Legal Dimensions of Disability Evaluation: Work Disability and Human Rights

The AMA Guides are a highly sophisticated version of a Baremas method. First published in 1958, the AMA Guides are now in their 6th edition [13] and are used in 40 of 51 jurisdictions in the United States, Canada, Australia, New Zealand, South Africa, and many European countries, and informally and nonsystematically in countless low-resource countries. The intended purpose of the Guides is for workers’ compensation, but they are the primary medicolegal tools for determining tort-based personal injury damage and disability claims management as well. Addressing academic objections to their use, the editors of the 6th edition argue that determination of the level of severity or class of impairment is not equivalent to a determination of work disability: “the Guides are not intended to be used for direct estimates of work participation restrictions. Impairment percentages derived according to the Guides’ criteria do not directly measure work participation restrictions” [13, p. 6]. Problems of inter-rater reliability frequently raised in the literature (e.g., [20–22]) are acknowledged by the editors, as is the fact that the impairment percentages are based on professional consensus rather than evidence [23]. Although repeatedly raised over the years, the editors of the AMA Guides do not address the considerably more damning objection that the evaluation percentages embody retrograde gender and disability stereotypes (cf. [24]).

None of the scientific or political concerns about validity and reliability have had much impact on the extent to which the Guides are relied on, worldwide. The reason for this is very simple to understand: from a legal and administrative perspective, the AMA Guides adequately, and indeed admirably, fulfil the prerequisites of being presumptively authoritative, consistent, and objective. In many jurisdictions, the AMA Guides are used as a preliminary screening protocol for applications for disability benefits – so that only clear or severe instances of work disability are tagged – and once the claimant has jumped that hurdle, more subtle and relevant criteria are applied to determine both eligibility and quantum of benefit. The AMA Guides, in short, do the job asked of them.

And for many in the field, it is not clear that there is an alternative. Although assessing care needs and economic loss are relevant to the determination of the impact of impairments on a person’s economic situation, they are at best indirect proxy measures of work disability. The same is not true of the more recently identified indicator of functional capacity. Indeed, occupational and vocational rehabilitation therapists have identified job-related functional capacity evaluation as the most intrinsically relevant indicator of work disability and therefore the most appropriate test of disability evaluation (see, e.g., [25, 26]). Nonetheless, practitioners have also argued that the relationship between impairments and work performance is simply not clear or predictable, especially when mental disorders or chronic pain is involved [27, 28], so why not stick with the standard already in place: the AMA Guides?

7.3 The Case for the ICF

Recent objections to the standard method of disability evaluation have been motivated by the belief that the closed world of disability evaluation needs to be exposed to more current and viable conceptions of disability in general, and work disability in particular. In no small part has this been the result of the increased acceptance by rehabilitation practitioners and researchers of the International Classification of Functioning, Disability and Health and its conceptualization of disability (see [29–32]).

Even the 6th edition of the AMA Guides announces its wholehearted adherence to the ICF approach to disability, although as it firmly maintains its long tradition of using impairment evaluation as a proxy for disability assessment, it is not clear what difference the adoption of the ICF has actually made.

As is well known, and certainly has been informally accepted theory within rehabilitation professionals for decades (see [33, 34]), disability is a complex notion that should be conceptualized, not as a feature of a person’s body, but rather as an outcome of complex and not always well-understood interactions between health conditions and their associated impairments of body function and structure, simple and complex, and features of the individual’s physical, human-built, social, and attitudinal environment.

This is the model of disability that is embodied in the ICF and is the basis for the classifications it contains.

Building on this understanding of disability, the more specific concept of work disability needs to take account of both the mental and physical demands of the job itself (sometimes called “work capacity,” e.g., [35]), but also all features and dimensions of the job environment: the physical, psychological, social, and administrative features of the environment in which the worker performs the job. To take simple examples, a worker in a wheelchair needs an elevator to get to her office on the second floor; a worker who has severe pain when standing or sitting for long periods may nonetheless be fully able to perform the job if the requirements of the job are altered and he or she is allowed frequent rest breaks; or a worker with intellectual impairments may require helpful coworkers to carry out her job tasks. Since many aspects of the job environment are mutable by means of accommodations – both physical changes to the work site and alterations to the job tasks – impairments are not the only relevant determinants of work disability.

The difficulty, however, has been taking on board the ICF person-environment model of disability in the context of work disability evaluation. Even researchers and practitioners who deal closely with the notion of work disability hold inconsistent views about the concept. In a recent handbook on work disability, it is claimed that “work disability occurs when a worker is unable to remain at or resume work because of a health problem” [36, p. ix] – that is, work disability is directly and immediately caused by impairments. In the next sentence, though, the authors assert that “evidence indicates that work disability results from complex interplays involving several partners (workplace, insurer, healthcare providers) interacting with the patient/worker in the disability process. Addressing this systemic and multidimensional disability problem requires adopting a transdisciplinary perspective” (Ibid.). This implies that the prevention of work disability – the overall objective of the transdisciplinary endeavor – might have nothing to do with impairments at all but rather with environmental features of the workplace itself.

The Institute of Medicine studies of the Social Security Administration’s disability evaluation already mentioned [11, 12] concluded that the ICF interactive model of work disability was both conceptually and empirically more realistic than the impairment-based model implicit in the SSA’s disability evaluation determination of the claimant’s ability “to engage in any substantial gainful activity.” Nonetheless, they concluded, “SSA does not have the resources to perform such an extensive assessment for each of the approximately 2.6 million disability applicants who will come through its doors each year” [12, p. 53]. If this task cannot be feasibly accomplished in this high-resource country, it is unlikely that it is feasible in other countries with far fewer resources.

It is at this point that the far less commonly used “functional capacity” method described above is argued to be the second best option for reform. Although the literature on this slippery notion is vast and inconsistent, it appears that functional capacity serves two possible roles. First, it can be used as a screening criterion for a level of impairment that, as the IOM put it, is “strongly correlated” to a person’s inability to work – that is, the person’s inability regardless of any reasonable accommodations that might be made [12]. Although this role would seem to require some evidence that the level of an individual’s capacity is so low that neither assistive technology nor job environmental changes would make a difference, it is not apparent whether this evidence is required, sought, or available.

Secondly, a person’s functional capacity serves as a kind of proxy of the interaction between impairments and work environment. A purely impairment-based, medical assessment would hold the work environment constant and assess level of impairment. But a functional capacity assessment might be able to factor in the potential changes that could be made to the work environment to reach a more accurate assessment. Several authors suggested this use of functional capacity assessment [37–40]. One recent analysis links this role for functional capacity back to the ICF by suggesting that the “whole-person” perspective of the ICF dimension of activity limitations, rather than merely the body-level perspective of impairments, is at the core of functional assessment and as such provides a more comprehensive representation of a person’s ability to work [32].

This is not the place to assess the plausibility of this role of “functional work capacity,” let alone the interpretation of the ICF upon which it is based. Our focus here is the legal perspective on work disability evaluation. And from that perspective, the case for using the ICF, either directly or by means of the functional capacity method (suitably developed) remains weak. Put briefly, although much can be said in favor of using ICF for disability assessment, none of this matters much from the legal perspective.

Proponents of the ICF argue that as a well-crafted, conceptually clear, and international standard, the ICF would ensure transparency, terminological consistency, and (optimally) inter-rater reliability for disability evaluation [31, 41–45]. Yet these virtues are what legal practictioners already see in the AMA Guides, and why they believe that the Guides already provide an authoritative, international standard. Shifting existing administrative evaluation superstructures from the Guides to some operational ICF-based instrument would be, in a country like the United States, an enormous expense and so would require a powerful political and administrative argument about the long-term cost-effectiveness of this move. But there is no available evidence that savings would actually result, and the risk seems too great to take, when, legally speaking, the Guides do all that the law requires of them.

Arguably we are looking in the wrong place for an argument to move to the ICF conception of disability for work disability determination. In the narrow context of disability evaluation practice, administrative inertia and the weight of the long history of medical gatekeeping sketched out at the outset will continue to favor existing practice. There are potential legal objections to an impairment-based conception of work disability that reflect a very different historical and legal tradition that can be brought to bear at this juncture. This tradition is reflected in national and international antidiscrimination and human rights law as it applies to persons with disabilities. In effect, armed with the ICF, one might very well make a strong, legal argument that standard practices in work disability evaluation are discriminatory and violate human rights. And that is a legally very strong argument indeed.

7.4 Disability Evaluation from the Perspective of Equality and Human Rights Law

Legal definitions of disability used in equality and antidiscrimination law clearly reflect the ICF characterization of disability, or more specifically in ICF terminology, the dimension of participation. Consider the legal characterization of disability in the Americans with Disabilities Act, 1990 (now the ADA Amendments Act of 2008 Public Law 110–325), the first and seminal disability antidiscrimination law that has been the model for parallel legislation around the world:

Sec. 12102. Definition of disability

(1)

Disability

The term “disability” means, with respect to an individual

(A)

a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B)

a record of such an impairment; or

(C)

being regarded as having such an impairment (as described in paragraph (3)).

(2)

Major Life Activities

(A)

In general

For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B)

Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

(3)

Regarded as having such an impairment

For purposes of paragraph (1)(C):

(A)

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

(B)

Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

(4)

(E) (i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as

(I)

medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

(II)

use of assistive technology;

(III)

reasonable accommodations or auxiliary aids or services; or

(IV)

learned behavioral or adaptive neurological modifications.

It does not take a lawyer to notice that this complex legal definition refers to, but goes far beyond, both impairments and functional capacities. We can be quite certain about this since the 2008 amendment to the original 1990 Act added, inter alia, clause (4)(E) (i) because a series of US Supreme Court decisions had misinterpreted the primary definition from the 1990 version as being limited to functional capacity. It is also important to notice that the mere fact that a person can be disabled by virtue of subsection (3) alone – namely, that the individual is “regarded as having an impairment” – makes it obvious that, as in the ICF definition, a disability can be wholly created by the effect of a person’s environment – in this instance, the attitudes and beliefs of others – without an underlying impairment.

To put the point more generally, the legal significance of laws that protect against discrimination on the basis of disability address violation of individuals’ right to participate in major life activities, such as employment, on an equal basis with others. But in the tradition of antidiscrimination law, the determination of when discrimination occurs presupposes an understanding of disability that is fully contextualized by the person’s environment. In short, it is the environment – people’s attitudes and beliefs, hiring practices, and the failure to provide accommodation – that creates discrimination, not the impairment or functional capacity.

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