Finding and Using the Domino Issue

Monday, December 23, 2013 | 0

Success can be hard to define in workers' compensation. There are often a myriad of issues presented in a dispute. Compared to a civil personal injury case, workers' compensation claims are often more complex and offer challenges that are simply not presented in other conflicts.

At the foundation of this difference is the serial nature of workers' compensation. The benefits in workers' compensation are provided through the course of an injury or injuries, the care provided to cure or ameliorate symptoms thereof and the replacement of income during remedial care and beyond its conclusion. This factual context provides an array of permutations, that is a potential combination of these various benefits. Advances in the spectrum of medical care alternatives has only increased these available potential variations.

It is increasingly important for the workers' compensation attorney to understand employment law. Perhaps not in its deepest complexities, but some level of comprehension is critical. There is a perspective that all components of the employment relationship are appropriate for inclusion in settlement negotiations. That may or may not be true in a particular case, but the competent attorney likely needs some level of employment experience to even decide whether such issues are appropriate elements of a particular negotiation.

Workers' compensation has its share of challenges and pitfalls. Absent a settlement of the entire case, a claim may exist for a number of years as various elements of care are administered. It is perhaps this very serial nature that is most frustrating to the employees and employers involved. Americans are indoctrinated to think that even the most complex problems can be solved in 60 minutes (less commercials), just as "House" does on television. This is not real life, and on some level we all know that. However, the lack of rapid resolution can cause frustration.

What are the "domino" issues? I coined this phrase years ago in trying to explain the point of issue negotiation. As an example, there may be a multitude of issues pending at a given moment in a case, perhaps compensability of the injury, an MRI as recommended by the initial physician, referral to an orthopedic surgeon, surgical repair of the injury, temporary total disability during the work absence, and physical therapy for surgical recovery. Those who work in this industry immediately grasp that in this example the benefits listed here may not be in the appropriate chronological order. For someone that is used to thinking linearly, this is a challenge.

Reordering the issues may be helpful to the parties. Reordering in terms of what will lead to resolution of the claim. Which of these benefits will help to move the case forward? I suggest that in this example, the real issue may be the MRI. That medical test may be the roadblock that is holding up intelligent and reasoned consideration of the other issues. The MRI is what the treating doctor wants as reassurance on diagnosis, as support for the referral to an orthopedic, as justification for her/his initial conclusion that surgery is necessary. If the MRI supports these, then perhaps surgery is approved or awarded, and only then is the post-surgery therapy logical.

In this example, with a list of issues that need to be discussed, prioritizing the issues illustrates the domino theory. Resolution of one issue, that diagnostic testing, will bring clarity or at least more information. This issue may, like a row of standing dominoes, cause the remainder of the issues to be clarified. The remaining dominoes may fall of their own accord if that first domino can be toppled.

In our system, we have processes to help with the primary issue. The Office of Judges of Compensation Claims mediation process is issue focused. That does not mean that you cannot settle an entire case with an OJCC mediator. That means that if you are at mediation, our focus can be the issues that are pleaded. The OJCC mediators can help you to focus on the issue or issues that can be resolved. Those might well be your domino issues. By using the mediation time to focus on that issue or issues, you may be effective in starting the chain reaction that will help you to resolve all of the issues.

Another excellent opportunity for beginning this process is the expedited final hearing. Although there are a multitude of issues in the example above, there is nothing that says all of those issues have to be heard at the same time, in one hearing. Perhaps a request for expedited final hearing on that MRI could lead to the adjudication or resolution of that issue? If that is the domino issue in your case, its resolution could bring clarity to a variety of other disputes, and perhaps even lead to resolution.

What issue(s) are impeding progress in your case? How can you bring attention to bear on the domino at the head of the line in hopes of helping the remainder to fall? Just because mediation is scheduled on the whole case in two months, why not go ahead and ask for a voluntary mediation on the MRI sooner? Why not ask for an expedited hearing on the MRI instead of mediating that one issue? Why not use these procedural processes to resolve the domino issues?

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.