I attended the annual conference of the National Workers’ Compensation Defense Network (NWCDN) last week in Nashville. I’ve written many times about this particular group and their activities. It was great to gather once again in person, and for the first time in two years see many old friends as well as meet several new ones. Some key members have retired over the last couple of years, but they had many new, younger attorneys present. It is good to see the organization continue to grow and maintain its dynamic nature.
As usual, the sessions were very well presented. One, in particular, really stood out for me. It was a panel discussing the concept of “fight or settle,” and the best strategies to deploy when dealing with a litigated case. This included looking at the various elements and indicators that would help guide them to the proper strategy for a particular case.
The panel was moderated by Heather Baker, an NWCDN Member from North Carolina. The three panelists were, Jackie Turner, Global Claims Manager with Cummins, Inc., Kelli Chapman, Vice President of Claims for Eastern Alliance Insurance Group, and Elizabeth ‘Liz’ Wynacht, Senior Manager-Workers’ Compensation for Koch Industries.
Their discussion included the differences you will find in various courts and jurisdictions around the country. But when asked to rank in order the primary factors in deciding to “fight” or “settle” a litigated case, their honest (and accurate) response was nonetheless a potential indictment of the workers’ compensation system. They ranked the most important factor as being “the jurisdiction in which the case would be heard.” The second most important factor was “the actual facts of the case.”
They had a third and fourth factor, relating to the economics and cost of litigation, but we really should focus on the first two. I’ll ask you to go back and read that prior sentence again.
Or I can rephrase it to clarify the point. The court or jurisdiction in which the case is to be heard can be more important than the facts of the case. That could be more succinctly interpreted as “some courts may not care about actual facts.”
This will not be a surprise to many (if any) workers’ compensation veterans. There are clearly jurisdictions friendlier to one side than the other, with most of those with a bias skewing to that of the injured worker. To some degree, it is understandable, as in many locales if there is a preponderance of doubt they will side with the injured worker, as the worker is generally more vulnerable and lacks the resources available to the employer. I think most reasonable people understand that.
But if a system of adjudication has the reputation of blatantly ignoring facts and consistently running roughshod over one side or the other, it is a problem for us all.
Facts should matter. And in a perfect world that would be the primary determinant for how a case should be handled in workers’ comp. But we don’t live in a perfect world. We live in a flawed world of humanity, where bias and predisposition abound. Yes, our system has many fine judges and ALJ’s, who do their best to navigate a contentious and emotional world fairly and evenly. Still, there are some that simply need to try harder; to be better at finding that often impossible balance, and to ensure that the reputation of their jurisdiction is not one that ignores facts in favor of deep-seated preconceptions.
In the end, the “what” of a case should mean more than “who” will be hearing it. Where that is not the case, it remains a stain on the industry.