Thursday, April 28, 2016

Can O' Worms

As much as many like to denigrate the legal profession, attorneys are an important component to our society, in particular regarding the complex world of workers' compensation.

Sometimes lawyers are called upon to protect the legal interests of an injured worker, sometimes it's just to explain the process and answer questions about the law and regulations. Sometimes claimant lawyers can actually smooth the dispute by realigning the expectations of the injured worker.

And sometimes obtuse positions are taken that could be construed as against the interests of the injured worker.

Regardless, when one is hurting, in pain, and confused, dealing with the intricacies of workers' compensation is overwhelming, and legal representation can make a difference between a lifetime of impoverished living and return to normal lifestyle.

How to pay for that legal representation has been a vexing question from the very beginning.

The traditional mode is to base fees on the amount of recovery obtained on behalf of the client - a contingency fee.

Contingency fees have positive and negative attributes, of course, some of which are inconsistent and conflicting.

For instance, if the job of the attorney is to get as much money as possible for the client, then a contingency fee is highly motivating. But the inverse is that the goal in any medical care system is to return the injured to as good of relative health as pre-injury status, not a high level of disability.

And if a case doesn't appear to have an attendant high level of disability, ergo a small fee, then the injured worker may not find any representation - after all the business of law in most attorney practices still overrides charity. There are staff members to pay, electricity and phone bills, and rent...

Texas has a unique system for paying claimant attorneys. There is a maximum hourly rate on fees, a cap based on the value of recovery, and time spent on certain processes is regulated as well.

The hourly rate hasn't changed since 1991 and has been set at $150 per hour since then.

As far as I know, Texas has one of the lowest litigation rates of any workers' compensation system. Many that I have talked to have said this is because it is impossible to make a living representing injured workers based on the fee constrictions, so injured workers go without legal representation.

The Division of Workers' Compensation is now proposing an increase in the hourly rate to $200. While welcomed by the claimant bar, the proposed rate increase is criticized nonetheless as inadequate because it is still short of what it would be based on inflation.

That viewpoint, of course, is based on the assumption that back in 1991, $150 per hour was reasonable - it might not have been...

I'm an old guy, and one should not rely upon my memory, but in 1991 I recall my hourly defense rate was less than $100 per hour. And that was in metropolitan Los Angeles, which has, generally, a much high cost of living than in Texas. Based on the Bureau of Labor Statistics calculator, that rate would be $174.84 today.

That same calculator returns a value of $262 per hour, noted attorney John Pringle in written criticism about the proposed change to the TX DWC.

Nirvana for everyone except those in the business of law would be to devise a workers' compensation system devoid of dispute. That isn't going to happen, and in fact, we tend to do otherwise and introduce all sorts of procedural hurdles and qualifying rules that seem to provoke disputes.

I don't have a realistic solution. As long as someone has something that someone else wants, there's going to be disputes and rather than resolve those disputes via duels or fisticuffs society has declared it is more civil to air grievances before a tribunal with rules, regulations and ... lawyers.

Just like any dispute, there are going to be winners and losers. That's just the nature of conflict. The key is getting the equation right so that most of the time, most of the disputes get just representation for just results.

Most of the time.

It's the proverbial can of worms and complete satisfaction is unattainable, at least in the current configuration of workers' compensation.


  1. "if a case doesn't appear to have an attendant high level of disability, ergo a small fee, then the injured worker may not find any representation"

    Your Exactly Right David. That is what is happening for many of the non catastrophic injured workers, who do not have a 3rd party involved that can be sued. Thus leaving many injured workers trying to fight this broken one sided system on their own. And as you know the old saying goes, he who has himself for a lawyer, has a fool for an attorney. The cases are so complex, it can drive the lone injured workers insane. Its as if it was all designed this way, to discourage the injured workers from even trying to fight for justice in their claims. Sad.

    Do we really have a system designed to drive the lay man insane? Rather than render them justice and our grand bargain on the non catastrophic OJI's? It sure seems like it. Is that really sound public policy, in our enraged World as it is today? I think not.

    Thanks for another great report, on the state of workers comp in America today.

  2. " representation can make a difference between a lifetime of impoverished living and return to normal lifestyle....."

    YEP. The legislated ability of non-performing attorneys to have liens on a case that hinders ability for competent replacement when initial attorney choices have been poorly made by ill-informed Injured Workers is a huge ethical problem.

    That harms not only the injured workers, but taxpayers and the legal community.

    The lack of knowledge of body parts, return to work strategies, obtaining medical care and competent providers, as well as lack of expertise in mediation and structured settlements is another gap in attorney performance that harms many.

    It's good for the defense side, though. They bank on it, don't they? :/ Isn't that part of what keeps cases churning for years and years and years, with a little periodic hand-wringing by various 'stakeholders' about ain't it awful for the poor injured, unemployed, disabled-by-comp workers? : (

    When even the Information and Assistance Officers, (officers of the Court?) as in California, insist that WorkComp is an "adversarial system" that is yet another problem identified requiring complete transformation; barring tranformation, complete and total demolition is required. If there is no intention or will to provide "immediate, reasonable and appropriate medical care".... why not just call it an extermination program, based on outcomes?

    WorkComp Exterminations ----- there's little compensation for the Injure Workers, and too many PAY WITH THEIR LIVES after long, torturous ordeals. Most Injured Workers have the same story----just different names and different body parts. Quite similar outcomes. Survey the real doctors. Ask the Super Lawyers.

    When attorneys play a numbers game with the lives of injured workers, accept denials of medical care and benefits for years, in hopes the attorneys may 'hit a jackpot' on another case it seems to be not only ethical violations, but breach of fiduciary responsibilities of applicant attorneys, evidenced by the years and years (50 or 60 in CA?) of dismal outcomes for the injured workers and other taxpayers.

    "It's the proverbial can of worms and complete satisfaction is unattainable, at least in the current configuration of workers' compensation." YEP. THANKS DAVID DePAOLO! TIME FOR CHANGE!

    "Without a personal blog, an Injured Worker is unarmed in the War On Workers, #WoW!" -

  3. My husband has finally gotten in front of a judge for a settlement hearing after almost 10 years. We often think our attorney is on the other side. We weren't told we could have a witness other than me & when we asked if our friend of 40 years could testify he said "no, we don't want it to sound rehearsed ".
    Then he requested that I write a list of questions that he should ask me when I testify.
    Any advice?

    1. When you are represented, you are somewhat at the mercy of the party retained to represent you.

      Ten years?!!! That's not uncommon. If your attorney is asking you to do his/her job, that is very much a red flag. Same attorney for the entire 10 years? What outcome is this attorney preparing you for?

      Best to have that conversation and understanding prior to getting in front of the judge, IMHO.

      It might be worth a second opinion and A willingness to change counsel if you find a more responsive and proactive and prepared representative.

      An alternative is to consider mediation and a structured settlement discussion PRIOR to the hearing. If your current Counsel's negotiating skills are lacking, a mediator can possibly bridge that gap. Search LinkedIn for MEDIATORS and find ones with WorkComp expertise.

      What State is the case in? How much time before the hearing?

      There is a group called National Association of Injured and Disabled Workers with a wealth of other injured Workers willing to share experience strength hope and resources. Check them out!

      Browse through all of David DePaolo's blogs for an excellent overview of the national WorkComp systems. Search his blogs for articles on settlements.

      Never give up. Help your husband protect himself and your family. The system does not protect and it sounds questionable that your current Counsel may be of much help. DO Your HOMEWORK. BE PREPARED for more of the same that you have already experienced in the past 10 years. Sorry.

      Know that you are not alone and that many best wishes are coming your way from Injured Workers around the nation who know your pain! Let's see who else weighs in with a kind word, hope, strategy or resources.

      BLOG ABOUT IT! You can start a Blog with the question you posted and watch your network build! Settlement is not "the end" so continue to reach out for survival tips!

      Take care of yourself and your family, and tell your story your friends and neighbors because

    2. WOW 10 years? This system is BROKEN, period. I agree with Linda. One should not have to take that long to get justice in their claims. Wishing you and your husband a positive outcome in your settlement hearing, and truly hoping your lawyers are on your side. You have come this far, its seems you dont have much choice but to see how the settlement goes, at this late stage. IT truly is a stacked deck against the injured, with legal representation or not.

    3. Thanks for your good wishes.
      Chances are nothing will be settled soon as SF will most likely apeal.
      Medicare wants 400,000.00 set aside for future medical, our attorney says SF does not settle with a set aside & so far the offer is 12k.
      The system is so broken, I pray that someday the Veterans & injured workers will be defended by a constitutional system not a kangaroo court.

    4. Shawback! Welcome Back. "Kangaroo Courts" may be with us for the long run. Veterans and Injured Workers must become Battle Buddies, and #Blog4TheCure.

      "An Injured Worker Without a Blog is UNARMED in the War On Workers! #Wow"

      A Veteran told me that Injured Workers would be well advised to conduct themselves as all POWs are required to do...including 'escape by any means necessary.'

      There's an active thread on David's other recent post, It's That Simple. Stop by. Share it with your husband. Let him know that YOU ARE NOT ALONE! XOXOX


      Prayer is most powerful when backed by action. Let's all continue to hope, act and blog! -