Workers' compensation.

In the last 25 years, no other area of the law has undergone more changes than the field of workers' compensation law. These changes have ranged from minor tweaks to "corrective" repair (often in response to unanticipated-appellate decisions) to substantial reassembling to complete overhauls. No idea has been too far fetched, no inhabitant of the workers' compensation jungle too sacred, and no change too dramatic for successive legislatures and governors.

Since my entrance into the field of workers' compensation in 1978 there have been four complete overhauls of the entire system, another half dozen substantial reassemblings, scores of individual "corrections," and countless tweaks nearly every year in between. The first major overhaul occurred in the late 70s and early 80s, when the concept of "wage loss" came into being. This "cure-all" was designed to correct the arbitrary impairment and disability system that existed for many years by replacing it with a plan that more realistically reflected an injured worker's true disability status after reaching the medical plateau of maximum medical improvement. At least that was the hope.

The 80s also saw deputy commissioners become judges of compensation claims, the chief commissioner become the chief judge, and appellate jurisdiction move from the Industrial Relations Commission to the First District Court of Appeal. Settlements could not include future medical care. Vocational rehabilitation shifted to the employer/carriers and vocational rehabilitation nurses, experts, and companies literally sprang up overnight (and in the strangest places). In the mid 80s, among other changes, a three-member panel was created to review and set medical reimbursements, more restrictions were placed on attorneys' fees, changes were made in what could be included in the average weekly wage, and wage loss entitlement began to narrow.

Finally in 1989, serious rumblings began to resonate out of Tallahassee and a number of changes were made. Among the major changes: a special drug-free workplace defense was born; exclusivity of liability was tightened up; overutilization review of medical care was strengthened; mediations became part of the practice; further restrictions were placed on attorneys' fees; vocational rehabilitation reverted back to the division; and an oversight board was created.

In 1990, the legislature had enough and a major overhaul hit the books. The 10-year wage loss entitlement period succumbed to rising insurance premiums and the entitlement period was henceforth to be determined by the extent of the impairment rating, starting at six months for the smallest impairments. Among the other major changes was the creation of a Bureau of Workers' Compensation Insurance Fraud, elimination of any liberal construction of the statutory provisions and presumptions in favor of the injured worker, attempted elimination of concurrent employment in the average weekly wage determination, a whole new and improved drug-free workplace statute, the beginnings of managed care emerged in a provision for "pilot-programs" for medical care, change in permanent total supplemental benefits, establishment of a three-member panel for setting up Florida's impairment guide, more detailed specificity requirements for claims, mediation conferences became mandatory, and times for getting claims heard were shortened. Additional minor surgery on the law continued over the next few years.

In a special 1993 session, the legislature overhauled the whole system again. Gone was all but the ghost of wage loss. In its place came impairment benefits based, again, on the impairment rating, but this time having no tie to any alleged "disability." Managed care sprang to full bloom, eventually becoming mandatory; definitions of "employee," "covered employment," and "independent contractor" underwent major changes. Concurrent employment inclusion in the average weekly wage (which the First District said had never really left) was reinstated, permanent total benefits became linked to Social Security disability standards, major contributing cause made its auspicious debut, fraud prevention (and punishment) took on a whole new dimension, independent medical exams and expert medical advisors became integral parts of the practice, RFAs (requests for assistance) and PFBs (petitions for benefits) and the EAO (employee assistance office) added to the procedural hurdles and the ever expanding alphabet soup of workers' compensation jargon. Limitations on admissibility of medical evidence were erected and employer/carrier overpayments of compensation were no longer "gratuitous." Settlements could include future medical benefits, a small claims procedure was established, attorneys' fees were sharply reduced, a new oversight board was created, recovery from the Special Disability Trust Fund was coming to an end, and retraining was reorganized.

Following the overhaul of late 1993, the legislature managed to avoid major tampering with the law over the next several years. Some construction industry and employee exemption tightening occurred in 1998 along with some important changes in the process of selecting judges. However, the last two years have more than made up for that period of relative calm. Workers' compensation was transferred to the Department of Insurance; the judges transferred to the Department of Administrative Hearings; RFAs transferred to oblivion; settlements became streamlined; hearing procedures rocketed; managed care became optional; mediations became tough to timely set; and another task force was created to recommend even more changes.

As this article is being written, that task force is finishing its work and will issue its findings and, presumably, recommendations to the legislature and the governor. By the time this article appears, the legislature will surely have enacted something pertaining to workers' compensation. Once again, those of us who inhabit this jungle will have to decide what it all means and how it all works. This is especially true for the attorneys who represent injured workers and the employer/carriers/servicing agents. Regardless of the rationale for the changes sure to occur, or the logic (or lack thereof) behind those changes, it is inevitably the task of the workers' compensation attorney to navigate the maze created by all the lobbyists, special interest groups, legislators, and the governor, when the system does not work as one party or the other wishes.

That is why, no matter what changes are made in the law, whether minor, major, or something in between, the need for competent, skilled, and experienced workers' compensation attorneys never changes. With its maze of statutes and rules, reliance on expertise in medical and employment issues, and constant change, workers' compensation is the poster child of specialties. No one but a specialist can reach the highest quality service levels in this area of practice.

When certification first came to the field of workers' compensation in 1988, 94 attorneys became recognized specialists in their field by becoming certified. Since then almost 200 more have achieved certification. The task of the Workers' Compensation Certification Committee is to make sure the requirements for certification remain relevant, meaningful and up-to-date so that the significance of being "board certified" indicates a high level of competency and professionalism regardless of the state of the law at any given time.

Practicing workers' compensation law is not getting any easier with each passing legislative session. Consumers of legal services and referring attorneys could be lost at sea when seeking competent representation in this area. But no matter how much things change, some things remain the same. Being board certified is definitely a reliable constant in the sea of change.

John P. Brooks, Orlando, is chair of the Workers' Compensation Certification Committee and was board certified in the first class in 1988.