What's Hot in Workers' Comp 2022?

The world of workers' compensation is geographic and diverse. There is no workers' compensation "system," but at least 60 systems across the country. Each state has one (50), then there is the federal system, the Federal Employers Liability Act (FELA) that largely covers railroad employees, the District of Columbia, the U.S. Virgin Islands, Guam, Puerto Rico, American Samoa, the Northern Marianna Islands, the Jones Act, and the Longshore and Harbor Workers' Act all come to mind. Thus, there is a breadth of perspective on work-related accident and injury.

 

There are details and curiosities about each of these. Some are managed by a director, other by a board or commission (a critic or two complains that some seem not to be managed at all). And, the variety in management structure alone is noteworthy and interesting. These systems are blessed with an amazing array of leaders. Each year a variety of leaders from these systems gathers for a roundtable discussion that is produced by the Southern Association of Workers' Compensation Administrators. That congregation discusses the hot topics of workers' compensation before an audience at the WCI Workers' Compensation Educational Conference.

 

In 2022, the sense seems to suggest that what concerns workers' compensation systems has little to do with the employees and employers for whom these systems were intended and designed. That they are the mission is there, recognized, but the real concerns that resonated from the agency leaderships could have instead been voiced by the CEOs of virtually every business in the world of the post COVID Panic. They are, in that respect, somewhat predictable and to some perhaps mundane.

 

Chair Scott Beck of South Carolina moderated this year on August 22, 2022. He started with a trip around the table (it was, after all, a "round table"), and asked what keeps system leadership "up at night." I largely passed at my turn, and instead listened to the assemblage. They expressed issues regarding personnel management, getting agency workers back in the office, training new employees, retaining and compensating valued agency staff in the face of bureaucratic constraints, attracting new employees, telecommuting, and the coming Great Retirement that is expected based upon the perception that agency workforces are largely long-term and senior Mature.

 

There was some mention of the specifics of workers' compensation. Some noted the potential for a virtual employee suffering a work accident at home. That drew some discussion of how states would determine compensability of such events. There were suggestions that ranged from a broad imputation of compensability through an analysis such as is used for travelling employees. There was discussion of the same challenges that are faced by employers and employees in an on-site workplace, such as personal comfort breaks, going and coming, and more. Surprisingly, no one noted that work is work, wherever it occurs, and "arising out of" and "course and scope of" have both worked swimmingly for decades. I struggle with why the "where" makes this more challenging. Sure, there is perhaps some increase in the potential for unwitnessed workplace injury, but lots of premises injuries are likewise unwitnessed. The distinctions may be deeper than I give it credit, but alternatively it is perhaps shallower than others perceive. 

 

There was some mention of this COVID (SARS-CoV-2), infection, and the questions of work-relatedness. This was not the urgent "what if" conversation of years past (it seems sometimes that the Great Panic has been going on a long time, but it has not yet been three years). Largely, it seems, COVID-19 claims have been processed as all others were before or since. A few leapt to presumptions, assumptions, and reactions, but for the most part jurisdictions treated this malady as they had others. Claims were filed, some were paid, some were denied, some were litigated, some were appealed, and in large part the pandemic was simply not the systemic threat many of us feared. 

 

There were some roundtable expressions of concern for the public in the course of proceedings. Some are focused upon how and when workers' compensation proceedings are secured and violence threats avoided. Some of these were general, some instead seemingly focused on "when live proceedings resume." There is some perception of generalized and growing fears of workplace violence. Though this concern is largely for public safety, it can likewise easily be seen as implicating the safety of the agency leaders, adjudicators, and staff. It is an external issue mixed with a somewhat employment issue, that is part of a larger public safety issue intertwined in a tangle of societal perceptions and beliefs. In a word, it is complex.

 

And, in the end, it was such employment issues, internal issues, that dominated the 2022 Roundtable conversation. This included perceptions that remote work is the only path forward for state agencies. There were also those who conclude that remote work is not even an option. And, predictably in any such two-pole or "bookend" management challenge, there were instances and examples expressed that fell between these two extremes. I admit it was astounding to hear talk of agencies that simply shut down during the Panic; it was equally alien to hear of those that sent all workers remote, for months or years. 

 

As an aside, I am so proud of the outstanding public servants in the Florida OJCC. While other systems lament that they ceased hearings for weeks, months, etc. we never did. When they describe their creativity in adapting to electronic filing, I celebrate that we did not need to (we transitioned long ago). As they describe their ingenuity at adopting and adapting to video proceedings, I remember how we similarly adapted in 2003. In short, our long-view and leveraging of technology at the dawn of the new millennium prepared us, facilitated us, and empowered us. The Great Pandemic was different at the Florida OJCC. Our staff never left, though a handful telecommuted briefly. Our offices never closed, though we shuttered a couple for a day of cleaning periodically. We persevered, and hearing the Roundtable discussion only makes me prouder of our team, their dedication, their perseverance, and their loyalty.  

 

There was Roundtable discussion about how hiring managers might enhance recruiting hiring efforts if they brag about accolades from third parties. That state covets awards and plaques, issues press releases, and strives to have employees spread the word about their workplace (which in that state is almost exclusively the employee's home). Other states voiced suggestions for returning the remote employee back to the office. Some said the employee might be lured with special events and camaraderie days, socials, and more. The lure of a consistent paycheck, benefits, and stability is apparently insufficient in some quarters, and only one expressed the seemingly simple way to get workers back in the office - tell them to report to work. 

 

Some discussed the challenges presented by arcane staffing regulations that may impact recruiting and retention of state workers. Others lamented a recent history of insufficient frequency and extent of legislated pay raises, cost of living adjustments, and benefit expansion in state government. There was mention of public perceptions of "lazy" state workers, and the necessity of countervailing those perceptions and feelings. The fact is, between just you and I, there are lazy state workers (you can say you heard it here first). And there are likewise lazy workers in every industry, company, and setting. Too often, however, we paint with a broad brush based on one admittedly poor example. The fact is that every company, industry, and state agency also has superstars, exemplars, and leaders. Too often, we perhaps forget to highlight these fantastic and outstanding people, celebrate these exemplars, and simply thank these coworkers?

 

Finally, someone mentioned that they perceive their agency workforce as aging, nearing retirement, and they fear that there will be a "brain drain" as those employees transition to retirement. In short, the management of state agencies seems as confounded by the end of the Great Panic as employers generally.

 

In years past, the roundtable has focused upon questions of delivering due process to those who are engaged in benefit disputes. There have been academic discussions about how particular statutes work, the sufficiency of benefits, and compensability of claims. The focus has often times turned to the diversity and distinctions that having so many (60 or more) systems brings to the nation, the "industry," or the community. In 2022, it was, admittedly, a discussion of more mundane managerial challenges. One attendee afterward lamented to me their perception that what keeps the state's leadership awake at night is "no different" than what concerns all other employment managers. The adjective the attendee expressed for these topics, and the Monday discussion generally, might be seen by some as unkind or worse and thus I omit its mention. Suffice it to say that attendee longed for a more substantive and focused workers' compensation discussion. 

 

There may be merit in the criticism. I appreciate more acutely than many there are challenges ahead for workers' compensation. The "the woods are lovely, dark and deep, but I have promises to keep, and miles to go before I sleep," Stopping by Woods, Robert Frost, 1923. I would like nothing better than to stand here in the dark and observe the workers' compensation systems, their complexity, intricacy, and frankly poetry. They are indeed lovely, intriguing, and challenging. But, we dare not tarry here. 

 

I perceive many challenges to workers' compensation on a fundamental level. I see the potential that the very fabric of America is changing. There is generational change, population change, economic change, inflationary change (medical inflation historically grows faster than the consumer Price Index, and so medical consumes a bit larger percentage of the workers' compensation spend with each passing every year), and more. My dear company, we perhaps shelter for the moment in "a large dry cave," but what lurks beyond the shadows? At what point will the crack appear, the goblins issue, and our slumber be interrupted? The Hobbit, J.R.R. Tolkien, Chapters 4-7, "Goblins and Wolves" (1937).

 

This world of workers' compensation is important and relevant in the twenty-first century. State agencies are challenged by staff recruiting and retention? So is the rest of the working world. Common assumptions and beliefs about the nature of work is challenging managers? Old news. The new and next generation(s) think differently than us antique mature managers? No surprise. The world is evolving, artificial intelligence is growing, robots are taking over what used to be jobs. Metrics are king, accountants are in charge, and everyone wants to see evidence, science, proof. Sentiments, perceptions, beliefs and motivations are dividing us. The world is challenging us. 

 

The old mature crowd in which I find myself is struggling with change and lamenting our simple past. Do we really imagine that we are that different than previous mature populations that had to contend with the advent of the steam engine, the industrial revolution, the urban sprawl and suburbia facilitated by automobile ownership, the telegraph, telephone, facsimile machine, computer, personal computer, forty hour work week, labor laws, the birth of the Internet, email, text messaging, smart phones, and more? Progress is not new. Much of what is mentioned above occurred in the last 50 years. Change is not new. We have all lived it, faced, it, and grown. But, in our present maturity we are perhaps less resilient to it, accepting of it, patient with it? 

 

Is it possible that the next generation is not nearly as concerned about the changes as we are? 

 

I am nonetheless drawn to the simplicity. If we could only go back to the way things were (pre-Panic, pre market-crash, pre-housing bubble, pre, pre, pre). But, even if we could, what would Alice say? She would remind that "It's no use going back to yesterday, because I was a different person then." (Alice in Wonderland, Lewis Carroll, 1865). The experience changed Alice. And, the world is changing us just at it itself changes. We could now easily face the challenges of yesterday, but only because of the way we grew because of them. We must remember that we, and the next generation, will likely therefore similarly meet the demands and challenges of tomorrow. 

 

I recently penned a piece about some young people. I see the forty-somethings in the insurance industry, the next leaders. Some of them quite impress me. I would like to see more thirty-somethings looking further to the horizon and envisioning their place at the helm. I would like to see more twenty-somethings thinking that this little corner of the world, workers' compensation, carries a great and noble burden of "restoring shattered lives." (Robert Wilson, 2022). I would like to think that all of our worry about tomorrow will change something. If we focus on finding, nurturing, and promoting those "somethings" then us old antique mature folks might rest easy (easier?).

 

But, worry is seldom productive. Our reactions to it may be, but the worry itself perhaps not so much. We stand (us Mature Americans) on a precipice of our own perceptions, and certainly our own making. We could blame the last generation for the world in which we labor, and perhaps some such share is theirs. But, in the end the tomorrow of workers' compensation is up to today's grey heads. It is unlikely that we will solve all the challenges, or perhaps even any of them. But, what if we just focused on recruiting the next generation(s), motivating them, inspiring them, and empowering them, so that they have a shot at solving the challenges? Solving those challenges whether us seasoned citizens perceive them today or not.

 

We have done a miserable job of identifying, recruiting, and mentoring the next leaders. Sure, there are exceptions, inspirations, and exemplars out there, but I say we need more. We all have to recruit, develop, nurture, and mentor more. More readily, more steadily, more cheerfully, and more consistently.

 

By Judge David Langham

Courtesy of Florida Workers' Comp