Wednesday, November 27, 2013

Thankful this week for our OJCC Team, they do a great job.

The 2013 Annual Report is on the web (www.fljcc.org). There is a multitude of data published each year by the OJCC. Recent blog posts have highlighted the petition filing volumes and attorney fee information. Another interesting fact is the timeliness of litigation. 

Timeliness has been a long haul. There was a time in Florida workers' compensation litigation when cases simply did not move through the system. Attorneys joked with each other about it, waited for orders, and many times were forced into settlement by frustration caused by ridiculous delays. There were documented instances in which entry of a final order required years after the trial. There were instances where the reward of patience for those years was the opportunity to try the case again. 

There is value in judges making decisions with reasonable promptness. There is also value in final orders reflecting the findings of the judge, and featuring explanation of the analysis that went into that order. With an understanding of the judge's logic in any particular case, the parties can proceed either seeking review of the Court or implementing the terms of the order. 

The definition of the parties rights and responsibilities that comes from an order should solve the party's dispute and provide the foundation for moving forward. The effect is broader though. The order in this particular case may help others predict the outcome of their case in the future. The publication of OJCC orders provides a transparency that benefits all who try to predict dispute outcomes and provide advice to their customers or clients. 

In 2005-06, cases proceeded to trial in 465 days average. That is one and one-third years. The OJCC definition of "trial" includes final hearings on petitions for benefits, evidentiary hearings on issues like attorneys fees, cost awards, advances, and more. Any matter which requires presentation of evidence, and results in a trial order, which is substantive. The Substantive order must include findings of fact and conclusions of law, in order for the hearing to be labelled substantive, and for it to be included in the "trial" statistics. In 2012-13, the statewide average days from pleading to trial was 162 days. The OJCC has made dramatic improvement in the time from pleading to trial. 

In 2005-06, it took an average of 76 days for the assigned judge to issue a final order following trial. The statutory requirement is that these orders will be issued within 30 days. It is important to remember that these statistics include evidentiary orders discussed above. There are those that argue some such orders are simpler than a final merits order on a PFB issue(s). They argue that it is therefore somehow misleading to include these orders in this calculation. Their point being these orders should be quicker, and that they therefore skew this "time to order" statistic downward. 

These critics ignore that the OJCC included all of these orders in the statistics for the last seven years. Including them was intentional, following much debate and discussion of the definition the OJCC would use for "trial." Including all of these orders in the "trial" definition has been consistent and provides a sound comparative basis. From 76 days to order in 2005-06, the OJCC has reduced the "time to order" to 15 days in 2012-13. This is half the time required by statute, and a vast improvement from 76 days.

in 2005-06, the average mediation occurred 212 days after the petition was filed. Many mediations occurred a year after petition filing. In 2005-06, the process had been recently innovated to "autoset" mediations after PFB filing. That caused PFB scheduling without any request from the parties. The legislature had also provided an outlet to facilitate timely mediation, requiring judges to send cases to private mediation if they could not be timely mediated by the state mediators. Timeliness improved. In 2012-13, the average days from PFB filing to the first mediation thereon was 84 days. Not only is this a vast improvement from the 212 days, it is well within the statutory 130 day parameter. 

For the last five fiscal years, the OJCC mediators overall have averaged less than the 130 day parameter. This is impressive and a tribute to their effort. 

Three timeliness measures imposed by the Florida Legislature. All three satisfied by the OJCC in 2012-13. The purpose of this system, the OJCC, is to receive, manage, mediate, and adjudicate disputes. The Legislature has defined the timeliness parameters for these processes, and the OJCC is living up to those requirements. Certainly, there are cases in which we do not meet the parameters, but that is a function of facts and circumstances of particular cases. The OJCC focuses on the statistics overall, the statewide averages. According to those, the Judges and Mediators are doing a great job. 

Tomorrow is Thanksgiving 2013. As I reflect on things for which I am thankful, I am reminded of the many tremendous Judges, Mediators, Clerks and Secretaries that work so hard for the OJCC. The timeliness of the OJCC, the transparency of the OJCC, the success of the OJCC are due to their focus, dedication and professionalism. Thank you Team OJCC! I do not say it often enough, but you are a tremendous group of people and Florida is fortunate to have your service. 

Monday, November 25, 2013

Good Fences Make Good Neighbors

I remember that quote from law school. I would rephrase it in settlement context to Good Negotiations and Documentations Make Good Resolutions

Recent cases around the country have illustrated the pitfalls that settlement or dismissal may present. In Love v. Ryan, an Ohio court denied an injured workers' plea to reopen her case on the basis of unilateral mistake. She sought to set aside a voluntary dismissal that was part of her settlement.   


The Claimant was injured in 2008, and sought care for various injuries. Some were deemed compensable, others were not. In 2011 a dismissal/settlement was entered, signed by the Claimant's attorney. As we sometimes see in Florida, the injured worker then appeared again pro se. The details of her separation from her former attorney are not clear. Her subsequent pro se claim was for "mercy," and she asserted ignorance of the import or effect of the dismissal. She essentially claimed that unilateral mistake should be sufficient to avoid the dismissal. 



The import of the decision is the court's conclusion that the Claimants claim that "she had not seen the judgment before it was entered and/or that her attorney acted beyond his authority in approving the settlement does not constitute a mistake, surprise, or any other ground for relief." The court suggested that if the attorney acted beyond the scope of authority, then the appropriate relief would be somewhere other than against the employer/carrier. Without spelling it out, the import of the Court's decision could be interpreted as "sue your lawyer."


In  a recent Illinois case, Boda v. Caraway, an injured worker sued her attorney claiming that she was urged to settle her workers' compensation case on a compromise basis. Ms. Boda claims that either she or her attorney or both did not realize that the settlement of the workers' compensation claims would "eliminate" Boda's entitlement to social security benefits. How settlement of her case would do so is not explained.


It is not clear why these situations are making news. However, they are reminders of the benefits of careful drafting of agreements between parties and effective communication. They are reminders of the obligations to keep clients apprised of the progress of their case. They are reminders of the need to explain what is meant by offers or demands.


Whether a later claim for "mercy" is successful or not, it still requires resources to defend. For most, the purpose of a settlement is to accomplish a cessation of hostilities, and for all parties to move on with their lives. If well drafted and carefully explained, the effect of a settlement may well be the end of the case. No attorney wants to be sued by a former client, and no defendant wants to defend a later lawsuit to set-aside what they believed was a final closure. 

I sometimes hear anecdotal stories of mediation or settlement frustration. The Claimant or Employer/Carrier appears with "unreasonable" expectations. Some party does not disclose this or that, which is critical to the discussion or settlement. Sometimes this may include other claims (wrongful discharge, discrimination, unemployment, etc.) that are not disclosed, even to the Claimant's attorney. Sometimes this is the Employer/Carrier allegedly not disclosing that resignation or something similar will be a term of the settlement. 

The common theme that may be seen in these situations is that some failure has occurred in communication. In settlement, in negotiation of claims, in legal practice clarity is critical. If an offer is intended to release "all claims," why not say so? Why not list some common examples as above with an "included but not limited to . . .?" If something is intended to be excluded, why not say that? Why not say that "this demand is for settlement of the work accident on mm/dd/yyyy and not for any other claims against the defendant, employer, carrier"? Why not say "this offer is for resolution of all claims that _____________ has against the employer/carrier"? Why not get these issues on the table and deal with them in the process? No such statement is "right" or wrong" necessarily. Is it right to insist on any such term or limitation? That is a far broader question. My point is tell the other side what you will insist upon and do so openly and early in the process. 

Clarity. Tell the other side what you want. Timeliness. The best time to get these issues on the table is early. Why work all day on what you think is a deal and then watch it implode because there was misunderstanding as to what was being negotiated? Documentation. Make that confirmation letter detailed. Make that mediation agreement complete.

Negotiating resolutions is not easy. Attorneys are involved for precisely this reason. If it was easy, anyone could do it. Resolutions require patience, time, and skill. Documentation takes time. Formality takes time. But both are protections for everyone involved in the resolution. 

The Office of Judges of Compensation Claims offers voluntary mediation services. When there is no pending petition, you can make an appointment to discuss the case through a voluntary mediation with your choice of 28 OJCC state mediators around the state. Visit our website www.fljcc.org or contact me david.langham@doah.state.fl.us for details on using the voluntary mediation process. 

Wednesday, November 20, 2013

Annual Report Installments - Child Support

Over the last eleven years, the Office of Judges of Compensation Claims has been responsible for recovering over one hundred eighteen million dollars in child support arrearages. Each year, the collected total has exceeded eight million dollars. In 2012-13, the total was $9,626,855.

It is relevant that when the OJCC was tasked with this process, there was no increase in OJCC funding or personnel. No additional staff was added to this agency to perform the process of checking child support documents associated with settlements of workers' compensation claims. 

In 2012-13, the OJCC undertook the responsibility for receiving requests for child support arrearages, according to the Department of Revenue (DOR). An agreement was made with the DOR, internal OJCC processes were designed for our district staff to receive your e-filed information requests. We began looking up the arrearage information in the DOR database and providing that information to you, to be integrated into your settlement documents. 

In 2013-14 (last September), the OJCC undertook the responsibility of also looking up the child support information according to the County and Circuit Clerks. This required changes in process for OJCC staff, and some adjustments for attorneys. It has been a positive shift in the way child support information is obtained. 

Admittedly, there have been some instances in which the process changes have been frustrating. I appreciate hearing from attorneys who feel the process caused complications in particular cases. It is this kind of feedback that allows us to adjust and refine. We will be working in December this year to make some fine-tuning adjustments to our reporting process. 

Instituting the process, looking at these arrearages, was the right thing to do. Adopting a process that makes it less work-intensive and expensive for attorneys to obtain this data also is the right thing to do. With this new process, all 67 counties are searched when arrearage information is requested. This alone is a vast improvement over the prior process which involved only certain counties. 

The volume of child support recovered in the last eleven years ($118,037,561) is incredible. As incredible, the OJCC collects an average arrearage total of about 60% of the overall OJCC budget. That's right, without additional resources or staff, this Office collects millions of dollars in child support annually, generally more than half of the total operating budget annually. 

A great process. A great illustration of the service this Office provides to Florida.

Monday, November 18, 2013

Consistency

I got an inquiry recently from a large law firm. They are trying to do things consistently. They have some forms that are apparently used by all of the attorneys in their firm. They recently received some requests from Judges about the content of the law firm's orders. They wrote to me to ask whether they should change their orders specifically for the requesting judges or make those changes for their general form orders, that is change what they send to judges throughout the state. On this point, they ask my advice. This took me a bit by surprise, and I had to ponder the issue for a few days. 

I had to ponder because the foundation of the question is difficult. My premise is that lawyers draft motions and stipulations, and judges draft orders. The question of how a lawyer or law firm should draft orders is antithetical to me. It is not the lawyer's role to draft orders in my opinion. 

This particular question came as to whether approves/disapproves” should be used instead of “granted/not granted/granted in part” on fee orders. There was also discussion of whether an order should say "attorney fees" or "attorney fee" as only one attorney fee is being adjudicated. 

Years ago, I sent a joint petition ("JP") for settlement to a district some miles from my practice in Jacksonville. I recall the volume of paper required to effectuate a settlement in those days. The JP was about 30 pages long, and we had to send in multiple copies. Eight copies sticks in my brain, but it may have been more or less. I remember that I spent more than $6.00 sending the package across the state.  

Within a few days, I received the package back. Not approved, no signed order. Instead I received the whole package back, at a cost to the state of more than $6.00 in postage. The district returned it to me because my proposed order was printed on white paper, and that particular judge required the order for this type of settlement to be on a particular color of paper. They explained this to me in a typewritten letter that accompanied the returned paperwork. I complied, prepared the new proposed order and spent another $6.00 plus mailing it all back to that district office. I perceived a waste of the client's money and the state's.

The point of the story, though, is that the only way I could get the order on my JP was to comply with the district office request. I am confident that the person that typed the letter explaining to me the paper color requirement could have, as rapidly, prepared an order (or copied my white paper order onto colored paper). I am also confident that the cost of printing or copying that order would not have equaled the $6.00 in postage of sending the package back. I did not agree with the district's process back then. Likewise, it seems it would be easy to prepare an order if a proposed order is not what the assigned judge expected or wished.  

Understanding that my first thought is that Judges and not lawyers should draft orders, my second thought is that if a Judge asks that an attorney draft an order, the result should be the order for which that Judge has asked. If there is particular phraseology that is requested by the Judge, I think the appropriate reaction is to draft that order with that language. It is not possible to force consistency in this regard, because a given judge may want "fees" and another may prefer "fee." Likewise, the next judge may prefer the opposite.

I appreciate that the lack of consistency regarding this topic may be a frustration for attorneys. I can see the advantage that consistency brings to the table, with an attorney being able to practice across the state using the same procedures, forms, etc. I also see the judicial independence argument. As I have noted on this platform and others, judicial independence is your absolute right to have the judge disagree with you. 

In the end, Judge's will do as they will. If they ask for an order to be prepared for them, that is within their purview and independence. That a different judge might prepare her/his own order, or request a different phraseology in an order she/he asks you to prepare, is part of the practice. It is hoped that this explanation may be some help in understanding why it is as it is. 








Wednesday, November 13, 2013

More Powerful Opiods Approved

Prescription drug interactions, abuse and misuse have received a great deal of press in recent years. Since the death rate from these exceeded the death rate from automobiles, people suddenly began to notice. States have focused in recent years on pill mills, prescription practices, databases and more. There is a clear recognition on a state level that medicine intended to be a benefit to patients is killing them and the people around them (as detailed in a recent post, family members sometimes illegally use the drugs found in their homes). These drugs find there way onto the streets also.

The AMA has published stern warnings about the affect of opiods, and the dangers they present. See the AMA Guides Newsletter, April/May 2011 and January/February 2013. There is concern in the medical community about whether opiods are appropriate for many types of pain complaints.

So, the good news is that the Federal Government approved a new form of hydrocodone last week. This form is marketed as Zohydro. Ignoring the facts that other opiods have been tied to deaths around the country, those responsible for American's safety, the Food and Drug Administration (FDA) has approved Zohydro an opiod that is five to ten time more powerful than the existing opiods, like hydrocodone, oxycotin, dilaudid, and fentanyl. You did not read that wrong, five to ten times stronger.

Like most bureaucracies, the FDA has processes and committees. Relevant here is the Drug Advisory Committee, which overwhelmingly recommended against approval of this new opiod that is five to ten times stronger than existing products. The good news is that all of the deaths related to opiods have led to requirements that drug manufacturers include elements in most opiods that deter addiction and resist people tampering with the drugs. These features are presumably to help protect human beings who take these chemical compounds for pain. Presumably these features are a good idea, and that is why they are required. The bad news is that these requirements for addiction and tampering precautions will NOT be required for the new opiod, Zohydro, which, by the way, is reportedly FIVE to TEN TIMES more powerful than exiting opiods. 

The FDA is counting on labeling that describes risks associated with Zohydro. They explain the warnings required on this medicine will be stronger, and will clearly describe the risks and concerns. If labels like this solve the concerns with misuse and addiction, why not put clear, stronger labels on all opiods? Why have anti-addictive and anti-tampering formulations for those drugs, when we could simply make their labels stronger and clearer? For the dangerous opiods, they require these formulation changes, but for the really strong (did I mention Zohydro is reportedly FIVE to TEN times more powerful?) hydrocodone, our government is convinced that stronger and clearer labeling will suffice. 

Certainly this must make sense to someone in Washington. I respectfully suggest that someone else needs to review this decision, and review the person that finds it logical. Americans are dying. My car can achieve 140 miles per hour (according to the speedometer). The government has taken some interesting precautions, including requirement for my safety such as seat belts. The FDA logic would apparently be to approve the sale of automobiles that are capable of 700 miles per hour (5 times the 140), and without any requirement for seatbelts. They would instead put a clear and strong warning on the steering wheel of each car. Is this logical?

Einstein is credited with this definition of insanity: "doing the same thing over and over again and expecting different results." Allowing marketing of super-opiods without the safeguards required for existing opiods might meet this definition. 

There is some good news from the FDA. In another action, they have recommended that all hydrocodone formulations be added to the Schedule II designation. This would put restrictions such prescriptions. For example, written scripts are required for Schedule II, they cannot be phoned in to the pharmacy. Also no refills beyond 90 days are allowed for Schedule II, and there are more stringent record-keeping requirements. 

Is the FDA being consistent in their treatment of these medications? Is there any concern within the FDA that Americans are dying from prescription painkillers? Apparently, there is some concern or there would be no move to reclassify all hydrocodone to Schedule II. If there is enough concern to warrant that action, why not enough concern for the new super opiod to require formulation additions for addiction prediction and tamper prevention? 








Monday, November 11, 2013

Veteran's Day 2013

Today is Veteran's Day. Schools, government offices, and some banks are closed. Most businesses will open as normal though. This is a holiday that is understated compared to some of the others. I have heard people question what is the difference between Veterans' day and Memorial Day. They do seem to have similarities at first blush, but there is a world of difference. 

Memorial Day is celebrated each May. It was first celebrated in the 1860s, marking the death and remembrance of those who died in the Civil War. It continued as an observance through the decades that followed, encompassing as it went the various conflicts that followed and the Americans that died therein. That is the main theme of Memorial Day, it is a recognition of those that died in the service of this country. Unfortunately, the number grows each year. American men and women remain on the ground in a multitude of locations around the globe, in harm's way. 

Veteran's day is a broader concept. It recognizes the sacrifices of the great multitude who likewise served this nation, but fortunately did not die in the process. In 1918, President Woodrow Wilson declared November 11 as commemoration of Armistice Day, the end of the First World War. Armistice Day was celebrated thereafter. Congress codified the observance in 1926. By that time, 26 States recognized November 11 as a holiday.

Following the second World War, and the Korean War, Congress recognized the service of American men and women by amending the name of the November 11 holiday, substituting "Veteran's" for "Armistice." The bill making that change was signed by President Dwight Eisenhower. November 11 has since been a recognition of all American veterans of all wars, and frankly a recognition of those veterans who served in the military, ready to engage in such conflicts, even in times of relative peace. 

Never satisfied, Congress altered Veteran's day once again in 1968, seeking to make various Federal holidays coincide with a Monday, so that three-day weekends would result. Veteran's Day was included in that effort. The States did not follow suit, however. Recognizing that there was historical significance to the November 11 date, and that the dichotomy in state and Federal observances was creating confusion, Congress and President Ford returned the Federal observance to November 11 in 1978.

We are approaching 100 years of recognizing the significance of November 11. According to the New York Times, the last veteran of the First World War died in 2012, two weeks short of her 111 birthday. World War Two veterans are dying rapidly in America. The National WWII Museum says the rate is about two veterans per minute, about 600 per day. They estimate that by 2036 none will remain. 

But they remain today, as do those of all the conflicts since: Korea, Vietnam, Persian Gulf War, Operation Enduring Freedom Afghanistan, and Iraq War. These large conflicts are easy to remember. There have been smaller conflicts in the midst, some of which have received recognition and others about which most of us never heard. Americans have guarded embassies, been attacked in foreign ports, been victims of car bombs, and more. They cannot all be listed here.

Veteran's day recognizes the living, whose service here and abroad has been to the benefit of us all. November 11 is the date on which we collectively recognize those who have served our nation as protectors. If you see a veteran today, or for that matter any day, take a moment to say thank you for all that was sacrificed so that the rest of us could safely be who and where we are, doing what we do, in the relative safety that their service purchased for us. 

Wednesday, November 6, 2013

Bullying is in the News, is it in the Workplace?

The legislative process has begun in Florida, with members of the House and Senate filing bills that they hope will draw consideration next spring. Last year, a pair of bills were sponsored, each titled the "Safe Work Environment Act." The Senate and House versions were not identical, but each would have created a protection for some portion of Florida employees; protection from bullying in the workplace. 

I became curious about these 2013 bills (HB149 and SB308) this week as I read about Jonathan Martin, a member of the Miami Dolphins football team. Mr. Martin has accused another Dolphins player, Richie Incognito of abuse and bullying. The Dolphins have suspended Incognito while an investigation is ongoing into his alleged behavior, and the alleged victim has left the Dolphins, perhaps to escape the alleged behavior. The Dolphins organization says Martin is absent due to illness.

There is much in the news now about whether Martin will sue for the alleged harassment. The prognosticators in the press are discussing whether either Incognito or the Miami Dolphins might be held responsible for the intentional infliction of emotional distress. They note in many press outlets that this might be a difficult case against the Dolphins, particularly if the team has a policy against actions such as those alleged against Incognito. 

The "Safe Work Environment Act" in Florida HB149 is the broader of the two bills. The Senate version only protects workers at state agencies, counties, municipalities, and other governments within the state. The House version would apply to all employers. Both bills are backed by "The Healthy Workplace Campaign." According to their website, 25 states have introduced the bill since 2003, with no state actually passing it. 

The Campaign asserts that workplace bullying includes verbal abuse, "threatening, humiliating or intimidating" behavior and interference with work activities. They claim that "It is a problem that has invaded the life of 37% adult Americans," leading to a host of medical complaints and problems including "hypertension, auto-immune disorders, depression, anxiety [and] PTSD." HB149 finds that the problem is more widespread, stating the figure is "between 37 percent and 59 percent."

HB149 concedes that unless such bullying is shown to be connected to "race, color, sex, national origin or age," the employee is "unlikely to be protected by law against such mistreatment." Finding that current laws are thus inadequate to protect against this bullying, the bill creates liability for the employer. This is called "vicarious" liability, which refers to liability for the actions of someone else. In context, this bill would make the Miami Dolphins liable to someone like Mr. Martin, for the actions of someone like Mr. Incognito, if those alleged actions were proven to have occurred. 

In creating the vicarious liability of the employer, the bill does not relieve the perpetrator (in these allegations Mr. Incognito), the perpetrator is also liable. When not dealing with professionals earning hundreds of thousands of dollars a year, however, the employer liability is the real effect of this proposed law. 

Bullying has likely been around for the entire history of human existence. When we hear about bullying, we often envision the over-sized kid on the playground that threatens or beats-up the smaller kid. As a kid, I thought this was just something that guys did. Increasingly, however, the news brings us stories that belie that perception. Stories of bullying by girls, of bullying in cyberspace, of a far greater variety that we perhaps expected or understood. 

When I was a kid, the football players were often the ones doing the bullying. Often, they were the "big kids" on the playground. The Martin allegations tell us that it may be (they are allegations at this stage) that the big kids not only bully the smaller ones, but actually bully each other. 

This story will receive much attention in coming weeks and months as the National Football League investigates. As the legislative session begins in the spring, it will be curious to see if any states take legislative action on bullying, in the workplace, schools, or elsewhere. As we wait to see, I wonder whether bullying occurs in other workplaces, like your workplace? 




Monday, November 4, 2013

Annual Report Installments - Attorney Fees

The 2013 Annual Report of the Office of Judges of Compensation Claims will be published soon. The fiscal year of the OJCC and other state agencies runs from July 1st through the following June 30. So fiscal 2013 ended last summer. The fall of the year is always busy with compiling last year's (2012-13) statistics while also planning for the next fiscal year (2014-15) in the budget process, and simultaneously managing the current (2013-14) operations. There is never a dull moment.

There are a multitude of statistics reported in the OJCC Annual Report each year. One that seems to be discussed often is the attorney fee amounts and allocation. Attorneys fees are divided into Claimant's fees and Defense fees. The two are reported to the OJCC differently. Claimant's fees are documented as each motion, stipulation or determination is made. A pleading is filed, and when the assigned JCC uploads the order related thereto the amount of attorneys fees is keyed into the database and captured. 

Defense counsel do not submit their fees to the OJCC in the payment process, though some argue that this should be required. So, each September all of the carriers and self-insured employers log into a web portal and report what they have paid to defense counsel for the past year. Neither is a perfect data collection system.


In  2012-13 the claimant's attorney fee total decreased again. It has decreased in each of the last nine fiscal years. in 2003-04, the aggregate claimant attorney fees was $215,322,360. In 2012-13, that had decreased to $151,889,627. The annual decreases have been of varied percentages. The decrease from 2011-12 to 2012-13 was the lowest percentage decrease of the nine years, at less than one percent from the $152,848,003 in claimant's fees in 2011-12. 

By comparison, defense fees reported in 2003-04 were $231,150,559. The employer/carrier fees over the last nine years have increased overall, although there have been years during that period in which defense fees have decreased.  The trend upward for these E/C fees has been less consistent than the downward progression of claimant's fees. The result after nine years, though, has been notable. Defense fees in 2012-13 were $266,885,472. An aggregate increase over the decade of about $35M.

Obviously, there is a difference in the fee allocation, when comparing total fees in workers' compensation. In 2003-04, the total fees paid in workers' compensation were $446,472,919, with the claimant's share 48% and the employer/carrier share 51.77%. In 2012-13, the aggregate total had decreased to $418,775,099, and the allocation had shifted to 36% claimant's and 64% employer/carrier. 

Comparing the 2012-13 fees for claimant's and employer/carriers to those reported in 2002-03, a ten year comparison that is coincident with a decade following the 2003 statutory amendments, illustrates the shift in fees. 


Fiscal Year
Claimant Attorney Fees
Percent Change
Defense Attorney Fees
Percent Change
02-03
$210,660,738

$220,044,685

12-13
$151,889,627
-27.90%
$266,885,472
21.29%


Over the decade since the 2003 amendments, claimant's fees have decreased overall by about 28% while employer/carrier fees have increased about 21%. 

The explanations of these shifts may come from a variety of directions. There are those who attribute the changes to the statute amendments in 2003, while others argue that at least some of that effect was nullified by the Kaufman decision in 2008. There are those who attribute the changes to decreasing frequency of injury in the marketplace. There are those who attribute the changes to the overall economic decline that we have experienced in the long-running recession and economic uncertainties, and the effects on employment and economic opportunity generally. 

I cannot determine the cause or causes, but merely note these arguments that others have raised in conversations. What I know is that the total attorney's fees reported in workers' compensation cases has decreased in the last ten years overall, and the allocation of those fees has shifted significantly more to the employer/carrier side.