Monday, December 2, 2013

Reverse Roles And Take It In

I hear two opposing arguments about workers' compensation all of the time.

One camp says that workers' compensation is broken, doesn't do what it's supposed to do, costs too much and delivers too little.

The other side says stop the whining, buck up and use the system; that it is what it is and won't get any better and works just fine if you're willing to put in the effort.

Both sides of the debate have some merit, and both are likewise erroneous - it all depends upon how one fits into the system, and what one's expectation is from the system.

The argument that an employer should just pay claims and not worry about the cost because it gets passed along to the ultimate consumer ignores that fact that there are plenty of competing business owners who are going to cheat or otherwise fudge their workers' compensation obligations for a competitive advantage.

In that sense, the cost of any claim isn't passed along to the consumer because the business that tries to do so is driven out of business by the others seeking the unfair advantage.

And for the majority of claims workers' compensation does work just fine - so long as there isn't any lengthy period of disability or medical treatment and expense that fall outside guidelines.

We pass laws and implement regulations because we need to deal with the outliers. In doing so we sweep the vast majority of the workers' compensation experience into these laws and regulations even though they really shouldn't be so constricted.

When I first started practicing workers' compensation defense law our firm required all of the attorneys to take applicant/injured worker cases where there was no conflict of interest. The purpose was to make sure the attorneys had experience dealing with the "other side."

Part of this was to ensure that the attorneys had compassion for what was going on with the injured worker. Part of this was to provide the education that can only be obtained by going through what one must go through in the system. And of course this would translate into a competitive advantage because experience allows us to have a deeper understanding of how everything fits together.

The real advantage as I look back on that experience some 25 years later is that it helps with the understanding that not every claim is bad or fraudulent, and not every claim is meritorious.

Some claims are just paid. Some claims are fought hard. Sometimes we pick the wrong battles, and other times it was obvious that the right battle was fought.

But most claims are just what they are - an injury that requires some medical attention and a couple of bucks to get through the tough time. They fit within the system and the system works just fine.

When we think of the gross volume of claims that go through workers' compensation it is a wonder things work at all, let alone as well as they do.

We make changes and adjustments to the system, and to our handling procedures, to accommodate those that aren't within the four corners of the system as we know it, and there are the claims that don't fit within those parameters either.

So not everything works as intended, and not everything is as bad as it seems. There's always room for improvement, but we don't need to improve everything all of the time.


  1. It's just I told you David:
    "an optimist is one who believes we have the best of all possible workers' compensation systems and a pessimist is merely one who fears that's true"

  2. There are times when the best thing to do is to just stop sit and listen. Because it is in the listening (not hearing because hearing is not deep enough) that new concepts have a chance to surface and to be seen for the possibilities that they truly are.

    I am working with an injured worker at present, this injured worker not only has a physical workplace injury, but she also has a psychological workplace injury.
    For the first few weeks she could not lift her head to look at anyone, she refused even a glass of water.
    I will never be able to pinpoint the tipping point, but I do remember the pure joy that went through the Centre the first time she smiled.
    Over a period of time all I did was "listen", I heard the way she walked, I heard the silence screams for help, I heard the whispered fears for the future, I saw the mistrust of strangers.
    Then true tragedy struck, her one true friend had to be put to sleep -her dog had bone cancer- for a while she slipped backwards, the only time she ventured out was to go to the park to exercise her dog, now that was gone.
    So I sat and listened again, somewhere in the sadness there was a hope. One of the others at the Centre suggested that she go to the animal shelter and rescue another dog, but she was not ready for another dog.
    Over a cup of tea one afternoon she showed us the photos of her dog, the happiness of the times when he was a puppy, the hours of training that she put in.
    There was a different smile.
    When everyone else had gone home for the day I asked her to sit with me a tad longer, I walked her through a website that I thought (felt) she would find of interest.
    The web site was about the need for puppy raisers for Guide Dogs for the Blind.
    This may seem like an odd way forward for an injured worker to find a way back to work.
    But look at it logically and emotionally instead of clinically.
    This injured worker works in aged care, sensory dogs are a large part of that process, so she would have a great deal to talk with the residents about, plus she would be able to take the puppy to work with her and have the residents also as a part of the puppy training. plus she would once more be able to return to the dog park and be admired for raising a much needed sensory dog.

    For the first time this injured worker talked about the residents who she missed and how happy they would be to see her again and to be able to share a new puppy with them.
    Hope sparkled behind her smile.

    Sometimes you just need to sit and listen, always knowing that the answer for one injured worker is not going to be the answer for the masses.
    It matters not a tad what the workers compensation framework is, it matters only that within the framework there is the support injured workers need to return to life-community-work. after that the rest is easy.

  3. Thanks for taking time out from focusing on the day to day issues of work comp. It is good to take a step back, draw a deep breath, and look at the 'big picture'.

    Your comments are 'spot on' and Rosemary's story is compelling. Thanks for the breath of fresh air.