Disability, Working and the Legal Fiction

Disability is a legal fiction that has nothing to do with whether in fact someone can actually work.

I've made that statement many times, and have a number of blog posts that discuss that very point such as this, and this one, among others.

I can't tell you how many times I've been challenged on that statement, particularly by newer members of the claims community.

I recall one claims adjuster at one of my presentations who who held the opinion was that if someone is 100% disabled then they are essentially of vegetative state incapable of doing anything of value and can not work - period. From her standpoint the payment of disability indemnity precluded any other form of income.

The concept that someone could work and still be considered 100% disabled did not settle well with her. She was a claims adjuster and could not accept that someone may be able to, or in fact was, doing some form of work but able to be compensated as though unable to work.

A recent Iowa case highlights that disability is only for the purpose of determining a number - because that's how we deal with injury and displeasure in America, by handing out money.

In the published opinion Wal-Mart Stores v. Henle, No. 3-913 / 13-0366 and No. 3-1071 / 13-0721, 01/09/2014, Julie Henle suffered injuries while at work in May 2006 when a 60-pound stack of plastic totes fell approximately 15 feet, landing on her head and shoulder.

Thereafter Henle complained of unremitting headaches and dizziness. She was able to continue working, but her doctor restricted her to working four hour days.

She also missed a lot of work because of her headaches.

A deputy workers' compensation commissioner determined that Henle was permanently and totally disabled from competitive employment, and ordered Wal-Mart to begin paying her PTD benefits from May 30, 2006, onward.

The deputy ordered that the benefits be paid in a lump-sum, with Wal-Mart receiving a credit for past payments it had made and for the dates when it made accommodation for Henle to work.

Wal-Mart appealed to the Workers' Compensation Commissioner, but the commissioner affirmed the deputy's decision in April 2012. So Wal-Mart took the case further up the ladder.

Eventually, after remitter from the Supreme Court, the Court of Appeals upheld the commission's affirmation.

The court went on to reject the suggestion that an employee must be 100% disabled to qualify for a total disability award, so that Henle could not be totally disabled when she was employed and earning wages.

In Iowa an employer's accommodation of an injured employee—like Henle's part-time job and excused sick days—can only be factored into an industrial disability award if the commissioner finds a position equivalent to the newly created job is available in the competitive labor market, the court said.

The court said it agreed with the commissioner's finding that Henle's accommodated work situation is not generally available in the marketplace, and so Henle was entitled to a PTD award.

Granted this Iowa case rests on Iowa specific law but the general point is the same - the LAW defined the disability, not the facts. Disability is a legal fiction.

Whether someone can work or not does not necessarily determine one's indemnification status. There may be some overlap, and ability to work or not may be EVIDENCE that is weighed into one's indemnification status, but it is not synonymous with complete inability to gain or earn an income.

As the Iowa Court of Appeals found, because at the trial level the hearing officer relied upon substantial evidence (I have quite a few posts on that fiction as well), then the finding was "good enough." Yes Iowa, someone can be 100% disabled and still do some work.

And isn't that the outcome we all want anyhow regardless of compensation? Return to work?