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Back Pain, Work and the Disability Discrimination Act
  1. Keele University, Stoke on Trent

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    Back Pain, Work and the Disability Discrimination Act. Edited by Max Elstein. Copies (price £8) can be obtained from the Institute of Medicine Law and Bioethics, The University of Manchester, Oxford Road, Manchester M13 9PT. ISBN 1-901877-01-9.

    The philosopher, the lawyer, the employer, the ergonomist, the physician, the surgeon, the patient, and the sociologist. They are all here in this short collection of conference papers, providing a sensible thimblesize aperitif to a subject that in full book format would not attract too many rheumatologists. It is a worthwhile read, the very variety of the authors’ backgrounds providing its main attraction and underlining the complexity of back pain in the workplace.

    The rationale for the conference, which took place in 1996, was the arrival of the Disability Discrimination Act on the statute books. Essentially this states that people with disabilities should receive treatment equal to those without disabilities when being considered for employment or re-employment, and that “reasonable adjustment” of the workplace should be expected to create an environment in which a disabled person can contribute on an equal basis to non-disabled employees. Sounds simple and reasonable? Well the authors in this text certainly believe it to be reasonable in spirit, but far from simple in practice.

    The lawyer provides a chapter of prose so archetypically legal in style that this reviewer’s advice would be to take it with a stiff whisky. But it should be read, because behind the “it all depends what you mean by.....” is an important corrective both to clinical prejudice and to science’s assumption of a monopoly on truth. The lawyer searches all the time for what is reasonable—reasonable for the employee, for the employer, for society. So the definitions of “disability”, “long-term”, “likely to recur”, “substantial adverse effect”, would send the average expert on outcomes measurement apoplectic at the apparent arbitrariness of it all. But gradually you start to see the point—the steady and patient construction of a way to deal with the practicalities of a complex situation, in which everyone has rights. The dilemmas at the centre of it are made clear: when does a person’s disability mean they are actually unable to do a job, and how far should the employer change the job or job environment to ensure the disabled person can do it? In other words, at what point should a disability be accepted as a handicap in the workplace?

    The philosopher has some rather more accessible thoughts, mostly on the issues that arise from the severity of back pain being very much in the “eye of the beholder”. This is where the courts can be both accommodating, by giving weight to an individual’s own account of their problem, and fiercely conservative, demanding evidence of physical damage as a judgement on the “truth” of symptoms for example. This section seems rather naive on disability and handicap—Philip Wood on disability should be read in medical ethics departments, as well as Ivan Illich—but it is very instructive on the issue of rights and responsibilities. Whose responsibility is any particular case of back pain?—the employer who did not put in sufficient lifting hoists for example, the employee who did not use the hoist, or society, which expects jobs to be done that can never be free of back pain risk?

    I emerged from these sections wondering how back pain can continue to be a medically dominated topic when it is so clearly bound up with the basic rights and wrongs of individuals living in social groups. The sociological chapter adds fuel by underlining how the cultural nature of work, and our relation to it, is at the centre of all this. The occupational physician paints the practical implication: “Perhaps the most difficult problem experienced by workers with back pain (and hence for their employers) is where they are a middle-aged, unskilled manual worker who cannot continue in their present job, nor is there any other job (for them) in the organisation where they are employed”. Add in lack of rehabilitation and employment opportunities in society as a whole and is it any wonder that many general practitioners feel that “chronic low back pain” on the sick note has a social function rather than communicating a medical scientific truth? Even the ergonomist, who rightly emphasises that physical injury at work is a frequent trigger of the acute episode, accepts that psychosocial factors dominate the evolution of chronic back pain.

    What then is to be done? The representative of the employers points out two important implications of the new Act. Firstly, if the employers regard it as a negative issue, an issue of potential confrontation, then little may be achieved apart from improved legal salaries, important as the principles are which are contained within the Act. Secondly, the employers need to be persuaded that a positive approach to preventing back problems in their employees, and in tackling them quickly and fairly when they arise, makes business sense as well as efficiently meeting the demands and expectations embodied in the new Act. It is curious to read two of the non-clinical writers say that the general perception is that back pain is not a disabling problem. If this is true, then American experience suggests this perception will not last much longer now that the Act is in place, as 20% of the cases brought under the equivalent “American with Disabilities Act” involved back problems.

    Another public perception is that doctors’ interest in legal matters primarily concerns the size of the fees that can be charged for getting involved. This helpful conference report, complete with case histories for teaching and debate, illustrates a much wider rationale for understanding and actively participating in the debate. The often heard comment from back pain patients about the cause of their problems is quoted here: “It’s wear and tear, isn’t it?”. For doctors and employers who are inclined to stop there as well, the Act and the discussion around it will open up wider issues.