astrue, No. 4:05CV2253 FRB, slip op. at 17 n.29 (E.D. Mo. Mar. 2,

2009); Gonzalez v. Astrue, 537 F. Supp. 2d 644, 665 n.10 (D. Del. 2008); Stroh v. Astrue, Civ. No.

08-1148-JE, slip op. at 5 (D. Or. Feb. 17, 2010) (noting that “the ALJ found that plaintiff's ‘borderline

fibromyalgia or myofascial pain syndrome’ was a ‘severe impairment’ within the meaning of the

relevant regulations).

109

No. 01-CV-1829 (ERK), 2002 WL 393078, at *15 (E.D.N.Y. Mar. 14, 2002) (citing Lisa v. Secretary

of Health & Human Servs., 940 F.2d 40, 44-45 (2d Cir. 1991)).

110

No. 4:08cv1945ERW TCM, 2010 U.S. Dist. LEXIS 22478, at *68 (E.D. Mo. Feb. 3, 2010).

111

Saunders v. Astrue, Civ. Action No. 1:07cv800-CSC, 2008 WL 2358735, at *5 (M.D. Ala. June 6,

2008).

112

Id at *6.

113

McRoberts v. Bowen, 841 F.2d 1077, 1081 (11th Cir. 1988) (quoting Johns v. Bowen, 821 F.2d 551,

557 (11th Cir.1987)).

114

Civ. Action No. 7:07-cv-1252 (GLS/VEB), slip op. (N.D.N.Y. Jan. 14 , 2010).

115

Id. at 5.

116

Id. (quoting Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)).

117

20 C.F.R. Pt. 404, Subpt. P, App. 1 (2010).

118

20 C.F.R. §§ 404.1520(d), 416.920(d) (2003).

119

Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).

120

Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994).

121

See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.01 (2010).

122

No. 04 Civ.9554 KMW AJP, 2005 WL 1693835, at *1 (S.D.N.Y. July 21, 2005).

123

Id. at *14.

124

Id.

125

Id. (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02).

126

Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 512 n.3 (7th Cir. 1999).

127

Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1) (2003)).

128

20 C.F.R. §§ 404.1520(f), 416.920(f) (2003).

129

No. 00-238-B, 2002 WL 453252, at *1 (D. Me. Mar. 26, 2002).

130

Id at *3 n.4.

131

Id. at *3.

132

Id. at *2-3.

133

Id. at *2.

134

Id. at *3.

135

No. 00-238-B, 2002 WL 453252, at *3 (D. Me. Mar. 26, 2002).

136

602 F.3d 1136 (10th Cir. 2010).

137

Id. at 1142.

138

Id. at 1145.

139

Id. at 1142-43.

140

Id. at 1143; See also, Sims v. Barnhart, 442 F.3d 536, 537 (7th Cir. 2006) (“The term ‘somatoform

disorder’ refers to what used to be called ‘psychosomatic’ illness: one has physical symptoms, but

there is not physical cause.”); 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.07 (The listings characterize

somatoform disorder as “[p]hysical symptoms for which there are no demonstrable organic findings

or known physiological mechanisms.”).

141

Id. at 1143-44.

142

Wilson, 602 F.3d at 1146.

143

Id. at 1146.

144

288 F.Supp 2d 1246 (N.D. Ala. 2003).

145

Id. at 1250.

146

Id.

147

Id. at 1251.

148

Id. at 1250.

149

Bennett, 288 F.Supp 2d at 1251 (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)).

150

Id.

151

Id. at 1256.

152

See Heckler v. Campbell, 461 U.S. 458, 460 (1983) (citing 20 C.F.R. § 404.1520(f)(1)); see also 20

C.F.R. § 416.920(f)(2003).

153

Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 512 n.3 (7th Cir. 1999) (citing Stein v. Sullivan,

892 F.2d 43, 44 n. 1 (7th Cir. 1990)).

154

Heckler, 461 U.S. at 460.

155

Id. at 460-61 (citing 42 U. S. C. § 423(d)(2)(A); 20 C.F. R. § 404.1520(f)). In a subsequent footnote

in Heckler, the Supreme Court explained that a regulation-guided inquiry must be made into each of

these factors, as well as an “individual assessment of each claimant's abilities and limitations.” Id. at

461 n.1 (citing 20 C.F.R. §§ 404.1545-65). For example, in determining a person's physical ability,

the relevant authority will consider the extent to which the claimant's capacity for performing such

tasks as lifting objects or standing for long periods of time has been impaired by the disability.

See 20 C.F.R. § 404.1545(b) (2010).

156

Heckler, 461 U.S. at 461 (citing 20 C.F.R. §§ 404.1520(f)).

157

20 C.F.R. Pt. 404, Subpt. P, App. 2 (2008).

158

See, e.g., Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999) (quoting Bapp v. Bowen, 82 F.2d 601,

604 (2d Cir. 1986)).

159

See id.; see also, Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996).

160

Rosa, 168 F.3d at 78.

161

A “non-exertional limitation” is a restriction resulting from a claimant's impairments and related

symptoms, which affects only the plaintiff's ability to meet the non-strength demands of jobs. 20

C.F.R. § 416.969a (2007); Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (citing Luna v.

Shalala, 22 F.3d 687, 691 (7th Cir. 1994)).

162

Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994) (citing Warmoth v. Bowen, 798 F.2d 1109, 1110

(7th Cir. 1986); See, e.g., Alexander v. Barnhart, 287 F. Supp. 2d 944, 949-50 (E.D. Wis.

2003) (describing the testimony of a vocational expert who analyzed the claimant's age, past work

experience, skills, and education; considered the claimant's particular diagnosis of fibromyalgia; and

stated the number of jobs that could accommodate the claimant's limitations in the region where she

currently lived).

163

See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e)(2) (2008).

164

Arocho v. Sec'y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982); See also McKinney v.

Apfel, 228 F.3d 860, 865 (8th Cir. 2000) (“[T]estimony from a vocational expert is substantial

evidence [on the record as a whole] only when the testimony is based on a correctly phrased

hypothetical question that captures the concrete consequences of a claimant's deficiencies.”)

(quoting Taylor v. Chater, 118 F.3d 1274, 1278 (8th Cir. 1997)).

165

See Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005) (“A hypothetical question posed to the

vocational expert is sufficient if it sets forth impairments supported by substantial evidence in the

record and accepted as true.”) (quoting Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir.

2001) (citations omitted); See also Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) (holding that

an ALJ need not include additional complaints in the hypothetical not supported by substantial

evidence).

166

See e.g. Allen v. Astrue, No. 6:05-CV-0101 (NAM/GJD), 2008 WL 660510, at *10 (N.D.N.Y. Mar. 10,

2008) (stating that the exclusive use of the grids may be precluded because a claimant with

myofascial pain syndrome had physical and non-exertional impairments, which required that the

Commissioner introduce testimony of a vocational expert that jobs existed in the economy that the

claimant could perform).

167

No. 4:06CV01320 HDY, 2008 U.S. Dist. LEXIS 19844, at *1 (E.D. Ark. Mar. 13, 2008).

168

Id. at *4. Lateral epicondylitis, is the more formal term for “tennis elbow,” which involves

“inflammation and pain over the outer side of the elbow.” See Granfield v. CSX Transp., Inc., 597

F.3d 474, 477 n.1 (1st Cir. 2010) (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY

UNABRIDGED 2356 (2002).

169

Tyron, 2008 U.S. Dist. LEXIS 19844, at *4-5.

170

Id. at *5.

171

Id.

172

Id. at *5-6 & n.2.

173

Id. at *6.

174

Tyron, 2008 U.S. Dist. LEXIS 19844, at *9-10.

175

Id.

176

Id. at *10.

177

See, e.g., LA. REV. STAT. ANN. § 23:1031(A) (2010); TENN. CODE ANN. § 50-6-103(a) (2010).

178

See Vollmer v. Wal-Mart Store, Inc. 729 N.W.2d 377, 382 (S.D. 2007) (“To prevail on a workers'

compensation claim, a claimant must establish ‘a causal connection between [her] injury and [her]

employment . . .”’) (citation omitted).

179

See Insurance Regulation by State, ADVANCED INSURANCE MANAGEMENT, LLC,

http://www.cutcomp.com/depts.htm (last visited July 16, 2010) (explaining the state-by-state

breakdown of the regulatory agencies involved with workers' compensation).

180

Nos. 5013746/5013747, 2006 WL 2528606, at *1 (Iowa Workers' Comp. Comm'n. Aug. 28, 2006).

181

Id. at *2.

182

Id. at *4-5.

183

Id. at *2.

184

Id. at *7.

185

Catic v. IBP, Inc., 2006 WL 2528606, at *10-13.

186

63 P.3d 1233 (Or. Ct. App. 2003).

187

Id. at 1235.

188

Id.

189

Id. at 1238.

190

Id.

191

Several cases reported from the Iowa Workers' Compensation Commission have involved workers

at meat-packing plants who developed myofascial pain syndrome after performing repetitive tasks

over a period of time. See, e.g., Catic v. IBP, Inc., 2006 WL 2528606, at *2, *5 (claimant diagnosed

with myofascial pain syndrome after working several jobs including repetitively using a straight knife

to remove meat from hog cheeks, raising hogs onto a rail using a pulley-chain device, and shaving

hogs); Dugan v. Tyson, No. 5020849, 2009 WL 763829, at *2-4 (Iowa Workers' Comp. Comm'n.

Mar. 19, 2009)(claimant diagnosed with myofascial pain syndrome from performing the job of

repetitively bagging loins); Suljevic v. Tyson Fresh Meats, Inc., No. 5017829, 2008 WL 867321, at

*2-3 (Iowa Worker's Comp. Comm'n. Mar. 27, 2008) (claimant diagnosed with myofascial pain

syndrome from repetitively skinning the membranes from pig bellies); Lopez v. IBP, Inc./Tyson, Inc.,

No. 5018075, 2008 WL 1712326, at *2, 4 (Iowa Workers' Comp. Comm'n. Apr. 8, 2008) (claimant

diagnosed with myofascial pain syndrome from performing the job of repeatedly cutting the cheeks

out of hog heads with an electric knife).

192

See Oden v. Gulf States Steel, Inc., 797 So. 2d 1093, 1094 (Ala. Civ. App. 2001) (Murdock, J.,

concurring) (citing ALA. CODE § 25-5-81(c) (1975)).

193

Id. at 1097 (Yates, J., dissenting).

194

Id. at 1094.

195

Id.

196

Id. at 1094-95 (Murdock, J. concurring).

197

See AM. MEDIC. ASS'N, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT 20

(Robert D. Rondinelli et al., eds., 6th ed. 2008) [hereinafter GUIDES, 6th ed.]; See also Getson v. W.

M. Bancorp, 694 A.2d 961, 963 n.4 (Md. 1997).

198

GUIDES, 6th ed., supra note 197.

199

Id. at 27.

200

Id. at 28-29. The trinity of cases that formed the basis of Rule 702 include Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997);

and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

201

ALASKA STAT. § 23.30.190(b) (2010).

202

TEX. LAB. CODE ANN. § 408.124 (West 2005). The Texas courts have held that the Guides is the

only permissible source for determining impairment ratings within the workers' compensation

system. Fireman's Fund Ins. Co. v. Weeks, 259 S.W.3d 335, 340 (Tex. Ct. App. 2008).

203

820 ILL. COMP. STAT. 305/1-30 (2010).

204

Schedule for Rating Permanent Disabilities Under The Provisions of the Labor Code of the State of

California, STATE OF CALIFORNIA LABOR AND WORKFORCE DEVELOPMENT AGENCY,

DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF WORKERS' COMPENSATION

(2005), available at http://www.dir.ca.gov/dwc/pdr.pdf.

205

Almarez v. Envtl. Recovery Servs., 3 Cal. WCC 97 (Cal. W.C.A.B. 2009), en banc, rev'd and

modified after reconsideration3 Cal. WCC 874 (Cal. W.C.A.B. 2009), en banc [hereinafter

“Almarez/Guzman II”]; See also Ogilvie v. City and Cnty.of S.F., 3 Cal. WCC 918 (Cal. W.C.A.B.

2009), en banc. In these cases, the California Workers' Compensation Board remarked that the

burden of rebutting a permanent disability rating under the state schedule lies with the party

disputing that rating. A scheduled disability rating can be rebutted by successfully challenging a

component element of the disability rating with substantial evidence. In Almarez/Guzman II, the

challenged element was the injured employee's whole person impairment based on the AMA

Guides. The California board determined that the evaluating physician may use any chapter, table,

or method in the AMA Guides that most accurately reflects the injured employee's impairment, but

held that is not permissible to go outside the four corners of the AMA Guides to determine whole

person impairment.

206

See Impairment Use of the AMA Guides, IMPAIRMENT RESOURCES, LLC, http://www.imp

airment.com/Use_of_AMA_Guides.htm (last visited Oct. 25, 2010) (providing a table for how the

AMA Guides are used, if at all, in each state); see also SAMUEL D. HODGE, JR., ANATOMY FOR

LITIGATORS 98 (2006).

207

189 S.W.3d 149, 154 (Ky. Ct. App., 2006).

208

Slover Masonry, Inc., v. Industrial Comm'n of Ariz., 761 P.2d 1035, 1040 (Ariz. 1988).

209

Id.

210

GUIDES, 6th ed., supra note 197, at 31-32, 35-37.

211

AM. MEDIC. ASS'N, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT 569 (Linda

Cocchiarella & Gunnar B.J. Andersson eds., 5th ed. 2001) [hereinafter GUIDES, 5th ed.]

212

Id.

213

GUIDES, 6th ed., supra note 197, at 23.

214

See id. at 40.

215

Id. at 43-44, Apps. 3-1, 3-2.

216

Id. at 39.

217

GUIDES, 5th ed., supra note 211, at 574-84; GUIDES, 6th ed., supra note 197, at 40, 43-44.

218

GUIDES, 6th. ed., supra note 197.

219

Id. at 45.

220

Id. at 37, 39-50.

221

Id. at 39-40.

222

Compare GUIDES, 5th ed., supra note 211, at 576-577, Table 18-4, with GUIDES, 6th ed., supra

note 197, at 43-44, Apps. 3-1, 3-2.

223

GUIDES, 6th. ed., supra note 197.

224

Id.

225

Id.

226

Compare GUIDES, 5th ed., supra note 211, at 576-577, Table 18-4, with GUIDES, 6th ed., supra

note 204, at 43-44, Apps. 3-1, 3-2.

227

GUIDES, 6th ed., supra note 197, at 43, App. 3-1.

228

Id.

229

In re Rainville, 732 A.2d 406 (N.H. 1999).

230

Id. at 412.

231

Id.

232

Id. at 413.

233

State ex rel. Pitstick v. Indus. Comm'n of Ohio, No. 06AP-857, 2007 WL 1847690, at * 1, 8 (Ohio Ct.

App. Feb. 23, 2007).

234

Id. at *3.

235

Id. at *8.

236

No. 2004-SC-0288-WC, 2005 WL 635045, at *1-4 (Ky. Mar. 17, 2005).

237

Id. at *2.

238

Id. at *2, 5.

239

Id. at *2.

240

See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

241

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993); see also Kumho Tire

Co., v. Carmichael, 526 U.S. 137 (1999); FED. R. EVID. 702.

242

917 So. 2d 313, 319 (Fla. Dist. Ct. App. 2005), overruled by 977 So. 2d 543 (Fla. 2007).

243

917 So. 2d at 315, 317.

244

Id. at 315, 318.

245

Id. at 319.

246

Id. at 318.

247

Id.

248

Marsh, 917 So. 2d at 318.

249

Id. at 319.

250

Id. at 327.

251

Marsh v. Valyou, 977 So. 2d 543, 551 (Fla. 2007).

252

Id. at 545.

253

Id. at 546 n.1.

254

Id.

255

48 F. Supp. 2d 862 (E.D. Wis. 1999).

256

Id. at 863-66.

257

Id. at 866-67.

258

Id. At 863, 868.

259

Id. at 868.

260

Id. (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993)).

261

Valente, 48 F. Supp. 2d at 868.

262

Id at 869.

263

Id. at 870.

264

451 S.E.2d 342 (N.C. Ct. App. 1994).

265

Id. at 345.

266

Id. at 346.

267

Id. at 345 (citing N.C. GEN. STAT. § 90-157.2 (1993)). Although Wooten was decided after Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the principles of Daubert (and Frye) do

not apply in North Carolina. SeeHowerton v. Arai Helmet, Ltd., 597 S.E.2d 674 (N.C. 2004). North

Carolina maintains its own separate three part test when considering whether to admit expert

testimony under the state rules of evidence. See State v. Morgan, 604 S.E.2d 886, 903-04 (N.C.

2004), cert. denied, 546 U.S. 830 (2005).

268

See, e,g., Coy v. Neiter, No. 17-95-16, 1996 WL 141706, at *1 (Ohio. Ct. App. Mar. 19, 1996).

269

Sotos v. Edel, No. 02AP-1273, 2003 Ohio App. LEXIS 5773, at ¶¶ 9, 26, 95 (Ohio. Ct. App. 2003).

270

68 Cal. App. 4th 1071, 81 Cal. Rptr. 2d 46 (Cal. Ct. App. 1998).

271

Id. at 1074, 1076.

272

Id. at 1077.

273

Id. at 1078, 1080.

274

Id. at 1079.

275

Id.

276

Westphal, 68 Cal. App. 4th at 1079-1080 (“When a treating physician has diagnosed a patient as

suffering from [myofascial pain] syndrome, the mere lack of objective medical evidence to

substantiate the patient's symptoms or functional limitations is not a ground to reject a finding of

disability.”) (citing Cline v. Sullivan, 939 F.2d 560, 566 (8th Cir. 1991); Opgennorth v. Shalala, 897 F.

Supp. 1199, 1203-04 (E.D. Wis. 1995)).

277

Id. at 1082.

278

29 U.S.C. §§ 1001-3007 (1974).

279

Estate of Bratton v. Nat'l Union Fire Ins. Co., 215 F.3d 516, 521-22 (5th Cir. 2000) (citing 29 U.S.C. §

1132(a)(1)(B) (1974)).

280

A denial of benefits under ERISA, section 1132(a)(1)(B) is reviewed de novo “unless the benefit plan

gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to

construe the terms of the plan.” Firestone Tire & Rubber Co., v. Bruch, 489 U.S. 101, 115 (1989).

Where the ERISA plan expressly affords discretion to administrators to make benefit determinations,

the “arbitrary and capricious” standard of review applies. Id. at 110-12. Since most plans include

discretionary language, courts apply a deferential standard. The Supreme Court has recently stated

that a plan administrator has conflicting interests when it reviews claims and pays out benefits;

however, this conflict does not automatically raise judicial scrutiny above the “arbitrary and

capricious” standard. See Metropolitan Life Ins. Co., v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2346

(2008). The Supreme Court noted in Glenn that a conflict of interest is merely a factor in determining

whether a decision by the plan administrator is arbitrary and capricious and refused to give lower

courts a more detailed factor-based test. 128 S.Ct. at 2349-52. In turn, each Circuit Court of Appeals

has its own distinct interpretation of ERISA.

281

608 F. Supp. 2d 1306, 1310 (M.D. Fla. 2009) (citing Schatz v. Mutual of Omaha Ins. Co., 220 F.3d

944, 948 (8th Cir. 2000); Russell v. Paul Revere Life Ins. Co., 288 F.3d 78, 80-81 (3d Cir. 2002).

282

Id. at 1310.

283

Id. at 1310-11 (citations omitted).

284

Id. at 1311.

285

Id. A footnote in Richey explains that “[t]he U.S. Department of Labor recognizes five categories of

work with respect to the degree of physical exertion required. They are, in order from least

demanding to most demanding: sedentary, light, medium, heavy, and very heavy These categories

are often used by administrators, physicians, and courts in the ERISA disability context.” Id. at 1312

n.2 (citing Richards v. Hartford Life and Accident Ins. Co., 356 F. Supp. 2d 1278, 1280 (S.D. Fla.

2004), aff'd, 153 Fed. Appx. 694 (11th Cir. 2005)).

286

Id. at 1311-12 (quoting Silvey v. FMC Long-Term Disability Plan, No. 95-6251, 1196 WL 690156, at

*3 (6th Cir. Nov. 27, 1996)).

287

No. 3:02CV7282, 2003 U.S. Dist. LEXIS 8095, at *1 (N.D. Ohio Mar. 25, 2003).

288

Id. at *2, 7, 12.

289

Id. at *16.

290

Id. at *32.

291

Id. at *31-34.

292

Civ. Action No. 3:02-CV-2278-L, 2004 U.S. Dist. LEXIS 26806 (N.D. Tex. Dec. 23, 2004).

293

Id. at *4-8.

294

Id. at *10-12.

295

Id. at *6-8, *17-18.

296

Id. at *17-18.

297

Id. at *18, 29-30.

298

Civ. Action No. 3:02-CV-2278-L, 2004 U.S. Dist. LEXIS 26806, at *28-32 (N.D. Tex. Dec. 23, 2004).

299

Id. at *32.

300

42 U.S.C. §§ 12101-12300 (2010).

301

42 U.S.C. § 12102(1) (2010).

302

29 C.F.R. § 1630.2(h) (2010) (“(1) Any physiological disorder, or condition, cosmetic disfigurement,

or anatomical loss affecting one or more of the following body systems: neurological,

musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular,

reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) Any mental

or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental

illness, and specific learning disabilities.”).

303

261 F.3d 789 (9th Cir. 2001).

304

Id. at 792-93.

305

Id. at 794.

306

Id. at 796.

307

Id. at 796-98.

308

Id. at 798.

309

No. 2:07-cv-471-ID, 2008 U.S. Dist. LEXIS 89386, at *1 (M.D. Ala. Nov. 3, 2008), aff'd sub

nom, Webb v. Donley, 347 Fed. Appx. 443 (11th. Cir. 2009).

310

Webb, U.S. Dist. LEXIS 89386, at *1.

311

Id. at *5-7.

312

Id. at *7-8

313

Id. at *8-9.

314

Id. at *15-16.

315

Id. at *17.

316

Webb v. Donley, 347 Fed. Appx. 443, 446 (11th Cir. 2009).