Experiential Adjusting

I've written a couple of times about experiential lawyering - this is a method that famed trial lawyer Gerry Spence teaches at his school. The premise is that you don't REALLY know the story you are to convey as a lawyer unless you actually experience what life is like for your client.

Sort of like embedding for journalists; 24 hour observation in as objective manner as possible unveils the story like no other means. The experiential experience (pun intended) means being involved as an observer without helping or partaking in the life of the subject.

The power of objective observation has a perspective altering effect, and it seems to me that those in the workers' compensation field, regardless of position, should be embedded for a day with an injured worker.

We don't think about someone like Dwight Johnson, last year's WorkCompCentral Comp Laude Award winner - what he has to go through every single day with no lower extremities.

Things that we take for granted complicate his life immeasurably. Regular day to day routines aren't so routine: showering or bathing, pooping, dressing, and even just getting around... We see Dwight come up to the podium, clean, groomed, ready to talk - what we don't see is that it takes ALL DAY to get to that stage.

I got on the industry the other day about top tier leaders of workers' compensation vending companies, carriers, TPAs, others, about not mingling with the crowds at conferences, but that's only the tip of the iceberg. Mingling with the minions shows leadership and offers an opportunity to understand the day to day of industry people, but there's more to this people business than just industry workers.

How many of you, reading this, have actually seen face to face, your injured worker, let alone experience what they go through for a whole day?

I bet very, very few of you have, or at least not very frequently.

And I'm sure that those of you who have done so have a much different perspective on life as an injured worker than you did before.

We work comp wonks love the data. Data is simple - just numbers. Data tells us things about performance, about trends, about costs and outcomes.

But data without a story behind it is a failure to humanity. It is the STORY that either explains the data, or contrasts the data.

The STORY is about the family that can't get by on temporary disability indemnity alone.

The STORY is about the man who commits suicide because of his opiate addiction leaving behind small children and a widow without adequate means.

The STORY is about the person who can't tie his own shoelaces because treatment has been delayed or denied.

The STORY is about the woman living in pain for the rest of her life because the physician used counterfeit hardware and conducted unwarranted surgery as part of a payola scheme.

There are thousands, if not millions, of these stories and while they may have similar themes, each one is as unique as each one of us are: the human condition can't hide behind data.

I'm big on training. Obviously WorkCompCentral does education and training, and all of the big claim shops have very excellent training systems in place.

But all of this training and education is lacking because it is so milquetoast. We hide behind legal issues, rules, regulations, file numbers, theories and billing codes.

Claims professionals have no time in their work days to manage their file loads, let alone actually listen to an injured worker trying to pay the rent, or applying for food stamps.

When I was a young lawyer, our defense firm required every lawyer to maintain at least one injured worker file active in inventory. This education built empathy into our lawyering. We knew what our jobs were, but we also understood the issues facing the other side of the bench.

I think this made us better lawyers.

I suggest that experiential claims handling would make for better claims adjusters, better claims supervisors, better claims executives.

Just ask the claims handlers who actually have had to go through the claims process themselves - each and everyone of them will say it opened their eyes.

Ask Jane Hays, recently in the news as the 73 year old member of the Board of Trustees of Texas Political Subdivisions, a non-profit self-insurance pool administering workers' compensation benefits for local government entities, whose claim after suffering an amputation injury was denied.

"I now understand what they feel like," Jane Hays is quoted as saying in a Texas Tribune article. "We just need to have a workers' comp system that is fair to the workers, the injured workers."

Claims folks who get on the receiving end of the system do their jobs much more compassionately as a consequence of the experience, and I might add, likely much more efficiently, because they know how shitty it is to be on the receiving end of the eternally malevolent workers' compensation system.

Experiential adjusting should be a routine part of all claims education, and continuing education.

T.J. Smith

Sergeant Major Thomas J. Smith, Jr. ("TJ") died February 17, 2015.

I didn't even notice he was gone until about a week after his death, when I realized that the name plate on his door at my Mom's memory care facility was missing.

Most people probably don't notice he was gone.

Nancy Reagan did.

TJ, after his highly decorated military service (more on that below) then went to college and then was accepted into the Secret Service serving President Ronald Reagan and the First Lady.

Mrs. Reagan made sure the family knew how important TJ was to she and the President, sending a letter that was obviously personalized, noting that TJ was "part of our team" for over 20 years, starting at "the Ranch, traveled here and abroad with us, and continued to work well past the time he really should have retired" driving from his home in Oceanside to the Reagan residence in Bel Air every day.

TJ was a fixture at my Mom's place - I would see him every time I visited, would salute him and tell him, "You're looking Super-D-Duper today Sergeant Major!"

A young TJ Smith with the same smile I came to know.

He would salute back, and give me the biggest smile one could imagine.

I knew he was Secret Service detail to Ronald Reagan - there were numerous pictures around his room and in his "memory box" of him with the President and First Lady, and I was fascinated by all the stories that he must have.

I would ask him often about his years with the Reagans, his years in the military, and what little I knew of his civilian life, but Alzheimer's had progressed to the stage where his communication skills did not permit much more than a salute and a grin. He just couldn't remember, and if he did remember anything it was very difficult to understand what he was trying to say because Alzheimer's had destroyed his faculty for speech.

Alzheimer's is cruel like that; you know there's so much to be shared, and no way to do it unless someone else does it on behalf of the patient.

I learned through others that TJ was an athlete as a youngster, excelling in nearly every sport from basketball to football and track through high school.

TJ joined the United States Marine Corps on March 15, 1958 and was assigned as a Marine Corps Infantrymen (Grunt). His first duty assignment was at the United States Embassy in Morocco Spain and then he served two tours in Vietnam and was awarded Two Purple Hearts, Combat Action, Presidential Citation and Navy Commendation for Meritorious Services, participating in thirteen Major Combat Operations and Numerous Search and Destroy Operations.

He retired after 26 years with the Marine Corp, after being honored as "Drill Instructor" at Marine Corps Recruit Depot in San Diego, CA, and, "Non-Commissioned Officer" in Charge of NCO School, at Camp Pendleton, CA. TJ also served as Operational Chief of Marine Detachment at the Naval Weapons Station in Concord, CA and as a Sniper Instructor at Marine Corps Base in Quantico, VA. (I wonder if he taught Chris Kyle?).

After retiring from the military he went on to 20 years of service for the U.S. Secret Service, winning the love of the Reagans, and retiring from that duty in 2007.

I don't know why TJ touched me so much. I "knew" him only for the last 11 months of his life, and obviously I didn't REALLY know him. I feel very privileged to have his acquaintance though and I revel in his history.

There are many people I think that have such incredible stories, have given so much of their lives to society, and have accomplished so much - but we don't know them or their acts of generosity, bravery, and selflessness.

In workers' compensation we know only their claim numbers and the maladies for which they are seeking reparation and help.

I think back to my lawyering days, taking depositions of injured workers. Every once in a while I would get a story of incredible impact, like the day long deposition I took of a psyche injury claimant who's life of childhood abuse and neglect I could not have imagined if it weren't true (and I still want to write THAT book!), and how she overcame such huge obstacles to become a productive member of society until an unfortunate decompensating event intervened.

The famed trial lawyer Gerry Spence teaches at his Trial Lawyer's College in Wyoming about "experiential lawyering" where essentially the attorney embeds himself with his client for a week to really learn what it is like to live a life of disability.

Visiting Mom in her memory care facility this past year has been like experiential lawyering. Had I not done so I would not have been exposed to TJ and his amazing life.

Nor would I have met Churley who was an Air Force pilot and went on to a successful civilian life as a top executive for several Fortune 500 companies; or Jim who retired from the Navy as a Navy Seal Commander and also went on to a successful civilian executive career; or Richard who retired from the Federal Bureau of Investigation (and still carries around with him at least 2 radio communication devices!); or Bente who served as the wife of a Danish diplomat and shook hands with national leaders throughout the world, and so, so many more.

Without these people I would have not been enriched with such history and so much humanity. And Alzheimer's Disease would have remained a mystery to me, frightening, unapproachable.

The emotional impact of my "experiential lawyering" is unquantifiable. And it is what, I think, makes my life so much more rich now. Alzheimer's and dementia is no longer mysterious, frightening or inaccessible to me. It is a part of me now. The residents at Mom's memory care facility, and their families and the staff are part of my life now, part of my experience, part of my "family."

Perhaps we in the workers' compensation field would be well served if we all took an opportunity to engage in "experiential claims administration" and take time to embed ourselves with the injured workers we are tasked to serve.

Perhaps then we could empathize with the plights of those who we are charged in trust to provide the "benefits" of the system, if we go beyond the daily tasks of reading reports, approving expenditures, entering data.

We engage in lots of training in the work comp industry; heck, WorkCompCentral is a prime example with several live seminars per month and hundreds of hours of education on line.

But where's the experience? Where does the empathy flow from in order to truly understand the impact an injury has on a person, and the impact we can have as humanitarians performing the work of the law?

Imagine if every person who is in workers' compensation claims were required as part of their professional education to "embed" with a claimant once a year - how much better served do you think the injured worker community would be?

A popular quip when one gets a professional license is, now one has a license to truly learn.

We need to learn more.

(TJ's obituary is here.)

Opt Out and ProPublica

It's easy to vilify Bill Minick and Mellisa Tonn.

The latest ProPublica story on work place injury systems, "Inside Corporate America’s Campaign to Ditch Workers’ Comp", paints Minick as a singular vigilante intent on destroying workers' compensation by taking Texas-style non-subscription to other states; plans that are crafted singularly by employers with the intent of sticking it to the injured worker to send more dollars to the corporate bottom line.

And Tonn, Minick's wife, represents a conflict of interest because she is the medical director overwhelmingly selected by PartnerSource clients to manage medical networks and doctor selections.

But like most everything in life, not only is there another side to the story, there are many complex permutations that need to be considered, and there's a big lesson too.

I've know Minick and Tonn for many years now. It's no secret that I'm a Pepperdine School of Law alumni (1984), and so is Minick (1985). We met about a year after I started WorkCompCentral. He had started PartnerSource a few years earlier. And I've known Tonn through various professional medical organizations, namely the American Academy of Orthopedic Surgeons (of which I'm a faculty member) and the American Academy of Disability Evaluating Physicians.

I've dined with both. I've attended social events with them. I've met their children.

They are good people. They believe that what they do is the right thing for America. Both believe that workers' compensation can be improved upon, and both believe that an employer option is the way to accomplish that goal.

“All you can do is pray that the Lord gives you a calling where you can really do good for society,” Minick is quoted at the end of the ProPublica piece. “That’s what gets me up every day, knowing that I’m getting better employee satisfaction and generating economic development. That’s as good as it gets.”

Minick is not bullshitting - he truly believes what he says, and that opt-out is, overall, better than workers' compensation for both employers and workers; and also for workers' compensation by providing competition.

Remember? This is America, a capitalistic economy where, in general, competition fosters better everything for everyone, at least academically.

Fundamentally, Minick and Tonn are of a Libertarian bend (I don't know their actual political affiliations); freedom of choice and relief from regulatory burden is a paramount belief. Less government, they believe, in both business and personal lives, is better and everyone should have greater responsibility for themselves. That's what drives their business philosophy, and opt-out itself.

The ProPublica article highlights a few vignettes of injured workers getting the raw end of the opt-out deal: denials based on unreasonable time limits for reporting, failure to provide sufficient medical care to remediate long term effects of injury, inadequate indemnity to stave off pauperism.

Certainly, though, these anecdotes are no different than what is experienced in full-fledged state workers' compensation systems. The earlier series by ProPublica highlighted the great disparity in benefits between states, and the hardships experienced by injured workers facing significant changes to their lives under the controls of workers' compensation systems. That series also used vignettes that the work comp industry labeled as unfair and unrepresentative.

But no one in workers' compensation denied that those case stories were real. Nor that they represented a problem. In fact, those honest with themselves acknowledged that these negative cases are all too common, and are a big problem. That series even led to an investigation of Traveler's by California officials.

Critics of the opt-out movement point to lack of transparency - information and data about what injured workers actually experience and receive in benefits is not easily obtained from opt-out employers.

Anecdotes indicate that the reality is different than Minick's ideal that such plans aren't better for the workers.

Both are fair criticisms. Frankly, there's nothing wrong with those realities being told either. Opt-out proponents need to know those stories. They need to "experience" life as an opt-out employee who's life is shattered because the plan doesn't take care of them, regardless of whether it's better or worse than standard work comp.

Remember my rant on experiential adjusting? Same holds true for anyone involved in the medical/disability management industry, whether it's work comp, opt-out, general health, private disability - whatever. If you don't know the result on a personal basis, you aren't learning and the perception is a callous disregard for the welfare of others.

In sort of a paternalistic way, opt-out plans heavy-handedly encourage return to work. The penalties to an employee for not getting back to work as early as possible can be significant.

This is by philosophical design - the overwhelming evidence is that work is good for people, and that being off of work for prolonged periods dramatically, and exponentially, increases the likelihood of long term disability.

But this heavy-handed approach doesn't work all the time, and unfairly penalizes those unable to overcome the additional obstacles that a work injury throws in the way of, perhaps, an already difficult life. When a work injury protection plan throws up additional obstacles, such as denial of care or refusal to accept based on timing, the penalty is amplified.

Just like work comp itself.

Employers tout great savings, and these are good for the board room and SEC reports to investors. Heartless corporate America is the perception though: At what cost to society? To individuals? To vendors? To employees? To shareholders?

The opt-out employer mindset is a less-is-best viewpoint. Get the government out of the equation; take more control over who provides what, and when; put incentives (positive and negative) in place to drive behavior towards the corporate ideal; eliminate waste, fraud and dependency.

There's a lot of appeal to the concept of the opt-out movement. I'm no fan of government and bureaucracy. I'd just as soon not have others tell me what to do, and how to do it (which is why I've never worked at a big company I guess).

But this Libertarianism assumes a high level of personal responsibility. The more freedom one is provided, the greater the requirement of accountability. Some are mature enough to accept this. Others are not. And this is on a both personal and corporate level; just how greedy can one get before society is offended?

The public's perception of corporate greed is particularly acute when times are tough, or when the media makes examples of outsized executive compensation compared to the toiling working class. Class stratification has become a big source of public discontent. This is a reality that can't be ignored.

The opt-out movement needs to come to terms with this reality. Indeed, ALL of the work injury protection industry needs to.

Oklahoma's 2-year old reform, that introduced opt-out to the state, says that employers' plans must meet the same minimum benefit requirements that the state work comp system provides.

What it doesn't require is that plans meet the same procedural protections - and that is a fault that the opt-out movement took advantage of, and which has provided many of the negative anecdotes the media has reported.

Having an employer appointed doctor determine medical and indemnity fate, only to be reviewed by an employer appointed binding arbitrator, is perceptually bad. There is no check and balance in that type of a system. There is no perceived fairness. It's stacked against the employee. The working class gets stiffed again...

I believe that opt-out can work. But ONLY if it is a fair, and BARGAINED-FOR exchange.

Remember the Grand Bargain? There WAS a bargain 100 years ago. First there was fighting, name calling, shouting, discord... and eventually compromise was reached. That compromise has been challenged over and over again and the first set of the ProPublica series simply pointed out that perhaps the bargaining in today's environment isn't balanced or fair.

What the ProPublica opt-out story really shows is that government not only got out of the way, but completely failed to protect the public; government assumed that plan promoters would do so.

That's unrealistic, myopic thinking. Everyone, and I really mean EVERYONE, at the end of the day given any set of circumstances, will first act in their own self interest. All others take a back seat until the individual's self interests are satisfied. In Oklahoma, government has failed to protect the public.

What is missing in the creation of opt-out plans is simply the lack of a bargain. There is no employee representation negotiating these plans. Government (at least in Oklahoma) is tasked with looking out for the workers' interests, but they don't BARGAIN for the deal - they only approve what is presented: an employer-centric system designed by employers for employers.

“We’re talking about reengineering one of the pillars of social justice that has not seen significant innovation in 100 years,” Minick said.

That's not a bad thing. Nearly everyone that I have come across in the past few years criticizes workers' compensation as too complex, and too costly for too little - i.e. not delivering the value that we expect. So opt-out should provide the remedy.

Should...

"But as Minick’s opt-out movement marches across the country," the ProPublica story reads, "there has been little scrutiny of what it means for workers." This is a nicely written sentence that is wrong on several fronts.

First, opt-out isn't marching across the country. Texas originated it. Oklahoma adopted it after several years of legislative wrangling. Tennessee and the Carolinas are targeted - this is not a movement that is marching. However, trust me, that all of the states are watching and learning to see what is good, and what is bad. Opt-out is disruptive, experimental. But it is not marching.

Second, while there has been little scrutiny of what it means for workers, whose responsibility is that? Current opt-out plans have the fox guarding the hen-house. And as I mentioned, all of those plans were unilaterally created with no worker representation at the deal table.

Government has failed miserably at providing scrutiny. But part of the failure is also Labor's fault. Unions are at an all time low with their constituencies - they are just as out of touch with the working class as the executives on the 99th floor.

The disintermediation of labor has been accelerated with the digital age - Labor has been greatly disrupted and can no longer advocate for the working class.

So who's going to do that? Government won't and Labor can't. 

The story behind the ProPublica opt-out article is that business is running amok, but this will, indeed, eventually back fire. History has taught us that.

ProPublica states, "And it’s Minick’s handiwork that allows Costco to pay only $15,000 to workers who lose a finger while its rival Walmart pays $25,000."

That's bullshit. Minick didn't do that, his clients did it. Minick facilitated the process, certainly, but he doesn't control Costco nor Walmart. What REALLY happened is that neither Costco's nor Walmart's risk management executives made any attempt to include their workforce into the development of their plans, and that's why they are so lopsided.

Business has taken advantage of Labor's weakness and has run amok.

Don't get the idea that I'm anti-ProPublica. In my mind they have done an outstanding job of bringing to America's attention the lack of real protection that people have when they get hurt on the job.

What the ProPublica articles on work comp, and now opt-out, are saying is, the Grand Bargain isn't grand anymore because there's no bargaining.

I firmly believe that this country's strong economic engine is due in part to the work injury protection systems that are in place. When done right the employer is protected, the employee is taken care of, the economy is stable, society benefits.

When it is singularly focused, though, such systems create mistrust. Business can not run on mistrust, and eventually a revolution will be fostered that will work against the near-sighted.

Here's the lesson - ANY work injury protection plan or system MUST be an employee benefit, like health care, a 401K, time off, dogs at the office and a well stocked break room.

But they're not. The laws have ensured that workers' compensation be regarded as a compulsory expense, not as an employee benefit.

Opt-out plans have taken the same approach because their singular focus is reducing expense. This does not tell employees they are valued - rather it tells them they are a cost, and worse, an expendable cost.

And this is where the opt-out movement, if it really wants to grow and prosper and, as Minick says, reengineer one of the pillars of social justice, can work, can make a difference, and can lead changes in the way we think of work injury protection systems.

Opt-out needs to start with the mindset that it is an employee benefit just as valuable to employees as any other employment benefit.

Work comp likely will never get to that level of beneficence because the laws have put a tourniquet on both business and labor. 

But opt-out can be an employment benefit, and should be.

Fundamentally, there's nothing wrong with opt-out. But how it's executed is another matter.

Everyone Should Hear

Flying home from business in Nashville yesterday, an article in American Way magazine caught my eye - the Special Olympics World Games is coming to Los Angeles at the end of this month.

A big poster in the terminal at LAX advertised the Special Olympics.

And a graphic on the side of a parking service van highlighted the coming games.

It was everywhere around me, speaking to me.

The Special Olympics is open to adults with intellectual disability. Defined by the American Association of Intellectual and Development Disabilities, a person will have an IQ of under 70 to 75, will have significant limitations in two or more adaptive areas and a manifestation of the condition before age 18.

There will be 6,500 athletes representing 160 countries participating.

The quotes published in the magazine article from some of the people involved in the games reminded me, of course, of workers' compensation and the people that are the subjects of the system (injured workers) and the volunteers (us people that make a living trying to administer benefits).

"At best, these are individuals who are invisible to most of the world, despite there being approximately 6.5 million people with intellectual disabilities in the US today and nearly 200 million in the world," Janet Froetscher, CEO of Special Olympics says. "At worst, they're seen as completely worthless."

I'd say the population of injured workers in the US today is about the same size - I don't know about international numbers, but 200 million doesn't seem far off either.

Think about that though - in the U.S. we have a mature, relatively, robust workers' compensation program. Sure each state is different and sure benefits aren't uniform. Many times there are issues in the delivery of benefits, but at least in the U.S. there ARE benefits.

I always seem to go back to the Bangladesh garment factory fire in 2012, where 112 people were killed and thousands injured, some severely.

Sure, officials arrested and ostensibly prosecuted factory owners and culpable employees for that tragedy, but that does nothing for the victims, who don't have any safety net of any kind.

There are more than 4 million garment industry workers in Bangladesh, each of them lacking workers' compensation protection.

And there were stories of factory workers, after having lost loved ones and limbs, going back to work to put food on the table for the family.

"Our athletes, you just can't tell them what they can't do," is what Janet Froetscher, CEO of Special Olympics says in the article. "They're all about what they can do."

A component that is missing from our workers' compensation psyche - ability.

As soon as workers' compensation is invoked, the concern is disability. Temporary total disability, temporary partial disability, permanent partial disability, and a fate probably worse than death, permanent total disability - compensation is based on what was taken away, or what can't be done, as opposed to what is left or what can still be done.

I don't know how to fix that. I'm not sure it's even a problem. It is what the system is based on and what we work with. But the contrast in philosophy can be striking, and it goes to the root of the perception of being injured at work.

Timothy Shriver, Chairman and son of Eunice Kennedy Shriver (sister of JFK), says, "What special Olympics does is enable individuals to reclaim the dignity and common humanity that's been robbed from them, sometimes from birth, by life, circumstances and other human beings."

You don't need to scour the Internet much to find tales of workers, some former athletes now wilting in wheel chairs, some with brain injury sequelae unnoticeable until mental engagement is attempted, neglected by a system that was supposed to protect them from medical maltreatment or nonplused intervention by third parties.

The vast majority of the people that work in this industry "volunteered" for the job - in all my years in workers' compensation I have yet to meet someone that said that they had planned a career in the industry. All of us seemed to have "volunteered" to do a job in work comp, and have never left.

"Special Olympics has 1.3 million volunteers, including 360,000 volunteer coaches," Hannah Teterboro, Olympic snow boarder, says in the article. "And I think most of them would agree: It's actually the athletes doing the real teaching here."

That's something that we don't do well in workers' compensation - listening to the injured workers and learning from them. We're all experts in our own little niches. We have Medical Bill Review specialists. We have Utilization Review people. There are medical professionals, claims professionals, legal professionals ... Few of us actually learn from the injured worker or engage in what celebrity trial lawyer Gerry Spence teaches at his trial lawyers college: experiential lawyering (substitute claims handling, medical service, or any other title to "lawyering").

"We have a story that we want told," says Froetscher at the end of the article. "These athletes have stories that everyone should hear. Stories of authentic human courage, real human transformation, real human beauty, deep human goodness, and I think these are things the world could really use right now, don't you?"

I do. I hope you'll join me and a few hundred other folks in workers' compensation to recognize that we can, and do, good work for people on December 5 in Burbank, CA. Be a part of the solution and nominate the people that do good. Participate in the celebration and recognize those that make the system function. Learn how we can do better.

We have a story to tell that I think everyone should hear.

Work Comp and Baseball

I was watching the Oakland As versus the Kansas City Royals game on television the other night. Kansas City tied up the game and I went to bed so I could write this blog in the morning and good thing - the game remained tied until the 12th inning where the Royals scored the winning hit at the bottom of the inning, far past my bedtime.

The player securing the win for the Royals, Salvador Perez, had six at bats but didn't hit anything until his last when he knocked in a single. In fact, his prior at bat he whiffed so bad even I could tell the pitch was WAY outside the zone.

My buddy, a baseball aficionado, explained to me the next day, "Baseball is a game based on failure. A great hitter hits .300. He fails seven out of every ten attempts."

The odds are so great against the batter in baseball that hitting a pitch less than a third of the time is considered "great."

Sometimes it seems that workers' compensation is like a batter in baseball - the odds of a positive outcome seem so enormous that when one occurs it's "great."

Workers' compensation, like baseball, requires a big team. There's the sale, i.e. brokers. There's policy underwriting and administration - people that consider the risks and price coverage accordingly. There's the employer, which precipitates work comp in the first place. Doctors are needed to treat; attorneys bring and manage disputes. Claims administrators are necessary to keep the claim moving. There are a whole host of other providers performing all sorts of other specialty services.

Batting .300?

And then of course there's the injured worker.

More often than not, of course, the injured worker gets taken care of. Yes, there are way too many cases that are wrongfully denied, where treatment is inexcusably delayed, where benefits should be provided but aren't - but most of the time, likely far more than 80% of the time, a claim moves relatively smoothly through the process.

There are, however, claims that are difficult from the very outset. Sometimes we hear about them but most of the time we don't.

The ones that we do hear about get dismissed from our conscience too easily because the melodrama in their vocalization of what's wrong gets drowned by our own jaded pessimism.

These cases, though, are real. There are real people behind these cases. People get hurt. People get toyed with. People don't get what is needed, what is promised in the Grand Bargain, and set aside as disturbed and having unrealistic expectations.

Some contact me because of this blog, seeking answers, help and remedies.

I have met some - like Linda Ayers. I won't get into Linda's case here - that's not the point.

Linda is vocal, like a few other injured workers. She has a blog, she is active in social media, she posts comments to this blog.

And she probably drives the defense crazy as she is prolifically passionate about making sure the system works for her and for other injured workers.

It's easy to dismiss Linda's activities as the rantings of an unstable person, but she is not an unstable person. She is a person who's case spiraled out of control from the beginning, and we know that the early stages of a claim are the most critical.

There's Darren Fonzseau and Cecilia Watt, more vocal injured workers seeking stabilization of their claims, timely payment of benefits and authorization of medical treatment.

Darren writes prolifically, adding a comment to this blog nearly every post, supporting me sometimes, excoriating me sometimes, but always visible, seeking answers, questioning actions.

Cecilia isn't as prolific, but she is vocal nonetheless.

These are the folks that stepped up to the plate and got delivered lousy pitches - "swing and a miss." At some point there will be three strikes and they'll be out and the next batter will step up.

On rare occasions they'll be walked, and off they go to first base, hoping for subsequent base hits to drive them home.

But we know that baseball is a game of failure.

Work comp shouldn't be. Yes, most claims terminate successfully. The claims that don't are in the minority.

We think of claims as numbers, and forget that people are behind these claims. They're easier for us to deal with emotionally when they are just numbers, and I understand that - I was a defense attorney for many, many years and have had my share of dealing with pro per claimants.

Don't misinterpret the message of the vocal injured worker as that of unstable minds. The expectation of these few outspoken folks is that the work comp system would treat them fairly, without discrimination, and that they would be provided services to assist their return to normalcy.

It's easy to tell these folks to move on, to not "live their claims."

Until YOU live their claim, though, you wouldn't understand.

The great Gerry Spence, one of the most celebrated trial lawyers of all time and founder of a trial lawyer's college, teaches the experiential method of trial presentation: that is, the lawyer is simply a story teller - how can one tell the story well unless he or she LIVES the story for a week; steps into the shoes of the plaintiff to actually see and feel how an injury has affected the person's LIFE.

Before dismissing the vocal few (and there are quite a few - more than you might expect), hear their stories. Yes, there's the other side. There always is another side of a story. Sometimes we fail to listen to both sides of the story though. Telling is easy. Listening is hard.

In baseball the manager of the team listens to each and every player and watches carefully how the game unfolds. Even when the game goes sideways the manager doesn't want to pull the pitcher, but sometimes a reliever must be brought in to get the game back on track.

And at some point the game comes to an end, usually without going into overtime. When a game does go into overtime, the players must also go into overtime - that means working harder to get a conclusion.