Cuiellette Case Highlights the Legal Fiction of Disability

When California’s 2nd District Court of Appeal ruled April 22 handed down its decision in Rory Cuiellette v. City of Los Angeles last week, affirming a $2.7 million verdict against the City for FEHA discrimination, it highlighted the legal fiction of disability, and that is why an employer can not rely on a court ruling that an employee has any certain level of disability.

Cuiellette was injured on duty and requested an assignment to the court desk of the fugitive warrants section when he returned from medical leave. He worked the job for less than a week when he was dismissed because his workers’ compensation claim resulted in a 100% disability rating.

The case is important to me in several respects:

First, the case very powerfully demonstrates the vulnerability of business to employee law suits that go far beyond the liability exposure employers experienced when workers' compensation was first born.

Second, in a very graphic way, this ruling highlights the fact that a disability award, impairment rating, etc. is pure legal fiction with no basis in reality whatsoever.

Item two above is special to me because the counter-argument I hear all the time, when I propose that workers' compensation is no longer relevant to modern society (i.e. taking medical out of work comp, so all that is left is an indemnity component), that the determination of disability is so deeply connected to the medical component of work comp that the two can not be separated.

I have always argued that the system of "disability" that we have in work comp is pure fiction, has no basis in reality, and is there simply as an accommodation because we have to have some system of measurement to base compensation on.

My problem with this system is that the current system rewards disability - the wrong incentive is placed before everyone that engages in the work comp disability determination.

My argument is that we should change the system to reward productivity. How would we do that? Sharper and more creative minds will have to help with that answer.

But how we end up rewarding productivity is not the point of this post - the point is that the Cuiellette case demonstrates that disability in the work comp system is a legal fiction at best. We have been tweaking and twisting how to compensate disability for 100 years so we have lots of experience doing that.

There's no reason we can't change the formula to reward productivity - doing so would not entail any more legal or medical fiction that is currently in place, and may shift societal expectations towards the betterment of all. Disability is a fiction that the system has "learned" and there's no reason that productivity could not be "learned" as well.