Category to place the post in the last group of the blog page and not in the featured posts sections.

Privacy Issues When Predators Cause Comp Claims

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In the #MeToo and #TimesUp era, employees may be more ready to assert sexual aggression claims than in the past. These situations could lead to a workers compensation claim, a civil suit or even criminal proceedings. Privacy is an issue in each setting, but only in comp is the claims professional engaged in the victim’s medical treatment. Privacy issues merit consideration throughout the life of the claim, including at time of resolution.

The applicability of SB 863 and Labor Code §4660.1(c) regarding the compensability of psych claims is outside the scope of this post.

Who is the adjuster?
Advocacy based claims handling emphasizes empathy with the injured worker.  Adjusting a claim for physical injury from rape, actual or attempted, or a psych claim arising from sexual aggression may call for special attention to who will see the injured worker’s records.  A female adjuster may be best suited to handle a woman’s claim.  But reports of Kevin Spacey’s and others’ behavior remind us this problem is not limited to aggression against women.

An important concern with #MeToo claims is to avoid a string of claims personnel who have access to the injured workers’ medical records as they make treatment authorization decisions. Some companies have procedures to limit access to sensitive records. However, the longer a case is pending, the more likely it is that multiple people will need to see these records, possibly causing additional stress for the injured worker.

Confidential Resolution
As with all other workers compensation claims, early resolution is best. Mediation is the most private place to resolve sexual aggression claims.  Unlike with an informal meeting, mediation confidentiality is mandated by law.

A WCAB hearing may create additional psychological issues for someone who has had these experiences. Assure that person or their representative that participants are barred from disclosing what happens in a mediation in other forums.

Additionally, caucusing enhances a claimant’s privacy. Once I have separated the parties into separate spaces,they can talk to me without fear that anything will be communicated to those in the other room without their permission. As the mediator, I can reframe the injured worker’s concerns to maximize privacy. This environment facilitates case settlement.

Mediate to Comply with this Regulation

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Ready to file that DOR?  Not so fast. If you can’t show you tried to settle, you may be wasting everyone’s time.
Mediation Shows Readiness
8 CCR §10414(d) requires that “All declarations of readiness to proceed shall state under penalty of perjury that the moving party has made a genuine, good faith effort to resolve the dispute before filing the declaration of readiness to proceed, and shall state with specificity the same on the declaration of readiness to proceed…. [emphasis added]”The way to show a genuine, good faith effort at resolution is to mediate the disputed issues.   Here’s how you meet the regulation’s requirement to state with specificity:”The parties attempted to resolve the described dispute through mediation with mediator Teddy Snyder on [date].”

How often will you need this language? Almost never. The reason is that once parties mediate their dispute, more often than not they resolve it.

Convening
Convening, the process of getting everyone to agree to a time and place to mediate, can be the trickiest part. Some practitioners remain unfamiliar with mediation. They may confuse it with arbitration. We are all afraid to try new things, sometimes even when clients tell us to. You need to communicate your readiness to resolve the issues in a setting where those issues can be fully explored and the parties are in control of the outcome. Mediating is the win-win choice.

Convening is best done by the attorneys, though the mediator can assist. If you are still trying to get the other attorney’s attention, you may indeed have to file that DOR. Once you get a response, even if it takes going to the Board, immediately suggest mediation as a way to cut to the chase, resolve the issues and avoid future unnecessary Board appearances.

New Year, New You? It’s Your Decision

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“New year, new you.” How many times have we heard that one?

Yet, the same problems that vexed us in December are still there in January. You may be planning to lose weight, save money, or spend more time with family. But what are you doing about a new approach to resolve your ugliest workers compensation claims?

Start by identifying claims that are ripe for closure. Look at the injured worker’s birth date; if the injured worker has reached age 61 and isn’t already on SSDI, it’s time to get serious. Is the claim more than five years old? Are you spending time and money with frequent WCAB trips?

Workers Compensation professionals often have a to-do list which actually impedes claim closure. The content of that additional report may be completely predictable. You could settle without it. Meanwhile frustration, disputes, and expense increase.

Call me to talk about whether the time is right for mediation. There’s never a charge for that discussion.

Slice Workers Compensation Claims to Settle Them

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One of my favorite methods for resolving Workers Compensation cases in mediation is slicing. Slicing a dispute into its separate issues allows parties to reach early partial agreement, paving the way for complete resolution.

Parties sometimes want to put one number on the table without specifying how much of that number may represent PD, LP, future medical care or any other issue in dispute. There are pluses and minuses to this approach.

Benefits of Slicing
A typical Workers Compensation mediation requires resolution of multiple issues, each of which is subject to a separate evaluation calculation. Often there are sub-issues. For example, in calculating PD, not only is the disability percentage up for discussion, but perhaps also the average weekly wage or dates when compensation should or should not have been paid as TD.

Drilling down to the reason for disagreement on each issue can be enlightening. One side may have an “Aha!” moment when they finally catch on to why the parties have been at odds. Before mediation they may have negotiated without understanding the other’s motivation.


When negotiations are stalled, slicing can shift the parties’ focus. Slicing can produce forward movement when parties have reached an impasse.

Focusing on individual issues may resolve some issues while allowing parties to litigate only the remaining disputed issues. Sometimes resolution of a single issue, such as which medical treatment will be authorized, leads to parties adjourning the mediation to test the good faith of the adversary as well as the mediation process. After this initial hurdle, parties can return to mediation.

The Benefit of the Single Number Offer/Demand
Presenting a single number allows a negotiator to “log roll.” When evaluating for settlement, a negotiator can borrow from one column where the argument is strong to shore up the evaluation of another issue where success is not so certain. By presenting a single number, the negotiator minimizes argument about a single issue and leaves it up to the offer recipient to parse the figure among the issues.

Counting Our Blessings

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Particularly at holiday time, many of us consciously count our blessings. I recently participated in a study group that looked at the question, “What is a blessing?” For me, the all-encompassing blessing is safety and security. You could call it “peace.” That includes being grateful that I have not suffered a disabling injury or illness.
 
The Blessing Of Peace
Perhaps the most familiar biblical reference to blessing is the priestly benediction in Numbers 6:24-26:
“The Lord bless you and keep you;
The Lord make His face shine upon you, And be gracious to you;
The Lord lift up His countenance upon you, And give you peace.”
Our group looked at a few sources, including Genesis 12:2 where G-d tells Abraham, “You shall be a blessing.” The conclusion we finally reached was that being a blessing is not about asking for stuff; it’s what you do for other people. Being a blessing to others can bring peace to them and to you.
Mediation Brings Peace
Many of us spend our days confronting conflicts and trying to resolve them. Controlling the conflict in our lives is a way to achieve peace for ourselves and others. Some mediation participants will actually say they are buying their peace. Unlike in a court proceeding, the parties are in control in mediation. Mediation can get people to resolution quicker.
I am grateful I can help bring peace to mediation participants. Try thinking about techniques to bring more peace (closure) to what we do. You shall be a blessing.

 

Don’t Get Hangry

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Hungry negotiators are bad negotiators. The term “hangry” arose because hunger actually makes people angry, hence “hangry.”

If the mediator provides you with a sandwich menu to order food, it’s not just a courtesy. Nourishment keeps people focused on the mediation instead of their tummies. Take advantage of that menu to keep up your blood sugar. If you are released for lunch while the mediator is caucusing in the other room, go get some lunch. Don’t be shy about brown-bagging or bringing snacks for everyone on your team to save time and money.

For some reason, negotiators seem loath to take meal breaks. On one occasion, the injured worker let everyone know he was hangry. He became visibly agitated and wanted to terminate the mediation early, even though negotiations were progressing. Now I bring nutrition bars to mediations to mitigate the problem. But why have a problem at all? Go ahead and eat.

Plan How To Start Your Mediation

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The way mediations start is important. A bad start can result in a lot of wasted time getting to the place you should have been at the beginning.

The First Move
The best way to start is to start. Don’t be afraid to make the first offer to settle. Setting a settlement floor or ceiling tells your negotiating opponent where you are. Silence can falsely communicate that you are in the same ballpark.

Even if your offers did not get a response before, making a new offer now re-defines the settlement ballpark. An offer made “in light of new information” (even if that is simply a reconsideration) is not bidding against yourself.

Start Very Big or Very Small
Think about how your negotiating opponent will react to your opening. Your initial offer should not be so ridiculous that your opponent will walk out. On the other hand, research tells us that an extreme number can lead to a final result closer to the speaker’s expectation than does a more moderate opener.

Pick the Tiny Issue
Seldom does settlement turn on only one issue.  Plan to start with the issue where the parties have the smallest evaluation difference and continue on as the challenge size increases. You may have to skip and come back to the thorniest issues regardless of size. Isolating issues and knocking them down one by one is an effective way to reach agreement.

3 Reasons Why I Talk to the Injured Worker

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TRUST, CATHARSIS, COMPREHENSIVE RESOLUTION

 

Near the start of every mediation, once each side is in their own caucus room, I spend time talking directly with the injured worker. There are at least three reasons to do so.

1. I want to build trust in the mediation process.

The injured worker needs to feel part of and emotionally invested in the mediation process.  The injured worker is probably unfamiliar with the mediation process and may be apprehensive. The parties may distrust each other. Empathy is one of the traits of a good mediator.  I assure the injured worker that nothing will happen that the injured worker does not agree to. When the injured worker trusts the mediator and the mediation process to be fair, the likelihood of settlement increases.

2. Catharsis is part of the settlement process.
The mediation may be the closest the Injured Worker will get to a day in court.  Telling the story is a prerequisite to accepting settlement.  I want to make sure the Injured Worker gets the chance to tell the story in a neutral setting. Letting out emotions is good, and crying not uncommon.  Occasionally an attorney will intercede and take the place of the client to tell the story from the client’s viewpoint.  This is a mistake.
3. Sometimes the Injured Worker’s concerns are not being addressed.
At one mediation, when it looked like the attorneys had wrapped up all the issues, the Injured Worker asked me, “When will I be able to go back to work?”  A return to work was not part of the attorneys’ deal, and I had to rewind the process to make sure the Injured Worker’s concerns were addressed.  When the Injured Worker feels able to speak directly to the mediator, this type of omission– which could lead to problems for all participants later– is less likely to occur.

I participated in many workers compensation mediations before I became a mediator.  I never saw a mediator take the time to talk to the injured worker. Instead, I saw mediators create a barrier between themselves and the injured workers that made settlement more difficult. I work hard to make sure no communication barriers exist.

Motivation For Advocacy Based Claims Handling: A New Idea

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Pictures of injured workers.

That’s it.

I recently finished reading Pre-Suasion by Robert Cialdini. He relates the story of a group of management consultants who were working at their client’s site in a glass-enclosed conference room. They were tasked with designing incentive programs to reward employees for reaching goals. Rather than being distracted by the activity they could see around them, the ability of the consultants to see the people they were designing for led to a more successful result. They felt a unity with those people. Once this was realized, they placed pictures of workforce members around later on-site workspaces with the same result.

What if claims offices were decorated with pictures of people representing injured workers? This could be pictures of people with disabilities, such as people in wheelchairs, people getting into a medical transportation vehicle, people as patients. Mix in headshots of a diverse group of people.

Cialdini’s research tells us that claims professionals are more likely to feel unity with people they can see. By the way, he also says that those sentimental motivation posters actually succeed. Who would have guessed?

Perhaps no one is marketing images just this way, but it seems like it would be pretty easy to create an appropriate collection. This seems like an inexpensive way to determine if viewing images of injured workers can produce more effective advocacy based claim handling.

What do you think? Would management give it a try?

Why An Injured Worker Is Like Aaron Burr

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Hamilton, the ground-breaking musical about colonial forefathers, is finally coming to Los Angeles in August. But maybe you’ve been experiencing a version of that story. Like Aaron Burr, injured workers want to be in the room where it happens [sorry if you encounter an ad at this link]. Instead, they are frequently shut out of discussions and proceedings about their claim.
 
Ignorance breeds resentment
Go to any WCAB location and you will see a waiting room full of injured workers. Many more injured workers with claims on the calendar are not in attendance. Settlement discussions may occur in courtrooms, cafeterias and even hallways. Injured workers are usually not included in these discussions.

No injured worker should waste time traveling to a Board when nothing will happen. On the other hand, injured workers want to sit in on their attorney’s negotiations. If the injured worker is already at the Board, shutting out that person can foster mistrust.

The Best Place for Settlement Discussions
Mediation provides a forum for the injured worker to listen and participate. Including the injured worker conveys respect and can avoid a problem later.

Likewise, the presence of a representative from the employer’s side shows a seriousness of purpose. That representative will get a better picture of the negotiation by being in the room where it happens.

Regardless of which side an attorney represents, counsel will want to prepare the client for mediation. That includes a preview of how mediation works. Counsel may want to coach clients to be temperate in their comments. In joint session or when the mediator is present, client or counsel can ask for time for a private discussion with each other at any point.
Multiple Rooms
Typically there are at least two rooms where it happens, because each side is in its own caucus. As mediator, I shuttle between the rooms to speak with lawyers and their clients. Sometimes I speak only with the attorneys (often in the hall), and attorneys can request to speak privately with the mediator or with the mediator and opposing counsel. When counsel returns to caucus, the client can provide immediate feedback—assuming the client is in the room where it happens.