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Missouri Workers' Compensation Cases in the Age of COVID

As a St. Louis Worker's Compensation attorney who has been practicing for 38 years, I have seen many changes in the legal practice of Missouri Worker's Compensation law. Some of the changes were substantive. For example, there was a redefinition of accident decades ago, which allowed a worker to recover worker's compensation when their body "gave way" under the stress of lifting, without having what would we called "an accident." Previously, workers were only allowed to recover from "unforeseen events" such as slips, trips and falls. However, if an individual was engaged in heavy exertion and their body "gave way" workers were unable to recover compensation. This produced unjust results in which hard-working employees were denied compensation, particularly in occupations that required strenuous physical activity.

Over the years there were also significant structural changes. A good example would be when the Second Injury Fund basically went bankrupt and settlement activity came to a halt. For years, cases sat in limbo. Some cases went to trial, but there were no new funds available to claimants. Eventually, the legislature entered into a compromise which significantly paired down the way that the Second Injury Fund would operate in the future. In exchange, money was allocated and a backlog of cases began to settle.

We may now be entering into a point in time where changes may occur which may be more significant than at anytime in the past. As an attorney handling Missouri workers compensation cases for almost 4 decades, one thing that I can say is that Worker's Compensation practice has always been an in-person hands-on practice. Meetings with clients have almost always been in person face-to-face occurrences in which attorney meets, discusses the merits of the case and then starts the process after concluding the interview with a hearty handshake.

Certainly technology has created changes. Believe it or not, previously carbon paper was frequently used by attorneys. At one time, I carried a file folder full of carbon paper in my briefcase so that I would have it available if a settlement was reached. Worker's Compensation practice used to be heavily depend upon the conventional mail. Whenever outlining a position, a long detailed letter was the favored choice of many attorneys wishing to make a strong persuasive argument. It was also understood that our opponents would be likely to forward a well-written letter to their clients which could ultimately help in settlement discussions. Emails have now largely replaced conventional mail in almost all cases.

When I say that, for four decades, workers compensation practices been largely a face-to-face operation, I cannot overemphasize this point. Attorneys practicing Worker's Compensation law in St. Louis have always showed up in-person and would pretty much know just about every single person they came in contact with. Over the course of the years, everyone pretty much came to know everyone else. In addition, everyone mostly understood the reputation of their opponents. They knew if their opponent was reasonable or unreasonable, personable or cranky, a glad hander with lots of stories, or someone who was terse and wanted to get right to the point. The same could be said for each judge who possesses their own unique personality.

In other words, the practice of Missouri Worker's Compensation Law at the St. Louis Worker's Compensation Division involved hand-to-hand combat. It was generally not something done from afar, but involved arm wrestling your opponent in a face-to-face encounters several times a week. It involved strategizing your arguments in a manner that was tailored towards the particular judge that would be mediating your case.

Multiple negotiations would take place in the library where claimant's attorneys would often be heard saying things like "that's unfair" or my client is "a solid guy who is worked 20 years for this company." Defense attorneys could be heard saying things like, "you're being unreasonable" or "your client is really exaggerating." On the side, you might also hear discussions about politics, kids,sports the quality of schools and a host of other topics. For the most part, at the end of the day, attorneys worked out disagreements, shook hands and wished each other well. This is because people agreed to disagree, but there was an understanding that things should never become personal.

In the age of Covid, it seems that the immediate reaction was that we just need to " wait this things out." Maybe after a month or two months things will finally "get back to normal." However, a reality has recently sunk in. Previously, it would have been thinkable to not meet him face-to-face with most clients in order to get to know them on a personal basis. In the age of Covid, the rules of changed. Social distancing means that a lot of meetings which were previously face-to-face have now been replaced with telephone calls. There is always been a sense that you need to meet with someone face-to-face in order to get to understand them. The belief is that understanding creates empathy and an attorney who empathizes with his client will do a better job fighting for them. Now many face-to-face meetings have been replaced with simple telephone calls, or perhaps zoom meetings.

In addition, new habits have been formed which go against the face-to-face model. Judges and attorneys have become more accustomed to working from home and finding new ways of accomplishing tasks. At one point, my suits languished in the closet until I finally had a face-to-face deposition, albeit with masks. It was an unusual feeling to put on a suit and it made me feel different than I normally do when I'm working from home in my casual attire. In fact, my gym had permanently closed and I discovered a much more vigorous workout regimen and, when I finally put one of my suits on, I was pleased to find out that it didn't even fit me anymore. Working from home meant that I had more flexibility to exercise whenever I wanted to. In the age of Covid, should I even bother having my suits altered?

It appears that the meetings with judges and attorneys are now going to take place mostly through telephone conferences, or perhaps video conferences. Face-to-face meetings are going to be generally reserved for important matters such as trials. The sense of knowing your opponents personally and understanding their reputations and demeanor may be lost on future generations of Missouri Worker's Compensation attorneys. The sound of attorneys at tables arm wrestling with each other and jockeying for a favorable outcome for the clients will no longer be music to my ears. Small talk may no longer abound. What will the system look like going forward? Will technology make it more efficient? Will a lack of personal interaction perhaps have the unintended consequence of making it less efficient when people don't know each other?

Over the years, I have enjoyed appearing at the St. Louis Worker's Compensation Division in order to mingle amongst the Worker's Compensation community of attorneys. New attorneys would customarily be introduced to everyone in order to ease them into the community. Will Worker's Compensation now become a sanitized area practice? Is it possible, after the virus, that things will return to "normal?" After so many decades of practicing as a Missouri Worker's Compensation lawyer, I find it very difficult to predict how things will take shape in the future.

In short, Missouri Worker's Compensation attorneys have, for many years, been either successful or unsuccessful, largely based upon their ability to develop strong personal relationships with each other and with the judges who oversee the system. It appears that our practice is now at a crossroads. Certainly technology was moving Missouri Worker's Compensation in a different direction, but Covid may have accelerated the process. Regardless, it is my hope that, despite major changes, injured employees will be well represented in the coming post-Covid era.