Judge David B. Torrey

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm. Boy, does this ring true. – KC

My friend and colleague, Professor and Judge David Torrey, with whom I serve on the Board of the College of Workers’ Compensation Lawyers, recently posted this blog in response to an insurance industry speaker’s exhortation that injured workers should “ get off their asses” and get better. Here’s his moving response:

Many in the workers’ compensation community complain that seriously injured workers can develop a disability lifestyle, become dependent on drugs, and unreasonably extend their disabilities. Instead of falling into such a lifestyle, these critics argue, disabled workers should show “resilience.” This rhetoric, which I have written about before on this blog, has its genesis in progressive medical/rehabilitation thinking, Muscular Christianity (I think), and, realistically, employer/insurer cost considerations.

The complaint is legitimate, and one with which I have some sympathy. I also believe that some legitimately injured workers do indeed unreasonably extend their disabilities — if only waiting for a generous lump sum settlement. Many readers will know of the sharp critique of this type advanced by Dr. Nortin Hadler in his many books.

On the other hand, the “duty-of-resilience” critique can go too far, and is often articulated in overly simplistic terms. At my agency’s conference in Hershey, Pennsylvania (June 7-8), an articulate industry speaker, addressing an audience about medical marijuana, posited forcefully that the “choice between opioids and medical marijuana [for chronic pain patients] is a false choice….” What workers need to do, instead, is show some resilience and “get off their asses!” After all, a friend of his, who is partially paraplegic, has shown resilience and will often go hiking with him. If she can do it, so can others!

I believe the speaker knew his audience and thus took some pleasure in feeding these lions of the community some red meat, and indeed they rewarded this coarse declaration with a leonine roar of applause.

Yet, his panel partner, Dr. Michael Wolk, thereupon gently reminded the industry speaker — and the audience — that not all people respond to pain and other impairments the same way; indeed, he posited that science has shown that one’s genetic make-up can affect the ability to be resilient.

Dr. Wolk (my God, an astonishing speaker) might also have remarked, as have other physicians at our Pennsylvania conferences, that heroism is not appropriately considered the recovery standard in the first place. Commentators like the industry speaker, talking about resilience, often invoke exceptional individuals, like Christopher Reeve, but most of us realize that not everyone is Superman.

This point was vividly made two years ago in the memoir, A Body Undone: Living on After Great Pain (NYU Press 2016). The author, Christina Crosby, a professor at Wesleyan University, was rendered quadriplegic in a cycling accident, and has been left with chronic pain as well. She recounts in her memoir what life is like with such a catastrophic injury, shows that she indeed has great resilience — but leaves the heroism narrative behind. She makes clear that her circumstances, like education; a life of reflection and discipline; and the unflagging love and support of her family, make her ability to bounce back possible. Most of us know that not every injury victim will have these advantages. (My complete review of Professor Crosby’s book is posted at the research website www.davetorrey.info.)

Is all this not common sense? We have known for a century, after all, that young men respond differently to their traumatic wartime exposures. Some show a grim resilience; some are troubled for life, but are able to continue on; some are broken. In the modern day, most of us would not address such veterans with the admonition that they get off their asses. Injured workers deserve the same respect.