Sunday, May 10, 2009

My Letter to the Herald: Gov. Crist, Veto Comp Bill

Dear Editor:
Some things are below our radar because they fall into the category: "It won't happen to me". We don't think about Tornadoes because they are so rare in Miami that : "It won't happen to me". Same with earth- quakes and Tsunami's. Even Global Warming and Drought fit into this category. We don't think much about the bridge we are traveling over collapsing, or a tree falling on our car. Personal disasters, shootings, serious accidents, all happen to the other guy, not me.
This is the reason the Insurance and Business Lobby can get away with pressuring the legislature and the governor to enact laws that reduce the ability of the ordinary citizen to recover for disasters and injuries. It happens all the time to the Insurance industry and to Business. They get hit with having to pay for those rare instances where one of us gets hurt. Or for the 100 year Hurricane, or the faulty construction of the bridge. It's big money to them, but it won't happen to me. So we don't speak up when our rights are threatened. It's going to happen to someone else. Not me.
Well it does happen to all of us. My clients consist of those who have been hurt on the job. The widows and orphans of those killed on the job. The victims of those freak accidents that would never happen in a million years. Getting hit in the eye by a football? Falling down while running to respond to a false fire alarm. Getting hit in the face by an exploding tire. Falling off a ladder. Quadripelgia, blindness, death. All happen at work. Even in the safest of jobs. Teachers get assaulted and raped. Secretaries fall off faulty chairs and break their necks.
This past week the legislature again bowed to the pressure of business and insurance and passed SB903. Just to show how brazen they can get, they removed the word "reasonable" from the workers' compensation law. That was this years "reform". Unless a miracle happens our wonderful, kindhearted, bipartisan, Senate seat seeking governor, Charlie Crist, will sign this bill to insure he gets big contributions to his statewide campaign from Big Business and the Insurance lobby. How can he resist? Why should any of us care? It won't happen to me? WIll it? Well it sure as heck will happen to some of you. You'll get killed and your wife and three kids will be denied the minimal death benefits provided by the workers' compensation act. Up to $7,500.00 for burial and a total of $150,000.00 payable to all dependents over aperiod of time. At this years maximum compensation rate, that period of time is less than 4 years. That's it. Nothing more. And you can't sue the employer even if the grossest of employer negligence caused the death. Death from on the job injuries happened to over 400 Florida families just last year. Yes, it can happen to you and me. And the worst part is the Insurance carriers deny payment of these workers' compensation claims more than ever according to a report just released by the Division of Workers' Compensation, part of the Department of Financial Services.
So what if it does happen to you and the carrier denies your claim for medical care? For weekly indemnity benefits while you recuperate? Or denies widows and orphans benefits? You get a lawyer to fight for your rights? Wrong. Not if Charlie Crist signs that bill removing the word 'reasonable' from the law.
The part of the law that contains the word 'reasonable' is the part that requires the insurance carriers to pay your lawyer's fee when your lawyer is successful in obtaining benefits for you that were denied. Up until this session of the legislature, that lawyer was entitled to a 'reasonable' fee, set by a Judge, depending upon the benefits obtained for the client or the amount of work involved in defeating the insurance carrier. Once the word 'reasonable' is removed, the only fee a lawyer for in injured worker or the heirs of a decesed worker can be paid is tied to a formula set by...the legislature! Here's how it works: You are a teacher. First year on the job. May 2010 rolls around and you are asked to unload boxes of books from a cart and carry them to a storage area. It's over 90 degrees. While doing so you collapse and die. The school board's insurance servicing company denies that your death is related to your job and refuses to pay your funeral expenses or death benefits to your wife and 3 kids. You seek out legal help. Since death benefits are 'capped' at $150,000.00 plus $7,500.00 for funeral expenses, the lawyer who takes your case knows that the bill Charlie Crist is about to sign will 'cap' your lawyers fee, payable by the school board if you win the case, at $16,500.00 pursuant to the fee schedule that must be used. The school board's lawyers can earn as big a fee as they can charge for the hours put in defending your claim. They can run legal circles around your lawyer and paper him to death. They can delay and delay and in the end make it so unprofitable to represent the interest of the widow and the children, that that lawyer won't even take your case to begin with. The liklihood that you can handle the claim yourself in nil. You get nothing.
But if Charlie Crist vetoes SB2703, all injured workers and their dependents whose benefits are unlawfully, unreasonably or just plain mistakenly denied, will be able to get legal representation. The parties will still not be on an even footing since the insurance industry has far more resources to fight claims than contingent workers' compensation lawyers have to prosecute those claims, but at least the worker's lawyer konws that if he gets into a big battle over a small amount of benefits, he will get a 'reasonable' fee for his efforts.
Repealing the word 'reasonable' does just what big business and insurance want it to do, make fees for injured workers lawyers 'unreasonably' low in the vast majority of the claims. If there is no one to fight for the rights of injured workers or their families, will workers' compensation benefits get better and easier to obtain? Will insurance carriers deny fewer claims? Will they become the beneficent payers of all legitimate claims? As Sarah Palin might say: "You betcha" (they won't).
The famous phrase, oft quoted from Shakespeare, "Let's kill all the lawyers" was meant to describe how it would be possible for those in power to take away the rights of those being opressed. Make sure they couldn't get lawyers. Modern Shakespeare has played out in Tallahassee these past 9 weeks. Take way the lawyers from those injured at work but allow the insurance companies to have all the lawyers they want and pay them whatever they want to defeat claims. Seems fair only if you are Big Business or Insurance.
Almost 100 years ago in this country, almost 75 years ago in Florida, the right to sue one's employer for negligence and have a jury render a judgment, was taken away using the police power of the State. The replacement of the constitutional right to access to the courts was the workers' compensation scheme. It was supposed to be a fast, sure and adequate benefit replacement. It is neither fast, nor sure, nor adequate. It hasn't been so since the Report of the National Commission on State Workers' Compensation Laws said so in unanimous agreement in 1972. That's right...1972. And that's right...Unanimous. The commisison was set up by the 1970 OSHA law pushed by then President Nixon. That's right...Nixon, a Republican.
So maybe it won't happen to you. Or maybe it will. Why take the chance? Get involved now before you have to try to get a lawyer to represent you. Tell Governor Crist to veto SB2703. Tell him to leave the word 'reasonable' in the workers' compensation law and not make the workers' compensaiton scheme any more unreasonable than it already is.

Mark Zientz