Sunday, October 16, 2016

Two Emails I Recently Received

I recently received some interesting emails. They were both critical of workers' compensation. 

I find workers' compensation fascinating. I have spent a great many years involved in the industry. I have represented injured workers, major insurance companies, fortune-50 companies, "mom and pop" small businesses, and everything in between. I have tried cases, mediated and adjudicated. I have discussed workers compensation on presentations, written papers, and published articles. I have talked about it with doctors, lawyers, workers, employers, vocational experts, physical therapists, actuaries, government officials, legislators, and more. I have invested a great deal of time in this concept of workers' compensation. 

But, in the end, workers' compensation is about workers and employers. The rest of us are ancillary. Recently, at the National Summit, an attendee proposed that where this industry goes awry or is less than informed results from the lack of engagement of the "silent constituency." He noted that the group that is never heard from is the worker who has not yet been injured, what he called the "future injured worker." They do not engage because workers' compensation is not yet affecting her or him. They vaguely know of it, and perhaps have perceptions of it, but it is not currently, individually, personally affecting them. 

I use those adjectives and limitations because workers' compensation is affecting each worker and each employer every day. It cannot help it. There are costs associated with maintaining a safe workplace, every resource devoted to safety cannot be devoted elsewhere. Certainly, safety is worthwhile and should be promoted. But, programs can be expensive. There are similarly costs associated with regulatory compliance, injury reporting, return-to-work, disability, medical reporting, and more. All of this is an expense to business and a focus of some degree of management time and resources. 

But once an injury happens, there is a tendency to be dissatisfied with workers' compensation. I suffered a variety of work injuries in my life. I have been fortunate that none were serious or catastrophic. I have been lucky to have had cuts stitched, burns salved, and brief periods of missed work. But, that is simply not the case for everyone. Accidents occur daily and the severity of injury, speed of recovery, extent of disability and more are all variable from situation to situation. 

One recent correspondent contends that workers' compensation "needs a major overhaul." The writer says the system is "full of corruption on all three sides." That phrase made me pause. Three sides? Then came the explanation, this includes "attorney plaintiffs, attorney defendants, and . . . judges." These three sides, according to the note, are corrupt and require attention. 

The writer explained that the judges "no longer can read case files, they are just trying to clear their dockets." The defense "attorneys don't care and follow only what insurance carriers stipulate to do what is needed to settle case." And, the "plaintiffs attorneys who no longer fight for client (because it's in their best interest to settle and get paid)." As a result of these three parties, the correspondent says that the rights of the "injured party" are unaddressed and unenforced. The writer urges that reforms fix this, but is not specific regarding a legislative or regulatory course. 

The second email led with "I know you may not be interested in my opinion of the WC Laws." I hear that lead in, or similar, often when conversations occur about workers' compensation. There is a feeling that listeners are few and far between. There seems sometimes to be a perception that the status quo is acceptable to most (or many) and that change is discouraged. However, I hear from others that the tendency towards statutory change is too prevalent across America. So, some perceive comp as too prone to change, and others as too resistant. That in itself is intriguing. 

The second writer says that she/he perceives workers' compensation is "very bias to the worker and there are no rights for small WBE and DBE businesses." I was not familiar with either of those acronyms, so I did some Googling. 

According to the U.S. Department of Transportation (yes, Transportation, or "DOT"), a DBE is a "disadvantaged business enterprise." DOT says that DBE are "for-profit small business concerns where socially and economically disadvantaged individuals own at least a 51% interest and also control management and daily business operations." The definition of "disadvantaged" presumptively includes "African Americans, Hispanics, Native Americans, Asian-Pacific and Subcontinent Asian Americans, and women." A "WBE" is a woman business enterprise, according to the National Women Business Owners' Corporation. So, we might conclude that WBE and DBE similarly identify women-owned businesses?

The second writer goes on to lament that such businesses are "at the mercy of the WC carriers and they do not even notify us when there is a claim." The complaint is that "contracts for WC are written to benefit the carrier only," and that "small business(es) have no voice." The writer seems experienced, claiming that "even when we (small business) speak, no one will listen or even cares that we are struggling to be heard and have an advocate for us. Might we posit that there is perhaps a population of "employers" of "future injured workers?" These may be concerned about cost and premium, but may not fully engage in the workers' compensation debate because, like the "future injured worker," it has not "become real" yet?

The second writer complains that small business (or perhaps DBE/WBE) is not engaged or addressed by the WC industry, noting that "there are no services for small business resources at the WC (Workers' Compensation Institute?) in Orlando. I found that interesting. I went back to the WCI360 program for 2016, presuming that WCI is that to which the writer refers. Perhaps there is room on that program for a small business "track." 

The second writer also complains of courtesy and disrespect. She/he felt at one point as if "treated like gum under there (their) shoe." She/he related arriving at a workers' compensation office for a scheduled mediation, only to learn it had been cancelled. There was frustration at wasted time and at the discourtesy of not being advised when something is cancelled. I know from experience that mediations are often attended by insurance and the injured, and employers may elect not to be involved. Is it possible that such a habit perhaps leads to forgetfulness about the employer (who is one of the two critical parties to this system: employees and employers)?

The gist of this second email was clear, and multiple details were provided. Certainly, some of the circumstances and examples described would be difficult for anyone to grasp, even with a daily exposure to workers' compensation. Simply put, the range of potentials and possibilities for complexities and complications in workers' compensation are vast. As daunting as this system can be for any of us, we have to remember how daunting it is for the fortunate people who experience it sporadically or even singularly. Their one exposure to this law and system may be overwhelming, at best. 

What solutions exist? One that occurs to me is communication. Another is effort directed at understanding the concerns and questions of both employers and employees. I am hopeful that with the aid of search engines, some find this blog of assistance regarding questions and concerns. I know of a fair number of blogs out there in the market, written by attorneys, vendors, service providers, and more. Perhaps some or all of that helps in some degree, 

Beyond communication, it seems likely that simplification has merit. There has been a tendency perceived in which workers' compensation has become increasingly complex procedurally. I have heard lawyers and others lament how difficult it is to understand. Perhaps it would be a good idea to focus on the core issues of why workers' compensation is necessary, on the fundamental purpose, and reduce confusion, regulation, and complexity. Would it be a better system if it was easier for everyone to understand?

And, perhaps reminding ourselves of the challenges would be positive. If we each remember that on a given day, the situations we confront involve people just like us. They are employees and employers, but they have similar concerns. They seek recovery from injury, return to work, minimization of lasting effects, and respect. Perhaps the thing they all seek the most is respect? If we as a marketplace cannot offer immediate and simple change anywhere else, perhaps we could each make that change today, with feeling more empathy and exhibiting more respect?

I am sure that these three points are not the "be all" and "end all." But, perhaps they are a place we as an industry, collectively and individually, might consider starting?

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