MO: Dealing With the Difficult Pro Se Claimant

The difficult pro se claimant presents unique challenges to resolve Missouri worker's compensation claims.  What are the common problems faced by employers dealing with the difficult unrepresented claimant?

It's not about the money.  Sometimes, it isn't.  A claimant's resistance to resolve a case may have nothing to do with the amount of a settlement offer.  The benchmark may not be what is offered, but how a claimant perceives the offer compared to his prior settled cases or cases of co-workers (who are never really injured as much).   An important early issue in any negotiation is whether the claimant feels he was treated fairly by the insurance company, his employer and his doctor.   The difficult claimant was once hired by the employer because he was considered the best candidate for the job.  No amount of money is usually enough if a claimant is treated as Public Enemy Number One.

Claimant won't seek help.  Who needs a plaintiff lawyer when you get Wikipedia for free?   Sometimes the best thing to settle a case is for a claimant to get a lawyer when complex disputes exist because of the misperception that every offer is unfair.  Many claimants can effectively negotiate.   There is a certain class of difficult claimants, however, who can never learn to be attorneys no matter how much Court TV they watch.   The claimant thinks he is Aticus Finch.  He may be more like Travis Bickle.  The difficult pro se may view comp benefits as an entitlement and not something that needs to be proved.  The person who thinks a lawyer cannot help his complex case can sometimes be the same person who brags that there's no point in spending hard earned money on an electrician or plumber no matter how often the sparks fly or the pipes leak.

The Commission case of Brown v Dept of Mental Health, DOLIR 3-10-08, demonstrates the difficulty of a claimant going on his own on a difficult claim.  The claimant alleges that had stress, but filed a claim described as "incomprehensible" and offered no evidence to establish a stress injury existed or even establish employment.

You can't fix stupid.  Some claimants can't educate themselves on what they need to do and what they need to prove no matter how many times a case might be continued.  Continuing cases with difficult prose claimants hoping they might one day get a clue is ignoring the elephant in the room.   Plaintiff attorneys sometimes avoid taking bad cases for good reasons.  A case that has had three or four attorneys withdrawn quickly says something.   Attorneys may not truly understand the "real" value of the claim. Doctors may not tell the claimant what is "really" wrong.  Sometimes there are other explanations, too.

Employers can't prescribe drugs.  Psychiatric and drug seeking behavior provides some insights on behavior of difficult claimants and why they don't want to settle.   Some claimants have real emotional or mental problems.  Claimants with real injuries may encounter legitimate stressors: interruption of income, surgical complications, adjustments and withdrawal to narcotics, family disruption, and denial of compensability (no matter how legally reasonable).  A claimant may become vindictive if he thinks his ability to obtain necessary drugs is obstructed or his case is worth a zillion dollars and the employer offers a lot less.  A claimant may perpetuate disability for bizarre reasons: childcare needs, attention, or joining other family members on disability.  Claimants with psychiatric instability may represent threats to themselves, attorneys, judges and court reporters in comp venues that often have limited security.

Courts don't hold pro se claimants to the same standards.  The court of appeals often indicates that claimants are expected to follow rules of court just like attorneys.  The reality, however, is that claimants before administrative law judges are often accommodated.   See Rule #2.  Get a lawyer, really.   Employers should anticipate the claimant may receive help along the way.

Court appearances are therapy.  The comp claimant, if persistent, may obtain his day in court.   This does not seem fair to employers when circuit courts will stop civil cases that don't satisfy a prima facie case.  Missouri comp has no equivalent to a motion for summary judgment.   Comp hearings should resolve legitimate disputes when parties cannot agree and not as catharsis to assess the value of chips on shoulders.   The employer should not simply hope bad cases go away on their own.  They don't.

In many cases a pro se claimant failed to prove the case with admissible evidence.  In Hayden v Ameriwood Industries, DOLIR 6-9-11, claimant relied upon an article in Wikipedia.  In other cases, claimant failed to introduce necessary evidence.   Woodard v Vitro Products, 3-25-10; (no expert medical evidence), Schuchman v America's Center, DOLIR 10-22-09 (all plaintiff exhibits excluded).

Judges won't be as blunt as adjustors.   Each Division should have a specifically designated person to play to role of the "mean cop."   The claimant should be told in the right case at the right time that the case has no value.  File a voluntary dismissal.  Nice try.  Don't let the door hit you on the way out.  Maybe it's because judges are too nice or don't want to offend people.   Most adjustors can tell it like it is a lot more bluntly.

Claimants perceive no cost in going to court.  Courts rarely sanction claimants for frivolous prosecution.  It may be the law, but it is not the practice.  Section 287.560 provides an administrative law judge may assess the whole cost of a proceeding for prosecuting or defending a claim without reasonable ground.  A claimant with litigation loans may have no option to negotiate.  Perhaps awarding costs (even if it is never collected) is an important signal that judicial resources are limited.

In several recent decisions, the claimants simply walked away from a hearing or never appeared.   Musset v Construction and Aggregate Products, DOLIR 1-18-11, (claimant left the court building without comment); Maness v Old Country Buffet, DOLIR 7-30-08, (left courtroom); Childress v Labor Ready, DOLIR 8-26-09; Sanborn v Jackson Clay, DOLIR 4-3-09. 

With the difficult pro se claimant, sometimes it is the hearing, and not the award, that matters. Some claimants keep the fight going on appeal too, even when they walked away from the hearing. Sometimes it is about the money, after all.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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