Tuesday, April 23, 2013

Attorney Roles Can't Be Discounted

When departing runway 26 at Santa Ynez airport (KIZA) pilots are instructed to immediately turn left to a heading of 210 degrees for noise abatement.

This keeps the gamblers at the Chumash Casino, which is just off the departure end of runway 26, happy so they can concentrate on their game.

Upon departure a few weeks ago, I quipped to my friend in the right seat, who lives in the Santa Ynez Valley, that we should go to the casino some time for some fun.

"David, you don't want to go there" he said seriously. "The only people who go there shouldn't be there in the first place - they don't have any money and what little money they do have goes to the casino..."

How many workers' compensation claimants look at a work injury as going to the casino?

On the grand scale of all things statistically based, I'm sure it's a distinct minority.

But the few that do create havoc for everyone, and in particular for the attorney who is hired and upon whom the heavy toll of imparting huge doses of reality into jackpot delusion is placed.

I had mentioned before that I live in a blue collar neighborhood with lots of harbor workers as my friends - yes they get injured on the job and yes I get asked how much an injury is worth. That's usually the first thing I'm asked in such situations.

And usually there is quite the look of disappointment when I tell that person to just try to go back to work.

Casino dreaming. Free money....

Over the couple of years that I have been writing this blog, I have variously received excoriations from different segments lambasting lawyers - and in particular those lawyers who have dedicated their practices to representing injured workers.

Sometimes defense lawyers are thrown into the mix just for good, all around abuse, but regardless, when the term "attorney" is mentioned there are plenty of terse adjectives.

While it can be debated what is in the best interests of the injured worker, in the context of doing a job, the claimant attorney's duty is to represent the LEGAL best interests of the client. In the case of workers' compensation, that means two claim elements: medical treatment and indemnity.

Lawyers don't know much about medicine - that's why there are doctors. And as far as the claimant attorney is concerned, the best doctor is the one that makes the client happy, because a happy client complains less. So the claimant attorney will advocate for the best medical care he can get for the client, which means the medical care that the claimant wants - not necessarily what the physicians, employer or carrier want.

The other part of the equation is something that is a whole lot easier to understand - indemnity, aka, money. Most lawyers, like me, are terrible with numbers - that's why we go to law school.

But put a dollar sign in front of a number and all of sudden our mathematical skills come to life.

And, unfortunately, sometimes this is also the main motivation of the client, regardless of the counsel received from the attorney.

Casino dreaming is tough to combat or ameliorate when the client is focused on retribution, or sees a case, regardless of real world dollar value, as a meal ticket to a secure life without financial worry.

And this makes malpractice insurance for attorneys who represent workers' compensation claimants particularly expensive regardless of the merit of such claims and regardless of the risk mitigation claimant attorneys employ in their practice.

In this morning's news it was reported that two California courts of appeal have  rejected malpractice actions by self-represented injured workers against their former attorneys.

One of the workers was dissatisfied that her attorney had settled her disability discrimination claim for $13,000 because she thought it was worth "more like $16,000," and the other said his attorney had obtained a $100,000 settlement from a third-party tortfeasor too quickly. 

In both cases the claimants, gambling on a bigger payout, ended up with either nothing, or ancillary bills that wiped out any net recovery.

Attorneys interviewed for the story, both applicant and defense, surprisingly expressed sympathy for these claimants, and others like them in similar situations.

One of the defense attorneys representing the sued applicant attorney said that he felt badly that the plaintiff/claimant, "was just hitting her head against the wall, and she didn't know it."

The attorney said it was also "sad that instead of having the $13,000 settlement and her job, she was laid off again, has no money and owes money to two sets of attorneys."

Unbelievable compassion....

Whether we like to acknowledge it or not, a work injury is an emotionally trying event. And if the injured person has any delusions as to the value of a workers' compensation case, that makes management of the claim even more difficult.

The vast majority of attorneys that I know in the system have represented BOTH employers and employees. Eventually they will focus their practices on one side or the other, but it typically is not for some grand philosophical reason. Rather it comes down to practice style, to make conflicts of interests easier to manage, and whether one likes their clients or not.

Quite often we hear, in the spirit of "reform", that one of the goals is to reduce litigation and reduce the roles of attorneys in workers' compensation.

And then laws pass, like Tennessee's most recent reform of the definition of injury AOE/COE, that frankly just increase litigation as parties fight over whether or not benefits are due because of some amorphous legislation.

The bigger picture is that attorneys, like it or not, play an integral role in the resolution of claims.

You may not like that there is an additional layer in the claims process, but many times that layer helps bring reality closer to those with casino dreams.

Other times that layer helps bring realism to vague and nebulous laws - for both sides.

And like all roles in the workers' compensation system, there are better examples than others.


  1. Very well written. The toughest part of my job is having to give a dose of reality in the post reform era. Most people get it when it is explained to them but the ones who do not are the toughest cases to deal with.