If you are unfamiliar with Dr. Talmage, he is an occupational medicine practitioner and orthopedic surgeon from Tennessee and a prolific researcher, writer, lecturer on disability management. One of his contributions is as senior editor of the AMA Guides to the Evaluation of Work Ability and Return to Work (2nd edition) (full disclosure and shameless plug - I wrote Chapter 7).
Nearly all workers' compensation systems "reward" disability - the more or longer the injured worker is "disabled" the more money and benefits the injured worker, and those enabling the disability (i.e. doctors, attorneys, and yes even insurance companies) get as well.
When workers' compensation was invented not a lot was understood about disability and the social ramifications of disability. Back then a disability was fairly obvious - lost limbs were easy to see and discern from the "normal" population.
As time has progressed, and we have become more educated, experienced and sophisticated it is clear that disability as a stand alone concept is inadequate to define an indemnity scheme.
When the concept of indemnity was born the thought was that someone who lost a limb or otherwise could not function as one did prior to an injury would need some supplement to ensure an adequate life style.
Now we have so many technologies, opportunities and laws that being "disabled" is not an adequate measure of one's value to society, and consequently one's ability to generate an income. There are many, many examples of this in today's society and I won't cite them here - not enough time or space - but you have seen them on TV, giving keynote speeches, etc.
The clash between the philosophy underpinning the Americans with Disabilities Act (ADA) and work comp's return to work policies are an example. ADA supporters say that no handicap/disability should automatically preclude a person from doing a particular job and that the reasons for excluding a disabled person from a job must be serious economic or safety reasons.
Yet, in work comp we give automatic statutory permanent total disability status to multiple amputees or those declared blind. Is there not an inconsistency?
Talmage breaks the disability equation down into three parts: "risk", "capacity", and "tolerance".
Risk is whether harm to one's self or others is imminent (on a scale of course) - clearly the vast majority of those who are "disabled" for workers' compensation purposes would not pose a risk to either themselves or to society. "An increase in the intensity of self-reported, pre-existing symptoms like pain or fatigue may be distressing to the individual, but is not significant harm" Talmage states in Failure to Communicate: How Terminology and Forms Confuse the Work Ability/Disability Evaluation Process (J Insur Med 2007;39:192–198). Life entails risk, so "no risk" is not an option - the scale depends upon deductive reasoning.
Risk does not include the increase in pre-existing pain, numbness, fatigue, etc. that occurs with resumption of activity (like work). That is the tolerance component.
Capacity is whether the job or task in question can be done. For example, "If a factory job requires the individual to activate a machine by simultaneously pressing one overhead mounted control button with each hand (so that the hands are not near the dangerous part of the machine when it cycles), an individual with a frozen or ankylosed shoulder would not be able to reach the control button with the ipsilateral hand. Thus, this individual could not do the job in question unless the impairment (lack of shoulder motion) can be accommodated by mounting the machine control in an alternate, but also safe, location," writes Talmage.
The last component is tolerance - symptoms during task performance that cause the individual to self-limit performance. How much pain an individual is willing to tolerate depends on many psychosocial factors and the benefits available for doing the job. This is a risk/reward analysis that can not be measured because it is an entirely subjective component.
"A relatively small amount of pain may make intolerable a physically easy minimum wage job the individual dislikes (job A). When offered employment in a physically very strenuous, but interesting and well paid job (job B), the individual may decide that the rewards of this new work are worth the cost of the increased pain symptoms from the physically challenging job. Thus, mild pain may be intolerable on job A, but severe pain may be tolerable on job B," explains Talmage.
Perhaps this line of thinking is a better method for analyzing workers' compensation's indemnity component. I have been asking for some time if it wouldn't be better to reward "ability" or "productivity" than disability in work comp systems and I think looking at disability in this three part analysis is the path to that better indemnity equation.workers compensation, work comp, injured worker
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