IN THIS ISSUE
PRESIDENT TOM DOMER’S MESSAGE – CHARGE TO THE TROOPS: TAKE 4
The College is alive and well! The Board of Governors just met in Chicago for a rousing dinner and productive annual meeting. We welcomed new Board members Sheral Kellar (LA), Ramon Malca (FL), Leslie Tuxhorn (CA) and Robert Wisniewski (AZ). Gerry Rosenthal (FL), Greg Presmanes (GA), David Grant (MI) and Tom Kieselbach (MN) ended their Board terms, and we thank them for their service to the College. Bob Wisniewski will now chair the Nominations Committee, replacing Tom Kieselbach.
A reminder to all College members to be thinking of quality candidates for the 2019 class: the nomination process has begun! You should have received an email with forms and instructions.
Mark your calendars as well for the 2019 College Symposium and Induction Dinner March 16, 2019 at the Coral Gables (FL) Biltmore. The 2018 Nashville event was our best-attended, and we look forward to another record-breaker next March in Florida.
Our College Committees continue to advance the interests of the College. Next year’s symposium will feature David Torrey’s “Top 5 National WC Cases,” and panels on Temporary Transitional Employment and Dealing with Difficult Clients (on both sides). Last year’s Student Writing Contest garnered more entrants than ever. Those College members teaching Law School Classes are encouraged to remind their students about the publication and prize money. The Newsletter (as you can see) continues as a great vehicle for College news and events.
Our Governance Committee devised new procedures for Board election—any College Fellows interested in such service should contact me tom@domerlaw.com or Susan Wan, our executive director susan.wan@cwclawyers.org. That same Committee also has reached out to the Worker’s Compensation Institute, and College members headlined the National WC Review in Orlando on August 20. Plans are underway as well to make College presentations at next year’s ACOEM (American College of Occupational/Environmental Medicine) conference in California, part of the CWCL’s collaborative effort with the Occupational/Environmental doctors with whom College Fellows interact every day.
Lastly, our Long Range Planning Committee has suggested some ways to grow and expand the College—look for a survey coming soon. I look forward to seeing you all in Coral Gables next March!
Tom Domer
Milwaukee, WI
NOMINATIONS ARE NOW BEING ACCEPTED FOR THE CLASS OF 2019
The nomination process officially began on September 1, 2018. Forms were emailed to all Fellows in August, but if you would like another copy, feel free to contact Susan Wan. Please review all of the forms carefully as they contain not only the qualifications necessary for admission but also the procedure to follow and the considerations you should keep in mind when choosing a candidate. A timeline is set forth below:
| September 1, 2018 | Nomination period opens |
| November 1, 2018 | Deadline for receipt of all nominations to Susan Wan |
| November 7, 2018 | List of Nominees sent to all Fellows for comments |
| November 20, 2018 | Deadline for receipt of comments from Fellows to Susan Wan |
| December 10, 2018 | Nominating Committee report due to the Board |
| December 14, 2018 | Board decision on Nominees |
| December 18, 2018 | Board decisions mailed to Nominees |
| March 14-16, 2019 | 2019 WC Seminar and Induction Dinner, Coral Gables, FL |
It is our hope that we will soon have members in the College from all 50 states, and that we will increase the number of our members coming from the judiciary, academia, and among minorities and women in the profession. Please consider nominating an attorney from any of these categories. In addition, nominations of sitting judges can only be made by the Board or a fellow adjudicator. Please contact the Honorable LuAnn Haley if you have a name of someone who should be considered for membership. You can also access a complete copy of the Bylaws on our website at https://cwclawyers.org/
The 13th Annual Induction Dinner will again follow the mid-winter CLE program co-sponsored by the Labor and Employment Law and the Tort Trial and Insurance Practice Sections of the ABA and will take place at The Biltmore Hotel in Coral Gables, FL from March 14-16, 2019.
If you have any questions about the Nomination process or the Induction Dinner, please contact our Executive Director, Susan Wan, at susan.wan@cwclawyers.org or the Nominating Committee Chair – Bob Wisniewski at bob@azhurtonthejob.com.
COLLEGE FELLOWS PARTICIPATE IN NATIONAL WORKERS’ COMPENSATION REVIEW AT WCI
The College of Workers’ Compensation Lawyers participated in the National Workers’ Compensation Review at the WCI Conference in Orlando, Florida in August 20, 2018. James M. Anderson, a Fellow and Member of the Board of Governors of the College of Workers’ Compensation Lawyers moderated a panel made up of three other Fellows/Board members of the College: Ann Baird Bishop/Georgia, Thomas M. Domer/Wisconsin, and the Honorable David Torrey/Pennsylvania. The topic for the panel presented by Fellows with the College of Workers’ Compensation Lawyers involved adequacy of benefits and the continued viability of the grand bargain. The panel was entitled “Adequacy of Benefits: Examination of the Grand Bargain – in partnership with the College of Workers’ Compensation Lawyers”. \
Judge Torrey presented a concise, but thorough, history of the adequacy and equity of workers’ compensation in the 100 years since the first workers’ compensation law came into effect. The debates and themes have continued throughout the ten decades of workers’ compensation. Judge Torrey provided a list of key resources discussing the grand bargain and how it has been viewed over the years.
Mr. Domer, representing injured workers, and Ms. Bishop, representing employers/insurers, agreed that a consensus on what constitutes “benefit adequacy” continues to elude policy makers and stakeholders in the workers’ compensation community. On behalf of injured workers, questions arise as to whether workers’ compensation benefits represent a fair substitute for negligence damages. However, on behalf of employers and insurers, complaints may be heard about being forced to pay claims where the injury was caused by the sole negligence of the injured worker. Efforts in the recent past to discard the workers’ compensation system have come from both sides. After a lengthy discussion where representatives of both sides presented concerns and complaints, it can be fairly concluded that, if fairness can be judged by mutual dissatisfaction, the workers’ compensation system, overall, represents a fair compromise.
SPOTLIGHT ON A FELLOW
Jacque Brawner Dean – CWCL Treasurer
Jacque Brawner Dean Law
Edmond, OK
Do you represent injured workers, employer/insurers, or are you exclusively a Judge or Mediator?
I represent employers/insurers and am a certified mediator.
How long have you been working representing the same segment of the workers’ compensation industry?
1982
Have you worked in any different segment of the workers’ compensation industry in the past and, if so, which one?
No.
Are you in private practice? If so, how many lawyers are with your firm?
Yes, I am in private practice.
Are you in-house counsel for an employer or insurer?
No.
What is your case load like?
Three to four cases a day; four days a week.
For practicing attorneys, on average, how many cases do you try in a year?
One hundred twenty-five; I also conduct three to four mediators a week.
Did you choose the practice of workers’ compensation law or did it choose you? Please explain.
I was the first administrator of the Workers Compensation Court. One of the Judges resigned to head the John Glenn Presidential campaign. I applied for his job and was appointed the Youngest Judge by Governor Nigh.
When were you admitted to the College of Workers’ Compensation Lawyers?
I was admitted into the College in 2007 in Naples, Florida.
What is the best thing about being a Fellow in the College of Workers’ Compensation Lawyers?
Meeting top notch lawyers from across the country.
Are you active in the legal community? If so, how?
Not as much now. I do serve on the committee to plan the Workers’ Compensation Commission Seminars.
Are you active in your general community? If so, how?
I am the Oklahoma member of the National Workers Compensation Defense Network. I am a Sustainer of Junior League Leadership Oklahoma and several other civic organizations.
Tell us what activities you enjoy outside of work.
Meeting friends for wine.
Please share some words of wisdom with our readers.
Make sure you hire a great legal assistant and keep her happy! My legal assistant has been with me for 30 years.
Listen to Fellow Alan Pierce’s latest podcast –
Technology Impact on the Future of the Labor Force and Are Student Athletes Eligible for Workers Comp?
https://cwclawyers.org/in-the-news/
HOT SEAT WEBINAR – ALAN PIERCE, CHRIS BRIGHAM TO DEBATE CHALLENGES TO THE 6TH EDITION OF AMA GUIES
The fifth episode of the Hot Seat Webinar program will be entitled, “Impairing the Guides: The Legal Assault on the 6th Edition,” and will be broadcast September 20, 2018 at 1:00PM Eastern. It will take an in depth look at the legal challenges being brought around the nation concerning the 6thedition of the AMA Guides to the Evaluation of Permanent Impairment. Special guests Dr. Chris Brigham and Attorney Alan Pierce will square off on the perceptions and future of the 6th edition. Brigham is Senior Contributing Editor for the AMA Guides Sixth edition and Editor of the AMA Guides Newsletter. He is also author of the book, “Living Abled.” Pierce is a well-known claimants attorney and host of the podcast “Workers’ Comp Matters” heard on the Legal Talk Network.
Both men will join Hot Seat co-hosts Bob Wilson and Judge David Langham for what is expected to be a spirited discussion on the issue. Registration is free and may be completed here, and a recording of the program will be available immediately after the webcast.
The Hot Seat Webinar Series launched on September 29, 2017, with the episode Opioids and Formularies, Going to Pot?. It was followed on January 5, 2018 with the program Violating Trust: Ethical Conundrums in Workers’ Compensation and Sexual Harassment in Workers’ Comp: Ignorance, Stupidity or Evil? on March 29, 2018. On June 29, 2018, the topic was Rise of The Millennials: The Passing of the Baton. The entire series is dedicated to discussing important topics for the workers’ compensation system with a frank and honest dialogue.
Seating for this presentation is limited. Persons interested in attending “Impairing the Guides: The Legal Assault on the 6th Edition” are encouraged to register here. The program will also be available for playback immediately following the live webcast.
HOW AND WHY THE MEMBERS OF THE CWCL BOARD BECAME WORKERS’ COMPENSATION LAWYERS
As experienced workers’ compensation practitioners, the Fellows of the CWCL all understand that with workers’ compensation comes many interesting and entertaining stories. Whether it be the facts of any workers’ compensation case, the parties involved in a claim or the judges and lawyers involved in the case, there always seems to be an interesting story or two behind the case.
The Fellows who work on the CWCL Newsletter therefore thought it would be of interest to our readers to hear the stories behind how each of the Board members came to be workers’ compensation practitioners. We hope that you will find the information below entertaining as well as an avenue to learning more about the Board of the CWCL.
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Jim Anderson, MS
Out of college with a Bachelors’ degree in Psychology and inadequate funds to pursue my plans for an advanced degree studying “Experimental Physiological Psychology”, I began searching for a job that would provide a meaningful use of my degree. There were very few such jobs available. I finally found a company that wanted someone with a degree and they didn’t have a preference as to what it was in. I was therefore hired as a “trainee” by Aetna Casualty and Surety Company in the Claims department. I learned how to handle all kinds of claims—car wrecks, slip and falls, products liability, house fires, surety bond losses, and even workers’ compensation claims. I took a strong interest in Workers’ Compensation, however, and even prepared, after a couple of years, an outline on how to handle those claims for others entering employment as a trainee.
I soon learned that the ultimate disposition of all claims was in the hands of lawyers. I therefore decided to position myself where I could go to law school, and even secured a position with the Mississippi Workers’ Compensation Commission while attending law school. My job provided an amazing exposure to the Workers’ Compensation community at large so that when I entered private law practice, I had an amazing network of claims professionals with whom I had interacted and who were willing to give me an opportunity to handle their litigation.
Early in my practice, I handled a variety of litigation, but after a few years, I decided to limit my practice to Workers’ Compensation, and that has remained my focus for the past 30 years or so. Having remained on the defense side almost exclusively, my decision has not permitted the same economic benefits of some other options, but it has been a good decision for me and one for which I have no regrets.
Ann Bishop, GA
I got into workers’ compensation totally by accident, a lucky accident, but an accident nonetheless. When I graduated from law school, I went to work for a firm which did labor law representing management. In connection with my first marital mistake, I moved to Charleston, South Carolina where my then husband was attending medical school at the Medical University of South Carolina. When we returned to Atlanta after he transferred to Emory University Medical School, I had a 1-year-old child. Because my labor law job had required such extensive out-of-town travel, I decided I could not go back to that area of practice. Accordingly, I simply began contacting older lawyers who were friends of my parents. One of them arranged for me to interview with Charlie Drew of Swift, Currie, McGhee, and Hiers. After some delay, which was in no way related to that fact that Charlie showed me the pistol he kept in his center desk drawer and assured me I needn’t be worried about walking to my car in their parking lot, or the partner, who shall remain unnamed, who took me out for a drink at the end of a day of interviewing and we were not accompanied by the other members of the hiring committee as I had expected, I accepted a job offered by Charlie Drew to handle workers’ compensation defense matters. It was the best decision I have ever made. I have loved every minute of my professional life since I started working on Charlie Drew’s team for John Ferguson, the newest partner at that time.
Tom Domer, President, WI
My legal odyssey began with an abrupt denial: “We don’t need another history professor.” Newly-minted Ph.Ds. were not in short supply in the mid 70’s, when I completed my degree at Marquette. My wife Mary, then teaching at St. Joseph College in Indiana was pregnant (with our son Charlie), and apprehensive about the dual responsibilities of job and motherhood. Our plea to the College president for a dual appointment fell on deaf ears.
Back in Milwaukee, teaching part-time at UW-Milwaukee, my tennis partner (and later law partner, Howard Myers) made a proposal. Their firm (Shneidman, Myers) could use a non-lawyer as a “Legal Services Coordinator,” writing briefs, handling client complaints, publishing newsletters and representing workers in union arbitrations, equal rights, unemployment and worker’s compensation matters. A few years later, with a full case load of clients as a Licensed Worker’s Compensation Representative, law school beckoned.
Because Marquette had more stringent (and punitive) attendance requirements, I rode the bus to UW-Madison while maintaining my administrative practice. Ten years older than most other students, with a wife, two small kids and a mortgage (and an active administrative practice), my law school experience was clearly non-traditional. I paid five students to tape my classes and send me the tapes on the Badger bus and if I had a hearing and a class scheduled, I went to the hearing.
My partnership at Shneidman Myers morphed from equal rights trials to Social Security to exclusively workers’ compensation over my 25-year tenure there. My passion for teaching remained, and I have been teaching the Workers’ Comp course at Marquette Law since the mid 90’s
I opened Domer Law as a sole practitioner in 2001. When son Charlie, a Godfrey & Kahn associate in Madison, expressed an interest in the practice a few years later, I was elated. As I tell anyone who asks, Charlie is nicer, smarter and works harder. Charlie’s partnership has elevated the practice in many ways, not the least of which is conversion to paperless, computer accessible files.
Our commitment to injured workers is reflected in several leadership positions we’ve held: Charlie as President of the Wisconsin Association of Workers’ Compensation Attorneys, and Workers’ Comp Board member/legislative liaison for the Wisconsin Association for Justice; and me as President of the College of Workers’ Compensation Lawyers and Chair of the Workers’ Comp Section of the American Association for Justice.
Jim Gallen, MO
My introduction to the workers’ compensation concept, if not its system, occurred before my seventh birthday. My mother had given me some money and instructions to go to the neighborhood confectionery to make a purchase. As I ran out our driveway I slipped on the “chat,” falling and scraping my leg. After my mother provided first aid I was recuperating when my grandfather stopped in and told me that I was entitled to Workmen’s Compensation. I was thrilled by the prospect and, when my father returned home from work, I attempted to retain him to handle my case. He told me that he did not like the idea of me suing my mother so he offered me a quarter to settle my case which I enthusiastically accepted. With settlements of that magnitude is it any wonder that I grew up to be a defense attorney?
Over the years I heard the stories of Workmen’s Compensation (the term until 1975) cases, interesting claimants and their attorneys at home. A treat of several summers was to accompany my father on a trip to dockets in southern Illinois. On these journeys I always like taking advantage of being able to read the Chicago Tribune. I specifically remember one trip to Marion Illinois during which I saw the Trib’s headline “Cards deal Cubs in race – send Broglio”. And all the Cubs had to give up was Lou Brock.
Eventually I did follow my father to Saint Louis University law school and joined his firm working on the defense of civil matters in Missouri. After his associate, who had been my classmate and whom I had recommended for the job, left the firm I was asked to replace him. It was a pleasure to work with my father for six years until his death and to be able to continue in this field to the present. I feel that life is like a rerun. When I was a young attorney mail and telephone calls to my father and I would get mixed up and now my son and I, who also defends workers’ compensation cases in our firm, deal with the same conundrum.
LuAnn Haley, ALJ, AZ
Like some of the other Fellows, I too first came to know workers’ compensation before going to law school. My first job out of college was as an insurance adjuster for Liberty Mutual and while working with the legal staff at Liberty decided that I too could be a lawyer. So, nine months later I went to Dickinson School of Law in Pennsylvania. When I graduated in 1981, it was not an easy market for women lawyers and I had the choice of working for a firm in Harrisburg doing collections for student PHEAA loans or go to Johnstown, Pennsylvania to become a comp lawyer.
I have never been sorry that I selected the firm in Johnstown and immediately started to attend workers’ compensation hearings involving coal miners and steel workers. I also had the good fortune of coming under the wing of one of the most accomplished comp lawyers in Pennsylvania, John Bagnato, who is also a Fellow in the CWCL. I went on to practice in Pittsburgh, Pennsylvania in workers’ compensation defense firms after spending four years in Johnstown. Continuing in the field of workers’ compensation, after I moved to Arizona in 1998, I have been working as an ALJ for the Industrial Commission of Arizona ever since. I can honestly say that my almost 40-year career in workers’ compensation has been interesting, rewarding as well as entertaining.
Kip Kubin, Vice President, KS
My entry into workers compensation was based on location. I started with a big defense firm, and initially did product liability and environmental defense cases. After wrapping up an environmental case that took about two years, I went into my office one morning and found about 50 workers’ compensation files stacked on my desk. The partner in charge of the workers’ compensation practice had the office next to me, so when his associate left, he decided I was going to be his new work comp associate. On top of the stack of files was a paperback version of the Kansas Workers’ Compensation Act and a note that, in paraphrase, said “figure it out”. Eventually, I did.
Ray Malca, FL
My introduction to workers compensation law began when I randomly called law firms my second year of law school. I had two interviews, one with a senior partner in a defense firm handling workers’ comp and the other with young partners at a personal injury firm. Both offered me clerkships. I elected to accept the position with the defense attorney. My initial task was to summarize opinions of our Commission (no one published the opinions at the time) and add the summary to our to a research notebook. I read and summarized hundreds of cases. I was hired as an attorney and began my career as a workers’ compensation attorney. After five years I began to represent injured workers.
Alan Pierce, MA
In 1969, fresh out of college I took a job with Liberty Mutual as an auto liability claims adjuster, one step ahead of my local draft board.
Then two things occurred that changed my life. I got a high number in the draft lottery ensuring I would not be spending time in Southeast Asia; and a young legislator from Brookline, Massachusetts named Michael Dukakis persuaded our state legislature to pass a first in the nation automobile No Fault law putting the career of this fledgling auto claims adjuster in jeopardy.
As luck would have it (and luck as usual plays a role in all things serendipitous) an opening arose in our workmen’s [sic] compensation claims department. I transferred to WC in 1970, enrolled in Suffolk Law School’s Evening Division and four years later joined Liberty’s legal department as a lawyer practicing before the Industrial Accident Board, where I have continued to practice for the past 44 years, the last 35 of which I have proudly represented injured workers.
Reflecting back, as I now oft do, I firmly believe the skill set acquired as an outside road adjuster equipped with company car, statement pad and Polaroid camera, was worth more to me professionally than my law school courses. It was for me, as with many colleagues who also started in claims, a most practical environment in which to learn and observe human nature and the reaction of workers and their families to the sudden change in health and income.
I also note with some consternation how handling workers’ compensation claims has changed over the decades; moving away from local, outside adjusters to centralized national claims departments where personal contact with claimants and their attorneys (as well as their policyholders) has diminished.
I continue to enjoy my career choice, with the knowledge that not only have I made a living, but also made a difference.
David B. Torrey, WCJ, PA, Secretary
I started in workers’ compensation during law school. I did not work the first summer after law school, but in January of my second year, a classmate, who had been a Liberty Mutual adjuster, recommended me to the firm at which he clerked. He approached me about the opportunity, but cautiously admonished, “I must warn you … all they do is workers’ compensation.” That was not an issue with me, and I took the job. I thereupon saw that lawyers in the field did not undertake lots of writing in the area, so I tried to make that my niche. My 3L law review article for the Duquesne Law Review was on subrogation and third-party actions under our state’s law.
Although it may sound contrived, I knew what workers’ compensation was, as I sustained a serious laceration to my left hand at my first job, at a restaurant, when I was fourteen. I told the manager that I was sure my Dad would pay the ER bill, but he responded, “Don’t worry about it, kid, workmen’s compensation will pay.”
Leslie Tuxhorn, CA
I entered law school with the intent to be a criminal attorney. As I exited law school, our county had placed a moratorium on hiring. Also finding myself pregnant at this point, I began to interview “for practice.” The very first place I interviewed hired me despite a looming maternity leave. I say that I got sucked into the CA WC Vortex and never escaped.
Bob Wisniewski, AZ
When I went to law school, I never even heard the word workers’ compensation. Never had any exposure to workers’ compensation although my dad was a mechanic in a refinery and occasionally a few of the neighbors would stay home from work (probably due to an injury) and I am sure they were ridiculed by the other workers who went to work every day, I didn’t realize at that time that it was workers’ compensation. However, when I graduated law school I took a job as a law clerk to the Chief Judge of the Arizona Court of Appeals, an intermediate appellate court. That court had a panel that handled direct appeals from the Arizona Industrial Commission. At that time my judge sat me down, explained to me that workers’ compensation was similar to personal injury law — it just used different words — and he introduced me to the lingo. I worked on a variety of workers’ compensation appeals during that year and a half clerkship. Following the clerkship, I was employed by an insurance defense firm. One of the partners in the firm was a lawyer/physician combination and he received many workers’ compensation cases for defense due to his familiarity with medical terminology. I learned workers’ compensation handling and assisting him in those cases, and then occasionally migrated over to doing some claimants’ cases. Thereafter, I defended insurance carriers for many years and mixed my practice, migrating to a full workers’ compensation claimants’ practice. I prefer to represent injured workers and have been doing so for the past several decades.
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We hope by reading the above accounts as to how the Board members of the CWCL came to practice workers’ compensation brought a smile to your face and provided you with a chance to recall your own start in the field. The members of the Board of the CWCL are happy that all of the Fellows in the College chose the field of workers’ compensation for their practice.
Kids’ Chance Update: Organizations Gather for the Kids
The 2018 Annual Meeting Connects, Educates and Strengthens the Kids’ Chance Community
“I’m so grateful and blessed with everyone at Kids’ Chance. I hope I’m making them proud as well.” Sarah James is a Kids’ Chance of Michigan scholarship recipient. Her father was killed eight years ago in a workplace accident, and a scholarship from Kids’ Chance has helped her to pursue her educational dreams.
Along with Sarah, student scholarship recipients and alumni – the beating heart of Kids’ Chance organizations across the country – attended the 2018 Annual Meeting, serving as a constant reminder of our collective purpose.
Their stories and the futures they’re working to build brought together the Council of State Organizations, where representatives from 30 states held a dynamic meeting to discuss initiatives that strengthen the states’ capabilities.
Further discussion sessions engaged supporters on issues such as inclusivity, resource access, donation recognition and volunteer engagement. In short, the sessions addressed how our community can continue to expand its depth as we expand our breadth – we’re now 43 states strong with three more in the making.
Kids’ Chance founder, Bob Clyatt, also shared his story, saying “Don’t clap for me. Clap for yourselves.” It’s his vision and core focus on the kids that continues to propel us forward.
Over the past years, many Fellows have attended the Kids’ Chance of America conference including Sally Voland, Doug Feldman, Patricia Killingworth, Jane Stone, Chuck Davoli, Ann Bishop and the late Murray Feldman.
Jim Hudak, Executive Chairman of Paradigm Outcomes, was also presented with the Robert M. Clyatt Distinguished Service Award, named in honor of Bob Clyatt.
“I cannot think of a more deserving recipient for this award. From the day Jim Hudak learned about Kids’ Chance, he has embraced the Kids’ Chance mission: wearing the pin, talking the talk and walking the walk. He has been generous with his time, resources, expertise, and financial contributions,” said Suzanne Emmet, past president of Kids’ Chance of America and long-time Kids’ Chance supporter. Jim’s acceptance remarks centered on what matters: the kids.
#MoreMoneyforMoreKids
What remains clear is that we need help identifying students in need – and that’s where you come in.
The Planning for the Future initiative is designed to reach potential scholarship applicants, specifically those who are not yet of college age. We collect and maintain contact information for identified students and communicate with them when the time comes to start considering higher education. Scholarship grants may be awarded to students attending accredited post-secondary educational programs.
If you know a child who may qualify, even if their college-age years are far away, complete our online form so we know to reach out.
Please remember to mention Kids’ Chance in your personal and professional life. The Fellows of the College of Workers’ Compensation Lawyers have been invaluable in helping spread the message of Kids’ Chance so that Kids’ Chance can move ever closer to its goal of ensuring that every child of a seriously or fatally injured worker in every state, can receive financial assistance in making his/her educational dream a reality. If each Fellow acts as a Kids’ Chance ambassador, that goal will be a reality in the near future.
ARTICLES OF INTEREST
A CASE FOR REMEMBRANCE – REFLECTIONS ON 100 YEARS OF WORKERS’ COMPENSATION
By Fellow Ferrell Newman, Richmond, VA
“But for injuries resulting from such inhumanity and such folly the courts can furnish no relief…”
Drawn by the prospect of dependable income, Charles Holt Robinson departed the family farm to work as a miner in Virginia’s coal industry. With only a few months of experience under his belt, Robinson secured employment with mine owner, Ferral C. Dininny. The Dininny mine consisted of parallel shafts connected at their respective bases by a tunnel some 415 feet underground.
Abandoned decades before Robinson’s employment, the shafts had become progressively occluded, the consequence of cave-ins and the accumulation of rain water. Dininny was intent on reviving the mine and so employed Robinson and others to clear the shafts, a process requiring the pumping out of stagnant water and, by means of rope and bucket, removal of dirt, stone and fallen timbers. By such primitive means, Robinson and his co-workers succeeded in clearing the entirety of the northern shaft, affording access to its base and the tunnel connecting to its southern twin.
With attention directed to the remaining shaft, Robinson’s supervisor issued his directions as to the manner in which the shaft was to be cleared. The workers were instructed to descend the northern shaft, traverse the tunnel and begin clearing the southern shaft at its base, progressing upward toward ground level. Perhaps the supervisor’s plan presumed that by working from the bottom, gravity would assist in dislodging the inherently unstable obstructions which could then be carted through the connecting tunnel and removed through the cleared northern shaft. If such was his intent, then the supervisor was correct in part.
On September 25, 1895, Robinson found himself deep underground, digging away at the foundation of accumulated dirt, stone and rotten timber. Predictably, his efforts triggered the collapse of the obstructions, a cave-in of such magnitude that it took weeks to recover his body. Robinson was nineteen years old the day he died.
The wrongful death case of Robinson’s Administrator v. Dininny made its way to the Virginia Supreme Court in 1898.[1] Because the Virginia Workers’ Compensation Act would not be voted into law for another twenty years, the sole means of recourse for Robinson’s destitute parents was to attempt recovery through common law tort. A Chesterfield County jury, no doubt moved by the tragedy, returned a verdict of $4,000.00, a substantial sum for that day. However, common law defenses of contributory negligence and assumption of the risk were insurmountable hurdles to entry of judgment and presented the trial judge with no option. He set aside the verdict.
On appeal, the Supreme Court was perplexed by the instructions issued by Robinson’s supervisor and questioned why someone familiar with the business of mining would assume such a cavalier attitude toward the obvious danger. However, in affirming the trial court, the Supreme Court was constrained to assume that Robinson, though young and inexperienced, knew “the practical effects of the law of gravitation, and that when a mass of earth, stone, or other material is undermined by removing its foundation it is liable to fall.”[2]
With stark clarity, the case of Robinson’s Adm’r v. Dininny, illustrates the round peg – square hole inequity of applying traditional tort rules to the relationship of master and servant. Before the Workers’ Compensation Act, when a servant entered the service of the master, the servant “assume[d] all risks from causes which are known to him, or which should be readily discernible by a person of his age and capacity in the exercise of ordinary care.”[3]
In Robinson’s day, employees injured on the job relied upon their employer’s common law duty to provide a safe work place. Common law tort rules, however, rarely fit neatly into the relationship of master and servant. When injured in their master’s service, liability rested upon proof of the employer’s negligence. Even where negligence could be proven, counterbalancing affirmative defenses of assumption of the risk, contributory negligence and the fellow servant doctrine[4] often barred recovery. Then, as now, workers were familiar with their workplace and the risks presented by the nature of their employment. Such knowledge played naturally into affirmative defenses when known danger translated into injury or death.
[1] 96 Va. 41, 30 S.E. 442 (1892).
[2] Id. at 43, 30 S.E. at 442.
[3] Id. at 42, 30 S.E. at 442 (citing McDonald v. Norfolk & W. R. Co., 95 Va. 98 (1897); Bertha Zinc Co. v. Martin, 93 Va. 791 (1895); 1 Shearman & Redfield on Neg., sec. 185 (5th ed.)).
[4] The fellow servant rule was a common law tort doctrine that insulated employers from liability for injuries negligently inflicted on a worker by a fellow servant.
100 Years of Workers’ Compensation
Except for a fortunate few, the decision to enter the workforce is not entirely voluntarily but motivated by need for a livelihood. With the employment contract comes the employee’s duty of loyalty to the employer.[5] In exchange for wages, employees perform the services to which they are directed. That some such services are by their nature inconsistent with the conduct of the common law’s reasonably prudent person is manifest. This was true for Robinson, whose faithful fidelity to his supervisor’s instructions afforded immunity to his employer for setting him to the task that killed him. Not deaf to the irony and human tragedy, the Court wrote, “It is difficult to understand why any employer would be so inhuman as to have his work done in that way when there was a safer and better way to do it, or why any servant would be guilty of such folly as to work in a place where the danger of being injured was so obvious and so great.”[6]
The Virginia Workers’ Compensation Act’s enactment in 1918[7] represented an acknowledgement that the workplace was worthy of special treatment and needed to be unmoored from the restraints of the common law. The relationship between employers and employees is symbiotic, but parties do not enter the workplace as equals or necessarily share the same interests and needs. The Act represented an attempt to address those sometimes competing interests and needs. Employers were granting immunity from vexing lawsuits and the vagaries of the jury system. Liberated from the duty to prove, or overcome allegations of negligence, those injured in their master’s service could receive timely medical treatment and wage loss benefits.
In the years following the enactment of the Workers’ Compensation Act, the Virginia Supreme Court began to wrestle with concepts entirely novel to the common law. Different circumstances resulting in injury created questions of what constituted an accident, what risks were incidental to the employment and what it meant to be in the course of the employment.[8]
[5]Williams v. Dominion Tech. Partners, 265 Va. 280, 289, 576 S.E.2d 752, 757 (2003) (citing Horne v. Holley, 167 Va. 234, 241, 188 S.E. 169, 172 (1936)).
[6]Robinson, 96 Va. at 43, 30 S.E. at 442.
[7]The statute was then known as the Workmen’s Compensation Act.
[8]See, e.g., Dreyfus & Co. v. Meade, 142 Va. 567, 129 S.E. 336 (1925) (employee struck by a vehicle while going to lunch was on a personal errand and not in his employer’s service); Kent v. Virginia-Carolina Chem. Co., 143 Va. 62, 129 S.E. 330 (1925) (employee struck by train and killed walking home from work was not in the course of his employment); Crews v. Moseley Bros., 148 Va. 125, 138 S.E. 494 (1927) (a physical collapse followed by death eight days later
Very quickly workers’ compensation fully assimilated into our legal system and our culture. Addressing its impact in 1927, the Supreme Court wrote, “It is to be borne in mind that the compensation act is a statute apart to itself, providing compensation for the beneficiaries thereunder upon the terms prescribed, and changing many rules of the common law. It abolishes the doctrine of fellow-servants, contributory negligence, assumption of risk. It is in the light of such changes, and other ameliorations of the hardships of the common law that we are to ascertain the legislative intent from the language used in section 14.”[9] Less than thirty years after its enactment, the Court employed lofty language to characterize the Act as “one of the most important branches of law” as “essential to industry as it is to labor.”[10]
The Workers’ Compensation Act has entered its centennial year. Exclusive jurisdiction over claims is seated with the Workers’ Compensation Commission which at any one time oversees in excess of 100,000 awards of benefits afforded under the Act. In 2017 alone, 58,094 major workplace injuries were reported. Awards were entered in 26,655 cases by agreement of the parties. Over 4,000 opinions were issued following evidentiary hearings held across the Commonwealth before twenty-four Deputy Commissioners. The Commission has its own mediation staff that assisted in the amicable resolution of cases, resolving a variety of disputes and contributing to the over $297,000,000.00 paid in settlements for injuries sustained in the workplace.
And what impact has this legislation had on the inhumanity and folly that perplexed the Robinson Court? Legislation is no cure for folly but is, perhaps, better suited for injecting some degree of humanity into a system heretofore “frustrated by the inexorable rules of the common law.”[11] The Act’s passage may be viewed as a fragment of a larger evolution of law and culture in the direction of humanity’s more noble attributes. We no longer have debtor’s prisons, work houses and forced child labor. Within the context of these changes, we may view the passage of the Act. “Upon its effectiveness depends the potential welfare of a large number of employees and their families.”[12]
Every injury is sustained for a reason, whether it be human folly or the misfortune of being in the wrong place at the wrong time. Lost to the world of the common law tort are the innumerable injuries resulting not from negligence, but from the inherent incompatibility between aging human bodies and physical labor. With the enactment of the Workers’ Compensation Act, now unfettered by the burden of proving an employer’s negligence and immunized from common law defenses, employees may receive necessary wage replacement benefits and medical treatment important to both the injured workers and to the businesses that rely upon a healthy workforce to function. A consequence of the Act is that employers and employees share a common interest in the safety and welfare of the workforce by providing relief even in those cases resulting from the inhumanity and folly that perplexed the Robinson Court.
Had the Act been in effect in Robinson’s day, it may not have saved him from the folly of his supervisor’s instructions. What modest income the Act might have afforded his parents would have been small consolation for the loss of a child. Equally true is that humanitarian ideals can be lost when parties advance competing interests through the dehumanizing crucible of litigation, a reality whether they find themselves in the common law courts or before the Workers’ Compensation Commission. There will always remain some number of injured workers who might have fared better through the tort system, and others, no less injured, whose injuries fall outside the Act’s guidelines. But if we are left with much to lament, there is no less reason to celebrate. Every day, the workers’ compensation system represents a safety net that has been instrumental in creating a communal consciousness about safety and welfare and the value of providing relief to those injured in their employer’s service.
Communication Strategies: Clients with Challenging Behavior
By Fellow Robert Wisniewski, Phoenix, AZ
Representing injured workers can be challenging in itself. However, clients can fall into different personality types that make communication difficult, increase stress and often leads to less than optimal results during representation. Hopefully, with an intelligent intake and screening process, these difficult personality types are eliminated at initial consultation. There is only one YOU – the lawyer. And you have limited time, money and resources. You (as well as the client) have a choice who you choose to represent. With a bellicose client, with unrealistic expectations, it is best that you decline representation at the outset.
Difficult clients armed with inherent expectations and the Internet present challenges that did not exist a decade ago. Clients who are exceedingly emotional, demanding and time consuming exacerbate the pressures in today’s Workers’ Compensation legal process that has shortened evidentiary timeframes, electronic data, short deadlines, lots of paper processing, digital record retrieval and all the attendant office management pressures. I propose the maxim that five percent of your clients will “run the rest of your office”. These unrealistic clients, who in the past, called incessantly will now electronically deluge your office with emails and texts. These didn’t exist a decade ago. Often, the personality hidden behind the email will be a negative, aggressive one. Don’t be surprised following an in-office appointment, face-to-face with the client explaining the case, you later find a nasty email mischaracterizing the conference and claiming that the injured worker did not understand any of the advice and “you do nothing for the claimant”. Mix this in with the Internet – now clients question your advice and even the medical information armed with reams of Internet-generated articles on law, evidence and medicine. The attorney’s function in representing an injured worker is to take the facts of each case, display them against the law, and create a cohesive evidentiary strategy for the tribunal. The client who barrages you with enormous information of dubious validity obviously doesn’t recognize the importance of proper evidence.
Too often, when such a demanding client challenges the professional, the lawyer will be defensive, but one must recognize that such a confrontational client demonstrates a lack of trust. The lawyer will try to explain the advice, but the client may be dismissive and stubborn, which often consumes more time as the lawyer endeavors to explain the law of the facts and the evidence. Unless the attorney can assuage these fears and circumvent these trust issues, there will never be a positive representation relationship.
The attorney should approach the client as an opportunity to educate, thus opening up their trust and perhaps demonstrating a willingness to accept the attorney’s advice, guidelines and embrace the strategy the lawyer is suggesting. Perhaps, the lawyer demonstrates to the client that it is a “joint strategy” and this approach allows the client to invest himself in such strategy so that the client becomes more invested in the process. At the initial client meeting, it will be helpful for the lawyer to explain this “team approach to the case”- requiring the client to do some “homework”, secure the names and address of witnesses, perhaps secure some medical records and other similar items of “homework”, with deadlines for completion. This will also demonstrate to the lawyer whether or not the client will be compliant with the lawyer’s suggestions to obtain such information. Someone who doesn’t do their homework is not a client that is going to be compliant in other portions of the case.
People with demanding behaviors often display confrontational behaviors. Remember all the people who come to your office for help are hurt, scared, broke and don’t do paperwork well. The financial burden imposed by the denial of the claim or slow payment of benefits exacerbates their emotions and lessens their patience with the process. Since they can’t strike out at the insurance company, the defense doctor or the judge, you and your office staff are the only target. Their anger and hostility reflect that they have lost the control of their lives because they’ve lost control of their Workers’ Compensation matter, which is an important portion of their life. Your staff will be accused of not caring, not doing anything on the case and with claims that you’re delaying the case and a host of other sins. Pre-technology, it would be multiple telephone calls, drop-ins – but now it’s texts, emails and postings on social media, which are new tools added to the injured worker’s quiver. These displays of their feelings of not being adequately treated can subject the lawyer to a bar complaint or worse. The client’s maladaptive behavior style doesn’t help the lawyer who has to work hard to slay dragons that have some basis but are now blown out of proportion. Initially, the lawyer/staff may be defensive and resentful because they have spent lots of time and work on their client’s case and the client is accusing them of not preparing adequately. Can’t you hear the groan from the lawyer and staff when the unhappy client then calls? I would suspect that those calls are shuttled a little further down the return call list than the clients who are much more cooperative. The best you can do is try to work out a collaborative process with the client, acknowledging their concern and seeking to move forward to identify the problem and plan to solve it. With these clients always be immediately responsive; keep your emotions in check; keep your advice and your plan consistent, simple and repetitive; and define your objective. Do the best you can to manage their expectations. Let them establish what they believe are their expectations in the case, then clarify and explain what is possible and what is not possible under the circumstances of your Workers’ Compensation system. Write out the expectations and the responses to avoid rehashing the same topic over and over again. Explain that only a seasoned lawyer can make decisions about evidentiary requirements and strategy but invest them by advising them of the steps that are suggested and are actually taken. If something goes wrong in your office, acknowledge and apologize.
Many clients are very needy, and are incessant with communication, particularly in the technological digital age. They believe that everything that they do in their life, they need to inform their lawyer of it, because it “may impact my Workers’ Compensation”. The lawyer is their confidant, lifeline and “clergyman” on lots of topics. The staff should be responsive but establish boundaries to this unhealthy need for constant reassurance. One telephone call a day, if responded to, is enough. Clients must respect the staff member’s time and the staff member should establish time limits for appointments and time limits for return calls. The staff member should be instructed to find out the topic of each proposed appointment or proposed conference call before the actual event so that the attorney can be prepared to address the issue in question. Direct the client to printed handout material and website information that talks about the mission of the law firm; the deposition process and the Workers’ Compensation process; the defense medical exam process; and other similar topics that are foreign to the injured worker, but often leads to their incessant telephone calls because they don’t understand the process or how long the case will take and the steps in each process. At the initial hire, give the client several sheets of yellow paper and ask them to keep a log, on notebook paper, of who they talk to, writing down the names of everyone, and of telephone calls, and to write down all their concerns, and then periodically go over them with you or a member of your staff at relevant periods of time, such as when they come in for a deposition preparation, etc. You could then copy and insert this information in the file, so that they understand that you have met their questions and you won’t rehash the same question over again and you can have the benefit of referring to the file notes showing that you have discussed it at a prior visit.
In Workers’ Compensation, there are no “blood-gushing emergencies”. Clients have to be educated not to make every concern a Chinese fire drill and learn to prioritize and thus writing it down on a yellow sheet of paper for later discussion may help. As the injured worker’s lawyer, you have to remain compassionate, but you must set boundaries. Often workers sit home on the weekend and “gunnysack” all of their issues and the first call on Monday is a barrage of concerns learned from that weekend’s B-B-Q with others. It may be worthwhile to advise the client not to call on Monday morning and that you set boundaries that you will only take telephone calls at a certain time during the day so that you could work to move the cases forward. For example, calls only in the morning frees up the afternoon to move files forward. The office mantra should be that, we’re here to help you and that all files are under control not to worry. Many firms set up a specific time during the week when all of the claimants with concerns can come in or have a period of time known as a “sick call” when they can have their questions answered during that period of time. An ounce of prevention eliminates the incessant daily calls by encapsulating them all at one period of time and having a status conference day for “sick call” hour, etc. The staff should not overbook the attorney, so that the client has an understanding that the lawyer’s time is valuable and have only limited time and resources, and the lawyer may be representing another client in another deposition or a hearing. Set realistic goals and timeframes for all appointments and prioritize responses in files. People needing checks are first, medical care perhaps second, and less urgent should be prioritized as C and D and every call should not necessarily be responded to in the order of its receipt.
With these communication strategies, clients with challenging behaviors can be more effectively controlled and the lawyer and staff have more of a sane law practice.
“The Tamping Iron Speaks:” Poetry Inspired by a Notorious Work Accident
by Fellow David Torrey, Pittsburgh, PA
Many readers of this blog will be familiar with the name of Phineas Gage, the victim of one of the most remarkable work accidents in history. Gage, who suffered a brain injury, is reliably mentioned in just about every neurology and neuroscience book for the lay public that one can pick up.
In September 1848, Gage was supervising workers blasting rock in preparation of a roadbed for an early Vermont railway. “Setting a blast” involved a skilled worker boring a hole deep into an outcrop of rock, adding blasting powder and a fuse, and then using a “tamping iron” to tamp sand into the hole above the powder, in effect to make a plug.
Gage became distracted during the process. According to an accurate Wikipedia summary, “As Gage was [undertaking the process] … his attention was attracted by his men working behind him. Looking over his right shoulder, and inadvertently bringing his head into line with the blast hole, Gage opened his mouth to speak; in that same instant the tamping iron sparked against the rock and (possibly because the sand had been omitted) the powder exploded. Rocketed from the hole, the tamping iron – 11⁄4 inches … in diameter, three feet seven inches … long, and weighing 131⁄4 pounds … – entered the left side of Gage’s face in an upward direction, just forward of the angle of the lower jaw. Continuing upward outside the upper jaw and possibly fracturing the cheekbone, it passed behind the left eye, through the left side of the brain, and out the top of the skull through the frontal bone.”
The amazing aspect of the story of the story is that Gage not only lived, but was able to recover and live a fairly normal life for another twelve years. The loss of significant frontal lobe brain tissue altered his personality severely but did not, as many physicians at the time expected, necessarily result in his death. See https://en.wikipedia.org/wiki/Phineas_Gage. Gage did ultimately die of brain seizures caused by his injury.
Although much has been written about Gage, a modernist poem has now been published which is perhaps in its own category – it gives the point of view of the famous tamping iron which both caused the injury and which Gage clung to, after the accident and for the rest of his life. The poem, The Tamping Iron Speaks, authored by Zoe Hitzig, appeared in the June 7, 2018 issue of the London Review of Books. The poem is presumably inspired by her contemplation of the iron, as it is on display, along with Gage’s skull, at a museum at Harvard Medical School (the poet is also an economics Ph.D. candidate at Harvard.) For this brief reverie, see https://www.lrb.co.uk/v40/n11/zoe-hitzig/the-tamping-iron-speaks.
Reprinted from www.lawprofessors.typepad.com/workerscomplaw/ (7-15-18)
Honors and Accolades
Interesting Blogs:
● Fellow Kevin Bunn (NC) is the author of NC Workers’ Comp Law Blog, providing news and information on legal issues relating to NC Workers’ Compensation Law, including medical benefits, wage replacement, North Carolina Industrial Commission Rules, and coordination of workers’ comp with other benefits.
Fellows are encouraged to submit articles or a blog website for publication in future CWCL newsletters. Please contact any committee member with questions, or to forward your article:
Ann Bishop, LuAnn Haley or David Torrey
In Memoriam
We are saddened to report the passing in June of long-time College Fellow and past President of Michigan Kids’ Chance Murray Feldman. Murray practiced Workers’ Compensation defense for more than forty years throughout the State of Michigan. He served in various capacities in the State Bar including Chairperson of the Workers’ Compensation Section, Editor of the Section Newsletter, appointed Special Assistant Attorney General, State of Michigan, Ad Hoc Hearing Referee, Michigan Civil Rights Commission, Adjunct Professor of Law and Author of the Workers’ Compensation Michigan Bar Review.
Murray was instrumental in the creation and success of Michigan Kids’ Chance. He was a strong and effective advocate, contributing his time from soliciting to ensuring that projects and programs were successful and profitable. He was humble and modest and unbeknownst to his colleagues, his contributions to charities were many times anonymous. He is deeply missed by both sides of the Bar. Our condolences go out to his wife Linda, his children and grandchildren.
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