Looking at the Future Through a Glass Half Empty


I’m headed to Phoenix Wednesday, where I will have the honor of being the Keynote speaker at the American Bar Association LEL & TIPS Sections Mid-Winter Conference on Workers’ Compensation. I’ve been to numerous of these ABA events, but this will be the first time I will have spoken at one.

I only have a 30-minute slot for this particular presentation, and I’ve given a great deal of thought as to what I want to say to the esteemed members of this group. I know I will discuss facets of the Workers’ Comp Summit – the “National Conversation” that I have been intimately involved with. I want to talk about trends in workers’ comp, and a few positive points about our industry.

I may also speak about our reticence when it comes to change. And our tendency for delay. And mostly, I might talk about what I call “Groundhog’s Day”; our seemingly endless ability to repeat our mistakes of the past.

Don’t worry, I’ll punch it up a bit before I get there.

You see, I am normally a pretty optimistic person. I believe that, given ample opportunity, people have the good nature and ability to recognize and address issues that challenge them. If we put our mind to it, there is likely no problem that a collective group could not overcome. Yet, for some reason, in recent weeks I have not been feeling the rosy glow of unbridled hope. Frankly, I am somewhat bummed. Perhaps it is the strain of projects at the office. It might be the two non-profit’s I am heavily involved with – neither of which my schedule is allowing me to serve well at the moment. Or it might just be the nagging feeling that, despite our best efforts, a tiger just won’t change its damn stripes.

The WC Summit has been, overall, a terrific experience for me. We’ve met three times, and the feeling has been almost universally positive regarding the concept. Participants from all sides are telling me that they are learning things about other industry segments they never knew; and discovering challenges they have never viewed from their particular positions. The belief that we should proceed is very strong.

At the moment, it feels as though that is where the harmony is ending. We thought the timing was appropriate to put out an initial report on discussions of the first three meetings. It outlined in much more detail the discussions related to the 29 Imperative Issues we originally defined. We submitted it to the Summit participants for their input on the report, and asked opinions about where the final product should be distributed. To say we are getting varied responses is an understatement. I won’t go into details, as this is an ongoing process, but the responses range from positive encouragement to disparaging accusations. We will get by this point, and the Summit will continue, but I have to wonder; if we cannot agree on a simple summary report, how will we get over the truly big issues that impact our industry?

Add to this the fact that the legislative sessions are in full swing around the country, and our elected representatives seem extra committed this year to “fixing” workers’ comp. Except, to both the trained and untrained eye, all the kerfuffle doesn’t seem much like a fix at all. In Florida, I recently described the legislatures efforts this way: If Florida workers’ comp were a house, it would be on fire. Smoke would be billowing from every crack and opening, and flames would be shooting out several windows. Residents on the second and third floors would be leaning out crying for someone to rescue them. Our legislature, in the form of the fire department, would very quickly roll up in their shiny new fire engine. They would hop off the truck, and quickly set to work rolling out the hoses, connecting to fire hydrants, and starting the pumps. They would then proceed to dump tons of water – on the unattached garage adjacent to the burning house.

That description was penned earlier in the process, but it hasn’t really changed. Current proposals include defining various waiting periods as business days versus actual days, and determining vocational rehab as an excessive cost to be not just avoided but punitive if “unreasonable”. These ideas aren’t ginning up my confidence that any of the real issues in the state are being addressed.

In Iowa, there is a proposal that will control workers’ comp costs by – wait for it – limiting injured worker benefits. Gee, that’s brilliant. Why hasn’t anyone thought of that before? The proposed legislation will decrease coverage for any work-related injury connected to a pre-existing injury, as well as reduce coverage for shoulder injuries and minimize late fees for employers. That should work well, and keep the courts humming for several years.

In Kentucky, there is also a proposed measure designed to install caps on benefits for injured workers, except in this case they specifically seem to target first responders. That is a unique twist these days.

After major court decisions in numerous states gutting similar previous attempts, we find ourselves back at the same trough, somehow hoping this time will be different.

It is a load of crap, and the legislators should be told that.

The fact is that 8,000 people across the country will file a new claim today for a workplace injury or illness. It is also a fact that 85% of them will get their benefits if needed. They will be treated for their injuries, and either will not miss work or will get their indemnity payments for a brief period before they recover and return. For them, the workers’ compensation system works, and it does so every day. But what of the other 15%? What about the serious, catastrophic, often contested and litigated cases? How do we make it better for them? Cap their benefits? Limit their coverage? Or, on the other side, require employers to pay far more than is reasonably necessary?

How do we restore common sense to the system? How do we return humanity to the process?

I know. By defining reporting periods in business days rather than calendar days, and establishing UR and IMR procedures that can tie claims up forever. Maybe capping attorney’s fees and limiting TTD benefits to unreasonable periods. Perhaps what we really need is a new reporting form to the state, letting regulators know how many warts a claimant has on their nose, or number of fillings in their teeth. And we will fine the bejeezus out of any carrier who even hints of resistance.

That’ll make us all feel warm and fuzzy.

So, yes, the last few weeks I’ve been looking at the world through a glass half empty. I know it will get better. We will resolve the “terrible” Summit Report crisis. I’ll get my non-profit fundraising activities in order. Legislators will still be oblivious idiots, but I will be able to make fun of them in my blog – especially every time we come around to reform the reform of previous reformers. Most importantly, we are going to keep talking. We are going to understand one another’s challenges and concerns. And greatest of all, we are going to communicate.

In the end, that communication will be the key out of the endless cycle of reformation failure. Communication between adversarial sides, between carriers and employers and injured workers; as well as all the people churning in the middle, will lead us to a better solution than what we have today. A culture shift to workers’ recovery must be made in order to set this industry for success in the future, and communication will be the key to making that happen.

I will once again look at this world through a glass half full, but I just can’t get there yet. It feels more empty than full, and only the efforts of this industry can change that.