Monday, April 27, 2015

Don't Get Comfortable

This weekend I witnessed the graduation of my son from The California Maritime Academy.

All the pageantry that one would expect from a collegiate commencement ceremony occurred: speeches from presidents, provosts, admirals, and politicians; band music; cheering; tears; and finally the hat toss.

Gabriel Mikulich, who was graduating with a Master of Science Transportation, wasn't the best speaker, but he was the most poignant, when he wrapped up his "seven lessons."

He concluded, admittedly nervous before the audience, "be comfortable being uncomfortable."

The context, of course, was in the course of learning. Being uncomfortable is simply acknowledging challenge, persisting against the odds, knowing that the road is bumpier than we might like.

And accepting that if there is to be satisfaction, the result will be difficult to achieve.

We can talk about legal changes to workers' compensation laws and who is sponsoring which bill to get whatever perceived advantage they might think will occur.

We can denigrate those who criticize the industry and its problems, challenge the "statistics," and poo-poo the anecdotes of bad claims.

We can complain that funding to fight fraud is insufficient, or that too many employers get away with cheating on their payrolls, or that this insurance company or that claims administrator is corruptly passing the trash.

We can point the finger at the lawyers in the system for creating more disability than warranted, or at the doctors for performing unnecessary and dangerous procedures.

We can blame brokers, politicians, regulators, you and me.

There's plenty of blame to go around for everyone. We're all in this together.

Workers' compensation is not, and should not be, a comfortable industry. We deal with injury, death, disability, touchy emotions, anger, denial, frustration - every single day.

And yet the systems persist. People get hurt at work (fortunately much less so than ever before) and some people die. We're a part of the process.

Workers' compensation functions when the rest of the employment system ceases; at that point in time when the employer is exposed to the risk of financing a bad situation, and when the employee is exposed to the risk of a life style interruption.

Forget about AB this, or SB that. Forget about those special interests that are more concerned with exacting some leverage from the system for their own personal gain.

Human nature disdains uncomfortable situations. When an injured worker complains about unfair treatment or injustice in the system, it's easy to shrug it off as an angry rant. When an employer challenges the bill, it's easy to dismiss as an uneducated gripe.

Workers' compensation is a team sport. Everyone has a place, a job and a function. The primary purpose, when we peel away all of the layers of complexity that have been built into the systems, is simply to take care of the injured worker.

There is no other true focus - take care of the injured worker and everything else takes care of itself.

This doesn't mean that anything and everything that an injured worker may desire should be granted. We function within a system that has legal limitations, definitions and restrictions. Those are there for a reason: like any relationship there has to be boundaries otherwise all hell breaks loose, people run amok, others get hurt...

But when the good people of this industry work together, and "do the right thing," positive outcomes occur.

And everyone gets rewarded; financially, emotionally, spiritually, physically.

This isn't without challenge every single day. Doing the right thing may mean providing more physical therapy than the law says. It may mean authorizing psychological treatment even though there is no claim for it. You may need to pay a physician more than the schedule says to get the best care possible.

You might have to sit everyone (injured workers, employers, brokers, carriers, adjusters, providers, etc.) down at the same table, break some bread, and work together to do what needs to be done: take care of the injured worker (and don't believe for a moment that the injured worker doesn't have a role in this too).

I believe that, by far and away, the vast majority of people that have chosen workers' compensation as a career want to do good things and help people. But everyone needs to work together in uncomfortable situations. Being rote, following the guides, walking the same path - all too comfortably complacent.

Complacency is what destroys and kills.

That claim isn't going to get better by itself.

The system itself isn't bad. Workers' compensation isn't inherently flawed. The critics have complaints, but doesn't everyone about something?

Nope, workers' compensation isn't perfect, and never will be.

But it is still better than the alternative. Just ask the people of West, Texas. Just ask the families left over from the Rana Building fire in Bangladesh.

Be uncomfortable. Do something that isn't in the playbook, isn't accepted procedure, that may raise the ire of your supervisor - make it the "right thing."

By its very nature, mitigation and management of risk is about staying comfortable. That is itself, however, a risky position.

Be comfortable being uncomfortable. That's how life works and how workers' compensation is.


  1. Thank you for your article. May I say without stepping on your toes that you left out in your itemization of those to blame - the defense in a workers comp claim including the defense firm, insurance carriers and employers and some at the WCAB. Yes! Many injured workers are suffering brutal crimes do to employers who falsely inform the insurance carrier that an injured worker was not hurt at work, who also falsify documents in connection with the workers comp claim. An employer who will stop at nothing to denigrate the injured worker and collude with the defense firm and/or insurance carrier to not only destroy the injured workers reputation / credibility but also cause permanent physical harm to the injured worker, and harassment of the injured worker both at work, outside of work & in their own home. If there are "good people" in the workers comp system, we haven't met them.
    Just the other day, an injured worker went to a “network” Doctors appointment with an "orthopedic surgeon" who after he politely introduced himself, continued the encounter in a curt manner. Further, he ended the encounter by reverse blaming stating that the IW was adversarial from the get go. The Doctor went as far as stating, “I wish I was recording this conversation so that you could hear yourself!” Because of the multitude of crimes that this particular injured worker has been the target of and due to the bizarre & criminal circumstances that she has endured that include her being brutally forced under anesthesia and maimed throughout her back, neck, shoulders, and other parts of her body, the injured worker did herself - record the encounter, knowing that it would be “another injustice”. You should hear the recording! It should be interesting to see this Doctor’s final report. During the encounter, he insisted that the injured worker see a psychiatrist due to the chronic pain she described in a sketch that she now endures from the criminal maiming during previous workers comp procedures. The Doctor glanced at the sketch from a distance as he refused to take it in his hand and look at it. This particular injured worker has no history of mental issues whatsoever, however, the push to get her into a psych claim since she realized that she had been systematically maimed throughout her treatments is paramount to the defense. No doubt yet another falsified medical report will be prepared & issued to discredit the injured worker. Previous medical reports have been falsified in this IW’s claim.
    The “network” medical provider ended the encounter by stating unless the injured worker submits to a psych evaluation, he will not take her as a patient or treat her! His “medical office” refused to give the IW copies of the many forms that she was presented with to sign and/or complete. She had to insist for copies but was still denied copies of all documents even after the office supervisor arrived. She was told that she could have only the arbitration agreement. The office supervisor told the IW that “their client is the insurance carrier”. If she wanted copies of the forms, she would have to request copies of the documents from the insurance adjuster. The injured worker sighted that she is entitled to anything that she signed and/or completed. The injured worker was given only 5 pages of the 12 or more pages that she was presented with to sign and/or complete and sign. On the other hand, the insurance adjuster has been refusing to provide the injured worker with particular item since January of 2014 which includes a recording of an interview that transpired just after the claim was filed between the previous adjuster and the injured worker.

  2. Comment continued #2: This particular injured worker has been on the receiving end of one crime or injustice after another including being forced into a WC trial without the benefit of an attorney and without the items that she is entitled to have BEFORE the MSC & trial. No doubt all of these injustices are driven by her former employer who, on the day that she filed her workers comp claim, placed an ad on Craigslist showing that her position as Escrow Manager was available. Yes, the very day she went to the industrial Doctor, her employer began looking for a new Escrow Manager!
    The trial at Anaheim WCAB was yet another fiasco wherein she was questioned by the Judge about her exhibits BEFORE the trial began while the defense attorney was present. Some of the documents included documents that the injured worker should have completed including the initial claim filing however, she was told by the HR mgr. that she was to just sign the form! Another form, Description of Employees Job Duties clearly stated that the employee and employer are to complete it together. The employee was presented with this form by the HR Mgr., already competed and full of false information including that the injured worker never picked up anything heavier than a ream of paper! Because of the lack of space in the small office, much of the banking and escrow files where in boxes that would need to be moved or shuffled to get to other files or banking. Finally the employee refused to sign the form before checking with an attorney. That particular attorney told her to complete her answers in red. So she completed her answers in red and handed the form back to the HR Mgr. A copy of this form was included with the Exhibit stack and was presented in a timely manner to the defense and to the WCAB. It was only after the trial, did she find out that the “Description of Employees Job Duties” had been removed from the Exhibit stack by the Judge!!!! The Judge went as far as placing a form that the defense attorney brought with him that morning into the injured workers stack!!!! The injured worker has also been informed that the Judge has the right to remove documents from Exhibits without mentioning it to the applicant. She was also informed that the Judge has the right to ask about the Exhibits before the trial begins. Because of the questioning of the Exhibits before the trial began, the defense attorney didn’t call his witness – the HR. Mgr! The injured worker had 5 people on her list of people to call to be questioned but the I & A officer told her that she would have to pay each witness $40.00 plus mileage. Unfortunately, the injured worker has no money, she can no longer work! If it weren’t for a family member, this particular injured worker, like many, would be homeless.

  3. Comment continued #3 of 3: For this injured worker, there is no justice. She has had her home invaded before she moved in with a family member and after moving in with a family member. On multiple occasions, her food & bottled water was tainted with chemicals that on separate instances have harmed her nervous system, heart and has caused pain throughout her body, tendons and more. Her mouthwash was tainted with something that burned the inside of her mouth. Her dog has been affected by this also as he drinks the bottled water too. She has been overtly & aggressively stalked by investigators (not to be confused with sub-rosa surveillance). The employer informed the insurance carrier that she was not hurt at work but that the incident was treated as first aid – however, no one told her, the injured worker, that the employer said this! She found through her then attorney at the court approximately 8 months after filing the workers comp claim that the employer lied about the circumstances of her having been injured at work. Clearly the employer has committed several crimes in connection with the workers comp claim in an effort to deny the injured worker benefits. Why are so many injured workers treated as liars or mentally ill when clearly, the employer(s) and industry professionals are themselves the criminals / liars and no doubt some are sociopaths!
    At every turn, the injured worker has been blindsided. No one warns the injured worker of the heinous crimes that may befall them. Crimes that include “organized stalking”, falsifying of documents / medical reports, maiming and battery, WCAB biased against injured workers, intrusions into the injured workers private home, theft of documents and medical history out of the injured workers home, tainting of their food and drinks, vandalizing the injured workers personal property including their car, hacking of their computer, e-mail and social network accounts, tapping of their cell phones, interfering in the injured workers healthcare outside of workers comp, and much more.
    Mr. DePaolo, you seem like a man who would like to improve the conditions of workers comp for injured workers. In order to do that, you first must admit, there are many in the workers comp industry who have no intention of walking a straight and narrow road of integrity. They will stop at nothing including having an injured worker maimed prolifically to a point where she is now permanently disabled and suffers chronic pain throughout her body every day!!! Moreover, she is prevented from getting legitimate medical treatment and/or studies inside or outside of workers comp medical arena that would prove that she has been maimed.
    Workers compensation is the only legal system (lawsuit) wherein the plaintiff – injured worker is REQUIRED to go to the defenses medical network for treatment. It is foolish to think that the defense in a law suit would act professionally and with good intent or integrity when they have the plaintiff under their “medical” control? Even if there weren’t the requirement of “network medical providers”, I don’t believe that employers, attorneys and insurance carriers “would do the right thing”.
    California is a business friendly state! It is NOT employee friendly. For decades, injured workers have spoken out about the injustice and yet there is no end to the crimes that are committed against injured workers. Someday, soon I hope, we will all know who is behind allowing these injustices and heinous crimes to continue even through the WCAB!

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  5. In the injured workers claim that is described in the above comments, the crimes of the employer attempting to deny the employee workers compensation benefits is evident along with the intent of replacing the employee or demoting her is evident. In the end, the employee was fired less than 3 months after requesting to see the industrial Doctor. It also appears that every effort was taken against the injured worker, and efforts to protect the employer from the ramifications of denying the employee the workers compensation benefits in play. These efforts seem to be inclusive of the trial at the WCAB by what appears to be questionable if nothing else, behavior on behalf of the WCAB Judge.
    What does it take to coax a Judge into not acting in accordance with the law? Is it money? Would it have anything to do with the defense attorney and a Partner in that firm having been previously employees of the "State Fund"? What about the Partner in the defense firm having been previously a WCAB Judge?

    You wrote back in 2006, an article entitled, "Stop the Hypocrisy". Your article back then stated, "It seems that fraud and Workers' Compensation just belong together. The sad part is that those who commit the most heinous criminal acts and cause the greatest civil damage always seem to be just out of reach of the "long arm of the law." What's worse, is that we as an industry not only seem ambivalent towards this criminal behavior, some even seem to condone it! You went on to state, "The pervasive greed of those feeding off of the Workers' Compensation gravy train is so endemic that there is no sanctity, no island of honesty, not one bit of redemption that any amount of reform or public humiliation can rectify."

    We're here to tell you that there are heinous crimes that are being committed against injured workers. It starts with an unscrupulous employer and proliferates throughout the workers compensation industry. There are more invited to participate, that includes those outside of the WC industry and according to some, it includes legislators, Judges, hospitals, surgery centers and more. Yes, Mr. DePaolo, there are many feeding off the workers comp gravy train, but it is definitely NOT the injured worker.

    It is nice that you would say, "There is no other true focus - take care of the injured worker and everything else takes care of itself." Keep in mind that some employers are thinking of no one else but themselves and then there are a few who are worse. Who don't care to what end that they prevail. These are the sociopaths. These are the people who need to see a psychiatrist!