The Disabled, the Disallowed, the Disaffected, and the Disavowed

Disability determination in the past century was an experiment. Its design borrowed on two notions about the desired outcome; those with work incapacity were to be served, whereas those who had only the symptom of work incapacity were to be denied.

This dichotomy is a distortion of the Judeo-Christian-Islamic ethic, but it is an ancient distortion that took seed readily in the fertile soil of industrialization. The experiment of the past century was in implementation of the dichotomy, not in revision.^* That experiment has failed. It leaves in its wake pervasive misconceptions and a powerful, entrenched, sizable establishment dependent on its perpetuation. The current century might be ready to test alternative designs for alternative outcomes once the forerunner is unmasked.

STRATIFICATION OF WORTHINESS

The end of the 19th century was a time of burgeoning industrialization. The very structure of western society was turning upside down. Heavy industry was creating mass transportation, mass communication, massive urbanization, and a new ruling class. Barons of industry took their place, even displaced barons by birth. It was a new social stratification without a tradition of noblesse oblige. It was a stratification that exacted a terrible human cost. The working person and child risked longevity, if not life and limb, for meager reward and no security. Upton Sinclair, George Orwell, Karl Marx, Jack London, and many others bore witness to the ephemeral tranquility of all too many in the labor force and the desperate plight of any who found themselves unemployed. No wonder the end of the 19th century witnessed the birthing of the labor movement, the plaintiffs’ bar, and organized social activism. World order was edging toward dissolution into revolution.

Enter Bismarck. The Prussian legislature assuaged the growing resentment with a series of statutes that proved consistent with the world view of all “stakeholders” in their constituency. Remarkably, Bismarck’s “welfare monarchy” resonated with “stakeholders” throughout the industrializing world who adsorbed it, albeit often piecemeal, as their statutory own. Throughout the 20th century, the Prussian paradigm passed from parent to child as an axiom. It is not. It is but another social construction.

The Prussian paradigm is a national disability insurance scheme (Table 10.1). At its foundation is universal health insurance. On this foundation, it offers financial awards based on a stratification of worthiness. For anyone who can work, there is to be no income substitution. For those who have seldom, if ever, worked because of some pervasive incapacity, the award is income substitution at a subsistence level. For those who have worked but find themselves globally incapacitated by some catastrophic illness, the income substitution is a bit more generous. There is a third category to denote those whom the Prussian world view and the labor movement deem most worthy: the worker whose incapacity is a consequence of an accident that arose out of and in the course of employment. That person is guaranteed income replacement so that earnings are not compromised. Thus was born the distinction between various levels of invalid pension and Workers’ Compensation Insurance.

Given the historical precedent and the dialectic that drove the Prussian reform, it is no surprise that injured workers were singled out for special consideration. For that reason a special fund was established to provide more than reassurance that injured workers will never again live in fear of being put out on the streets; it was to guarantee that everything possible will be done to return them to full health. Short of that, they would not even experience a compromise in his wages even
if they experienced a compromise in their wage-earning capacity. The principles underlying Workmen’s Accident Insurance were to ennoble the worker and compensate workers without stigmatization for the great sacrifice they made on behalf of the “common good” in an industrialized society. For that reason, the insurance scheme was labeled an “accident” or, elsewhere, a “compensation” program rather than the more demeaning terms reserved for other categories of disability. Given its largesse, it rapidly became an entitlement, a sacred cow of the union movement. It proved highly acceptable to management as well. After all, it reduces the financial risk incurred by any particular employer, and it tends to defuse culpability. The last factor did not go unnoticed in an age when the plaintiffs’ bar was gaining power.

TABLE 10.1. SALIENT FEATURES OF THE PRUSSIAN PARADIGM FOR REDRESS FOR THE ILLNESS OF WORK INCAPACITY

Level of worthiness	Insurance fund	Indemnification
Work incapacity is a consequence of work-related injury	Workmen’s Accident Insurance	Wage replacement until worker is able to return to prior work Medical care and rehabilitation Permanent partial awards
Work incapacity is a consequence of illness in a wage earner	Public Pension Insurance	Wage replacement for a finite period while receiving treatment and unable to return to the same job Medical care and rehabilitation Some level of monetary transfer if global disability persists
Work incapacity in one who was never a substantial wage earner	Public Aid	Sustenance Medical care

This stratification must have seemed equitable at the time judging from the way it was embraced across Europe. It was particularly seductive because it was grounded in a medical science held to be incontrovertible. Prussian medicine dominated the medical thinking of its day; it was held in awe. It had subjugated the French tradition of artfulness at the bedside and the British tradition of inferential reasoning at the bedside to dispassionate, distant, scientific reductionism.¹ By 1911, Prussian tenets of scientific reductionism were the thrust of medical education across the industrial world, from America² to Japan,³ and remain so today. It was held that only if the “basic” principles underlying medical issues were dissected out and analyzed individually and in isolation would valid constructs emerge that would generalize back to the bedside. The idea is that by studying the trees, one will understand the forest. Studying the forest itself was fraught with the phenomenologic and therefore unworthy.

Because of such reasoning no one could imagine that defining an injury would prove difficult. After all, everyone envisioned the violent event with damage as the outcome. No one could imagine that healing was an indistinct endpoint. And no one could imagine that disability determination would prove so quarrelsome; after all, could it not be grounded in the medical determination of pathoanatomy, that is, of impairment? If you are not sufficiently impaired, you cannot be disabled. Such naiveté. Each of the three modes for clinical decision making (Table 10.2) is no match for reductionistic thinking; they are multivariate, value-laden processes. The Prussian paradigm was doomed from the outset. It is ponderous and Kafkaesque. Rather than a hue and cry, rather than questioning if not abandoning the scheme, Europe takes it to its bosom.

TABLE 10.2. CLINICAL DECISIONS THAT ARE THE UNDERPINNINGS FOR THE PRUSSIAN PARADIGM FOR PROVIDING REDRESS FOR THE ILLNESS OF WORK INCAPACITY

Clinical decision	Criterion
Determine causation	Injured? In the course of employment?
Determine consolidation	Can anything more be done to cure, treat, or rehabilitate?
Determine disability	On the basis of the magnitude of pathoanatomic abnormality (impairment), can disability be inferred?

This schema rested particularly uneasily with the body politic of the United States throughout the 20th century. First, national health insurance has not been adopted to this date. Second, throughout the first half of the 20th century, Congress was unwilling to adopt any element of the schema. Workers’ Compensation Insurance schemes were legislated state by state and remain the only legislated health insurance to indemnify redress exclusively for work-related injuries. There was to be no national Workers’ Compensation Insurance program because of arguments relating to funding; a nationwide surcharge on goods to cover the cost was a form of taxation without representation. That was anathema. But the precepts of Workers’ Compensation Insurance caused no such cognitive dissonance. After all, defining a work-related injury seemed straightforward—either you were injured or not. Compensating for lost wages likewise seemed straightforward-a monetary value was “scheduled” for any damaged body part: so many weeks’ salary for loss of a finger, more for loss of a thumb, still more for loss of an eye, and so forth.

Impairment as the Touchstone for Veracity

The Prussian construct seemed feasible and reasonable in its day but for one conundrum. How does one determine whether there is any work left in the person, the disability criterion for its invalid pension schemes? And how does one determine how much work is left in the person, the criterion for the Workers’ Compensation Insurance award? Prussian medicine provided the solution in terms of scientific reductionism, the creed that had carried Prussian medicine to the pinnacle in its day. The basic tenet was that there must be some pathoanatomic or pathophysiologic determinant of all illness, even the illness of work incapacity. If someone is claiming work incapacity in the absence of a demonstrable pathoanatomic explicator, the plaint should be questioned, and the claim should be denied. If this is your belief, the corollary follows. One need only quantify the pathoanatomy to determine how much work is left in the person; thus was born “impairment-based disability determination.”

These precepts rested easily in Prussia and most of the industrializing world—but not in the United States. Well after World War II, spokespersons for leading American medical organizations were still arguing before Congress that scientific reductionism did not apply to disability determination and, furthermore, that disability determination was not a proper medical role. Asking the physician to determine whether his or her patient was disabled was to ask the physician to sit in judgment of the patient, thereby violating trust and perturbing the therapeutic relationship. Asking a physician to exercise “impairment-based disability determination” for the patient of another physician was a sophism. By the 1950s, Congress had heard enough of such arguments; Social Security Disability Insurance was legislated with disability determination to be impairment based (Table 10.3). The American Medical Association Guides followed. The debate was squelched. Today, organized medicine applauds impairment-based disability determination, and American physicians seem all too ready to rally to its calling.

TABLE 10.3. THE AMERICAN FORM OF THE PRUSSIAN PARADIGM FOR DISABILITY INSURANCE

Recourse for those who “cannot work”	By virtue of
Workers’ Compensation Insurance	An injury that arose out of and in the course of employment
Social Security Disability Insurance	Illness rendering a worker incapable of substantial gainful employment
Supplemental Security Income	Illness rendering one who has had no major employment experience incapable of any substantial gainful employment

Part of the capitulation related to the evolution of medicine’s role in Workers’ Compensation Insurance. Scheduling proved inadequate early on; separate laws were necessary to cover toxic exposures, for example. Then, in the 1930s, regional back “injury” was invented, a new semiotic that resonated with all whom were parties to Workers’ Compensation Insurance schemes. This, too, is a social construction that renders incapacitating regional backache compensable. The spine surgeon assumed responsibility for certifying the “injury,” resorting to violating vertebral lamina as the gold standard for certainty. The American workforce bears a disproportionate percentage of the scars of such an algorithm. The American workforce is not demonstrably better off for the surgical exercise. It is not demonstrably better off for the social construction of back “injury” either. The “injury” construct presupposes that the cause of the injury lurks in the physical content of tasks and predicts that remedy will follow from modification of that exposure. These delusory presuppositions have set back worker health and safety some 50 years. As will become clear in Chapter 11, in the past decade scientific analysis of the multifaceted dynamics of compensability for incapacitating regional back and arm pain has elucidated why the workforce has been so poorly served by the “injury” construct. The incidence of regional back “injuries” is a reflection of disaffection in the workplace. Ergonomic “stressors” have little, if anything, to do with it. Rather, it is the psychosocial context in which one labors that thwarts coping with the regional musculoskeletal disorders that are intermittent and remittent predicaments of normal life. The complaint of work incapacity for a regional musculoskeletal disorder is more likely to be a surrogate for the plaints of job dissatisfaction and the absence of job alternatives. Workers’ Compensation Insurance is providing recourse that is missing the mark in more ways than one; it offers a gauntlet rife with disappointment, disillusionment, and iatrogenesis.

We find ourselves, fin de siècle, with a stratifying society and a sizable population dependent on various income replacement and income substitution schemes. True, we do not think we have 15% of the population destitute and on the streets, as was the case in London a century ago. But we have that number and more that might be were it not for the potpourri of recourse. The past decade has seen the start of a dismantling of the Social Security Insurance welfare schemes (Table 10.3)
formulated in the 1960s to supplement the Prussian precedent, notably subsistence for children of families bereft of wherewithal. Now, as in an earlier time, parents, single or not, must work if they are able to qualify for any supplemental support. This resurgence, as “workfare,” is driving adults into the lowest rungs of the workforce at a time when such jobs would go begging otherwise. The results of this shift in policy will unfold in the decade ahead. What is gained by forcing people on the public dole to the ranks of the working poor? “Workfare” is just one symptom of the unease with which advanced societies view the complicated matrix of recourse that mires some 15% of the population in the welfare state, many, seemingly, to abandon all hope of higher ground. Well represented among the 15% are those who have the illness of work incapacity.

Citizens’ Dividends

Prussia was the fountainhead for the welfare state of the 20th century. That does not mean that Prussian legislation metastasized to other advanced countries without alteration. The legislation remains close to the Prussian template in the United States and Japan,⁴ but only in the United States does implementation also follow suit. Other democracies temper the Prussian approach to fit each divergent body politic. Most experiments relate to definitions of injury and compensability. No experiment has tested alternative approaches to disability determination. All democracies continue to struggle with the judgment as to worthiness.⁵,⁶

The 20th century witnessed another great social experiment at least as important as the promulgation of the welfare state. Socialism and its variants, Marxism and communism, were vanquished from Bismarck’s Prussia only to take root and flower contemporaneously in Russia and then to spread rapidly into Asia and Eastern Europe. For socialism, worthiness is a birthright. This belief tests the mettle of the human predicament. Will we strive without personal recognition and reward? Can we subjugate our personal ambitions to the needs of the state and the betterment of those whom we view as less ambitious or less capable? One legacy of the 20th century is the failure of such a social ordering. But in its failure, and in the giddy triumph of capitalism, the lessons that might unravel the worthiness conundrum for our “welfare state” are lost.

There have been experiments in income distribution that have no “worthiness test,” yet fall far short of socialism. The precedent was set in England. On May 6, 1795, several Justices of Berkshire and other men of power met in the Pelican Inn in Speenhamland (now part of Newbury) to consider solutions to a pressing social problem. The rural poor, not just the infirm but also the able bodied, were desperate. True, Britain was growing a powerful empire to fuel its embryonic industrial infrastructure. But equally true, Britain had recently suffered the loss of its American colonies and embarked on yet another war with France. The economy did not favor the agricultural laborer who was to see open access to planting fields restricted while the cost of food increased precipitously. Many came to rely on charity from the rich. Many were forced to pilfer to survive and when caught were to be the “criminals” that populated British penal colonies. These justices and gentry emerged
from the Pelican Inn to pass into law the “Speenhamland system,” which was embraced by magistrates across the agricultural south of England until its demise in 1834.⁷ It was believed that an adequate minimum wage should be suggested to farmers, even encouraged, but should not be enforced. Rather, if a laborer’s earnings were insufficient to meet minimum subsistence requirements, the difference between wages and needs would be paid out of the “poor rate,” a general tax-based source of revenue. The Speenhamland system seduced so many jurisdictions because it further stipulated the level of the safety net; the necessary minimum was calculated on the basis of the current price of a “gallon-loaf” of bread and the number of such loafs deemed necessary to feed a man and his family. Thus was born the principle of a guaranteed income. Worthiness was not the issue, just income maintenance adjusted for the cost of bread. William Pitt’s Parliament was soon to pass an enabling act.

The Speenhamland system existed for 39 years despite continuous controversy and debate. It was argued that employers had no incentive to pay a living wage because the burden of falling short was distributed among all the “ratepayers” including those who employed no laborers. They may have had less than no incentive. Another statute, the Gilbert Act, had been legislated in 1782, which was designed to ease some of the harshness of the Poor Laws that governed recourse for the destitute. Before the Gilbert Act, laborers seeking charity and deemed able bodied would find they were groveling in a “workhouse.” The Gilbert Act empowered parishes to find employment for such wards outside the workhouse. These “roundsmen” represented a pool of very cheap labor, sparing the employer the issue of adequately compensating a worker under the Speenhamland system. It is no wonder that agricultural laborers found themselves in a vortex. The brunt of the blame was directed, with Malthusian righteousness, toward the fashion in which the Speenhamland system perverted the character and resourcefulness of the English working class. The concept of a “guaranteed income” carries with it the taint of the Speenhamland experiment forever more. There remain scholars, and politicians, who are quick to champion the moral fiber of the working person and decry the ethic of employers who were willing to take advantage of the flaws that beleaguered the Speenhamland system. What is clear is that there were too many confounders to consider the Speenhamland system a fair test of guaranteed income as an alternative to the Prussian welfare state.

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