Compensation and the Ineradicable Problems of Pain

Abstract

Although recovery for pain and suffering has received extensive attention in the tort law context, pain is a troublesome and largely unexplored area in the vast world of nontort compensation programs. This article analyzes the role of pain in the nontort compensation context by focusing on two major nontort compensation programs: social security disability and workers’ compensation. Both programs have tried to cope with pain-related issues but have produced a haze of confusing and often indefensible standards. After analyzing pain-related decisional and measurement issues in these contexts, the article suggests some guidelines that should be considered in evaluating any nontort compensation program, existing or future. One is the “selection decision” - a system’s choice about which categories of pain-related losses, if any, should count in the compensable loss calculation. The second is the “measurement decision” - a system’s choices as to which measurement standards to employ in evaluating compensable pain-related losses.

Keywords: pain, workers' compensation, social security disability, disability

JEL Classification: J33, I12, K41