THE LANGUAGE AND DIALECT OF WORKERS’ COMPENSATION

 May 10, 2019

THE LANGUAGE AND DIALECT OF WORKERS’ COMPENSATION

By: Judge David Langham

You can be in the same room, on the same topic, and yet not on the same page. 

I am struck by the number of dialects there are in some languages. Dialects came to me recently; a Judge described a hearing involving a translator. A witness made some statements and the translator dutifully interpreted. But, in the course of reciting one of the answers in English, the Judge interrupted and corrected the translator. There was some “back and forth” with the witness, and eventually all agreed to the substance of the witnesses’ answer, which was not as originally translated. 

This is not a reflection on the translator. This is a reflection on the idea of dialect. Spanish, for example has a number of dialects. As Languagenext.com notes, “Spanish comes in many flavors,” which it notes are “dialects” and “accents.” That website contends that this is a result of the “dynamism of languages,” a result of evolution. There are various places in which Spanish is spoken, but there are “variances within each region.”

The conversation about translation came back to me recently when I was discussing workers’ compensation with some very smart regulatory officials. Our subject was the complexity and variety of workers’ compensation systems in the various states. It was pointed out that there are a great many similarities among the various jurisdictions, but that there are differences as well. In the same way that someone’s language may be similar to someone else’s but not identical, the common idea of workers’ compensation has evolved with distinctions in various regions or jurisdictions. 

According to Insureon.com, the concept of workers’ compensation dates to 2050 B.C.; though it has evolved. The concept came to modern America from the example of Germany and Great Britain in the 19th century, in the form of tort reform and limiting recoveries by injured workers. Then in the 20th century, the idea of a system that substituted common law rights and obligations took hold and modern American workers’ compensation was born. 

Over the years there has been change. This has been a process of evolution. Perspectives differ. With each change, some see accretion while others see erosion. The various state systems are in near perpetual change due to legislative, regulatory, and decisional action or interpretation. And, like that old saying coined by Tip O’Neill “all politics is local,” all workers’ compensation is local (except the federal programs for federal workers, Longshore, Jones Ace, etc.). Thus, the evolutions have been local to a large degree. 

I find this in many conversations about workers’ compensation. We may be discussing a recent appellate decision somewhere, the process regulation of a particular state, or even legislative discussion or activity. We in the community of workers’ compensation understand the fundamentals, that is, a system that provides one party with tort immunity and the other party medical care and a modicum of lost wages. We can and do converse in our language of worker’ compensation, often with our shorthand abbreviations: TTD, PIR, MMI, etc. 

But, that is where the dialects come into play. We may all use the term MMI, but we may not all mean the same thing by it. Certainly, authorities like Larson have steered the judicial interpretation of definitions. That has promoted some cross-border uniformity or at least similarity. But the fact remains that evolution has occurred state by state. Thus, while MMI, TTD, or PIR may have similarities state to state, there is significant likelihood that there will be distinctions and differences as well. 

Thus, we are all speaking the same language, but we are veritably awash in a sea of various dialects and meanings. This is problematic in a variety of ways, several of which were raised in the National Conversation on Workers’ Compensation in 2016. That series of meetings identified almost thirty topics that were of concern to various attendees and perspectives. The group brainstorming those topics came from medical, legal, regulatory, adjudicatory, employers, injured workers, labor organizations, and more. It was an intriguing and diverse group. 

One of the main concerns was “federalization,” that is the imposition of a single, national workers’ compensation system. That would certainly diminish the dialect issues. There was discussion of “competition between the states,” “benefit adequacy,” regulatory complexity,” and misclassification. All of those might be alleviated by federalization. But, a great many of the others would likely remain even if federalization forced vernacular change and consistency upon us. 

Those other challenges (for a complete list click here), however, might remain or even become more daunting challenges through such uniformity. In the current state-run systems, there is effectively a potential for an incubator for ideas. New processes and proofs may be adopted in one jurisdiction, they may prove effective and positive, or not. And, from that perspective there is perhaps benefit in their being multiple programs striving in their individual ways for excellence and progress. Through their success or failure, others learn. 

As other jurisdictions consider change, evolution, or progress they may look to those efforts in other states. And it is there that the dialect issue may become troublesome. There are those who gather and analyze data about this community we are in. Frankly, with the advances in technology, there are likely more entities collecting, collating, and analyzing data today than ever in our workers’ compensation history. Since that data is digital, it is easily shared and can be subjected to analysis by machines and software. The community seems poised to be more introspective and analytical than has ever before been practical. 

But in analyzing that data, the need for minimizing the potential impact of dialect is critical. States may study change in other jurisdictions, may measure impact in time, money, or both. But, those analyses might be skewed by the absence of clarity on the terms and definitions. 

In recognition of that, a group of outstanding community members has been working on a “consolidated data glossary,” designed to provide clarity. I would love to identify those individuals, but I am uncertain of having permission to do so. So, I applaud their work, recognize the effort, and hope for their success. Such definitional clarity would aid those who must interpret the laws of various jurisdictions. It would also aid those who study the impact of change on either a global, national, or jurisdictional scope. 

The effort is fraught with pitfalls, as are others. I know a regulator that has been asking why the various states cannot come up with a single format “first report of injury” that could be used in all U.S. jurisdictions. I heard another question why there are significantly varied deadlines from state to state for actions such as reporting a work injury. At least some of those challenges are as large a concern as the definitional effort currently under way. 

Notably, the glossary of definitions will not remove the obstacle that is workers’ compensation dialect, but will provide a tool for effectively translating those various dialects to a baseline foundation. Any word of workers’ compensation consequence in any state might be translated into the appropriate corresponding terminology in some other state. If such an effort were successful, then states might even acquiesce over time to the uniformity of adopting the word or acronym used by a majority for a given situation. Thus, the majority might in fact grow. 

For example, if the majority of states label benefits as “Temporary Total Disability (TTD)” if they are payable during delivery of remedial medical care and before a worker is released to return to work, then perhaps other states not currently using that title (TTD) will migrate to it once the glossary demonstrates the choices, and perhaps even the prevalence of a particular term. Consistency might increase over time as a result of the analysis.  

The critical point of the whole situation, however, is that the most important tools in the process currently are our ears and brains. We as a community have to become active listeners. The differencebetween.com describes our goal as hearing, but also “making sense of what we hear.” We need to be a community of active listeners. We need to be “fully engaged” and interactive when we are hearing about workers’ compensation. We need to “ask questions, clarify ideas, and even comment on certain points that have been presented.” When someone describes an issue, a challenge, or a success, it is up to us to engage and make sure that we actually understand what the speaker is saying, not just understand what their meaning would be in our own dialect. We must commit to being better teachers also, and provide context or foundation when we use our “comp vernacular” terms when informing others. Whether speaking or listening, we need to encourage the interactive nature of communication and avoid passivity. 

Robert McCloskey said “I know that you believe you understand what you think I said, but I'm not sure you realize that what you heard is not what I meant.” We have to make sure we understand. We have to make sure our listener understands. There is too much at stake for us to fail to communicate. 

In time, the glossary project may bring us relief. If successful, that will deeply impact our efforts, particular the comparison of data. Collectively and immediately, however, we must raise awareness that term meanings differ from state to state. Our efforts to improve workers’ compensation depend fundamentally upon our ability to recognize and address the challenge that is workers’ compensation’s various dialects.