Article 1: Disability Management Through Organizational Thought
Article 2: Conducting Compelling Vocational Disability Evaluations
Article 3: Explaining Acquired Disability & The Workplace Approach to Managing It
Article 4: Causal Attributions of Acquired Disability: Who is Qualified to Make the Call?

Disability Management Through Organizational Thought

By Jasen M. Walker, Ed.D., C.R.C., C.C.M.

“Act is the blossom of thought, and joy and suffering are its fruits…” – James Allen

Language is the content of thought.  It could be said, “Language thinks you.”  Thought creates ideas, visions, and paradigms from which we create our world, order it, make sense of it, and plan action to change it.  Our individual choice of words to describe the world in which we live can lead to new ways of thinking about that world and new solutions to old problems.  The construct of presenting himself as a “compassionate conservative” once helped President Bush distinguish himself from more rigid and dogmatic Republicans.  The idea that one Democratic presidential candidate proposed a “Department of Peace” in a country perceived to be fighting a war of choice rather than a war of necessity helped define not only the candidate, but his potential policies and actions.

The language that is used in workplace dialogue results in organizational behavior.  In the world of work (and specifically work organizations), employees and, to a larger extent, the leaders of these organizations create the workplace culture. A workplace culture is the environment that evolves into the policies and actions that are the ideas, visions, and paradigms that define operations.  At the foundation of leadership, language is behavior.  The specific words that leaders use are chosen to influence others, preferably toward success but potentially into failure as well.

An administrator responsible for the design and operation of a disability management program for his or her work organization has to appreciate the significance of semantics.  Without a clear understanding of the semantic difference between a “light duty” approach and a “transition-to-work” approach, for example, the manager cannot achieve the kind of outcomes the employer needs.  And the difference is not merely nuanced or shaded; the difference is substantive and critical.  The program manager perceptive enough to understand the relationship between language and thought, and willing enough to take chances on implementing new ideas even if they may be criticized originally, will succeed.  The program manager who cannot make such adaptations will simply perpetuate failed methods.

Among recent organizational concepts is the notion of disability management, the idea that workplace disability can be managed, even prevented!  The word “disability” itself is a modern word that has no direct equivalent in ancient languages.  There is no one word, in either Hebrew or Greek, that means “disability” in the way that we use that word today.  The terms “disability” and “handicap” relate to politics that we adopted when modern social welfare policies began to find another word, “crippled,” inflammatory and costly.  With the evolution of a language that socially defines people as “challenged,” society has offered people in the workplace a new lexicon, including “disability management.”

At the core of managing workplace disability is the language, old and new, that organizational leaders choose to define their policies and procedures toward both an aging and an inclusive work force. Many employers are still experiencing problems managing workplace disability.  These problems can cause management inefficiencies and, in some cases, result in a serious financial drain on the company.  Risk managers and Human Resource professionals are, by training and experience, in excellent positions to assist their organizations by recognizing the problems associated with workplace disability and by educating company managers to the idea that they can address these issues effectively.  This often requires a so-called “paradigm shift,” fundamentally initiated when business leaders think and speak of workplace disability and its management in new terms.  The concept that the specific language chosen is the basis of the thought and action outcomes is quite pertinent to business leaders reconsidering disability and lost work time.  In other writings, we have offered a new lexicon of workplace disability and its organizational management.  Here we suggest that this new lexicon can assist business leaders in formulating more effective policies and procedures for reducing the increasing human and financial costs of occupational disability.  Moreover, we recognize that the practice of workplace disability management was first conceived with creative thought born from language.  We encourage all business leaders to realize the power in the phrase, “Language thinks you, ” and we encourage those who practice organizational disability management to share their “best practices” with others.

The Difference between Impairment and Disability

More than any other distinction, knowing the difference between medical impairment and occupational disability is critical in effectively managing workplace disability.  The American Medical Association’s Guide to the Evaluation of Permanent Impairment defines impairment as “any loss or abnormality of psychological, physiological, or anatomical structure or function.”  Simply put, an “impairment” is an alteration of an individual’s health status as the result of an injury or illness that is assessed by medical means.  Importantly, an “impaired” individual is not necessarily “disabled.”  The World Health Organization defines disability as “any restriction or lack of ability (resulting from an impairment) to perform an activity in the required manner…within the range considered normal for human beings, particularly in social or occupational settings.”  Disability in general may be thought of as the gap between what a person can do and what a person needs or wants to do.  Occupational disability is the difference between what a person can do as result of functional impairment and what a particular job demands.

Many individuals have impairments or histories of impairment; indeed, most of us do.  However, the medical impairment must compromise physical and/or mental function to the extent that it interferes with meeting occupational demands.  Occupational demands can be changed without necessarily diminishing productivity.  Human resource professionals and risk managers, as well as business leaders in general, can employ people with an impairment and not have them experience disability per se.

Unfortunately, we have been inculcated with the belief that physicians, not business managers, make decisions regarding an individual’s employability.  This inculcation and associated miscalculation is often apparent in employer representatives asking physicians, “Can Harry come back to work?”  In reality, the physician probably does not know, and the physician not knowing is often the result of the physician not knowing what Harry’s job requirements truly are.  Moreover, physicians cannot possibly appreciate what Harry’s potentials are for alternative employment within the organization from which he is currently separated by a change in his health status.  Whether that change is temporary or permanent, it all too often need not result in total disability or continuing lost time.

The Induction of Disability

After careful thought, we have realized that lost time from work following injury or illness can be induced.  Old and new terms generated by creative thinkers have helped clarify the reasons for work disability and led to new ways of resolving problems associated with vocational disability.  The language responsible business leaders need to understand to prevent and manage the workplace more effectively includes the terms bureaugenic, litogenic, iatrogenic, and psychogenic.

Bureaugenic work disability is often caused and maintained by the political structures that surround occupational injury and non-occupational disease.  Organizational policies and personal decisions often overlook the consequences of shortsighted and antiquated return-to-work practices such as, “You cannot return to work here until you are 100%,” or, “Return-to-work programs are for workers’ compensation recipients only.”  Although the rising costs of workplace disability, the Americans with Disabilities Act, and innovative movements (including integrated disability management) have resulted in some reevaluation of antiquated bureaucratic responses to lost time, bureaugenic induction of disability through discouraging rapid return to work remains a significant problem for many work organizations.

Some self-insurers of both workers’ compensation and long-term disability programs have failed to realize that, as work organizations, they may be creating return-to-work disincentives for their employees following lost-time injuries or illnesses.  With employees able to receive 75% or more of their pre-injury wage replacement benefits, they are being invited to entertain secondary gain, a natural complication of vocational disability in the modern workplace.  Some municipal wage-replacement systems pay the injured worker their entire salary indefinitely and yet offer no return-to-work or transition-to-work program.  The Social Security Administration has recognized that although most recipients of SSDI are of working age, they do not take advantage of the trial work period available to them.  Both organizational and government bureaucracies can create dysfunctional policies that actually foster and maintain lost-time disability.

Litogenic disability is often the result of the injured party and a legal advocate creating an alliance in an effort to demonstrate that the injured party has been wrongfully treated.  Frequently, this is the result of a third-party action or personal injury litigation arising from a work injury.  The situation becomes even more complex when the workers’ compensation insurer wishes to subrogate or recover damages from the liability litigation resulting from a product or machinery defect, for example.  The legal maneuvering involved in litigation often ignores the importance of gainful activity as a means by which individuals can recover their damages.  What is more, gainful activity is often discouraged by legal representatives who hope to bolster the argument that the injured party has been economically damaged.  These litigations almost always induce or encourage occupational disability and perpetuate lost time.

Iatrogenic means a disability unwittingly precipitated, aggravated, or induced by a healthcare provider’s attitude, examination, comments, or treatment.  Many medical specialists involved in injured worker healthcare believe that occupational injuries must be treated conservatively, that is, with time and non-invasive modalities.  Iatrogenic disability need not be the result only of a surgical intervention that is premature or unnecessary.  Chasing symptoms, prescribing pharmaceuticals that create disabling side effects, and over-prescribing other therapies that fail to result in improvement can prolong vocational disability.  Physician induction of disability can often result from mere suggestion.  The susceptible, all-too-vulnerable patient can hear, or think he heard, the physician say that he was “unable to work.”  Physicians sometimes underestimate or unconsciously abuse the power invested in them by the generally naïve healthcare recipient or the public in general.  When physicians declare that an individual is “unable to work” or is “totally disabled,” the physician is generally overstepping his or her bounds and making a declaration outside of his or her expertise.  The American Medical Association has advised its members to avoid making disability determinations.  Likewise, medical experts should avoid making vocational decisions, and treating physicians should recognize the therapeutic value of an early return to work.  Unfortunately, both work organizations and healthcare professionals still have a great deal to learn regarding the appropriate involvement of medicine in occupational recovery following lost-time injury or illness.

Psychogenic disability results in the claim of an inability to work because the symptoms are produced by mental or psychological factors rather than physical problems.  Depression, substance abuse, personality disorders, and psychosis can lead to psychogenic disability.  Unfortunately, this kind of “disability” is often assessed by healthcare professionals to be a valid reason not to return to work, even when the condition is not necessarily disabling.  Very often psychogenic disability is the result of pre-existing work dysfunctions, which have led the employee into difficult relationships and/or stressful work situations that he or she now wishes to avoid.  Psychogenic disability therefore can arise when employees report symptoms secondary to stress that they attach to a particular cause external to them, rather than taking responsibility themselves for reducing the stress.

[For an excellent text on psychogenic disability and its causes, see Psychiatric Disability: Clinical, Legal and Administrative Dimensions, published by the American Psychiatric Press, Inc. (1987).  For more information on Work Dysfunctions, obtain a copy of Counseling and Psychotherapy of Work Dysfunctions from the American Psychological Association (1993).]

Injured Worker Helplessness

The creative and effective use of language in helping to conceive disability management and prevention also borrows from related disciplines.  Psychology is certainly one of those disciplines.  Nearly 20 years ago, Martin E.P. Seligman, Ph.D., an internationally esteemed psychologist, developed the theory of “learned helplessness” and defined it as the motivational and behavioral deficits displayed by humans when exposed to uncontrollable circumstances.  At around the same time, researchers at the University of Minnesota showed empirically that a non-contingent reward interferes with goal-seeking behavior.  That is, if one is paid for an outcome before the outcome is produced, behavior that might lead to that outcome can be diminished or even extinguished.  Sometimes referred to as “learned laziness,” this theory and Seligman’s “learned helplessness” offer two empirically studied psychological phenomena that have major implications for workers’ compensation systems and disability management programs.

Return-to-work motivation is lost relatively quickly in workers’ compensation systems that lead to an injured worker’s perception of decreased personal power and control.  Most workers’ compensation systems are fertile ground for what we have defined as “injured worker helplessness.”  When the workers’ compensation claimant is legally compelled or “forced” to perform a job search, when compensation checks do not always arrive on time, when healthcare providers do not take the time to explain their findings, and when private investigators are knowingly probing for information from the injured employee’s neighbors, the employee can believe that he or she has lost control over a previously cherished lifestyle.  When others are making decisions for the injured worker and usurping control, learned helplessness ensues.  Simultaneously, the system is financially rewarding the injured worker with wage replacement and encouraging the onset of learned laziness (or defiance).  We know from replicated studies that after six months of lost time following an occupational injury, 50% of injured workers never return to gainful activity, and we also know that after nine months of lost time, that percentage drops to approximately 20%.  Injured worker helplessness and learned laziness could be the reasons for these vocational failures.

Malingering and Co-Malingering

Few people in the disability management business are not familiar with the term “malinger” or its meaning.  What is significant, however, is that even fewer people in Human Resources management know the term “co-malinger” or its meaning.  Therein lies the all-important difference. 

The reality is that in the rehabilitation system, the injured worker is surrounded by a number of other players or “stake holders.”  Whereas malingering is the intentional production of false or grossly exaggerated symptoms by an individual, co-malingering is the result of collaboration in keeping the injured party out of work; the injured person has found a partner, or partners, in his or her efforts to remain disabled.  Surprisingly, employers are often partners in the dance of co-malingering.  Injured workers are frequently viewed as troublemakers, and supervisors are all too willing to assist in the lost-time process by refusing to return the injured employee to work, with or without some type of accommodation.  Perceived as taking advantage of the compensation system, the injured employee is given messages that he or she is unwanted, and if the injured or ill employee is returned to “light duty,” those work assignments are often so demeaning that the employee quickly learns that there is little or no reason to remain at work.  An injured worker can usually find one or more partners, including a physician, a lawyer, a spouse, or any significant other who assists the injured employee in exhausting his or her disability alternatives and compensation options by remaining out of work after the onset of an injury or illness.

Light Duty versus Return to Work

Language drives change.  Any change in the applicable language used is fundamentally disadvantageous in that it hinders communications.  Consequently, the language of change is generally negatively evaluated by the status quo.  One of the concepts most resistant to change in disability management has been “light duty.”

Light duty is a useful term when it is applied to the exertional level of a specific task.  If an employee has been injured and will now and forever be physically unable to do the same tasks he or she did before the injury, then assigning a job with a reduced exertional level is appropriate.  The exertional level of a given job assignment can be determined by a job analysis that measures the physical requirements of the “essential functions” of the job.  If a state-of-the-art job analysis is not conducted, the employer cannot possibly know the exertional level required to perform the job.  “Light duty” or “light work” speaks to a specific job function.

In fact, however, the term “light duty” is generally used to define the process of return to work, and it is here where the term is misunderstood and misapplied.  This misuse of the concept is widespread.  Many, if not most, individual state workers’ compensation laws, government (especially local municipalities) contracts with their employees, and general workplace procedures use the term to refer to all return-to-work situations where the employee has been injured.

The difficulty with this application is that it does not provide for the transition to a more productive employment.  In fact, most employees who have been injured at work can become more productive incrementally than they may be the first day they return to work.  (Further, waiting for a 100% return to health is costly for the employer.)  Often, the transition to more productive employment can be facilitated by work tools, aids, and equipment.  Historically, hand trucks and forklifts became “necessary” when manual lifting could not do the job.  Employers too frequently resist making equivalent cost-effective job accommodations during a transition-to-work process.

Unfortunately, there is generally no distinction between temporary and permanent light duty.  What is needed is a transition-to-work (TTW) program that will guide the progressive improvement of the employee and his or her capacity to gradually assume a more strenuous workload.  There are TTW methods and materials available.  The problem is to make disability managers aware of the existence of TTW materials so that they can redesign their return-to-work programs using them.

A successful disability management program requires a willingness to change the process when and where it is essential to do so.  Distinguishing between “light work” and “light duty” and moving toward more productive TTW models can greatly improve a disability management effort.

Job Accommodation

As technology continues to advance, job accommodation for people with disabilities becomes increasing more feasible and practical. However, employers’ attitudes toward assisting individuals, with or without accommodations, are critical to the process.  Job accommodation constitutes any action or series of actions that make it possible for a person with an impairment to attain employment, to be promoted, to train, or to participate in employer activities.  Job accommodations may include work-site modifications, special aids or devices, modifications of job tasks, or a change in working hours or schedules, but all accommodations involve employer willingness to interact with any employee or new hire to remove barriers to employment and full participation while concomitantly taking advantage of the employee’s strengths.

Conclusion

Workplace behavior is largely driven by the creativity of the company leadership.  At least a portion of organizational leadership and creativity can be found in the ideas, working models, and visions that leaders select from the language organizational members choose and encourage others to use.  This is a fundamental concept in the so-called corporate culture.  Fifty years ago, individuals with physical manifestations of medical impairment were known as “cripples” in the general culture.  That terminology was found to be inadequate both socially and politically and led to societal use of the term “handicapped.”  Handicapped became, in turn, inadequate and misleading, and, more recently, society settled on the term “disabled.”  (Although this term seems to have been accepted by the majority, some people have insisted that we adopt the concept of “challenged,” as in “physically-challenged.”)

Language has its greatest utility when it facilitates human creativity and problem solving.  To a large extent, “shifting the paradigm” can be found when business leaders facilitate organizational creativity and problem solving by encouraging new ways of thinking.   Our thinking will forever be tied to the language we choose and the courage we demonstrate in its application.  Disability management is only one of the myriad of workplace challenges to which the concept “language thinks you” has merit.

Conducting Compelling Vocational Disability Evaluations:
Three Required/Critical Understandings for the Evaluator

By Jasen M. Walker, Ed.D., C.R.C., C.C.M.

Part I – The Need for Thorough Histories and Sufficient Documentation

Vocational Assessment and Occupational Disability Evaluation in personal injury matters challenges the vocational evaluator to be precise and certain in rendering conclusions, more often than not, after only one examination of the injured person.  Vocational experts offering opinions to the court therefore must “attempt to obtain all appropriate reports, evaluations, and other such data which the expert deems essential for determining vocational capacity” (Code of Ethics, Rules of Professional Conduct, R3.5, American Board of Vocational Experts).  In reality, the justice system, relying on forensic expert testimony to facilitate the court’s decision-making, is compelled to expect thoroughness and the highest level of precision possible from the expert.

It has been well-established in medical, psychological, and social research literature that  a thorough history is critical in establishing the source and extent of a presented problem or chief complaint.  Moreover, the subject to be studied or evaluated has a story that certainly predates his or her examination, and that story is always multifaceted.  History from the subject alone can be forgotten, unconsciously distorted, deliberately changed, and provided only from one perspective, that of the person being examined, an individual who is naturally defensive and sometimes distraught.  Reliability of histories is always an issue, and even though the examiner can endeavor to be extremely thorough in history taking, the documented past (i.e., school records, medical records, employment records, and sworn statements from the informant and others) can be essential in providing a more complete picture as the vocational examiner attempts to arrive at a professionally certain opinion on the issue(s) to be addressed in the evaluation.

For vocational experts, career development theory and vocational psychology have offered the person-environment model of occupational fitness and job compatibility.  John L. Holland (1997) has provided both direction and leadership to the field of career development as he studied and described the importance of personality in occupational choice and match.  Donald Super (1984) worked to understand and improve the notion that a person’s familial values and personal beliefs are fundamental to an individual’s vocational identity. Super also found and explained that career development and lifespan benchmarks coincide in a meaningful way.  Recognizing that many adolescents and adults experience a wide range of problems when making a career decision and adjusting to the world of work, Osipow and others (1996) developed a taxonomy of career decision making difficulties that result in occupational indecision.  [Vocational/disability assessment and psychotherapy is explained in greater detail in Part II of the article.]

In addition to foundations of vocational development theory, experts dealing with the problem of workplace disability have benefited from the insights of astute occupational medicine physicians, including Drs. Behan and Hirschfeld (1966). Behan and Hirschfeld offered their analyses of hundreds of case studies, which described occupational disability as a “process” in response to stressful life situations coupled with an “explanatory” accident rather than simply a static result of occupational illness or workplace injury.  Borrowing from the work of Behan and Hirschfeld, Weinstein (1978) aptly portrayed “disability as a process,” with identifiable stages that could be retrospectively identified and described by observers with sufficient information from troubled workers’ histories and pre-accident employment patterns.

More recently, Lowman (1993) has provided an informed and systematic analysis of “work dysfunctions,” the result of a complex interaction of characteristics of the person in the work environment. Work dysfunctions are demonstrated impairment of job capability absent physical or mental disease per se.  Work dysfunctions, most often in the form of employee psychological characteristics, are often the predictors of occupational disability that more frequently than not are viewed retrospectively through careful histories and thorough documentation.

Forensic vocational disability evaluators must take into account the contributions of vocational/career development theorists, occupational medicine professionals, and psychologists when examining the impact of personal injury on a plaintiff’s occupational and economic potentials.  The primary obligation of the vocational expert is to present a fair and reasonable assessment of an individual’s capacity to work, and the capacity to work, both before and after the onset of an occupationally significant injury or illness, is a function of the individual examinee’s numerous personal, social, educational, occupational, financial, and medical circumstances.  Taking thorough histories in each of these domains and gathering all available information through historical documentation pertinent to these areas of the examinee’s life are essential functions of the competent vocational/disability evaluation.

For example, a thorough understanding of an individual’s past psychological adjustment can be critical in understanding that person’s potentials for work.  According to Power (1991) “clients come for assessment with a wide assortment of distinctive vocational assets and problems, including certain emotional difficulties that represent barriers to productivity.  Recognizing all of these factors is important in identifying what vocational evaluation approaches should be used for a particular client.”  An accountant with a history of bipolar disorder may have less potential for future work than an accountant without this form of depressive illness despite the fact that they have the very same cervical spine impairment.

A physically injured adult who has adjusted psychosocially to classroom settings while in high school may very likely have a different response to injury and be more inclined toward future work than an individual who has had a long history of educational absenteeism and failed achievement. When the history of absenteeism is also evident in attendance records from work, the pre-accident statement of motivation to return to work may be even more profound.

Many members of the legal profession have familiarity with the concept of malingering.  Few lawyers and judges, however, understand the dynamics of co-malingering (Mitchell, 1992).  Co-malingering is a social phenomenon in which members of an injured person’s network of family members, friends and/or acquaintances, and sometimes professionals (e.g., a family physician) consciously or unconsciously influence the injured person to avoid productivity.  Co-malingering is often found (and sometimes observed and recorded) in those social relationships that are well-meaning, but contrary to or ignorant of primary axiom of vocational rehabilitation, that is, work is therapeutic. Co-malingerers have their individual agendas, and frequently cannot be identified as members of the injured worker’s social constellation without documentation (i.e., work records, medical documentation, or sworn notes of testimonies).  [Co-malingering is explained in more detail in Part III of this article.]

The sum and substance of this section is essentially that forensic vocational experts, like any other thorough social science investigator, must work toward gathering as much information as possible in order to answer the legal questions of occupational disability, residual employability, and earning power.  These questions are answered only after thorough histories and sufficient documentation are gathered and studied.  Vocational pathways and occupational disability are complex phenomena with numerous antecedents and consequences.  The forensic vocational disability expert’s obligation to the court system is to obtain from the referral source all appropriate reports, evaluations and other such data, that the expert deems necessary for determining earning capacity both before and after the onset of disabling injury or illness.

Part II – The Role of Vocational Evaluation in Providing Psychotherapy to Individuals with Acquired Disabilities

When a clinician encounters an individual who seeks help for mental health problems associated with acquired disability, a thorough vocational/disability evaluation can provide a framework for effective intervention in terms of diagnosis and treatment planning.  Vocational/disability assessment is an effort to explain how mental and/or physical impairment interferes with work functions.  Certified Rehabilitation Counselors, Vocational Psychologists, and members of the American Board of Vocational Experts can assist the clinician and the psychotherapy client in identifying vocational impediments and occupational alternatives through timely assessment as an adjunct to psychotherapeutic intervention.

Vocational/disability evaluation ideally involves a careful review of relevant medical and psychological information regarding the person to be evaluated.  The evaluator invites the client to participate in a structured clinical interview and vocational testing designed to clarify the individual’s mental abilities, vocational aptitudes, occupational interests, and work temperament. 

Although functionality is determined by the healthcare professional, occupational capability or disability is described through the vocational evaluation process.  This process considers, among other issues, the client’s “residual functional capacity.”  Therefore, the vocational/disability evaluation may be timed to take place both before and after psychotherapeutic intervention.  If the underlying problem is identified early in the treatment process, vocational assessment might be performed at that time, and again, perhaps to a lesser extent, following what might be considered a successful intervention.  Successful intervention on an affective disorder, for example, can increase a sense of well being and improve an individual’s employability.

Among the challenges for both the clinician and the vocational evaluator is the ongoing effort to distinguish among impairment, functionality, and disability.  Mental or physical impairment is a change in one’s normal health, sometimes as the result of altered physiology and/or anatomy.  Changes in functionality can be described as how so-called normal or pre-morbid capabilities (e.g., thinking and problem-solving) might be compromised with the onset of identifiable impairment (e.g., brain injury).  Disability is measured by vocational evaluators who fully appreciate how mental and/or physical impairment prevent an individual from carrying out specific types of work.

The clinician will want to remain vigilant as to what aspects of the client’s attitudes and behaviors constitute actual occupational disability and those that may signal “work dysfunctions.”  Lowman (1993) refers to work dysfunctions as “psychological conditions in which there is a significant impairment in the capacity to work caused either by characteristics of the person or by an interaction between personal characteristics and working conditions.”  Some individuals who are relatively intact and integrated are nonetheless unable to deal with a particular work environment or with a dysfunctional supervisor.  Vocational/disability evaluation may become the foundation for an otherwise healthy exit strategy the client may employ in order to leave a “toxic” workplace.  On the other hand, vocational evaluation can identify worker characteristics and capabilities that may be incompatible with particular job demands regardless of the “health” of the work environment.

Physical or mental impairment may constitute a vocational disability in one occupation that would not necessarily be a disability in another occupation.  For example, the loss of binocular vision may prevent a truck driver from continuing in his work, but a thorough vocational/disability evaluation may find that the truck driver can still read at pre-morbid levels and possesses the necessary information processing skills and requisite temperament to function effectively as a motor vehicle dispatcher.  Without thorough vocational/disability evaluation, however, alternative career assessment following visual loss becomes more or less speculation.

Clinicians requesting assistance from a vocational/disability evaluator should also expect the evaluator to provide recommendations regarding the examinee’s vocational potentials through the application of alternative strategies, including, for example, a continuation of psychotherapeutic support while undergoing career change.  Recommendations might also address ways a particular job or occupation might be modified to accommodate an individual with mental and/or physical impairment.  Vocational/disability evaluators generally understand the concepts of workplace modification, job accommodation, and the vocational needs of individuals with different types of impairments.  Sometimes, appropriate job-reengineering, consistent with the Americans with Disabilities Act of 1990, can result in a return to work, thereby increasing both the employer’s and the employee’s job satisfaction.

In some cases, individuals with impairments cannot work because the impairment is so severe or permanent that it totally erodes the client’s employability.  In these cases, the psychologist may be advocating that the individual receive disability benefits, for example, Social Security Disability Insurance.  Vocational/disability evaluation can serve as a basis for arguing total disability if indeed it exists.  Therefore, vocational disability evaluators with forensic experience may serve as good consultants to the clinicians and their clients as they attempt to secure financial support without which mental health concerns worsen.

However, the therapeutic value of work has been well established, and logic would dictate that when an individual is successfully employed commensurate with his or her capabilities, mental health will be enhanced.  Therefore, when appropriate, the clinician would do well to seek an independent and sound vocational/disability assessment to help determine strategies to increase the client’s potentials to establish/re-establish health and happiness through a return to work.

Part III – The Need to Understand and Avoid Co-Malingering

Employers and workers’ compensation claims administrators have encountered the term “malingering” and too frequently think of an injured worker as a malingerer.  Malingering is the intentional production of false or exaggerated symptoms motivated by external incentives, such as avoiding military duty, evading criminal prosecution, obtaining medication or compensation, or leaving and avoiding work.  Employees who malinger are often manipulating the disability insurance systems to gain compensation and avoid work.  It is generally thought in the medical community that malingering is rare.  A more common manipulation of the private or public disability systems is co-malingering, a more or less cooperative venture in which the so-called malingerer finds one or more partners in the subversion of the employer’s disability system safety net.

In an unpublished paper, Ken Mitchell, Ph.D., a nationally recognized disability management consultant, defines co-malingering as the “invisible bond between worker and employer or an agent of either party.”  The manipulation can be intentional or involuntary, passive or active, worker-centered or employer-centered, and limited to a single event or habitual.  Typically, co-malingering is initiated and maintained by a system of beliefs, learned behaviors, and/or intentions that are applied to specific situations in the workplace, but fail to create an effective, mutually satisfying outcome for the employer and the employee.  Co-malingering can be a function of conflicting self-interests, labor relations, and gaps in the disability management system.  Mitchell has found, for example, that only 10% of compensable lost time is due solely to medically imposed restrictions.  This fact derives from a research study conducted by National Rehabilitation Planners, Inc. (NRP).  In the study, Mitchell states: All other reasons for lost time are due to employer- and employee-controlled impediments for return to work, such as:

·        inflexible supervisory decisions,

·        poor injury management practices,

·        breakdown in communications, and/or

·        employer failures to make reasonable work accommodations.

Mitchell concludes: “Co-malingering, while not always the result of an intentional act on the part of either the worker or the employer, is quite often supported and encouraged by the very system it seeks to deceive.”

Any party within the compensation system working with the employee can potentially partner, consciously or unconsciously, with the injured worker to deceive the system.  Rehabilitation personnel, physicians, family members, claims personnel, lawyers, and even supervisors can co-malinger.  Very often a supervisor, for example, expresses relief that an injured worker who has historically been a “troublemaker” remains out of work and will not be allowed to return to work until they are “100%” recovered from their injuries.  The supervisor convinces herself that morale will be better without the troublemaker at work. 

Less overtly, perhaps not realizing it, management and labor all too frequently agree on contractual language that results in co-malingering, such as “no light duty,” or “light duty” that continues indefinitely, or “one cannot work in this organization unless they are fully able, 100%.”  Lawyers representing injured workers have an obvious incentive to keep them out of work, and too often, physicians adopting vocational language inappropriate for the medical profession, such as “the patient is totally disabled,” mislead decision-makers (i.e., employers and/or adjudicators) in the return-to-work and compensation systems.

Although not a medical concept, co-malingering is a significant sociological dynamic of the political landscape of every work organization including the disability compensation system originally designed to assist injured or ill employees “to make them whole.”  The sociological dynamics of co-malingering are much more frequently at play than the individual behaviors associated with malingering.  Only when employers choose to focus on the lost-time system rather than the single individual who has begun losing time can employers truly reduce the unnecessary costs of absenteeism following injury or illness.

Effective disability management requires that rehabilitation specialists determine from the first contact whether the case has co-malingering aspects.  If it does, the successful resolution of the case will have to address the co-malingering factors before assigning any other causal attribute.

To prevent co-malingering and its effects, employers are encouraged to ask critical questions, including:

1)   Does this organization have a pro-active comprehensive system to encourage employee wellness and prevent lost time associated with injury and/or illness?

2)   Has this organization made a concerted effort to combine risk-management, claims administration, health and medical, human resources, and operations, policies, and procedures to prevent lost time through disability?

3)   Similarly, do representatives from each of these departments meet on a regular basis to review company procedures to keep employees on the job and productive?

4)   Are front-line supervisors properly trained in communicating with workers who may be at risk for lost time (disability)?

5)   Does this organization have designated internal case managers who take regular responsibility for effectively communicating with outside personnel regarding claims administration and medical issues related to employees who have lost time?

6)   Does the company have an effective transition-to-work program that trumps the antiquated “light-duty” concepts?

7)   Does the company have essential function job descriptions that include the physical and mental requirements of each position so that physicians are asked to address whether a person can perform essential functions as opposed to “can this employee return to work”?

8)   (Perhaps the toughest question of all) Are the leaders of this organization truly committed to assuming responsibility for maintaining worker productivity rather than abdicating that responsibility of disability management to outside vendors such as third-party claims administrators, case managers, physicians, and lawyers?

References:

Explaining Acquired Disability & The Workplace Approach to Managing It

The following articles examine the logical connection between an “acquired occupational disability” and the strategies needed to manage and cost-control these disabilities in the workplace.

(Part I) Explaining Acquired Occupational Disability

ABSTRACT

We have concluded that acquired disability following trauma must be “explained.”  It is apparent that unless an expert is fully informed of the multitude of pre- and post-injury medical and psychosocial dynamics that surrounds an individual’s claim of occupational disability, the expert may not be in a position to make absolute judgments regarding residual employability, pre- and post-work capacity, or the causal attribution of vocational disability.  Causal attribution is critical in determining disability chronicity following trauma, as the host of contributing psychosocial dynamics effecting unproductive states are often overlooked when investigating the most obvious reason for work absence, a so-called “explanatory event.”  We believe thorough and accurate history-taking is necessary when assessing pre-injury work longevity, determining residual employability, and causally ascribing occupational disability to a particular event.  Acquiring a complete and reliable history through various sources places the expert in a better position to offer a professionally certain opinion.

Background

Central to most personal-injury lawsuits are the issues of vocational disability and lost earning capacity.  When injured people begin losing time from work, they inevitably attribute the vocational disability to the most recognizable event preceding the unemployment – the accident.  In a purely temporal analysis, most observers would agree with the injured party.  That is, a documented event or accident took place and caused subsequent lost time.  However, post hoc, ergo propter hoc (after this, therefore on account of it) is frequently a fallacy and too often constitutes a failure in the cause-and-effect analysis of vocational disability.  How people explain acquired disability can affect how chronic it might become.

It has become our perception over the past two decades that confusion exists in society generally and in our medical and legal systems specifically, as to who is best qualified to describe vocational capability and disability and delineate the various factors to which occupational disability might be accurately ascribed.  Thus, not only does acquired disability have a personal meaning, to be explained by the individual, but of course a larger social context in which professionals attempt to determine who is vocationally disabled and why.  In this article, we will reflect on who is best qualified to professionally describe occupational disability and its causes.

Over the 25 years we have examined thousands of injured people for the purposes of providing them with vocational rehabilitation or evaluating them for forensic consultations, we have learned that vocational disability is as much a function of psychosocial dynamics as medical impairment and resultant functional limitations.  We believe that when one considers not only a medical impairment, but also the constellation of psychological and social forces that are at play both before and after an accident and work injury in particular, one generally comes closer to defining the true cause-and-effect of lost productivity that may occur following an industrial accident or injury.  We also found that thorough and detailed history taking is the key element in the skilled assessment of vocational disability.

Multiple Factors in Disability Analysis

It has been our experience that in the disability equation, one needs to account for the:

1.      worker’s general health preceding the event in question;

2.      work conditions preceding and at the time of the event at issue;

3.      employer-employee relationship;

4.      employee’s self-esteem and psychological strength;

5.      psychosocial factors outside of the workplace; and

6.      social-economic alternatives to remaining productive. 

Let us look at each of these factors and their influences in the lost-time analysis.

Worker Health and Wellness. Minds and bodies are the vehicles that collectively fuel productivity at both the individual and the organizational level.  When mental and physical abilities are not maintained with proper health practices, they naturally deteriorate, and under stress these vehicles can actually breakdown.  Organizations have more or less recognized the importance of health and wellness among their worker populations.  The institutionalization of prevention and early intervention includes such initiatives as smoking cessation plans, employee assistance programs, and exercise facilities available to all workers in particular companies; however, these types of programs are neither universally available nor commonly accepted as means by which employees can remain healthy and productive. 

The degenerating musculoskeletal system, an unavoidable aging phenomenon, eventually becomes prone to injury and disability, particularly in industrial settings.  Workplace mortality rates for longshoremen, transportation workers, and steelworkers, for example, are generally higher than those for accountants, lawyers, and schoolteachers, although more sedentary employees are by no means immune to mental stressors that can precipitate occupational illness.  Absent a focus on worker health and wellness, organizations can serve as the stage on which the aging employee is more or less susceptible to lost time not as a result of a particular event, but because of the degenerative process that makes any body and/or mind vulnerable to occupational stress.

Working Conditions. Workplaces are not always conducive to employee health and wellness regardless of the most enlightened efforts of human resources managers and others in leadership positions.  Many industrial plants are more like dungeons than production facilities.  Workers can encounter hazardous chemical exposures, run antiquated and dangerous machinery, and function in generally unsafe working conditions, whether in non-unionized or unionized workplaces.  Not infrequently, employees who recognize unacceptable conditions surrounding them initiate workers’ compensation claims and associated lost time because mere existence, let alone productivity, in such environments becomes intolerable – particularly as the worker ages and eventually perceives no other exit strategy, not even retirement.

Several years ago upon considering the issues of worker health, working conditions, and the employer-employee relationship, we introduced the metaphor of a “toxic tort” as representing some workers’ compensation claims.  That is, in some instances, the worker filed the claim not because he or she had been injured or become ill, but because the worker considered the occupational environment so potentially harmful or “poisonous,” literally and/or figuratively, that filing a compensation claim was a preferred means to economic survival.

Employer-Employee Relationship. Everyone who toils under supervision has perceptions of leadership, sometimes good, frequently bad.  Employers (and managers) are seen as authority figures by employees who have been inevitably programmed through early experiences with adults who had power over them.  No other relationship than that between the boss and the subordinate has received more attention in books on management, and no relationship has received greater scrutiny in labor-management agreements.  The employer-employee relationship is invariably susceptible to conflict.  Unresolved conflict is often the precipitator of workplace stress, tension buildups, and resultant lost time.

Employee Self-Esteem and Psychological Strength. When an individual experiences a sense of self-worth, and when the same individual realizes personal power, he or she is able to be assertive and make his or her needs known to others.  This is the great striving for most of us, and unfortunately, many of us have not been afforded the building blocks necessary to develop a strong sense of self and self-worth.  Criticized and invalidated by significant others in our early lives, we become workers with tenuous egos and defensive self-concepts, more often knowing what we do not want to happen to us rather than helping create the environments and relationships we do want.  Personal power in the workplace can be diminished by performance circumstances and/or low productivity.  When it does, individuals can become susceptible to workplace injury and/or illness. 

With reduced productivity concomitant to lowered self-esteem, the employee may find it easier to leave the workplace with a “face-saving” injury or illness rather than confront the actual problems that led to feeling helpless and depressed in a work environment that seems to lack compassion, understanding, and support.  Feeling abandoned in a group of your work peers is far more anxiety provoking than becoming absent from work after the onset of injury or illness.  The latter clearly vindicates the “honorably” disabled employee who, in his or her mind, has sacrificed personal health and well-being for the company.

Psychosocial Factors External to Work. All of us experience social demands and psychological pressures outside of work with which we must contend.  When those pressures and demands exceed our tolerance for stress, we are susceptible to illness and/or injury.  “Disability proneness” is a concept built on the idea that certain individuals are more vulnerable than others to the customary pressures of life outside of work.  Personal and financial changes and losses such as relocation, separation/divorce, and other situations to which all of us would have difficulty adjusting can lead to maladaptive behaviors affecting job performance and even work attendance.  Experience has shown that individuals with inordinate psychosocial stressors and limited coping skills may very well be disability prone.  Moreover, the literature on work dysfunction reveals that certain personality types interacting with social and occupational demands are more likely to succumb to these pressures, learn helplessness, and claim vocational disability.

Social-Economic Alternatives to Remaining Productive. For years, we have recognized that a construct parallel to learned helplessness is the phenomenon known as “learned laziness.”  Once deemed the “welfare pigeon” paradigm, learned laziness is the expectation that certain individuals and personality types will quickly abandon motivational achievement behaviors for non-conditional reward, sometimes in the form of workers’ compensation indemnity benefits and/or Social Security Disability Insurance.  With most benefits (e.g., workers’ compensation and/or long-term disability) being paid at rates of at least 66-⅔% of the employee’s pre-accident wages, once-productive workers soon find it difficult to risk losing benefits by returning to the unknown consequences of gainful activity, particularly in an environment that may no longer extend them a welcome.  Many times employers perceive injured workers with mistrust, and too often employers treat injured employees as “damaged goods,” sometimes worse, as a pariah.  With perceived employer disdain following occupational injury and/or disease, the injured worker quickly searches for alternative methods of financial survival.

There is much at stake when an individual claims to be vocationally disabled following accident and/or injury.  Among the stakeholders, we find various ways of explaining how an individual’s disability occurred and why it might become chronic, but in all cases, regardless of the explanation, the nonproductive consequence of people being displaced from work following accident and/or injury is very expensive to individuals, companies, and our economy in general.

The Mercer Human Resources Consulting and Marsh, Inc., 2002 Survey of Employers’ Time-Off and Disability Programs revealed that time-off and disability program costs averaged 15% of payroll in 2001.  More specifically, for an employee earning $40,000 annually, companies surveyed paid $6,000 for time away from work associated with sick days, workers’ compensation costs, short- and long-term disability programs, salary continuation programs, etc.  For years, so-called “acquired occupational disability,” an inability to work following injury or illness, has cost our economy billions of dollars each year ($170.9 billion, according to one 2002 estimate), and yet little attention has been given to the concept of how individuals explain vocational disability.

Causal Attributions of Occupational Disability

Attribution theory seeks to understand how individuals interpret events and how explanatory thinking and behavior tends to correlate with human motivation.  Attribution theory considers how people make sense of their worlds and what cause-and-effect inferences they make about the behaviors of themselves and others.  For years, we have explored the potential role of attribution theory in the cause-and-effect beliefs that people create and maintain when they “acquire” vocational disability.  We have postulated that healthcare providers, specifically physicians, trained in assessing impairment are generally ill-equipped to determine the cause of disability in others.  We have hypothesized that vocational disability tends to be temporary or become fixed depending on an individual’s attributional style. We will again review the difference between medical impairment and vocational disability, and then discuss the multitude of issues surrounding causal attribution of occupational disability. 

Medical Impairment v. Occupational Disability. Medical impairment, an alteration of an individual’s health status, is what is wrong with a body part or organ system and its functioning (American Medical Association, 1990).  Permanent impairment should be determined only at the end of the normally accepted healing period, or when maximum medical improvement has occurred.  Impairment does not determine the impact on the person’s capacity to meet social or occupational demands; disability defines the impact of impairment on occupational functioning.  Medical impairment is evaluated and treated by healthcare personnel.  Disability is assessed by non-medical means, generally by vocational experts and disability evaluators.  What causes occupational disability is often more complex than simply a decrease in physical or mental functioning secondary to a particular impairment.

Occupational disability is often caused by pre-existing medical problems, social dynamics, psychological issues, the lack of work skills that might be utilized in alternative or perhaps less demanding work, and/or economic factors such as the availability of appropriate employment given a medically impaired individual’s “residual employability.”  Nonetheless, how people explain acquired disability is very much a function of the attributions they create.

Attribution Theory. Attribution theory, what Weiner (1986) called “naïve psychology” – the cause-and-effect analysis of behavior made by the man-in-the-street – attempts to explain the mechanisms by which people construe the causes of and arrive at their beliefs about success and failure.  Attribution theory has been linked with achievement-related behavior, such as learning and working, and mental health concepts (e.g., optimism, pessimism, anxiety, and depression).  Attribution theory helps explain not only how individuals perceive their own successes and failures, but also how they causally ascribe the achievement of others.

We postulate that individuals who have medical impairments can attribute occupational disability to an accident or injury for no other reason than a temporal connection – that is, the person became unemployed after a trauma.  Because the injury allegedly resulting in impairment came at the time of or after an accident, then it is implied the accident caused the disability.  We argue that a “time-based explanation” in the determination of what causes occupational disability is often inadequate in explaining disability given the multitude of other factors, including pre-existing medical conditions, that can cause unemployment subsequent to, but not necessarily as a consequence of, the indexed traumatic event. 

For example, a 38-year-old female who sustains a whiplash injury in an automobile accident stops working as an outside sales representative five months after the accident and claims that her chronic regional pain syndrome, diagnosed after the accident, is the cause of her occupational disability.  Careful investigation, however, reveals that this individual was previously treating for rheumatoid arthritis and fibromyalgia.  Her theory as to why she is unemployed with a loss of economic power is that her occupational disability is directly and causally related to the whiplash injury.  A physician treating this person declared that her chronic pain complaints are directly linked to the whiplash injury that has become the basis for the patient’s personal injury lawsuit.  In reality, her chronic complaints of pain and concomitant allegations that she cannot work are multifactorial at least.  Further investigation reveals that this outside sales representative was being disciplined at work for low production.  Additionally, the company for which she worked was being purchased by another entity, and company rumors were that layoffs of sales representatives would occur as a result of the acquisition.

Causal attributions of occupational disability are best made by trained observers or evaluators who fully appreciate the psychosocial context in which causal attributions of acquired disability are made. Occupational disability has been studied from numerous social and psychological perspectives.  Important constructs have been offered to help us  better understand and explain the non-medical antecedents and consequences of vocational disability.  The concepts of Disability without Disease and the Disability Process, Learned Helplessness (and Laziness), Co-Malingering, Locus of Control, Loss of Self Esteem, Disability Induction, Disability Proneness, Illness Behavior, and the Meaning of Work help us understand some of the underlying principles of disability causation.

Disability without Disease and the Process of Disability

In the late 1960s, after spending many years treating injured autoworkers, two occupational health physicians, Drs. R.C. Behan and A.H. Hirschfeld, set forth their idea that injured employees can exhibit “disability without disease” or accident (1966).  Borrowing on this concept, Weinstein delineated the “process of disability” in 1978. 

Rather convincingly, Weinstein graphically portrayed the stages of the disability process.  Weinstein reasoned that the troubled worker faced with negative feedback regarding his or her performance would eventually reach a stage where so-called “tension build-up” would become overwhelming and viewed as “unacceptable disability.”  Weinstein argued that an accident or illness, seen retrospectively as an “explanatory event,” would allow the unacceptable disability to become acceptable and stabilize with medical explanations, diagnostic studies, and eventually unnecessary interventions, such as surgery or chronic pain management involving crippling medications.  Behan and Hirschfeld concluded, “This remarkable capacity of disability to seize an accident as its apparent cause results in terrible chronicity.”

Learned Helplessness (and Laziness)

Walker (1992) offered the concept of “Learned Helplessness” (Seligman, 1975) as a useful framework in understanding how injured workers perceive loss of control in the workers’ compensation system – a system that simultaneously rewards and punishes injured workers.  Learned helplessness is caused by repeated experiences of aversive, uncontrollable situations.  The person caught in a learned helplessness syndrome exhibits passive, resigned, inflexible behavior associated with dysphoric feelings of depression.  Walker described how the workers’ compensation system breeds conditions ripe for injured worker helplessness.  However, he also pointed out that the very same system often financially rewards people non-contingently, thereby also inducing “learned laziness” by making a return to work financially impractical or disadvantageous for the workers’ compensation claimant.  Walker argued that injured workers, trapped in the quagmire of workers’ compensation systems as they are designed (i.e., to make a person whole), generally manifest amotivational behaviors and surrender their will to work.

After proposing learned helplessness as a model for depression and motivational disturbances, Seligman reformulated the learned helplessness model to include the concept of “attributional style.”  That is, individuals with particular attributional styles are more susceptible to learning helplessness. 

Co-Malingering

Lost time from work may be a function of either medical restrictions that are related to impairment as determined by physicians or dysfunction associated with behavior and social relationships that develop both before and after the accident/injury.  At times, injured workers are accused of malingering, the falsification of symptoms to avoid responsibility, including work.  Previous research conducted by members of the National Rehabilitation Planners, Inc., has found that only 10% of compensable lost time is due solely to medically imposed restrictions.  “All other reasons for lost time are due to employer- and employee-controlled impediments for return-to-work, such as:

¨      inflexible supervisory decisions,

¨      poor injury management practices,

¨      breakdowns in communications, and/or

¨      employer failures to make reasonable work accommodations.”

These employment situations may represent a form of “co-malingering,” which Kenneth Mitchell, who coined the term, described as “the mutual actions of employers and employees that extend [the] disability duration and impede early return to productive employment.”  Co-malingering is also sometimes referred to as negotiated disability.  “Employees incur 100% of lost time; employers control 90% of it.”  However, for many years now, we have recognized that other members of the lost-time community can function in relation to the injured employee as co-malingerers, and those other parties include physicians, lawyers, and family members.  Co-malingering appears to be much more common than malingering in lost-time cases.

Locus of Control

Locus of Control is a useful construct in terms of vocational rehabilitation.  At its simplest, Locus of Control is an individual’s perception of the cause of events in one’s life: either one believes he/she controls his/her own destiny (“internal”) or one believes that others, luck, or fate control one’s outcomes (“external”). 

Locus of Control is closely related to the concept of “attribution.”  An attribution is an explanation of what happens to one’s self and/or others.  For those not comfortable with the terminology of psychology, it may be more meaningful to use “explanation” as a synonym for attribution. 

In general, an internal Locus of Control is seen as being more desirable.  Consider the following descriptions of internality and externality:

¨      It is an internal attribution about oneself when one succeeds (I did it myself).

¨      It is an internal attribution about others when they fail (It was their fault). 

¨      It is an external attribution about oneself when one fails (Something/Someone else made me fail).

¨      It is an external attribution about others when they succeed (They got lucky).

Research (Mamlin, Harris, & Case, 2001) has shown the following trends:

¨      Males tend to be more internal than females.

¨      As people get older, they tend to become more internal.

¨      People higher up in the organizational structure tend to be more internal.

 

Although these trends are not absolute, they may serve as a starting point for vocational counselors working with clients.  It is generally agreed that Locus of Control is largely a learned condition.  For a client who is resisting vocational counseling and incidentally exhibiting an external Locus of Control, it may be a useful strategy to work toward reversing that bias.  There are a number of questionnaires that are designed to determine internal and/or external Locus of Control.  Rotter’s original “29-item Locus of Control Questionnaire” is still used, and there are newer questionnaires that are also available.

The value of starting with knowledge of the client’s Locus of Control bias is that an external Locus of Control can lead directly to the loss of control.  The important research in respect to loss of control is Seligman’s learned helplessness.  Since Locus of Control is learned as opposed to innate, clients drift toward learned helplessness as an outcome of having no control over of what is happening to them.  Moving from what may have been an internal Locus of Control to an external Locus of Control is an adaptive response that may be reversed by sharing knowledge of the condition with the client and devising reversal strategies.  Counselors need to be cautioned against simplistic judgments derived from an over reliance on the Locus of Control concept, but sharing knowledge about a reality can seldom be injurious.  Acknowledging personal responsibility is an important first step for clients resisting return-to-work actions.

Loss of Self-Esteem 

Another significant factor in resisting a return to work after an illness or accident is rooted in psychological issues such as depression, anxiety, and low self-esteem.  Frese and Mohr (1987) stated, “Depressed persons who are inactive and pessimistic in their outlook will be unemployed much longer or will become unemployed more readily.”

Weinstein (1978) pointed out that a worker’s loss of self-esteem taking place simultaneously with decreased productivity are two key factors in “unacceptable disability” that requires an “explanatory event,” such as a future accident or injury in order to justify continuing dysfunction and ultimately a prolonged period of lost time from work.  In other words, Weinstein believed that a worker’s loss of self-esteem is a key predictor to future vocational disability even before the accident that will be labeled the cause of lost time!  Furthermore, Weinstein pointed out that following the “explanatory event,” medical, psychological, and social factors may actually work to restore the individual’s self-esteem and allow for one to be declared “honorably disabled,” thereby signaling a stabilization and chronicity to the disability.

In the final analysis, intractable cases of depression and/or personality dysfunction will need to be referred to competent mental health professionals who understand behavioral medicine and the importance of vocational rehabilitation.  Of course, most rehabilitation counselors are not trained as clinical psychologists, but there are interventions that vocational counselors can and should utilize.

Basic interventions that can be applied in counseling clients who are resisting return-to-work would include:

¨      discussing the importance and the value of work with the client;

¨      identifying and discussing psychological issues, especially depression and the loss of self-esteem, and the need to find ways to overcome them;

¨      discussing Locus of Control and Causal Attributions and their significance to motivation and productive return-to-work efforts;

¨      recognizing learned helplessness and planning a way to achieve countervailing strategies to prevent helplessness from establishing itself;

¨      setting realistic goals with clients and helping them work to achieve goals; and

¨      supporting the client throughout the counseling and behavioral change processes.

 

Kelly (1955) said of vocational development, “It is one of the principal means by which one’s life role is given clarity and meaning.”  Vocational rehabilitation counselors hold a significant responsibility to assist clients to understand the obstacles to personal fulfillment through work and to provide the professional guidance to help to achieve “clarity and meaning.”

Disability Induction

Occupational disability and lost productivity can often be explained by understanding that acquired disability can be encouraged, prompted, influenced, and solicited.  That is, vocational disability can be induced.  We have identified at least four separate methods of disability induction, namely, iatrogensis, beaurogenesis, litogenesis, and psychogenesis.  We again would like to thank Ken Mitchell for his creativity and astuteness in helping us formulate these ideas presented previously and elsewhere (Walker, 1998).

Iatrogenic: Iatrogenic disability occurs more frequently than the casual observer might suppose.  Low-back surgery, for example, is well known to resolve less often in the injured-worker population.  Indeed, for many years, the most renowned neurosurgeon in Philadelphia would not treat compensable back injuries surgically because of the dramatically different “success” rates in the occupationally injured v. non-occupationally impaired populations. 

Iatrogenic disability need not be the result only of surgical intervention.  Physician induction of disability can often result from mere suggestion.  The susceptible, or all-too-vulnerable patient can hear, or think he heard, the physician say that he was “unable to work.”  Physicians unknowingly underestimate, or consciously abuse, the power invested in them by the generally naïve health care recipient. 

Disability induction through iatrogenic means is sometimes a function of the employer not insisting that its health care providers stay within their disciplines and avoid making vocational decisions.  Employers and employees make vocational decisions; physicians diagnose and treat disease.

      Beaurogenic: Work disability is often caused by the bureaucracy that surrounds occupational injury and non-occupational disease.  Organizational policies and personnel decisions often ignore the consequences of shortsighted and antiquated return-to-work practices.  From “you cannot return to work until you are 100%” to “light duty for workers’ compensation recipients only,” return-to-work programs seldom serve both employee and employer.  Although the rising costs of workplace disability and the Americans with Disabilities Act led to some reevaluation of these return-to-work standards in the 1990s, the beaurogenic induction of disability remains a significant problem for most work organizations and our country at large. 

Some self-insurers of both workers’ compensation and long-term disability have failed to realize that, as work organizations, they create disincentives for employees to return to work following the onset of injury or illness.  With employees able to receive nearly 70% of their income in wage-replacement benefits, the employer has introduced secondary gain (defined below) as a factor that the injured or ill worker would find difficult to overcome despite a strong work ethic.  The Social Security Administration has recognized that most recipients of Social Security Disability Insurance are of working age, yet few take advantage of the trial work period available to them.  The widespread use of managed care organizations in the treatment and rehabilitation of injured workers raises a legitimate question regarding the possibility that managed care adds a layer of bureaucracy to the already complex social and political systems that induce disability in the workplace.  Bureaucracies can foster disincentives to get well and return to work.

      Litogenic: Representing injured or ill employees (or people pursuing economic damages through personal injury litigation), legal advocates hope to demonstrate that their clients have lost potentials to work and earn “a living.”  Such an argument ensures representation that the plaintiff is disabled.  To argue otherwise is a contradiction.  Thus, lawyers, in their advocacy of injured employees, pursue economic recovery in claims such as personal injury, workers’ compensation, Social Security disability, and long-term disability.  These litigations almost always induce or encourage an argument of disability.  Even the most ethical lawyers believe that their clients have more to gain if they can prove economic damage secondary to vocational disability.

      Psychogenic: Psychogenic disability suggests the inability to work because of symptoms caused or produced by mental or psychological factors rather than organic problems.  Depression, substance abuse, personality disorders, and psychosis can lead to psychogenic disability.  Such “disability” is, unfortunately, often assessed by health care professionals who legitimize symptoms manifested following the diagnosis of a disease or disorder that is not necessarily disabling. 

Psychogenic disability can arise when workers report symptoms secondary to stress that they attach to a particular cause external to them, rather than taking responsibility for reducing the stress.  Psychogenic disability is often precipitated by work dysfunction.  For an excellent text on psychogenic disability and its causes, we reference Psychiatric Disability: Clinical, Legal and Administrative Dimensions, published by the American Psychiatric Press, Inc. 

Disability Proneness

Our experience tells us that some employees have a predisposition toward disabling disease or illness.  We believe that “disability proneness,” is a real and significant phenomenon antecedent to and at times a cause of many cases of chronic vocational disability. We have found that individuals with particular work dysfunctions are more prone to occupational disability and claims of incapacity. We think that the workers’ compensation system in particular breeds the requisite conditions for learned helplessness and laziness, and we also believe that particular attributional styles make individuals more prone to developing chronic disability than others with different styles of causal attribution.

Illness Behavior

Illness behavior is frequently exhibited by individuals who are indeed sick.  However, some individuals exhibit illness behavior that is abnormal or inappropriate to the situation.  According to Pilowski (1978), abnormal or inappropriate illness behavior is “the persistence of an inappropriate or maladaptive mode of perceiving, evaluating and acting in relation to one’s own state of health,” even though available evidence suggests that this illness behavior is unexpected or inappropriate.  In other words, inappropriate illness behavior is thought to be exhibited if individuals are of the conviction that their pain or other symptoms are due to organic disease, but no evidence of organic disease exists or the illness behavior is inappropriate to the organic disease that does exist.

Illness behavior as a concept provides a framework for understanding the observed differences among pain patients.  According to the Institute of Medicine (1987), “Illness behavior is a process that includes a perception of one’s own symptoms, and attribution of meaning to them (from something trivial to an ominous indicator of serious illness), and the way in which one seeks help in dealing with the symptoms.  Such behavior is influenced by the person’s personality and coping style and by the surrounding culture and society.  The fact that such factors can be strong influences on the pain or other symptoms that people experience does not, however, make pain any less real.”

The meanings given by a patient to an accident, sickness, personal suffering, or the relentless presence of pain effect subsequent illness behavior and help order experience in several ways.  Patients form causal attributions to account for their perceived circumstances.  Limitations imposed on a patient’s lifestyle by chronic pain may be significantly attenuated if the patient believes that he or she can control the pain or can, despite the pain, undertake activities without harm.  In contrast, it has been observed that patients who believe they have little or no control over their health and well-being (learned helplessness) endeavor less effectively to achieve rehabilitation (Pilowski, 1984).  Finally, personal meaning of an illness or symptom may affect self-esteem either positively or negatively.  Becoming an invalid, even briefly, can be a blow to a person’s self-esteem.  Similarly, being unemployed or forced to accept employment at a lower wage or job status because of pain can be demeaning.  However, for some patients embracing the sick role is seen as an elevation in status (i.e. “honorably disabled”). These people value the nurturance and special consideration of friends, family, and neighbors that follow injury and the development of chronic pain.  Personal meanings are likely to be influenced by the shared meanings of the group to which the individual belongs (Institute of Medicine, 1987).

At the same time, the meaning of work held by the individual and/or the group to which this individual belongs can be a powerful influence on the individual’s capacity or willingness to overcome illness behavior.  When work is a central theme in the injured person’s life, chances are illness behavior and associated dysfunction will not lead to total vocational disability.

The Meaning of Work

In her research at New York University, Dr. Amy Wrzesniewski has determined that individuals experience work in one of three distinct ways:

1.      Job: the individual is primarily concerned with the financial rewards of work;

2.      Career: the individual is focused on advancing within the occupational structure; or

3.      Calling: the individual works not for financial gain or career advancement, but for the sense of fulfillment that work brings.

In our work, we have found that individuals who viewed their work as just a job prior to the onset of injury or illness were less likely to return to work than individuals who considered work a career.  In contrast, individuals who perceived work more or less as a calling were eager to return to work following illness or injury. 

Employees who believe that work is a calling are not representatives of typically esteemed professions only.  We have found just as many longshoremen, waitresses, custodians, and landscapers fully invested in their vocations as “callings” as are teachers, lawyers, and physicians.  The meaning of work is an experience unique to the individual and not necessarily a function of how society in general might perceive the job title and the employee’s day-to-day responsibilities.

We suggest that when organizational leaders can imbue every member of a work team, from the least skilled to the most highly trained, with the belief that he or she is highly valuable and important to the organization’s success, the organization will probably have fewer problems with lost time.  We recall specifically the camaraderie of a hospital maintenance staff, the members of which were encouraged to wear surgical garments in their work.  The maintenance manager felt that without his crew’s involvement, the hospital could not operate and effective health care could not take place, no matter how skilled the staff physicians. This simple but clever gesture was, of course, designed to remind the maintenance staff members of their critical contribution to the hospital’s daily functioning.  That particular hospital maintenance staff had few instances of occupational injury/illness/lost time.

The development of occupational disability or the “onset” of acquired vocational disability may result traumatically from a single event (i.e., the above the knee amputation in a professional football player), but as we have shown above acquired total disability is often a process that involves numerous contributions that are not only medical in nature but in fact psychosocial.  Because acquired disability is heavily weighted by psychosocial dynamics, we believe that professionals trained in determining impairment (medical authorities) should defer to vocational counselors for a total picture – or explanation – of acquired disability.  

Causal Attributions of Acquired Disability: Who is “Qualified” to Make the Call?

For several years, we have declared that the difference between medical impairment and occupational disability is not only a significant distinction, but one that must be recognized in the proper adjudication of damages in personal injury claims.  As noted above, the American Medical Association recognizes that “impairment” refers to an alteration of an individual’s health status and is assessed by medical means.  “Disability” is an alteration in an individual’s capacity to meet personal, social, or occupational demands and is assessed by non-medical means.

In personal injury cases involving multiple impairments, for example, the vocational expert may be the most qualified professional to speak to both the occupational disability and the actual cause of that disability.  Heretofore, the misconception has been that physicians are trained and qualified to offer opinions with medical certainty as to why an individual can or cannot work.  We suggest that this is an error in professional judgment on several levels, and if the legal community wishes to pursue accurate disability determinations, it must continue to educate its members as to which professionals are best qualified to testify as to the cause of occupational disability in an individual who has multiple impairments.

In order to arrive at a point in vocational/disability analysis where informed and detailed assessment of future employability can take place, one must know the subject’s past.  Not only is educational and occupational history relevant, but the subject’s past medical history can be critical in accurately determining potential for future work, particularly occupational longevity or “worklife expectancy.”

Worklife expectancy. This term is commonly used in determining how long an individual is likely to participate in the workforce given factors such as age, race, gender, and disability.  Although they are hardly a data set without controversy, the Bureau of Census information on individuals absent from the workforce because of health-related problems is frequently cited by various vocational experts to argue disability.  In a report called The New Work-life Expectancy Tables (1998), A.M. Gamboa, Jr., Ph.D., introduced the concept of work-life expectancies for persons defined as severely disabled, disabled, not severely disabled, and non-disabled.

Gamboa’s hypothesis is that people with various (pre-incident/accident) medical problems are already disabled with some level of severity.  The issue then becomes one of determining the level of severity.  If the Gamboa hypothesis is correct, then how does a 54-year-old Certified Nursing Assistant (CNA), who is 5’4” tall and weighs 350 pounds (morbid obesity) claim that absent her lower back trauma (incurred from falling on a slippery floor, for which she is suing the floor cleaning contractor and the floor wax manufacturer), she would have worked until age 65 all the while lifting, bathing, and otherwise caring for geriatric patients, most of whom were non-ambulatory?   Moreover, post-injury x-rays of the CNA’s hips and knees show significant degenerative changes.  Nonetheless, with the support of a vocational expert, she is claiming that she cannot work and had she not slipped on the floor, she would have continued working full-time in direct patient care until normal retirement age.

Obviously, there is a need for reasonableness in these arguments of disability causation.  However, even competent vocational experts can find themselves perplexed when faced with evaluating an individual who has multiple, and often compounding, medical problems pre-existing those specific injuries for which the individual is claiming vocational disability.

What has become abundantly clear from our experiences in evaluating thousands of people who claim they cannot work is that thorough history taking is a crucial step in gathering sufficient information in order to determine the cause(s) of lost time following an observable change in a worker’s health status.  Only a detailed and complete history can assist trained observers in identifying the causes of unproductive occupational states.

What is also clear is that in most cases the vocational expert who is trained and experienced in disability analysis, is generally better prepared than a medical expert who may not fully appreciate the exertional and non-exertional demands of specific jobs, or more importantly, how those demands might be reasonably reduced by job accommodation.  Although it is true that medical experts have greater training than vocational professionals in understanding physical and/or mental diseases, the critical factor in disability assessment is whether an individual with physical and/or mental impairment can function in relation to a particular set of job demands.

A Case in Point. A 56-year-old Industrial Electrician fractures his back while operating his son’s trail bike (motorcycle).  The Electrician attempts to return to his customary work after spinal surgery and rehabilitation, but perseveres no longer than eight weeks after medical rehabilitation, and subsequently claims total vocational disability and absolute loss of earning power in his personal injury lawsuit against the motorcycle manufacturer.

The Electrician’s lawyer hires a vocational expert who interviews the Electrician, performs no vocational testing, and opines that the Electrician cannot work in any capacity and has lost all power to earn money based on the interview information and medical records, including statements from the treating physician that his patient, the Electrician, is “totally disabled.”  Meanwhile, the industrial plant in which the Electrician had worked for 25 years closes down.  Nonetheless, plaintiff’s vocational expert opines that through the union, the Electrician could have continued to work as a journeyman, work involving medium and heavy physical demands, had he not been injured in the motorcycle accident.

The defendant hires an orthopedic surgeon to examine the plaintiff’s back complaints.  The consulting physician finds and states with certainty that the Electrician does have exertional limitations and that his spinal impairment prevents him from lifting greater than 10 pounds and performing more than sedentary work.  The defendant also retains a vocational expert. 

The vocational expert reviews the plaintiff’s complete medical records, studies the Electrician’s employment/personnel file, interviews the Electrician, and performs a battery of standardized tests measuring abilities, aptitudes, temperament and interests.  The testing shows that the Electrician possesses the linguistic capabilities and vocational aptitudes sufficient to perform sedentary desktop positions, such as Maintenance Scheduler, Production Scheduler, and Motor Vehicle Dispatcher. The ex-Electrician expresses greater interest in Communication Work than in his prior employment of Craft Technology.  Defendant’s vocational expert also finds that medical documentation shows the Electrician had chronic left, dominant upper extremity impairments, including a rotator cuff tear and chronic shoulder bursitis secondary to a work-related accident when he tried to lift a 65-pound fiberglass ladder five years before the motorcycle accident. 

Defendant’s vocational expert also reviews the Electrician’s personnel and occupational health records, which reveal that the plant physician had consistently restricted the Electrician to lifting no more than 30 pounds with his left upper extremity occasionally and 10 pounds frequently.  For the last four years of the Electrician’s employment, the company had maintained him on restricted duty, working exclusively in the maintenance shop.  Finally, company records reveal that the plant closed down, as noted, one year after the Electrician stopped working.  The defendant’s vocational expert opines that the Electrician was disabled from the full range of physical activities associated with his craft by his pre-existing upper extremity impairments that had obviously limited the Electrician for several years prior to the personal injury event.  Moreover, the defendant’s vocational expert declared that the Electrician could not have functioned as a journeyman electrician in the open labor market (as alleged by the plaintiff’s vocational expert) absent the spinal injury because of pre-existing upper extremity limitations and medically established lifting restrictions.

The Outcome.  Who is right? What should a judge decide about these opinions and arguments?  Does the determination of what constitutes occupational disability remain with the medical expert?  Does the vocational expert possess the knowledge and skill to make a causal attribution of occupational disability when the vocational expert knows that certain pre-existing or unrelated medical conditions would in all probability make certain physical demands as an Electrician impossible to execute?  Is not the vocational expert compelled to take a thorough medical history and consider all health-related issues that might otherwise affect an individual’s employability?

Plaintiff’s medical expert stepped outside the confines of her expertise and offered a vocational opinion of “total disability.”  The medical opinion of disability, for all intents and purposes, nullified the purview of the vocational expert, and perhaps the plaintiff’s vocational expert perceived little “choice” but to follow suit and also opine that the plaintiff was “totally vocationally disabled.” Incidentally, in his opinion, plaintiff’s vocational expert declared that the Social Security Administration had found the plaintiff totally disabled, and therefore, he agreed.  What the plaintiff’s vocational expert failed to recognize is that Social Security disability determinations are not accident or injury specific; disability is determined on numerous factors, including the individual’s residual functional capacities without taking into account the cause of the impairment(s) or other dysfunctions (limitations) at issue.  Neither of the plaintiff’s experts considered the totality of the Electrician’s medical history, especially his pre-existing upper extremity limitations and their occupational relevance in terms of the plaintiff performing the medium and heavy work of the journeyman electrician’s trade notwithstanding the effects of the spinal impairment.

The defense medical expert was told to examine the plaintiff’s injury-related complaints, including his spinal impairment and associated lower extremity symptoms, but did little investigation into this gentleman’s prior upper extremity medical history.  The defense vocational expert, supplied with sufficient information to understand the plaintiff’s employability both before and after the accident in question, could attribute the plaintiff’s vocational disability from journeyman electrical work to a pre-existing upper extremity disorder, notwithstanding the effects of the musculoskeletal injuries sustained in the motorcycle accident.

Another example might prove useful.  A lawyer suffers a stroke, and on the way to the hospital, the ambulance is involved in a vehicular accident.  The lawyer is trapped under the wreckage and miraculously survives.  However, when he does arrive at triage, he presents with a significant compound fracture, and although the fracture is repaired, infection sets in.  As a consequence, the lawyer loses his leg above the knee.  The stroke, for its part, results in cognitive and language deficits.  Through rehabilitation, the recovering amputee struggles with using his prosthesis and ultimately decides that life is easier in a wheelchair. He tries to return to his profession, but he struggles with neuropsychological impairment.  A lawyer representing the amputee in court argues that the motor vehicle accident resulting in the compound fracture and resultant amputation has caused the lawyer occupational disability and lost earning power.  Which of the medical impairments, the neuropsychological deficits or the post-amputation ambulation problems, causes disability in the practice of law?

Although causal attribution of occupational disability in the case of the lawyer may be more evident than in the case of the Electrician, both scenarios represent a potential problem for those who do not fully appreciate the difference between medical impairment and occupational disability in the adjudication of monetary damages associated with lost work capacity.  When the injured lawyer was neuropsychologically evaluated by a consultant retained on his behalf, the neuropsychological examiner explained that the lawyer’s cognitive deficits were not secondary to the stroke, but rather a result of reactive depression linked to the loss of the limb.  However, the defendant retained both a neuropsychological expert and a vocational expert.  Both tested the lawyer with objective personality measures and found that the lawyer was indeed anxious, but not depressed.  Moreover, the defendant’s neuropsychologist found a pattern of neuropsychological deficits that were directly associated with brain injury in an area of the cerebrum shown by MRI to be damaged by the stroke.  The vocational expert opined that based on all of the information gathered and reviewed, the lawyer’s vocational disability was a result of the stroke and not the post-MVA amputation.  Had he not had a stroke, the attorney could still be practicing law.

The vocational expert or occupational disability analyst is frequently confronted with the problem of assessing the employability of individuals with a history of multiple medical impairments.  More often than not, the expert is asked to opine as to the effect of trauma/ injury on the occupational capabilities of an individual who has a pre-existing impairment or co-morbidity.  The disability analyst’s challenge is to determine the effect of pre-existing impairments, and with thorough medical information, perhaps the differential functional effect of co-morbidities and how those affect an individual’s capacities to work.

Still in another  example, we hypothesize the case of a teacher who has had a long history of mental disorder, specifically a so-called manic depression that has not been well controlled.  The teacher claims that because of a motor vehicle accident (MVA) and an associated whiplash injury, he suffers from chronic neck pain, dominant upper extremity radiculopathy, and headaches.  It could be argued that the MVA injuries alone could constitute disability in classroom instruction.  However, what effect would the uncontrolled bipolar disorder have upon the teacher’s capacities to work?  It would be difficult to resolve this issue on a logical basis.  Moreover, the history of this specific claimant’s pre-existing mental disorder may be legally eliminated as a factor because it might produce prejudice for a fact finder or a jury.

Our bias that the vocational expert is better able to attribute occupational disability to a particular cause and to determine residual employability in individuals who are impaired remains unaltered because the vocational expert is more knowledgeable in the actual demands of particular jobs throughout the world of work and should be in a position to thoroughly analyze the injured person’s vocational options in light of medical impairment, whether singular or multiple.  Certainly, the medical professional is better qualified to identify and describe medical impairment (physical and/or mental) and, in some cases, the injured person’s residual functional capacities.  But it is the vocational expert (knowledgeable of medical impairments, their general effects on functioning, and how dysfunction might interact with job demands) who remains far better suited than medical professionals to state with certainty whether a particular individual possesses the ability to work (residual employability) or the capacities to perform gainful activity.  More to the point, both medical experts and vocational experts possess unique training and skills that require the assistance of the other in fully determining whether an individual can work gainfully and in clearly attributing what particular health problem may be occupationally disabling. 

Obviously, whatever the training and experience of the individual evaluator, thorough histories are critical in understanding the entire picture of the injured worker and how that history relates to acquired disability.  It is important to recognize that a lack of adequate history-taking can lead to unnecessary or inadequate medical treatment, which is sometimes a contributing factor or indeed a cause of acquired disability. 

Conclusion

Our observations over the past 25 years have led us to the conclusion that acquired disability following accident or injury begs to be explained.  Disability is explained by the person who experiences lost time and by a host of others in the injured person’s social and professional networks.  Based on our experiences and the contributions of informed others, disability can be explained by numerous psychosocial dynamics independent of the actual injury or impairment, forces that can precipitate, cause, and stabilize unproductive states following trauma or any change in one’s health status.  Too frequently, these dynamics are overlooked in consideration of what appears to be the most obvious reason for the absence from work, a so-called “explanatory event.”  We have also concluded with certainty that a thorough and accurate history is necessary to assess pre-accident work longevity, determine residual employability, and causally ascribe occupational disability to a particular event.  Possessing a complete and reliable history (preferably from documentation of various sources) places the expert charged with disability analysis in a better position to offer a professionally certain opinion.

We have confirmed, over and over again, what Behan and Hirschfeld call “disability without disease” or accident does exist.  We recognize the importance of attributional style in an individual’s effort to explain disability.  Causal attribution of occupational disability remains a major issue that often challenges all rehabilitation personnel in forensic vocational/disability assessment matters and occupational rehabilitation of those who have become injured or ill.  The more detailed and reliable a picture one can construct, and more information we have about the injured worker’s personal constructs and tendencies to explain cause-and-effect, the more accurate the examiner can be in not only assessing vocational disability but its actual cause(s).  Through explanations, we anticipate finding causes, and from causes, we hope to find solutions.

As we bring this article to a close, we must confess that the question, “Who is qualified to make the call on occupational disability?” is not answered to our complete satisfaction.  What has become apparent in our discussion of how disability is explained is that neither expert, medical nor vocational, may be in an absolute position to make judgments regarding residual employability, pre- and post-capacity to work, or the causal attribution of vocational disability unless the expert is fully informed of the multitude of medical and psychosocial dynamics that surround an individual’s claim of occupational disability.

We believe that causal attribution and attribution theory are critical determinants in disability chronicity following accident and injury.  We are aware that the literature on pain in disability offers substantial insight into the multiple factors that can cause one to claim total vocational disability.  We most certainly encourage medical, rehabilitation, and legal professionals to recognize the complexity of occupational disability claims.  We ask for more frequent and thoughtful research in the areas of psychosocial antecedents to vocational disability, illness behavior in situations of claimed disability, and attribution theory as determinants of vocational disability.

(Part II) Toward Organizational Health

The Basic Analogy:

Work organizations are similar to human organisms in many ways.  Like human beings, for-profit organizations are conceived and born generally as an extension of ego.  Usually the work organization is sired by someone emotionally invested in the notions of perpetuity and legacy, forces comparable to those in the decision or desire to have children.  As with human beings, work organizations are not only born, when healthy, they grow and develop.  Moreover, one would trust that work organizations survive, in part, because they attempt to contribute to the collective good, again, not unlike human organisms.

In addition, like human organisms, work organizations can be dysfunctional and so troubled by neurotic tendencies that they can fail to reach their potentials.  When troubled and yet motivated toward wellness, humans must learn to manage or change their states by controlling their minds and emotions.  Likewise, when faltering, organizations must strive to manage or change internal processes and procedures to become more effective and productive.  In either case, human organism or for-profit organization, fear of creating change can be a roadblock to health and prosperity.

The Organizational Problem:

One common organizational failure seems to result from unrecognized fear of proactively and comprehensively managing lost time associated with employee illness or injury.  Most work organizations manifest an incomprehensible avoidance of proactively managing absenteeism and disability.  Although many companies have intense and system-wide safety programs, most organizations lack a comprehensive, proactive program to prevent and manage lost time following injury or illness.  Instead, like the neurotic who fails to act definitively, even in his/her best interest, the dysfunctional organization abdicates responsibility for preventing absenteeism or managing disability and, thereby, fails to control human and financial costs, a consequence certainly antithetical to a company’s effort to achieve its potentials.

Proactive disability management is a critical aspect of any organization’s overall well being.  Unlike the neurotic individual who tends to deny, procrastinate, disassemble, and ultimately resign in the face of life’s challenges, the healthy work organization sets out to both prevent and manage problems, including disability. 

Disability management involves the coordination of the organization’s various human capital strategies to assure that all employees are afforded the opportunities to remain productive.  More than a system-wide safety program is needed to achieve an effective Disability Management Program (DMP).  A quality DMP requires:

·        top level management commitment to the process and outcome,

·        the activation and integration of benefit programs,

·        health and wellness initiatives,

·        lost-time management teams,

·        job accommodations,

·        transition-to-work programs,  and if necessary,

·        employer-sponsored vocational rehabilitation programs designed to assist displaced employees with career change and job placement services. 

Proactive disability management realizes the value of human capital in the success of any for-profit organization.  Some organizations, however, tend to deny that their most valuable resource is their employee population with their requirements for health and health maintenance support.  Organizational leaders may procrastinate on taking proactive measures and choose to deal with problems as they arise.  These leaders often deceive themselves and others by delegating the company’s human resource programs to outside contractors.  In fact, many companies have abdicated responsibility for human resources management to vendors!  Ultimately, these companies and others also resign themselves to paying disability costs and writing those expenses off simply as a consequence of doing business.  Too often, the neurotic company does not realize the cost of being dysfunctional.  Frequently, it requires outside auditors or financial consultants to bring the real cost of disability to their attention, and the cost of workplace disability and associated absenteeism can be daunting.

Consider the following:

·        The Mercer Human Resource Consulting Group reports that absenteeism costs were 14.3 percent of payroll in 2000.  Those costs have been rising steadily and will continue to climb. 

·        The U.S. Department of Labor reveals that companies lose 2.8 million workdays each year because of employee injuries and illnesses. 

Research has shown that if organizations do not actively assist workers in early return or transitional employment, the consequences can be disastrous.  Disability management consultants cite studies that indicate of the 500,000 newly disabled workers each year who remain out on disability five months or more, only 1 in 2 will ever return to work.  Most organizational leaders do not recognize what their individual organizations are paying in both financial and human capital as a result of not proactively preventing and managing disability.

However, analogous to good cognitive therapy and effective re-education for the neurotic, skilled interventions in the workplace are available to the less than fully functional organization.  Such an organization can be defined as one that has failed to recognize the problem of occupational disability and integrate its various human resource programs to proactively manage disability and resultant lost time.  Again, similar to the neurotic who fails to recognize a significant problem and assume responsibility for overcoming the dysfunction, an organization may continue to deny, procrastinate, dissemble, justify, and rationalize its status quo.  Consequentially, as does the individual, the organization fails to reach its potentials.

What is Required?

Conscious and purposeful change is not easy.  The neurotic individual eventually experiences enough personal pain that the brain and body ultimately insist on change.  Organizations can have the same experience, but generally the “head” of the organization must search for the source of pain because it is not always palpable, however disturbing.   Organizational pain can be hidden by layers of bureaucracy and the forces of inertia.  Nevertheless, the competent business leader remains open to change, and when given proper information, recognizes the value of proactive methods for maintaining and enriching the company’s human capital.

In order for leaders of organizations to better appreciate the need for comprehensive disability management, they are encouraged to ask themselves questions.  One of the most useful and universal concepts in exemplary disability management is “co-malingering.”  This term refers to the role of all the individuals including, but not limited to, employers and co-workers, in causing and perpetuating disability.

Questions to Guide Disability Management Programming Evaluation:

In assessing the company’s present policy in respect to employee absenteeism, company management will need to consider (and document) the reason for having a DMP.  Reasons why having a DMP is crucial include:

1.      The competition in a global economy requires proficiency.

2.      The aging population.  (By 2020, 1 out of 3 Americans will be over 50.)

3.      Life generally and work specifically are becoming more stressful.

4.      The escalating costs of adversarial claims and litigation.

5.      The cost of disability when employers continue to pay injured/ill employees who are not coming to work.

The following questions are offered to assist employers to evaluate their DMPs:

·        In Search of an Organization Strategy:

1. Do we have a developed, documented, and operational policy in respect to disability management?

2. If yes, what is that policy?

3. Is the existing policy still viable?

4. Do we truly own the operational policy to manage disability or has it been delegated to a vendor?

·        Direct Costs:

1. Do we have the capability of determining the direct financial costs of the lost time of our employees? 

2. Who in the organization should be responsible for this report? 

3. If we do not have the in-house capability, where can we find quality, cost-effective assistance? 

4. Do we collect data to document absences, causes, and costs? 

5. If not, who in the organization can develop and implement a collection system?

6. If yes, are the data used to plan and change?

·        Indirect Costs:

1. Indirect costs are also critically significant to bottom-line costs.  What are the indirect cost factors? 

2. Have indirect costs been identified and factored in to the lost-time equation? 

·        Disability Management:

1. Do we have a DMP? 

2. If yes, can we request an in-house presentation on the program for the purpose of evaluating it? 

3. If we determine that what we do is not comprehensive and effective, how can we upgrade it? 

4. Are there experienced professional resources available to assist in program improvement, and how do we identify these resources?

5. Are there exemplary DMPs in well-managed companies, and if so, who are the companies and how can we find out what these exemplary programs look like?

·        Staff Responsibilities:

1. Do we have staff members identified as being responsible for organizing and conducting disability management? 

2. Do the individuals identified as having responsibilities in the DMP have job descriptions that detail the organizing, implementing, and operating tasks required for a DMP?

3. Do we have a projected schedule for the evaluation/creation/implementation of  disability management tasks?

·        Disability Management Components:

1. If exemplary DMPs exist, what are the specific components of these programs? 

2. Given the size of our organization, can the components be prioritized in terms of need for implementation? 

3. Which of components do we have in place and apply? 

4. Which specific components should we add to our existing program?

·        Basic Concepts:

1. Is our DMP based on a needs assessment?

2. Is a new, more timely, needs assessment required?

3. Do we have a coordinating committee in place to plan and monitor our DMP? 

4. Is the committee inclusive?

5. Have we identified community resources to assist in delivering appropriate services in our DMP?

6. Do we have written policies and procedures for the DMP?

7. Do we perform case management when an employee is injured/ill?

8. Do we have specific and flexible employee options in respect to returning to work as soon as possible?

·        Staff Training:

1. Do we sponsor a safety/wellness prevention program for employees (including work-external prevention)?

2. Do we perform regular training on our DMP for supervisors?

3. Do we complete regular awareness and orientation on our DMP for all employees?

Addendum:

Every company, regardless of size, will benefit from demonstrating proactive assistance to employees.  Mid-sized and large companies will have special personnel to focus exclusively on disability management issues.  Employers with fewer total employees will not be in a position to have staff dedicated solely to disability management.  Nonetheless, small companies are not excused from providing services relating to absentee management.  The process and the services remain the same; the only difference is in the scale.  Small businesses are as responsible for the issues outlined above as are large employers.  As the “neurotic” individual is clearly responsible for personal change, the employer is ultimately responsible for organizational change.  Requiring help in facilitating change is nothing to be ashamed of, and help can be found.

One of the most effective models for how Americans can enrich their lives is “Positive Psychology.”  This concept, developed under the leadership of Dr. Martin Seligman of the University of Pennsylvania and other psychologists under the aegis of the American Psychological Association, is so significant that it requires the serious attention of every adult, as well as the attention of every business and industry leader in America.  All exemplary DMPs moving forward will want to be knowledgeable of Positive Psychology and will seek ways to construct future management philosophies and cultures on its tenets.

REFERENCES

American Medical Association (1992).  Guides to the Evaluation of Permanent Impairment, Third Edition-Revised. Chicago. 

Behan, R.C., & Hirschfeld, A.H., (1966).  Disability without disease or accident.  Archives of Environmental Health, May, Vol. 12.

Frese, M., Mohr, G., (1987).  Disability, community, and rehabilitation, prolonged unemployment and depression on older workers: a longitudinal study of intervening variables.  Social Science Medicine, 25, p. 173-178.

Gamboa, A.M., Jr., Tierney, J.P., & Holland, G.H., (1989).  Work-life expectancy and disability.  Journal of Forensic Economics, April, p. 29-32.

Institute of Medicine (1987).  Pain and Disability: Clinical, Behavioral and Public Policy Perspectives (Osteweis, M., Kleinman, A. and Mechanic, D. eds).  Washington, D.C., National Academy Press.

Kelly, G.A., (1955).  The processes of causal attribution.  American Psychologist, 28, p. 107-128.

Mamlin, N., Harris, K.R., & Case, L.P., (2001).  A methodological analysis of research on Locus of Control and learning disabilities: Rethinking a common assumption.  Journal of Special Education, Winter.

Mitchell, K., & Leclaire, S.W., (1993).  Negotiated Disability in The Health Care Industry: The Invisible Bond Between Worker and Employer.  National Rehabilitation Planners, Inc.

Pilowski, I., (1978).  A general classification of abnormal illness behavior.  British Journal of Medical Psychology, 51, 131-137.

Pilowski, I., (1984).  Pain and Illness Behaviour: assessment and management.  In: Textbook of Pain (Wall, P.D. and Melzack, R. eds.) New York, Churchill Livingstone.

Psychiatric Disability: Clinical, Legal and Administrative Dimensions. American Psychiatric Press, Inc.: 1987. 

Rotter, J.B., (1966).  Generalized expectancies for internal versus external control of reinforcement.  Psychological Monographs: General and Applied.

Seligman, M.E., (1975).  Learned helplessness: on depression, development, and death.  San Francisco, W.H. Freeman.

The Mercer Human Resources Consulting and Marsh, Inc., 2002 Survey of Employers’ Time-Off and Disability Programs. 

Walker, J.M., (1992).  Injured worker helplessness: Critical relationships and system levels appropriate for intervention.  Journal of Occupational Rehabilitation, Vol. 2, No. 4.

Walker, J.M., (1998).  Understanding Disability: A Lexicon.  Risk Management: The Magazine of the Risk and Insurance Management Society, Inc., November 1998.

Weiner, B., (1986).  An attributional theory of motivation and emotion.  New York, Springer-Verlag.

Weinstein, M.R., (1978).  “The Concept of the Disability Process,” Psychometrics. 

Wrzesniewski, A., Dutto, J.E., & Debebe,G., (2003).  Interpersonal Sensemaking and the Meaning of Work.  Research in Organizational Behavior, 25, 93-135.

By Jasen M. Walker and Fred Heffner

For several years, we have argued that the difference between medical impairment and occupational disability is not only a significant distinction, but one that must be recognized in the proper adjudication of damages in personal injury claims. In its Guides to the Evaluation of Permanent Impairment, the American Medical Association recognizes that “impairment” references an alteration of an individual’s health status and is assessed by medical means. “Disability” is an alteration of an individual’s capacity to meet personal, social, or occupational demands and is assessed by non-medical means.

This article offers the concept that in particular personal injury cases involving multiple impairments, the vocational expert may be the most qualified professional to speak to not only occupational disability but also the actual cause of that disability.  Heretofore, the misconception has been that physicians are trained and qualified to offer opinions with “medical certainty” as to why an individual can or cannot work.  We suggest that this is an error in professional judgment on several levels, and if the legal community wishes to pursue accurate disability determinations, it must continue to educate its members as to which professionals are qualified to testify as to which of multiple permanent impairments caused the occupational disability in the same individual.    

Consider this hypothetical.  A 56-year-old longshoreman injures his right knee in a forklift accident. He is driving the forklift and collides with another piece of heavy equipment with brake failure.  When the collision occurs, the longshoreman is thrust forward and strikes his right knee on a steering wheel mount and is later diagnosed as having traumatic chondromalacia of the patella and a probable anterior cruciate ligament disruption. He undergoes surgery and rehabilitation and feels he is able to return to work driving heavy equipment, including the same type of forklift he was operating at the time of his accident.

When he is denied a return to work by his employer, he initiates a lawsuit.  In it, he argues that he cannot return to the full range of duties performed by his peers, including operating heavy equipment to unload cocoa beans from the ship’s holds as well as climbing ladders to cranes to strap and un-strap heavy cables on steel beams.  However, the lawsuit contends he can perform the “essential function” of the job —operating a forklift—but that because of his injured right knee, he cannot perform all of the attendant, occasional functions.  He receives medical support for his claim, in which his physician declares that he cannot climb, squat, kneel, and lift more than 50 pounds.

When the medical records are reviewed by a vocational expert, it is apparent that the longshoreman also has a pre-injury history of degenerative spine disease revealed on imaging studies. He also has a prior left knee injury, which was followed by an MRI that showed extensive arthritis in three compartments of the knee.  There was also a pre-accident complaint of right shoulder pain. The orthopedic surgeon who examined the right knee following the forklift accident took a past medical history from his patient, and this information regarding the longshoreman’s pre-accident orthopedic impairments became available to all who read the orthopedic surgeon’s report.  In that report, the longshoreman’s physician declares that his patient should not return to work.  Nonetheless, the longshoreman undergoes arthroscopic surgery to the right knee and, after post-surgical physical therapy, returns to heavy moving equipment operation on the pier.

In his court case, the longshoreman argues, with the assistance of his vocational expert, that while he may be unable to perform heavy and very heavy work, he can do the essential function of his job.  But the limitations mean that he is disabled and has lost at least a portion of his earning power.

The defendant in the lawsuit hires a vocational expert, a rehabilitation counselor, who is familiar with the demands of the longshoreman’s work. This vocational expert knows that in order to perform heavy and very heavy work, one must be capable of lifting 100 pounds and over 100 pounds, respectively.  Moreover, in order to carry out this work at those exertional levels, one must be capable of squatting and sometimes twisting while lifting such loads (i.e., bags of cocoa beans) off the floor of a cargo ship.  At times, the longshoreman will have to climb straight ladders or steps to access the controls of his crane. The defendant’s vocational expert testifies in court that the indexed accident and related injury, the right knee impairment at issue, is not the seminal cause of occupational disability for his client.  Rather, they argue the obvious left knee impairment combined with the degenerative spine disease, pre-existing conditions, required consideration in the disposition of the case.

Plaintiff declares that defendant’s vocational expert cannot offer such an opinion regarding the source of the longshoreman’s disability since that opinion is “medical” in nature and not within the purview of a non-medical expert.  Defendant counters that disability is a non-medical issue and that vocational experts are required to understand medical impairments and the exertional/non-exertional demands of work and how impairment interacts with exertional demands, to define the disability.  In this case, defendant argues that the heavy and very heavy work requiring squatting, lifting 100+ pounds, climbing ladders and steps, and otherwise employing both knees and the back in arduous work were beyond the longshoreman’s capacities even before the right knee injury at issue.

Who is right?  What should a judge decide about these opinions and arguments?  Does the determination of what constitutes occupational disability remain with the medical expert?  Does the vocational expert possess the knowledge and skill to make a causal attribution of vocational disability when he knows that certain pre-existing or unrelated medical conditions would, in all probability, make certain work demands impossible?

Another example might prove useful.  A lawyer suffers a stroke, and on the way to the hospital, the ambulance is involved in a vehicular accident.  The lawyer is trapped under the wreckage and miraculously survives.  However, when he does arrive at the emergency room, he presents with a significant compound fracture, and although the fracture is repaired, infection sets in.  As a consequence, the lawyer loses his leg above the knee. The stroke, for its part, results in cognitive and language deficits.  Through rehabilitation, the recovering amputee struggles with using a prosthesis and ultimately decides that life is easier in a wheelchair. He tries to return to his profession, but he struggles with neuropsychological impairment.  A lawyer representing the amputee in court argues that the motor vehicle accident resulting in the compound fracture and resultant amputation has caused the lawyer occupational disability and lost earning power. Which of the medical impairments, the post-neuropsychological deficits or the post-amputation and ambulation problems causes the disability in the practice of law?

Although the causal attribution of occupational disability in the profession of the lawyer is more evident than in the work of the longshoreman, both scenarios represent a potential problem for those not fully appreciating the difference between medical impairment and occupational disability in the argument and adjudication of monetary damages associated with lost work capacity.

The vocational expert or disability analyst is frequently confronted with the problem of assessing the employability of individuals with a history of multiple medical impairments.  More often than not, the expert is asked to opine as to the effect of trauma/injury on the occupational capabilities of an individual who has a pre-existing history of medical impairment.  The disability analyst’s challenge is to determine the effect of pre-existing impairments on the individual and how that particular effect is different in terms of disability than one brought about by trauma.

As an example, we hypothesize the case of a teacher who has had a long history of mental disorder, specifically a so-called manic depression that has not been well controlled.  The teacher claims that because of a motor vehicle accident (MVA) and an associated whiplash injury, he suffers from chronic neck pain, dominant upper extremity radiculopathy, and headaches.  It could be argued that the MVA injuries alone could constitute disability in classroom instruction.  However, what effect would the uncontrolled bipolar disorder have upon the teacher’s capacities to work?  It would be difficult to resolve this issue on a logical basis.  However, the history of this specific claimant’s pre-existing mental disorder may be legally eliminated as a factor because it might produce prejudice for a fact finder or a jury.

In order to arrive at a point in vocational/disability analysis where informed and detailed assessment of future employability can take place, one must know the subject’s past thoroughly.  Not only is educational and occupational history relevant, but the subject’s past medical history can be critical in accurately determining potential for future work, particularly occupational longevity or “worklife expectancy.”

Worklife expectancy is commonly used in determining how long an individual will participate in the workforce given factors such as age, race, gender, and disability.  Although they are hardly a data set without controversy, the Bureau of Census information on individuals absent from the workforce because of health-related problems is frequently cited by various vocational experts to argue disability.  In a report called The New Worklife Expectancy Tables (1998), A.M. Gamboa, Jr., Ph.D., MBA, introduces the concept of worklife expectancies for persons defined as severely disabled, disabled, not severely disabled, and non-disabled.

Gamboa’s hypothesis is that people with various (pre-incident/accident) medical problems are already disabled with some level of severity.  The issue then becomes one of determining the level of severity.  If the Gamboa hypothesis is correct, then how does a 54-year-old Certified Nursing Assistant (CNA) who is 5’4” tall and weighing 350 pounds (morbid obesity) claim that absent her lower back trauma, incurred from falling on a slippery floor (she is suing the floor cleaning contractor and the floor wax manufacturer), she would have worked until age 65 all the while lifting, bathing, and otherwise caring for geriatric patients, most of whom were non-ambulatory.  Moreover, post-injury x-rays of the CNA’s hips and knees show significant degenerative changes.  Nonetheless, with the support of a vocational expert, she is claiming that she cannot work, but had she not slipped on the floor, she would have continued working full-time in direct patient care until normal retirement age.

Obviously, there is a need for reasonableness in these arguments of disability causation, but even competent vocational experts find themselves in the dark when faced with evaluating an individual who has multiple, and often times compounding, pre-existing medical problems to those present injuries for which the individual is now claiming vocational disability.  What is clear is that in most cases the vocational expert who is trained and experienced in disability analysis is generally better prepared than a medical expert who may not fully appreciate the exertional and non-exertional demands of specific jobs, or for that matter, how those demands might be reasonably reduced by job accommodation.  Although it is true that medical experts have greater training than vocational professionals in understanding physical and/or mental diseases, the critical factor in disability assessment is whether an individual with permanent impairment can function in relation to a particular set of job demands.

More than the existence of permanent impairment, the key occupational disability determinants are functional capacity and job demands.  Functional capacity evaluations, with validity mechanisms helping to assess patient effort, have taken the place of physical (or mental) capacity checklists that physicians have heretofore completed at the request of an employer or its insurance carrier.  Physician-completed checklists are more representative of guesswork rather than a reliable estimate of an impaired individual’s residual capacities.  Functional capacity evaluations are generally standardized strength protocols that provide information regarding the patient’s abilities to lift, carry, reach, squat, etc.  Parenthetically, evaluations of mental functional capacities have yet to be reliably formulated. 

Armed with a detailed job description delineating the physical demands of the patient’s (employee’s) return to work option, a functional capacity evaluator would seem in good position to determine whether the employee can physically work in a particular job.  However, state-of-the-art functional capacity evaluations that are designed to assess a patient’s residual physical capacities for work have also failed to discriminate between pre-existing conditions that might limit the patient’s exertional capabilities and those that the patient claims are responsible for causing a disability.  So, for example, the 56-year-old longshoreman who claims that his right knee injury prevents him from manhandling 100-pound bags of cocoa beans may fail to qualify on a functional capacity evaluation, but not because of the right knee injury limitations alone. Rather, the disqualification would be because of the exertional deficits brought about by his pre-existing spinal disease and his prior left knee impairment.

Our bias that the vocational expert is better able to attribute disability to a particular cause and to define residual employability remains unaltered.  Certainly, the medical professional is best qualified to identify and describe medical impairment (physical and/or mental) and, in some cases, the injured person’s residual functional capacities.  But the vocational expert, knowledgeable of medical impairments and their general effects on functioning, is far better able than any other medical professionals to state with certainty whether a particular individual possesses residual employability and, if so, what jobs the impaired individual is best suited to perform. 

As we bring this article to a close, we must confess that the question, “Who is qualified to make the call on occupational disability?” is not answered to our absolute satisfaction.  What has become apparent in our discussion is that neither expert, medical or vocational, may be in a position to make judgments regarding residual functional capacity, pre- and post-accident employability, or the attributional cause of vocational disability unless the expert is fully informed.  A thorough and accurate history is necessary to assess pre-accident work longevity, to determine residual employability, and to causally ascribe occupational disability to a particular impairment.  Possessing a complete and reliable history (preferably from documentation) places the expert charged with disability analysis in a better position to offer a professionally certain opinion.