Disability Determination
Robert D. Rondinelli
Richard T. Katz
The medical evaluation and treatment of physical impairments and associated disabilities embody the clinical practice of rehabilitation medicine. The physiatric emphasis toward evaluating and managing the disabling aspects of illness and injury sets us apart from more traditional medical fields, whose scope and focus rest primarily on the diagnosis and treatment of pathology and medical impairment. However, the past decade has witnessed an expanding interest among general medical providers in acquiring the skills of medical impairment rating (IR) and disability evaluation. A number of organizations now offer training courses on topics pertaining to disability evaluation (e.g., the American Academy of Disability Evaluating Physicians [AADEP, www.aadep.org]; American Board of Independent Medical Examiners [ABIME, www.abime.org]; American Academy of Physical Medicine and Rehabilitation [AAPM&R, www.aapmr.org]), and a certification examination in the emerging field of disability medicine is also available to interested health care providers through the ABIME.
This chapter is intended to underscore the importance of physiatry to disability medicine and of disability determinations to the physiatrist’s practice. Furthermore, it is intended to provide the physiatrist with a conceptual understanding of the current disablement model, a working vocabulary of terms commonly used in disability determinations, and a comparative understanding of the similarities and differences among the major U.S. disability systems within which such determinations take place. In addition, detailed discussions are provided concerning the evaluating and reporting requirements of the independent medical examiner, the IR process, return-to-work determinations, and some of the legal/ethical challenges facing the disability examiner.
MODELS OF DISABLEMENT
The consistency (or lack thereof) of definitions and criteria for disablement is a source of confusion immediately evident to the physiatrist who engages in the process of disability determinations. The taxonomy and associated nomenclature of disablement vary widely, both locally and internationally. Terminologies and definitions may differ significantly between disability systems or even among jurisdictions within a particular disability system. The core concepts and theoretical underpinnings of disability as a social construct are fully discussed in Chapter 54. Nevertheless, the current reference framework for communicating about disability is also briefly reviewed here, to provide the physiatrist with a fundamental and common perspective from which to view the various interpretations placed on the constructs of impairment and disability within each particular disability system.
ICF 2001
The World Health Organization (WHO) has recently adopted the International Classification of Functioning, Disability and Health (ICF) (1). A new terminology and conceptual model of disablement have been introduced that provide a common framework within which to view human functioning and disability from the perspective of the body, the individual, and society. Human functioning encompasses body functions and body structures, activities (personal sphere), and participations (societal sphere). Disability encompasses impairments, limitations (on activity), and restrictions (to participation) that may occur in the presence of a health condition (disorder or disease). Contextual factors, including environmental factors and personal factors, interact within the model as well (Fig. 10-1). Consequently, an individual’s functioning and disability can be considered as the dynamic interaction of one’s health condition and contextual factors in each case.
The disability examiner should become familiar with the constructs and applications of the ICF model to the field of medical disability determinations, where the validity and reliability of reporting requirements are increasingly being stressed.
In practice, however, the real-world applications of some of these terms of disablement are used differently. Workers’ compensation jurisdictions and many insurance companies use disabled to imply that the person can no longer perform the substantial and material duties of an occupation. So, for example, when an individual cannot lift “twenty ton per day” (e.g., throw 400 sacks weighing 100 lb each per day), they are considered disabled for performing that particular job.
To be disabled in the context of the Social Security Administration (SSA) means that a person must be disabled for “all substantial gainful activity” (SGA) in order to receive benefits from this agency. A ballerina who crushes her great toe has most likely concluded her career as a dancer and is disabled from this occupation in the eyes of her long-term disability carrier. SSA would certainly not see her as disabled and would
point out that there are a wide array of occupations to which the dancer could still potentially apply herself.
point out that there are a wide array of occupations to which the dancer could still potentially apply herself.
 FIGURE 10-1. Model of disablement according to the ICF. (Modified from WHO. International Classification of Functioning, Disability and Health. Geneva, Switzerland: World Health Organization; 2001:18, with permission.) |
Finally, there are important modifiers to the concept of disability. Under workers’ compensation, for example, if a registered nurse can no longer engage in heavy lifting, bending, and stooping on a frequent basis as required by his or her job description, he or she is disabled from his or her regular duty and may be restricted to light duty. In general, when a worker has an acute musculoskeletal (e.g., back) injury, a physician may place the patient on temporary disability, but it is unlikely there will be any permanent disability. When treatment for a particular condition has continued without improvement for more than 12 months, many would consider that the patient’s temporary disability has become a permanent disability. If so, a disability rating is then required by many workers’ compensation jurisdictions, and the physician examiner must determine if the patient’s disability is total (100% of the whole person) or partial (some fraction thereof).
The terms impairment and disability are often used somewhat interchangeably and incorrectly. For example, physicians may be asked in certain jurisdictions (e.g., Iowa) to use the AMA Guides (2) to provide a disability rating although the title and introduction to the book clearly state it is intended to rate impairment and not disability. The reason is simple—different jurisdictions rate and provide compensation for physical impairments differently. There is no way the AMA Guides could satisfy the rules of disability ratings in all of these different settings.
MAJOR U.S. DISABILITY SYSTEMS COMPARED
The major U.S. disability systems include tort claims liabilities, workers’ compensation, Social Security, private disability insurance claims, and various federal disability programs. A discussion of each of these disability systems follows. Table 10-1 compares these systems graphically (3). The reader is also referred elsewhere for more extensive and in-depth discussions of this topic (4) than is possible here.
Tort Claims
Before the 1880s, a worker who was injured on the job could only seek redress against his or her employer by bringing civil suit under common law, where cases were decided based on legal precedent. Tort liability was applicable and implied civil wrongdoing, whereby the burden of proof rested with the claimant. A successful tort claim required proof that (a) a legal duty existed, (b) a breach of legal duty occurred, and (c) harm or injury occurred as the direct result. The employer’s defense rested on grounds of employee contributory negligence, assumption of risk, and the “Fellow Servant Doctrine” implicating co-worker contributory negligence. Winning meant a large lump-sum payment for damages, whereas losing meant no reimbursement for medical expenses or time-loss compensation. The odds of winning were unacceptably low, with less than one in five claims settled in favor of the plaintiff. In their present form, tort claims often arise out of personal injury cases (i.e., medical malpractice, vehicular accidents) where criteria for recovery for damages vary by jurisdiction (5).
Workers’ Compensation
Workers’ compensation arose out of inadequacies of recovery of claims under the tort system. The first workers’ compensation system was introduced by Germany in 1884 (6), and the first U.S. industrial compensation system was established in Wisconsin in 1911. Other states rapidly followed suit. As a result, workers’ compensation now exists in all 50 states as well as the District of Columbia (6).
In the United States, workers’ compensation law is determined on a state-by-state basis. Each state has its own compensation system, and there are significant differences from one system to another. In general, though, compensation systems share the following common features (3):
The system is no-fault, and the employer assumes liability for all claims arising as a result of injury or illness directly attributable to the workplace. In return, the worker gives up the right to bring suit against the employer for separate damages in most circumstances except where wanton negligence applies.
Benefits are provided only for work-related conditions that are medically determined to arise directly out of and in the course of employment. Causality is established by demonstrating that a compensable condition occurred while the employee was at work and engaged in employment activity.
An employee may forfeit eligibility if he or she was intoxicated or engaged in unsafe practices at the time of injury or if he or she was incarcerated or refused to return to work after being cleared medically to do so.
The condition must persist beyond a statutory waiting period (typically 7 days).
A claim must be filed within a specified time period. In general, the employer must be notified within 30 days of illness or injury, and a claim must be filed within 1 year of illness or injury or within 2 years if death is the result.
Disability may be temporary or permanent, partial or total.
Benefits under workers’ compensation include survivor benefits in case of death, medical and rehabilitation expenses, and wage-loss benefits (generally, two thirds of wages) during the period of temporary disability. Table 10-2 summarizes coverage/benefits under workers’ compensation.
TABLE 10.1 Major U.S. Disability Systems Graphically Compared | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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TABLE 10.2 Coverage Under Workers’ Compensation | ||||||||||||||||
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Many states have adopted a second injury fund to encourage employment of individuals with preexisting disabilities, whereby the employer is protected from excess liability for compensation due to preexisting conditions. The second injury fund in Missouri, for example, began after World War II, when employers were encouraged to hire wounded veterans. The principal concept of a second injury fund is to compensate injured parties for the “synergistic” effects of prior and present injuries. For example, if a worker who had previously been blinded in one eye suffered loss of vision in the second eye, the impairment and disability would be much greater than twice the value of the first eye. This compensation for the “ synergistic” or “combined” effect of two injuries is the principal intent of a second injury fund. Readers should investigate further by consulting the statutes in their particular state or jurisdiction.
Social Security Disability Insurance and Supplemental Security Income
The SSA is the largest U.S. disability program, assisting between one third and one half of those persons qualified as disabled (7). It includes the following two separate disability programs:
Social Security Disability Insurance (SSDI) was established in 1956 to assist workers more than 50 years of age who became totally and permanently disabled. It is funded according to the Federal Insurance Contribution Act (FICA) payroll tax, combining deductions for old age and social disability insurance (OASDI). In general, workers are eligible if they are less than 65 years of age and if they have worked in a job covered by SSDI for at least 5 of the 10 years immediately preceding onset of disability. A requisite criterion of disability determination is proof that the individual is unable to engage in any SGA by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of at least 12 months (8). Beneficiaries of SSDI can exit the system by death, by reaching age 65, by undergoing continuing disability review (CDR) in which significant medical improvement is determined such that the individual is no longer eligible for disability, or by returning to work. Less than 5% of beneficiaries “fail” CDR and/or eventually return to work (8).
Supplemental Security Income (SSI) was established in 1972 to provide support for indigent people who were blind, disabled, and less than 65 years of age. SSI operates as a federal-state partnership funded by general revenue (i.e., federal and state income tax). Individuals are eligible even if they have never worked, if they can be shown to have low income/ assets (through “means testing”), and if their medical condition is severely incapacitating such that they cannot engage in SGA, according to the same criteria as SSDI (8).
Benefits to recipients of SSDI or SSI are primarily in the form of monthly stipends. However, recipients of SSDI become eligible for Medicare benefits after 24 months of entitlement. Similarly, recipients of SSI automatically become eligible for Medicaid. In some cases, recipients of SSDI who also meet means test criteria for Medicaid are entitled to both types of coverage (8).
Private Disability Insurance
Approximately 40 million Americans have private long-term disability coverage, usually available through the workplace. Policies may be individual or group. Group policies are typically made available through the employee’s company and are more affordable. Definitions of disability and criteria for entitlement vary and are stipulated by contractual language rather than mandated by statutory provisions. Typically, employees who become disabled for their usual and customary occupation are covered by short-term disability for an initial period of 90 days, after which their long-term disability policy takes effect. In general, the duration of coverage is finite and specified (typically 2 years). Subsequently, the disabled person will continue to receive benefits only if unable to perform the functions of any occupation as provisionally defined (5).
An important feature of long-term disability policies is whether there is own occupation versus any occupation coverage. Own occupation coverage provides the insured with disability benefits (typically in the range of 60% of normal salary reimbursement to provide incentive to return to work) if they are not able to provide the essential elements of their particular job. Thus, a neurosurgeon would receive reimbursement if
no longer able to perform surgery, even if other physician responsibilities could be completed. Any occupation coverage means, within limits, the employee would be reimbursed only if he or she could no longer perform meaningful work in any related occupation. Again, the criteria vary according to the insurer. Less expensive group long-term disability plans tend to have own occupation coverage for approximately 2 years, and then the worker must be disabled from any occupation to receive further benefits. More expensive individual long-term disability plans tend to have more restrictive own occupation provisions.
no longer able to perform surgery, even if other physician responsibilities could be completed. Any occupation coverage means, within limits, the employee would be reimbursed only if he or she could no longer perform meaningful work in any related occupation. Again, the criteria vary according to the insurer. Less expensive group long-term disability plans tend to have own occupation coverage for approximately 2 years, and then the worker must be disabled from any occupation to receive further benefits. More expensive individual long-term disability plans tend to have more restrictive own occupation provisions.
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