Low back pain is one of thea leading causes of disability in the world. It is one of the main causes of work related disability and absenteeism, which makes it one of the relevant areas for assessing the compensation regime for workers related to chronic back pain. Statistics suggest that 1 in 5 Australians live with chronic pain. Whilst there is no definitive data on malingering in chronic pain, a German study shows that there had been a proliferation of soft tissue pain claims. Pain is inherently subjective in nature, and it varies with each person’s conscious experience of pain being different from others. Hence there is no objective external reference standard to compare a set of chronic pain diagnostic criteria again; this is due to the “centrality of pain as a core criterion in any chronic pain disorder.” Whilst there may be pathophysiology for specific pain condition, science has yet to develop a definitive complete pathophysiology for any chronic pain condition. The absence of objective criteria or objective external reference standard to compare a set of chronic pain diagnostic criteria has ramifications for the compensation regime for workers who suffer from pain of this nature because it creates a difficulty for the court to establish the veracity of the injury and the causation in the injury, if there is one. There are certain elements that are to be established in law for a claim of compensation to be successful, and the absence of the objective external reference presents a challenge to the claimant as will be discussed below. It is important to establish injury and causation particularly in the worker’s compensation scenario. Tort law awards damages to compensates the claimant who experiences harm from the defendant’s wrongful conduct or negligence, as the claimant has to bear the costs of an injury. This essay will focus on the issue of chronic lower back pain in the context of Workers Compensation regime under the law. I will discuss the admissibility of the diagnosis of chronic low back pain as a scientific condition requiring expert knowledge and skills to be established before the court of law. The Evidence Act s79 states that expert opinion needs to be based wholly or substantially in specialised knowledge based on the person’s training, study or experience. The expert’s role is to give an opinion as evidence to help. “. Borrowing from landmark US cases establishing more specific criteria on expert evidence acceptability, I wish to highlight that the syndrome itself is a scientifically verifiable syndrome, but scientifically and legally, it is difficult for physicians to establish the diagnosis and causation of the syndrome on an individual basis. Taking a defencse expert point of view, I will focus on the expert opinion’s limitations in the scientific tools and knowledge on which to base his opinion. Then I will examine the intervening factors that in the Worker’s Compensation context, the issues of malingering, somatising, perceived injustice, compensation are intervening factors that obscures the true extent of the impairments from the pain condition. From a legal point of view, disentangling psychological from the physical cause of impairment in an condition that inherently is contributory by both, means that the apportionment will be imprecise or impossible. Furthermore, in establishing causation, the foreseeability of injury is a vital issue. These are issues current medical science is not certain on. Furthermore, the workplace relationship with causation of injury is contestable. The use of workplace safety expert may be warranted in establishing or refuting liability. I will conclude by providing my opinion on the use of multimodal assessments as well as combination of experts, to make the opinions more reliable and valid.
In 1993, the US Supreme Court gave a landmark decision in Daubert v Merrell Dow Pharmaceuticals, Inc. on the standard of expert evidence presentable to the court. The Supreme Court held that the Federal Rules of Evidence, Rule 702, which permits experts to testify on matters of “scientific, technical or other specialized knowledge” for assisting the judge or jury to understand the evidence also places limits on the admissibility of such evidence by assigning the task of assessing that expert’s testimony rests on a reliable foundation and is relevant to the task at hand on trial judge. The court held that an expert’s testimony must be based on scientific knowledge and be grounded in the methodology and reasoning of science. As per the decision in Daubert, the “gatekeeping” responsibility is on the trial judge and there are four suggested factors for screening expert scientific testimony by the court.
Whilst the Supreme Court in Daubert did not set out a definitive check list, the factors the trial judge considers are:
Whether the theory has been tested to determine if it can be falsified;
Whether the theory has been peer reviewed or published;
The known or potential error rate and standards for the operation of the theory or technique; and
Whether the theory received general acceptance by the relevant scientific community.
These factors are discussed in some detail in the ensuing paragraphs.
Whether the theory has been tested to determine if it can be falsified
In 1954, Bonica and Hoffman proposed the idea that “chronic pain is pain that continues beyond the expected healing time”. In 1959, Engel discussed the idea of psychogenic pain in pain prone patients where organic pathology is not necessary for some people to have pain. In 1980, DSM III included psychogenic pain disorder where there is no pathophysiological explanation for the length and severity of pain. The concept is controversial although psychological factors influencing perception and expression of pain are well accepted. In 1965, Melzack and Wall proposed the gate control theory of pain, that which posits that descending pathways from the brain influences how pain is perceived by the affected person. This has since been the mechanism by which chronic pain is understood as a syndrome.
Whether the theory has been peer reviewed or published
Chronic pain has been widely accepted as a syndrome with various journals and international communities like IASP established to further its assessment treatment and diagnosis. The question before the court would be whether the expert is relying on a theory that has been peer reviewed or published.
The known or potential error rate and standards for the operation of the theory or technique
Chronic pain is defined by the IASP as “pain that persists past normal healing time and hence lacks the acute warning function of physiological nociception”. The evidence based classification of chronic low back pain lists five dimensions of the condition, listing the following: 1) core diagnostic symptoms;, 2) common features;, 3) common medical and psychiatric comorbidities;, 4) neurobiological, psychosocial and functional consequences; and 5) putative neurobiological and psychosocial mechanisms, risk factors and protective factors as a way of formulating the mechanism of the symptoms.
Whilst chronic low back pain is a widely accepted phenomenon, its diagnostic criteria is, in fact, not firmly established. This was discussed at the very outset of this essay above.
In systematic review of 86 homogenous articles, with respect to the defining criteria of chronic low back pain, there were variations in use of the terms “chronic” “non specific” and “low back”. As a result, studies would include a heterogenous group of patients who would respond differently to treatment.
Furthermore, many publications did not differentiate between medically unexplained symptoms and chronic pain. There is no consensus in how to define and classify the major pain types that can occur in a person with spinal cord injury. The lack of consistent criteria and classification makes it difficult to compare results between studies to develop valid diagnostic criteria. However, there are research standards to characterise the pain condition.
Given the variation in diagnostic criteria, it can be posited that the error rate in its diagnosis is therefore also highly variable. The diagnosis overlaps with several psychiatric diagnoses. Diagnostic validity is also dependent on the population it is placed upon.
Given the widespread acceptance of chronic low back pain being a medical condition, it would be remiss of a defencse expert to dismiss the diagnosis. Overriding theme about chronic pain is that the cause of chronic pain is not fully understood. Structural cause may not be found but the emotional distress and disablement cased by the pain are real to those who are affected by it. The focus of the defencse would be on how the scientific theory applies to the injured worker.
Whether the theory received general acceptance by the relevant scientific community.
The number of international scientific societies and diagnostic manuals for chronic pain would firmly establish that chronic low back pain is a condition generally accepted by the medical community.
I conclude that chronic low back pain is a medical condition that has reasonable scientific robustness to be admissible to the courts.
Judges do not receive training on the degree of pain that should be associated with different medical conditions. An expert medical opinion to form the diagnosis and comment on the mechanism of the development of the condition, would be appropriate for the court. It is also in accordance with established precedent in comparable jurisdictions like the US. Apart from the Daubert decision of the US Supreme Court, there are two other judgments of that court that would be appropriate to be mentioned here to note the point that there is established precedent for allowing expert testimony on worker compensation cases.
In General Electric Co. v. Joiner, the Supreme Court has accepted that the trial court can accept the expert opinion, it can exclude evidence that is not relevant to the particular case. Furthermore, in Kumho, the Supreme Court extended its reasoning on skill- or experience-based observation to all expert testimony.
The decisions discussed in this section suggest that the courts can hear expert testimony on chronic pain cases provided that the expert has skill or experience, bases their testimony on scientific data and such testimony is relevant to the case.
Symptom validity tests are assessments to identify intentional poor performance. The claimant is to identify the option from a number of other options. Certain tests have been shown to identify exaggerated cognitive impairment in chronic pain clients. In a study of 193 litigants with pain being evaluated for retraining, only 1% scored below the cut-off scores for Test of Memory Malingering. This is compared to a sample of patients being evaluated for financial incentive, 17% scored below the cut-off. This suggests that patients with pain may be exaggerating their cognitive impairment if compensation is involved. It has been shown that when patients are given 6-9 symptom validity tests, 25-30% with chronic pain involved in litigation will fail more than 2 tests, compared to very few in nonlitigating patients. Defencse expert neuropsychologist should know that there was only one study of patients with spinal pathology with a sample of 30 participants, which found that malingering patients failed more than one symptom validity test for malingered cognitive dysfunction. It concluded that scores on the MMPI 2 FBS can reliably identify malingering in chronic pain. Using a scale for exaggerated cognitive dysfunction to identify malingering pain is not appropriate. It is not possible to know if these patients were exaggerating both pain and cognitive dysfunction. The study did not report on specific inconsistencies to warrant the classification. The modified somatic perceptions questionnaire is a 13 item questionnaire used to detect exaggerated somatic and autonomic awareness due to depression and anxiety in patients with back pain. It asks patients to rate the symptoms like nausea, pain or muscle pain in the last week on a 4- point scale. It was reported that this questionnaire had a sensitivity of 69% for malingering pain patients with only 1% false positive rate. However, the study was only with a sample of 29 litigants and never assessed the extent of malingered pain. Most of the litigants also had head injury. A study with higher cut-off sores using this test found a sensitivity of 48% and 10 % false positive rate. These tests provide evidence of somatisation and malingering as no better than chance. In reviewing 328 references in relation to chronic pain and malingering, no reliable method to detect malingering within chronic pain patients was found showing that. repetitive testing is not reliable. Defencse experts will need to acknowledge that statistical cut-offs have not been established reliably. Furthermore, these tests are not specific to pain condition. Whilst the claimant may fail validity tests cognitively, it cannot be generalised into the person malingering or exaggerating the pain condition. This is reflected by the position statement from American Academy of Clinical Neuropsychologists. In this statement, it has been reiterated that the determination of malingering is a probability proposition, and that different types of validity tests are appropriate.
Brain imaging is a promising assessment tool for identifying mechanisms that underlies, transition to and maintaining chronic pain. Current measures however can only be used to understand brain mechanisms underlying the pain, factors leading to persistence of pain and targets in the brain for pain management. Using brain imaging as legal evidence of an individual’s pain is not advisable because the specificity and sensitivity of these tests with validated protocols have not been developed. Solicitors often think that fMRI or other functional neuroimaging make juries think the complaints are more objective than they are. It is known that non- experts rate readings about behaviour more convincingly when there are irrelevant images of the brain accompanied. Nociceptive stimuli trigger cognitive, emotional, motivational, autonomic and motor processes that are not specific to pain but are part of the pain experience. Hence many features of brain activity associated with pain are not specific to pain. No brain area or networks have been specifically and exclusively linked to chronic pain in the research studies so far. Reverse inference is an ongoing problem - inferring a particular mental state from a certain pattern of brain activity, and it depends on the accuracy of the person being in a state of pain at the time. The imaging will also need to identify how often that pattern occurs when the person is not in pain. A given fMRI pattern does not necessarily mean it is purely from pain perception causing that pattern. Inter individual differences in physiology – fitness, elevation levels, hormones, means that patterns of abnormalities cannot readily be translatable to another patient. It is therefore inadvisable to use neuroimaging to confirm or refute a diagnosis of chronic low back pain in a compensation claim. An expert clinician is likely to be extensively questioned on the lack of specificity of the findings. Defencse experts should emphasise that it is well known that MRI and CT images of low back will often identify abnormalities even in asymptomatic people. Organic changes in imaging does not establish or refute the possibility of chronic low back pain being present.
The Waddell signs were merely indicators of possible psychological overlay in addition to physical problem. Systematic reviews have found that Waddell signs do not discriminate organic from non organic pain problems and are not associated with secondary gain. Furthermore, pain behaviours are not necessarily under conscious control whereas malingering is a conscious feigning of pain. Therefore it is inadvisable for the defencse expert to comment on pain behaviours as evidence for or against the presence of chronic low back pain. In Crowhborn v Boyle, the court disallowed the physician’s opinion for linking back pain to the driver’s occupation. The orthopaedic surgeon from defencse opined that the soft tissue injuries should have resolved over 6 weeks and thus it could be surmised that the claimant was malingering. The judge quite rightly, disputed the orthopaedic surgeon use of Waddell sign as indicator of malingering “as plaintiffs point out, clinical studies show that the signs often appear in patients with no motive towards malingering, that is, those not involved in anything like litigation setting, but nonetheless seek clinical treatment.”
Efforts bias have also been studied to identify malingered pain. These tests require the patient to exert maximal effort throughout the examination. Those deliberately performing below their maximum capacity is an indicator proposed to show more variable force in the examination. However, review of this literature have concluded that coefficient variation scores, force output curves, ratios of peak force, all cannot reliably identify effort bias. There is no way to know whether submaximal effort is due to genuine loss of strength or deliberate inadequate exertion. It also cannot take into account the fluctuating nature of pain causing variability in effort. Expert clinicians should not rely on this measure to invalidate a claimant’s complaint of chronic pain. In summary, chronic pain is a scientifically valid condition but there are no objective tests that can validate the diagnosis in and of itself. Therefore, the diagnosis is heavily reiliant on the claimant being honest about the level of pain and it is associated impairment on his functioning. Defencse experts however can and should draw on the following intervening factors as influencing the claimant’s complaint, in excess to the organic validity of the diagnosis.
Somatisation disorder is a new category in the DSM 5 characterised by a person having excessive thoughts, feelings or behaviours related to a somatic symptom leading to anxiety and distress. It is recognised that once a medical condition becomes chronic, distress illness behaviour and sick role are psychosocial layers that ensue. Somatisation disorderThis is a psychiatric diagnosis. Clinicians who diagnose the back pain are generally orthopaedic surgeons or spinal surgeons as their expertise is in the anatomy and conditions of the low back. A psychiatrist’s training and specialised knowledge is necessary to fulfil the Evidence Act’s S79 requirement to provide such an expert opinion. Studies have estimated up to 51.5% patients with chronic low back pain have other somatisation symptoms compared to controls 8.2%. Somatisation has been found to be almost inherent in chronic medical conditions that a person develops focus and distress in chronic pain. In a study of 1678 community living individuals, 57% had chronic pain, 71% of them had somatic symptoms disorder as well. The correlation was statistically significant. It is a manifestation of distress that is almost impossible to distinguish from organically caused pain impairment, whether it be physical or psychological. Where impairment appears disproportionate to the organic evidence of injury or damage, defencse expert psychiatric opinion can establish the psychological overlay impacting on the claimant’s presentation. The expert however should be cautious that somatisation (and factitious) disorders are not conscious feigning of symptoms. The claimant’s impairment is, according to the diagnosis, unconscious and psychologically driven, nonetheless real.
In an observational cohort study, 433 participates from Victorian Orthopaedic Trauma Outcomes Registry and Victorian State Trauma Registry completed questionnaires at a period point of 12 to 14 months after injury. The study found perceived injustice strongly associated with sustaining an injury that required longer hospitalisation, with the beliefve that another was at fault and this led to consulting a lawyer. Injury severity was only associated with attribution of blame and not perceptions of severity or irreparable losses. It concluded that in traumatic injury, health impact, emotional distress related to pain, perceived impact of pain on activity had stronger associations with perceptions of injustice than the injury or pain severity. Whilst this is an association and subject to confounding factors, the conviction that the claimant has in attributing an external cause and in, being a victim in the situation, would increase the probability of psychological factors overlaying the reported impairment.
In compensation context, the defendant actions need to be causal to the onset of pain condition. The eggshell skull rule means that plaintiff who have pre-existing fragility are still entitled to compensation, if there is an injury established. The eggshell rule can be applied where the defendant is in breach of duty to the claimant where it was foreseeable that the claimant would suffer some physical injury and has a particular susceptibility or abnormality which leads to more serious injury or injury that is different from that which was foreseeable. If the defencse expert can establish that the claimant has prior episodes of back pain from previous medical records, then causation is not established. Psychiatric expert should point out that frequently comorbid depression and anxiety will make the perception of pain, impairment from pain worse. The disabilities of not going out, social withdrawal, can be attributable to pain limiting mobility or to amotivation and fatigue associated with depression and anxiety. One aspect of the role of the expert psychiatrist in chronic low back pain compensation claim is therefore to apportion between psychological and physical pain and how much of it the person has control over or should have control over.
Common law has always held a distrust for claims based on injured feelings, mental stress, anxiety and other non pecuniary claims. State governments have responded to the crisis in injury claims by limiting compensation for loss of earnings and for pain and suffering. Common stigma of people with psychological problems and chronic pain are that they are motivated by secondary gain. Canadian court has referred fibromyalgia as a disorder “often found in individuals who will not or cannot cope with everyday stresses of life and convert this inability into acceptable physical symptoms to avoid dealing with reality.” Empirically, this view has some validity. 50% of the compensation seeking chronic pain claimants fail the symptom validity tests. When warned that poor test results would cause doubt as to the veracity of their claims, they had a decline in failure rate to 6%. In contrast, no patients with rheumatoid arthritis and non-disability seeking fibromyalgia claimants failed those tests. Best available literature suggests that 10% increase in workers’ compensation benefits leads to 10-11% increase in the number of claims and lengthens the claims between 2-11%, or 2-5 more days off work because of back pain. In the absence of compensation, disability would reduce by 24% in those who returned to work. Thus, the influence of compensation on the pain symptoms and impairment is significant. There are different standards in the compensability of the consequences of a physical injury and psychological consequences of an injury. Workplace Injury Rehabilitation and Compensation Act 2013 s325 (2) (h) and (i), and the Accident Compensation Act 1985 s 134AB (38) (h) and (i) are relevant here and are discussed below. (h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise; (i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise. In Parliamentary Debates for Accident Compensation Bill 2000, it was stated that psychological or psychiatric consequences of a physical injury are not to be combined. This means that the court would have to deem the loss of body function or permanent impairment to be “serious” compared to a permanent mental disorder must be “severe” When considering whether a physical injury is serious, the court must not consider pain and suffering without organic basis because non organic injury “should never be sufficient to satisfy the serious injury test”. Given that the definition of chronic back pain involves a subjective component, disregarding any psychological causes to pain would seem impossible. In other words, it would be difficult or problematic to ignore the psychological aspect of pain while assessing the level of pain an individual is in at a point in time. At the same time, physical injury and psychological consequences of the injury are not one and the same concepts. This was is to ensure that psychological or psychiatric consequences of a physical injury and a physical injury are not conflated. The definition of "serious injury" in s 93(17) of the Act intends to maintain a division between injuries with physical consequences, which fall within para (a) of the definition, and injuries with mental consequences, which fall within para (c) of the definition. This is in line with the statement made above that there must not be conflation between physical injury and psychological consequences. In effect, all kinds of injuries are different in terms of the psychological consequences created by the injuries and it may fall to the courts to consider which will be the nature of the injury in the given case.
In Transport Accident Commission v Kamel, the court has explained the definition of serious injury in s 93(17) in the way described below with the court focussing on these aspects. The inquiry that must be made under para (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Functional overlay is not justified serious physical injury. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under para (c) rather than under para (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within para (a) unless it is predominantly the product of the organic condition. The court may have to assess which kind of injury is relevant to the case before it as per the definition, but at times, the court may be required to see whether one or the other test may be applied because in some cases the injuries caused may have physical as well as mental consequences for the plaintiff, and this may lead to the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a ‘serious’ one. This was the consideration of the court in Jovceva v Transport Accident Commission. The Court of Appeal held that in such circumstances, the court will be able to decide which test would be appropriate on the basis of the dominant cause of the plaintiff’s condition. Judges usually have a two step approach to separate the physical and psychological injuries. Firstly, the judge determines if there is substantial organic cause for the injury. If the injury is serious, then the judge would not have to consider if the psychological aspect meet the threshold of serious psychological injury. In chronic lower back pain, there often may not be, or there is pre existing evidence of pathology prior to the onset of the pain impairment. Then the judge needs to separate the psychological component of the pain and suffering compared to the physical injury and assess if it meets the serious injury test. For workplace injuries, to meet the seriousness injury threshold, often referred to as the ‘narrative test’, it requires that the mental or behavioural disturbance or disorder to be severe subjectively. The severity is to be objectively compared with a range or “spectrum” of comparable cases. The ‘narrative test’ is used under ss 324-347 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) as well as other legislations to assess the seriousness of injury of the claimant. There are statutory and common law requirements needed to satisfy the application of narrative test. The narrative test has been criticised as "imprecise and impressionistic criteria" which gives rise to a likely divergence of views and is "inimical to certainty and predictability of outcome." If damages reach this threshold then the judge can refer to a statutory assessment table. But these calculations are highly influenced by emotional response to the claimant. The award tends to reflect claimant’s ability to convey his pain and suffering.
A court considering the question will need to contemplate what in practical terms is embraced by “a most extreme case”. In Kurrie v Azouri, Judge Sheppard commented that ‘a most extreme case’ provide oneself with a yardstick as to what the legislature had in mind’ giving examples of serious disfigurement to young children, serious brain injury, burns. Using this yardstick, the court of Southgate v Waterford considered surveillance data showing the claimant going about her daily activities, albeit with some assistance with her interactions with the children and proportioned damages with the cap of the statutory maximum retained as for “a most extreme case”. It is therefore important for defencse experts to perform functional assessments and request for collateral information like surveillance, to establish the claimant’s function in day-to-day activities. It is understood that courts have a more sceptical attitude towards claimants making exorbitant claims of damages. Claimants not engaging in their rehabilitation or attempts to look for alternative work also engenders this perception or scepticism. Defence expert should exploit this natural bias in establishing claimant’s efforts in their own recovery. Two more cases can be considered here: Coleman v Barrat and Woolworths Ltd v Lawlor. Both cases involved the respective claimants suffering a fall. In the first case, the claimant was working as legal secretary whilst in the second case, Mrs Lawlor was a court officer. Both suffered ongoing pain. Ms Barrat had to adjust her work and hobbies to accommodate the level of pain and discomfort. She had pre existing conditions of multiple sclerosis in remission and Paget’s disease. Her non economic loss was assessed at 30% under CLA 2002 NSW s3. In the Court of Appeal it was reduced to 22%, meaning a reduction from 88500 to 17500 award. In Lawlor, the claimant had pre existing degenerative conditions in her neck and lower back which were aggravated by the injury. She alleged that all of her amenity of life, apart from one, had ceased because of the ongoing pain. She was paid 219536.60 including 90000 for non economic loss, 126 453.60 for past and future domestic assistance. Whilst acknowledging that minds may differ, there is still a lack of precise reasons as to why trial judges would assess Mrs Lawlor’s pain and suffering to be worth five times more than that of Ms Barrat’s. This is the relevant point with reference to how courts assess the level of injury and decide upon the compensation due to the claimant. Consider the UK case of Smith v Ashwell Maintenance Limited. In July 2013, the claimant slipped and injured his ankle in the course of employment. He claimed ongoing severe debilitation and consequently was unable to work and provide for his family. Extensive covert surveillance plus the claimant appearing on a TV programme in March and April 2014 where he undertook a range of DIY activities without difficulties suggested otherwise. The claimant claimed that he was on a lot of pain medication at the time of the TV programme and his son was earning at the time leading to the financial transactions in his bank account. He minimised the work as seen on video surveillance. He was also noted to comment in his GP consultation notes, the GP 45 min wait “cost him a job”. He contended that it reflected only his son’s jobs. The judge found these explanations plausible and criticised the defendant and their orthopaedic expert that “from the earliest intimation of a claim, the defendant had shown a determination to avoid fully compensating him”. Although the witness who was to testify that the claimant fitted a boiler after the claimant’s injury, said at trial, the witness did not make the witness summary. The judge quoted from a pain consultant’s article that “outright faking of pain for financial gain is rare, but exaggeration is not, especially if the patient is involved in litigation. It is often difficult to determine whether this represents an attempt to convince or deceive the clinician.” The judge found that there had been exaggeration. Surveillance was only a “snapshot”. There was no fabrication of evidence and the court observed: “Faking pain, as described by the learned authors referred to above, would almost undoubtedly amount to fundamental dishonesty. Exaggeration, with mixed motives of attempting to convince or deceive, is not”. In the face of this type of leniency towards claimants, the line between conscious exaggeration for an honest purpose and reckless false statement becomes quite blurred. It does however reflect on the point that the expert opinion is only part of an array of evidence the court considers, in reaching its decision about a claimant. The court certainly does not depend only on the expert evidence.
Evidence of severe psychological injury may include different aspects including hospitalisation, psychiatric treatment, medication, suicidal ideation or attempts to suicide. Plaintiff may have evidence of going to many doctors and having had significant amount of treatment. This does not however negate the need to establish actual functional loss or changes compared to pre injury period of the claimant. In Clayton v Jetcrete, the plaintiff reported receiving chiropractor treatment to alleviate her back pain following workplace injury. The judge however did not accept that this ought to have alerted the supervisors that she was not actually fit for work. With psychiatric injuries, it is important not to conflate the symptoms of the disorder with the consequence. In TAC v Katanas , the Court observed (at [29]): “her reported experience of flashbacks and nightmares might properly be described as both a symptom of her post-traumatic stress disorder, and a consequence of the disorder. It is important to bear in mind, therefore, that in assessing the severity of mental disorders or disturbances, what might be characterised as a symptom may also be relevant as a consequence.” By corollary, chronic pain impairments of social withdrawal, sleep disturbances, may be inherent in the pain condition rather than being manifestation of a separate psychological condition. Whilst medically it is not possible to separate the aetiology of these impairments, the defencse expert can take care in alerting the court to the common comorbid somatisation and psychological responses to chronic low back pain that judge, or jury would each attribute contributory weight to the claimant’s impairment. Courts have however found this separation difficult and the rule has been criticised by many. In Noori v Topaz Fine Foods Pty Ltd, the Court of Appeal upheld an appeal and granted leave on the basis of a permanent severe mental disturbance or disorder, in a case where the plaintiff’s pain condition had no organic basis, observing the following: “With respect to the judge, it was neither necessary nor appropriate to separate out or ‘disentangle’ the consequences of the applicant’s pre-existing psychiatric condition. On the contrary, it was of the essence of his claim that his experience of pain was the consequence of his pre-existing condition and that it was the accident which ‘triggered’ that condition.” The judge recognised the claimant’s pre-existing psychiatric vulnerability nonetheless it was the workplace accident, even though “relatively innocuous” causing profoundly disabling pain symptoms. In contrast to the above, in Lovison v Ttransport Accident Commission VCAT 2001, a motor vehicle accident occurred in 1998 and Lovison’s function was significantly impaired. But medical tests provided little objective evidence of the ongoing injury. The expert diagnosed the claimant with chronic pain syndrome. Judge Strong in Lovison did not separate the restriction of movement from pain and restriction of movement by psychological factors. Judge Strong said that there was no need to justify differentiating between organically driven physical impairment and functionally driven impairment as long as the impairment is real and is connected to the accident. However, the Ccourt of Aappeal accepted the appeal from TAC that Chap 1 of the AMA Guides is only applicable for permanent impairment from restrictions of movement due to anatomical or physiological factors, not functional factors.
At the Ccounty Ccourt at appeal, the judge in Zhang v Joy Foods Australia Pty Ltd rejected the expert occupational physician’s findings of deliberate exaggeration on the claimant’s part because the physician failed to consider the emotional and psychological stress she was under nor did he set out his reasons to conclude that the worker had a good employment history and suddenly lost motivation to work. There was also no explanation in explaining her efforts to rehabilitate herself. He also failed to comment on the organic findings. These are notable criticisms for defencse experts to take note of. In opining conscious exaggeration or dishonesty of symptoms, the defencse expert needs to be able to demonstrate why this claimant is presenting this way at this time. If the physical injury expert concludes that the impairment is in excess of the organic basis for impairment, then psychiatric assessment is useful to firstly exclude a psychiatric illness, and. secondly, psychiatric formulation takes into account the person’s developmental history, social and relational history as well as medical history to come to answer the question “why this person, in this way, at this time”. An expert psychiatrist can provide helpful explanation taking into account the whole person’s view to address the criticisms of the judge.
It should be acknowledged that there are fundamental differences in the approach to proof or evidence between the fields of medicine and law. Medicine is a science where proof is made by experiment and observation. In the field of law, evidential requirements are based on legislation and judgments. A medical fact is experimentally supported and clinically determined. A legal fact is based on a balance of probabilities, the fact is more likely than not, to be true. For the establishment of balance of probabilities, the claimant is required to convince the court that on the basis of factual data, the fact is more likely to be true than untrue. In establishing causal link between injury and chronic pain, it is useful to consider Seltsam Pty Limited v McGuiness, There is a tension between the suggestion that any increased risk is sufficient to constitute a "material contribution", and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The "possibility" or "risk" that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X. 120 .. However, in its application to determining causation in the specific case of the Respondent that evidence never rises above the level of a possibility. Whether or not the increased risk "eventuated", is the issue which must be determined. Expert witnesses can and are often asked to give an opinion on the cause of the back pain. As there are often asymptomatic changes in the spine that are only discovered on imaging in the context of litigation, the medical expert should take care to identify any acute changes from chronic degenerative changes of the spine. Prior scans and post injury scans can serve as useful evidence to quantify any qualitative changes that might be attributable to the physical event allegedly causing the injury. Whilst the pain condition may not be refuted in spite of the absence of radiological evidence, it is worth noting that in a systematic review of the literature with 2766 citations, there was strong evidence from 6 high quality studies that there was no association between lower back pain and posture. There was strong evidence that there is no temporal relationship between awkward posture and back pain. The review concluded that it is unlikely that awkward occupational postures cause lower back pain in their population. Whilst the defencse witness would have to qualify this to be limited to only assessing posture as a cause to lower back pain, he may also comment on the lack of other causative studies linking lower back pain to any particular event, behaviour or posture. Temporal association is not necessarily sufficient for establishing causation. Furthermore, muscle or ligament strain are also related to a person’s weight and fitness. Only a small proportion of people have a well understood pathological cause to their chronic low back pain. This uncertainty can be exploited by defencse medical experts. Therefore, this is one of the areas that need attention from the courts.
In the case of Clayton v Jetcrete, the plaintiff was a concrete agitator truck driver working fly in fly out. She alleged a back injury from work in 2012 when she was pushing regulating the flow of concrete down the chute of a concrete truck. During a period whilst off work, she was treated for sciatica. When she went back to work, she alleged the pain was due to work. the plaintiff had credibility issues - she misreported pre-existing back and psychiatric injuries. Her evidence was vastly different from the defendant witness description of the mechanism pushing concrete down the chute. The plaintiff used a safety expert, engineering consultant, who commented that the handling technique would always be considered “ergonomically unsound” and it can be anticipated that some workers performing the task will report musculoskeletal damage. He stated that task specific risk assessment, more appropriate manual handling training, procedures should have been taken. The judge in this instance termed this as “advocacy” rather than evidence. She commented that the literature quoted were academic and beyond the expected knowledge of an employer. The task alleged to have caused the pain, could not be anticipated. She commented that the expert evidence was written through hindsight which has no place in the assessment of risk of injury. Whilst the criticism against the expert here is non-medical, the judge’s comments are cautionary for medical expert witnesses. Furthermore, in this case, 3 medical experts were called upon. All diagnosed musculoskeletal injury to her lower spine although from the judgement, it was unclear if they commented on causation. Two medical experts however believed that she would fully recover, whilst the one favoured by the judge, assessed the plaintiff to likely be permanently restricted. The two experts only acknowledged pre existing degeneration to be minor at cross examination and only acknowledged a certain proportion of people with musculoligamentous strain injuries may not recover for up to 2 years. The judge’s comments bring up one of the frequent criticisms of expert witness in court, that there is a tendencys to be biased. In terms of the medical expert evidence, it highlights the need for experts to acknowledge the limits of their opinion, in its application and the existence of outliers in. medicine, when generalisation or epidemiological data are quoted. Medical diagnosis of chronic low back pain would always be made in hindsight, but it is also important for medical experts to have significant clinical practice so that their process of diagnoseis, examination and recommendation on treatments are actually implementable in the real world, as opposed to in research. Given the uncertainties, medically speaking, in establishing causation in lower back pain, the question may be, who should be the experts in providing an opinion.
As the first part of the essay established, there is now a wide volume of scientific or biopsychosocial theories to provide aetiological explanation for chronic low back pain. Medical expert can provide opinion on the cause of the pain, in reference to anatomical and neurological structures like nerve roots, intervertebral discs, joints and fascial structures. General practitioners, occupational physicians, pain specialists, rheumatologist, orthopaedic and spinal surgeons, psychiatrists as well as physiotherapist and occupational therapists can all be involved in the diagnosis and management of chronic low back pain. In the context of worker’s compensation, if a person had a spinal injury, the most appropriate person to make such a diagnosis would likely be a spinal surgeon or orthopaedic surgeon with spinal interest. The narrower field of expertise should mean the expert has more awareness of the research and nuances of the diagnosis. Whilst pain specialists are often involved in the treatment of chronic low back pain, their back grounds vary. It is a post specialist qualification, so pain medicine physicians generally have medical qualification already. They vary including anaesthesia, medicine, surgery, psychiatry or rehabilitation medicine. They are more involved in the treatment of pain rather than diagnosing chronic low back pain. For the purpose of establishing diagnosis or causation, pain specialists may not be able to provide a robust opinion on the event that leads to the cause of the back pain. Occupational medicine aims to take a preventative approach to health and safety in the workplace, examining how the work place can affect a person’s health and vice versa. The role of an occupational physician is to provide specialist knowledge to government, employers and workers as well as other health professionals, on how to maintain a worker’s health and wellbeing. Again, it is a post specialist qualification, so occupational physicians can be physicians, general practitioners with additional occupational and environmental health training. Occupational physicians are more involved in the preventative aspects and they are generalists. Their understanding of the occupational environment is also general. Therefore, this specialty is unlikely going to benefit the defencse in establishing or refuting causation in work place injury. Given the frequent comorbid psychiatric diagnoses alluded to at the beginning of the essay, psychiatrists are helpful in establishing or refuting the psychosocial aspects to chronic pain. If there is pre existing psychiatric vulnerability or significant concurrent psychosocial stressors around the time of alleged injury, psychiatric opinion can be helpful in determining whether the claimants may show evidence of somatisation, adjustment disorder leading to functional overlay of the pain syndrome. Allied health professionals that may be involved in the treatment and rehabilitation of the worker may be helpful in providing collateral information on the claimant’s actual function and capacity. But their evidence can also be substituted by physical examination by the surgeon or surveillance evidence. Although the value in their input would be that these clinicians would have observed the claimant over a period of time for treatment and therefore overcome the “snap shot” nature of one off examinations. In my opinion, the use of treating clinicians in this area is helpful for the continuity of care aspect of the claimant’s progress. It is also easier to observe for inconsistencies over a period of time. As Clayton v Jetcrete demonstrated, there are companies with “safety experts” who specialise in investigating work place incidents. It is however arguable whether their training and knowledge would include how a certain movement or work role can cause back pain. Ideally, an orthopaedic or spinal surgeon along with a workplace safety expert would likely serve as relevant experts to discuss issues of causation and diagnosis. In terms of damages, surveillance and allied professionals involved in the treatment would be in a reasonable position to provide some sense of treatment response and likelihood of residual impairment. Whilst it is possible that claimants may stall recovery in order to obtain more damages, evidence is suggests that pain management seldom has an impact on response for pain management programmes. With the use of experts in any field, a report that is logical and easy to follow is more likely to be favoured by the court. In LC by his litigation guardian KS v Australian Captial Territory, Justice Burns explicated that he preferred the evidence given by one psychiatrist over the other, because the evidence given “accords with logical and common sense”. This suggests that judges without the benefit of clinical or medical training may also use their own understanding to prefer the evidence provided by one expert over the other because it appears to be logical to the judge.
Chronic low back pain is the most common musculoskeletal condition that affects adults worldwide. Back pain is defined as chronic if it lasts beyond the expected period of healing, often quoted as 12 weeks. It is a leading cause of disability in the workforce. This essay demonstrated that although the pain is common, there may be complications in the way of establishing it for the purpose of compensation. The neuroscientific model of chronic pain is generally accepted. It involves peripheral nociception of injury, central sensitisation leading to ongoing stimulation of pain circuits in the brain, even without ongoing injury. There had been decades of research and thousands of studies on chronic pain. Major studies have been peer reviewed and published. Because of its involvement of the central nervous system, it is associated with cognitive symptoms and its association in psychiatric illnesses has been well established although no causative link has been made. In establishing diagnosis, the expert may require a number of investigations. None of them are diagnostic in and of itself. There are too many confounding factors, a lack of specificity and sensitivity to neuropsychological testing to conclusively exclude malingering or somatisation. Neuroimaging cannot identify specifically if a person is experiencing pain as opposed to the negative emotions associated with pain, or is simply feigning pain. The use of clinical behavioural signs or questionnaires are equally unreliable in establishing the true extent of pain associated impairment. As an expert witness, careful reading through medical records is essential. The absence of medical records for consultations from GP for back issues would suggest the injury was due to the accident. Pre accident occupational health records can help establish if the person already had symptoms years before. Other pain related conditions like IBS, chronic fatigue, psychological history, are also guidance on understanding the person’s psychological vulnerability to injury and point towards whether there is likelihood of somatisation or depression and anxiety influencing impairment. Past psychiatric history, treatments with antidepressants may establish the claimant to have “eggshell skull” although it would not necessarily alter the cause of the injury. Indeed, courts have awarded damages for pain without organic basis because of identification that the person psychologically is vulnerable. Nonetheless, the use of an expert psychiatrist is helpful because the history from expert psychiatrists often take the history in far more detail and in a way that is broader than other experts. Comments on relationships, employment history can bring the court to inconsistencies. Often the claimant idealises life prior to the accident. The court can go through medical records to identify inaccuracies with the client history. These can further be cross checked by the subpoena of medical and employment records. Medical consultations or treatments with other health professionals and what treatments were given, particularly if they pertain to back problems can also be useful. It is possible that treatments by alternative practitioners like chiropractor have manipulated their backs causing the bulging disc or exacerbated the damage. In essence, the defencse team along with the expert is looking for reasons to doubt the credibility of the plaintiff. Police reports with photos of low impact accidents are helpful in conveying to the court that the injury and damages are truly minimal. Similarly, imaging of the claimant’s spine before and after the injury would be helpful in conveying the absence or small changes that is attributed to the generator of back pain. Even though in the expert report, it should be acknowledged that chronic back pain can occur even without evidence of organic damage. In manipulating the court’s bias, the absence of change, casts doubt on the plaintiff’s credibility. It is however unwise for the expert to outright refute the possibility of the person suffering pain because it is a subjective experience, whilst not entirely reliable, subjective reporting of pain remains the next best alternative to assessing the presence of pain. Experts witness should also acknowledge the limits of their expertise. Medical experts are not expert at assessing what event or work role likely triggered the pain syndrome although they can comment on how the pain syndrome developed anatomically. Assumptions on examination, that the claimant is being truthful and giving their best efforts, should be laid clear. In this way, the expert preserves his credibility should the claimant present differently at trial. Defencse experts should pay attention to missed appointments or delays in seeking treatment. Whilst speculation is not advisable, alerting the court to these incidents would further attack the credibility of the claimant in their motivation to recover or to return to work.
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