Sunday, May 20, 2018

Judge asks "Why are we Here?"

I had a chance to speak with a group of judges recently. The topic of discovery arose. Discovery is the process by which the parties to a dispute learn more about each other and the dispute itself. I have found, over years of teaching, that a great many non-lawyers struggle with the concept of discovery. 

Perhaps it helps to think of it in a non-litigation context. Imagine that you have been fixed up on a blind date. This means spending time with someone about whom you know very little. In litigation, you may find yourself similarly spending time with someone whose vehicle has struck yours (or vice versa), or who worked in branch office of your company (or is the boss of your boss in a company), or who you think has stolen your lyrics and produced a record (though your lyrics may turn out to be too "banal" to support a recovery). 

Thus, through some event, action, or inaction, you could find yourself having to deal with someone that you may know little or nothing about. You are in a dispute about which you may have question. Discovery is similar to the proverbial "first date." Think of the conversations in which you engaged while in that "first date" process. What was the point? Quite simply, to find out more about the other person.

In the dating context, that might mean finding out likes and dislikes, similarities and differences, and assessing your own feelings about the perspectives and thoughts that the other person brings. A major question may also focus on what that other person's expectations are, and whether they fit with your own. In the litigation context, similarities and differences may be equally important. Understanding expectations of the parties may be critical. Assessing perspectives and beliefs about the dispute will assist in deciding how to proceed. 

In short, discovery is a critical element of the litigation process. It is the gathering of information, either from the other party or from others that know something about them or about the subject of the case (maybe we need an expert on song lyrics and banality?). There are lawyers that enjoy the discovery process, revel in the accumulation and organization of facts and data, and there are others who simply dread it. But regardless of your feelings for it, discovery is crucial to effective litigation. 

The way this subject came up in my recent conversations was from two perspectives. The first was a discussion of attorney professionalism. A judge described that a lawyer had voiced the belief that in litigation no information should be provided informally. This lawyer believed that the practice of "stonewalling" was the best, and advocated providing no information whatever to the other side unless ordered to by a judge. That attitude, in my humble opinion, can be labelled with various adjectives including: unprofessional, inappropriate, wrong, and more. 

The second discussion was about the solving of discovery disputes. A judge described to me frustration at conducting hearings on motions to compel discovery or protection from discovery. If a party seeks something that should not be disclosed (grossly irrelevant, trade secret, etc.) a party might file a Motion for Protective Order to prevent the discovery. If a party fails or refuses to produce answers, documents, or other evidence, a party might file a Motion to Compel discover to have the judge order a response. 

This second judge was lamenting that significant time is invested in hearings, or at least orders, on these discovery motions. Often, in a hearing the attorney seeking relief (either protection or compel) might spend significant time arguing the merits of her/his position, making the case for relief. The judge described then turning to the party defending against the motion and asking for argument might hear something like "judge, I don't have any real argument against what she/he said, my client will comply if you order them to."

At this stage, another judge interjected that the same occurs when no hearing is held. The judge described receiving the motion, and placing it in a "pending" folder to await response from the opposing party. After 15 days waiting for a response (Rule 60Q6.115), the judge drafts an order and notes that "while the motion states the ______ (opposing party) objects, no response or objection was filed." In this setting, it appears to some that the opposing party may have sought nothing but delay (15 days) and aggravation (failing to respond, objecting to the motion). 

This second conversation included expressions of the judge's incredulity and disappointment. The judge asked me "if there is no real argument, I feel like asking the parties: then why are we here." The judge was frustrated that the parties, the lawyers, could not work out such disputes without motions, hearings, and orders if there was no "real argument." 

I have returned to the discussion repeatedly in recent weeks. At the end of the day, the ultimate conclusion from these scenarios is professionalism. Lawyers who do not answer discovery (that is "no response"), who then object to motions without reason, and fail to file a response to the motion to express a reason, are not demonstrating professionalism. Advocacy means representing a client's interests. Professionalism means doing that in way that facilitates resolution and cooperation. 

Professionals understand that they have a duty to work with their opposition to exchange information in discovery. An exchange of information will edify and illuminate disputes, leading to greater understanding. No one will accept and adopt claims or defenses which are kept in the shadows. For the opposing party to accept an attorney's position, they must understand both the position and the facts or evidence which you contend will support it. Professionalism is about advocating for an outcome, and facilitating that outcome. It does not mean employing every opportunity to deny, delay and obscure. 

Whether a particular attorney loves or hates the discovery process, it is an undeniable and necessary part of litigation. Whether it is loved or hated, it is both necessary and required. And, how an attorney engages in it will speak volumes to her or his professionalism and acumen. What kind of attorney are you? Would your self-assessment match that of opposing counsels or judges before whom you practice? If every request eventually requires a motion, if every motion is opposed, if responses are never filed, you might want to rethink your self-assessment. 

As Taylor's "banal" lyrics remind, we are who we are. She sings of knowing people's nature ("players gonna play, play, play, play, play" and "fakers gonna fake, fake, fake, fake, fake.") She observes and recognizes who adopts which attitude, and resolves herself personally to "shake it off, shake it off." That is the final point of professionalism. The most adept, pro-active, and professional attorney will have to deal with a serial procrastinator, an obsequiously persistent objector, a repetitious non-responder. Professionals will recognize them for what they are, and "shake it off." 

Though it may sound "banal," the outstanding attorney will remain professional despite the failures and offenses of opposing parties or counsel. Know that your demonstration of professionalism (1) is never a sign of weakness, always a sign of strength and resolve,  and (2) your professionalism is noticed and appreciated by both other attorneys and the judges before whom you practice. When a professional files a motion or response, the question "why are we here" will never come up.  

Thursday, May 17, 2018

Fast Tracking MSA

The world of workers' compensation has been complicated in recent years, due to the financial woes of the federal government. The idea is simple enough, strive to have those responsible for the cost of an injury or disease bear that cost. Before the turn of the century, there was a pattern, perceived at least, of employer/carriers settling workers' compensation cases with injured workers, followed by the medical care for that worker becoming a burden on Medicare or Medicaid. Whether those settlements included money for future medical care (and workers received a windfall when the government paid for the care) or did not include that care money because of Medicare (and the payer received a windfall by shifting cost to Medicare), or some combination of the two is perhaps debatable in any particular case. 

The federal government implemented legislation and began requiring those settling a workers' compensation case to take Medicare's interests into account. This required both the injured worker (payee) and the employer/carrier (payer) to consider the cost of medical care that would be likely following settlement, and to make arrangements for that cost to be born by the settlement itself. The process has had its critics. Some believe that this process is slow and cumbersome. Some doubt that the financial impact on the federal government is meaningful. 

The Centers for Medicare and Medicaid Services describe the process of a "Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA)." This is "a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services." These funds are sequestered and are used to pay for medical care that is related to the "workers’ compensation injury, illness, or disease." These funds are, of course, based upon an estimate of likely future expense, determined at the time of settlement. Predicting the future can be challenging under the best of circumstances. 

However, the variables in each particular case are reviewed and the future care cost is predicted. That estimated amount "must be depleted before Medicare will pay for treatment related to the workers’ compensation injury." That, in itself, may be difficult because there are complications and co-morbidities involved often in work injuries. What is or is not "related" may be the subject of disagreement. The responsibility for estimating or predicting the future care amount is shared by "all parties in a workers’ compensation case." The responsibility is imposed by the Medicare Secondary Payer (MSP) laws, with a focus upon protecting Medicare’s interests. 

That laudable goal, and shared responsibility make sense. But, the process and time involved can be significant. Each WCMSA "is determined on a case-by-case basis." That means that individual data is accumulated by people, compiled by people, analyzed by people, then shipped to the government where it is all analyzed by other people. Some estimate that a minimum time frame for approval is 60 days, and in some cases that the process can take much longer. 

I can get an offer on a plane ticket in minutes on the Internet. I can rapidly and conveniently buy virtually anything, often with multiple vendors competing for my business. It may be a simple purchase such as a book, or it could be a quote for a 30 year mortgage. Often, my Internet search for one product (plane ticket to a particular destination) leads to prompts or advertisement for another (car rental or hotel there). I have been told of people receiving prompts for re-order of purchases around the time some computer predicts their last order of a product should run-out. 

Programs have been developed and deployed for all manner of agreements and interactions. Google and others are watching our consumption, predicting our interests in services and products, and reacting to our decisions. These programs are analyzing digital data. The day is coming where all the workers' compensation information, diagnosis, treatment frequency, costs, etc. on a worker will be digitized anyway. Some are there now, but it is not universal. Those that have not digitized yet will do so. It is cost-effective and makes financial sense. 

Why can't the Centers write a simple computer program that estimates future medical care cost? This could be constructed for user-input or automated process. It could be as simple as a website where an adjuster or attorney or others could input the data regarding diagnosis(es), procedures that have been performed, medications prescribed, along with their duration, strength, and prognosis. Or, for those carriers and servicing agents that have digitized records, they could write a computer program to "harvest" the relevant data from their records, align and organize it in a method consistent with the Centers, and submit the data in a further automated process. 

The Centers could easily construct a database that measures past history. I suspect that a patient diagnosed with a rotator cuff tear will travel a path similar others with that diagnosis. I suspect that a patient prescribed any particular medication will have similarities in duration of use with others that use that medication. Averages can be determined. There are literally millions of people who are treated for various maladies, and insurance carriers are already using computer programs in this proposed manner for "predictive analytics." 

Those companies are collecting a premium, investing the money, and then using the proceeds to pay claims when required. To remain in business, those companies must make valid and accurate predictions about the costs for which they will likely be responsible. And, they must make those predictions about populations of people before they even become ill or suffer injury. Those companies are not guessing, they are using data. And, increasingly, they are becoming more sophisticated with data, using "predictive analytics." 

Data exists to study the path traveled by medication prices. Whether the price of other medications will increase or decrease can be predicted on those past experiences. The inflation rates faced in medicine are predictable. The cost of medication today can be readily adjusted for inflation in the future. Whether complications will occur can be predicted. Some percentage of people taking a particular medication will need some other medication or modality as a result. That risk can be measured, valued, and predicted. 

The performance of certain procedure codes could be similarly used to extrapolate the probability of future procedures. A patient undergoing a particular surgery will be at risk of requiring some additional surgery in the future. That probability is predictable, measurable, based on data at hand. Life expectancy is similar. Statistically, it should not be difficult to document a probable treatment path based upon injury, age, degree of perceived recovery from procedure, and perhaps a few other criteria. 

Proof of all of this is also at hand. In fact, this predicting is occurring right now, at the Centers. When a Workers' Compensation Medicare Set Aside Arrangement (WCMSA) is approved, it is because a human being somewhere has made these predictions. That human being has accumulated data, categorized it, organized it, and submitted it. Some other human being at the Centers has reviewed it, recalculated it, and reanalyzed it. And, as with all human-intensive processes, time has been invested. That is the real issue, the passage of time. In some cases, it can require months. In some instances, much of that work is invested in a "what if" process, trying to figure out what an WCMSA "would" require "if" a settlement of the workers' compensation case could be reached. It may be hard to settle a case if the payer does not know how much it will pay and the payee cannot be told how much she/he will have in pocket afterward. 

The assumptions, predictions, and analytics already exist. With all of this programmed, a payer (insurance company or employer) should be able to input the raw data from adjusting files, and the computer program should be able to produce a reasonably accurate MSA amount in a matter of minutes (at most). And, barring some misrepresentation (innocent or intentional) in that input process, the government should be willing to live with the calculation that results. After all, the government would oversee the programming, the methodology, which the machine would apply to that historical data in reaching its output, its prediction. 

Certainly, the issue with statistical analysis is always that there are outliers. If you are above or below average, then "your mileage may vary," and everyone understands that. The program would not produce "the," singular, absolute, "correct" prediction of future medical expense for this patient. However, it could produce a reasonably accurate prediction that is appropriate to use for this patient. Certainly, there would be margin for error. Sometimes future medical cost would be over-predicted or under-predicted. But, it is naive to believe that is not happening today. 

Currently, there are a great many humans who are toiling to make similar predictions. They are just as apt to rely on averages, predictions, and projections. They are just as apt to overstate for those who are actually below the mean and understate for those who are above. But, overall, statistically, the result would be similar using the current process or the programming I propose. But, the programming I propose could be simplified to allow any payer to input the required data and immediately get a stated value. That value of "future medical" could then be understood and applied in the negotiation of settlement. 

And, the government should not necessarily shoulder that expense burden. Instead of a payer (employer/insurance carrier) paying a vendor for this predictive expertise (today), let the government charge the payer a fee to prepare the estimate using this computer program that is replete with that expertise. The same database could persistently monitor its own performance. It could consider whether its estimate for a particular person was accurate; if it predicted use of a medication would continue two years, then in two years the program could note being correct or not. It could then adjust its predictions in future instances of that medication. The computer program could learn through actual outcomes to better predict future outcomes. 

In this method, the government recoups the cost of programming and development through a user fee. The government can downsize a significant workforce that is engaged today in human review and approval of these human predictions. The payer can pay a small process fee to the government instead of paying the commercial processor to have humans accumulate and package the data for human consideration. 

In the end, It is probable that an automated process would cost the payer less and expedite the settlement to the benefit of both the worker and payer. The predictions would be quicker, more consistent, and less costly. To further simplify the process, alleviate the management of that set-aside money. Today, the "set-aside" from the settlement sits in a bank and the injured worker pays for care from that until it runs out. Then Medicare begins to pay for care. 

To simplify the process, simply require the payment of the "set aside" directly and immediately to the government. If the program predicts future care will be $50,000, then upon settlement the worker gets her/his money and the $50,000 is paid to the government just like child support arrearage is paid today. Medicare could begin to cover care immediately, because the $50,000 is in the coffers of the Medicare trust fund (you remember, the Al Gore "lock box") immediately. That way, the entity taking the risk (if the expenses exceed estimated, Medicare will pay) is also entitled to the benefit that results if the expenses are actually less than predicted. In the modern world of American socialized medicine, this is a logical consequence. 

The further benefit of this "immediate pay" process is that the injured worker will immediately receive medical care from Medicare. And, those bills will be paid by Medicare based upon diagnosis codes (ICD-10) and treatments (CPT) which would be documented. The program that estimated the likely future cost could immediately begin to analyze the actual future cost. That would further would "educate" the database as to the "actual" expense compared to the predicted expense in any particular case. Predictions versus actual performance on cases today could be used to adjust assumptions and predictions on future cases. The program could "learn" as it goes. 

Perhaps most importantly, the process would be simpler and faster. It would be as accurate and effective as what is being done today by humans, and probably far more so. The benefits of over-prediction would be enjoyed by the same entity as currently faces the risk of under-prediction. Injured workers would not have to administer those set-asides. And, overall, the cost to individuals and the system would decrease. 

And, perhaps those are all the best reasons to leave things just the way they are. Perhaps such a program would simply be too logical, efficient, and fast? Or, perhaps someone out there will read this and write to explain how I have completely missed the point?

Tuesday, May 15, 2018

The Address Conundrum and Motions to Dismiss

Florida has a fairly stringent set of requirements for specificity in a workers' compensation petition. Those requirements are sometimes a complication in specific instances. Recently, a registered user voiced concerns about two seemingly conflicting statutory requirements, and the potential for effecting prejudice. This seems like a subject upon which more than this one inquirer might benefit from an explanation of both the law and the Florida Office of Judges of Compensation Claims' (OJCC) electronic filing process. 

When an employee believes that she/he is entitled to a benefit "that is ripe, due, and owing," the employee may file a petition for benefits. Section 440.192 Fla. Stat. All such petitions shall be reviewed by the OJCC, and shall be dismissed if "such petition does not on its face specifically identify or itemize . . .." Then follows a significant list of information. First on the list is:
(a) Name, address, telephone number, and social security number of the employee.

This requirement seems simple enough. However, there is an apparent conflict with Chapter 119,  FlaStat., which periodically is raised. Chapter 119 governs "public records." The specifics are spelled-out in Section 119.071(4)(d) Fla. Stat. exempting the "the home addresses, telephone numbers, dates of birth, and photographs" of certain individuals from disclosure through the public records law.

The list of those entitled to such protection is extensive. It includes "active or former" personnel in certain occupations. It also includes confidentiality for the "spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel." A summary of the extensive list of covered occupations and positions is at the end of this post. 

All petitions for benefits filed by employees pursuant to Section 440.192 Fla. Stat. are displayed in the online OJCC docket related to that particular case. It would be inappropriate to display such a petition, if it included the home address or telephone number of the employee protected pursuant to Section 119.071(4)(d) Fla. Stat. Therefore, the Office of Judges of Compensation Claims offers the filing employee the opportunity to submit the information required by Section 440.192 Fla. Stat. but to prevent its disclosure. 

The employee may check the box claiming entitlement to an exemption from disclosure, pursuant to Chapter 119, illustrated in the screenshot of the petition filing process of the OJCC electronic filing system ("e-JCC"). When an employee checks this box, the data regarding name, address and phone number will still be gathered by the filing system and maintained in the records of the OJCC. However, the document that is created, the electronic petition for benefits ("e-PFB") will not display that information. 

This is where the rub occasionally occurs. Periodically an attorney will file a motion (motions are the best way to seek relief, see Rule 60Q6.115(1)) seeking dismissal of the PFB. The grounds stated will be the absence of the address and telephone number on the face of the petition. The moving attorney will cite as authority Section 440.192 Fla. Stat. and Rule 60Q-6.107(1):
(1) A petition that does not contain the information required by Section 440.192(2) through (4), F.S., shall be dismissed.
And, of course, there are a variety of good reasons that an employee's address may be needed (such as mailing the employee a check for missed work, providing the legally required informational brochure, etc.). Thankfully, very few such motions are filed each year. The majority of attorneys, employers, and carriers, are cognizant of the Section 119.071(4)(d) Fla. Stat. requirements and do not file motions to dismiss on the grounds of a non-displayed address and telephone number.

Nonetheless, such motions are periodically filed. A judge, confronted with such a motion, would have to decide whether a petition should be dismissed in light of the broad requirement of specificity counterbalanced by the specific statutory protection regarding disclosure. Of course, this decision is up to the assigned judge, and is made on a case-by-case basis. The balance would likely include consideration of whether the absence of information on a particular petition in a particular case, in which Section 119 provides protection, results in some actual prejudice to the employer/carrier.

There are those who contend that such "disclosure" issues are best addressed by applying the Florida Supreme Court's decision in Binger v. King Pest Control, 401 So.2d 1310 (1981). There a legal requirement of disclosure (of witnesses) was analyzed. Despite the requirement for disclosure, a trial court allowed a party to present an undisclosed witness. The opposing party objected, citing the law and that it was surprised and thus inappropriately prejudiced. The Court declined to delineate a bright-line test, holding it is best to leave such "disclosure problems to the broad discretion of the trial judge and focuses on prejudice."

That analysis recognizes that parties in litigation have conflicting interests and obligations. Disclosure may be generally necessary and appropriate, but there may be instances in which exceptions are appropriate. Thus, when the two statutes seemingly conflict the OJCC has defaulted to requiring the provision of the information, but has declined to publish it. And, then it is up to the parties to seek relief, explain their reasons and convince the assigned judge whether disclosure is appropriate or not in that particular case.

Though, there is reference here to Binger, it is the responsibility of the parties to define their legal disputes, and provide the judge with authority (statutes, appellate cases, or even trial orders). In Holiday Inn v. Sallee, 496 So.2d 227 (Fla. 1st DCA 1986), the court explained that pleading and proving issues is up to the parties. The parties are to bring their disputes, explain their legal authority, and the judge's responsibility is to decide them. It is not the judge's responsibility (nor this blog's) to do the parties' research or define their disputes.

Exempted positions from Section 119.071(4)(d) Fla. Stat.

Law enforcement personnel, correctional and probation officers, certain state agency investigators, firefighters, judges, state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors, general magistrates, special magistrates, judges of compensation claims, administrative law judges, human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management distric
t, code enforcement officers, guardians ad litem, juvenile probation officers, juvenile probation supervisors, detention superintendents, assistant detention superintendents, juvenile justice detention officers I and II, juvenile justice detention officer supervisors, juvenile justice residential officers, juvenile justice residential officer supervisors I and II, juvenile justice counselors, juvenile justice counselor supervisors, human services counselor administrators, senior human services counselor administrators, rehabilitation therapists, and social services counselors, public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel; county tax collectors; certain personnel of the Department of Health, impaired practitioner consultants emergency medical technicians or paramedics, employees of agency’s office of inspector general or internal audit department.

Sunday, May 13, 2018

A Law Student and a Series of Dumb Mistakes

I recently came across a story about a federal judge in Miami. The issue is totally unrelated to workers' compensation, but it involves judicial behavior. It is noteworthy for several reasons. It all arose from a pro-se gentleman (representing himself) and some errors of judgment. I have been unable to obtain a copy of the hearing transcript, and so I operate from the basis of the news story that quotes it: Judge Detonates Pro Se Law Student So Hard I Now Must Defend a Dumb Kid.

Fallacy number one, there is no kid involved in this story. The gentleman representing himself is 29 years old, and in his second year of law school at the prestigious University of Miami. There are some other points worth making, and there is a disappointing assortment of language in the story that the author might have spared us (the author's language, not the judge's as far as I can tell). 

The language is more disappointing in that the author is the Executive Editor of Above the Law. I am persistently surprised by the language I encounter in modern prose. I expect I should not be, but I am. I think we can communicate our feelings without the expletives and insults. Maybe that style is just what it takes to draw readers; I hope not.

Anyway, this gentleman set out to represent himself in a proceeding to correct his credit score. He filed a legal action in federal court. And, as lawsuits sometimes do, the case proceeded more slowly than he hoped. We hear that complaint in the workers' compensation systems, and the refrain comes in similarly from civil practitioners that I speak with. Slow progress (whether truly slow or simply perceived as slow) is frustrating. It is more frustrating for those who lack familiarity with how the system works.

So, this gentleman decided that he would do something to prompt the federal judge into action. From his legal education, the solution he selected was a writ of mandamus. I briefly describe the three common types of appellate writs in Writ Protection as Opposed to Appeal. Of critical import is that a party often has to wait until the trial proceedings end to seek relief by appeal, but the writs are available anytime during a proceeding.

The three common forms of writ are "prohibition" (asking the appellate court to tell the trial court to stop doing something), "mandamus" (instead telling the trial court to do something particular), and certiorari (correcting an error of the trial court). And, in this case, the gentleman selected "mandamus." He thought this would spur the federal judge to action and get his case moving. As Ron White might say, "he was wrong." As an aside, before asking an appellate court for an "extraordinary writ," there might be some alternatives that should be tried with the trial judge.

This gentleman was working as an intern at the time for the United States Attorney's Office (USAO). That is a pretty prestigious job, and a real honor for a law student. Some would suggest that being afforded such an opportunity speaks volumes about a law student's ability and academic success. The Executive Editor of Above the Law had another suggestion: "Turns out the kid’s father is also an attorney… wonder if that helped him get his sweet internship." Perception or reality?

Unfortunately, this gentleman did not know how to file a petition for writ of mandamus, and so he went searching for help. He went searching for help at the federal judge's chambers. Essentially, he went to a clerk (law school graduate) who works for the judge to in effect say "hey, your boss is not moving fast enough, help me file this writ to force him to speed up." 

The judge's clerk, at first, was not even going to let this gentleman in the office. But, being a resourceful young man, the gentleman showed his USAO identification and perhaps intimated he was seeking admittance on official business. That was a mistake. 

The gentleman then asked the judge's clerk how to pursue a writ of mandamus. He asked the clerk to provide legal advice to him on how to proceed. This was done without the other side of the case (the company he was suing to correct his credit score) being present. That is called ex parte communication, and it is not allowed. See What is Ex Parte, Judicial behavior and Ex Parte Communication, and The Judicial Witness. Ex parte is wrong, it undermines the fairness of the judicial process, and everyone knows it. 

Well, the outcome was a thorough lecture by the judge. The judge first found fault with this gentleman's efforts to proceed with mandamus without paying the filing fees, as an "in forma pauperis" (unable to pay). The judge noted that this gentleman sought that status, but did so while attending a prestigious law school, wearing a suit, and seemingly being well taken care of. 

Second, the judge took issue with the effort to speed up the process, the "mandamus." He noted that mandamus is "to tell the Court of Appeals that this judge needs to be told to do something, because he’s sitting on his butt and not doing anything which can be done." The judge noted that this was sought despite the fact that the case was "not even two months old," which led him to believe that "wanting to petition for mandamus" was "ridiculousness." That is worth of repeating, the case was less than two months old. The judge made clear that was not all he thought was "ridiculousness" (noting for example, the gentleman wanted to have a default entered against his opponent, which was not possible under the circumstances.)

Third, the judge took issue with the way in which the USAO identification was used to gain access to the judge's chambers. One does not use an official position to influence others. Though the judge did not hold this gentleman in contempt, he lectured him significantly about his reputation and the effects his actions might have on it. 

The writer,  Executive Editor of Above the Law, engages in name calling throughout the article. He calls the gentleman "a little brat," a "little entitled ponce" (had to look that one up, Websters says it means "pimp" or "homosexual," a curious insult), and "an idiot." It does not appear the judge referred to the gentleman in these terms, but the writer who claims to defend the gentleman does. The writer concludes that this gentleman "made a series of dumb mistakes." If you have never made such a series, I congratulate you and your good fortune.

The writer then concludes that the judge went too far in lecturing this gentleman. There are references that the judge is behaving imperiously and the gentleman's treatment resulted because he has "offended the great and powerful Oz" (disparaging the judge), that the judge "started sounding a little shrill," and behaves "like the king of his very own anthill." The writer ends describing his reluctance to defend the gentleman, but explains his feelings of empathy because of the judge's tone and demeanor. The writer seems intent on insulting both the judge and the gentleman. 

I have suggested that seeking the advice of secretaries and other staff is likely not the best course, see What can I do? When staff consults me, because someone has sought legal advice and they are unsure how to respond, I tell them to suggest to that someone that they consult an attorney. If the inquirer is an attorney, the advice is then to consult another attorney. Peers are a great resource and asking judicial staff for advice is neither wise nor productive.

Ex parte communication occurs whenever there is substantive communication which does not involve all concerned parties. May someone speak to the judge's staff privately about anything? Certainly, calling staff to ask when time for a motion hearing could be procured, whether documents arrived, or other procedural questions is not inappropriate. But speaking unilaterally to the judge or judge's staff regarding substance is simply inappropriate. Staff knows it, lawyers know it, judges know it, but I hear about it persistently nonetheless.

Finally, litigation is rarely rapid. A civil case might take a year to a year and one-half, according to the Florida Supreme Court. In Florida workers' compensation, we are constrained to mediate all claims within 130 days (about four months) and to hear them within 210 days (about seven months). Of course, the more complex the case, the longer it might take. Complexity might come from the nature of the injury, the number, kinds, location, or scarcity of expert physicians involved, the number of parties (most cases involve one injured worker and one employer, but frequently there can be more than one employer potentially liable), and more.

It seems there are a number of lessons illustrated by this article. Foremost, that we can discuss and describe without insults and name-calling, whether the gentleman or the judge. Second, ex parte communication is wrong and we should remind ourselves of that and resist it, persistently. Third, litigation is not a quick process. We try to keep it moving, but many challenges can slow progress. Fourth, attorneys should not mislead (using USAO or other credentials to accomplish access). And, finally, lawyers and litigants alike need to remember that judges and staff are not here to provide legal advice; judges are impartial arbiters whose job is to make decisions about issues with which they are presented, not advocates who decide how such presentations are formulated or made.

In all, a troubling story. A smorgasbord of lessons. Hopefully some are learned and the gentleman will proceed to excel as an attorney. And, if others read of the scenario, perhaps they will save themselves making similar mistakes? 

Thursday, May 10, 2018

The End of an Era

On May 13, 2018 an era ends in Florida. 

Several times in the last few months, a big deal has been made in the press about someone's final 10-7. That is a radio call police use to inform of their "end of shift." There was one in Sarasota in April (30 years), another in Georgia (20 years), and not so long ago in Arizona (37 years). These calls mark an end and a beginning, after many years of faithful service. 

Those news stories resonated with me, and caused me to reflect on the many Florida Judges of Compensation Claims I have been privileged to know over the days I have been involved in this industry. Recent news of law school graduations, and the swearing in of new lawyers following the February bar examination, have reminded me of my youth in this industry. I used to find the phrase preposterous, but "it seems like only yesterday."

I began my career in workers' compensation in 1991 in Jacksonville. The workers' compensation officer there was a dusty, disorganized, adventure. There were tiny hearing rooms and huge stacks of paper (everywhere). Some of the staff was helpful and courteous, others were supercilious and condescending. I learned much in that office, good and bad. 

I was privileged to represent some fine companies and work with exceptional clients. One of which called upon me to travel for its cases to such exotic locales as Starke, Gainesville, and St. Augustine. They were the beginning of what became my statewide practice. In about 1994, at a very small facility of that client, one of the ten employees was injured, filed a claim, and an order was entered requiring mediation. It was my first claim in Tallahassee. 

There were various disputes in the case, none of which I remember today. But the crux of the story came down to several motions that needed hearings. I managed to procure time on the judge's calendar one morning, prior to our afternoon mandatory mediation. My client and I drove from Jacksonville together, about 187 miles of nothing but pine trees and more pine trees. I fear that no poet in the world could glamorize Interstate 10. 

Being new to the Tallahassee district, I had asked around about what to expect. My client was pessimistic and dismissive as I outlined our plans for the morning's motion hearing: "it won't matter," "waste of time," "been here before." I repeated what I had learned of Tallahassee from the grapevine, tried to remain positive, and on we drove. 

Over the years, I have forgotten the motion and mediation outcomes. For whatever reason, I vividly remember our visit to the client's very small Tallahassee facility, a somewhat tense exchange with claimant's counsel, and the ride home. On that ride home, my client's demeanor had smoothed. He reminded me of his morning pessimism, and I will always remember him saying "you were right about that new judge, I really do think he listened."

Lawyers tend to remember victories and successes. I think if I had enjoyed any victory that day, my memory would be of that. But, my memory is that my client felt we had been listened to. My client valued the experience because of perceptions of respect. Things "were different" in Tallahassee. My client professed that in workers' compensation in Tallahassee, there was a "real judge." The judge that day was John Lazzara, and he had then been on the bench there for about two years. 

Judge Lazzara had initially been appointed in 1990 to replace Judge Louis Tidwell in Tampa. He requested to transfer north when Judge Gus Fontaine retired in 1992 after 27 years on the bench. An odd request perhaps, a dyed-in-the-wool Gator moving to the heart of the Seminole stronghold?

On May 13, 2018, Judge Lazzara will retire after 28. Consider that, over the last 55 years, only two Judges of Compensation Claims have presided in Tallahassee District (formerly District A, then District A East). One of Florida's workers' compensation deans, Jim McConnaugghay has been practicing workers' compensation in Tallahassee since 1969, and there have only been two judges there in all those years.  

Many may not remember it, but 1992 was a tumultuous time for workers' compensation in Florida. The legislature had worked on workers' compensation reforms in 1979, 1989, 1990, and 1991. In Tallahassee in 1992 and 1993, interests were still colliding, premises were being questioned, and costs were rising. No bill was passed in 1993, and so a special session was called that fall for workers' compensation. And, Judge Lazzara was the local expert, in the thick of what was eventually the major reform that became law January 1, 1994. 

Judge Lazzara was the presiding judge in Tallahassee when the legislature next reformed Florida workers' compensation in 2001, shifting the Office of Judges of Compensation Claims (OJCC) from the former Department of Labor to the Division of Administrative Hearings (DOAH). That too was a tumultuous time. DOAH was committed to transform and modernize the OJCC, but the OJCC was not exactly eager to evolve. Judge Lazzara was the "answer man" time and again as integrating the two agencies progressed. 

That 2001 statutory change created the position which I now hold, Deputy Chief Judge. Prior to that, there had been a Chief Judge in the Department of Labor. But, the DOAH already had a chief judge, and thus the 2001 law created a new position. Scott Stephens was appointed to fill that in 2002. When Judge Stephens was appointed to the Circuit Court in 2005, Judge Lazzara was chosen to serve as "Interim Deputy Chief Judge." In the dozen years I have held this job, Judge Lazzara has been the one with whom I can commiserate. Of the current judges, only he and I have borne this responsibility. 

In 2008 there was recognition that no national organization existed for those who adjudicate workers' compensation cases. In 2009, the National Association of Workers' Compensation Judiciary (NAWCJ) was formed, and Judge Lazzara was the natural choice for inaugural president. He led the fledgling organization for two years, and mentored those who followed him. As the NAWCJ prepares to present its tenth annual Judiciary College in August 2018, Judge Lazzara just recently relinquished his seat on the Board of Directors. His ten years of service have been a bedrock of the NAWCJ. 

In 2012, the Workers' Compensation Institute announced the Hall of Fame, naming an inaugural class of 18 Floridians. Judge Lazzara was in that number. Among such icons as Joe Keene, Bob O'Halloran, Al Frierson, Richard Sicking, Gerry Rosenthal, David Parrish, Jim McConnaughhay, Steve Rissman and more. There is perhaps no greater testament to Judge Lazzara's stature in this system. 

No, Judge Lazzara is not the longest serving Judge of Compensation Claims (JCC) in Florida. That honor belongs to Alan Kuker, Boston University (and likely always will, at 40 years service). He is not even the longest currently serving. That honor goes to Judge Daniel Lewis (FTL), University of Florida, who is currently at 30 years (Judge Elwyn Akins of Gainesville retired in 1991 after 30 years, another Gator). But, my records indicate Judge Lazzara has served the fourth longest in our history, at 28 years. It is an accomplishment worthy of note. 

Along the way, he has served on countless committees, mentored innumerable peers, and scaled various perilous professional cliffs. His interpretations have not always been affirmed by the appellate courts, nor perhaps been popular in the court of public opinion. However, popularity is not the hallmark of a good judge. Whether he was affirmed or reversed, Judge Lazzara has steadfastly endeavored to follow the law and has remained fiercely independent. 

Next Monday, a new era will dawn in Tallahassee. Its' second JCC of the twenty-first century, Jacquelyn Newman, will be sworn, and Judge Lazzara will retire. I believe it will mark the first time a Seminole grad has presided in the Capital. I have periodically reminded my readers that change is inevitable, and have mentioned before that no one is irreplaceable, but that does not mean replacing them will be easy. As with other changes in other districts, the OJCC will persevere, survive, and thrive. 

Judge Lazzara has been a student, scholar, leader, professor, jurist,  mentor, critic, and more. Today I congratulate Judge Lazzara on his long and storied history in service to the people of Florida, the workers' compensation industry, and the Florida OJCC. Today, I wish him a long and happy retirement. Today, I tell him that he is loved, that he will be missed, and that he has so much of which to be proud. I regret that his 10-7 will go unnoticed by the press, but suggest it is worthy of note.

Thank you Judge Lazzara and Godspeed.  

Tuesday, May 8, 2018

Territorial Jurisdiction in Comp

The Georgia Court of Appeals recently rendered an interesting decision in Davis v. Louisiana-Pacific Corp., A17A1726 (February 27, 2018). The case illustrates two points worthy of remembering in the world of workers' compensation. First, it is not always about accidents; work-related illness can be compensable. And second, there are territorial limitations to the application of workers' compensation laws and the award of benefits. There is also a third point perhaps overlooked: the law strives to provide predictability, which affects all involved.

The injured worker in this instance worked in Alabama between 1984 and 1998. After resigning from the Louisiana-Pacific Corporation (LP) in 1998, he moved from Alabama to Georgia. In 2015 he was diagnosed with mesothelioma, related to his exposure to asbestos while working for LP in Alabama. So, exposed for 14 years in Alabama, moved to Georgia, and after 7 years, he is diagnosed. Unlike a fall or similar trauma accidents, the effects of disease may take years to manifest. 

He came under the care of Georgia physicians and began treatment. In August 2015 he "filed a claim for benefits" with the Georgia State Board of Workers' Compensation. The claim had to be pursued by his spouse following his death. As an aside, this form of cancer is diagnosed about 3,000 times per year in the U.S. According to, something less than 10% of those live "five years or longer." Despite this low volume of diagnoses, there are seemingly plenty of TV lawyers advertising for mesothelioma claims. 

The Georgia claim contended that Davis' work injury did not occur in Alabama as he labored and was exposed to asbestos. Instead, Davis contended that his workers' compensation injury occurred when "he was diagnosed and became disabled, both of which took place in Georgia, as did his work-related death." On the basis of this theory of "injury occurrence," the injured worker sought Georgia workers' compensation benefits and invoked the jurisdiction of the Georgia system. 

The Administrative Law Judge (ALJ) concluded that the Georgia Board did not have jurisdiction. Georgia has an extensive appellate process in workers' compensation. The decision of the ALJ was reviewed and affirmed by the Workers' Compensation Board. The claimant sought review then in the Superior Court (constitutional trial court), which also reached the same conclusion. Finally, the Court of Appeals rendered this decision, which affirmed the conclusions also. 

The claimant relied upon Georgia's statute  OCGA § 34-9-281(a) "Compensation for Occupational Disease." That section provides that "the disablement or death of an employee resulting from an occupational disease shall be treated as the occurrence of an injury by accident." And thus, the argument that claimant's disablement in Georgia was an "accident" as contemplated by the Georgia workers' compensation law. 

The Court of Appeals noted, however, the language of §34-9-242, which describes the jurisdiction of the Georgia Board. The Court concluded that "if the “accident” occurred while Davis was employed in Alabama, he does not meet the conditions of coverage under the Act." The Court interpreted the two statutory provisions and concluded that: 
Although Davis did not have a work-related “injury” under the Act until his 2015 diagnosis and disablement in Georgia, the “accident” that resulted in Davis’s injury was his exposure to asbestos while he was employed in Alabama.
The Court explained that: 
“Injury” is not synonymous with “accident.” To conclude otherwise would render the word “accident” superfluous in the phrase “injury by accident.” 
Furthermore, the application of OCGA § 34-9-281(a) is specifically limited in the opening words of that section "where the employer and employee are subject to this chapter." The Court explained that this section thus does not create jurisdiction over events occurring out of state, but merely defines how occupational disease will be treated when the parties "are subject to this chapter," that is, within the jurisdiction of the Board already through operation of some other law. 

The Court reminded that the "Board is a 'creature of statute' with only the jurisdiction, power, and authority conferred upon it by the General Assembly." It conceded that the law instructed that:
"The Act “shall be liberally construed only for the purpose of bringing employers and employees within the provisions of [the Act] and to provide protection for both.
However, it noted that the "Assembly chose to exclude compensation for an 'accident' that occurs while the employee is employed outside the state except" as specifically provided in the law. §34-9-242. Thus, inclusion of other out-of-state events or exposures would be beyond a "liberal construction," but instead would "expand that provision."

The Court noted that there was no dispute that the contract of employment, between claimant and LP occurred in Alabama as well. This may all leave the casual observer with various questions. Such as, why not file this claim for survivor benefits in Alabama instead? There are possibly legal answers to such a question, as well as perhaps practical answers. From the practical perspective, with all of the medical care having been rendered in Georgia, and that being the home of the survivors, it may quite simply be more convenient. 

Legally, there are various potential explanations. For example, it is possible that the statute of limitations for pursuing a claim or the available benefits from a claim might be advantageous in Georgia. It is also possible that the burden of proof regarding causation of a disease might be more difficult in Alabama. These are merely possible examples, but they illustrate that workers' compensation laws are different across the country. In seeking the most favorable outcome for a client, attorneys on either side of a benefit dispute might prefer one jurisdiction over others. 

Finally, it bears mentioning that there is a value in predictability in workers' compensation. Though there are many employers in the U.S. that pay their own workers' compensation benefit costs (called "self-insured"), there are many more that choose to provide those benefits by purchasing workers' compensation insurance. The actuaries that run the world (Many think it is doctors or lawyers, but the accountants really run things), make predictions regarding risk. Those predictions are based in large part on what law will apply and how that law will be interpreted. 

The accountants predict how many people will become injured or ill and how severe those conditions are likely to be both in terms of duration and intensity. They decide that they will or will not accept risk (sell a particular employer insurance) based upon a "risk/benefit analysis." Most of us do the same in making various life decisions. 

For example, if you hear about a Justin Bieber concert, but tickets can only be purchased at the theater at a particular time, you decide if those tickets are worth making a trip to the theater (how far is it?), worth sitting in the line (how long is the line? What is the weather like?). You worry that there may be no tickets left when you reach the window. You weigh those risks against the benefit you think you would earn (to see the Biebs, to finally be a "Belieber").  

In making those decisions, you need sound data. How many tickets will be offered, how much are they, how many people are in the line, etc. If your information is flawed, then your analysis process may fail you. Having stood in line for hours, and paid for your ticket, what if you learned the show is not in your town, but in Georgia. Nothing wrong with Georgia, but it simply may not be what you thought you were buying, and the trip to Georgia may be an expense upon which you simply did not plan.  

Everyone thus finds some value in predictability. Some degree of the Georgia decision discussed above is based upon state law providing that predictability. While that is appropriate, it is important to remember that workers likewise seek predictability. They generally have far less access to information,or motivation to study the potential of future loss. Employees are  unlikely to think ahead about some hypothetical, potential, injury ("it could never happen to me"). Employees tend to become interested in workers' compensation only after an accident, when the system becomes a reality for them personally. 

Those who will pay the risk are more likely interested before, because they predict statistically that ,someone will be injured and they will face costs. They neither know or care who in particular will be injured, but they strive to know their risk, just as car insurers predict how many vehicle accidents are likely, and how severe they are likely to be. 

Predictability is important. But it is important for both those who would be liable to pay and for those who depend upon workers' compensation for their livelihood following an injury or illness. Some may argue that this Georgia decision provides that predictability, and that the workers' relief lies in Alabama. Others may argue that the workers' interpretation of Georgia law was logical and afforded its own predictability; they would perhaps argue this decision disrupts predictability. 

Of course, the purpose of appellate courts is to interpret statutes, as the Georgia court did here. Critically, the consistency everyone seeks may not come from the statutes themselves, but from consistent interpretations in the Courts, what lawyers call stare decisis. Perhaps nothing is more important in regards to predictability than the consistency of appellate courts. See A Kentucky Constitutional Decision, Kentucky, Stare Decisis, and Noncompliance, Stare Decisis, Livingood, Goodgame, and Westphal.

In the end, the Georgia decision is instructive. It reaffirms the goal of predictability, though not specifically. The analysis demonstrates statutory construction and interpretation, the hallmarks of appellate 
courts. And, finally, it illustrates the inherent feature of American workers' compensation, that much depends on which state in which one is hired, is injured, and seeks benefits. 

Sunday, May 6, 2018

On Motions, Sanctions and Recriminations

Pat Benetar belted out the lyrics
It's a little too little, it's a little too late
I'm a little too hurt and there's nothin' left that I've gotta say
They remind me that the passage of time may not heal all wounds. It may be that we reach a point where we have squandered our opportunity. In the practice of law there are statutes, regulations and rules. Among those rules are the rules of professionalism. They are not always as clear as we might wish, but they are there. 

I was reminded of professionalism recently, while reviewing a motion. Time and again, I have reiterated that when parties have disagreements, the correct course is to file a motion. See Rule 60Q-6.115 ("Any request for an order or for other relief shall be by motion"). Of course, the proper methodology for relief is to file a motion. 

But, that does not mean that one may jump to this course without contemplation and forethought. Those are hallmarks of the legal profession (not "business," "profession"). And, after being thoughtful and reflective, there is also the requirement to follow the rules. The drafter of this particular motion skipped over the requirements of the rules, and as many times as I have written about this topic, it bears repeating. The entirety of the substantive portion of the motion in question says:
COMES NOW the Employee/Claimant by and through her undersigned attorney, and pursuant to Rules of Procedure for Workers' Compensation Adjudications 60Q-6.115, files this her Motion to for Protective Order in the above captioned matter and as grounds therefore, states:1. That the Employer /Carrier has unilaterally scheduled the deposition of the Claimant in this matter for __________, 2018 at 10:00 A.M.2. That the undersigned's office previously advised counsel for the Employer /Carrier's office the undersigned is unavailable on __________, 2018, since the undersigned has a mediation at 9:00 A.M. (and said mediation has been scheduled since March). Copies of the email correspondences regarding scheduling are attached hereto as Exhibit 1.3. That the undersigned offered __________, 2018 (one day earlier) for the deposition of the Claimant. However, Employer /Carrier's counsel declined the date and proceeded to unilaterally schedule the deposition for __________, 2018. A copy of Employer/Carrier's Notice of Taking Deposition is attached hereto as Exhibit2.4. That by unilaterally scheduling this deposition, the Employer/Carrier attempts to cause annoyance, harassment, and or undue burden on the undersigned and the Employee/Claimant.
WHEREFORE, it is respectfully requested that a Protective Order be entered and to impose fees and costs for the bringing of said Motion F.S. §§440.32, 33, or 34.
So, what is missing? The Rules themselves identify two glaring deficiencies. 

The very rule that counsel relies upon for relief, Rule 60Q5.115 requires that attorneys and parties speak to each other: 

(2) Except for motions to dismiss for lack of prosecution, prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion. All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion. Any motion filed without this certification shall be summarily denied. (Emphasis added).

And, the same rule requires that the outcome of that conversation (or the attempts at it) shall be stated in the motion itself. The motion above does not recite that the conversation occurred or that any "good-faith efforts" at such a conversation occurred. Thus, two failures: communicating first and documenting in the motion. See Its About Communication

As an aside, any party may seek sanctions (fees), as this motion did. But, before seeking fees or costs, it is recommended that you comply with the rules. And, if sanctions are sought, one might find Rule 60Q6.125(4) of interest: "A motion for sanctions under this rule shall be made separately from other motions or requests," pound shall be served upon the opposing party, and 21 days afforded for that party to attempt to cure the offense. Only then should a motion for sanctions be filed. 

There is another, underlying, element here worthy of discussion. Twenty-five years ago, the Professionalism Committee of the Trial Lawyer's Section established guidelines for professionalism. they were approved by the Circuit Judges. The workers' compensation practitioners took up the issue also and in 1997 the Section adopted it. A confederation of Judges of Compensation Claims also voted to endorse the Guidelines. The Bar has since amended those expectations, and they are published on the Section website

Of note, a lawyer should both "promote the public good" (follow these guidelines) and "counsel and encourage other lawyers to abide by these Professionalism Expectations." A "lawyer should accede to all reasonable requests for scheduling." In the original Guidelines, there was more clarity 
Attorneys must, except in extraordinary circumstances, communicate with opposing counsel before scheduling depositions, hearings, and other proceedings — to schedule them at times that are mutually convenient for all interested persons.
Professionalism requires that attorneys communicate with one another, and that they respect the limitations and commitments that others have. Though a particular date and time may be ideal for one, it may be unworkable for another. 

The dispute in this matter began when agreement was elusive. That resulted in frustration and a unilateral setting of an appointment that conflicted with opposing counsel's calendar. Then communication stopped, and instead a dispute evolved, which became the motion seeking relief and sanctions, without the prerequisite of communication and documentation. And, the judge might well have simply denied the motion on those grounds ("shall be summarily denied").

But the judge instead issued an order to show cause. That order noted the procedural deficiency, and noted that "Cooperation and professionalism is a key component to swiftly determining the rights and responsibilities of the parties pursuant to F.S. 440, et.seq." The order required the two counsel of record specifically listed as the recipients of the order to appear "in person" to show cause "why the motion was not in compliance with the cited rule" and "why the parties cannot exercise cooperation and professionalism in scheduling a deposition."

One of the counsel of record appeared as ordered. The other attorney instead ignored the instruction and sent an associate to stand in. In other words, one of the attorneys disregarded the order's instructions, similarly not a nod to professional conduct. Simply, "in person" is neither confusing nor ambiguous. But, the result of this meeting in person and discussing their situation, was positive. The two attorneys apparently found that communication and compromise are each effective tools in the business of litigation. The judge overlooked the recalcitrant attorney who ignored the instructions and sent a surrogate associate. 

But, imagine the time, inconvenience, and trouble they could have avoided if they had communicated earlier. Because after feelings are wounded and documents have begun flying back and forth, it may be "a little too little, a little too late." And, then come hearings, recriminations, and perhaps orders one would not prefer to receive, or to explain to one's clients.