By: Morgan Gaynor
A few months ago, injured workers won two legal victories in Florida workers’
compensation cases before the Florida Supreme Court. Last week, the inevitable
corporate push-back opinion appeared. Mark Wilson, the President and CEO
of the Florida Chamber of Commerce, wrote a column in the
Tampa Bay Times condemning the court decisions and calling on lawmakers to “fix”
what he called “this looming crisis” of increased workers’
comp insurance rates.
Wilson was not specific about the fixes the Chamber is proposing. However,
he claimed the court’s rulings will result in “runaway legal
fees.” According to Wilson, there will be a “tidal wave”
of “billboard trial lawyers” greedily “refiling old
cases and concocting new ones.” This kind of hyperbole has become
par for the course for business lobbyists who disagree with court decisions
favoring injured workers.
Despite all his professed concern about legal fees, Wilson says nothing
about the legal fees insurance companies fighting workers compensation
claims pay to
their own lawyers. This omission is critical. As the Supreme Court pointed out in
one of its recent cases, about two-thirds of the legal fees paid in the
workers’ compensation system are paid to lawyers who
defend comp claims. Lawyers for injured workers, on the other hand, receive about
one-third. Therefore, overall costs could be reduced by capping or restricting
the fees of defense lawyers rather than claimants’ lawyers. Yet
Wilson is silent about this potential source of savings.
This inconsistency is a typical feature of the arguments made by so-called
tort reformers. They trot out wave after wave of proposals to “fix”
the legal system by limiting only the fees of lawyers who represent injured
people. They never discuss the prospect of capping the fees they pay their
own lawyers. This holds true even when, as in the Florida workers’
compensation system, the defense attorneys are getting about two-thirds
of the total fees.
There have never been any caps on fees paid to lawyers who defend workers’
comp claims. However, until the recent Supreme Court decisions, the fee
limitations for lawyers representing injured workers were rigid and severe.
By law, they could receive no more than 20-percent of the benefit they
obtained for an injured worker. For example, if the lawyer succeeded in
securing medical treatment that cost $3,000, his or her fee would be no
greater than $600. For benefits obtained costing more than $5,000, the
percentage was progressively lower.
One wonders whether tort reformers would be willing to apply this cap to
their own lawyers. For example, if an injured worker sought prescription
medicine costing $4,000, then the defense lawyer could be capped at 20-percent
of the medical costs he or shesaved for the employer or insurance company. Specifically, if the lawyer prevailed
in arguing the medicine was not needed, then the lawyer would get a maximum
of $800 for those efforts.
My guess is that this particular fee-capping proposal will be a non-starter.
That’s because the real agenda for tort reformers is not reducing
costs, but tipping the playing field in favor of industry. A well-funded
defense side can steamroll workers if the fees paid to workers’
attorneys are economically suicidal. That’s exactly why the Florida
Supreme Court found the fee restrictions unconstitutional in the first place.
Wilson also fails to consider other potential cost savings within the system.
For example, medical costs in the Florida workers’ comp system are
higher than in many other states. Bringing medical charges in line with
national averages could result in significant cost savings. Again, Wilson
fails to mention this, and instead simply slams the Florida Supreme Court
and lawyers for the injured.
Like anyone else, Wilson is certainly entitled to his views. Unfortunately,
his vitriolic attack on workers and their lawyers brings more heat than
light to the discussion.