12 June 2008

We are ending our Workers' Compensation practice line

We are ending our practice line in the area of Workers’ Compensation. We have steadily practiced in that area since about 1984. In 1987, my former partner and I divided the case load so that she was straw-bossing the Social Security Disability practice and I the Workers' Comp. When that firm terminated, the Workers' Comp followed me.

We are winding up existing cases and will only open new files in extraordinary circumstances, such as where there is also a Social Security Disability application or a personal injury/insurance claim.

Wow, this seems abrupt, doesn’t it? Far from it.

Since 1995, the Workers’ Compensation system has been undergoing stunning changes, all of which have worked to the disadvantage of individual workers. Some of those changes were necessary to keep any system at all, which benefitted ALL workers, and we remain staunch supporters of Governor Manchin in that regard. He asked EVERYONE to tighten up, and the workers and those representing them stepped up to the plate and did so. The “other side,” consisting now of insurance companies acted, well, like insurance companies and have basically said to hell with the workers, the Governor and everyone else. They are firm believers in the “Viking Motto,” that is, “Screw You, I Got Mine.”

This has resulted in a lot of things:

In 1994, there was a simple and efficient system to handle disputes. Cases were reviewed periodically at hearings before part-time “hearing examiners” (that’s how I got my start in the practice), and things didn’t “fall through the cracks.” Well, every problem can be made worse by throwing money at it, and an “Office of Judges” came about with full-time judges and rules out the wazoo which had little or nothing to do with getting a decision made on the facts of a case. They have rules, for example, which prevent judges from reading a doctor’s report if it is received one day late, no matter what the report says, no matter how the worker is (or is not) injured. Paperwork tripled, and results were cut in half, with everyone congratulating themselves on how much paper they were churning out.

The old system of estimating impairment (percentage “settlements”) sort of by a “seat-of-the-pants” method needed changing. So it was changed to follow the American Medical Association Guidelines to Impairment. That’s all well and good, but to the AMA, there is no such thing as crippling pain. So, a typical serious back injury to a coal miner in 1994 that would have merited a 40% impairment (around $40,000) became a 20% impairment in 1995. Then came “Rule 20,” because 20% for an injury that may have ended a coal miner’s career at age 40 was WAY too much money for the employers' interests – so under Rule 20, that injury topped out at 8% - a 5-fold decrease.

Permanent total awards exist where an injury knocks someone out of the ability to do any meaningful work. That happens, and is sometimes dependent on someone’s age, education, and work experience. A “threshold” for an application of 50% was imposed, meaning that you have to have 50% awarded before you can even ASK for a permanent total. And remember, the amount of impairment awards have gone WAY down. In the mid-90's, we were turning over about 1-1/2 permanent total cases per month, which was as many or more than any law office in the state. In the early 2000's, it went to 1-1/2 per YEAR, and now it’s gone to ZERO.

The state Chamber of Commerce said that anybody should be able to be retrained to work, and that it was essentially lazy to just be disabled. Well, insofar as people ought to get out and be absolutely as active as God lets them be, they’re right. But the retraining is a problem. The vocational rehabilitation system is a corrupt joke. Big companies collect big money to “counsel” people on how to write a resume and then bug them to go apply for jobs that they can’t do. There is a 7-step “heirarchy” of rehabilitation. Guess where an injured worker actually gets some training? Right, step 7.

More and more, the insurance companies are denying medical treatment and medication. This is not because they are not needed. This is because the worker will play hell trying to get the decision changed. The worker will NEVER get it done quickly, and if s/he needs medication NOW, they are just out of luck unless they have another way to pay for it. They have to go to the Office of Judges and present evidence on each denial, and it’s hard to get a lawyer to help – it is ILLEGAL for a lawyer to charge a fee to do that.

So all of this has resulted in our being able to do less and less for our clients. That alone is disturbing.

Also, to be mercenary, it means we are busting our asses getting less and less results for little or no compensation while our expenses are going through the roof. And it also means that when a worker gets screwed by the system (and believe me, that happens all the time), WE are the closest people, so WE are on the front lines with the frustrated people who have taken the screwing -- the folks at the insurance companies will just recite that it ain't their problem and hang up, so claimants often vent their frustrations here.

So, I must say, I love the practice of law, I love my clients, and I love helping people and making a difference. I smile when I think of many of them – my friend Charles, who was terribly injured and nobody believed him. We worked the HELL out of his case and finally got a PTD. My friend George, they used every trick in the book to delay him and block him, and we got his PTD right before he died. My friend Larry, I loved that guy, the kind of fellow who would boldly fly the Jolly Roger, and whose work ethic was fanatic. On his death bed, we promised that we’d keep his case going for his family. Wanda, who had a very peculiar chemical exposure case; Fred, who had what would have been a bad but not horrible leg injury, but he got osteomyelitis and reflex sympathetic dystrophy. There are just so many.

We never shied away from work. In 1995, when the first big attack came, I remember putting in 80 hours in the 4 days after a bill was introduced in the Legislature because I knew that the Supreme Court had to strike down the part of it that said it was effective from before it was passed. We got about 10 people permanent total awards from that, so it was worth it. We dealt with steadily worse and worse “whores of the court,” doctors who basically sold opinions against workers, no matter what the worker’s condition was. There's one doc they've dredged up and I've read about 100 opinions of this doc in the past year -- of these 100 people, TWO of them were hurt, according to him.

I just cannot help people it any more in the realm of Workers’ Compensation. I’m 55 and I’ve been doing this for 30 years. I have never focused on the money, and I have never sought “status” or worn $1,000 suits or driven a Mercedes. (My Audi is the nicest car I’ve ever owned. It’s now 9 years old, has 125,000 miles on it, and still runs like a bat out of Hell, which is why I keep it.) I keep joking with Judge B that I’m going to comply with the letter of the new dress code rules by wearing to court one of my Hawaiian shirts with one of my Santa Claus ties, because I'm just sort of anti-3-piece-suit. (As I write this, I'm sitting at my desk at the end of a day, and I've changed into one of the Hawaiian shirts, shorts and sandals, and I'm comfortable.) My contemporaries are retiring and going into semi-retirement because they HAVE focused on the money, whether or not that has meant good results – I know of some really wealthy lawyers with clients they have soaked who often REALLY needed told that they should forget the whole thing and not go to court.

There are other cases and other ways where we can honestly make a difference in people’s lives, and we have to turn our efforts to those.

This is very difficult for me to write. Practicing Workers’ Comp has gone from honest and vigorous litigation to tilting at windmills, and windmills will just beat the hell out of you. I should consult partner Amy before publishing something this open about our business. However, she is at the state Democratic convention this weekend and she would discourage me from doing this. I’m sure she would prefer some rather more dignified announcement that was absent any emotional content. Well, folks, this is who I am, warts and all, and I will continue to stand on these Wind Hills, spit into the wind, swing the tomahawk and persevere.

Pippa passes.


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