Abstract

Medico-legal literature frequently refers to instances where people with disabilities in the process of undertaking injury related civil litigation acquire what has been rather crudely referred to as "litigation neurosis". Proponents of this pathology argue that the quest for compensation generates malingering. Litigants might remain "sick" because of the "rewards" they are given or are likely to obtain by remaining hyper-disabled by the compensation system. This article discusses the meanings given to such responses and suggests that an alternative reading of "litigation neurosis": as a highly rational act of resistance towards a system that views disablement in a reductionist way, a system that reinforces the notion of disability as personal tragedy. As part of negotiating welfare and legal systems that enumerate disability in terms of deficiency and pathology, tacit knowledges about responses to the government of disability, reveal that disabled people are highly skilled in "recripping" or "decripping" themselves to satify eligibility criteria as well as the expected performances of ableism.

Keywords

Legal discourse, compensation neurosis, disabled identities, biomedicalism, injury management, disability resistance.

Medico-legal literature frequently refers to instances where people with disabilities in the process of undertaking injury related civil litigation acquire what has been rather crudely referred to as "litigation neurosis" (Bellamy, 1997; Ellard, 1970; Kay & Morris-Jones, 1998; Miller, 1961). Proponents of this designation argue that the quest for compensation generates malingering. Litigants might remain sick (consciously or unconsciously) because of the rewards they are given or are likely to obtain by remaining "hyper-disabled". Anecdotal evidence suggests that disabled litigants have been instructed by their lawyers not to have medical treatment or utilize rehabilitation services because, if they get better, they will likely reduce their compensation or influence settlement. Other studies point to the fiction of magnified or exacerbated disability as being a creation of insurance companies and defense experts (Norris & Watt, 1983; Parmer & Raymakers, 1993).

This article discusses contestations over meanings given to responses by the injured litigant and suggests that alternative reading of litigation neurosis: as a highly rational act of resistance towards a system that views disablement in a reductionist way, a system that reinforces the notion of disability as personal tragedy. Furthermore, I contend that the pathology termed "litigation neurosis"— far from being an objective psycho-therapeutic delineation — acts as a stock story that is harnessed to explain and thus recuperate the unruly, non-compliant body of the injured person as he or she moves through "return to work" and legal systems. The analysis will be approached from a socio-legal and critical disability studies perspective. The focus will be an examination of the ways the actions of the unruly disabled body become pathologized in its attempt to become a beneficiary or litigant. As an adjunct to this preoccupation, the article provides another prism to view the ways disability is performed at law. As part of negotiating welfare and legal systems that enumerate disability in terms of deficiency and pathology, tacit knowledges about responses to the government of disability, reveal that disabled people are highly skilled in negotiating the hoops of diagnosticism by "recripping" (hyper-accentuating disability) or "decripping" (mitigating disability) themselves to satisfy eligibility criteria as well as the expected performances of ableism.

Medico - Legal Landscapes & Contexts

The lives of disabled people and more specifically the newly injured are inextricably medicalized. This orientation has promoted a view that public policy responses to disabled people are sited as a "species of welfare" (Blanck and Millender, 2000, p. 3). Disability is assumed to have an existence that is factual, significant and objective, altogether autonomous from any social context. Medical practices, organized around the medical model, presume that the doctor's task is to diagnose diseases, to discover their causes and symptoms, and design treatments. Any knowledge standpoint of the patient is sloughed off. Treatments are aimed at eliminating or minimizing the symptoms of the impairment, or the cause of the disease, or the impairment itself. Uncooperative patients — those who experience a "dramatization of symptoms" are especially vulnerable to having their realities interpreted by experts as either a psychosomatic illness or as a moral malady — a suspect class of persons, fraudulently manipulating their bodies for financial gain. Implicitly medico-legal technicians engage in the hierarchicalization of impairment, in so far as "maimings" such as spinal cord injury receive medical recognition (validation), while impairments induced by lax occupational health and safety environments and practices: stress, nervous "disorders", back and repetitive strain injuries, are viewed as suspect, invalid and therefore mis-recognized. This claim is supported by the historical research of Blanck & Millender (2000) who argue that pension claims by applicants with nervous disorders and infectious diseases were rejected at higher rates than other kinds of disabilities.

In the legal context, medical professionals in effect play a gate-keeping role acting as technicians of certification — their knowledges being reshaped in a quasi-legal form. An injured person's therapeutic program, as the Loeser & Turk (2001) have shown, is significantly influenced by multiple, (and sometimes conflicting) agendas of third party funders and compensation insurers. Indeed there is a cogent argument that suggests that the process of engaging doctors as medico-legal experts transmogrifies the practice frameworks, if not the experiential realm of doctoring from that of treatment to invasive investigation. Research conducted by the Australian Institute of Judicial Administration concluded that the more an "expert" becomes dependent upon the full time occupation of providing expert testimony, the more likely that their evidence exhibits bias towards the party engaging their services (Australian Institute of Judicial Administration, 1999).

Increasingly the medical profession is engaged in the repairing and working on of the productive (worker's) body. On one hand there are doctors whose practice frameworks are cognizant of occupational health and safety issues from the standpoint of workers, especially those further down the occupational "food chain", while in contrast there are doctors who acquiesce to the view that workers, especially from the working class and/or migrant cleavages will exploit welfare and legal safety nets for personal gain. Aside from class-based tensions, Greta Bird (1993) has identified the dissonance in life worlds of migrants and White middle class, educated, male professionals. Terms such as "Mediterranean back" magnify ethnic stereotypes that view ethnicity in and of itself to be pathogenic (Bird, 1993). Contra, the bonds of trust between a patient and their physician, sites of injury management become places of diminished trust and the focus of mutual suspicion.

A reading of impairment within a litigious setting is made achievable through a trade in symbols of impairment, expressed "objectively" in tables of maims such as the American Medical Associations' Guides to Evaluation of Permanent Impairment (Cocchiarella, L., G. Andersson, et al; 2001) and legitimized via the use of expert (ableist) testimony. The use of the Guides and its apparent infallibility is surprising, given that the system is riddled with conceptual ambiguities and difficulties with attaining scientific validation, to say nothing of the fact that "in the absence of scientific data, the AMA system relies almost exclusively on the opinions of panels of medical consultants" (Robinson, J, D. Turk & J Loeser, 2004, 315). Interestingly, in a public submission to the Worker's Compensation and Rehabilitation Commission in the state of Western Australia (the "Guthrie Report"), the Australian Medical Association, not normally known for its sociological analysis noted that it had substantial concerns with the U.S., Guide, particularly the disassociation of impairment quantification from the experiences of disabled people negotiating impairment in daily life (Woollard, 1993). The usage of medical experts and the re-engagement of a medicalized approach towards disablement is itself problematic especially as Ruth O'Brien (2004) observes, the disability rights movement displays an ambivalent and apparently contrary approach to the usage of medical testimony in a court setting. In some instances the use of testers and medical experts is met with contempt; while on other occasions, experts are used to allay health and safety concerns. In tandem with maiming evaluative biomedical instruments (documentation), the law itself plays a constitutive role by producing new sites of regulatory engagement as well as transforming obsolete practices.

The pathologization of the disabled condition (and experience) is reinforced by a turn to diagnostic fetishism that requires the delimitation of the impairment as well as how the disabled person is to be known. As Holloway (1994, 991) puts it, the person with an acquired injury is "...more easily exculpated where the illness is attributed to some agency". Disabled people "fall off the edge", so to speak when their experiences of impairment, for instance, chronic pain, deprive an unambiguous diagnosis and therefore move away from explanatory exculpation into various forms of psychic victim blaming. In a different, but not unrelated context, Altman (2001) points to the difficulties in formulating an empirical standard for the delineation and delimitation of disablement without lapsing into a reductionism based on a diagnostic lowest common denominator. Biomedical realism in its obsession with instruments that reduce impairment to quantifiable measures consciously excludes the lived experiences of disablement in the social realm and the ways pain and economic factors can create substantial obstacles and disruption (Loeser & Turk, 2001).

The traumatic performance of disability at law, institutes certain harms as "morally heinous in the law" (Brown, 1995, p. 27). Such a compulsion delimits a specific site of blame by constituting certain legal subjects (and events) as responsible for the "injury" of social subordination that other subject's experience. What kinds of "harm" have legitimacy before the law? The codification of case law has established certain authenticated sites and specific instances of "disability discrimination" as harm. I argue that harms that recite the tragic interiorisation of disablement are acquiesced within legal discourses. Emecke refers to this kind of unauthorised "harm" as a moral injury of misrecognition where there is a "specific — mostly structural and permanent — discrepancy between one's self understanding and the other's description" (Emecke, 2000, 484). Law's role of scaling suffering and injury according to biomedicalist perspectives can be contrasted with an alternative way of rendering suffering or more specifically "injury". Emecke (2000) argues that injury captures those asymmetrical power relations between self-referentiality and external retort or perception, in this instance in the reasoning and pronouncements of courts.

Legal discourses, through the performance and enactment of disability subjectivities, play a critical role in maintaining these structures of purification between those designated as "sick", "well", "deserving" and "undeserving". Disabled peoples' interactions with law necessitates that disabled performativity and its ensuing subjectivities are iterated in accordance with discourses mediated within a norm of ableism. Maybe the spectacle of the disabled litigant acting out a part in the court would be amusing, a necessity instrumentally justified to achieve a remedy, were it not for the enduring psychic consequences of such a drama. However, I wish to reiterate that the performances of disability in law produce subjectifying discourses where disabled subjects are brought into being, not just for themselves, but the for rest of us, inaugurating what can be said and what is unsayable about disability. As Carrette (2000) rightly argues, it is important to not just look at look is confessed with discourse, in this case the trial process, but also there is a need to interrogate the silences. The silences are spaces where law's investments in the maintenance of ableist delimitations of impairment are framed — setting the ontological parameters of disablement in contradistinction from illness and feigning disorders. Because of this orientation the litigant with disability, if she wishes to present another approach to living with impairment, say an affirmative approach colored with a mixture of joy and despair, held in simultaneous tension, - a representation that is diametrically in opposition to dominant cultural narratives of disablement as catastrophe, "law's constraints make it impossible for [those] stories ... to be heard and recognized" (Rovner, 2001, p. 277).

Increasingly, legal regimes are utilized by disabled people to access greater resources and services to mitigate the effects of impairment and as a vehicle for the monetary compensation of loss. Recent studies suggest the emergence of a paradox, wherein the application for disability benefits and compensation can generate feelings of despondency as the disabled person engages in a process of altered perceptions and puts on the "clothes of a disabled identity" (Estroff, 1997; Holloway, 1994; Sayer 2004). The average time for finalization of claims for compensation in Australia is 4.5 years, an improvement on the previous period of 5.6 years in 1996 (Pricewaterhouse Coopers, 2001). I have already alluded to the fragile nature of the instruments used to access the degree of impairment. The process of legal reasoning used within personal injuries cases is also an exercise in speculation, being described by the Chief Justice Wood of the New South Wales Supreme Court as "a disquieting exercise in crystal ball gazing"¹. This because personal injuries law suits are about "pinning disability down" which can prove to be quite difficult as impairments often evade delimitation due to their leaky and interactive nature. The "problem" or conundrum faced by the courts is aptly summed by Davies & Malkin (2003, 172):

The court's award of a lump sum 'once and forever' inevitably involves a considerable amount of speculation about what the plaintiff's life will be like in the future. If the plaintiff's condition [sic] worsens, he or she cannot return to the court for an increase in the sum awarded. Conversely, if the plaintiff's condition improved or is cured, the defendant cannot return to the court to ask for some money back.

The elusive nature of impairment (particularly when lived out in a social context) and the problematical difficulties, in some instances, of forecasting prognosis - does not neatly fit with law's focus on rules, formulas and predictability. The utilization of legal remedies by disabled people after acquisition of impairment occurs within a broader sociological context of an increasing "culture of blame" (Atiyah, 1997), whereby disabled litigants responding to the codification of injury are required to show that they have suffered (c.f. Brown, 1995). Injury then, has become the interpretative lens, the trope, from which to speak of the experiences of impairment and its performative and economic impacts. Further to this, courts increasingly are finding themselves in the position of being utilized as a mechanism that picks up for a shortfall in government funding and welfare provision to cover the extra costs associated with impairment within a mainstreamed context.² In short, the entry point of disability into law is through the doors of "deficiency" — an assumed deficiency in the body, merging, as I will show, into a deficiency in character. The art of lawyering is a process that involves fictional creations of truth, where as Cain puts it, "lawyers are imaginative traders in words. But these symbols traders are also creative. They invent categories and these categories are constituting of practices and institutions within which their clients can achieve their objectives" (Cain, 1994, 33). Insofar as deficiency and the tragedy of impairment are assumed, liminality created by an ableist culture, and the ways law culturally mediates difference and marginality, become curtailed and hidden.

In Australia the workers compensation system has been characterized by a two-track system, namely the injured worker has the "option" of resorting to a statutory compensation scheme or taking action at common law. However since the 1980's the scope of common law has become limited. Tasmania and the Australian Capital Territory are the only two jurisdictions in Australia that continue to provide unrestricted access to damages for both economic and non-economic loss (see Purse 2000). Any discussion of litigation neurosis needs to be cognizant that notions of "fault" and "responsibility" still reside at the heart of modern tort law, even if these philosophical underpinnings remain veiled (Mason 2000). Such a core takes on a particular nuance when combined with disablement, which is a priori seen as culpable, and inherently negative. Indeed, the veiling or concealment of such constitutional foundations "covers the scar left, inevitably, by foundational violence" (Van Oenen, 2004). An introspective focus on "fault" means that for most compensation systems the notion of a rehabilitation system is a mere afterthought unrelated to the legal claim. This is despite an awareness at an international level that good "disability management" (the field's choice of words, not mine) involves prevention of injury through to rehabilitation, especially return to work. (Buys, in press; Buys, 2003).

Litigation Neurosis — as pathology?

The work of Shorter (1994, 29) points to the historical existence of the "wealthy invalid" whose lifestyle and money enabled " ... a cocooned lifestyle of silver napkin rings at breakfast and special quarters in the private nervous clinics for their own servants". This kind of sentiment plays on the trope of the "advantaged (possibly) undeserving cripple" who incurs secondary gains by virtue of impairment (cf., Freud, S., J. Strachey, et al. (1976). The notion of litigation neurosis invokes more than impairment created economic spin-offs, but rather reinforces a belief that financial gain is achieved through frauds and/or deceit. Hamilton in a 1906 review of traffic accidents posited that some dishonest litigants were feigning neurosis and impairments in order to increase accident compensation (Hamilton, 1906).

The legally strained psychosomatic illness, which occurred when embarking on a legal cause of action, was coined in the 1940's. The expression "compensation neurosis" was observed by Foster Kennedy in the journal Compensation and Medicine in 1946 after a study of German and Danish compensation systems before World War II (Kennedy, 1946). However it was Miller's, classic thesis of 1961 that coined the term. Miller argues that the neurosis was not caused by the injury and any associated effects, but was

... concomitant of the compensation situation and a manifestation of the hope of financial gain. The condition [sic] is not encountered where this hope does not exist or where it has been finally satisfied or dissipated (Miller, 1961, 994).

In one sense Kennedy's conclusion is right; the legal system does induce an interpretative lens that explains the actions and intentions of the disabled litigants as litigation neurosis; however his methodological focus on the individual injured litigants and their (non)actions is flawed through the omission of a focus on the systems level of legal governance, in particular mechanisms for the enforcement of economic productivity and the ways in which disabled employees interact with workforce structures. A promise of financial benefit due to disability often prompts a conflation with conscious malingering. While the expressions, compensation or litigation neurosis, are used readily in the literature, semantic confusion is ripe as to its interpretation and rendering. What is clear is that the usage of such a conceptual framework is an attempt to explain the complex relationship between the compensation process and the litigant's responses. Suter (2002) outlines a number of explanatory accounts, which I have developed as an adaptive template:

1. Legal processes entail a risk that an injury is being magnified in order to seek personal financial gain (fraud motivation); (Suter, 2002; Sayer, 2004);
2. Litigation induces increased stress, pain and eventually a magnification of disablement instead of a resolution of the impairment problem; (Hall quoted in Buys, 2003);
3. Involvement in litigation presents little difference in the lives of chronically ill persons. (No effect theory);
4. The experiences of people working during the legal processes impacts on their capacity to become productive; (Buys, 2003).
5. Compensation neurosis is related to class divisions within society and as such is an expression of anger towards perceived injustices;
6. The label litigation neurosis may have nothing to do with litigation as such, rather might be more related to difficulties in the doctor - patient relationship than etiology or maybe used as an explanation for 'failures' of rehabilitation (Allaz, 1998; Fishbain, 1994).

One dominant interpretation of litigation neurosis is that individuals are "cured" by a verdict and until that time, litigants experience a "... 'dramatization of symptoms' and a lack of motivation toward treatment" (Allaz 1998, 91). A reading that typifies these comments is made by Kennedy (1946, quoted in Mendelson, 1995, 695) who argues "A compensation neurosis is a state of mind, born out of fear, kept alive by avarice, stimulated by lawyers, and cured by a verdict". The works of Miller and Kennedy have been highly influential among lawyers and medical professionals (c.f., Hutchinson, 2000). This is despite the fact that comprehensive studies throughout the 1960's up till the 1990's have failed to support the assumptions underpinning Miller's thesis (Blanchard et al, 1998, 339; Fishbain et al, 1995). Yet as Blanchard points out, Miller's argument still dominates policy and legal argument.

We may want to ask why this remains the case and ponder what interests the notion of litigation neurosis may serve - big business, insurance industry, and the maintenance of negative ontologies of disability? A belief in litigation neurosis as a pathology or illness occurs, according to Bellamy, because law's intervention into disability means that the "...claimant is compelled to guard against getting well and is left with no honorable way to recover from illness" (Bellamy, 1997, 94). In summary, litigation neurosis is used as a shorthand motif to suggest that the disabled person's character or psychological disposition is prohibiting "recovery" (MacLean & Pound, 2000). This focus on the characterological basis of litigation neurosis is important to emphasize in contradistinction to a state of mental illness such as post-traumatic stress disorder (PTSD). An emerging theme of research suggests a growing trend towards inscribing disabled people as a suspect class — whose testimony and personal character is problematic and unbelievable (Campbell, 2005).

The pervasiveness of this view is demonstrated in the recently produced interim report of the Australian Federal Productivity Commission on National Workers' Compensation & Occupational Health and Frameworks (2003) which restates, without supporting evidence, that accessing rehabilitation may be deferred because "workers attempt ... to act in a way to maximize their claim" (2003: 176). Where supporting "testimony" is provided, it is biased in orientation, representing the views of employers and the Insurance Council of Australia:

As a result of the possibility of a (large) lump sum payment, common law can act as a fundamental disincentive to effective injury management and early return to work, which is, of course, the fundamental aim of worker's compensation. Further, where access to common law exists, it has been suggested that worker's may even be encouraged to act in a manner that would maximize any lump sum payment. .... There is an equity case for common law access to those suffering catastrophic or severe injuries, or whose injuries are as a result of employer negligence. However, there is a fundamental tension between maximizing damages and return to work that cannot be ignored. (sub 74, p.25, cited in Productivity Commission, 2003, 176— 177, - emphasis added).

Such a perspective is reiterated by the supermarket chain, Woolworths, who state: "In Woolworth's experience, this can mean that some employees focus on remaining 'injured' so that the extent of lump sum is increased" (sub 98, p7, cited in Productivity Commission, 2003,177). In both submissions to the Productivity Commission no evidence in the form of studies was tendered to substantiate such inflammatory viewpoints. Furthermore, with respect to the Insurance Council argument, recent studies diminish, if not refute some of the basis of their claims. Blanchard's study (1998) compared litigants with injured non-litigants and indicated that those individuals involved in litigation in general reported a high level of PTSD and experienced severe impairment to their role performance and relations with friends. Those being labeled as exhibiting litigation neurosis in fact have more to lose financially if they do not gain a sufficient payout. Without sufficient compensation gaining access to education and training as well as supports to life in the community would be difficult. The argument of the Insurance Council disregards the link between levels of finance (through compensation) and the capacity to secure services that enable a successful return to work.

The findings of Mendelson (1995) put to bed the argument that litigation acts as a disincentive to return to work or undertake rehabilitation. In his comprehensive review of a range of studies, Mendelson concludes that overall the findings of follow up studies demonstrate that the "prediction embodied in the concept of litigation neurosis is false" (1995, 698). His own survey of 760 litigants revealed that a higher percentage of litigants who returned to work before settlement had been injured in motor vehicle accidents in contrast with work injuries. Furthermore, his finding supports early research by Balla and Mortaitis (1970), in which a significant number of litigants do not return to work after their claim is settled, thus refuting the notion of being cured by verdict. In their study of secondary gain, Dersh et al (2004) point to the limited research about secondary loss (economic, social networks) that may prompt the seeking of financial gain via litigation to compensate for loss. One area that requires more work is an exploration of distress and its relationship to litigation, inclusive of an examination of law's intersection with the interests of ableism. For instance, Blanchard et al (1998, 350) point out those high levels of distress and role impairment may be the impetus for seeking a litigious solution. In contrast, the process of litigation may re-traumatize the litigant by having to re-account their story of impairment (Pitman et al, 1996). Of course the voices of disabled litigants are not represented independent of these bodies.

Litigation Neurosis — as resistance to the government of disability

What I have been attempting to do so far is outline the context in which an injured person may seek out a legal remedy and introduce argument that proposes to pathologize behaviors referred to as litigation neurosis. Now I want to step back from positivist pathological reasoning and attempt to speak otherwise about the processes of accessing law from the standpoint of the disabled person and from the conceptual framework of governing disability in a world that is compulsively ableist. The ruminations of critical race theory transposed to an analysis of ableism, point to the embeddedness of ableism so that its existence, like that of racism, let alone its effects are covert, but more often profoundly veiled. Ableism as an epistemology, as an explanatory framework, as an ontological modality frames an individual's subjectivity and thus becomes the power "...that animates ones emergence", complicity and resistance (Butler, 1997, p. 198). While it is important to focus on law's repressive character and the harms visited upon the disabled litigant by the legal system, it is equally critical to explore modes of resistance by disabled people rather than view the disabled client as a passive victim. This point is affirmed by Blanck & Millender (2000) who in their research on U.S., Civil War pension claims found several instances of veterans aggressively using adversarial procedures to pursue their entitlements.

Since the 1990's in Western nations there has been an emerging backlash against developments in anti-discrimination law, coupled with a growth in hate crimes towards disabled people. Bruegemann, Feldmaneier White, Dunn, Heifferon, and Cheu (2001) document the backlash against students designated with learning disability (LD) in the US. They cite the famous case of Guckenberger v. Boston University³ (1997), in which Jon Westling, Provost of Boston University, manufactured a case history of a student he called Somnolent Samantha, who he described as repeatedly dozing off in class and in need of updating by her professors on the missed content. It was only after a law suit that Westling owned up to inventing the extreme story as part of a campaign of opposition to educational accommodations for people with LD. As Bruegemann et al. put it "the rhetorical strategy of finding, or, if necessary, inventing, an extreme example of LD students' demands has become routine practice in a growing learning disability backlash" (p. 376).

Disabled bodies, especially those deemed as being of the unruly or outlaw kind incite a degree of hysteria that requires vigorous policing and border control — just in case an alien body disturbs the solace of sameness. Rooting out the possible invader is achieved through the rhetoric of hysteria and moral panic. The passion for hysteria is only possible by invoking that imagery of ableist sameness. Such a frenzied reaction is more than a mere dread of falling into the abyss of disability, it is what Laplanche and Pontalis (1973, 194) term a "paroxystic [event] (e.g. emotional crisis accompanied by theatricality)". Such incidents are becoming commonplace. In Australia, the High Court in the case of Purvis⁴ insisted on deploying the motif of the fire bug — the possible unruly student who could burn down schools —in order to explain the dangers of accommodating certain impairments in the school system.

The continued re-citation of the pathology of litigation neurosis, despite the existence of studies using traditional empiricist methodologies, is yet another example of attempts to produce and recall the onto-deviancy of the disabled person. By onto-deviancy — I mean that the disabled body is understood as intrinsically compromised, pathological, inferior and suspect. In spite of studies to the contrary, the reiteration of the notion of litigation neurosis needs to be figured as part of larger battles over the delimitation of disability, both within the USA and Australia (Campbell, 2001; Massengill, 2004). What is not recited is biomedicalism's way of distorting the meaning and impact of impairment in the lives of disabled people. Litigants are confronted with arcane tables of impairment that seek to reduce complex realities, using reductionist reasoning. What the notion of litigation neurosis brings into sharp relief is the problematization of "cures", "restoration" and even "rehabilitation" as pathways to normalcy. Increasingly courts are viewing non-compliant or resistive behaviors exhibited by disabled people as testament to the belief that they are a suspect class of persons who seek to distort the system. The disabled body is not only impaired but it is morally culpable (see Campbell, 2004).

An oppositional reading of actions deemed to be "neurotic" on the part of the injured litigant from the standpoint of disability reveals that these actions are a combination of dis-stress and a highly rational choice. Fear about the possibility of disability (and living the tragedy of the disabled condition) is induced by the legal system. Even though statutory compensation systems can provide a safety net for some, research has shown that these schemes are grossly inadequate for meeting the costs associated with impairment, especially for people wanting to live active, mainstreamed lives (Jones & O'Donnell, 1995). There is for instance strong correlation between poverty and impairment, leading in some circumstances to a poor quality of life. A biomedicalist approach to disablement rather than clarifying impairment, results in its distortion. As such, the exclusion of the sociological perspectives from rehabilitation processes means that optimum rehabilitation outcomes are unlikely (Jacobson & Mariano 2001; Smith 2000). Diagnosticism acts as a technology that is in a Heideggerian fashion, always standing in reserve, being available to arbitrate when there is disputation about where to draw to line between "acceptable", fixable impairments and those that defy compartmentalization (the changeable, the nervous, etiologically suspect) being relegated to outlaw disabilities.

Tacit knowledges suggest that disabled people quickly become experts in negotiating the disability "business" system — a system with different definitions of disablement and service usage regulations. For some, it may mean "decripping" their reality — i.e. minimize or masking their (real) support needs. In other circumstances, where access to a service is for "high" support needs many disabled people have become adept in "re-cripping" themselves — as a kind of strategic instrumentalism — to access high demand services. Occasionally, disabled people are able to successfully enroll a doctor or allied health professional to certify them as meeting evaluative disability ranking requirements, especially where the doctor is unfavorable towards governmental service user targeting policies (see Stone, 1984). If some injured litigants decide to "max" their impairment (and the jury is out on the extent of this behavior) — this strategy is induced by and is a product of a legal apparatus that make the trope of injury and suffering the benchmark of distributive justice. To not do so, is to ignore the realities — where suffering pays and incorporation of impairment does not.

Conclusion

In this paper I have sought to displace the normative and therefore authorizing status of biomedical discourses that tend to read actions of disabled people pathologically. In the act of displacement it becomes possible to foreground the instability of "testimony" of medical experts and law's role in transforming that testimony into legal truths. An alternative reading of acts deemed as being characteristic of litigation neurosis provides the opportunity to reflect upon the complexities of effects when disabled litigants engage in the juridical. I have argued that litigation neurosis needs to be understood within a broader framework of contestation of the meaning of disablement (its edges and signification) and the ways that diagnosticism is harnessed and deployed by the medico-juridical apparatus to govern disability. In the end, maybe the fiction of litigation neurosis inaugurated and proliferated by insurance companies reveals the pathology of these institutional formations as they seek to proclaim another form of injurious speech: In other words, speech that is permissible due to the technologies of ableism by the privileging of an ableist standpoint as exemplified by psycho-medico explanatory frameworks.

References:

Allaz, A., Vannotti, M., Desmeules, J., Piguet, V., Celik, Y., Pyroth, O., Guex P., & Dayer, P. (1998). Use of the label 'litigation neurosis' in patients with somotoform pain disorder. General Hospital Psychiatry,20, 91 — 97.

Altman, B. (2001). Disability definitions, models, classification schemes, and applications. In G. Albrecht, K. Seelman & M. Bury (Eds.), Handbook of disability studies (pp. 97-122). Thousand Oaks, CA: Sage.

Atiyah, P. (1997). The damages lottery. Oxford: Hart Publishers.

Australian Institute of Judicial Administration. (1999). Australian judicial perspectives on expert evidence: An empirical study, RALSTRNM Doc No: 1036650,

Balla, J & Moraitis, S. (1970). Knights in armour: A follow-up study of injuries after legal settlement. Medical Journal of Australia, 1, 355 — 361.

Bellamy, R. (1997). Compensation neurosis: Financial reward for illness as nocebo. Clinical Orthopaedics, 336, 94 — 106.

Bird, G. (1993). The Process of Law in Australia. Sydney: Butterworths.

Blanchard, E., Hickling, E., Taylor, A., Buckley, T., Loos, W., & Walsh, J. (1998). Effects of Litigation Settlements on Posttraumatic Stress Symptoms in Major Vehicle Accident Victims. Journal of Traumatic Stress, 11(2), 337 — 354.

Blanck, P. & Millender, M. (2000). Before disability civil rights: Civil War pensions and the politics of disability in America. Alabama Law Review, 52(1), 1 — 51.

Brown, W. (1995). States of injury: Power & freedom in late modernity. Princeton, NJ: Princeton University Press.

Bruegemann, B. J., Feldmaneier White, L., Dunn, P., Heifferon, B., & Cheu, J. (2001). Becoming visible: Lessons in disability. College, Composition, and Communication, 52(3), 368-398.

Buys, N. et al. (in press). Future of disability management. In H. Harder & L. Scott (Eds). Comprehensive disability management. Kidlington, UK: Elsevier.

Buys, N. (2002). Submission to the national workers compensation & occupational health and safety frameworks. School of Human Services, Griffith University, Submission no. 92.

Butler, J. (1997). The psychic life of power: Theories in subjection. Stanford, Calif.: Stanford University Press.

Cain, M. (1994). The Symbol Traders. in M. Cain & C. Harrington (Eds.), Lawyers in a post-modern world (pp. 15-48). Buckingham: Oxford University press 15 — 48.

Campbell, F. (2001). Inciting legal fictions "Disability's date with ontology and the ableist body of the law". Griffith Law Review, 10(1), 42-62.

Campbell, F. (2004). The case of Clint Hallam's wayward hand: Print media representations of the 'uncooperative' disabled patient. Continuum: Journal of Media & Cultural Studies, 443 — 458.

Campbell, F. (2005). Genealogies of suspicion: The characterological dissimulation of disabled persons. Unpublished manuscript.

Carrette, J. (2000). Foucault and religion: spiritual corporality and political spirituality. New York: Routledge.

Cocchiarella, L., Andersson, G. et al. (2001). Guides to the evaluation of permanent impairment. Chicago: American Medical Association.

Davies, M. & Malkin, I. (2003). Torts, 4th Ed. Sydney: LexisNexis; Butterworths.

Dersh, J., Polatin, P., Leeman, G., & Gatchel, R.. (2004). The management of secondary gain and loss in medico-legal settings: Strengths and weaknesses, Journal of Occupational Rehabilitation, 14(4), 267.

Ellard, J. (1970). Psychological reactions to compensable injury. Medical Journal of Australia, 2, 349 — 355.

Emecke, C. (2000). Between Choice and Coercion: Identities, Injuries, and Different Forms of Recognition. Constellations, 7(4). 483 - 495.

Estroff, S., Patrick, D., Zimmer, C., & Lachictle, W. (1997). Pathways to disability income among persons with severe persistent psychiatric disorders. The Milbank Quarterly, 75, 495 — 532.

Fishbain, D. (1994). Secondary gain concept: Definition problems and its abuse in medical practice. American Pain Society Journal, 3(4), 264 — 273.

Fishbain, D., Cutler, R., Rosomoff, H., & Rosomoff, R. (1999). Chronic pain disability exaggeration/malingering and submaximal effort research. Clinical Journal of Pain 15(4), 244 — 274.

Freud, S., Strachey, J., et al. (1976). Introductory lectures on psychoanalysis. Harmondsworth, Middlesex: Penguin Books.

Guest, G. & Drummond, P. (1992). Effect of compensation on emotional state and disability in chronic back pain. Pain, 48(2), 125 — 130.

Holloway, G. (1994). Susto and the career path of the victim of an industrial accident: A sociological case study. Social Science & Medicine, 38(7), 989 — 997.

Hutchinson, G. (2000). Disorders of simulation: malingering, factitious disorders, and compensation neurosis. Madison: Psychosocial Press.

Jacobson, L., & Mariano, A. (2001). General considerations of chronic pain. In J. Loeser, S. Butler, C. Chapman, & D. Turk (Eds.), Bonica's management of pain (3rd ed., ch.10). Philadelphia: Lippincott Williams & Wilkins.

Jones, A. & O. O'Donnell. (1995). Equivalence Scales and the Costs of Disability. Journal of Public Economics, 56, 273 — 289.

Kay, N., & Morris-Jones, H. (1998). Pain clinic management of medico-legal litigants. Injury: International Journal of the Care of the Injured, 29(4), 305 — 308.

Kennedy, F. (1946). The mind of the injured worker: Its effect on disability periods. Compensation Medicine, 1, 19 — 21.

Laplanche, J. & Pontalis, J. (1973). The language of psycho-analysis. London: Hogarth Press.

Loeser, J.D., & Turk, D.C. (2001). Multidisciplinary pain management. In J.D. Loeser, S.H. Butler, C.R. Chapman & D.C. Turk (Eds). Bonica's management of pain. (3rd ed., pp 2069 — 2079). Philadelphia: Lippincott Williams & Wilkins.

MacLean, N. & Pound, P. (2000). A critical review of the concept of patient motivation in the literature on physical rehabilitation. Social Science & Medicine 50(4), 495-506.

Mason, A. J. (2000). Fault, causation and responsibility: Is tort law just an instrument of corrective justice? Australian Bar Review, 19, 201.

Massengill, D. (2004). How much better are you? Impairments, mitigating measures and the determination of disability. Public Personnel Management 33(2), 181 — 198.

Mendelson, G. (1995). 'Compensation neurosis' revisited: Outcome studies of the effect of litigation. Journal of Psychosomatic Research, 39(6), 695 — 706.

Miller, H. (1961). Accident neurosis. British Medical Journal, 1, 919 — 925; 992 —998.

Norris, S. & Watt, I. (1983). The prognosis of neck injuries resulting from rear-end vehicle collisions. Journal of Bone Joint Surgery, 65(B), 608 — 611.

O'Brien, R. (2004). Probing accommodations: Testing, testing, and retesting the (dis)abled. In R. O'Brien. (ed.), Voices from the edge: Narratives about the Americans with Disabilities Act (pp. 167-175). NY: Oxford University Press.

Parmar, H. & Raymakers, R. (1993). Neck injuries from rear impact road traffic accidents: Prognosis in persons seeking compensation. Injury: International Journal of the care of the Injured, 24(2), 75 — 78.

Pitman, R., Sparr, L., Saunders, L., & McFarlane, A. (1996). Legal issues in posttraumatic stress disorder. In B. A. Van der Kolk, A. McFarlane, & L. Weiseeth (Eds), Traumatic stress: The effects of overwhelming experiences on mind, body and society (pp. 378 — 397). New York: The Guilford Press.

Pricewaterhouse Coopers. (2001). Analysis of trends in NSW workers' compensation common law claims. Sydney: Author.

Productivity Commission. (2003). National workers compensation & occupational health and safety frameworks (Interim report). Canberra: Author.

Purse, K. (2000). Common law and worker's compensation in Australia. Australian Journal of Labour Law, 13, 260 — 277.

Robinson, J., Turk, D., & Loeser, J. (2004). Pain, impairment and disability in the AMA Guides. The Journal of Law, Medicine and Ethics, 32(2), 315 — 326.

Rovner, L. (2001). Perpetuating stigma: client identity in disability rights litigation. Utah Law Review, 2, 247 — 318.

Sayer, N., Spoont, M., & Nelson, D. (2004). Veterans seeking disability benefits for post-traumatic stress disorder: Who applies and the self-reported meaning of disability compensation. Social Science & Medicine, 58, 2133 — 2143.

Shorter, E. (1994). From the mind into the body: The cultural origins of psychosomatic symptoms. New York: The Free Press.

Smith, B. (2000). Chronic pain initiative: Report of the chair of the chronic pain panels. Ontario, Canada: Chronic Pain Panels for the Ontario Workplace Safety & Insurance Board.

Stone, D. (1985). The Disabled State. London: Macmillan.

Suter, P. (2002). Employment and litigation: Improved by work, assisted by verdict. Pain, 100, 249 — 257.

Van Oenen, G. (2004). Finding cover: Legal trauma and how to take care of it. Law & Critique, 15, 139 — 158

Woollard, K. (1993). Letter from AMA to Mr G. Kierath. In Guthrie, R. (Ed.), Appendices to and Discussion Papers Accompanying the Report on the Implementation of the Labor Party Direction Statement in Relation to Worker's Compensation (Appendix 5). Sydney: Institute for Research into International Competitiveness, Curtin University.

Endnotes

¹ Palmer v Roads & Traffic Authority [2002] NSWSC 34; BC200200213 at para [6].

² One of indicator this problem can be seen in attempts to have wrongful life causes of actions accepted by courts globally. The research of Jones & O'Donnell (1995) highlights the substantial consumption costs associated with physical disability.

³ Guckenberger v. Boston University., 974 F. Supp.106 (D.Mass. 1997).

⁴ Purvis v New South Wales (Department of Education and Training) 2003 (202 ALR 133).