Wednesday, July 23, 2014

So Long Norman

It was announced yesterday that the head ombudsman for Texas injured workers, Norman Darwin, is going to retire this year, at the end of August.

While Darwin is certainly entitled to retire - after all he is 76 years old and has been in the comp system in Texas for well over 40 years - the state will be losing one of the strongest advocates for injured workers I've known, and his shoes are going to be very, very hard to fill.

I've only met Darwin a couple of times, and each time I was singularly impressed with his focused determination and passion for making sure those injured on the job received the full benefit of the system.

Darwin had a very successful law practice prior to joining public service. He was well known in Texas as one of the brightest, most tenacious lawyers in the system. To him it was not at all about the fee - it was all about his client.

And I use the singular context purposely - when Darwin was on a case, his mind was on THAT case.

How do I know this? I've only met the man twice. And I'm generally not a good judge of character, unfortunately.
Norman Darwin
But I could tell from talking with the man just how committed he can be, and how doggedly he would fight, particularly if he really thought his client was being treated unfairly.

While the Texas insurance community disputes the reports that Darwin shepherded as head of the Office of Injured Employee Counsel, particularly the latest reports wherein OIEC criticizes the success rate of injured workers in adjudicated hearings, his tenure in the office, and now his impending retirement, demonstrates the significant polarity in workers' compensation.

My Texas insurance friends are probably going to chastise me for this, but while the state is very, very good for insurance companies writing work comp (how many states can claim an overall combined ratio of less than 100, and not just once, but for several successive years in a row?) there's a story that is heard far too commonly - too many injured workers get the shaft.

The statistics don't really tell the full story because they are skewed by the success rate of minor injuries. Those who get cuts and bruises and generally are just medical only claims are, like in most states, handled just fine.

Those who have more severe injury claims (note I said "claims"), however, have a much tougher time, particularly if there's any scintilla of dispute about industrial origin.

As Darwin noted:

“I’ve practiced comp law for over 40 years, and (I had) never heard of an extent-of-injury defense asserted one single time. And the law’s not changed in that regard at all. Since 1913, the law hadn’t changed.

“But the interpretation of that law got changed in about 2008, 2009, somewhere in that time frame. And the claimants’ ability to have a successful claim just dropped to the very floor.”

And there aren't that many Texas lawyers helping injured workers out any longer because the fees can't justify a business of work comp representation.

OIEC was established to help those in the middle, but they can't directly represent injured workers. Still providing legal counsel is a huge help, and Darwin made that happen.

A lawyer friend of mine contacted me the other day - she assists employers reduce their workers' compensation costs by implementing strategies to both control the claim, and control the carrier. She tells me, after being contacted by an injured worker that bought her book to learn the other side of the fence, that had she not had two friends go through the work comp rigamarole and a relative being put through the ringer in an auto case of uncontested liability, that she would not have believed the injured worker's tale of denials, delays, and mal-treatment.

And yet, when I posted about my little back injury (now pretty much resolved, and thanks to all who sent me get well wishes), the posted comments on LinkedIn were sharply divided: either I didn't have a claim at all and it should be denied, or just stay out of the system and get real treatment.

Yep - benefits DENIED! Though sharply divided literally, the contextual message was frighteningly singular: Take your claim elsewhere because the work comp system doesn't want you.

Either outright, or via surreptitiousness, the message I got as an injured worker is to go away.

Curiously I didn't get much feedback as the employer of that injured worker...

I'm surprised Darwin lasted this long. If he didn't have such extraordinary energy, compassion and resolve to do the right thing, to protect those injured on the job, and to make the system work for those it was intended to protect, he would have hung up the towel long ago.

Norman, I didn't get the pleasure of knowing you but for a couple of all too brief encounters. But I know lots of injured workers got to know you much better which may be good, but unfortunately is probably a sad testimonial.

1 comment:

  1. David,
    I enjoyed your blog on Norman Darwin. Your impression of Norman was spot on.
    I have known Norman for over 20 years. Mostly we have been on opposite sides of workers’ comp disputes. While I have often disagreed with him on specific cases or issues I am pleased to call him a friend.
    His retirement is well earned, but he will be missed.