09/11/2020
Problems with ACC law are rampant, this is more so for this with pain disorders, some of our most vulnerable that slip through the cracks. See our latest blog entry about 'chronic pain':
'Ghost in the Courtroom'
There are conditions that occur in life that always find themselves difficult to fit themselves into the often pre-moulded and rigid cylinders of the law. This is very much the case when it comes to some diseases, illnesses or other psychological disorders of the human body attempting to find sanctuary in the (at times) munificent garden of the Accident Compensation Act 2001. This article will attempt to reconnoiter the comprehensive question of why ACC and the Courts appear to struggle with the issue of pain (including chronic pain) as a personal injury. There some cases where pain is treated because of a physical injury, and in other cases separately as a mental injury. We will first look at some history regarding chronic pain and associated disorders, then we will discuss the case law that has developed in New Zealand in terms of an injury, and the ramifications of those decisions as regards to ‘pain’. Finally, we will summarise what we have discussed.
Understanding chronic pain essentially has two aspects to it; bio-medical and psychiatric. Therefore, pain as it occurs normally must either be as a result of actual tissue damage, or simply as occurring in and of the mind. Medical professionals attempt to diagnose one or the other, but at times it became unclear whether the pain was purely psychological. On July 16 2020, for the first time since 1979, the international association for the study of pain ‘revised’ its definition of pain as “An unpleasant sensory and emotional experience associated with, or resembling that associated with, actual or potential tissue damage” (www.iasp-pain.org), or to put it another way, it is pain that persists past the healing phase following an injury (Merskey and Bogduk, 1994). So, although the medical community is constantly changing and adapting to the study of chronic pain, during the last few centuries an incredible amount of advancement has been made in this area. The precise causes of chronic pain (notably after suffering an injury) cannot be pinpointed yet, but some tools such as brain morphology analyses can assist in prognosis. Treatment for chronic pain is treatable through opioids, and some methods of psychology (Turk, D. C., & Okifuji, A. (2002)). Somatic symptom disorder (which is diagnosable through the DSM) is any mental disorder that displays physical signs that suggest illness or injury, but cannot be pinpointed to a medical ailment or by the direct effect of medications, and are not caused by some other (say, existing) mental disorder. This is the psychiatric side of chronic pain. So, it follows that there might be some trouble for people that experience pain to seek cover under the ACC scheme.
In the case of Teen v Accident Rehabilitation and Compensation Insurance Corporation, a claimant sought cover for her chronic pain as a result of occupational overuse syndrome. The Court hobbled around and brought out a dictionary, declaring “injury” to mean “damage or hurt”, and “physical” to mean “of or relating to the body, as distinguished from the mind or spirit” (see Teen). Because the appellants pain did not manifest in some form, it could not (according to the Court) amount to an injury, and ACC’s decision stood. Teen appealed to the High Court, however, to no avail – Wild J approved the Tribunals ruling in the DC, including the definition of ‘bodily harm or damage’ (Teen HC at [35] per Wild J). Numerous cases followed, defining an injury as ‘interference with bodily integrity’ (Monk v Accident Compensation Corporation [2012]), and in Accident Compensation Corporation v D [2008] the High Court stating a need for “harm or damage”. In the case of Te Puna v Accident Rehabilitation and Compensation Insurance Corporation, the courts said that injuries don’t need to be precise or labelled, so long as the “effects of it can be seen and are manifest”. What I am hoping you can now see is that the Court has set down a very rigid, if not simplistic view on what constitutes an injury. This is not at all surprising given the courts are undertaking an exercise of interpretation and have in mind the need for judicial certainty. So this case law leaves us in the position where perhaps a person may be genuinely suffering from pain, but unless there is actually damage, interference with bodily integrity or it can be ‘seen’, it’s not an injury.
Based on that, in Coulter v Accident Compensation Corporation the Court found (citing Teen and Mura) that the appellant had not proved on the civil balance that she was entitled to cover, as she needed to show some actual physical damage such as a sprain or strain, and she failed to do so. The Courts have made it clear that pain alone is not an injury (ACC v Arnold), nor is regional pain syndrome, fibromyalgia, or chronic pain syndrome (see Teen). There is another side of this however., chronic pain that arises during a work-related injury which has cover IS a personal injury (Kennedy v ACC), and the same goes with fibromyalgia (Seddon v ACC). In other words, so long as you sit under the umbrella of a covered injury, pain disorders can be covered. There is a caveat however; a causal nexus must be shown to exist as between the pain symptoms and the covered injury (see Garton v ACC), and you may run into trouble if you have a minor injury which develops into a major chronic pain disorder. In terms of causation between a physical and mental injury, the causation must be direct, not because ACC has stressed you out with its bureaucracy (Robinson v ACC). Once a direct link is established, it becomes an exercise of analysis of medical evidence – of which evidence of full incapacitation doesn’t need to be proved as long as there are residual effects (Newcombe v ACC). But not all pain associated claims must be parasitic of an ‘injury’ as defined by the Courts, some can stand on their own two feet.
In the case of the ACC Act, mental ‘injuries’ are covered under s 21B (for example, chronic pain disorder as a result of a workplace injury) where they meet the guidelines under gradual process, etc. There is also room to claim for mental injury as it relates to criminal acts, such as sexual assault (s 21). The result of the courts squabbling over the definition of injury has, however, significantly reduced the capability of claimants being able to successfully ‘claim on pain’. There are probably a few reasons why the Courts struggle to grapple with the issue of pain – not because the Court fails to consider or give serious or careful thought to the issues that come before it, but it is an institution which runs along the rails of legislation and evidence. It is an institution which (generally speaking) is boxed inside of the words handed to it by the legislature, and the evidence produced by parties. Without such exceptions by parliament in terms of s 21 and s 21B of the Act, the Courts construe things in terms of what the words mean and what they can see, else they will fear a ‘slippery slope’ of chronic pain suffers claiming entitlements. Chronic Pain is simply not corporeal enough.
Despite this, the Supreme Court case in Allenby v H [2012] NZSC 33 is a large leap in the Medico-Legal area, where it was affirmed that a pregnancy can constitute an injury. If a strain or sprain can be an injury, then why can’t a pregnancy be one as well, where the body of a woman is subjected to severe anatomical changes. This kind of decision harps back to the swept away case of Waitemata Health Ltd v Ace Insurance Ltd where it was ruled that cell damage as a result of CPD constituted a physical injury, sadly reversed by Teen. What the Allenby case tells us is that the Courts are willing (or should be willing) to undertake a more liberal interpretation on what constitutes an injury and on that basis, come to a more reasoned approach that pain ought to (on the balance of evidence) be an injury in and of itself, especially given research has found that CPD causes a reduction in gray matter which involves a neuromusculoskeletal injury. In Studman v ACC, the claimant had pain and stiffness in hand after surgery, the Court held to have suffered no precise, identifiable physical injury, but despite this ACC accepted there was tissue damage and settled before the matter was due to be appealed.
In summary, pain as an injury is a particularly controversial topic. Pain disorders are frequently hard to diagnose and are not immediately obvious to the lay observer. The Courts have been very slow and careful in their interpretations of an injury, and in many cases claimants with pain disorders fall foul of the law. The Courts will do well to stop using Teen as their reason to dismiss cases and start looking to Allenby as a leading case on pain disorders. Only when this happens, and Courts are seized of the fact that some pain disorders cause genuine damage, will we start to positive change in this area. Until then, pain may very well be a ghost sitting in the courtroom.
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