Recent events in Alabama should serve to remind us that workers’ compensation works best when balanced across the multitude of interests that are affected by it. The failure of efforts from a task force that proposed legislative reforms in that state may be due to broader influences than what has been previously discussed.
Birmingham attorney Mike Fish wrote a very informative piece in his AlabamaWorkersCompBlawg last week which was republished on our site Friday. His post, entitled “In the Race for WC Reform, Georgia is the Hare and Alabama is the Tortoise,” outlines point by point the process that was followed, and discusses the primary reason for that efforts failure.
And that failure as discussed appears to be that someone forgot to invite the self-insureds to the table. The Alabama Council of Association of Workers’ Compensation Self Insurance Funds was not part of the task force that generated legislative recommendations. Since the Council represents self-insurance funds providing workers’ compensation coverage for 16,200 Alabama businesses employing 375,000 people, they had something to say about the proposals, and they had the political clout to be heard when they said it.
But I really think the core problem runs much deeper and occurred well before any perceived slight by that organization. The real problem, in my view, was that only attorneys were allowed to be on the task force to begin with.
An article that ran on workcompcentral.com 5 days after the one penned by Mr. Fish outlined additional detail of the framework for the Alabama task force. In defending their efforts, an organizer indicated that “There were at least three lawyers on the task force who represent self-insurers, so [the Council] knew what was going on.” They went on to explain that because the task force was a State Bar Association committee, only lawyers could participate. It would be very difficult if not impossible to have non-attorneys admitted to the group. They did stress that they had a fair representation of both plaintiff and defense lawyers on the panel.
But in the world of workers’ compensation, there are other stakeholders to consider, and even the interests of lawyers can at times conflict with those of other groups. Everyone’s voice needs to be heard in this process.
Back in 2016, when Judge David Langham and I coordinated a series of meetings known as the Workers’ Compensation Summit, we made tremendous efforts to bring a highly representative cross section of all major players to the table. We had lawyers from both sides, union reps, judges, employers, doctors, insurers, TPA’s, rehab professionals and more. We even had injured workers at the table, something that has never really been done before. Those meetings were exhausting, but most participants came away with a better understanding of the issues faced by those “on the other side” along with a more balanced view of workers’ compensation overall. Many people told me afterwards that they simply did not know or understand the challenges that their counterparts had to deal with.
And that is a problem when only one group – purported to be representing others interests – are tasked with reforming a state’s workers’ comp system.
I have nothing against attorneys. They are a necessary cog in the wheel for our industry. But anyone who tells you that an attorney’s professional and financial objectives always dovetail perfectly and never conflict with those that they represent is simply mistaken. Just like every other stakeholder, there are things that work both for and against their interests, and they do not necessarily have the same impact on their clients.
This doesn’t mean that the attorneys on the task force weren’t honest or well intentioned. It does not mean that they did not attempt to do their best regarding their obligations. It simply means they are human and could not speak on behalf of every concern that their constituents might have.
Ultimately the people of Alabama can argue over who was and was not represented at that table. The bottom line is key stakeholders were left out of those talks, and that was the fundamental flaw in the effort; an effort that was doomed from the start. Even if it had resulted in new legislation, the result would have likely required another “fix” in the very near future.