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IMPAIRMENT AND COMPENSATION
In the United States during the
course of their lives nearly 80% of people will experience
some form of back pain. The problem, however, is not
the pain itself but the disability that results. Therefore,
it is important to distinguish between pain, impairment,
and disability, since the terms are often used interchangeably
but are quite different for compensation purposes.
Pain: The
perception of an unpleasant sensation that is associated,
at least in the mind of the individual, with tissue
damage. Conscious awareness, the emotional experience,
and value judgements, may lead to suffering.
Impairment:
The loss of, the loss of use of, or derangement of any
body part, system, or function.
Disability:
The limiting, loss, or absence of the capacity of an
individual to meet personal, social, or occupational
demands, or to meet statutory or regulatory requirements.
Typically, physicians do not rate
disability, but rate impairment. However, they do give
opinions about disability in workers' compensation determinations.
Most workers' compensation systems require only that
the employee be unable either to perform his or her
former employment or to obtain other employment suitable
to his or her qualifications and training. The ability
to perform work at a lower activity level is usually
not a consideration in the award of workers' compensation
benefits.
Workers' compensation systems provide
four categories of compensable medical disability:
temporary/total, temporary/partial, permanent/partial,
and permanent total. The two temporary
categories have been the least controversial because
they are characterized by the expectation of a return
to work after a period of recuperation; the controversy
that does arise surrounds determining the appropriate
length of the recuperative period. The question has
usually been resolved by defining the end of the healing
period as the time when maximum medical improvement
has been achieved, as determined by the treating physician.
In theory, the underlying notion
supporting workers' compensation systems is that the
employee eventually will return to work; state compensation
boards often attempt to impress upon the employee the
value of rehabilitation. Willingness to participate
in a rehabilitation program is usually not mandatory
in order to qualify for benefits. However, a few states
have instituted obligatory completion of a rehabilitation
program after benefits have begun. There has been a
trend towards the revision of state laws to provide
for the expectation of a return to work rather than
for the long-term receipt of benefits.
In state compensation systems,
the emphasis is usually not on the continuing presence
of pain but on the stabilization of the underlying disorder
and the degree of functional limitation. Even if the
pain fluctuates from time to time but the underlying
condition is stable, it may be that there will be no
finding of disability. When a claimant reports subjective
complaints of unknown etiology the chances of receiving
benefits may be less. However, there are almost always
spurious diagnoses that can be used to legitimize a
disease condition.
Although workers' compensation
laws vary in the type of benefits received and in the
process of achieving those benefits, for the most part
both the various states as well as the federal government
have similar core provisions. Almost all systems are
compulsory as to public employees and most are compulsory
of private employees as well through private insurance
carriers. Medical care attributable to the injury is
unlimited but financial compensation can vary. The minimum
and maximum weekly benefits differ and the length of
time to receive benefits can have caps. Often an employee
who is deemed only partially disabled will have a much
shorter duration of benefits so that insurance carriers
push to have an employee reach that status. In some
jurisdictions employers may be penalized for late payments
or for violations of safety or health law regulations.
While there is a general emphasis on vocational rehabilitation,
some states specifically furnish a commission to arrange
for this and/or establish a fund to pay for such services.
There are also wide differences in how states treat
second injuries and how they attribute workers' compensation
liability to either the first injury, second injury,
or some combination thereof.
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