Friday, January 20, 2012

Represented Resistance: Unmasking the Brutality of the New Regime of Workers’ Compensation, and How Hiring a Lawyer Can Help Workers Fight Back

Every workers’ compensation applicant faces a choice of finding an attorney to assist them in their struggle, or attempting to take on the system alone. Many ask themselves, Does it really matter? Will it help my case in any significant degree to have a lawyer on my side? Often, injured workers wind up deciding based on anecdotes and conjectures. 

New evidence compiled by UC Berkeley researcher Frank Neuhauser demonstrates that on the whole, represented workers recover at substantially higher levels than those without attorneys. Moreover, under the reworking of the system undertaken in 2005, the gulf between those with lawyers and those without has increased. Attorneys provide returns in workers’ comp, and this is truer now than before.

Work Comp Central reports on this breathtaking new study, which was presented to California’s employer-labor workers’ compensation advisory and research panel. (The story can be found here—though access to the website is for subscribers only.)

Neuhauser’s statistics are striking: unrepresented workers’ average impairment ratings stood at 22.2% before the 2005 schedule and 13.3% afterward. Workers with attorneys, however, received much higher ratings:  37% before 2005, and 26.5% under the current schedule. At present the gulf in permanent disability money is over $5,000—and that is only an average. 

Moreover, the compensation difference between those with lawyers and those without has grown under the new regime. While on the whole represented workers recover less than they did before (~37.2%), the unrepresented overall recover less than half what they did before (a 51.7% decrease). Neuhauser hypothesizes that part of this is attributable to the Almaraz-Guzman and Ogilvie cases. To simplify these complex matters greatly—the former can allow a more holistic disability rating than the rating found under the strict application American Medical Association guidelines, while the latter case can enable a higher rating when an existing assessment does not fully account for a worker’s diminished future earning capacity. Good attorneys can help highlight these special legal concerns to medical evaluators when necessary, while most injured workers are unfamiliar with these rules.

It is worth noting that the above data, while astounding, does not even address the many other ways in which representation may prove beneficial in workers’ comp—for instance, in ensuring that adjusters authorize requested medical treatment in a timely and effective manner.

While securing representation is more important than ever for individual applicants, Neuhauser’s data still shows that the post-2005 workers’ comp system is stingier and more ruthless than its predecessor. Navigating the present system is worse—substantially worse—for the unrepresented, but under the new regime, the workers’ comp system as a whole has lowered permanent disability payments by 58%—an incredible amount, estimated at $2,640,000,000.

For that, there is no immediate remedy. Labor unions, applicants’ attorneys, and the working and injured people of the state of California must join together and make our message clear. We must let the legislature and Governor Brown know that the child of just pay for injured workers can no longer be surrendered to the talons of profiteers and anti-social special interests.

That greater struggle will continue. For the time being, injured workers must fight their smaller skirmishes to secure their rightful benefits, marching into battle in the shackles of the present regime, whether alone or armed with the power of a Counselor at Law.