Balancing Conflicting Interests in Workplace Injuries

DISCLAIMER: This post is a general overview of a workers compensation claim. It does not contain legal advice, and there is no guarantee that any of the actions detailed will generate a similar or specific result. If you require legal advice applied to your unique situation, please make an appointment to discuss it with an attorney of your choosing and in your jurisdiction. Don’t rely solely on what you read on the Internet.

• Plaintiffs and claimants
• Defendants and respondents
• Their attorneys
• Judges or juries
• Court and support personnel (e.g., claims representatives, paralegals, human resources representatives, risk managers)

Not surprisingly, what I learned is that the adversarial system can:

1. Re-traumatize victims
2. Encourage exaggeration and evasion
3. Delay physical and emotional healing
4. Break down communication
5. Cost everyone a lot of time, money, and energy

Fortunately, courts only do trials in an estimated 10% of cases. The majority are resolved in “discovery” phases, after parties submit key evidence, such as:

• Sworn testimony
• Documentary evidence (including audio, video, and other electronic files)
• Expert opinions

For years, I have been working on ways to incorporate mediation and other informal resolution techniques even earlier, but sometimes government agencies require cases to be resolved before them. The NYS WCB is one such agency. The Board must oversee all workers compensation claims and approve all settlements. However, that does not mean we can’t still use mediation techniques to reach a complete resolution.

Investigating the Claim

In one case we defended, a middle-aged mechanic alleged he re-injured at work a shoulder he had chronically dislocated in  accidents outside of work. His prior injuries were well-documented in medical records, but no one had witnessed the injury that supposedly occurred at work. Moreover, the description of the injury was bizarre and illogical. Additionally, the mechanic gave inconsistent statements to his employer, the insurance claims representative, the WCB, and his medical providers.

Despite the suspicious circumstances, we were unable to disprove that the injury occurred at work. As a result, the case was established for a compensable shoulder injury. The Board awarded compensation for his medical expenses and lost time from work. It was frustrating for the employer and the mechanic’s co-workers, but he returned to work for the same employer. He worked without restrictions, reduced earnings, or performance failures.

Several months later, the mechanic’s doctor told him he had reached maximum medical improvement (MMI). He called his attorneys and sought an award for permanent impairment, disregarding his prior injuries and the compensation he received for them. He alleged he was entitled to an award of approximately $60,000.00, which was a substantial amount for such a claim in 2014. It took a few extra minutes for the employer to get past the initial shock of the mechanic’s perceived greed. Here’s how we did it and resolved the case amicably.

Making the Seven Choices

1. Forgive yourself for having conflicts.We reminded the employer that conflicts like these occur frequently in the workers compensation system. It didn’t mean the employer had done anything wrong.
2. Acknowledge yourself for taking action. Many employers delegate claim resolution to their insurance companies and don’t want to get involved. By sharing information and showing a genuine interest in the mechanic’s recovery, this employer was more likely to get a good result for everyone involved.
3. Forgive the world (and your employees) for creating conflicts. The mechanic wasn’t necessarily disgruntled or greedy; he was probably being guided by his attorneys and simply taking advantage of all the law allows.
4. Free the emotions. Worried she had missed something, the risk manager feared she might be lose her job if we couldn’t settle the claim for an appropriate amount. This also made her angry at the mechanic, his attorneys, the doctors, and the WCB. If she held all that in, it would distract her from the task at hand. So, I listened to her vent her frustrations.
5. Clear your mind.Once the fears and frustrations had passed, we had to let go of comparisons to claims that seemed similar. They helped us determine a range of reasonableness, but they also involved distinct facts and parties that could distract us.
6. Assume nothing. We stopped trying to explain everything or figure out the “true story.” That, too, was a distraction because there will always be different views of what happened. We just needed a way to move everyone forward.
7. Listen with your third ear. Letting go of judgments about the people involved, we could listen compassionately to the mechanic’s reasons for demanding the $60,000.00 settlement. It didn’t mean we would agree to it, but it did help us open productive discussions.

Taking the Five Actions

When emotions are high, it is often best to defer to objective evidence. The five actions can help focus discussions on that evidence.

1. Define the conflict. Not being medical experts, the attorneys deferred to two doctors to give opinions on the permanent impairment of the mechanic’s arm, due to the accident at work. The doctors did not agree.
2. Identify the interests.We took the deposition testimony of both physicians, asking questions about their qualifications, how many times they had examined the mechanic, what tests were administered, how much income they generated from his visits, the estimated number of referrals they get from his attorneys, and other elements that might cloud their opinions. In a busy practice that makes all its money from WC claims, it was clear the mechanic’s doctor overlooked his prior injuries and the permanent impairment caused by them.
3. Play with the possibilities.We filed a Written Summation of the testimony and asked the Board to award no more than $15,000.00, showing the estimated value of each prior claim and deducting it from the $60,000.00 demand.
4. Create the future. Limited by the judicial process, we awaited the Board’s decision for several months. We maintained communication with the mechanic’s attorneys, but both sides felt they were “right” and chose to wait for the WCB to agree.
5. Stay on PARR.We received a decision agreeing with us and awarding the mechanic less than $15,000.00. His attorneys presumably considered the viability of an appeal and chose not to file one. That left us to plan for fewer unwitnessed injuries such as this one, take quicker action to investigate claims fully at the time they are filed, revise our strategy as necessary throughout the claims, and repeat as necessary until both employer and employee get the results they need.

Resolving the Conflict