Guest Malcolm Crosland is a South Carolina attorney with more than 30 years’ experience protecting workers and their rights. In today’s gig economy, it’s up to Workers’ Comp attorneys to guard against employers, lobbyists, and insurance carriers as they angle to classify workers in ways that could exclude them from workplace protections.
Crosland shares how important Workers’ Comp attorneys are both in fighting against efforts to weaken protections and in helping injured workers navigate a system that is increasingly adversarial and complex.
Public understanding of Workers’ Comp is, for many, out-of-sight-out-of-mind. Until they need it. Workers’ Comp attorneys and the Workers Injury Law and Advocacy Group stand at the ramparts ensuring that working people across the country are cared for and supported when a workplace injury occurs.
Special thanks to our sponsor PInow.com, Posh Virtual Receptionists, and MerusCase.
Male: Before we begin today’s episode, we would like to thank our sponsors Posh Virtual Receptionists, and MerusCase.
Intro: Workers’ Comp Matters, the podcast dedicated to the laws, the landmark cases and the people that make up the diverse world of workers’ compensation. Here are your hosts, Jud and Alan Pierce.
Judson Pierce: Hello, everyone. Thank you so very much for tuning in to another edition of Workers’ Comp Matters. My name is Judson Pierce broadcasting both live and by recording from lovely Salem, Massachusetts. Our law firm is Pierce, Pierce & Napolitano. We service workers’ compensation claims and I am delighted today to be doing this on a livestream with my father. He need no introduction but I’ll introduce him for you anyway. Attorney Alan Pierce. Alan, you are in another state, am I right?
Alan Pierce: I am in Florida right now. Yes, I am. I’m not trying to rub it in to be up north but here I am in Florida but happy to be with you.
Judson Pierce: You lucky man.
Alan Pierce: Yeah, yeah, thank you, Jud. We are here today to really, as Jud said, do our first livestream video edition of Workers’ Comp Matters and I’m very pleased there’s a guest I’ve wanted to have on our show for a long time. It’s a friend and colleague, Malcolm Crosland. Malcolm is a very well-known attorney, not only in South Carolina where his firm, the Steinberg Law Firm is located in Charleston, South Carolina but he is nationally known as an authority in workers’ compensation matters. Also, Malcolm is a graduate of the University of South Carolina and its law school. He’s been a lawyer for well over 30 years, practicing with the Steinberg firm as I mentioned. He is AV rated by Martindale-Hubbell earning its highest recommendation for practice of law. He’s been named as a best lawyer for the Best Lawyers published by U.S. News & World Report every year since 2009. And he also is very involved, as are Jud and myself, with an organization known as WILG. That’s a Workers’ Injury Law & Advocacy Group where he recently served as president. So having said that, Malcolm, welcome to our maiden voyage video as well as audio here on Workers’ Comp Matters.
Malcolm Crosland: Thank you so much, Alan and Jud and congratulations on the success of what you all are doing and pleasure to be here. Thank you for inviting me.
Alan Pierce: Malcolm, you come from a family of lawyers, as do I. Can you tell us a little bit about that history and how it shaped the kind of lawyer you’ve become?
Malcolm Crosland: Yeah, I’m happy to. Actually, I’m third generation. My son who is about to graduate in May from Wake Forest Law School will be the fourth generation, so sometime in the fairly near future, I think we will have been practicing for well over 100 years of continuous practice. So, my grandfather actually started, was the first lawyer as I can tell for — maybe there was somebody further back but as far as we know in this country at any rate, he was the first lawyer to practice in South Carolina and in the United States. He was from a town called Bennettsville which is in Marlboro County up near the North Carolina border. Bennettsville, for those of you who travel up I-95 to and from Florida for instance, to up north but we’re all familiar where the Pedro says billboards where Pedro lives near the border is probably about 35, 40 miles from where he grew up and in, I guess after World War I, went to law school.
Before that, he attended Clemson University which was then a military school and interestingly enough was kicked out of Clemson his sophomore year for starting a food fight that involved the entire core at the canteen. And interestingly enough, I don’t want to digress too much but the code word for starting the massive food fight at that time was Bolshevik and he was the guy who yelled out the code word to start the food fight. He finished up after he was kicked out of Clemson. He finished up at the University of South Carolina and then attended law school there in Georgetown, where he worked as a lawyer in the Department of Agriculture just before the Depression and in 1928, came to Charleston and started to practice law and eventually became a partner with the Mayor of Charleston and was corporation counsel, what we would now call the City Attorney until he passed away in 1958. He had many other duties and many other jobs. My father also went to the University of South Carolina where he graduated during the Cold War, graduated and then went to Germany and as part of his military service, worked in Air Force Intelligence and then came back to Charleston and then I attended law school starting in 1983, I guess it was and graduated in 1986 and here I am. So we’ve been at it for a while.
Alan Pierce: So, Malcolm, did you always start out as a worker’s comp lawyer and or either your grandfather or dad involved in comp or either first generation in the field?
Malcolm Crosland: When I started work here at the Steinberg Law Firm, we were very much of the old-school plaintiff’s law firm. We did a little bit of everything and it was the greatest — I’m incredibly lucky that I came into the practice of law at that time when lawyers still did everything. Everybody is sort of in their niche but in my first 10 years of the practice of law, I did everything from bankruptcies to criminal defense to domestic work to workers’ comp and personal injury. So, it was a really very broad-based early education and saw the law for many, many different perspectives, and a little bit of probate work as well. So we did kind of everything. My father primarily did personal injury work, was a trial lawyer, any workers’ comp. I think he probably referred to the founder of my law firm, Mr. Steinberg Irving, Steinberg and I know my father did not — well, my grandfather first started practicing law, there was no workers’ comp. The Workers’ Comp Act was not passed in South Carolina until 1936 when the Roosevelt administration was firmly entrenched and sort of the policies of that administration finally filtered through to South Carolina and we passed a Worker’s Comp Act. So I doubt he practiced any workers’ comp.
Alan Pierce: What employees are covered under the South Carolina Workers’ Comp Act? Just generally speaking.
Malcolm Crosland: You know, any employee who is working for employed by and employer who has four or more employees regularly employed comes under the Act and the employer has the requirement, the duty to purchase workers’ compensation insurance. That doesn’t mean that you can’t voluntarily purchase a policy if you have less than four employees but if you have four or more regular employees, then you must have workers’ comp to cover those employees.
Alan Pierce: And course, one of the main reasons, I would assume that employers that aren’t required to have comp but can elect to have comp is they want to get the benefit of being immune from a lawsuit in case somebody gets hurt.
Malcolm Crosland: Exactly right but it is astonishing and I’m sure you’ve had this experience as well, Alan and Jud, that when you explain that to many employers, especially small employers, they don’t have a clue. Many of them just sort of simply not educated on that particular benefit that, of course, was part of the trade-off of every Workers’ Compensation Act in this country that in exchange for the workers’ comp system being a no-fault system, that is the employee, the injured worker does not have to prove anybody was at fault in causing or contributing to the accident merely that it occurred while in the course and scope of one’s employment in exchange for that no-fault system. The employer is immune from being sued in tort. So if the employer provides a faulty truck for the employee to drive, the employer knows that the brakes may give out at any time, the brakes give out and an injury is caused to the employee, the employee cannot sue the employer for its negligence but can collect workers’ compensation benefits.
Alan Pierce: Which gets us to the question and we’ve addressed this on another episode of Workers’ Comp Matters, the workers’ comp law is supposed to be compared to other areas of loss. Relatively simple and summary is a phrase we hear, an administrative proceeding but many times, injured workers really need the help of an experienced workers’ comp attorney. Tell us why.
Malcolm Crosland: Well, and you’re exactly right. I alluded earlier to the passage of the South Carolina Workers’ Compensation Act in 1936. In 1936, the entire South Carolina Workers’ Compensation Act could be comprised of 10 pages and I’m here to tell you that this point.
Alan Pierce: Okay.
Malcolm Crosland: What I’m holding in front of you now is the entire South Carolina Workers’ Compensation Act. It is now the better part of an inch thick that includes the regulations that go along with the Act and if anybody thinks, assuming they have a case of any complexity whatsoever and in fact, even the simplest case. If any layperson thinks that they can successfully navigate those laws to their benefit, then I’m here to tell you, I think they’re sadly mistaken. It has just, and I presume that what I just told you is probably true in just about every state that has passed a workers’ compensation act. The defenses that are available to insurance carriers and their lawyers are many. The hoops that one has to jump through are many and the technicalities are many. And at any stage of the process, if a layperson misses one of those hoops to jump through, then that can be fatal to the claim and so I always tell folks the call and ask just that question, Alan. Do I need a lawyer?
It sounds self-promotional if you will to say yes but the truth is the answer is yes, and it’s always best to at least talk to a lawyer. You don’t have to necessarily hire one. And we, like I assume Alan and Jud your firm, will talk to you and meet with you at no cost just to let you know what your rights are. If you choose to hire us, so be it. If you don’t, so be it, but I think everybody at least ought to know what the law is and how it applies to their claim.
Alan Pierce: Yeah, the public perception of workers’ comp, right, is that “Oh, I got hurt at work. The checks are going to be starting within a week or two.” And that doesn’t always happen and the theory of no-fault being so worker-friendly is really not that, correct?
Malcolm Crosland: No, it is not correct and we see this over and over again, especially with employees that have maybe been working for a particular employer for a number of years. The injured worker finds it indistinguishable to tell the difference between the employer and the employer’s insurance carrier. And the injured worker believes wrongly that the decisions made with regard to his or her workers’ compensation claim are somehow being driven by the employer and 9 times out of 10, that’s absolutely wrong. It’s the insurance carrier who’s making the decisions about whether to stop a check, start a check, whether to contest a claim, accept a claim, whether to approve medical benefits, disapprove medical benefits and so it is that insurance carrier who is really the driver.
And that insurance carrier, to the surprise of many claimants, that insurance carrier owes them zero, no fiduciary duty whatsoever to negotiate with them in good faith, to do anything for their benefit. They’re insured, the employer, is to whom they owe that fiduciary duty of fair dealing and the proper handling of a claim. And so many employees, when they’re injured just think “Oh, gosh. My employer is going to take care of me, aren’t they? They wouldn’t do anything that wasn’t in my best interest because they’re my friend.” And that maybe is true and they may be the best employer ever but whether they have any role whatsoever in how the claim proceeds is generally doubtful.
Alan Pierce: Yeah. It depends on a lot of factors. How big the employer is, how active they are or want to be. Now, injured workers as a group and we have been representing them probably our firm, as yours, have represented thousands of injured workers. Individually, the injured workers really don’t have much of a voice, organized labor. First of all, most of my clients not covered by Collective Bargaining Agreements. They are members of labor unions. The influence of political influence because workers’ comp is a politically-driven system in terms of change. Insurance companies have the resources to organize and to lobby and to effect change and so do employers. Injured workers really don’t and I want to bring this conversation just a little bit to the organization of which you were president, not too long ago, the Workers’ Injury Law & Advocacy Group. Tell us a little bit how that organization came into existence, why and what role will it play in the overall scheme of things?
Malcolm Crosland: WILG is an extraordinary organization. It was started, Alan, probably about 30 years ago by a group of lawyers really from around the country who recognize exactly what you just said, that on a national level, there was no entity that was solely, whose mission was solely to protect the rights of injured workers in the workers’ comp setting at least initially since then, WILG has branched out into other areas of the law. But that was the vision, was that on a national basis, there was no such organization that really focused exclusively on workers’ compensation rights and benefits. The problem at that time was that, as you said, there were many organizations, some disparate but all unified in general with the intent to figure out how quite frankly to diminish control and weaken workers’ compensation laws to the benefit of employers and insurance carriers.
And while they sort of played this legislative and regulatory game on a national basis, they could move the chess pieces around the country as they saw fit. We as claimants would never see it coming in our own individual states because we weren’t communicating with one another. So the brilliance of WILG was to bring claimants lawyers from around the country together so that they are A, communicating with one another and B, can plan not only aggressive lobbying tactics both in Washington and in their individual states to protect and expand workers’ compensation laws for the benefit of injured workers but also, they could meet and understand trends going around the country initiated by insurance carriers and others to do just the opposite.
So it was a great intelligence and has been a great intelligence gathering organization to help preempt some of the bad things as we see it and the workers’ compensation world.
Judson Pierce: Why don’t we take a break at this point in our broadcast and when we return, we are going to hear from Malcolm as to whether or not his firm actually engages in food fight defense of folks from Clemson University and what some of Malcolm’s most interesting cases have been over the years and a little bit more of his presidency year at WILG. We’ll be right back.
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And we’re back. Malcolm, before the break you were talking a little bit about your experience with the Workers’ Injury Law & Advocacy Group. I think it’s safe to say I can call you Mr. Immediate Past President, a title that my dad, co-host Alan Pierce shares. Tell us a little bit about that year of work as president of this organization. Where did it take you? What were some of the goals that you saw accomplished?
Malcolm Crosland: Well, Jud, yeah, it was an exciting year. Exciting as it could be under global pandemic and so when you ask where did it take me, I think maybe the other way to ask it as where did it not take me which was very little travel which was really part of the pre-COVID responsibility of a president of a national organization, is to travel a bit into sort of spread the word and evangelize as much as one can. So a lot of that sort of stuff was done primarily through the medium we’re on right now, through Zoom and phone calls and online meetings. So that was a bit of a disappointment but as we’ve all adjusted in the practice of law by using Zoom for depositions and discovery and so forth and hearings, so too has WILG adjusted. So the year went by very quickly, it involved a lot of maneuvering around COVID, dealing with COVID-related issues as far as workers’ comp goes and trying to manage my presidency remotely or virtually. That was the biggest challenge, I think.
Alan Pierce: And you did a good job by the way, and I don’t want to be remising and overlooking that. Now, as you mentioned, workers’ comp has only been around for maybe 80 or so years in South Carolina but it’s been around over 100 years in the country started in 1911 or thereabouts. It’s had many challenges over the years as it developed and it’s continuing to develop where our economy is changing. In 2022, our workforce is much different than it was in 1922. What are the major issues that you see confronting the workers’ comp system, in general and perhaps the injured worker in particular?
Malcolm Crosland: Well, I think you alluded to and hit the nail on the head, Alan. I really think that as our economy evolves from and has been evolving for the last 20, 25 years from a manufacturing-based economy to a service-based economy, what we are seeing every year are fairly relentless attacks upon who is covered and who is not covered under workers’ comp. The effort of employers to carve out certain employees from being covered and calling them something other than what they truly are, which is an employee and instead having them define statutorily as an independent contractor and therefore, the employer having no responsibility to provide workers’ comp insurance coverage for that employee is probably the biggest challenge to the system as a whole. On many different levels, not only does it lead to injuries to workers that truly our employees should be classified as employees and the injured worker and his or her family having no recourse as far as workers’ comp, but it also I think has a corrosive effect on the system as a whole —
— by removing from the system, if you will, large swaths of employees from coverage, therefore weakening the premiums going into the system to pay for claims and it also produces a corrosive effect on our social safety net when those injured workers have no workers’ compensation benefits to pay for medical treatment and they have no health insurance because they’re independent contractors, can oftentimes not afford to purchase health insurance, then where do they go for treatment? Well, we all know where they go. They go to the emergency room which is essentially a taxpayer-funded medical system. Taxpayer-funded health insurance that is not cheap. It is not efficient and it only leads to increased burden on the system that really shouldn’t have to undertake that burden. So that’s what I see, Alan, is probably the biggest challenge to workers’ comp in the next 10, 20 years.
Alan Pierce: What can not only lawyers do to help foster better supports and buttress the system for the 21st century but what can claimants, what can other people in the public do? I know WILG has been behind a bill in Congress to try to sort of minimum standards for all states to abide by. Is there anything that we should know about that or what we can do to talk to our legislators about that?
Malcolm Crosland: Yeah, you know, it’s just the problem really is, is that workers’ comp is such a niche practice of law and the average voter has no idea really how it works or what it is until they need it, until they’re injured. And even then, I’m not sure that many people fully understand some of the issues that we’ve been talking about and don’t become politically motivated to do anything about it. Unfortunately, I think, and especially here in the South where I practice, unfortunately for us, the best way. I think for workers as an entity, as a group to deal with and protect their benefits is to unionize. That just doesn’t happen and as Alan alluded to a little while ago, we see steady decreases at least up until fairly recently.
I think there’s some encouraging news fairly recently within the last two years but overall, we see a fairly steady decline in union membership beginning most precipitously during the Reagan administration and falling steadily thereafter. That seems to have stopped and perhaps we see some increases, primarily I think in large measure because of COVID and what I think a lot of people are seeing as the exploitation of many workers in the service industry. We only have to hear the horror stories that come from those sorters at Amazon warehouses and distribution centers as a perfect example. And enough is enough and I think people are finally getting more motivated, injured workers are and non-injured workers to get unionized and protect their rights.
Alan Pierce: You know, as our interview is drawing closer to the end, Malcolm, I want to maybe go back to that little story you began, talking about your grandfather and the food fight at Clemson. You know, one of the fascinating parts of the practice for me and Jud has certainly seen it in his 20 plus years of practice, is the infinite varieties of ways that workers find to hurt themselves. I mean, the fact scenarios that we see are anything from tragic to comical, not to make light of some of these injury.When you mentioned the food fight, tell us a little bit, maybe your most interesting case that might be what I call the cocktail party case but really, for people to understand that if there were an injury in the lunchroom at work, somebody choked on piece of food or there was an altercation and there was a fight in the workplace, a lot of these things are covered. If somebody’s injured on a smoking break or a drink break or a coffee break and they slip on the floor or something, there very well may be coverage. So, maybe comment a little about that and maybe you can segue into any case that you think could illustrate the point of an unusual fact that might lead to a worker’s comp claim.
Malcolm Crosland: Well, yeah, and I thought about that and I can — I’ve thought about the, there’s a case or cases that my partner, David Pearlman and I handled spanning about 10 years that really illustrate I think a lot of the, perfectly illustrate a lot of the difficulties that workers have especially in a fairly poor and uneducated state like South Carolina. You know, there is a huge difference between the top 5% of wage earners in South Carolina or even 10% and their educational level and then the vast, vast majority of workers’ in this state who, if they are lucky, have a high school diploma. The level of illiteracy in this state is still fairly profound.
And as we know, the more education one has then generally the higher wage they earn. After World War II, South Carolina and states like South Carolina were the Mexico of our country. After World War II when wages increased in what we now refer to as the Rust Belt Northeast and in our old manufacturing base in this country, employers fled by the thousands, from New England, from the Midwest, from as I said what is now the Rust Belt. Literally dismantled factories, put them on a rail car and sent them to states like South Carolina where they were reassembled and individuals fresh off of the farm or plantation where their families have been for hundreds of years, primarily African-Americans, went to work in these factories that were set up. What they did not know is that it was one thing to bargain their labor for a wage but none of them agreed to bargain away their health for their work.
And what they did not know in many, many instances, is that these factories when they were set up here in South Carolina of state, with very little, if any, regulatory control or environmental control and a non-union state that they were many times exposed to toxic substances. They had no idea they were being exposed to and they were not protected and many, many were injured. So when you ask the many ways that people get injured, some of them can be comical and just you have to shake your head how in the world could that happen? But many times, it is the fault of the employer who well knows exactly what they’re doing but has a corporate conscience and difference to the injury that they’re causing because there’s very little cost to them on a corporate basis. David Pearlman and I represented about well over 1,000 individuals that worked at a battery plant near Sumter, South Carolina. Battery plant was originally one that was manufacturing batteries made of nickel and then switched over in the early 1970s to lead-based batteries, batteries that would go into cars and golf carts and hospitals.
What we found was that these primarily almost 99% of the workforce was African-American, were all poisoned by lead. Generations of African-Americans in this town poisoned by lead. Lead they took home and their children were poisoned. Over 10 years, we litigated those cases and represented literally hundreds and hundreds of people that worked in the facility through the workers’ comp system. They initially denied all of those claims and I’m pleased to tell you that after 10 years of litigation, that battery manufacturer had paid out over $42 million in workers’ compensation claims because my partner and I said this is intolerable and we’re not going to give this a pass. And that probably was without question the most rewarding set of cases that I’ve been involved in. It took an enormous amount of work over 10 years but it did a lot of good in the community and it was very satisfying.
Alan Pierce: Yeah, and some people think workers’ comp is relatively simple but on a case like that, you need a whole host of experts, not only in the medical field that perhaps even in the engineering field and all sorts of disciplines. Malcolm, this brings us to the end of Workers’ Comp Matters. I want to thank you for joining Jud and me. Hope to see you soon and I really want to thank you for giving us the benefit of your insights in this very interesting system that we all deal with every day.
Malcolm Crosland: Thank you for having me as a guest. It was a pleasure and Jud, I hope you’re not too cold up in Boston and Alan, head on straight.
Alan Pierce: I will. Jud, get a hat. Okay.
Judson Pierce: I will.
Alan Pierce: See you guys again. Bye-bye, everybody.