50 Years of Workers’ Compensation Practice
An Interview With Steven A. Rissman
Q: As one of the few attorneys with a 50-plus-year practice in workers’ compensation, what has the practice been like over 50 years and how has it changed?
I started practicing law in 1972, and I’ve never done anything except for workers’ compensation. The reason I “chose” workers’ comp is the Vietnam War was going on back then. And anybody who was out of law school was going to go immediately to Vietnam. So I took a job with the State of Florida in the workers’ compensation appellate court back then, which was called the Industrial Relations Commission.
I was there for a little less than two years. I was on active duty for six months during that time. And then I joined the firm where I still am. And so I’ve practiced law 52 years, and I’ve been with the same firm 50 years now. And the name of the firm is Rissman, and I’m not planning on going anywhere. I still work full time. I’m in the office most days, and I enjoy it. I don’t handle cases anymore, but I do a lot with the Workers’ Compensation Educational Conference, and I do a lot of marketing and administration for the firm.
The practice is completely different from then to now. We had no technology in the early and mid-70s. There was no internet. There were no cell phones. There was no way of doing research other than keeping your own index on cases. I didn’t have use of a computer for certainly the first 20, maybe the first 25 years. Didn’t have use of cell phones either. Now, can you imagine that? The other day I came in from my car, got up to my office, realized I didn’t have my cell phone with me, went back down and got my cell phone, because you can’t be without your cell phone. So the technology is a major change.
I can’t tell you what the next year is going to be like. I mean, really, the Al changes are going to be monumental and way bigger than cell phones and probably computers as well. It’s hard to know. And there have been many, many changes in the law. For a while, workers’ compensation was the legislative football. We had changes in 1979 that were going to be changes forever. We had changes in the 80s. We had changes in the 90s. We’ve had changes in the early 2000s. Each one of those changes was to completely revolutionize workers’ compensation.
The courts, before the last 10 years, were liberal and the Legislature was very conservative. So that was the battle. The Legislature would pass a very conservative law, and then the courts would overrule a big part of it. Today the courts are conservative, and the Legislature is conservative. So you see a big change in what’s happened during the last eight or 10 years. When I started out, the law on permanency was called permanent impairment. You got a rating; you were paid for the rating. When you settled the case, you did something about the rating. You might say double the impairment rating and $500 for future medical and an attorney’s fee on top of that, and the whole case was over.
Then the next big change was what was called wage loss. That was sweeping the country back then. And that was going to be the change that lasted forever. Wage loss was calculated based upon a percentage of the difference from what you made before the accident and what you made or could make after the accident. And it was supposed to cut back on litigation. It was supposed to cut back on attorney’s fees. I mean, the idea of wage loss was that you wouldn’t need lawyers in the system. And within five years, the court had struck down the most important parts of wage loss, and workers’ compensation litigation was more claimant-oriented than personal injury. All the personal injury firms in the state had a workers’ compensation department for 10 years while wage loss was going on because wage loss was so profitable from the claimants’ side. And attorney’s fees were very substantial back then. There were million-dollar attorney’s fees that got the attention of the Legislature, and the Legislature changed the law. And when they changed the law in the late 1990s and early 2000s, the changes were as big as they could ever be, all designed to keep claimants’ lawyers out of the system, defense lawyers out of the system. Indemnity benefits were cut drastically. And permanency benefits, impairment benefits were cut drastically. So, there was permanent total, which was harder to prove, or nothing. For the first 30 years that I practiced, percentage-wise, indemnity was about half the benefits. Medical was about half the benefits. Now it’s probably 70% for medical benefits and 30% for indemnity benefits. They have been cut drastically by the Legislature and upheld by the Supreme Court.
It has changed the entire nature of the business. And now with attorney’s fees, it is more difficult to prove. Judges are more interested in how the fees are reached. There are different kinds of fees. There are fees paid by the claimant. There are Miles fees. There are statutory fees. It’s a complicated process, but all of it is designed to lessen attorney’s fees to claimant’s attorneys and keep the litigation rate down.
Q: What was the early experience of litigating workers’ comp claims in Florida back in the 70s and 80s?
Everything was litigated. I mean, we had no mediation. You were taking depositions all the time. The rules of evidence were not enforced. The rules of civil procedure were not enforced. You might have a judge who would enforce them, but there was no real language that meant that a judge had to follow the rules of civil procedure or the Florida rules of evidence. So there were a lot of trials by ambush, a lot of cases where the trial was very dependent on who the judge was as far as procedures and evidence and whether you brought witnesses live or not.
We settled cases. We settled a lot of cases. But without the formality of a mediation, it wasn’t designed to settle. It settled because you and the claimant’s lawyer wanted it settled or the claimant wanted it settled or the insurance company wanted it settled. But there was no formalized process to settle it. So, a lot of cases went to trial. The average workers’ compensation lawyer would try a dozen cases in a month. Lawyers who were trial-oriented were in trial almost every day. They tried two, three cases a day. A judge would have two or three in the morning and two or three in the afternoon. And sometimes they were all on your cases. The witnesses just lined up out in the hall.
So, it was completely different. Mediation is a good thing. We, as a workers’ compensation system, were early in mediation, long before the civil courts were, long before the juvenile courts were, long before the criminal courts were. And a lot of that has been Judge Langham. I always say when I introduce him, he is the best chief judge in the United States of America, of any court, any judge. We have been so far ahead of the civil courts on rules, on what can go live, what can be done online. Just light years ahead of the civil courts on this stuff. And a lot of that is because of him. Very influential, without telling judges how they have to rule on things.
Q: What do you think is special about the practice of workers’ compensation?
You know, the thing I think I like best about the workers’ comp practice is that it’s collegial. You know, there’s rarely a lawyer on the other side that if the deposition takes place live at 5 o’clock in the afternoon, that we don’t stand out in the parking lot and talk for 30 minutes afterwards or go get a drink. The deposition was the deposition. You fight hard for your clients. You want your clients to win. But after it’s over, the vast majority of the lawyers are friendly enough that they can talk about their kids, baseball, FSU football, or just nothing at all. Or a dozen other cases.
Q: What is one of your more memorable experiences in the early practice of law that really stuck with you?
I had a hernia case that was contested. I was a young lawyer then. We were hearing it in front of the judge, and after a cross-examination they went back on redirect. The claimant was whispering to his lawyer, and his lawyer said, “Judge, he has a hernia and he would like to show it to you.” The judge very quickly said no. The claimant’s lawyer turned around to tell the claimant who was already standing up and exposed. I don’t know that you can put that in an article, but it was a highlight for me.
Q: As the chair of the Workers’ Compensation Hall of Fame, what is it and how did it get started?
I think the Workers’ Compensation Hall of Fame and WCI are entwined. In 2012 WCI was called Florida Workers’ Compensation Institute, before it was nationalized. WCI was started by four people, Jim McConnaughhay, Steve Rissman, Gerry Rosenthal, and David Parrish.
There were 14 members of the original Hall of Fame inaugural class, in 2012; the giants ofworkers’ compensation, the big defense firms, some really important judges of compensation claims, and the claimants’ lawyers that were the best lawyers and litigators. We also started what we call the Legends Wing for those people whose shoulders we stood on from the 50s and 60s that professionalized and really started the workers’ compensation practice on its right path. There are now 46 members in the regular Hall of Fame, many of whom have now retired, but we add more every year.
Q: How are new members added to the Hall of Fame?
It’s a complete democracy. Anybody can be nominated. It can be a claimant’s lawyer, a defense lawyer, a judge, a person in industry, a person in government. They have to have a workers’ compensation background, and they have to have been in workers’ compensation for most of their lifetime. When you nominate someone, you have to tell something about them and then send a CV to all the voting members. I call a vote, and everybody votes in secret. It’s a two-thirds supermajority. Over the years, we’ve taken in classes as small as one and as big as five. And now, like I said, we have 46 members. The Legends Wing filled up fairly quickly because the legends were either all retired or deceased. We identified them in one or two years.
The Hall of Fame is beneficial because it’s a place where we congregate online and at the induction meeting and can talk about ideas without representing clients. And some of the clients are even there. I mean, Walmart and Disney have representatives there. Publix has a Hall of Fame member there. A lot of TPA people, a lot of insurance people, a lot of claimants’ lawyers, defense lawyers, and judges. Somebody will say, well, what do you think about this? And an idea forms. And pretty soon that idea is being talked about to clients or legislators or whatever. And it’s the way that ideas are germinated. Same thing with the WCI convention.
Q: In a world where we don’t have as much face-to-face interaction and we don’t have the opportunity to do as many things in person with clients, how do you recommend young attorneys become the professionals that the comp industry needs?
Before COVI D, we were trying every case in person, the mediations were all done in person, we were trying every case in person. We had lines of claimants’ lawyers in our office here in Orlando every day, and they’d bring their young associates with them. The young associates would learn from the older lawyers, and it was a rite of passage. It worked, and now it’s more difficult.
Training is more difficult, and judges tell me that the newer lawyers don’t seem to get it as well, and I think that’s because there aren’t as many in-person events. I guess the way to get better at it is to follow lawyers around. It’s the responsibility of people that have practiced between 10 and 20 years to teach the new lawyers how to practice law, and that’s time-consuming. It’s not billable. If you’re a claimant’s lawyer, you just don’t have time for it, but it’s self-defeating not to do that. The one thing the Workers’ Compensation Educational Conference has done better than anything else is to educate everybody who wants to be educated about workers’ compensation. Go to as many events as you can.
Q: What is the legacy you hope the Hall of Fame will have?
I don’t think the Hall of Fame itself will impact the future of workers’ compensation, but the lawyers who are in it and the industry people that are in it and the judges that are in it care so much about the system that they want to make the system better. I think almost every one of them contributes to the education of those behind them and wants to make sure the information they know gets to people who want to know it. If a defense lawyer, even with another firm, sends me an email that says, Steve, I understand you have some knowledge of this because Tom Conroy told me the two of you were on a case together 25 years ago. This and this happened, and I can’t get ahold of Tom because he’s in Las Vegas. Will you answer that question for me? I’ll get on the phone with him. As long as it’s not a case that I’m involved with, I’m happy to help educate. I think I’ve spent my life educating as many people as are willing to be educated, and I think that’s the view of most Hall of Fame members. We feel lucky that we’ve had successful careers that we’ve worked hard to achieve, and we want to pass as much of that on as we can, whether it’s stuff that ends up being legislative or whether it’s educating lawyers or whether it’s educating industry people to what they can do and what they can’t do.
In my last 10 years, I’ve seen a whole new breed of risk managers. Smaller companies may not even have risk managers, but with medium and large companies, these risk managers are a new generation of people that are so concerned about their employees that they don’t want to litigate; they want to make sure they get it right. So, they’re on the phone to me saying, “If this is a 50-50 case, we’re going to pay it; we want to do the right thing by our employees.” I see so many of those risk managers now that just weren’t there a generation ago, and that’s exciting to me; they really are interested in their employees and doing the right thing. That’s a great thing.
Q: Having practiced across the various versions of the statute in the 1970s and 80s, the 1990 statute, the 1994 statute, and the one we’ve had since 2003, what was the most fun version of the statute to practice under?
It’s not the one we’re under now where an awful lot of the arguments are about whether the claimant is entitled to temporary partial. I can tell you that you can litigate a lot of temporary partial cases and not go home at night and think, “Boy, this is the most exciting day I’ve ever had.” I liked litigating permanent total and impairment cases where the dollars were large, and I liked litigating attorney’s fee cases where the dollar amount was large. Probably the most interesting time to do that would be either under wage loss or back when I started when it was impairment dollars and we went to trial a lot.
I’ve always liked litigating compensability cases, arising out of cases. I think they’re fascinating. I took special effort learning the law and the exceptions on those areas, and it became sort of my thing. It was hard to predict, and one little fact out of 100 would push it from 49% to 51% and make a non-compensable case compensable. I like big-dollar cases and compensability cases, not temporary partial cases, even though that’s now 80% of the litigation.
Q: If you could make one change to either litigation or the comp system right now, what would that change be?
You know, I don’t think it would be a substantive change. I would like to see more events happen in person. It leads to a better quality of work, and it leads to better teaching of young lawyers. I think it’s impossible now, with the state of where we are with mediations, for them to be in person. I really regret that. When you’re all sitting in the same room and you’re looking at the opposing party, you can say to him, “Look, I had 10 of these cases last week, and I’ve had a lot of them in front of the judge you’re going to go in front of. Here’s what happened, and it was an effective way to get a case resolved.” The clients wanted it resolved. I wanted it resolved. The claimant wanted the right amount of money before it was resolved. And in-person mediations helped that. I think that ship has sailed. Just like having all of my lawyers in the office every day, I think that ship has sailed. So, having events like trials in person, I think will help a lot.
I can tell you that on a case that’s close, if I’m live with that doctor, I think I can get you a better result than you can get if I’m on the phone. Many things were better when we were all in person. I think we were better as a practice when we did more things together; we were a collegial practice. It’s easy to be collegial when you have to see somebody a lot.
Q: What are your thoughts or hopes for the next 50 years of the Workers’ Compensation Section?
I don’t think that’s a question that anybody can answer. 50 years ago, I couldn’t have predicted cell phones and computers and mediation and Al. I think in the short run, in the five- to 10 -year category, I think we’re going to see substantial changes in the practice that are generated by Al. I think it’s going to be a dramatic change, and it’s going to come in the next five years, probably not even five to 10 years.
I hope that the Legislature and the courts can get together in a way so the practice is more interesting. I think the practice is less interesting because the issues that the Legislature and the courts seem to focus on are not the big issues. I would like to see more thought given to things that make changes in structure. I think claimants ought to be getting more indemnity benefits, by and large. And I’d like to see a system where they were paid more impairment benefits so that impairment or permanency benefits would be more substantial. I don’t think every case has to be permanent total or nothing because impairment benefits are so small.