EDITORIAL: Leave Alone Court Finding On Worker’s Comp Reform

Mar 4, 2009

The Tampa Tribune–March 4, 2009

No one wants to see the return of the day when Florida businesses were bombarded by crippling workers’ compensation claims. But reforms adopted by the Legislature in 2003, as the state Supreme Court found, went too far.

If lawmakers try to undo the court’s measured ruling, as some aim to do, they could strip injured workers of their constitutional right to legal representation.

And the courts then would likely toss out the whole reform package. All progress that has been made in reducing litigation would be lost.

Some background: Responding to complaints from business interests that workers’ comp litigation was driving up costs, lawmakers adopted extensive reforms, making it tougher for fraudulent claims to be filed. Among the provisions was a schedule of fees for a lawyer representing an injured worker. The most the lawyer could be paid per incident was $1,500.

Last fall the state high court ruled in Murray vs. Mariner Health that courts should be allowed to exceed the legislation’s rigid fee schedule and award “reasonable fees.”

In the Murray case, a nursing assistant was injured while helping lift a patient and required surgery. She filed for workers’ compensation, which her employer’s insurance company denied.

She challenged the company in court and was awarded $3,244.

But under the state-imposed fee schedule, her lawyer, who worked 80 hours on the case, was awarded only $648 – or about $8 an hour – from the insurance carrier.

In contrast, the firm paid its counsel $16,050 – about $125 per hour – for the case.

Sound fair to you?

Obviously, the structure did not give all parties equal standing.

The high court ruled judges should be allowed to exceed the law’s fee schedule when circumstances justify.

This has caused an uproar among insurance companies and other business interests that claim the ruling will cause an explosion of lawsuits. Legislation is proposed that would overturn the court’s ruling.

There is no evidence a new law is necessary.

When adopted in 2003, proponents aimed to reduce the cost of workers’ compensation coverage by 15 percent. But trial lawyers point out that the cumulative rate reduction is now 60 percent. Fewer lawyers now are willing to take workers’ comp cases. That may be keeping some outrageous claims out of the system, but it also may be discouraging legitimate claims.

The court ruling does not jettison all workers’ comp reforms or even eliminate the fee schedule. It simply allows the courts to exceed it on occasion.

And while lawmakers are quick to rail about the abuses of trial lawyers, do they think insurance companies are never guilty of rejecting legitimate claims?

We don’t want to see a barrage of lawsuits, but we also don’t want to see a lopsided legal system that handcuffs injured workers while giving insurance companies free rein.

If the insurance lobbyists prevail in this Legislature, you can be sure the constitutionality of the entire law will be contested. It’s hard to see how the courts could find any system equitable that stacks the deck – and the legal fees – on one side of the courtroom.

The Legislature should recognize that without a “reasonable fee” exception, the workers’ comp reform is, as the high court confirmed, “manifestly unfair.”