How Will Modern Science of the Brain Impact New South Wales Workers Compensation?
Published on December 13, 2019
Law has long struggled with understanding psychological injuries, which are a major contributing factor to the Workers Compensation Scheme’s costs. Due to difficulties in proving psychological injuries, in 2002 as a response to the IPP Report,  legislation was created to limit psychological injuries especially where there is no accompanying physical injury. As a result of the Scheme differentiating between physical and psychological injuries, there is an underlying level of scepticism that a claimant may be exaggerating their psychological injury for financial gain.
Section 11A(3) of the Workers Compensation Act provides a definition of ‘psychological injury’ to include injury that is psychological or psychiatric and extends to include the physiological effect of such a disorder on the nervous system. The Scheme however, does not allow compensation for permanent impairment for psychological injuries that manifest as secondary conditions, i.e. where they are the product of the initial physical injury.
At present, for psychological claims, claimants predominantly rely on the expert opinion of psychiatrists who identify injury based on the claimant’s self-reported history. Currently, clinical imaging is seldom used to corroborate findings on examination. However as neuroscience develops further, it is likely that it will become part of routine testing and accepted on a legal/medico-legal basis.
Neuroimaging may help provide diagnoses that traditional psychology and other sciences have struggled to resolve by working alongside existing evaluation and diagnostic guidelines to provide more consistent ratings of a claimant’s level of impairment with scientific validity. This will be particularly useful for claims for pain related injury which are prevalent in the Scheme and are claims that many, both legal and medical struggle with.
Whilst it is easy to identify a broken bone in an x-ray, the same cannot be said for an individual who is claiming they are in pain – a subjective experience that is difficult to express and hard for others to understand. 
Chronic pain in particular may not have physically obvious causes, or the pain described may far exceed the physical causes. Many struggle to understand chronic pain given the subjective nature of pain which some argue is open to exaggeration or fabrication, with no objective assessment tool and with self-reports inherently unreliable.
Recent neuroimaging research has attempted to provide a biological marker of pain experience with the assistance of functional magnetic resonance imaging (fMRI) and other new and emerging technologies which are allowing greater insight into the physical nature of brain processes, and may increasingly play a role in the determination and valuation of pain. 
Neuroscience may assist in determining whether a claimant is experiencing the pain that they are claiming, however it is unlikely to show how much pain the claimant is experiencing,  the level of dysfunction and nor does it assist in determining causation. At present, the Commission deals with claims of this category regularly with evidence mostly in the form of self-report, which many argue to be an imperfect method of measurement due to an individual’s ability to exaggerate or misreport. However, it should be noted that there are a number of studies that show the reliability and repeatability of self-report pain scales. 
Despite the advances in neuroimaging in relation to pain, it remains uncertain whether this technology can measure pain with enough accuracy to be reliable, and it is yet to be used in clinical practice. Even if such technology was to be used within the Scheme, it is unlikely that it would replace the current methods of examination used, such as self-report and would instead likely work alongside self-reporting and other current processes which in turn would rely upon each other to be valid.
Where neuroscience is able to assist in diagnosis, it may indeed shape legal policy and the way we define ‘injury’ within the scheme and compensation more broadly.
If we are able to better understand ‘injury’ with the use of neuroscience, then this may go beyond debates within the Commission and extend to an understanding of risk factors that may exist for those more likely to experience long-term sequelae of pain,  secondary psychological injuries and ‘learned disability behaviour’.  This type of science will be immensely beneficial in terms of cost, injury and scheme design, if we can get it right.
Until the science is reliable, the risk of adverse findings for genuine claimants remains a real issue in terms of their access to treatment, injury state and the flow on impacts such as impacts on relationships, finances and employment.
For the time being, use of neuroimaging to support a claim is a costly exercise and would pose an issue for those living outside a major city where the technology exists. If costs of neuroimaging decrease and neuroimaging becomes an expectation, it needs to be considered whether this is merely another hurdle for claimants to get past to establish injury. Would the use of neuroimaging within the Scheme exist to help claimants and their injuries or rather as a tool for insurers to use in cases where suspicions of fraud/exaggeration exist?
As insurers hold considerable power in terms of lobbying, it is possible that insurers will push back against neuroimaging for fear of indeterminate liability, new types of claims and new treatment regimes. There remains a need to restrict the number of psychological disorders that can be covered and perhaps with time, neuroscience will be able to provide greater insight into categories of injury.
As Arbitrators act as judge within the Scheme, it is their role to determine the usefulness of evidence. As the science is so young, knowledge within the legal profession is limited. Here, evidence is being presented to legally trained brains. The question yet to be answered is whether they will be easily impressed by neuroscientific evidence, or whether they will approach the evidence with caution. As neuroscience becomes accepted by the legal field in other areas, its presence in the Scheme is likely to increase and further training for those within the Scheme will be necessary.
Neuroscientific evidence, which is currently in its infancy will continue to rapidly develop and may play a critical role in understanding injuries such as chronic pain through the type of evidence presented and relied upon. Its impact on the Scheme will not be revolutionary, but rather it will sit alongside existing laws and methods of assessment as an aid.
As law seeks to find a definitive yes/no answer and the field of compensation is often looking to reduce complexity and ambiguity to obtain an answer, users of the Scheme will become acquainted with neuroscientific evidence and its use will become more common and our understandings and definitions of ‘injury’ will change.
 Commonwealth of Australia, Review of the law of Negligence: Final Report (2002) (IPP Report).
 Workers Compensation Act 1987 (NSW) s65A.
 Karen Davis, ‘Legal and Ethical Issues of Using Brain Imaging to Diagnose Pain’ (2016) 1.4 PAIN Reports 577.
 Shaun Cassin, ‘Eggshell Minds and Invisible Injuries: can Neuroscience Challenge Longstanding Treatment of Tort Injuries?’ (2013) 50.3 Houston Law Review 929, 938.
 State Insurance Regulatory Authority, above n21, 17.3.
 Tor Wager and Lauren Atlas, ‘How is Pain Influenced by Cognition? Neuroimaging Weighs in’ (2013) 8 A Journal of the Association for Psychological Science 91, 91.
 Owen Jones and Francis Shen, ‘Law and Neuroscience in the United States’ (2011) in Spranger and Springer-Verlag, International Neurolaw: A Comparative Analysis (Vanderbilt Public Law Research Paper 2012), 366.
 Ibid, 367.
 Cassin, above n4, 945.
 Michael Robinson, ‘Pain Measurement and Brain Activity: Will Neuroimages Replace Pain Ratings?’ (2012) 4 The Journal of Pain 323, 323-324.
 Cassin, above n4, 936.
 Robinson, above n9, 324.
 Wager and Atlas, above n5, 91.
 Robert Aurbach, Better Recovery through Neuroscience (23 August 2016) Digital Actuaries < https://www.actuaries.digital/2016/08/23/better-recovery-through-neuroscience/>.