There is a scene in an episode of the hit television show, “Big Bang Theory” that I thought of recently. Set at a campsite in the desert, three of the main characters, Raj, Howard and Leonard, are all “severely impaired”, as well as suffering from an intense bought of the munchies, after unknowingly eating a batch of marijuana laced cookies. Ravenously hungry and out of food, Leonard is desperately digging through a cooler looking to see if they have any more pudding cups. Finding none, they engage in a discussion about how incredibly hungry they are, and after a few moments of this, Howard suggests they “See if we have any more pudding.” After a brief pause Leonard says, “Ok”, and dives back into the empty cooler once again searching for pudding cups.
That scene, with only slight modification, was exactly how the Florida State Legislature looked this year trying to fix the state’s workers’ comp problems.
In 2003, the state engaged in major reforms of our workers’ comp system, a significant component of which consisted of severely capping plaintiff attorney fees. It took over a decade, but the Florida Supreme Court eventually declared that element of our comp laws unconstitutional. It seems that restricting attorney’s fees, while simultaneously making it illegal for an injured worker to hire and pay for an attorney out of their own pocket, actually denies those workers’ something we like to call “due process”.
Oops. Silly legislators.
This year, the legislature engaged in an embarrassing search for a solution, resembling a bunch of stoned campers desperately wandering the desert looking for something to eat. And even though they had established that pudding cups were not an available alternative, they doubled down on their search to find more pudding cups.
The Florida legislature this year considered a number of alternate solutions to the challenges we have in the state; none of which was actually related to the core issue at hand. Ultimately, they settled on a truly radical and original idea; they decided to cap plaintiff attorney fees. Again. The House settled on a cap of $150 per hour for plaintiff’s attorneys, while the Senate wanted to go with a less restrictive rate of $250 an hour. The two sides could not agree, the buzz wore off, and they took their cookies and went home without passing any substantive bill on the topic.
I must say it was a spectacular display of limited imagination.
I am not a fan of litigation, and yes, I know some injured workers “lawyer up” early and often. There are better ways to control excessive litigation. And it seems to me there are better ways to control claim cost than simply applying artificial caps to lawyer’s fees.
For instance, in some cases you could just avoid the lawyer in the first place.
While no solution is an absolute, a well-managed claim that employs open communication and is paid timely would go a long way towards eliminating needless litigation. In fact, adopting these simple principles would almost eliminate those pesky and bothersome lawyers.
- Improve training for claims people, including empathy techniques
- Reduce adjustor caseload
- Improve communications with injured worker AND their family/support network
- Pay claims timely
- Provide PROMPT and effective medical care
- Don’t deny the small stuff
That last one is important. Remember, every “no” in the claims process is another brick in the path to litigation.
I also mentioned empathy in that list. That is something that, as an industry overall, we do not display with any true competence. As I have said many times, we are a process driven industry. We discuss statutes and rules, and standards and procedures. We talk of caps and restrictions, as well as reporting requirements and compliance. Rarely do we include in our conversations the impact our actions have on the parties we are dealing with. It is not evil in intent; our culture has simply evolved around the legal processes, not the outcomes and attitudes for those being served.
And at times that lack of empathy and proper communication leads to litigation. It doesn’t have to be that way.
Trying to control claim costs by forcing artificial caps on attorney fees will ultimately prove to be a fool’s errand. That effort merely covers up deeper issues, and encourages abuse by bad actors in the system. It would be much better developing a system that holds parties accountable for frivolous legal actions while at the same time expands the focus on outcome for the injured worker. This, of course, would also be a system focused on clear and open communication, while offering less in the way of needless and punitive administrative “punishments” (read: more carrot, less stick). It would require both greater imagination and openness to new ideas than that which the Florida legislature is currently capable.
It probably goes without saying, but a revamp of our culture would be the greatest step to limiting attorney’s income. A shift to “Workers’ Recovery”, instead of our relentless and shortsighted focus on “Compensation” would ultimately have the effect our legislators are trying to reach. If you really want to restrict attorney involvement, just get rid of the attorneys. You can best accomplish that by developing a system that doesn’t create a need for them.
Or, we can endlessly search for more pudding cups. The results will not be very different every time it is tried.
Editors Note: This article originally reversed the proposed attorney fee cap limits of the Florida House and Senate. It has been corrected to reflect the correct information.