Workers' comp is dying at the hands of the Florida Legislature
By MARTIN DYCKMAN
Published March 7, 2004
TALLAHASSEE - For $9,714, it should have been a flight to remember. But Charles Jones, 31, a tow-truck driver from Spring Hill, recalls nothing from the time the car hit him until he woke up at Bayfront Medical Center the night of Jan. 25. That's just as well. He was hurt too badly to have enjoyed the ride.
Bayflite's helicopter bill was only the beginning of medical expenses that now total $57,000. But at least Jones didn't need to worry about how he would pay them. He had been injured on the job, so workers' compensation insurance would pay it all. His lost wages too. Or so he thought.
And so it will. The insurance company's first response, however, was to deny the claim.
The problem: A paperwork mix-up between Sam's Wrecker at Spring Hill, which put Jones to work Jan. 21, and Progressive Employer Services, an employee leasing company that is the actual employer of record for Jones and other Sam's employees. Sam's faxed Jones' papers to Progressive, or thought it did, and sent a hard copy by mail. But Progressive said it never received the fax and didn't get the copy in the mail until the day after an inattentive driver had run into Jones, shattering his shinbone at the knee, while he was winching a car out of a ditch. Progressive's insurance company said that meant Jones wasn't covered when he was hurt.
Whatever the snafu, it shouldn't have been Jones' problem. Under Florida law, somebody was responsible for insuring him. According to Rafael Gonzalez, a Tampa lawyer who specializes in workers' comp, there have been "lots and lots" of cases involving leasing companies and missing paperwork. Administrative judges usually rule for the injured worker, he said. But the catch is that they need lawyers to make their cases.
Because of what your Legislature did to the law last year, Jones would probably not have been able to find one. To pay his bills, he would have had to depend entirely on his own no-fault auto insurance and on recovering damages from the other driver. He has a lawyer for that. But those recourses would take time and not necessarily pay enough to carry him through a second surgery and a slow recovery.
Happily for Jones, the workers' compensation carrier, Unisource Administrators of Sarasota, reversed its decision last week. They'll pay his medical expenses as well as his lost wages, part of which Sam's had been kindly paying out of pocket.
I hope, however, that they are doing that simply because it was the right thing to do, and not just because a newspaper columnist was on the case.
It would take the rest of this column to itemize the rotten things that the Legislature did to Florida workers last year under pressure from the governor and the business lobbies to get workers' comp insurance premiums "under control." So let's talk today just about the worst.
That was to impose a flat ceiling of $1,500 on what a worker's lawyer can be paid to contest denials of medical benefits. Previously, judges awarded fees by the hour. The limit isn't just for the first denial. It's for the duration of the case, which could be literally a lifetime.
It can cost them more than that, the lawyers say, just to litigate over one MRI. So workers with permanent injuries are going to be left to the tender mercies of the insurance industry. Does any reader need to be persuaded that altruism is not the raison d'etre of the insurance industry?
"The insurance industry hopes they go away," says Leslie Riviere, a worker's attorney in Tampa. "For myself and other attorneys who do workers' comp, the handwriting is on the wall. We're looking for other ways to earn a living."
There's no equivalent limit on what the insurance companies can pay their lawyers. Unisource's lawyers were sending requests for discovery to Jones' lawyer, J. Steele Olmstead, even though he had filed no notice of appearance in the workers' compensation claim and was working only on Jones' potential suit against the errant driver. Unisource's lawyers had also filed a notice of appearance before the state Division of Administrative Hearings, even though Jones, for lack of a workers' comp lawyer, had filed no appeal.
It's not just the workers who will be stiffed over legitimate claims they would need lawyers to win. So will the doctors, the hospitals, Bayflite and other emergency responders. So will the taxpayers.
"At the end of the day, what everybody forgets is that if you deny the injured worker under the comp system, they're going to get it someplace else, Social Security or public assistance or public welfare or the public medical system," says Gonzalez, who is on the executive council of the Florida Bar's Workers' Compensation Section.
Workers' comp was crafted some 70 years ago to be good for everybody. The worker would get guaranteed medical treatment and lost wages. The employer wouldn't get sued. If you ask me, the Legislature has finally turned that fair deal into a raw deal. All that remains is for a court to pronounce it dead.
