When I became a lawyer 29 years ago, worker’s compensation was part of my practice.  Worker’s compensation provides injured workers with medical and disability benefits.  In return for having insurance coverage, an employer is immune from lawsuits by employees injured on the job (or the heirs of employees killed on the job).  There was abuse of the system by some lawyers, doctors and insurers, as there can be whenever people are involved in any system.  However, both employees and insurers had access to counsel, so everyone’s rights were protected.

In 1990, the Texas Legislature, in the first salvo of the “Tort Reform” revolution, completely changed worker’s compensation.  Twenty years later, I am here to tell you that if the Legislature’s goal was to rid the system of lawyers who represent injured workers, “Mission Accomplished.”

Most lawyers are paid by the hour regardless of the outcome.  Lawyers who represent personal injury and wrongful death plaintiffs work on a contingent percentage basis, where fees and expenses are only charged if the case is successful.  This contingent fee arrangement allows everyone to afford a lawyer, and lawyers have an economic incentive to only pursue valid cases.

Prior to the 1990 changes, lawyers worked for 25% of worker’s comp lump sum settlement.  The new laws prohibited lump sum settlements, and only permitted attorneys for workers to be paid a limited fee out of the claimant’s weekly check.  Not many lawyers were able to survive working on a “contingent hourly” basis.  By eliminating settlements and the percentage fee, the Legislature insured that few injured workers would be able to find a lawyer to represent them.

There were other changes to the system.  Workers received a slightly larger weekly benefit.  For insurance companies, the new laws were far more generous.  A series of procedures and rules were adopted that are so complex, a Byzantine would blush.  Traps in the system are numerous, and insurers can deny claims, including medical procedures, and force virtually every issue into a contested hearing or jury trial.  Disability Guidelines were adopted that provide very limited benefits, even in cases of total and permanent disability.

Some lawyers still handle worker’s comp cases, but they mostly fall into two categories – the solo practitioners who operate on a low overhead, and the firms who have adjusters handle everything other than hearings.  There are very few of either, and the number of claimants without counsel is staggering.

The absence of lawyers tilts the playing field so far toward the insurance companies, abuse of injured employees is rampant.  The state agency that oversees worker’s comp claims is underfunded and provides few checks or balances.  Insurance companies have staffs and attorneys (whose fees are unregulated) well versed in the laws and procedures, ready to chop off a claimant’s benefits, often without justification.  An entire industry of “reviewing doctors,” many of whom do not actually practice medicine on patients, has arisen to do the insurers’ bidding.  Talk to someone “in the system,” particularly one with a significant disability, and you will hear a story that will scare you.  Believe this: you never want to be a worker’s compensation claimant.

Ask doctors about worker’s comp.  Those excellent doctors still accepting worker’s comp patients deserve our respect.  They sure are not getting it from insurance companies.  Many of the best doctors want nothing to do with the paperwork, denials and second-guessing by “reviewing” (non-treating) doctors.  Too many good doctors refuse to see anyone with an on-the-job injury.

Fortunately, many employers have become so emboldened by the success of the “Tort Reform” movement, they have dropped worker’s comp coverage in favor of “Non-Subscriber” coverage.  This means they can be sued by an injured employee for damages, although many have injury medical plans that are as complex as the worker’s comp system.  Most lawyers (myself included) accept Non-Subscriber cases involving significant injuries caused by a negligent employer.  We can afford to take those cases for one reason:  attorney’s fees are not regulated.

People buy into “Tort Reform” because they have never been victimized by the changes to the law that have taken away your right to be protected in court.  Talk to people who have been injured on the job and ask how “Tort Reform” is working for them.