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.