The Practice

Pain Management:

Wesley Pain and Spine Centre

Wesley Hospital, Chasely Street, Auchenflower Qld 4066

Appointments: 07 3232 6190

Medico Legal Appointments:


Level 2, Suite 30, Silverton, 101 Wickham Terrace, Brisbane Qld 4000

Telephone: 07 3831 5681

Fax: 07 3831 5682


Dr Leigh Atkinson AO

James Pryor Memorial Lecture - May 2011

RACS Annual Scientific Meeting, Adelaide
May 2011

Leigh Atkinson

Click here to download the lecture in a PDF file.

Ladies, gentlemen and Fellows,


In past years when I was on the College Council, I met Jim Pryor from time to time. But as I prepared this Memorial Lecture, I began to learn so much more about the Foundation Chairman of the Medicolegal Section of our College.

He had a remarkable life and he leaves a legacy which far outshines many of the surgical stars of the Australian galaxy. I am reminded of the lines of Gerald Manley Hopkins that "The child is the father to the man".  

Born in 1928 and brought up in the dark years of the Depression, he was the fourth son in a family of a Methodist sheep farmer. As his grandfather had been the Mayor of Ballarat and his father had been the Town Clerk, it was not surprising that he later settled in Ballarat.  

After completing his medical degree at the Melbourne University, he trained at St Vincent's Hospital there and moved to the Worthington Hospital in coastal England in the 1950's. He then moved back to practise in Ballarat for the next forty years.

Jim was devoted to his wife, Marie, who provided all the background support for those adventurous years in Ballarat. Together they brought up five daughters and five sons, all successful in their own way. At times their children may have seen them as "Batman and Robin". There were times when they felt Jim could not remember their names.  Sister Assumption from the St John of God Hospital preferred to call him "A man for all seasons". While as a surgeon he was a "mollydooker", he built up a formidable reputation in the theatre and he was acknowledged as a great teacher. 

He became Director of Medical Services at the hospital and the Chairman of the Foundation. Practising as a private general surgeon, he was able to achieve what few have done in the country. He developed a private surgical group and this continues to function. Andrew Kaye, the Professor of Surgery at the Royal Melbourne Hospital was a first year resident under Jim and he notes that, "Ballarat was Jim's surgical fiefdom".   

At all times, he was passionate about Ballarat. Ballarat had been the home of one of the quiet achievers in Australian surgery, Sir Albert Coates, and Jim made yet another one of his passionate goals to recall the achievements of Coates. Albert Coates, a general surgeon, built up a reputation in neurosurgery in the 1930's and was one of the eight Foundation Members of the Neurosurgical Society of Australasia before he joined up with the Australian Army and spent the war years on the Burma Railway. He was, in 1946, the President of the Neurosurgical Society of Australasia. Jim chaired the Albert Coates Foundation and, amongst other things, found the funds to place a sculpture of Coates in Ballarat.  

Jim later saw the need to promote rural surgery and was a Founding Member of the Provincial Surgeons of Australia. But it was his leadership in the College in the Medicolegal Section that we recall today. There again, at his Memorial Service, John Jordan recalled that his judicial friends considered Jim was "the best medicolegal witness they had ever seen".  

This surgical "Batman" still had other interests in his city. He became the Chairman of the third oldest AFL club in Australia, Ballarat, although he was nationally a lifelong supporter of North Melbourne. When all else failed, Jim was also out on the golf course.

In summary, the Fellows of the Medicolegal Section have a Founding Chairman in Jim Pryor who has set a great example for all of us for the future.


The issue of pain and suffering in personal injury on the medical side exposes the muddy waters of stigma, secondary gain and validation, but maybe the medicolegal pendulum has swung too far. On the legal side, the plaintiff lawyers and the court are significantly contained by the changes in the various civil litigation acts in 2003 which significantly limit the awards for pain and suffering. Still, over the past twenty years, there have been significant advances in our understanding of the epidemiology, the biology, the science and the management of the chronic pain patient. It is timely to re-examine the issue of pain and suffering and to note the increasing focus on the chronic pain patient.  

Over the past few years, there has been an increasing number of advocates who recognise the burden of chronic pain following personal injuries.  

The International Association for the Study of Pain, and the Australian Chapter, the Australian Pain Society, have become quite vocal in calling for changes in recognition, treatment and overall better management.   

Our College has combined with three other Colleges to develop, within the Australian and New Zealand College of Anaesthetists, a new speciality in 2005. There are now over three hundred Specialist Pain Medicine Physicians in the country.

Then, on 11 March 2010, in the Great Hall in Canberra, there was a National Pain Summit which attracted political attention and resulted in 40 million dollars being allocated to pain clinics in Queensland public hospitals.  

Following on this, there was an international Pain Summit on 4 September 2010 in Canada which highlighted the Declaration of Montreal. This confirmed that all patients in chronic pain had a fundamental right to treatment. It stated that chronic pain patients, whether they had a diagnosis or not, were highly stigmatised.  


In 2011, Professor Michael Cousins, has formed "Pain Australia", a formidable national group to advance these issues.  

Then, in 2010, the President of the Victorian Court of Appeals, Justice P Maxwell, in the case Haden Engineering Pty Ltd - v - McKinnon, provided a guide for solicitors preparing serious injury applications for the county court. This might be the beginning of a slow movement to review the Australian Court's attitude to pain and suffering.  

There is one final reason why, as medical experts, we need to reconsider our position. With national registration, as from 1 July 2010, there is greater flexibility and mobility for medical experts providing reports in any state of Australia.  

In summary, the political situation is changing in the appreciation of pain and suffering.  


In reviewing the current practice in Australian Courts as medical practitioners and experts, some questions to arise.  

1. How can we improve our assessment, validation and advice to the courts in respect to the chronic pain patient who has suffered an injury?

2. Do the courts recognise the impact and restrictions resulting from the burden of pain in the seriously injured plaintiff?

3. Are the AMA Guides to the Evaluation of Permanent Impairment an appropriate basis for reporting to the courts?

4. Should the practice of concurrent medical reports to the courts be supported so as to minimise bias and to provide us with more relevance in the courts?

5. Do the courts have enough flexibility to make awards for pain and suffering?

6. We might also question who is the appropriate person to report in the area of pain and suffering.


Pain is defined by the IASP as an unpleasant sensory experience resulting from actual or potential tissue damage or expressed in those terms.  Chronic pain is pain that persists for greater than three months and beyond the normal period of tissue healing.

The tissue injury stimulates peripheral nociceptors; there is transduction of the stimulus which, in turn, is transmitted along the sensory afferents to a synapse in the dorsal horn of the spinal column. Second order neurones relay the pain to the thalamus and then to the cortex. The critical area is the dorsal horn synapse, where the complex molecular reactions are modulated and they influence the perception of pain.  

Already we know that the prevalence of chronic pain pre-injury in the Australian population is 20% (Blyth & Cousins, 2000). Henrik Kehlet, a previous Foundation Guest, has also identified the predictable incidence of chronic pain following any surgical procedure.  

The advances in our knowledge in this area have been overwhelming in recent years. But there has been one veritable revolution now moving at an increasing pace regarding objective imaging of pain in the brain. Vania Apkarian leads the many researchers in the area of functional MRI imaging of the brain. There have been over 875 papers and 138 reviews in the area.  

In our research centres we are able to identify "distinct clinical chronic pain conditions that show unique brain activity patterns". Anatomical areas that are involved include the insula, the prefrontal cingulate gyrus - the prefrontal cortex.  

The fact that pain is processed far more slowly by the nervous system than any other sensory modalities makes it an ideal sensation with which MRI brain activity can be segmented "in the time domain".  

This group has "uncovered that spontaneous pain has characteristic fluctuations in the scale of seconds to minutes that are distinct for different types of chronic pain that cannot be mimicked by healthy subjects pretending to have pain". Fibromyalgia patients have been studied and it has been shown that there is a regional decrease in the grey matter density.

In summary, morphological studies show "that the brain structure undergoes changes at multiple spatial and temporal scales which are, for the most part, specific to the type of chronic pain studied".  

These findings of changes in the limbic system, the emotional component, and the frontal lobe, the cognitive component, fit in with our established model of chronic pain. However, now due to the relatively recently recognised neuroplasticity of the brain, anatomical changes resulting from chronic pain can be reversed should the cause of the pain be cured, for example a hip replacement.  

These revolutionary changes suggest that we are moving to a more objective understanding of pain which, in turn, may be more relevant in the courts.


Chronic pain is conceived in a biopsychosocial model. John Loeser, neurosurgeon and Past President of the IASP, developed a model in a the form of onion skin rings, rather like the Russian dolls. The inner ring was the organic injury already discussed. The second ring related to the patient's thoughts and beliefs. The third ring focussed on pain, suffering and loss. The outer fourth ring was the visible pain behaviour of the patient. The physiology has been discussed.  

The thoughts and beliefs are particularly related to fear and avoidance, anticipation and catastrophising. Recall the injured worker inappropriately disabled by pain, seething with resentment towards the employer as no-one from the office has rung to enquire about his progress and treatment. Retribution in his world becomes a central focus. The frontal lobes are involved.  

The third ring relates to pain, suffering and loss. This is tangled up in the Judeo-Christian tradition of our culture. In the New Testament, the concept of free will in this life is balanced by rewards and punishment in the next life. In the Bible, the concept of loving one's neighbour is intertwined with suffering and sacrifice, penance and punishment, atonement and repentance - all to gain rewards in the next life. Christ's crucifixion was a sacrifice offering to redeem the sins of the world.  

These emotional responses to loss are found in the limbic system and the temporal lobes.  

Conscious of the impact of pain and suffering in the world, the mediaeval church glorified the saints and martyrs who suffered. Recall the countless portraits of Saint Sebastian, the tortured paintings of the sixteenth century De Ribera, Boya's "The Third of May" and, more recently, Rodin's sculpture "The Gates of Hell". Elaine Scarry has written, "It is essential to what it is that pain has a resistance to language". Picasso's great twentieth century painting "Guernica" emphasises the point.  


The fourth ring is pain behaviour. As doctors, we recognise normal behaviour. It was the Adelaide psychiatrist, Professor Issy Pilowsky, who clarified the features of abnormal illness behaviour in his great paper in the British Journal of Psychology 1969. The plaintiff who appears with Canadian crutches, dark glasses and a plastic bag full of medications is an example. The Waddell tests with respect to the lumbar spine distinguish the non-organic physical signs that do get across to the courts (1980). These non-organic signs of clinical significance include excessive tenderness, pain with sham movement, axial loading, rotating, straight leg raising, weakness, sensory loss of non-dermatomal distribution and overreaction.  


When it comes to the assessment of chronic pain under the AMA Guides, the example of the failed surgical back syndrome in a worker can be reviewed. The worker is suffering severe pain, unable to sleep, restricted in activities of daily living and self-care, socially isolated, increasingly dependent, commercially unemployable, dependent on narcotics and, not surprisingly, depressed.  

Under AMA4, published seventeen years ago, the assessment would be made in the workers' compensation jurisdictions in Victoria, Queensland, Tasmania, South Australia, ACT and the Northern Territory and there would be no additional impairment for the burden of pain. But in county, district and supreme courts in Queensland, New South Wales, Victoria, Tasmania, South Australia and Western Australia there would be an additional 3% whole person impairment plus 3% for ongoing treatment under AMA5. However, one would have to navigate the tortuous and confusing Chapter 17 for the additional impairment.  

In New Zealand, using AMA6, published in 2008, a logical methodology is evident, but there is no additional impairment for pain under Chapters 14 to 17, but there would be an additional 3% in the absence of any organic injury.  

So, the editors of the AMA Guides have struggled with the laid down principles.  

1. Pain evaluation does not lend itself to strict laboratory standards of sensitivity, specificity and other scientific criteria.

2. Chronic pain is not measurable or detectable on the basis of the classic tissue orientated disease model.

3. Pain evaluation requires acknowledging and understanding a multi-faceted biopsychosocial model that transcends the usual and more limited disease model.  

4. Pain impairment estimates are based on the physician's training, experience and skill.  As with most medical care, the physician's judgement about pain represents a blend of art and science of medicine.

However, while we provide these reports and include an assessment for pain and suffering, the courts move to an independent system of rating the awards which, in Queensland, is called the "Injury Scale Values" which apply under different names in the other states of Australia. These lay down tight guidelines for injury awards by the courts.

However, the medical expert does have some latitude in identifying the restrictions in activities of daily living that will require ongoing financial support in the future, e.g. house cleaning, maintenance and assistance with mobility.  


When it comes to the Courts, there is probably a place to re-visit the issue of pain and suffering in the awards.

As noted by the Declaration of Montreal in 2010, the pain patient and the injured plaintiff who has chronic pain with or without a diagnosis is stigmatised. The burden of pain in some authentic cases goes unrewarded.  

Insurance crises at the turn of the century resulted in the Queensland Civil Liabilities Act 2003 and similar legislation throughout Australia which were very restrictive with respect to the heads of damage, that is the non-pecuniary damages including pain and suffering, loss of amenities, loss of enjoyment of life and loss of bodily function, disfigurement and loss of expectation of life.  

As noted before, these non-pecuniary damages are approached by the courts using the Injury Scale Value or similar scales which are quite restrictive.  

It is left to the plaintiff's lawyer to expand and develop a case in respect to the influence of pain on activities of daily living - mobility, transport, maintenance and housekeeping. With respect to pain, most plaintiff barristers note that there is little "wriggle room", despite the uneven outcome with some plaintiff injuries.

Recently, there has been growing support by judges for the use of concurrent evidence in these cases. This has two advantages: It allows the medical expert to be more relevant and influential with respect to the special issues relating to the burden of pain. In the presence of a judge not well experienced in personal injuries, this can have additional advantages.  

Lastly, in the judgement of Maxwell P regarding Haden Engineering Pty Ltd - v - McKinnon in the Court of Appeals, the President, Judge Maxwell, in 2010, provided a significant guide for solicitors preparing serious injury applications for the county courts in Victoria.  

In his judgement in Haden Engineering, Judge Maxwell emphasised the need for consistency in applying the serious injury test. He criticised imprecise impressionistic and adjectival criteria. He divided pain and suffering into two elements - the actual experience of pain and, secondly, the disabling effects of pain. This suggests that, at least in the Court of Appeal in Victoria, a more diverse range of criteria will be required in presenting cases where pain has had an effect on the injured plaintiff.  


Freed by national registration, the mobile medical expert can now offer reports to any jurisdiction in Australia.

There is a growing body of advocates in Australia and increasing political pressure to recognise in the awards the effect of authentic pain in some injured plaintiffs.  

At the same time, there has been a revolution in the scientific evidence and the use of functional MRI imaging of chronic pain promises to offer some more objective evidence supporting medical reports. This may still be some time off.  

As medical experts, for the most part we are limited to an additional 3% maximum under AMA5 and 3% for additional ongoing treatment in the injured plaintiff with disabling pain.  

There remains the significant hurdle which is medical consistency in reporting to the courts on these plaintiffs and their disability.

Increasingly, the effects on activities of daily living will need to be assessed by the medical expert and the unreliable reports of the occupational therapists will need to be handled.

Lastly and surprisingly, the courts are confined by the Injury Scale Values, or similar scales used in other states, leaving them with little latitude.

Concurrent evidence and judges expert in the areas of personal injuries could reduce the significant inconsistencies in the region.


Welcome to the Pain Medicine website

On this website, you will find information about:

  • Dr Leigh Atkinson's practice - contact details, location, and information.
  • pain medicine and pain management.
  • links to other sites, including those related to pain medicine and pain management.