Legal Dimensions of Disability Evaluation: Work Disability and Human Rights

Abstract

Viewed in light of its historic origins in the political need to distinguish the “worthy” from the “unworthy” poor in the seventeenth century and, in later centuries, the reliance on the medical profession to provide the authority for disability determination, the legal dimensions of disability evaluation can be reduced to the simple legal requirement for certainty and administrative convenience. From this perspective, all schemes of disability evaluation in use around the globe can be legally assessed in terms of their reliability, consistency, transparency, and administration cost. There is, in this sense, no legal concern for a scientifically correct model of work disability. For this reason, the legal argument for using the ICF for disability evaluation is quite weak. The lawyer will ask whether the disruption in current practice would be worth the scientific improvement that the ICF would bring about, and the chances are the answer will be no.

Yet, there is a very strong case to be made that outside of the restricted borders of disability evaluation, and in light the law of equality and human rights, the ICF conceptualization of disability has profound legal resonance. In this broader context, with its entirely different historical antecedents, there is indeed a “correct” conception of disability: it is that which captures the universal lived experience of people, their needs, and the contexts in which they live and act. From a human rights perspective – which is a more fundamental legal perspective – it is very much a legal concern that people with disabilities are limited in their participation in employment, not because of their health condition, their impairments, or their functional limitations, but because of the barriers created by features of their physical, human-built, attitudinal, social, and political environment.