March 17, 2017

Employment Liability and Workers Compensation | ACT

Chronic pain is a term that is appearing more frequently in Commonwealth workers compensation claims.  It is often not the first condition that an employee will suffer; more typically arising a year or two after an earlier physical condition has been diagnosed.  

In relation to the Safety Rehabilitation and Compensation Act 2001 (the Act), when liability is accepted under section 14 of the Act for an injury, it generally follows that payments are made for medical treatment under section 16 and that the injured worker may become entitled to payments arising in relation to an incapacity for work under section 19 of the Act for that injury. 

However, a claimant’s entitlement to compensation  may become uncertain  where, for example, she was originally diagnosed with bilateral tenosynovitis and two years later the medical evidence shows that she no longer exhibits objective pathology connected with her condition, but continues to suffer the pain associated with it. Or alternatively, she has additional pain that has spread to other parts of the body in defiance of all medical science on the condition.

If chronic pain is claimed and accepted as a new injury under the scheme established by the Act, the claimant may be entitled to 45 weeks at 100% of their normal weekly earnings; whereas if chronic pain is taken to be a continuation of an existing injury, the lower incapacity payments under section 19 will continue to apply (75% of normal weekly earnings, assuming the claimant has not returned to work). 

If continuing liability for the original injury is accepted, a liability for all medical expenses and incapacity for the original condition may continue on an indefinite basis; whereas, if chronic pain is accepted as a fresh injury, the applicable medical expenses and incapacity may be limited; particularly if the claimant has other ongoing medical conditions (compensable or otherwise).

The question for decision makers determining the issue of liability is whether or not the claimant still suffers from her accepted injury or whether she now has a new condition for which liability has not yet been accepted.

To put it another way, should  chronic pain be treated as an ongoing symptom of an existing condition or as a fresh injury for the purposes of the Act? 

What is Chronic Pain Syndrome?

Chronic pain can in the most general terms be described as pain that continues beyond the time expected for a painful condition or injury to heal.  There is often no objective medical evidence to explain why the pain continues, but it does; and often in response to stimulus that should not in ordinary circumstances cause pain.        

While Chronic Pain Syndrome is not new, it is not a well understood issue within the medical community.  It has had various and, at times, unsatisfactory labels to try and describe it (for example, Fibromyalgia or Chronic Regional Pain Syndrome) and there has been ongoing debate as to whether it is more accurately characterised as a physical ailment or a psychological one.

Because chronic pain is not well understood by the medical community, it can be difficult for decision makers to clearly establish how it should be characterised for the purposes of deciding liability under the Act. 

Legislation & case law

Section 5A of the Act defines an injury as a physical or mental injury or aggravation (other than a disease) arising out of, or in the course of, an employee’s employment.  Section 5B defines a disease as an ailment or aggravation of an ailment that was contributed to, to a significant degree, by an employee’s employment. 

If one of these definitions is satisfied, an employer subject to the Act is likely to accept liability under section 14 of the Act (subject to certain other exclusionary provisions not being enlivened).  As noted earlier, a case of chronic pain generally arises after a claimant has had a condition accepted under s 14.

There are two arguments that legal practioners make in relation to chronic pain cases. The first is that the claimant’s chronic pain is simply an evolution of the accepted injury and compensation should continue to be paid on the basis that the same symptoms exist, even if objective pathology is absent.

The second argument is that a chronic pain condition is a separate and distinct injury and liability for compensation should be determined separately to existing injuries.  These cases are distinguished from those above where the medical evidence demonstrates that chronic pain has spread to other areas of the body, or the pain experienced is significantly increased or of a different nature to that of the original condition.

So, what is the best approach for decision makers in such cases? 

Ultimately, whether the chronic pain is a continuation or a new injury under the Act is an issue that will need to be addressed on a case-by-case basis.  

Please contact us if you require advice on the management of a chronic pain case under the Act.