By MERILEE DANNEMANN
Triple Spaced Again
House Bill 66 should have been a simple little bill that could have passed with little effort and no controversy.
Instead, somebody threw in a zinger. The somebody was, no doubt, the trial lawyers. Actually there were two zingers but I will only talk about the bigger one (the other, concerning legal discovery, is more technical).
HB66, sponsored by Rep. Pamelya Herndon, D-Albuquerque, is a workers’ compensation bill but it’s also a trial lawyers’ bill.
Under New Mexico workers’ compensation, if a covered work-related injury results in a lawsuit, the law sets a cap on attorney fees. The cap of $12,500 was established in the 1991 reform. It was raised 12 years ago to $22,500.
The attorneys want the cap raised again. An increase is reasonable, but, just as an aside, you can note that there has been no legislation for years to improve the system for injured workers or anyone else, and the only legislation being considered is what’s good for lawyers.
A task force representing the major interest groups, including the lawyers, met for most of a year and agreed to increase the cap to $30,000. The task force report proposed to set the new cap and let the legislature decide when to review the issue again.
But here’s the zinger. One sentence was added to the bill which hadn’t been in the agreement. That sentence provided an automatic increase every year indexed to the consumer price index.
Using the consumer price index is so problematic that the bill has been overriden by a committee substitute. The revised version (on the House floor calendar as of this writing) increases the cap to $30,000 plus two more $2,000 increases over the next few years. It then requires a review by the Workers’ Compensation Advisory Council in 2029.
That alternative is much more orderly than the original bill, so less worrisome because it can be administered cleanly. But we are still left with the question, what is it going to do for injured workers?
Increasing the cap on attorney fees benefits most injured workers more or less like increasing the cap on malpractice benefits most patients in general health care. That is, not much.
In workers’ compensation, an impressive majority of cases – roughly 95% — are not litigated at all, and very few are so complicated as to reach the attorney fee cap. A few cases are tragic and awful, and in some of those cases the worker’s attorney represents the worker for years without getting paid above the cap. Increasing the cap will benefit those few.
It could be said that most injured workers get their cases resolved fairly without needing litigation. The pro-lawyer argument is that many injured workers need lawyers but can’t get them because the lawyers wouldn’t get paid enough. It could also be said that lawyers want a financial incentive to make cases more complicated so they can make more money. We can’t tell which is true until there is a thorough examination, case by case.
The Workers’ Compensation Administration has asked the legislature for funding for studies several times, so that we can have a clearer idea of how the system treats injured workers.
HB66 as revised – forcing a future Advisory Council to make a definitive recommendation – may turn out to be a good thing for that reason. It may finally provide the impetus for a study of how New Mexico injured workers are faring under our system.
Meanwhile, it’s probable that the biggest problem for New Mexico injured workers is not enough access to doctors. What would help that? Revising the medical malpractice law. Contact Merilee Dannemann through www.triplespacedagain.com.