War on Lawyers Hits the Injured

Saturday, April 21, 2007 | 0

By Tom Blackburn

Last time the Legislature "reformed" workers compensation, it should have satisfied the lobbyists who wanted to keep injured workers in Florida from getting anywhere with their complaints if their claims are denied.

The plan was to starve out the lawyers who represent injured workers by limiting their fees. Division of Workers' Compensation statistics show that the plan is working. In 2003, the last year under the old law, there were 22,153 settlements, usually involving a lawyer, with the average payment $21,196. The numbers have declined every year since then.

In 2006, 2,824 such cases show an average settlement of $9,649. Many cases settle late, so the complete totals for each of the past few years will rise. But they won't get near 2003 levels, and the trend line is consistently down. And remember, delay is profitable for the insurer and painful for the injured worker.

The figures suggest either that fewer people are hurt on the job or fewer who are hurt hire a lawyer to get what they need. The first possibility seems unlikely. Florida had four hurricanes in 2005. Workers must have fallen off damaged roofs and been hurt working in rubble, but there were nearly 3,000 fewer cases than the previous year.

The second possibility - fewer people getting lawyers - is more likely. Nor do the figures suggest that the need for lawyers was reduced by injured workers getting what they are entitled to without legal aid. Total benefits in all cases are smaller, too. In what other medicine-related area are costs down?

In one case under the new law, the lawyer for the plaintiff was allowed to collect $229.70 for his efforts, which a different workers comp lawyer worked out as $13.75 an hour. That is not money in the lawyer's pocket. He had to pay the costs of doing business out of that. In short, the 2003 law has made it inadvisable to file a case that won't be a sure, quick and big settlement. If you get injured and don't have such a case, do not count on justice.

There are no limits on the pay of attorneys who defend insurance companies against plaintiffs.

A similar situation, I now learn, is true for plaintiffs' lawyers in Texas. By capping punitive damages, Texas left the lawyers unable to win as much as it costs to sue billion-dollar corporations with their deep benches of lawyers. I learned about that from an excellent book by Stephanie Mencimer, a contributing editor to Washington Monthly magazine.

It was published in December, but I just got to it. The Free Press didn't do Ms. Mencimer a favor by giving the book a homely dust jacket, but the title and subtitle are promising: Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right To Sue.

Ms. Mencimer delivers on the wild title. What's blandly labeled tort reform means keeping suits against corporations out of the court - and especially away from juries - and limiting the amount of damages. The movement got its momentum from tobacco company money after Karl Rove, later President Bush's guru, became involved. With that team, you wouldn't expect the campaign to be overly scrupulous with the truth. Ms Mencimer unpacks the omissions, distortions and plain lies behind the publicity over famous "frivolous" lawsuits.

The attack on lawyers in Florida workers comp - a topic Ms. Mencimer doesn't get to - was just one battle in a state-by-state corporate war on lawyers, judges, juries and the old American idea that if someone deliberately or carelessly hurts you, sue the buzzard.

I suppose I should provide full disclosure: One of my children is a plaintiffs' lawyer. But he was still in high school when I started writing about how Florida's workers comp system bilks employers who pay into it while shafting injured workers who need something out of it.

For all my hooting and hollering, the system still is a wilderness a sane person can't navigate without a lawyer. Now all the reforms, as anticipated, make it unlikely that most people who need one will be able to get one.

That is an outcome "tort reformers" could only dream about when they started 15 years ago. They ought to be happy now. But just wait. It won't be long before they gin up a new crisis that requires more of their kinds of reforms.

This column first appeared Palm Beach Post. Tom Blackburn is a columnist at the newspaper.

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