Once upon a time, as an attempt to do the “right thing” and to avoid costly litigation employers recognized that a system could be established by which workers who were disabled by on the job injuries could be fairly compensated for such an injury and all parties could thus avoid the legal process. This approach basically worked well as long as the injury was something which was clear-cut, definable, and objectively measurable such as a lost eye, hand or foot.
Things became a bit more complicated when “back injuries” were introduced into this equation. How does one define “injury” if statistics show that 80% of the population have experienced at least one disabling episode of back pain during their lives.
It is not unusual for a worker to simply pick up a “widget” at work and be disabled because of this. Is this truly an injury or trauma? It is now appreciated that the majority of patients who have multi-level disc degeneration have this on a genomic (genetic) basis. In fact, if this spine was not normal (i.e. afflicted with a genomic spine disorder such as Juvenile Discogenic Disease) but asymptomatic prior to the “work-related injury” is this truly an “injury” to be covered by the worker’s compensation laws?
Then again let’s look at the subject of the word “injury” in the legal context. If someone has extensive underlying spinal pathology and is asymptomatic and if, as a result of a minor incident they are disabled doesn’t this then become a disabling injury similar to the legal precedent of a “paper thin skull” to make the point. This legal concept involves injury to a body part which is more fragile and therefore injured to a greater degree by less trauma. So, if a spine is not normal at birth, but is functioning without problems until a work-related injury occurs should not such a case be even more legitimately considered to be a Worker’s Compensation situation?
Furthermore, to further complicate things there is the legal entity referred to as a “Gillette Injury”. This refers to a work-related activity where there is continuing low level insult (defined as continuous micro-trauma) directed to a body part producing job-related disability and subject to a worker’s compensation claim.
Occupations such as trucking are characteristically associated with back problems due to constant compressional loading, jouncing around and environmental vibratory insults. In the real world injuries are assessed for joint responsibility (in percentages) as might be seen in an auto accident. This is not true in worker’s compensation, where it is an “all or none” phenomenon.
Worker’s Compensation rules and regulations were certainly well intentioned when they were created but the “injury” model is simply inappropriate and illogical when applied to spinal problems. Because of the fact that this particular aspect of the system is severely flawed it tends to turn the attempted fair resolution of Worker’s Compensation issues involving the spine into making no more sense than that evident in the “Mad Hatter’s Tea Party” as envisioned by Lewis Carrol’s “Alice in Wonderland.”
Unfortunately, the present system for the spine injured patient typically doesn’t turn out to their real benefit even if a patient’s complaints are contrived. The Worker’s Compensation process is a long one and if individuals were not chronic pain patients to stat with they often become such over a period of time. Society often tags these folks as “losers” and their families can only stand by and watch their loved ones become truly disabled mentally as well as physically.
It is a sad sight indeed when an injured worker focuses all of their energy on striving to prove just how really disabled they are for to achieve a hoped for financial gain. Such an investment of effort would be much more productive if used in other directions.
Will worker’s compensation continue unchanged into the 21st century? Burton Report hopes not. Much better answers to this need do exist and need to be applied.