Sunday, May 1, 2016

Kentucky Celebrates a Centennial

2016 is a momentous year for Kentucky. The Kentucky workers' compensation system and statute is 100 years old this year, the grand Centennial. The luminaries of Kentucky workers' compensation gathered at the Buffalo Trace Distillery in Frankfort on April 29th to reminisce about where they came from and what they remember. It was a jubilant crowd. I met a great many new friends, and ran into many more whose presence at various national meetings has previously facilitated our paths crossing. 


I was introduced to Attorney Wayne Daub, one of a large committee of organizers. His name tag instead read "John Dorsey" however. Thus, he was a walking trivia question for the evening, and the audience was later asked why that name? Commissioner Dwight Lovan and Board Chair Michael Alvey were quick to raise their hands, but was not called upon. The dinner host, former Chief ALJ J. Landon Overfield, likely knew that these two knew the answer and seemed to purposefully avoid their gaze. He called on a few from the audience and there were guesses, but none correctly identified John Dorsey as the adjudicator that wrote the opinion finding the 1916 Kentucky act constitutional. 

I was there to deliver an address. When invited, I thought "what do I know about Kentucky workers' compensation?" As I thought about that, it occurred to me that despite knowing little about the details, I do understand it. Thus, I found myself hundreds of miles from home on a Friday evening celebrating workers' compensation. In the audience were a few dear friends, and what I expected to be many strangers. But I realized that this is a community in which I can naturally, and almost effortlessly integrate. These were my people, comp people. There might be differences in dialect, but we all speak the same language of workers' compensation, much of it littered with our acronyms for benefits and medicine. We have so much in common despite our differences. 

I noted at the outset of my address that workers' compensation is too often derided. Corporate lawyers and tort lawyers and others look down on this practice. But, as I told the assemblage, I have met some of the best attorneys I know in workers' compensation, on both sides of the bar. These professionals bring an unparallelled knowledge of medical issues and statutory interpretation. I am constantly amazed at their intellect, imagination, and dedication. I would stack a great many workers' comp attorneys against the best in any practice.

I related some anecdotes from practice so many years ago. I have learned a great many lessons over the years from various attorneys and clients. The most important of these have not been about the law or procedure. They have been about people, and when you boil it down, that is all that workers' compensation is about - people. This is true about the people that own and run businesses and the people that work there. The human element in workers' compensation is omnipresent. Every work injury affects human beings, plural.

Being that it was a historical event, I reflected trying to recall when I learned of workers' comp. I took a great many insurance classes in college; I cannot recall every hearing of workers' compensation. I suffered a work accident decades ago when I drove a large box truck through a three bedroom house one morning. We crawled out the windshield, stepped through a maze of broken furnishings, and were taken to the hospital. I was provided medical care and missed several days from work. I do not recall hearing of workers' compensation then, though I am sure that is how the bills were paid. 

I consistently hear of professionals that "fell into" workers' compensation. I have run into very few that ever charted a course to this vocation, but so many of us have arrived here. And as I looked around the room, I realized that a great many commiserated with this description, and felt that they too arrived in this profession through some fate or "cosmic accident," rather than some conscious plan.

I explained to the audience in Frankfort that I am often asked what is wrong with workers' compensation. I think its greatest failure is that the general population simply does not know that it exists and what it does for them. Because of this, workers' compensation receives attention when something within it becomes noticeable or newsworthy, usually in a small and anecdotal manner. Some element of this Grand Bargain catches attention because in a particular situation it becomes expensive, newsworthy, or egregious. Too often the news is only interested if the word "fraud" can be included in the headline (Don Henley reminded us, "we need dirty laundry"). 

But, an incredible volume of people across the world suffer work injuries every day. The vast majority of them receive medical care, likely miss some work, and return to their jobs. They might not get all they want (who of us does), but for this silent majority, perhaps workers' compensation delivers what they need? When I left the stage, several people described their personal experiences following work injuries in this same way. Some had lasting effects (permanency) and others not. But they were all in this lucky majority that the system, overall, serves so well. 

We all know there are others who do not enjoy a full recovery. There are a multitude of reasons, but some enter this system and in this system they stay. They do not return to work, but find themselves in a long-term relationship with a system that can sometimes be perceived as uncaring and unresponsive. They will be in contact with the insurance company periodically, often finding their call about a medical issue or a late check answered by a new adjuster or representative. There is turnover in any industry, but I hear from injured workers that they perceive the turnover in adjusting to be notable. 

Each transition to a new adjuster means some lack of familiarity. Adjuster files become voluminous in some instances, and the worker who has been "in the system" long-term may find that this new adjuster has not read more than the "latest volume" of the file. S/he might be reasonably familiar with the current medical care, but may only be peripherally aware of events in care from last year or last decade. Any human connection established today may be fleeting as the humans involved move on and new humans enter the relationship. Similarly, these injured workers may feel over time an ever-decreasing sense of connection to the employer and the job that instigated the injury playing such a role in their lives. 

I have heard a few cases, issued hundreds of trial orders. I have represented clients in automobile cases, products cases, appellate cases, medical malpractice cases, homeowner cases and even a few civil rights cases. I have argued cases, prepared trusts, written memos and briefs. I have analyzed and strategized. I have represented some of the biggest companies in the world, and some very special individuals along the way. I reflect on the years I spent practicing and I had some amazing opportunities to learn about life, people, and the law. Workers' compensation has taught me a great deal. 

From this background, I can attest that workers’ compensation can be as complex and intellectually challenging as any legal process I have experienced. The issues are sometimes intriguing, both legal and medical. There are sometimes workers' compensation cases that are straightforward, but any of them can become complicated, confusing, and even perplexing. This is not necessarily a reflection on the practice or the industry. Perhaps it is because workers' compensation is a reflection of the humans involved in it, and we humans can be complex and complicated. 

We know how challenging workers' compensation can be. We know the dedication and focus that are required by it. We know the investment of time and effort that is made in the system and the people affected by their involvement in it. We know. We in this system have to recognize the devotion and the effort and the effects. Because, unlike the great majority, we know about the system and what it contributes as a safety net. We know the value it brings. We know, and it is up to us to give a periodic pat-on-the-back to those who are so focused, dedicated and professional in its implementation and performance. 

As I reflected on Kentucky's 100 years, and as so many states celebrate their centennials this decade, I return to pondering the future of this workers' compensation. I find that is not so hard to predict. I predict there will continue to be challenges (not really out on a limb here). 

There will have to be. There is a finite volume of resources in society and there will be disputes in allocating those resources. Accidents will happen, and there will be expenses and economic loss associated with those. This system, and others, will struggle to allocate that loss in a manner that is deemed acceptable. Even the seemingly "deep pocket" of the federal government is struggling to allocate limited resources. Capitation and other limitations are likely to affect programs like Medicare and Medicaid, which are already subject to fee schedules and regulations, limitations, and complexities. 

There will be challenges. A segment of our work force will age. The "Boomers" and their values are prevalent in the workforce, and their presence has been felt for decades. Health is improving overall, and people seem to be staying in the workforce longer., so even as they decrease the Boomer influence is destined to remain in coming decades. "Millenials" are a newer force, bringing their values to the workforce, and representing the future (I had to remind one attendee who lamented this generation that they are simply destined to out live the rest of us, get used to them). They will rise to prevalence as the Boomers retire. But, before they feel too confident in their supremacy, they should consider that yet another generation of American worker will follow them and perhaps they will someday similarly struggle to understand and adapt to that next generation (its not new, I remember my grandfather saying "the trouble with these kids today" in the 1970s, referring to those same "Boomers"). 

I appreciate this chance to reflect on the path workers' compensation has travelled. The speakers' comments Friday night in Frankfort were littered with personal experiences. Some have seen industries or companies come and go. Some have seen livelihoods change, communities change, families change. I was particularly touched by the many references to Kentucky's coal industry, a hard life, a dangerous life, but one that provided support and livelihood for so many Kentucky families. And yet, an industry that has declined and whose impairment has left unemployment and to some degree despair in its wake. 

Work has been a fundamental element of our lives, and is likely to play some role in our future despite growing influences of technology. And our future is therefore likely to include workers' compensation, though it may have to continue to adapt to change as the rest of us will. 

There will be some encouraged to study workers' compensation in school and some will undoubtedly pick this as a career path. But a great many will likely fall into this industry. An attendee lamented to me that "young people are not entering this field." I see that also. We need more fresh faces, youthful exuberance, intellectual curiosity, and enthusiasm. 

I hope that our future holds more like Michael Alvey, Dwight Lovan, and Landon Overfield. Kentucky is fortunate to have had these leaders and so many like them. They are the leaders I know, but certainly there have been others. Workers' compensation has been lucky to have them. The future of our law, our system, and the humans that are serviced by it depend upon people like this. And unfortunately or not, the great mass of humans served by the existence and effectiveness of this safety net will never know it or these exceptional public servants even exist. (Take a minute today to recognize someone you know as a contributor an leader, give them a call and a kind word). 

Congratulations Kentucky! A Centennial. A momentous occasion, gracious banquet, fine company, interesting trivia, and well-deserved recognition. If the Internet survives (I still think it might just be a fad), perhaps someone will find these ramblings and quote a line or two at the Kentucky bicentennial in 2116? If so, I hope that they recognize the theme, workers' compensation is about human beings.

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