Disability Assessment

Historical Perspective

It is written in the Bible that “if any would not work, neither should he eat.” Hence there has been a long-standing expectation among individuals within society that members must contribute individually to benefit and share collectively. It appears equally valid that individual members who cannot contribute because of disability may be exempt from such expectation and yet still enjoy benefits to which other group members are entitled. It is also possible for an individual to exploit society through unfair and exaggerated claims of disability, which becomes an issue of social justice. Although social justice systems compensate in some way for bodily illness or injury, they must also afford protection against benefits being paid to those who choose not to be productive and fake or exaggerate their disability. Various legal disability and compensation systems provide rules defining disability and entitlement as well as procedures for determining who qualifies as disabled. These rules are intended to provide fair and equitable distribution of limited system resources to those whose needs are greatest and whose disabilities are most compelling.

Within the United States, various disability and compensation systems have arisen to ensure that members of society with a medically determinable impairment that may lead to disability have recourse to compensation from various avenues. This includes state tort laws to provide compensation for personal injuries from intentional or negligent acts of others and state and federal workers’ compensation laws for work related injuries and illnesses, social security disability benefits, veterans’ benefits, and social welfare programs where appropriate. These systems have diverse historical origins and statutory requirements. Consequently, there remains considerable variability between them concerning definitions of disability, entitlement, benefits, claims application procedures, adjudication, and the role and relative weight given to medical versus administrative deliberations.

Contemporary Perspective

The United States legal system is complex because of its large territory (50 state jurisdictions plus two commonwealth territories). However, as it relates to disability and compensation of individuals, it is essentially based on two basic types of law: federal and state statutory (legislative) laws and common law (judicial precedent). Both federal and state statutory laws are then mainly adjudicated through administrative law, which has a modified evidentiary and procedural process for ease of judicial administration. The administrative law decisions are then subject to review by various state and federal courts upon appeal by parties. The common law claims of personal injuries, for example, from motor vehicle accidents to slip and fall claims seeking compensation are mainly based on state tort laws.

Tort Law

All states in the United States, under their common law, recognize physical or psychological injury as a personal injury for which monetary damages can be awarded under the law of torts. Common law is a system of law in the United States inherited from the British colonial period based on previous legal judgments (precedent setting cases), which is a defining characteristic of common law sometimes referred to as “judge made law.” This is contrasted with statutory law, which is adopted through the legislative process, and regulations enacted by the executive branch. A majority of the United States contract, property, and tort law are based on common law.

Under tort law, a claim is usually made against the defendant for personal injury arising out of negligence and, in some instances, an intentional act. Common examples include those claims arising out of motor vehicle accidents, slip and fall claims against property owners (both private and business), defective products, medical negligence, hospital and nursing home negligence, assault claims, and work related injuries outside of the aegis of workers’ compensation. Plaintiffs are entitled to monetary awards for both actual and general damages (e.g. pain and suffering, nonpecuniary damages). The severity of the injury and its outcome in the form of physical or mental impairment and or disability is the main driver for the compensation. Physicians who have not participated in the medical care of the patients are retained by both sides as independent medical examiners (as expert witnesses) to evaluate the plaintiff’s claims of personal injury by performing an independent medical examination (IME). The physician is typically required to evaluate the causation, the nature and the severity of the injury, the exacerbation or aggravation of the preexisting pathologic condition, if any, and apportionment. Sometimes, the physician may also be called on to comment on the necessity of the treatment previously provided or future treatment proposed for the condition under question. In addition to the tort claims that may arise from a personal injury caused by motor vehicle accidents, slip and fall, medical malpractice, or defective products are adjudicated in the individual state court system. The following are other contemporary disability compensation systems in the United States.

State Workers’ Compensation Systems

The workers’ compensation system is statutory law administered by a governing board or agency in each state, commonly referred to as an industrial commission, Bureau of Workers’ compensation or commission, which oversees various public/private combinations of workers’ compensation systems in that state. In nearly all states, workers’ compensation insurance is available through private insurance companies that underwrite the risk of occupational injury/ disease in a particular occupation or industry in return for payment of a premium paid by the employer. A few states have a state-owned monopoly insurance fund that employers must pay into unless they qualify as a self-insurer. Large employers with sufficient financial strength can also self-insure and are responsible for paying the claims through a third party administrator who administers these self-insured workers’ compensation programs.

An injured worker is entitled to three types of benefits: medical and rehabilitation expenses, wage loss benefits, and survivor benefits. In the event of death, the surviving spouse and/or children are entitled to survivor benefits. Coverage for medical and rehabilitative expenses is 100% for authorized services. Wage loss benefits are paid according to four separate levels of work disability. Temporary disability occurs for the duration of the treatment period and may be total (employee is incapable of any work) or partial (employee may resume “modified duty” with restrictions).

General damages for pain and suffering and punitive damages for employer negligence are not available in workers’ compensation schemes, and negligence is generally not an issue in these cases unless the employer had wanton, reckless disregard to workplace safety, or intentionally caused injury. Thus a workers’ compensation system is desirable for employers because the cost of workers’ compensation insurance is predictable and can be passed on to the consumer within the cost of goods. In contrast, the employer avoids the potential risk of expensive and time-consuming common law litigation as well as financial insolvency that could result from a substantial jury award.

The workers’ compensation statutes in various states may have some subtle differences from each other. However, fundamental features are common to all of these statutory schemes:

• A no-fault system for injuries arising out of and in the course of employment.

• Compulsory insurance is required for employers with very few exceptions.

• Exclusive legal remedy for employees for work related injuries/illnesses with few exceptions.

• The injured worker retains the right to sue any third party liable for injury.

• Dispute resolution through administrative law adjudication with less rigorous rules of procedure and evidence than the civil court system.

• Expedited benefits for medical and rehabilitation treatment with wage replacement during the temporary disability phase.

• Final compensation for permanent partial and permanent total disability.

Under the workers’ compensation system, upon completion of the treatment phase under a claim, a physician must determine the point of maximum medical improvement (MMI) so case closure can occur. The employee may receive monetary compensation for permanent total or partial disability. Generally, this is a lump sum payout calculated according to a predetermined formula specific to each jurisdiction. It considers the value of the “whole person impairment” as several weeks’ pay multiplied by the average weekly wage up to a cap, and then multiplies by the impairment percentage of the “whole person” based almost always on a certain edition of American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment as prescribed by the relevant law or regulation.

Medical determination of physical or psychological impairment is almost always performed at MMI by a physician skilled in the use of the AMA Guides, as impairment is only determinable by medical means. In contrast, disability requires consideration of numerous other non-medical factors. However, in some cases, the physician is empowered to render an opinion regarding the nature and extent of medically determined impairment resulting in disability.

Federal Workers’ Compensation Systems

In the United States, federal workers’ compensation laws provide no fault based compulsory broad coverage of injuries and illnesses arising out of and in the course of employment for over 2.9 million federal employees. The United States Department of Labor (USDOL) maintains exclusive jurisdiction over these programs subject to judicial review.

The major federal workers’ compensation programs are administered by the Office of Workers’ Compensation Programs (OWCP), an agency within the USDOL. One of the major federal programs, the Federal Employee’s Compensation Act (FECA), covers federal employees in more than 70 different agencies along with several other worker groups adopted by Congress in various acts of expansion of the federal authority. Additionally, the Longshore and Harbor Workers’ Compensation Act, Energy Employees Occupational Illness Compensation Act, and Federal Black Lung Program (coal mine workers’ compensation) are other federally mandated compensation acts administered by the OWCP. These four major federal workers’ compensation programs provide wage replacement benefits, medical treatment, vocational rehabilitation, and other benefits to injured workers that experience work related injury or occupational disease or their dependents. USDOL also oversees the Defense Based Act (DBA) that provides workers’ compensation protection to civilian employees working outside the United States on military bases or under a contract with the United States government for public works or national defense. Similar programs that cover a specialized group of workers, such as the Non-Appropriated Fund Instrumentalities Act (NAFIA) and Outer Continental Shelf Lands Act (OCSLA), exist but are beyond the scope of this discussion.

Other federally mandated workers’ compensation programs include the Federal Employers Liability Act (FELA), commonly known as the Railroad Worker Act, and the Jones Act (Merchant Marine Act). FELA provides disability benefits to employees of the interstate railroad industry for job-related injuries. It is the only remedy for injured railroad workers employed by a common carrier railroad. It is a fault-based system, and the injured railroad worker must sue the railroad in civil court (similar to negligent tort action) to prove that the injury was caused in whole or in part by the negligence of an agent, employee, or contractor of the railroad or from faulty equipment. The civil action can be brought in either a state or federal court, and the case is tried in front of a judge and jury. The monetary damages awarded against the negligent railroad are generally much higher than those of other no fault based state or workers’ compensation systems.

The Merchant Marine Act of 1920, also known as the Jones Act, allows civilian sailors, while in the service of a ship in the United States navigable waters and between United States ports, to claim compensation for injuries resulting from the unseaworthiness of the vessel on which they served or negligence of a ship’s owner, agents, and employees. It operates similar to FELA, and the claimant must bring suit in civil court against the master or owner of the ship to collect monetary compensation.