Thursday, September 19, 2013

Too Much Procedure to Talk

"Bottom line, we have gotten away from talking to each other and communicating."

That's what former California Workers' Compensation Judge and current mediator Frank Russo told me the other day.

Russo emailed me in response to one of my blog posts critical of the lack of claim management cooperation inherent in today's workers' compensation dispute resolution systems (YOU Created The QME Problem).

I was attracted to workers' compensation law as a young lawyer because case duration in general matched my short attention span and it was a collegial profession - everyone knew each other which facilitated communication and prompt case resolution.

So much of this has changed over the years. Litigated cases now drag out as long, or longer, than most civil cases. Trial by procedure rather than by substance seems to be how law is now practiced. And collegiality has taken a back seat to litigation tactics.

In other words, people don't seem to talk anymore. Folks may talk relative to their special interest, but in the global "we can solve this" communication standard there isn't a whole lot conversation going on.

Litigation minded attorneys don't seem to be comfortable with the process of trying to reach an agreement "Quaker style." Adjusters have huge case loads and get "too busy" to look up from their desk and when they do it is typically under some duress or pressure because of compounding problems.

Some are protective of their billings, some are protective of their litigation tactics.

Some companies just don't care because of their compensation schemes, some are penny wise and pound foolish. Some have bean counters focused on short term financial reports.

Some are just too close to the situation to see the bigger picture.

One of the remedies I proposed to the California QME "crisis" was to just settle cases - so some are overpaid, some are underpaid; in the grand scheme of things this all washes out.

But currently we as a system are very good at making victims out of work injuries and fostering that condition.

We take control away from the injured worker and from the employer and in the name of liberty, justice and freedom for all, tell these people what they will do, when they will do it, and for how much.

It's not about delivering what the law says is due, and it's not about protecting an employer's financial interests.

I dare say we are more about absconding with the very little dignity an injured worker has when entering the system and delivering the rotten fruits of our failed attempts to the employer at the end.

Yeah, I know, not all claims are like this - in fact most aren't. Those are the undisputed medical only claims that comprise the bulk of claims and cost the least amount of money.

But the ones that end up in litigation for one reason or another create the greatest expense and drag down systems the most.

So why don't more and more litigated cases go to mediation? What happened to TALKING to each other with the assistance of a trained professional who understands the law, understands the issues, and has no interest in the matter other than delivering a case closed status?

Russo, of course, can't understand why more claims aren't mediated and points to Florida to demonstrate the successes of mediation.

Florida just released its latest report on mediation in its workers' compensation system and the numbers are impressive, particularly if the ratios were translated to California's dispute resolution totals.

Out of 58,041 Petitions For Benefits (the functional equivalent of an Application in California), 15,850 went to mediation. Of that, only 25.1% resulted in an impasse, meaning that nearly 75% obtained some settlement status.

Another 11,738 mediations were scheduled during the year, but were "resolved prior." This means that some claimed benefit was provided or authorized in 11,738 instances. Some of these would have resolved anyway, but some resolved because the scheduled mediation provides a deadline and we are all focused on deadlines.

Another 10,712 mediations were scheduled, but the pending PFB was "dismissed." These are most likely those where the benefit was obviously due, but there had been some oversight and so the benefit was provided before fee/cost entitlement attached, or they were claims for benefits which evidence was not adduced to support, and they were dismissed.

Both of these (11,738 and 10,712) are likely situations in which mediation played a "silent" role as that deadline focused attention on the issues and with that focus came cancellation or dismissal.

Another 5,462 scheduled mediations were reset for private mediation. These are likely the more involved situations in which the parties think they will need more significant time to work through differences such as multi-party claims.

In my mind pretty impressive stuff.

The key difference between California and Florida besides 3500 miles and my personal opinion that California grows better oranges (particularly in Ventura County), is that in Florida mediation is mandatory in most cases (Fla. Stat. 440.25(1)) within 130 days after a PFB is filed.

If a state mediator can not accommodate that time frame then the matter is assigned to private mediation at the employer's expense.

So what do you think California?

I'll tell you what I think (you knew that was coming): mediation won't work in California; certainly not voluntary mediation and probably not mandatory mediation.

Right now the workers' compensation system in California favors disputes, NOT dispute resolution. Procedural defense, and for that matter offense, takes precedence over claim substance.

Not until California strips the workers' compensation dispute resolution process of all of the redundant, unnecessary, self-serving, billable, arcane, illogical, inane, confusing and ridiculous procedural steps necessary to get to a settlement will mediation ever work.

If you doubt any of my characterization of the current process, then please, study my California Workers' Compensation Flowchart and you'll understand the madness. When I started the Flowchart in 1995 it fit on a single 11 x 8.5 sheet of paper. Now you need an entire wall.

Systems collapse on themselves when procedure trumps substance, and if this is the future of workers' compensation it is not sustainable.

If you truly believe that workers' compensation does good, then talk to each other, and if necessary, use the assistance of a mediator. Otherwise wallow in procedure but don't complain after the system drowns itself.


  1. If I took the conversations and if I took the talk out of what I do, then there would be no reason to turn up for work. I need to know what is going on in the lives of the injured workers, I need to know where the minute stumbling blocks are, I need to know what things can be removed without concern and what needs to be replaced with a brand new concept.
    It is only by seemingly surface level chats that I discover what it is that I need to have so I can make the lives of injured workers better, then I can work on the trust required to build a better outcome.
    I am told by many that what I do takes time and that it doesn't fit into the mainstream of workers compensation.
    None of that matters to me, what matters is seeing a injured worker become all that they aim for, and then continue to build on the base belief that was discovered when we first sat down to talk.

  2. I am proud of the Florida adjudication and mediation system. It is always nice to hear a kind word! Our mediators work hard to produce those results, and the reason our system works is their skill and dedication.

    I blogged in August, that there is power in conversation, in a phone call or at the workers' compensation office. If more people listened, and stated their own position while others really listened, many of our disputes could be resolved.

  3. Civil litigation has more of the "redundant, unnecessary, self-serving, billable, arcane, illogical, inane, confusing and ridiculous procedural steps necessary to get to a settlement" than Comp does, yet a majority of insured cases go to mediation. Since the court ADR office has closed, voluntary paid mediations have increased, not decreased.

  4. The difference Teddy is that the parties to civil litigation pay to be there and thus have motivation to resolve. That mindset is absent in CA work comp.