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, https://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.