Our industry owes a lot to poor judgement and bad decisions. In fact, we prosper and thrive on them. Think about it for a moment. Most accidents can trace their roots directly back to a bad decision. The employee who thinks they can jump off the loading dock without shattering their ankle?

Bad Decision.

The supervisor who orders safety guards removed because they are slowing down production?

Bad Decision. 

The employer who ostracizes or terminates a worker in response to a filed claim?

Bad Decision. 

Even case law is usually the result of a bad decision, often made years before the case sets any precedence in court. I shared this idea when I spoke last week to the ABA Mid-Winter Conference in Phoenix, AZ. The example I used that day was Florida’s Castellanos v. Next Door Company. That case is a classic example of precedent set by multiple bad decisions.

Florida had a problem in the early part of the century. Some attorneys were abusing the legal system, litigating elements of cases that were resulting in technical wins, but brought little if any financial benefit for their client. Nevertheless, the fee structures of the day allowed them to make thousands of dollars for what many considered “nuisance” cases. The two best examples I know of regarding this include one case where the claimant was awarded $5 by the court, but had to pay the babysitter $15 to be at the hearing that day. His attorney was paid $2,500 for that “win”. The other, more egregious case, was where an attorney received an increase in weekly benefits for their client of .10 (ten cents). That attorney was paid $16,000.

The state legislature, in its infamous wisdom, attempted to fix the problem by simply capping fees for injured workers’ attorneys to a percentage of benefits won. (It is more complicated than that, but you get the idea)

Bad decision.

What was created was a vacuum where people with smaller claims, short indemnity periods or in need of comparatively minor procedures could be more easily denied, since there was not enough value to the case to justify an attorney’s work on it. That is the sweet spot in which the stage was set for Castellanos.

Castellanos was originally a claim over denied medical procedures worth about $800. The attorney who brought that case, and secured that treatment for his client, made about $1.53 an hour on that case.

That treatment denial, it turns out, was a very bad decision. Castellanos became a challenge to the fee structure mandated by the state, and when all was said and done, the attorney had secured $36,000 in fees for that $800 decision. Additionally, employers and carriers in the state face huge unfunded liabilities for potential attorney fees for any open cases dating back a decade or more.

All that economic activity from an original bad decision 14 years ago.

Attorneys aren’t the only ones who benefit from bad decisions, of course. The entire industry does. If it weren’t for bad decisions, many of us would have nothing to do. Adjusters would have nothing to “adjust”. Doctors would have no patients. Judges would be decision-less. Cost containment firms would have nothing to contain (but somehow, I suspect they could still save us all money).

None of us could survive on the freak accident alone.

The message of the “bad decision” seemed to resonate at the ABA, as the concept was mentioned by a couple speakers who followed me (and not in the context of “can you believe how stupid that guy is”). One of those speakers, Florida Attorney Mark Touby, was the attorney who filed and won Castellanos, and he agreed that bad decisions are what contributed to that case. 

Yes, our industry owes much to the colossally bad decision.

So, don’t fret so much over the useless details of problems before you today. Be bold, and proceed on your path with abandon and without concern. The boneheaded decisions we make today won’t just affect our contemporary peers; nay, they may live on for a decade or more, affecting the next generation of workers to stumble down our path.

Indeed, take a drink in honor of the bad decision. Then another. And then go make some. Peoples livelihoods are depending on it.





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