Friday, April 29, 2016

It's That Simple

Just yesterday I posted about Texas attorney fees and the debate in that state about adequacy.

And I previously I opined that 2016 was the year of Comp versus Constitution.

The Florida Supreme Court yesterday blended the two, finding that state's reformed attorney fee provisions, a product of changes made in 2003, to be unconstitutional under both the Florida state constitution and the US Constitution in the Castellano v. Next Door case.

In Castellano, the ultimate hourly fee attributable the work of Castellano's attorney amounted to $1.53 per hour because Florida Statutes Section 440.34 limits attorney’s fees to a sliding scale based on the amount of benefits obtained.

Even I made more than that as a law clerk in my first legal job during my second year of law school ($4.25 per hour...).

Strictly adhering to statutory law, Castellano had no ability to challenge the reasonableness of the $1.53 hourly rate, and both the judge of compensation claims and the 1st District Court of Appeals were precluded by Section 440.34 from assessing whether the fee award—calculated in strict compliance with the statutory fee schedule—was reasonable.

While the court acknowledged that the statutory fee schedule could, in some cases, result in a constitutionally adequate fee, it concluded that the irrebuttable statutory presumption of adequacy was unconstitutional because the fee cap applied to all injured workers regardless of circumstances, consequences or reasonableness: "the statute presumes that the ultimate fee will always be reasonable to compensate the attorney, without providing any mechanism for refutation."

EVERY injured worker is precluded from challenging the reasonableness of a fee is what irked the court.

The Castellano Supreme Court addressed only attorney fees, but dicta in the court's 55 page opinion suggests that, given the right set of facts, it would find other provisions unconstitutional (the court declined to entertain a facial challenge to the entirety of Chapter 440, revoking its grant of review and discharging its jurisdiction by way of a two-paragraph order in Stahl v. Hialeah Hospital yesterday as well).

"Yet, while the Legislature has continued to enunciate this purpose [expediency delivering benefits]," reads the opinion, "in reality, the workers’ compensation system has become increasingly complex to the detriment of the claimant, who depends on the assistance of a competent attorney to navigate the thicket. Indeed, as this Court long ago observed, allowing a claimant to 'engage competent legal assistance' actually 'discourages the carrier from unnecessarily resisting claims' and encourages attorneys to undertake representation in non-frivolous claims, 'realizing that a reasonable fee will be paid for [their] labor.'”

This theme is restated by the court several times in the opinion:

"The statute prevents every injured worker from challenging the reasonableness of the fee award in his or her individual case—an issue of serious constitutional concern given the critical importance, as a key feature of the workers’ compensation statutory scheme, of a reasonable attorney’s fee for the successful claimant."

And, "Stated another way, the statute establishes a conclusive irrebuttable presumption that the formula will produce an adequate fee in every case. This is clearly not true, and the inability of any injured worker to challenge the reasonableness of the fee award in his or her individual case is a facial constitutional due process issue."

Whenever someone has something that someone else wants, there's going to be disputes. Workers' compensation is no different.

The way we handle disputes in our civilization is through litigation. In workers' compensation, most of the time, it is an administrative court system. But there are still rules of procedure. And the substantive law isn't simple any longer either. Reading, interpreting and communicating a legal position takes particular skill - that's what lawyers are for.

When one is injured or ill the faculties for reading, interpreting and communicating, even if it is one's own fate, and even if one is a lawyer, are all compromised.

The payer side of the bargaining table knows this - defense attorney fees in key states have grown exponentially, particularly as compared to those representing injured workers.

I know, I know, I know - everyone hates lawyers.

Until one needs a lawyer.

The big concern from the Castellano opposition is that the ruling will cause insurance rates to increase significantly by encouraging legal participation. But there's a flaw to that logic.

Lawyers are only needed if there's a dispute.

So, either stop creating disputes or concede when a dispute arises.

Some will say it's not that simple.

Um, yes it is.

11 comments:

  1. Here in CA. defense attorneys are paid out of an hourly rate & the applicant attorneys are paid up to 15% out of a smidgen of the insured workers claim. CA. applicant attorneys can earn more in fees IF they actually go after penalties. Through years of unwanted litigation, there should be a rack of penalties, just on unreasonable delay alone. The defense is paid hourly out of the expense side of an injure workers claim & have all the incentive to litigate forever. Again, IW's attorneys should go after penalties. 10% of something is better than nothing and helps insure the rating of a disability. But then again, if it was up to many, insurance companies would not be in charge of workers compensation, in and out of the workers comp commissions or courts. AND insurance companies shouldn't be in charge. That is the largest part of injured workers problems when the insurance industry has reign over it all.It is interesting that defense firms get paid by the hour out of a claim (the amount can rack up many thousands of dollars through needless years of litigation all the while trying to get IW's to accept pennies on the dollar award and applicant attorneys get paid out of the smallest of awards. It all comes out of the injured workers claims. Something is horribly unjust with all of this. Where the injured workers can't get any real money FOR any of their permanent disabilities but yet the defense attorneys for the insured employers get more money instead?. Would that show that there is culpability on the employers side, all to help hide the employer's part, the causation of injuries & illnesses or death on injured workers? AND yes our legislators & courts really mucked everything up & complicated the workers comp system,it is to help insured employers form paying our the rightful amount owed to injured workers and those that help them. We need the federal government to come in and bring in federal oversight as well as some form of punishment for all of those who joined in in preventing injured workers their rightful benefits for the last 30 or so years rather than shove us off us onto SSA & Medicare and or state programs that WE as injured workers already paid for.

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  2. 'Something is terribly wrong with the Workers Compensation System, isn't it?'

    'Without a blog, an Injured Worker is Unarmed in the War On Workers! #WoW'

    Thanks David, Thanks Dina.... great insights!

    Not everybody can speak 'legal-ese' to fight back... every post, comment, blog, message COUNTS.

    Too many Attorneys representing Injured Workers cannot apparently take proper care of themselves and their well being, so that brings in a competency issue, which leads to ethics issues.

    There are, of course, exceptions, the Super Lawyers who make the big bucks. Even they can say things like, "Fraud? What? I haven't used that word since law school. These are just common practices in WorkComp..."

    Get some mentor-buddy-systems going in the lawyer-realms, and get them to some training in NEGOTIATIONS, MEDIATION, STRUCTURED SETTLEMENTS and ALTERNATIVE DISPUTE RESOLUTIONS and ETHICS TO SAVE LIVES NOW, while WC is either transformed or DEMOLISHED.

    The industry gets to decide this year which way it goes.

    The OPEN SECRET is now being discussed publicly.

    Injured Workers and Professionals who have left the corruption are beginning to at least speak up, and will soon, God willing, being to SPEAK OUT.

    I, personally, believe National Guard will have to be sent in to oversee and protect Injured Workers and Taxpayers.

    The profits will not easily be reallocated by those who make so much 'just because somebody got hurt at work.'

    IT MAY TAKE TRIALS....with the mistakes of Romano Trust vs Sedgwick et al studied and corrected.

    As you both know, I'm of the opinion that if Injured Workers are not and will be provided basic and immediate and reasonable medical care and benefits, let's just call it "WORKERS' EXTERMINATION PROGRAM" and drop the false pretense of "Workers' Compensation'

    Let's encourage others to join the public "National Discussions on WorkComp" also at the brand new "Sedgwick Insitute" LinkedIn group. Let's hope for one on Facebook, or let's create something to generate more Injured Worker Input.

    No point in rehashing old lies, "NO LIE LASTS FOREVER." Let's incite virtual conferences on social media and in TeleSummits...natinally.

    "Without a blog, an Injured Worker is Unarmed in the War on Workers! #WoW"

    Can we all work together to save some lives in 2016?

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  3. Well as an injured workers I think its awesome to see the courts stepping in to declare workers comp unconstitutional.

    But, I think our legislators need to step in on the Federal level as well. If the injured have to wait on the courts, it will be decades before anything gets fixed. This having to get things fixed one case at a time is getting the injured and our rights to the grand bargain a little help, but its not fixing the bigger root issue of a system that is stacked against the injured. WE need to the Feds to step in like they did in the 70's, with a commission and legislation that stops our bought out state legislators from stacking the deck against the injured. Fighting for justice through the courts is slow and burdensome, and many of the injured can not economically endure the long fight. Thus making the deck even more stacked against the injured. The only time the injured workers does make it, is if they get a compassionate lawyer who is willing to work for nothing, and those are few and far between. FEDERAL Intervention is needed, ASAP.

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    1. "The only time the injured workers does make it, is if they get a compassionate lawyer who is willing to work for nothing, and those are few and far between. FEDERAL Intervention is needed, ASAP."

      Agreed that a Civil Rights commission must intervene immediately.



      Slight disagreement about the only time the Injured Workers make it ---

      Unrepresented, without the shackles of incompetent representation, I believe Injured Workers have a better shot at survival, IF armed with a powerful blog, AND via the kindness, compassion, generosity of some of the good people that are indeed to be found in the industry, and yep, even bloggers like David DePaolo, the only one really openly addressing some of the hard core issues that are killing Injured Workers, across the nation.

      David's CompLaude Awards is a huge step in the right direction.... because there ARE good people in the industry...they are just not, on the whole, willing to risk their necks and jobs to help any of us in any substantial way.

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    2. Having had opportunity to also walk the Exhibit Halls, as a guest of a Judge at the CAAA Winter 2014 event, I was blessed to meet several wonderful people, who introduced me to others. While none could "fix" the situation, each gave a pearl of wisdom that, woven into the blogs, facilitated the "parties reaching resolution, subject to a confdentiality agreement."


      For a couple years now I have suggested their various conferences not only open doors to Injured Workers at discount rates, but embracing/sponsoring Injured Workers could serve them well.


      My recent dreadful experience in Jan with being refused entry to the CAAA Gala event, having been invited by an attorney, as a guest, sealed it for me on the contempt and disdain that organization has for Injured Workers (California Attorney Applicant's Association)....

      Year ago I worked for an attorney who always said, "PEOPLE WILL NEVER FORGIVE YOU FOR THE WRONGS THEY HAVE DONE TO YOU."

      That seems to be the trigger for that group, and probably others like them. How may injured workers have been called a "pariah" for seeking alternate counsel by apparently drug-dazed overworked attorneys, returning calls after hours and whining about a useless caseload of more than 300 injured workers. Talk about an area of need for URINE TESTS AND DRUG TESTING! Start there, rather than the first step when an IW walks into a doctor's office, before even seeing a doctor or nurse. Just 'pee in the cup' then take a seat in the waiting room! hmph.


      As an Injured Worker, out of the system now (mostly)... it is my strong belief that the applicant attorneys bear the brunt of the responsiblities for the atrocities that are happening on their watch. I believe it is competency issues, which then becomes ethical issues. Let's all study up on "Stockholm Syndrome' for more strategies.



      If a Class Action were to ever take place in WorkComp, Injured Workers might have to start with a Class Action against attorneys who take their cases and fail to represent competently, with investigations of other dubious issues.

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    3. As it stands now, across America, and into Canada, UK and Australia, the only hope for protection and safety Injured Workers seem to have from the domestic torture and terrorism and untimely deaths caused by WorkComp malfeasance and worse is to BLOG LIKE THERE'S NO TOMORROW.


      While the experts (David DePaolo excluded! ;D) generally ignore what Injured Workers have to say, they must remember that NO LIE LASTS FOREVER.
      AMERICAN'S OPEN SECRET IS OUT IN THE OPEN... and people are talking about.

      Yes, we get to choose sides. GOOD OR EVIL. QUITE SIMPLE, THEN ACT ACCORDINGLY.

      Have a nice day, and let's keep #DodgingTheRads (Hanford is having another event, it's still #10 in Top most radioactive places on the planet) and let's Occupy WorkComp - Virtually! We'll find more good people who are willing to STEP UP AND SPEAK OUT.

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    4. Till then, let's be grateful that David DePaolo reads all posts and comments, clearly AND CRITICALLY PONDERS, and even sometimes writes about the issues Injured Workers bring up. David is the REAL LEADER OF THE NATIONAL DISCUSSIONS ON WORKERS COMPENSATION. Just sayin.


      I hope WorkComp Central will open a group effort to invite more Injured Workers to share, in a not quite so public forum. Many are too afraid of retaliation, bullying, surveillance and other SS-type actions not uncommon as a pattern of practice in the industry. Some are even subjected to what appears to be 'blackmail'... Yikes!

      AFTERALL, THE STORIES OF INJURED WORKERS ARE ALL PRETTY MUCH THE SAME, WITH DIFFERENT CASE NUMBERS AND DIFFERENT BODY PARTS. THE OUTCOMES ARE ESSENTIALLY THE SAME --- KICKED TO THE CURB AFTER ALL THE PROFITS SQUEEZED OUT THE FACT THAT 'SOMEBODY GOT HURT AT WORK'...

      Let's see how things shape up with the May National Discussions - public and private, and let's see the Top 2016 Blogs...and if they found any more Injured Worker blogs.... 3 is hardly enough to represent more than...what is it...54 million injured and disabled workers across America? Yikes!

      Later, it's a "sound the radiation warnings' day... gotta run! Stay safe and #DodgeTheRads. - MyWorkCompCoach.com xooxox

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  4. ON top of the need for Federal Intervention in workers compensation. This Single Payer Idea, that Colorado is working on implementing, sounds like another answer that might help the injured workers get the help they need, with out all the legal wrangling with insurance company's that goes on now. Take the insurance profiteers out of the equitation all together, and the injured just might have their grand bargain honored to start with. No having to prove fault in a no fault system, as the injured have to do now. I suggest folks take a look and listen to this labor radio report,"The Brain Labor Report 2-24-2016 - State of workers compensation" http://www.kskq.org/index.php/schedule/current-shows/127-brain-labor-report/3902-brain-labor-report-2-24-2016-state-of-workers-compensation

    Stop the DDD Deny, Delay, and Defend mentality,get the profiteers out, and then get back to the 3R's. Repair, Retrain, and or Retire.

    FEDERAL INTERVENTION and Single payer and or medicare for all, is the way to go, that way no one will care if were harmed or injured on the job, the patients will just be taken care of, instead of having an adversarial class war declared upon them.

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    Replies
    1. And send in the National Guard to facilitate transitions. Heck, let Injured Workers use real employee insurance plans and see real doctors.... that would likely dramatically improve outcomes and facilitate return to work. This current system .... has got to go. Whether or not indictments results is less important than helping free the prisoners/hostages and get them medical care and on the road to recovery, imho. NOW.

      Maybe the fellas over at the Sedgwick Institute LinkedIn group will take a walk with us over to Facebook, and read some of the horror stories our peers are telling.... Yeah, let's collective of group of the THOUGHT LEADERS and take them on a virtual field trip through the WorkComp Ghettos of Facebook Land....

      Delete
    2. And send in the National Guard to facilitate transitions. Heck, let Injured Workers use real employee insurance plans and see real doctors.... that would likely dramatically improve outcomes and facilitate return to work. This current system .... has got to go. Whether or not indictments results is less important than helping free the prisoners/hostages and get them medical care and on the road to recovery, imho. NOW.

      Maybe the fellas over at the Sedgwick Institute LinkedIn group will take a walk with us over to Facebook, and read some of the horror stories our peers are telling.... Yeah, let's collective of group of the THOUGHT LEADERS and take them on a virtual field trip through the WorkComp Ghettos of Facebook Land....

      Delete
  5. David DePaolo summed it up eloquently in this blog also:

    Thursday, January 7, 2016
    The Antithesis of Robin Hood

    http://daviddepaolo.blogspot.com/2016/01/the-antithesis-of-robin-hood.html


    "The unfortunate story of Charles Romano acutely demonstrates the perversity of this arrangement."

    "Romano, if you recall, sustained an industrial injury and during the course of treatment incurred the infectious methicillin-resistant staphylococcus aureus that shut down his lungs and kidneys and paralyzed him below the shoulders."

    "The adjuster for third party administrator, Sedgwick Claims Services, overrode physician requests and a judge's order to provide appropriate medical care, and Romano died as a result."

    ~~~~~~~~~~~~~~~

    Remember Remember: Charles Romano, RIP

    "Without a blog, an Injured Worker is UNARMED in the War On Workers"

    #Blog4Life, Freedom, Liberty & Justice for all.

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