Pain in the Brain: Worker’s Compensation Claims for CRPS-I in Australia (Abstract)

I recently submitted the following abstract to the organisers of a conference called Neuroscience and Society: Ethical, Legal and Clinical Implications of Neuroscience Research, an event scheduled for mid-September, 2017, in Sydney. Since there’s apparently only a very limited pool of speakers, I’m not sure if my paper will be accepted for presentation. But the organisers have also noted that they will invite some attendees to develop posters for the conference; so, if I’m asked to do so, perhaps I’ll make a poster to outline my findings. (It would neatly dovetail my interest in design and research.) Some speakers will also be invited to submit their papers to Neuroethics—one of the journals I had in mind when I began this work (another was the Journal of Law and Medicine). Even if I’m not one of the lucky speakers, I think I’ll ultimately submit the article (of which this abstract forms a part) to Neuroethics.

As always, please do not use or reproduce this work without my express consent or permission. If you wish to quote from this work, please cite this website and this post. In CMoS style (for instance), use the following citation: Chris Rudge, “Pain in the Brain: Worker’s Compensation Claims for CRPS-I in Australia (Abstract),” Literature Law, Psychiatry, Politics: Notes by Chris Rudge (blog), July 18, 2017, http://www.rudge.tv/pain-in-the-brain/.

Pain in the Brain: Worker’s Compensation Claims for CRPS-I in Australia
Abstract

Neuroscientists disagree about the underlying mechanisms of chronic regional pain syndrome (CRPS), a debilitating neurological condition characterised by severe pain in the limbs. In CRPS type I, the patient typically suffers from an acute form of pain—one that is frequently not accompanied by any tissue damage or nerve lesion, and is typically disproportionate to the trauma that has incited the condition. These clinical paradoxes make CRPS-I a confounding disorder not only for scientists in medical settings, but for judges, tribunals, and claimants in legal settings.

My analysis of Australian neurolaw, undertaken in the context of working on the Australian Neurolaw Database, has revealed the high incidence of worker’s compensation claims brought in Australia by plaintiffs diagnosed with CRPS-I. While the majority of these plaintiffs are unsuccessful in attaining compensation (with most injuries found to be psychological or psychiatric, not physical or neurological, impairments), this paper analyses these tribunals’ processes, together with the legislative schemes that shape their statutory interpretation of neuroscientific evidence, to show how the legal system impacts on the assessment of chronic pain disorders, and raises crucial questions of great neuroethical import.

To compare these Australian legal cases to developments in the US, this paper will also detail a fascinating US worker’s compensation dispute of 2007 in which both the plaintiff and the defendant appointed separate pain experts to give evidence for their legal claims. What followed was a public disagreement between two distinguished professors of neuroscience about whether the plaintiff’s chronic pain could be detected in BOLD-contrast images (via fMRI). When the judge rejected a motion brought by the defence that that the plaintiff’s evidence was inadmissible—evidence that proposed chronic pain could be detected by fMRI—the defence settled the claim for an amount reportedly more than ‘ten times’ its original offer.

References

Camporesi, S., B. Barbara, and G. Zamboni. 2011. Can we finally ‘see’ pain?: Brain imaging techniques and implications for the law. Journal of Consciousness Studies 18 (9–10): 257–276.

Davis, K.D. 2016. Legal and ethical issues of using brain imaging to diagnose pain. PAIN Reports 1 (4): e577.

Reardon, S. 2015. The Painful Truth: Brain-scanning techniques promise to give an objective measure of whether someone is in pain, but researchers question whether they are reliable enough for the courtroom. Nature 518, 26 February. Retrieved July 5, 2017, from http://www.nature.com/news/neuroscience-in-court-the-painful-truth-1.16985.

Salmanowitz, N. 2015. The case for pain neuroimaging in the courtroom: Lessons from deception detection. Journal of Law and the Biosciences 2 (1): 139–148. doi: 10.1093/jlb/lsv003.

Wager, T.D. 2015. Using Neuroimaging to Understand Pain: Pattern Recognition and the Path from Brain Mapping to Mechanisms.” In The Brain Adapting with Pain: Contribution of Neuroimaging Technology to Pain Mechanisms, ed. V. Apkarian. 23–36. Philadelphia: Wolters Kluwer.

Capitalist Realism and Public Intellectualism

Although a few books, numerous essays, an art movement, a literary tradition, and an ideology have all been given the title “Capitalist Realism,” it is likely that what first springs to mind when a cultural studies scholar hears those two words is a small book published in 2009. More than six years since its publication, that book, with the long title Capitalist Realism: Is There No Alternative?, remains a lively, engaging, and valuable critique of neoliberal hegemony, a book that, as Dwight MacDonald wrote of some British journalists’ work, treats its “readers like equals,” and offers a persuasive indictment of managerialism in the “post-Fordist” era, which is to say in our global society since “October 6, 1979.”

As this volume reminds us, it was on that day, some thirty-six years ago, that “the Federal Reserve increased interest rates by 20 points,” and so prepared “the way for the ‘supply-side economics’ that would constitute the ‘economic reality’ in which we are now enmeshed.” Indeed, this event was significant—“the most widely discussed and visible macroeconomic event of the last 50 years of U.S. history,” according to one economic analysis. But unlike the many economists who celebrate Federal Reserve chairman Paul Volcker’s decision to restrict monetary supply in an attempt to staunch inflation, and contra the multitude who continue to regard Volcker’s disinflation strategy as a salutary lesson in achieving macroeconomic stability—in avoiding a major recession—here, in this book, we receive a completely different impression of the event. Capitalism Realism makes the remarkable contention that Volcker’s decision was a broad mistake of economic governance—a fateful decision with far-reaching social consequences for workers, who thenceforward faced only the grim prospect of “a new ‘flexibility,'” one defined by the broad “deregulation of Capital and labor.”

Before going any further, I will finally note that the book’s author was the writer and theorist Mark Fisher, who died last week, on the 13th of January, at the young age of 48 years old. While many have remarked on Fisher’s book—and indeed, commiserated the author’s passing—my own appreciation for Fisher’s writing, both in Capitalist Realism and elsewhere, stems from my admiration for his attempt to avow and to formalise a singular, powerful proposition: that, for a great many who are “enmeshed” in it, post-Fordist capitalism entails brutal psychic consequences. In this historical context, Fisher acknowledges, schizophrenia marks an ontological border—a “limit concept,” a phantomic outer-edge; but the psychotic disorder is also, he writes (after Lacan), a “‘suggestive aesthetic model’ for understanding the fragmenting of subjectivity in the face of the emerging entertainment-industrial complex.” But if schizophrenia “marks the outer edges of capitalism,” then “bi-polar disorder,” he adds, “is the mental illness proper to the ‘interior’ of capitalism,” so allegorically synchronised, so correlative, are the economy’s “boom and bust cycles” to the “moods of populations” within the system.

Among the many thinkers who people the author index on the Zero Books website, Fisher certainly seems one of those most suited to the Hampshire publisher’s stated aims, one of the most in harmony with its philosophy. (As one of the imprint’s commissioning editors, this is perhaps no surprise.) An imprint of John Hunt Publishing based in Ropley, East Hampshire, Zero Books (sometimes written as “Zer0 Books” or “0-books”) stands for, as it notes on its website, the production of a more disruptive, a more incisive form of writing than that which currently passes for intellectual work:

Contemporary culture has eliminated the concept and public figure of the intellectual. A cretinous anti-intellectualism presides, cheerled by hacks in the pay of multinational corporations who reassure their bored readers that there is no need to rouse themselves from their stupor.

This disillusioned view, with its eulogy for the public intellectual’s disappearance, is, of course, nothing less than accurate. For better or for worse (as, depending on how one defines them, what ramifies from the loss of the public intellectual remains unclear) the dominant media outlets seem no longer interested in according kudos, in showing any earnest deference to—and perhaps can no longer really even comprehend—those figures who had once been called (and who, lamentably, are sometimes still called) “Men of Letters.” “In the age of late or neoliberal capitalism,” write Jeffrey R. Di Leo and Peter Hitchcock, “society at large no longer affords its iconic or star public intellectuals much respect.” They are instead “widely regarded as merely representatives of ‘one side of the argument,'” their views subject to sensationalism and reductionism, whichever “side” they may happen to find themselves on (“liberal or conservative, left wing or right wing”). Unlike what may have once been the case, the public intellectual today is no more permitted to hold a finessed, conditional, qualified, or partial view, no more authorised to occupy a “rational middle ground,” than any other vendor in the ideas marketplace.

If in the first half of the twentieth century, the exemplary public intellectual might have manifested in the form of someone like Aldous Huxley, a regular interviewee on BBC television before his 1963 death, another exemplar may have been Bertrand Russell, the talented mathematician–philosopher who routinely appeared on BBC broadcasts including The Brains Trust, and who just as often authored newspaper articles published in what we would today call the mainstream press. What soon becomes obvious, however, no matter to whom you point, is that public intellectualism in the early twentieth century was a man’s business—a boy’s club. But in addition to being men, and as well as possessing the requisite academic bona fides (although Huxley, holding only an undergraduate degree, drew his intellectual authority less from the institution than from his grandfather’s reputation), Huxley and Russell were also typical of the “writers and thinkers who,” as Russell Jacoby wrote in 1987 (in a book on American, not British, intellectuals), “address a general and educated audience” and “whose works are [not] too technical or difficult to engage a public.”

In the later twentieth century, however, perhaps in the wake of Simone de Beauvoir’s “Femmes de lettres,” and (later) Hélène Cixous’s L’ecriture feminine, among many other feminist schools and currents, public intellectualism, losing some but by no means very much of its phallocentric bias, tapered its ongoing resistance to the image of the woman academic—or, at least, disavowed it long enough to accord some recognition to the forceful erudition of such women intellectuals as Hannah Arendt, Susan Sontag, Germaine Greer, Camille Paglia, Martha Nussbaum, Judith Butler, Naomi Wolf, among many others.

But no sooner had the longstanding exclusion of women from the intellectual public forum begun, in part, to abate (though, as Jeffrey Di Leo points out, “only 17 percent of professional philosopher are women”) than “immediation”—the “cultural logic of the new public intellectual”—began to reconfigure the nature of the public performance. Rather derisive, Richard A. Posner identifies what might be advantageous for a public intellectual in this immediated context, namely “name recognition” and a nimble enunciative style:

Many public intellectuals are academics of modest distinction fortuitously thrust into the limelight, acquiring by virtue of that accident sufficient name recognition to become sought-after commentators on current events. Some of them are what the French sociologist Pierre Bourdieu calls le Fast Talker.

But it is perhaps the very speed of capital circulation, the pace of the “entertainment-industrial complex” and the depth of immediation, that has conjured into life this “fast-talking” incarnation of the public intellectual. Indeed, as Hitchcock notes, the “velocity” of capitalism “affects the logic of intellectual production and exchange.” And, of course, something of this velocity is also immanent in, and is in fact constitutively a part of, not only what Fisher’s Capitalist Realism mourns but what it represents.

Even if Fisher was not himself one of Bourdieu’s le Fast Talkers, it remains true that his writing, swift and piquant, exudes a combustible intellectual energy. As one one reviewer of Capitalist Realism commented,

Fisher’s style of exposition has a fast-paced, free-wheeling quality to it reminiscent of Slavoj Žižek’s writing—and, indeed, there is a Žižekian audaciousness to many of the ideas that Fisher puts forward.

On the back of its dust jacket, Steven Shaviro is quoted as describing Fisher as a “master cultural diagnostician,” a writer highly skilled in surveying “the symptoms of our current cultural malaise.” It is not by accident that Shaviro uses a grammar borrowed from psychiatry and medicine, Fisher being so clearly a disciple of the critical-psychiatry set, of the “radical theory and politics” of “Laing, Foucault, [and] Deleuze and Guattari.”

However, what is perhaps most clearly apparent about Fisher’s writing, in ways sometimes quite distinct from those other authors’ works, is the extent to which it yearns so urgently for genuine political change; it is less interested in proposing a new theory of the political system, or in adumbrating a tantalising speculation about the future, than it is committed to proposing reform. After adverting to the work of the critical psychiatrists, Fisher’s tone becomes abruptly more pragmatic: “But what is needed now,” he writes, “is a politicization of much more common disorders. Indeed, it is their very commonness which is the issue: in Britain, depression is now the condition that is most treated by the NHS.” Fisher’s scholarly episteme might be described as a kind of “no-nonsense” political sociology, an unpretentious style of public intellectualism. His was an earnest yet unidealised approach to the work of political theory—one to which we should all aspire, now more than ever.

Emotions and Publishing

I assume that, on occasion, many early-career researchers are tempted, as I am, to reach for those kinds of books that offer a system or model for publishing success. After all, what better way to reassure oneself that an academic career is feasible than to learn about others’ achievements? Dean A. Shepherd’s The Aspiring Entrepreneurship Scholar offers ample straightforward advice to early-career scholars—indeed, the advice is sometimes so straightforward, and the book’s tone so informal, that one may even begin to suspect, as I did, that Shepherd had managed to somehow manipulate the review process to publish it (a sure sign of his scholarly aplomb). How else to explain the offhand equanimity, the conversational register, of some of the remarks? Chapter 2 opens with an exemplary line: “Okay, so maybe this is self-delusional, but I think of scholars, at least the good ones, as highly entrepreneurial.”

Despite a profusion of many such general statements in the book, statements with a wide application for would-be scholars of all types, what I discovered within a few moments’ reading—but which I had not, I admit, initially realised when I downloaded the book via my institution’s subscription—was that Shepherd’s manual is not for all scholars at all. It does not explicitly propose that we, in whatever fields of study, take an “entrepreneurial” approach to a scholarly career—and why would it? The book is not addressed to all scholars but is, rather—and of course!—a guide written for—quite literally—“entrepreneurship scholars.” Of course, as you might have guessed, I had somehow, no doubt frivolously, imagined that Shepherd’s title was a strange nominalisation of the phrase “entrepreneurial scholar,” and that his book therefore sought to advance a particularly “entrepreneurial” strategy for a “successful academic career,” whatever the field. How wrong I was. But, despite this, my own quite remarkable misprision, the book proved to grant a few noteworthy insights for all of us in academia.

But first a little more on the book’s tone. It should probably be noted regardfully that the book is published by Palgrave Pivot, an imprint of Palgrave Macmillan designed for scholars who wish to publish a work longer than a journal article but shorter than a monograph. These compact books are published as e-books, but perfect-bound volumes can be ordered on demand. And it seems that this Palgrave imprint facilitates—or, better, encourages—precisely the kind of informal, this expert-but-accessible, style of writing preferred by Shepherd; or, in fact, I should say that it facilitates this as well as many other kinds of idiosyncratic writing, since Palgrave Pivot is set up to allow authors to publish their works at their “natural lengths”—to save them the adversity of cutting a long work down to the standard 8,000-word article, and the hardship of elaborating a short book up to to the 80,000-word breadth of the monograph. The imprint is also, it seems, all for authors publishing works that do not bear the seriousness of the monograph, nor the epistemological rigour of the article. As such, you might even say that these books represent, in some ways, the formalisation of the academic blog. After all, they’re also very quickly produced, with a turnover publication time of only twelve weeks following peer review. Hence, I suppose, the name “pivot.” But just in case I am being unclear, I think these volumes represent a positive expansion of the academic publishing ecosystem.

And while I’m talking shop: one thing that I immediately noticed about this imprint’s productions were the books’ formatting details—clearly the ramifications of this new modality of academic publishing—such as the way the chapter title pages were organised. Like journal articles, each chapter title page had a selection of keywords, a copyright notice (stipulating that copyright in the work was held by the author), and a DOI number. It’s certainly a smart-looking series, typeset in the classically sleek but sharp ITC Galliard (the same font the Library of America uses in its books), as opposed to ITC Stone Serif, the usual fare in Palgrave’s non-Pivot series books; although it is also a curious hybrid, what with this strange chapter metadata in a text that is released digitally, as an e-book, but is yet-not-fully digitised, a “photographic” pdf rather than a “live” hypertext.

None of this has much to do with Shepherd’s writing, however. And, lest my earlier meaning be misread, none of my earlier comments were supposed to suggest that Shepherd’s informality, this aporetic self doubting (“Okay, so maybe this is self-delusional”), is threaded through the entirety of his book—far from it. Shepherd, I soon realised, writes not with the insouciance of the careless, and not with “informality” as such, but with the openness and directness of a guru. It is, of course, the appropriate tone for a guidebook, something of a Dale Carnegie or Carl Crow done gone academese. And I imagine that, as an “entrepreneurship scholar,” Shepherd’s “down-to-business” style of writing is an asset—and not uncommon in journals in the field of business entrepreneurship, such as the one of which Shepherd is himself the editor, the Journal of Business Venturing. But what I thought would make an interesting and productive addition to my notes, here, were the various references and allusions Shepherd makes to the emotional world of the aspiring scholar, and particularly to the emotional conflicts they face in their attempts to publish their research.

In the opening chapter, Shepherd discusses the unusually buoyant attitude he took to the revise-and-resubmit (“R&R”) decision letter while still a doctoral student: “Believe it or not,” he writes, “I was excited when I received a rejection letter,” excited “that three scholars had read my work, found something interesting in it, and provided me feedback.” And while Shepherd implies that he “no longer feels” as positive about receiving R&Rs as he did then, he does continue to feel more positively about them than most of his colleagues, one of whom, when they asked him “how to deal with the negative emotions associated with such a decision letter,” prompted incredulity on his part. But what Shepherd writes next about his process is worth quoting at length, if only because few scholars seem to have written as candidly as he does of their emotional reactions to R&R letters—that is, of the way in which they have learnt to manage their own emotions. But this long quotation will also allow me to quickly look at the tropological figures Shepherd produces to explain his emotional defences against the familiar melancholy of dejection:

Returning to the issue of excitement in receiving feedback on a rejected paper, I used that excitement to drop other work and immediately begin to interpret the letter and the spirit of the reviewers’ comment [sic] to improve the paper and resubmit it to another journal. I thought about a paper as having momentum and believed it was important to keep the momentum rolling. On the flipside, I felt that if a paper sat, it lost momentum and required more effort to “start the ball rolling” again. Fortunately, having peers as co-authors and choosing to work with people with similar values, I was able to quickly learn, enhance the quality of each paper, and put them “back in play” at journals. Speed came from energy and momentum, not from cutting corners.

Through speed and working with colleagues on papers out of our dissertations, my colleagues and I were able to generate a reasonable number of papers in the first couple of years post-dissertation. We believed that having a “reasonable” number of papers “in play” (i.e., at least three or four papers under review at top journals) was important for two primary reasons. First, we believed that the more papers we worked on, the more feedback we would receive. Feedback not only helped us improve the quality of the specific paper but also provided the basis for a deeper understanding of what reviewers were looking for and how to address these issues and follow their recommendations. Upon reflection, we were engaging in deliberate practice and hopefully building expertise. We certainly had many opportunities to learn from our failures, but fortunately, we also had some successes—some small wins—which allowed me to start to believe that maybe I could make a career as an entrepreneurship scholar.

While Shepherd magnanimously—and doubtless truthfully—attributes a degree of his success in turning papers over quickly and effectively to his helpful peers and colleagues, what is perhaps more notable about the above summary is Shepherd’s emphasis on “excitement,” “momentum” and “speed.” None of these three words is a one that we would first associate with the monastic labour of research. They better convey the personality of the explorer or adventurer—even the champion sportsperson.

Better still, these nouns remind me of Freud’s haughty, swaggering vision of himself as a “conquistador” in the letter of which I wrote in my last post. The year was 1900, and Freud, vainglorious, wrote of his personality thus: “I am by temperament nothing but a conquistador . . . with all the curiosity, daring, and tenacity of a man of this sort.” I suppose there are many ways to find success as a scholar; however, what strikes me as salient about Shepherd’s keywords and Freud’s self-portrait is the common emphasis they place on this constitutive tenacity, this positively “dopaminergic” sense of ferment, that seems required of the emotionally durable scholar. In different ways, both authors suggest the importance of maintaining, for want of a better idiom, something of a quickness of mind and spirit. Excitement and energy, it may be, then, are the emotional antinomies of dormancy, the affective defences to torpor, no less in academia than elsewhere. But then, of course, we already knew that.