Pain and the Workers Compensation System
Grant Duncan
From their inception, workers’ compensation schemes, and similar systems of financial support for sickness, injury and invalidity, have been subject to the suspicion that their very existence can become an institutional cause of disability. Since the 19th century, therefore, one notices recurring controversies about vague and hard-to-diagnose conditions, such as miners’ nystagmus and traumatic neurasthenia, and in more recent decades, occupational overuse syndrome and chronic low-back pain. It is often suspected that the complaints may be factitious, that they exist only because financial compensation exists, and that, once covered by a compensation scheme, the process of rehabilitation is further delayed by fear of the loss of entitlements. The term ‘compensation neurosis’ arose to suggest that the provision of civil or statutory financial compensation for personal injury may cause ‘impairment’ and prolonged disability (Duncan, 2003).
Naturally, this can be a source of concern for the physician who is required to make diagnostic judgements knowing that financial, as well as purely medical, concerns are at stake; and the doctor–patient relationship could become strained if adversarial negligence actions or disputes with compensation authorities start to dominate the patient’s thoughts about his or her health and physical ability.
A skeptical attitude towards compensation gains some support from behavioural theory and research findings. The biopsychosocial model of pain has tended to adopt a fairly simple behaviourist theory, from which it would follow that complaints of injury-related pain disorders are reinforced by the prospects of financial gain and exemption from onerous duties (Fordyce, 1995). A number of studies in rehabilitation have suggested that compensated cases take longer to recover and return to work than those not in receipt of compensation (e.g., Greenhough and Fraser, 1989). And economic theory, which tends to focus on the effects of external incentives, also chimes in with conclusions that support policies that would reduce the generosity of compensation entitlements (e.g., Butler, 1994).
This author accepts that the design of compensation schemes does make a difference to the success of rehabilitation, but urges that a less simplistic attitude towards the effect of compensation needs to be considered. The studies referred to above are not able to control for variables that are known to be significant for return-to-work (Duncan, 1996), and the simple conclusion that compensation has a negative effect on rehabilitation fails to account for a few simple facts. For example, if wage-replacement compensation were a behavioural reinforcer, then those who receive the greatest amounts (those who have the highest pre-injury incomes) would presumably have a greater frequency and longevity of claims. But higher-paid workers are less likely to apply for it, and more likely to return earlier.
Furthermore, it has been found in New Zealand that those who rely on compensation for more than three months tend to end up with lower incomes after claims termination than a matched non-injured control group (Chrichton, Stillman and Hyslop, 2004), suggesting that the experience is hardly an economically rewarding one.
It is undeniable that cases do arise where the pursuit of compensation – or sometimes simply the desire to prove the compensation authority wrong – may have become a primary motivating factor in the patient’s life, and this could clearly be an obstacle to prompt rehabilitation. Such cases are rare, however prominent they may be in the minds of those who deal with them.
This presentation will thus consider some of the means by which New Zealand’s ACC scheme deals with chronic pain. This will include the place of pain in the determination of ‘vocational independence’ or work-capacity assessment.
It is concluded that, rather than attack the injured worker’s right to compensation, the process of rehabilitation is better supported by legislation that prevents litigation (either civil or statutory), puts principles of ‘no fault’ into direct practice, reduces the burden of proof on the claimant, settles claims promptly, and hence is able to focus constructively on rehabilitation issues instead of compensation. Compensation for ‘pain and suffering’ per se should not be provided, and pain should not be treated as an insuperable barrier to engagement in work, but the objective should always be ‘complete rehabilitation’.
References
Chrichton, S., Stillman, S. and Hyslop, D. (2004). Returning to work from injury: longitudinal evidence on employment and earnings. Wellington: Statistics New Zealand.
Butler, R.J. (1994). Economic determinants of workers’ compensation trends. Journal of Risk and Insurance, 61, 383-401.
Duncan, G. (1996). Is compensation bad for your back? Australian Journal of Rehabilitation Counselling, 2(2), 128-139.
Duncan, G. (2003). Workers’ compensation and the governance of pain. Economy and Society, 32(3), pp. 449-477.
Fordyce, W.E. (ed.) (1995). Back pain in the workplace: Management of disability in nonspecific conditions. Seattle WA: International Association for the Study of Pain Press.
Greenough, C.G. & Fraser, R.D. (1989). The effects of compensation on recovery from low-back injury. Spine, 14, 947-955.
Time of Presentation
1330
