Tuesday, July 30, 2013

FL and Rodney King Comp

We're in the middle of summer time and the South, particularly Florida, gets real hot and sticky this time of year.

And so does Florida workers' compensation, just in time for the state's annual Workers' Compensation Institute's 68th conference.

Sure to be discussed is the latest in the battle between claimant and defense attorneys in the state.

The WCI conference is infamous for huge suite parties hosted by some of the big Florida defense firms. It's hard to set yourself apart in that competitive legal market.

One firm seeking to set itself apart that has challenged the borders of ethics, taste, and maybe even the law, is getting sued for posting a picture on its website depicting a partner of the firm holding a baseball bat and declaring "a claimant is a fraud until proven injured."

Claimant attorney Robert Winess filed suit in Circuit Court in Broward County, Fla., April 19 against Stanley Steemer Carpet Cleaner Co. and its law firm, McFarlane and Dolan Law Center, alleging the law firm's website violates a section of Chapter 440 of the Florida Statutes prohibiting the intimidation of injured workers by employers.

The suit faced summary dismissal so it was amended to allege violations of the state's Deceptive and Unfair Trade Practices Act by misleading consumers.

The baseball bat page is still up but others have been removed.

One of the web pages removed showed the baseball bat in a case with the slogan, "At McFarlane & Dolan, we litigate claims with a baseball bat." Another depicted a pair of binoculars and included the slogan, "At McFarlane & Dolan, a claimant is a fraud until proven injured."

Florida Statute 440.205 states, "No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law."

Winess argues that McFarlane is acting as an agent of the employer.

From a technical legal standpoint, the lawsuit faces big hurdles and I don't see a whole lot of merit to it. I suspect summary dismissal will follow.

From a professional standpoint the advertising does stretch the boundaries of ethics, and certainly good taste. In my opinion though, it is McFarlane's free speech prerogative and is not legally actionable.

But, this is Florida, and the heat of the summer season, when good taste isn't necessarily driving decisions.

Regardless of whether it is Florida, New York, California or Texas, the practice of workers' compensation law has become much more contentious, competitive and "civil" since I was in the game.

"Civil" as in the lawyers seem to have taken pages out of the civil trial lawyer's play books - i.e. brutal discovery actions, unprofessional conduct in and out of the court room, seemingly fighting for the sake of fighting.

The sad commentary is that professionals would not behave in this manner if it did not garner business. The fact that lawyers feel the need to hold themselves out as particularly tough, fighting fraud with baseball bats, and otherwise trying to impart the impression of hired thugs, is reflective of the deterioration of professionalism in workers' compensation.

Work comp wasn't intended to be a battlefield between employer and employee. Work comp was the white flag, the truce, the peace accord, between business and labor. There is supposed to be a common meeting ground where everyone has an obligation and they play by the rules, congenially, and with good consciousness.

But contention captivates the bigger audience. Statistically, so few cases end up in the dispute resolution process, yet so much effort, time and attention is paid to them that there is a huge increase in the cost factor of such cases.

I think that much of this emotion is driven by a lack of understanding by and between employers and employees.

Employers in general have absolutely no understanding of just how their premium is calculated - they don't understand experience modification factors nor the risk split points and how industry codes affect their scores. When a claim comes through the door, and then later the premium bill comes in the mail, the natural reaction is to equate a claim with an increase in premium, when that is not necessarily the case.

This makes employers angry.

The claim may have some part of the premium calculation, but there are many other moving parts that are difficult to understand unless the employer is large enough to have a risk management professional or someone who is trained in underwriting on staff.

Employees in general don't understand that once a claim is filed its management is taken completely out of the hands of the employer. The employee is thrown into a maelstrom of adjusters, doctors, and other vendors with little to no communication from the employer, trying to walk that thin line between additional injury and discrimination, etc.

Employees will thus feel like the employer doesn't care, that they are just numbers.

This makes employees angry.

So we get disputes, and these disputes get to lawyers who are tough, have baseball bats, and are going to battle for the "rights" of their clients.

But honestly, these ads are no different than the late night television ads directed towards automobile accident claims.

Yep, I guess we have stooped that low.

I'm tempted to paraphrase Rodney King and ask why we can't just get along - but even Rodney King had more run-ins with the law since the Los Angeles riots in 1992, demonstrating that while you can dress up a troubled character, you can't hide the character's trouble.

And so it is with workers' compensation.

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