President’s Letter, May 2020
Greetings, my friends in the world of workers’ compensation adjudication.
Wow! Where do I begin? I penned my last President’s Letter back in mid-March, just as the world appeared to be heading off a cliff. So much has happened since that missive that it is difficult to condense all of my thoughts into a few short paragraphs. If I were to try and comment on all that has happened or changed, the tome would be enormous, and might qualify as the longest (and worst) non-fiction novel so far in 2020. I offer this highly condensed version as an alternative.
Before I launch into my rather droll and uninteresting story of managing a workers’ compensation docket in a pandemic, a big shout out to Judge Shannon Bruno Bishop, who was just promoted to Louisiana’s Workers’ Compensation Chief Judge! Anyone that has met Judge Bruno Bishop knows how capable and hard-working she is. She’s clearly deserving of the promotion and her track record suggests that she will excel at it. Congratulations, Shannon!
In my last communication, Covid-19 was THE topic of conversation, and rumors of a potential lock-down of Kansas state government were circling. The Kansas Department of Labor IT people embarked on an ambitious plan to imbue state laptop computers with new software, including “Jabber” and Skype, in hopes of equipping workers’ compensation judges with the ability to conduct remote hearings and telephone conferences. While I had prior limited contact with Skype, I hadn’t used it in years. On the off-hand possibility that any of you are unfamiliar with Skype, it is a videoconferencing platform, similar to Apple’s FaceTime, but it enables multiple people to see and communicate with one another at the same. Jabber, however, was new to me. Jabber emulates our telephone system, enabling calls to my office phone to reach me through my laptop, no matter where I might be. The software was installed on March 18. There was no time for any real training with these new programs, and no real indication when, how, or for how long they might be used.
As a long-time user of GoToMeeting, and someone who is accustomed to traveling (across my 34-Circuit state) and working via a remote connection and a VPN, I thought I was well-prepared and ready for whatever might come. I was clearly naïve. It matters little how well-equipped with technology I might be, if I don’t have litigants willing to share it with me.
On March 17, we (KDOL employees) were advised to cancel all remaining hearings for the remainder of the month of March. We were then told that when we were to leave the office on Friday, March 20, we were to take whatever with us we would need to function from home, and to go home and shelter in place. There were to be no hearings held or work performed the week of March 23, and a decision would be made by March 30 whether hearings set in April would go forward.
When I awoke at home on Monday, March 23, I found myself with time on my hands. I was current in all of my work, and the office was shut down. Much of the community was closed, with most folks (like me) sheltering at home. There was no place to go and nothing to do. My first thought was, “If this is what retirement is like, I’m not ready.” I need a reason to get up in the morning. I need a purpose.
I managed to find enough long-delayed home projects to keep me busy that week, though I truly missed work. I think most people would agree that the workers’ compensation community is pretty collegial, and I missed my interactions with the people who had filled my professional life over the last twenty-five years. I also missed the work—reviewing the evidence, considering the arguments advanced, and making and writing decisions. I missed it all: managing the case load, keeping the dockets running and, generally, doing something of consequence.
We (Kansas ALJ’s) were permitted to resume hearings, from home, effective April 1. We were not limited in what types of hearings to conduct—our only limitation was that it had to be done remotely. We did not have the benefit of our administrative assistants, however, as they remained on furlough, and we had to do much of our own scheduling, fielding phone calls, as well as typing and uploading decisions and correspondence. I’m sure that working from home has its loyal adherents, but I’m not one of them. Between barking dogs, cats walking across my keyboard, robo-calls and everything else that happens at home, there are simply too many distractions that can interfere with a solemn judicial proceeding.
I took the initiative to contact everyone with a hearing scheduled in the first 10 days of April. I told them I was open for business, and that all scheduled hearings and conferences would be held, either by telephone or videoconference, either by GoToMeeting or CourtCall. I was not too surprised that there were several continuances, as many counsel were hoping that we would be back to “normal” in a week or so. Nonetheless, we did hold several hearings by telephone or GoToMeeting, and generally kept the docket on track.
I was allowed to return to my office as of April 7, although the prohibition against in-person hearings, meetings and conferences continued (and continues to this day). With the return to the office, I escaped from the distractions of home and I rejoiced at the return of my administrative assistant. We continue to function, offering a full range of services and hearings, albeit in the new world of “distance litigation.” We don’t know when in-person litigation will resume; perhaps my next President’s Letter will reflect a return to normalcy. I would expect, however, that “normal” in June, 2020, will be far different that the pre-Covid-19 “normal.”
Looking back over the last five or six weeks, I see some lessons learned: Even in times of strife, we can still accomplish much if we put our minds to it. We have the technology available to us to function, even in periods of enforced isolation. While technology is good and essential to the modern practice of workers’ compensation, computer programs and applications only work if properly installed and people are properly trained to use them. People have to be open to new ways of doing things. We have to keep open minds and the combination of resilience and flexibility that will enable us to react and respond appropriately to whatever obstacles are cast our way.
Will Covid-19 forever change the practice of workers’ compensation? For some, no; for others, maybe; and for yet others, absolutely. The viability of hearings via videoconferencing and teleconferencing will have been established. Travel, whether to and from a deposition or hearing, may well be determined to be unnecessary. There are people who have disdained technology in favor of doing things “the way we’ve always done it,” who will have had their eyes opened and may embrace the changes to come. Others will want to simply return to the way things were.
I invite you to share your stories of your work under the ominous cloud of Covid-19. What worked for you, and what didn’t work? Please pen a letter to the editor and share your experiences. I, for one, would like to hear from you. I would like to learn how to be better prepared for the “next time,” whatever that may be. We all have valuable information to share, and we all have the capacity to benefit from that sharing.
Go forth then, and listen, weigh, and decide. Do your work of fairly and impartially adjudicating claims, and be proud of it. Ours is important work. Let’s get back to it.
“You cannot escape the responsibility of tomorrow by evading it today.” Abraham Lincoln.