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Thursday, June 29, 2006


SB 362 - A closer look

Anon writes:

Just skimmed through SB 362. Arghh!! I haven't really compared it to the old law but so far I see the bill:

1. Removes your right to a lawyer. That's right:

all private contracts between an attorney and an employee...are against public policy and void.

I suppose employers can still hire squadrons of lawyers to try to squash your claim.

I wonder if this workers comp bill is the quid pro quo for the minimum wage bill. That would explain RAM's sudden and uncharacteristic burst of zeal to get it done now.

2. Imposes HMO-style utilization review (i.e., DOL will be making medical decisions, not your doctor):

[DOL] shall adopt...a coordinated set of medical practice guidelines and associated regulations and procedures to guide utilization of medical treatments in workers’ compensation... prescription drug utilization, inpatient hospitalization and length of stay, diagnostic testing, physical therapy, chiropractic care and palliative care.

3. Certification requirement implements a two-level certification for for health care providers.

- If the provider doesn't have Cert Level 1, injured workers have to get pre-authorized.

- If you don't have Cert Level 2, you aren't permitted to rate the severity of the workers disability and you can't testify to IAB or OWC (Office of Workers Comp).

Truthfully, I don't completely understand the impact of these certifications but, since DOL doles them out according to hazy criteria, there seems to be a lot of opportunity for mischief and favoritism, and I suspect it is designed to grandfather in certain large existing practices in Delaware. It smells like a deal.

All in all this bill looks like a hit on Delaware's workers. When the claim is made that Delaware has high workers comp costs, that's because workers are well-protected in Delaware and are receiving what's due to them. Currently workers can file a workers comp case WITH A LAWYER who will follow the case and make sure the worker gets what he or she is owed. This assistance is necessary because injuries can play out over an entire lifetime, and employers will never cease to find new ways to cut you off. Therfore an attorney's assistance is essential to protect your rights, especially at a time when you may be broke, sick/hurt, or both.

That's all for now, just from a first reading.

I'll have to see if Robert Aurbach wants to respond. I know from his comments on the show that he feels that the bill ensures that the savings gleaned from cutting lawyers out of the loop will acrue to workers.

If there's one thing that's true in a Workers' Comp issue it's this: everyone EXCEPT the injured party wins.

I was injured in a work-related incident that occurred over a year ago. It wasn't my fault. It was the result of unsafe pratices that I had no control over; I was the unfortunate schmuck that ended up getting hurt.

I don't know what the answer is here. The problem, however, is that the system, no matter what, is always designed to fail for the injured party and as long as that is guaranteed, the employer will always win. I could cite example after example in my case to prove my point, but I would not be alone. Just ask anyone else who has been seriously injured on the job and NEVER recoups what they have lost.
Lawyers typically work on a 20% contingency. Worth every penny compared with the cost of potentially getting outmaneuvered by your employer and getting zip.

he feels that the bill ensures that the savings gleaned from cutting lawyers out of the loop will acrue to workers.

This is the same argument used for the bogus malpractice "tort reform." Proponents say if you cap jury awards (i.e., give up some of your legal rights), costs for the system overall will go down and you will save money.

Now we hear the same thing for workers comp: If you give up your right to legal representation, your costs will go down.

My question is this: If we sign away our legal rights and we DON'T receive the promised cost benefits - can we have our rights back?

Look - the corps are trying to stop your ability to sue for medical malpractice, now they don't want you to even have a lawyer help you with your workers comp claim. Do you see the pattern here? I am NOT a lawyer, nor am I involved in any lawsuits - but I am just pissed at the way our right to representation is being stripped at every turn.
(Consider this as a continuation response from the first post)

I had the opportunity to hire a lawyer and chose not to, because I kept really good track of what I was doing and really meticulous notes, correspondence, documentation, etc. I also went out to every website associated with the Office of Workers' Compensation, every citation of law, etc. I did all the work, made all the phone calls, pushed all the forms. Bottom line? You don't need a lawyer because the only thing that the lawyer is going to do is eventually hold out their hand for a big chunk of the money that you might get.

Now I still don't think that the system is easy to understand or to navigate through. It is designed so that you do give up more times than not. It is bureaucracy at its worst - or at its best if you view it from the other side. But people can find all that they need to know from bulletin boards online, places where people who have gone through the mess can help.

And one final point. Most of the time the lawyers really don't do much beyond what the individual can do on their own and many times, the lawyers actually slow the process down. What would you do if you had a lawyer calling you during your work day, telling you what you had to do because they - the lawyer - had been hired to make sure that YOU did YOUR work? Most people who got a call like that would end up moving a lot slower.
he feels that the bill ensures that the savings gleaned from cutting lawyers out of the loop will acrue to workers.

Without a lawyer, injured workers are bringing a knife to a gunfight.

True, those who receive benefits without a lawyer will not have to pay the lawyer his 20% cut.

But that savings is of no use to you if your claim is denied because your employer outlawyered you.

Also to be investigated: In the new system, are benefits adjusted down to account for the removal of the lawyers cut?
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