Michael Moline
The workers’ compensation fix that emerged from the House Commerce Committee last week was the product of hours — and hours — of testimony, debate, and negotiations. The Insurance and Banking Subcommittee staged marathon hearings in which all the stakeholders — insurers, employers, attorneys, unions, and more — hashed out their differences. Then the Commerce Committee spent another nearly two hours in debate.
We caught up with I&B chairman Danny Burgess immediately following the Commerce vote and ducked into a hearing room alcove for a quick postmortem.
Q: Are you tired?
A: I’m beginning to understand why this issue is always as challenging as it is whenever it arises. It is a massive issue. It is a delicate balance. At the end of the day, what really matters is striking the right balance for the injured worker and the employer.
Q: Are you disappointed you couldn’t get the unions on board? The actual workers? There was a lot of discussion here that we never hear about the workers.
A: I think you heard that from ever stakeholder: Absolutely, the injured worker is a big concern here. You heard that in our committee (Insurance & Banking), too, and from my own mouth. I believe our extension of indemnity benefits is definitely a step in that right direction. There’s no question that the injured worker is one piece of the heart of the balance of the grand bargain.
Q: That’s the temporary total disability?
A: Yes, from 104 to 260 weeks. — Yes! (He answered the roll call for the next bill on the agenda.)
Q: With a 26-week extension available?
A: That fills in the gap — the Westphal and Jones gap (two Florida Supreme Court rulings addressing an eligibility gap when temporary total disability payments run out before a worker has recovered enough to go back on the job). It specifically addresses the case law. There’s no question the injured worker is important. That’s why I believe there has to be some form of a carrier-paid fee. Not just because it is required under case law, but, as I just said in closing, the concern here is that the injured worker is not going to be made whole if they are on the hook for fees because they had to go to litigation to get a benefit that they should have always been awarded. That’s not fair. When I talk about attorney fees … it’s not out of concern for the attorney, it’s out of concern for the injured workers and them having to come out of pocket — or take from the paltry indemnity benefit.
Q: What if some lawyer says, “I can get you this or I can get you that (dubious) benefit,” and some naïve worker believes him and gets stuck with the attorney fees for arguing that?
A: Our notice in the retainer agreement tries to get to that. What that will try to do is curb the behavior of the attorney in seeking things that are probably unsubstantiated from the get-go — that a seasoned attorney should well know are unsubstantiated, but they can pad fees and hours based upon making a claim like that. Like for a back injury, I need psychiatric care. The injured worker may not be aware that their lawyer asked for that. But this could help the injured worker have a little more of a seat at the table. “I don’t want you to make that claim, because then I could be on the hook for that.”
Q: An element of caveat emptor?
A: Good legal term.
2 comments
Mark Zientz
April 10, 2017 at 10:01 am
An open letter to Rep. Burgess: I hope neither you nor any of your loved ones ever has to use the WC scheme in this state. Injured workers don’t have a seat at the table. Those that have not yet been injured think it will never happpen to them. Those that are killed (two days ago the manager and asst manager of the Equiox gym in Coral Gables) get buried if they have no dependents eligible for benefits and those that are eligible will use up all death benefits in a little over 3 years at the maximum compensaiton rate. Those that are merely left with a substantial loss of wage earning capacity from a low percentage permanent impairment (think of the carpenter who loses the use of his thumb on his dominant hand) get nothing to compensate for their loss except, in the case of the carpenter, per the very stingy rating schedule, 100% loss of the thumb is equal to 40% of the hand, which is 36% of upper extemity and 22% of the body. That means for the carpenter he is entitled to 75% of his compensaiton rate for 67 weeks. At the maximum rate for 2017 that equals $44,521.50 paid out over 67 weeks, or a little more than 1 1/4 years at $664.50 per week. That amount assumes the carpenter was earning at least $1,329.00 per week. Not only does he lose a lifetime of good wages, he and his family have to live on 50% of his pre-injury wages for a year and a quarter, then nothing more. Could you, Mr. Chairman, survive with a lifetime of significant loss of earning capacity after 1 1/4 years of reduced benefits are paid?
Our courts have said that an injured worker without an attorney is “helpless as a turtle on its back”. You suggest that “seasoned” attorneys will accept contingent fee cases where if they win they get paid and if they lose they get sued for malpractice. Not a chance. $150.00 per hour on a contingent basis is equal to $75.00 per hour billed to a client, win or lose. There are paralegals being billed at more than $150.00 per hour. Your bill is not doing employers any favors. Insurance companies will again have huge unfunded liabilities when the law is struck down. And it will be struck down. And you know it will be struck down but you don’t care. You will be long gone. There is nothing in your bil for injured workers but there is a lot that hurts them even more. I challenge you to exist for 3 months as an injured worker without legal representation. You can’t do it. None of your colleagues could do it. But my clients have to do it. They sell their wives jewelry, they borrow from friends and relatives, they return to work before they are ready and get hurt worse. They put up with being treated by the doc who sets up an exhibitors booth at the WC educational conference in August to ‘sell’ the promise of quick return to work and low percentage impairments and no restrictions if the insurance company authorizes their services. Your ‘bill’ has been bought, like an item on Ebay except the injured workers can’t bid on it.
Read the 1972 report of the National Commission on State Workmen’s Compensation Laws (a product of the Nixon Administration), signed off on by industry, insurance, state administrators, unions and all stakeholders, unanimously and compare it to Chapter 440 as amended by your bill. Read the OSHA report of 2015 that found that employers only pay 21% of the true cost of an on the job injury when they should be paying 100% of the cost. Shame.
Robert Shapiro
April 10, 2017 at 2:19 pm
100% Agree with Mark Zientz. I was a claimant lawyer for over 35 years before I retired, and the system treats the worker as a cog in the machine, a widget to factor as simply one of the costs of doing business. Employers, upon advice of their WC carriers play so many cruel games to get out of paying WC and nothing is done to penalize them.
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