It is rare to agree with a person’s argument when you completely differ with the underlying example they have employed in making it. That is what happened to me last week during a session at the American Bar Association Mid-Winter Conference on Workers’ Compensation in Nashville. The panel was discussing the important points of settling claims and had turned to mediation as a topic. One of the presenters displayed a number of bullet points on the subject, including one that read, “Be comfortable with your weaknesses.” Her point was (IMHO) to make sure that people were aware of weak points in their position and were prepared to respond to the impact they had in the overall case. I understood her premise, however, I found myself completely disagreeing with the example she used to define it.

When she came to that particular point on the slide and told the audience to be comfortable with their weaknesses, she offered as an example, “If you have an IME that is sympathetic to or generally supports the treating physician’s diagnosis.” 

Really? That is a weakness? Perhaps it was just me, but I think that is completely subjective in nature. It is completely dependent on both your position and motivations in the process.

In a recovery focused world, having two medical professionals agree on a diagnosis and course of action is probably not a weakness. It is a strong indicator of a path forward that should represent a reduction in friction that so often impairs these cases. But alas, we were not talking about life in a recovery focused world; this was the de-humanizing world of legal minutiae, embracing the time-honored concept of “process and close” over the less recognized and rarely utilized “recover and return.”

And the only possible way that two agreeing medical opinions could be viewed as a “weakness” would be when a payer is looking to shirk as many responsibilities as they can in the process. It is a “weakness” when it hurts your case financially. And it is a “weakness” when your sole goal is to rid yourself of this unwanted obligation with as little liability as possible.

To be fair, this presenter was talking about long tail, or “shaggy dog” claims. The real weaknesses in these cases reside in the conditions and attitudes that allowed them to get in that position in the first place. Once there, it is often just a numbers game to make them go away. I understand a company wanting to limit its liabilities wherever possible, but the reality is that we are supposed to operate under a premise of a “grand bargain.” Shuffling people down a path of failure and disability doesn’t sound that grand, and it certainly is no bargain.

Yes, I was surprised to hear the example that she provided as a weakness when settling a case. But she was correct; we should all be comfortable with our weaknesses. Before we can do that, we should probably work to understand what our weaknesses really are.

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