Thursday, October 15, 2015

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.


  1. This might have to be my very favorite David DePaolo blog so far!!! Write on! XOXO

  2. This thinking should be at all levels, especially those who pass laws to enact reforms, which end up taking more away. Ending years long litigation for those who are totally disabled would be another humane thing to do, to be addressed. This is a humane article for injured workers, is striking.