Monday, October 24, 2011

Dispute Resolution and Needless Disability

On my way back from Dallas Friday evening, I finally had the chance to read Robert Aurbach's piece in the July/August AMA Guides Newsletter, "Dispute Resolution as a Creator of Needless Disability."

For those of you who are not familiar with Aurbach (resume here), he is in my opinion one of the leading thinkers in the area of workers' compensation systems and an adroit author and editor of numerous publications of and concerning workers' compensation, in addition to having drafted laws for various systems and is internationally renowned for his work in disability management systems.

The importance of Aurbach's opinion is that he has a international experience in workers' compensation, providing him with a very unique perspective that transcends systems that operate in the United States.

One element that Aurbach see across that board in all workers' compensation systems is that there is an imbalance in the outcomes produced by litigation of workers' compensation claims, because the motivations for all involved in litigated workers' compensation claims is a negative outcome: disability.

Aurbach attempts to link physical science to the injured workers' mental state when that worker is told that he is "disabled". The brain alters the organization of its neural networks based on experience, a phenomenon known as brain plasticity or neuroplasticity, according to the article.

Thus, "When injured persons feel pain and a physician tells them that they have a permanent
condition, the feeling of pain can become associated over time with the diagnosis, the emotional response to the diagnosis, and factors associated with the diagnosis."

This acquired behavior is reinforced in the workers' compensation litigation process, says Aurbach.

"The worker is confronted by an overwhelming array of new and poorly understood stimuli, and the physical sensations, reminder of diagnosis, emotions associated with the situation, and any situation invoking the victim’s role may get associated in a new neural network through repetition and duration. Each of these stimuli acquires the power to independently trigger an experience of the other emotions, sensations, and ideas, and the creation of a disabling pattern is complete. The injured person has adapted to the role of the victim. As repetitions of this cycle continue to build while the claim for benefits awaits resolution, the worker sinks deeper into the role of the victim, and the neural network of associations can become stronger, and the role becomes harder to break."

Aurbach does not discount the impact of psychosocial issues impacting the injured workers' "disabled " state, but is cognizant that the workers' compensation process may be the tipping point - that one last set of circumstances that provides the missing link for a person to experience the neural association of disability.

Auerbach then goes through in detail the litigation process. The description is not jurisdictionally specific, but there are many elements that are common across the litigation process regardless of jurisdiction because of the underlying anglo-legal customs that are pervasive in modern dispute resolution systems. Each part of the process contributes to the injured workers' "disability", or "enables" the disability model.

Ultimately, the injured workers' identity is intertwined with his/her diagnosis:

"The focus on the connection between injury at work and disability, the worker’s personal identification with a diagnosis, and the process of multiple evaluations of impairment repeatedly sends the message of disability, limitation, and inability to resume a normal life to the worker. Like the classic case of the child, told by a teacher that he or she is stupid, who conforms to the message in their performance at school, it is not surprising when workers acquire a disabled lifestyle and develop what is for them a genuine inability to return to productivity and normalcy."

In short Aurbach provides an excellent and thorough explanation of how and why workers' compensation systems as they presently exist contribute to the "disabled" status of those injured at work, rather than provide relief when it is needed most.

Anytime any legislator proposes workers' compensation "reform" they should first be required to read Aurbach's work.

workers compensation, work comp, injured worker

No comments:

Post a Comment