Communication, Empathy, and Apology

The Worker’s Compensation Hot Seat (WCHotSeat) on September 19, 2019, was focused on the friction involved in determining entitlement to disputed worker’s compensation benefits. Certainly, a great volume of benefits is delivered administratively across the country in cases that never involve filing claims/petitions, litigation, or even legal counsel. In sum, a great many cases work exactly as they are supposed to. We as a community should remember that, as an endorsement of the success of the systems overall.

The WCHotSeat discussion Adversarial Workers' Compensation Systems focused on why there is litigation or friction. Causes suggested by the panel included the complexity of statutes, poor communication, and unrealistic expectations. The program is available here for review. And, for the first time, you can request a certificate of completion when you have watched. That can be used by the viewer to request continuing education credit. 

There was some suggestion on the program that states' efforts at “reform“ have resulted in burgeoning volumes of statutory language. It was posited that these various legal provisions, their interaction with each other, and their various results lead to complexity. The complexity in turn begets uncertainty, questions, and therefore more litigation. That contention merits consideration.

There was also some suggestion that both employers and employees may come into any particular case with expectations that are tinged by either previous experiences or situations that have been related to them. We are each likely the product of both our nature and our nurture, so it is possible we all have some predilections that accompany us wherever we go. These preconceived notions, it was suggested, may create expectations about the case or about each other that are misperceptions. However misplaced, these perceptions nonetheless may influence whether the parties are trusting, understanding, and focused upon resolution and mutual accommodation as opposed to opposition, resistance, and conflict.

The point which seemed most unanimously accepted, however, was the communication. The WCHotSeat guests were in agreement that far too little communication is maintained following a work accident, during the delivery of medical care, and even after a return to work. That criticism is of the volume of communication. The reassurance that comes through calm, persistent, and empathetic communication in both directions was seen as valuable to an amicable and acceptable conclusion to the consequences of any unfortunate event. It is important to remember that the conclusion may come in the form of settlement, but perhaps merely in the form of cessation of conflict and the administrative delivery of periodic statutory benefits. 

I recall a serious accident that became the basis for litigation years ago. The employer made a point of inviting the injured worker, who was under remedial medical care and temporarily totally disabled, to come to a company celebration party. After he later returned to work, his attorney confided in me that human respect meant the world to that worker. I shared that his showing up to participate in the special occasion likewise did wonders for my client's outlook as well. 

But, there was also a discussion of the content of communication. Mike Fish noted that he has worked with clients who are reluctant to express any emotion or acknowledge an employee's suffering, because of fear that will be equated to some form of admission of fault or blame. He advocates that employers and carriers should shed that fear, and be willing to apologize (empathize) when someone suffers an untoward event. There is no weakness in recognizing someone is struggling, is experiencing pain or discomfort, or is simply in need of acknowledgment and encouragement. 

Commissioner Marshall of Virginia reiterated the point and related experience from representing injured workers over the course of several years. He described multiple instances in which a client expressed disappointment to him regarding their employer‘s unwillingness to express empathy or condolences. He noted that several asked him bluntly why the employer never apologized. He was therefore supportive of employers verbalizing empathy and condolence to those who are injured. 

The power of apology cannot be overstated. In 2002, Psychology Today published an article with the title: The Power of Apology. In it, the author recounts a self-imposed separation from a family member that culminated years later in a phone call with two simple words: "I'm sorry." The author described how that simple statement affected her: “Waves of relief washed over me. Resentment, fear, and anger drained out.” She was surprised how “those two simple words seemed to wipe away years of pain and bitterness.” In any relationship, there are ups and downs. All human interaction has the potential for friction. Every story has at least two sides. But, in the apology comes a release. It may not heal, but perhaps it can begin the potential for healing. 

Coincidentally, as I reflected upon the Hotseat, I ran across an article involving a social media personality in China, called a “YouTuber.” The headline read YouTuber pays compensation after 'copycat' death. This influencer is a 25-year-old who has become somewhat famous for preparing food, sometimes elaborate food, at her workplace desk using only what is already at hand. She made a video in which she popped corn in a soda can. Two adolescents later attempted to do something similar and there was an explosion. One died and the other suffered very serious and significant burns.

The YouTuber is paying compensation as a result. That is something, but as the father of the young lady who died said, “No amount of money could bring his daughter back.” That is a truism that perhaps bears remembering. Compensation may bring some relief or assistance, but it may not restore someone to where she/he once was. 

And, the YouTuber did something else. She posted on social media about "the darkest day of my life." There she described the tragedy of the two adolescents and how the “news of the tragedy had caused her ‘immense pain.’" Then she “apologized and said she had ‘let her fans down.’" She followed that, however, by denying “the girls had been copying her videos.” Thus, while not admitting fault or responsibility, she acknowledged that empathy was appropriate, and she acknowledged those emotions through a heartfelt apology.

She also reminded, however, that “all her videos included warnings advising viewers not to imitate her actions”; in America that would perhaps be a “don’t try this at home” or a “professional driver closed course” caption. She noted also that “her videos were ‘not meant to be instructional,’” a mistake anyone might make. We all have seen news stories in which someone has elected to “try that at home,” with or without the warning. We are a species that seems destined to try things we see others do. Thus, the YouTuber denies responsibility while nonetheless being conciliatory and apologetic for the situation of the two families through apology. 

The story reinforces the power of empathy. As suggested by the WCHotSeat guests, perhaps empathetic and sympathetic communication following a work accident can build and reinforce good relationships between employers and employees. Perhaps they can support and trust each other as one struggles to recover and regain function while the other struggles to manage an ongoing business and have that job available when the employee is ready to return. It is possible that each of them is upset about an accident, and therefore it may do them both a world of good to express their feelings and thoughts to each other. Open and frank communication is likely of benefit to both. 

There is power in apology. But there is greater power still in empathy, communication, community, and cooperation. If everyone involved in a workers’ compensation accident (employees, employers, adjusters, medical providers, vocational experts, etc.) was focused on those four, with a particular emphasis on striving to work with each other (cooperation), perhaps we could together decrease the friction and contentiousness in workers’ compensation?  
It is indeed an honor and privilege to participate in the WCHotseat. All ten of the programs we have presented are available at www.WCHotseat.com. The guests have been exceptional, the conversations enlightening, and the take-aways numerous. It is a conversation, and through that interactive communication we can all learn to better participate in this community we call workers' compensation.