RISKVUE ARCHIVE | INDUSTRY WATCH > WORKERS' COMP

The Differences In Philosophy Between Workers Comp Law And Occupational Medicine

The terms “workers compensation law” and “occupational medicine” may appear to be synonymous — both, after all, deal with workers compensation. But there are fundamental differences between them, having consequences for the employers who must deal with them both. In dealing with a work-related injury, employers can find themselves caught between the two fields — dealing with lawyers and physicians; negotiating between a workers compensation board and a managed care organization; wrestling between viewing the employee as adversary versus patient.

The existence of fundamental differences doesn’t mean that there are no similarities. Both fields should be promoting injury prevention; evaluation of the costs of work-related injuries to employees, employers, and society; health care to any injured employee, including immediate care, rehabilitation, and retraining for those unable to resume their previous trade; and financial support for those unable to return to gainful employment or for those whose resulting impairment, handicap, or disability is not resolvable.

But despite these apparent similarities in the goals of the two fields — and the knowledge that the lawyer’s client and the physician’s patient are in fact the same person — multiple differences exist between the two fields. It is these distinctions between the claimant and the patient, the lawyer and the physician, the legal profession and the medical profession that will be identified and compared in this article.

The Practice of Law versus The Practice of Medicine

Workers compensation law is a legal specialty. Workers compensation lawyers can focus their practice on representing employers and insurers, claimants, or both. The body of workers compensation law comes from the state legislature and is administered by workers compensation judges and a workers compensation board or commission (depending on the state). Workers compensation law governs things like indemnity payments, scheduled benefits, determining the work-relatedness of an injury or illness, the cost of medical care, and protecting workers who file claims from retribution by their employers.

Decisions about anything governed by workers compensation law are made not according to truth per se, but legal truth. For instance, an injured worker is entitled to workers compensation benefits for medical care if he or she can prove that the injury was work-related. Legal truth is a relative truth that depends on whether the person who had the burden to prove something met that burden after both sides have had an opportunity to be heard. If the burden isn’t met, then the law presumes that the opposite is true — such as when the law presumes that a criminal defendant is not guilty when the state (the one with the burden) fails to prove that the defendant is guilty.

Occupational medicine is a medical specialty practiced by those physicians who treat injured and ill workers. This treatment not only involves healing the injury or illness, but also returning the worker to full functionality, including working. In contrast to the decisions made in workers compensation law, decisions about occupational care are made according to truth. A doctor doesn’t treat a patient according to what the patient can prove; rather, the doctor treats according to objective test results and observation. In contrast to the lawyer’s interest in determining the causal relationship between the worker’s job and the injury, the doctor is concerned with the injury’s etiology — the cause of the condition in terms of a medical diagnosis.

Law and medicine — both ancient, honored, and learned fields — interact. Their interactions occur in many public theaters, including medical malpractice trials, hearings and depositions, state regulation of medical practice, contracts with provider networks for care, the hospitalization and forced treatment of psychotic individuals, federal regulation of prescription drugs, the evaluation and payment of disability claims under social security and, of course, workers compensation.

Socrates versus Aristotle

The difference between law and medicine can be traced back to ancient Greece when Socrates, the founder of Socratic irony, interrogated his students with the ultimate purpose of making them admit ignorance and a willingness to learn. Aristotle, on the other hand, was the originator of the scientific method, which sought truth on the basis of making a hypothesis, conducting experiments and making observations, and then validating or rejecting the hypothesis.

Socrates and the Trial for Truth

The legal profession co-opted Socratic irony in developing the Socratic method. The American Heritage Dictionary defines the “Socratic method” as:

Employment of Socratic irony in a philosophical discussion resulting either in a mutual confession of ignorance with a promise of further investigation or in the elicitation of a truth assumed to be innate in all rational beings.

The legal profession uses the Socratic method in the teaching process known as the casebook method (i.e., studying legal decisions in order to elicit truths about the law) and during legal decision-making, where the “right” decision emerges from the adversarial (or argumentative) relationship between defendant and plaintiff. This method has evolved — along with the concepts of res judicata (a principle which bars the same parties from relitigating the same cause of action if a final judgment was issued) and stare decisis (the rule of American law, which requires courts to abide by already decided cases on substantially similar facts) — to close further arguments or discussions in order that some truth can be decided upon.

The use of the adversarial system to resolve disputes is used in almost all legal matters, including civil trials, criminal trials, workers compensation hearings and adjudications, and social security disability insurance hearings and appeals. It occurs when both sides to a dispute have an opportunity to be heard and present evidence and a judge or a jury determines who and what to believe. It occurs whenever a court reporter or a recording device is used to record the event word by word for a possible review by a higher court in the future. It occurs at the appellate level when the parties have an opportunity for oral argument (when the appellate court uses the Socratic method with the attorneys for each side) and writing a legal brief (when the attorneys argue on the basis of stare decisis).

Aristotle and Trial and Error

The Socratic method is diametrically opposed to the scientific method, which was originally developed and explored by Aristotle and has since been perpetuated in the sciences, including the parascience of medicine. This method of thinking relies on the idea of reproducible experiments (not arguments) to prove ideas. In contrast to legal argumentation, medical disagreements — say, when two treating physicians disagree about a diagnosis or plan of treatment or the use or dosage of a specific drug — are resolved by calling on another physician or obtaining more detailed tests. Disagreements about diagnoses in workers compensation can prompt a flurry of MRIs, CT scans, sonograms, fluoroscopies, and the like. Acquisition of more test results and appeals to specialists and independent examiners are made until the necessary parties to the case agree on the diagnosis and treatment plan — or a workers compensation judge decides for them.

Care Versus Cost of Care

Much has been said in the media and in the industry about managed care. To correct the terminology, though, the concept of managed care is not about care — it’s about managed cost. With managed care’s codification in many workers compensation statutes, medical care is limited, reviewed, and accounted for by people other than the treating physician. Here, we hear things like “necessary” and “reasonable costs.”

Managing the cost of care is juxtaposed to the straightforward concept of care, which is measured by the need of the patient to be relieved of real or perceived symptoms or complaints, regardless of who is financially responsible. Medicine is concerned with care that will diminish, prevent, eliminate, or decrease the need for further care in the future. Medicine seeks to lessen future impairments, handicaps, and disabilities even though the cost may be greater than the economic benefits of that care.

Impairment Versus Disability

Another distinction between medicine and law is the difference between the medical conclusion of being “impaired” and the legal conclusion of being “handicapped” or “disabled.” An impairment is a medically definable loss of use of a body part. The American Medical Association clearly defines impairments in the AMA Guides to the Evaluation of Permanent Impairments, providing mathematical conversion charts for certain degrees of loss of motion — or percentage loss of muscle function or loss of body parts — to a percent of whole-body impairment.

Impairment should not be confused with a disability, which is a loss of ability to earn a living or practice a trade or a profession. And neither impairment nor disability should be confused with handicap, which is an interference with activities of daily living. To see the difference among the three terms, consider a justice of the U.S. Supreme Court who becomes a bilateral amputee and a professional violinist who develops a lesion of the finger tip of his left hand. There is no question as to the degree of impairment to the justice — he has lost two limbs. However, the justice will probably experience no loss of income and can continue to be active in hearing and deciding cases. Therefore, the justice has a measurable impairment, a severe handicap, but no disability. In contrast, the violinist has a barely measurable impairment, no handicap, but a total disability as to his career as a violinist. However, depending on the violinist’s age and other skills, it is unlikely that he would be judged disabled in general, since he could still learn and go on to perform a new trade.

Bridging The Divide Between Medicine and Law

Occupational medicine is a branch of science involved in the search for truth and the care of patients. Workers compensation law is a search for relative truth (e.g., work-relatedness), the cost of care, and upon whose shoulders the responsibility for the cost of that care will rest. Occupational medicine can prevent, treat, and measure impairments. Workers compensation law can measure disabilities and handicaps as a result of impairments and attempt to reimburse workers for their disabilities with indemnity payments and casually related care.

Employers often find themselves caught in the divide between occupational medicine and workers compensation law. But because they belong to neither camp, they can help provide a balance that brings them together — working to make the injured employee whole medically and legally — rather than to the battlefield of a contested claim.

ABOUT THE AUTHOR

The Journal of Workers Compensation is a quarterly review of risk management and cost containment strategies published by Standard Publishing in Boston, Massachusetts. For more information, please visit our web site, www.standardpublishingcorp.com, or contact the editor at 800-682-5759, extension 222, or subscription services at extension 228.

riskVue | The webzine for risk management profesionals
January 2001