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Although much has been written about the role of secondary gain and how the psychosocial environment may influence the patient, another, external, cause for the association should be considered: tertiary gain. Tertiary gain of illness was first proposed by Dansak301 who defined it as “gains sought or attained from a patient’s illness by someone other than the patient”. In the context of compensation for injury, tertiary gain may benefit lawyers and medical and allied health practitioners.

The involvement of a lawyer is associated with poor outcome after chronic pain,302 surgery,178 303 304 work place injury,61 260 305 and road traffic injuries.68 117 198 306 307

Diminished use of lawyers has also been suggested as one of the reasons for the benefits associated with no-fault insurance schemes.68 117 Lees-Haley attributes the effect of legal representation to “coaching” by the lawyers, where plaintiffs are advised how to answer questions from doctors and psychologists to increase the reported disability.308

Although retention of a lawyer is associated with poor outcome, cause and effect is difficult to determine without clear information regarding the temporal relationship between the two factors. While it can be argued that those who retain the services of a lawyer are less satisfied with their condition and have a poor outcome as a consequence of retaining the lawyer, the opposite may also be argued: that those who are dissatisfied or who have a poor outcome are more likely to retain the services of a lawyer. Causal association is also difficult to establish due to the obvious association with other factors, for example, cases involving legal representation will usually involve more

engagement with the adversarial legal system, the cases will take longer, and exposure to other stress-related events, such as attendance for medical reports and in court, may be increased. For example, in a study of outcome after carpal tunnel surgery within the workers compensation system,176 patients with contested claims had a significantly worse outcome than those with uncontested claims, the latter group having similar outcomes to

uncompensated patients. This would indicate that the compensation process (involvement with the adversarial legal system) may be more important than

the financial gain, although it could also be argued that those seeking compensation through the courts may be seeking greater financial gain. Other authors attribute the effect of compensation to the process, rather than the financial gain.131 132 293 308-310 Lees-Haley describes the model personal injury plaintiff as an “unhappy somatizer involved in a social context which encourages rationalization, projection of blame, and complaining”.308 Put more succinctly, Hadler notes that “It is hard, if not impossible, to get well if you have to prove you are sick”,309 and, in a direct comment on the compensation process, states that “the algorithm for recourse … promulgated by the

Workers’ Compensation system is dangerous, if not iatrogenic”.310 This may represent tertiary gain, in that the processes of claiming compensation may be thought to benefit other parties, such as lawyers and insurance companies.

Tertiary gain from doctors and other health practitioners may also contribute to illness in compensated patients. Kwan and others offer a broad definition of tertiary gain to include any gain received by caregivers, such as status and recognition, and describe tertiary gain as a natural phenomenon, with the gains being normal consequences of the caregiver role.311 However, specific examples exist of how compensated patients may be diagnosed or treated differently by doctors, so that financial or academic gains may be achieved. In a study examining diagnosis and treatment of thoracic outlet syndrome, Cherington and Cherington312 found significant small area variations in the rates of surgery for thoracic outlet syndrome (TOS). They found that in Colorado, workers compensation patients were more likely to be diagnosed with TOS than uninsured patients, and that workers compensation patients

were far more likely to be treated surgically once diagnosed. 27% of patients treated surgically were treated under workers compensation, and 3% were uninsured. Of the patients treated non-operatively, 7% were under workers compensation and 29% uninsured. Increased use of health services by patients treated under workers compensation compared to private insurance has been attributed to the higher medical fees provided under the workers compensation scheme.313

The labelling of many of the conditions closely tied to compensation, such as railway spine, RSI and whiplash, by the medical profession is thought to represent tertiary gain. Even though the provision of a diagnosis, in the form of a medical label such as whiplash or RSI, provides some secondary gain to the patients by validating their illness and therefore leading to secondary benefits such as monetary compensation or withdrawal from obligations at work or in the home, it also leads to tertiary gains for the health professional, such as financial gain from ongoing treatment and support of other

practitioners.278 311

The labelling of conditions may carry with it the expectation of symptoms by the patient and expose them to harm by treating them as diseased patients.277 314

The labelling of RSI was thought to be an issue in the epidemic of RSI,31 in whiplash where it was suggested that the diagnosis is more disabling than the injury,146 and in idiopathic arm pain where making a diagnosis is thought to be harmful.164

Tertiary gain may contribute to the incidence of illness and poor outcomes seen in compensated patients not only by diagnosing (labelling) illnesses,314 but by promoting illness through further investigations, referral to other health practitioners, and through treatments provided.

The role of investigations in the propagation of illness has been studied by Jarvik et al315 with respect to magnetic resonance imaging (MRI). In this study, 380 patients referred to a primary carer for regional back pain (no neurological symptoms) were randomised to receive a plain radiograph or an MRI as their initial investigation. No other intervention was provided as part of the study, apart from usual care by the general practitioner. Back-related disability and general health at 12 months were similar for both groups, however the group who were randomised to receive an MRI had higher treatment costs, were more likely to undergo spinal surgery (10 operations compared to 4), and were therefore more likely to have treatment complications. The higher likelihood of treatment associated with medical investigations has also been shown elsewhere.316 317

While this does not provide direct evidence of tertiary gain, it does provide some evidence of the tendency for doctors to fall back on a medical model of disease, and to use what they know and what they have at hand. In other words, to medicalise patients’ complaints. Medicalisation refers to the interpretation of various processes of human life as medically defined

conditions. The term, and its causes and implications, were first brought into public discussion by Ivan Illich in 1975.318-320 Illich noted the widening scope of

medical care, and an association between increased therapy and increased harm to patients, largely through iatrogenesis. Medicalisation has been

considered a problem with various aspects of health, such as childbirth,321 old age,322 and the process of dying,323 but compensation related conditions such as back pain, PTSD and whiplash have all been held up as examples of medicalisation:7 13 55 114 148 324 325 of the medical community taking general complaints, many of which may simply be expressions of dissatisfaction, and of attempting to fit them into known constructs by the use of investigations and, once placed into the most appropriate diagnostic category, of instigating treatments. Indeed, the study described above, which compared plain

radiographs to MRI scans for low back pain, may be seen as an example of medicalisation, as both of these investigations have been shown to be not predictive of back pain.326-328

Although the increased illness reporting in compensated patients may, in part, be mediated by increased treatment provided by health practitioners, it may also be true that more investigations and treatment are provided to

compensated patients because they exhibit more illness behaviour. Also, there is less financial restriction on providing health related activities in compensated patients.

The interplay between compensation and other psychosocial factors may be difficult to untangle. Many psychosocial factors that are known to be related to general health, such as occupational factors (job satisfaction,67 69 70 73 76-78 158 269 285 289 292 329

class,76 79 158 292 330 education,330 331 and psychological stress,67 69 76 78 182 255 258 286

are likely to be associated with compensation. For example, self-employed persons in Australia often do not have workers compensation, those on high incomes may be less likely to pursue compensation, less educated people may be more likely to be employed in jobs of lower prestige and jobs that are more likely to result in injury (and therefore subsequent claims for

compensation),70 and, interestingly, those suffering psychological stress may be more likely to suffer a work-related injury.332 333