Tuesday, September 27, 2016

Mediations, Motions, and Orders to Show Cause

An interesting conflict can arise with private mediation. As the volume of petitions increases, the availability of state mediators will become increasingly scarce. The state mediators all have discretion in scheduling their calendars. The 28 mediator calendars will become more congested with PFB Volumes Increasing. At the annual Workers' Compensation Institute recently, I was again asked why the employer/carrier is faced with the bill when a case has to be referred to private mediation.

The simple answer to this question is "because the law says so." I am consistently surprised when this question comes from experienced attorneys and adjusters. For over 20 years, Fla. Stat. 440.25(3)(b) has provided (italics are direct quote):

if the parties agree or if mediators are not available under paragraph (a), pursuant to notice from the judge of compensation claims, to conduct the required mediation within the period specified in this section, the parties shall hold a mediation conference at the carrier’s expense within the 130-day period set for mediation. 

Not a great deal of discretion in that language, "shall hold a mediation at the carrier's expense." I have never heard anyone raise the point, but have always wondered "what if the employer has no carrier?" Self insured employers do not have carriers. In fact, the way the Florida workers' compensation law is written, the employer is the party responsible for workers' compensation benefits. That is in Fla. Stat. 440.09, which says (italics are direct quote): 

The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment.

The choices on how to "secure compensation" are found in Fla. Stat. 440.38, which states (italics are direct quote): 

(1) Every employer shall secure the payment of compensation under this chapter: 
(a) By insuring and keeping insured the payment of such compensation with any stock company or mutual company or association or exchange, authorized to do business in the state; 
(b) By furnishing satisfactory proof to the Florida Self-Insurers Guaranty Association, Incorporated, created in s. 440.385, that it has the financial strength necessary to ensure timely payment of all current and future claims . . .. 

So, the legislature has (1) mandated the employer is responsible for workers compensation, (2) allowed employers to insure against that liability, and (3) specifically made the private mediation payment mandate applicable to carriers, at "carrier's expense" not employers expense.

The market has to suspect that the volume of private mediation orders may increase in days to come. The OJCC is currently studying how to more efficiently and effectively use existing resources, as described in PFB Volumes Increasing

There are already solutions available. I was surprised at the WCI to be reminded that there are some who either do not know of the "voluntary mediation" solution, or who have forgotten it. Rule 60Q6-110(2)(d) allows the parties to a Florida workers' compensation to mediate whenever they wish, with or without a pending petition. The Rule says (italics are direct quote): 

(d) Parties to a workers’ compensation claim may jointly request voluntary mediation services from the OJCC. Such requests will be considered as individual state mediator calendars permit. Any voluntary mediation will be conducted only if all parties so stipulate. Any voluntary mediation will be governed by these rules. Failure to appear at a voluntary mediation shall not be a basis for the imposition of sanctions.

So, the parties may elect to mediate voluntarily with any State Mediator in the OJCC. And they may elect to do so at any time, with or without a petition pending. All they have to do is ask. Using this rule, the parties to a case may substitute a "voluntary mediation" for the mandatory state mediation. But, how does this alleviate calendar congestion? Well, it may not. As volumes increase, litigants may find State Mediators unavailable for voluntary mediations. As mandatory mediations increase with the volumes of petitions, there may simply not be availability for voluntary. But, why would parties assume so, and not ask?

Certainly, scheduling a voluntary mediation could require travel. That may be less of a concern in urban areas. For example, travel from Orlando to either Daytona or Lakeland might not be a great imposition. Travel between Tampa and St. Petersburg and Sarasota and Lakeland might be acceptable to the parties. And travel between Miami and Ft. Lauderdale or Ft. Lauderdale and West Palm Beach might not be a huge imposition. 

But, the parties might decide instead schedule a voluntary mediation and to ask to mediate telephonically. Rule 60Q6-110(5)(a) affords the mediator discretion regarding telephonic attendance. It says (italics are direct quote): 

The mediator shall have discretion to allow any party and/or that party’s attorney of record to appear at the mediation conference by telephone upon the party’s written request furnished to the mediator and the opposing party or, if represented, the party’s attorney of record no fewer than five days prior to the mediation conference. 

This detail could easily be dealt with much earlier than the "five days." The parties, seeking an appointment for a voluntary mediation, could easily ask for this accommodation up-front, at the time of scheduling. Something like "the parties would like to schedule a voluntary mediation with mediator ___________, with the parties appearing telephonically." 

If a case does get ordered to private mediation, the expense will fall to "the carrier." In the event there is no carrier, there may be questions raised, and those will be for the assigned judge. A series of questions that a voluntary OJCC mediation might alleviate efficiently and effectively.

But recently, I had an attorney raise the question "what if the carrier does not schedule" after the "private" order is issued? This has occurred. It could be a miscommunication. It could be a mix-up or inadvertence. Or, it could occur when the wrong carrier is named in the petition for benefits, and the carrier that is served has no responsibility for anything because it is not really involved in the case at all. 

Recently. I was told of such an instance in which the "carrier" has elected to hire assistance with its case(s). The carrier in this example hired a "servicing agent" to manage the day to day issues with its claims in Florida. And the first question, who is responsible to pay for the private mediator? The statute does not seem to address this, and would suggest that there will nonetheless be a "mediation conference at the carrier’s expense." The statute does not say "unless the carrier hires a servicing agent." 

But, if the carrier does not, then what? In that instance, it is possible that the assigned judge might enter an order to show cause. That order might suggest the potential of sanctions for either or both or all parties to the case. Everyone should remember that an order to show cause is merely a method for the judge to ask a quesion(s). Something is not as it should be, and the judge is asking why. If the mediation has not been scheduled, that is what the judge knows. Why it has not been scheduled may be the fault of one party, multiple parties, or all parties. The order to show cause is the judge asking "who" is responsible and "why" the mediation is not set. An order to show cause provides an opportunity to explain, and should be seen as such an opportunity not a criticism. 

What is an injured worker to do when a case is ordered to private mediation because of the time limitations and the appointment volumes? First, the worker might consider seeking a voluntary mediation solution with an OJCC mediator in a less busy District or division. If the case must be privately mediated, the effective counsel will communicate early and often with either the carrier or their counsel, if represented. If communication fails to produce a mediation appointment, then the injured worker might want to point out the issue and seek relief from the assigned judge (file a motion instead of await the order to show cause). 

Any request for relief should be in a motion. Why? Because the rules say so. Rule 60Q6-115(1) says (italics are direct quote):

Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested. The judge may treat any request for relief from an unrepresented party as a motion. All motions shall be in writing unless made on the record during a hearing and shall fully state the relief requested and the grounds relied upon. 

So, should the carrier fail to cooperate in scheduling the private mediation, perhaps a Motion to Compel? Or perhaps a Motion to Enforce the order that required private mediation to begin with? A great many of the questions that I encounter can be answered with the simple provisions of Rule 60Q6-115(1). File a motion, describe the problem, conflict, or situation, and ask the judge to provide relief. 

The congestion of state mediation calendars may potentially increase as more petitions are filed. Florida's economy is growing. Employment is increasing. And, unfortunately that may mean more accidents and more petitions. That may mean cases ordered to private mediation. That may provide opportunities for voluntary mediation. And it may cause conflicts and issues that judges will need to resolve. Proactive attorneys may seek those resolutions by motion, rather than waiting for the order to show cause.

Sunday, September 25, 2016

People's Choice Deadline Extended to September 30

I heard about a new component of the Comp Laude awards for 2016. This year, there will be a “People’s Choice” component. Most Comp Laude award winners are nominated, vetted, and then judged by the WorkCompCentral team. But not People’s Choice; these awards will be judged by the audience based upon a short public presentation, delivered without the aid of props or PowerPoints. Are you interested? 

How to begin? The time limit for each People's Choice will be about 6 minutes. Not a long period of time. I have met people who are incapable of saying good morning in less than ten minutes. I had one acquaintance that was infamous for the greeting “how are you.” He was not infamous for saying it, he was infamously known for the danger we all faced in saying it to him. See, when you said that to him, he told you. He told you in minute detail, often dropping into a play-by-play description of what he said to his physicians and what they replied. 

So, if I were to put in my proposal for the Comp Laude 2016 People’s Choice program (I am not as I am on the selection committee), I would figure out just how long that speech would be. How many words could I say in 6 minutes? I consulted Yahoo. Many agree  right now that Yahoo is no security authority, but it has a page that is accepted as authoritative on almost anything else, Yahoo Answers. It says the average speaking (250) pace is between 110 and 150 words per minute. At that pace I would need to limit myself to something between 660 and 900 words. 

From a desire for verification, or to at least have two perspectives, I also visited a website called SpeechInMinutes.com. This one is less specific, but provides a words-per-minute calculator. It is based upon an average speaking pace of 130 words per minute, yielding a necessary volume of 780 words for this 6 minute presentation. 

I am concerned from my word-count reading. How fast do I speak. Am I a fast speaker, thus probably needing the 900 words predicted by Yahoo? Or am I slow – 660 words, or average – 780? With no way to answer, until I complete my transcript and practice it aloud, I settle on 780 as my target. In the back of my mind, I am having a subconscious debate on rectifying any ultimate shortcoming. When I speak the 780, if it does not match the 6 minutes, will I add or subtract words or will I alter my speaking pace? 

Too many variables, like trying to contemplate how we might adjust an average weekly wage, but before we know any details. As Sherlock Holmes used to say “"It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts." And thus, I write on, pushing the “talk faster”/fewer words debate deeper into my subconscious. 

So, what would 780 words look like? When I sit down to write this People’s Choice presentation, how would I make sure that it is long enough, but not too long? Either could potentially be a bit embarrassing. If there are hundreds of people watching your clock, you might want to assure yourself that your presentation will be “baby bear,” that is "just right."

Fortunately, we live in the world of word processors. And, word processors count words. So, I typed this in Microsoft Word. Recognizing that “your font may vary, as might your margins, and other variables, it might be helpful to know how I am doing so far. I am using a Times New Roman 12 font. And at this stage of my transcript, the word count in my lower left-hand corner status bar alerts me that I have now reached 641 words; essentially one typed page was 561 words. With only 780 words available, I have now wasted almost all of them. 

And, as yet, I have said nothing the least bit inspirational about workers’ compensation. After all, that is the real point of the Comp Laude People’s Choice Awards. The industry is full of people and stories that are inspirations. They come to our attention, but unfortunately they too often rush past our consciousness like the scenery outside our coach window as we sit persistently performing our work a day duties. But if we pause and consider, we each know someone that inspires us. It may be their perseverance, their attitude, their dedication, their intellect, their (oh my, 760 words).

Well, the point is you know some story worth telling. Describe a success, lament a failure. But that is 781 (6 minutes flat at 130 per minute). 

So, either make yours this long and deliver it at an average pace, or keep typing a bit and plan on talking faster than average. But, at any rate, write your story and send your 250 word proposal to marketing@WorkCompCentral.com this week. The deadline has been extended just for you. Though you will need more for the speech, your proposal for the selection committee has to be under 250 words, noted above with a parenthetical. Submit no later than September 30, 2016. Packing your brilliance in that volume is not easy, but worth it! Good luck! (891 words if you are counting). 

We are counting on you! Tell the WC world an inspirational story.


Thursday, September 22, 2016

All Mechanical Things Fail

It is a simple truth of life that all mechanical things eventually fail. Despite our belief in them, or sometimes their age, we have to accept that mechanical things will periodically let us down. Everyone has experienced a vehicle breakdown, hard drive crash, or plumbing leak. These things all have commonalities. Certainly, they are frustrating and time consuming. Unfortunately, they seem to happen at the worst possible moments in our life.

As I contemplate this truth, I was reminded of an exchange on a very old television series called MASH. Some will not remember this show, but it is possible a few may. This episode was titled Sometimes you hear the bullet. In it, there is a heartfelt conversation between two of the main characters, a doctor named Pierce and the commanding officer of his army hospital unit, Colonel Blake. 

Pierce expresses frustration and disappointment that a friend has passed away at this hospital. The Colonel, a drafted doctor whose disregard for military protocol is a comedic mainstay of the show, imparts wisdom he gleaned in army "command school." He tells Dr. Pierce that "there are certain rules about a war. And rule number one is young men die. And rule number two is, doctors can't change rule number one."

In this regard, it is important to remember the mechanical things fail, but perhaps it is just as important to remember that none of us can change that fact. Often failures are predictable, as devices provide us warning and symptoms. But failures can also bumble into our present without fanfare or premonition. I struggle with whether I prefer the predictability. Too often the symptoms themselves are troublesome, concerning and distracting. 

When the "all things fail" truth came to my attention as a child, the important lesson impressed upon me was the futility of becoming upset or angry about the failure. Neither upset nor anger can prevent or remedy the failure. We simple humans cannot change the eventuality of mechanical failure. Our only point of control is how we respond to such a failure. It can ruin our day, we can act out, or we can deal with it and move on. 

I am not by any stretch saying that failures do not affect me. When my computer is not working, I will strive to restore function rather than simply resorting to a back-up computer. When my car will not start, I have the hood up, tinkering, and endeavoring to remedy the issue. Certainly, a call for a tow and a trip to the shop for expert assistance would be a more rational response most of the time for me, but still I tinker and try. 

 Computers have become indispensable in the world of litigation. A great many of those computers and components are monitored by software and other computers. Our amazingly complex series of OJCC machines sits 24/7/365 and serves Floridians. They allow access to information on our website, including process and rules, announcements, and information. They allow lawyers, adjusters, mediators and judges to read documents and file documents. They send notifications of those filings out across the Internet, alerting others of filings, actions and potential needs for reaction. The OJCC system and network are simply incredible. But not immune to issues.

Last weekend, we suffered a hardware issue with one of the spectrum of computers in the OJCC system. It was a failure not included in the various software monitors and safeguards. This tiny portion of the hardware array stopped working, and the rest of the system simply did not notice. But a few of our users did. At 1:00 Sunday afternoon, I received an email from one. I am proud of the fact that our users know that a Sunday, nighttime, or holiday email is likely to generate results. It evidences the perceptions our customers have regarding the service this Office provides. 

The email said, in part:
"I have been trying to e-file a Petition for Benefits in this claim for the past hour, but I keep getting the circle of death when I hit the last “Next” button to get to the page to attach the Petition page to file." 

This user, perhaps no different than my tinkering under the vehicle hood, persisted in trying to rectify the failure. The user "even tried filing a completely new OJCC case number for this client (given that defense counsel filed the initial pleading with the wrong last name) and got the same circle of death." Well, persistence is perhaps admirable despite the lack of success. 

Unable to file the intended petition, this user then attempted to file a "Notice with the Court of the problem." This was logical, perhaps the issue was with the "web form" for petitions, and a simpler "PDF upload" filing might work. However, those attempts resulted in "the same circle of death when clicking upload of my attached notice." 

The user concluded with "respectfully requesting that it be fixed immediately and we are requesting assistance with the same." The message then went on to say that this user's "client is in essence being denied access to the Court by my inability to complete these DOAH filing through the E-Portal." 

I sense frustration in the message. It is frustrating when computers, or any devices, do not act as we expect them to. And, I am as certain that everyone is interested in the litigation process functioning as smoothly and efficiently as practical. But, we have to return to our key points for today: (1) all mechanical things fail, (2) we cannot change that truth, and (3) we can control how we react or respond. 

Is a temporary inability to file a petition on a Sunday afternoon a denial of "access to courts?" The answer to this is unequivocally "no." Ignoring that this Office is no more a "court" than it is a "quart," there is no denial of access. See, The Quart of Claims, News and 440 Report, Volume XXXI, No. 1, Winter 2013. In the fabled "old days" of paper could someone accomplish a "filing" on a Sunday afternoon? The answer is no, and that answer is the same for all those filings we currently receive in the middle of the night, as stressed and overworked attorneys, adjusters and mediators are leveraging electronic filing. 

In the "old days," an attorney might create a paper document on a Sunday afternoon. But, the post office would not come pick it up or deliver it. Those niceties were restricted to weekdays. And while that lawyer might hand deliver that Sunday afternoon paper document, she or he would find the courthouse or workers' compensation office closed, inaccessible. At best, one might slide an envelope under a door or through a mail slot, but more likely would never get near the actual OJCC office door on a Sunday. 

That is why the procedural rules contemplate such arrivals that are not during business hours. Rule 69Q6.108(1)(e) says


"Any document, whether filed by electronic or other means, received by the OJCC after 5:00 p.m. shall be deemed filed as of 8:00 a.m. on the next regular business day."

That has been the rule for many years. So, in the old days, if you brought a document to a District Office and slipped it under the door at 7:30 p.m. on a Monday evening, that filing would be made the next morning, Tuesday, at 8:00 a.m. If the building was locked or otherwise inaccessible, then the attorney was inconvenienced. But she or he could return the next morning when the building was again accessible and deliver that document. And whether slipped under the door on a Sunday or a Tuesday night, the filing would be made on that next business day at 8:00. The inaccessibility of the office at night, on holidays, and weekends is no denial of "access to courts."

The electronic filing processes have made attorneys, adjusters, mediators and judges more efficient. Technology has been leveraged to allow us all to accomplish more with less effort. And we enjoy a great many advantages. We have become accustomed to convenience. We are so sold on electronic filing that its use has been statutorily mandated for attorneys. The era of slipping documents under doors is therefore clearly past. 

But, no matter how accustomed we become to the convenience of practicing law and filing documents on Sunday afternoons from the sugary sands of a Florida beach paradise, or distant mountain top, we need to remember that convenience changes only the "how," but not the effect. When some mechanical thing fails we have to remain confident that this will be fixed. The system will return to full function, even if that does not occur until the IT experts come to work the next business day. 

That merely means that on this particular Sunday afternoon, or Monday midnight, we did not receive all the convenience we have come to expect. And while we all hope that e-JCC and other platforms perform for you flawlessly and without fail, I would ask you to remember the three key points for today: (1) all mechanical things fail, (2) we cannot change that truth, and (3) we can control how we react or respond.

So it there is a system failure, please contact the OJCC. Email to Askojcc@doah.state.fl.us. Email me, david.langham@doah.state.fl.us. Believe it or not, that Sunday afternoon or midnight email is likely to be read before you might think, and we will begin the process of trying to help you rectify your situation. I have never experienced an agency with a greater commitment to its customers. But, please remember that despite our acclimation to instant information, instant filing, and instant responses, repair of a failed piece of hardware might just have to wait until normal business hours. 





Tuesday, September 20, 2016

Risk Avoidance and Exemptions

There is a tendency to avoid risk. We do it personally, and we commend it to our children. Slow down on rainy roads, be aware of erratic vehicles, check the oil in your car. Through our own care, we hope to avoid issues and problems. We look out for dangers and risks and seek to minimize their potential impacts on us. 

Insurance companies similarly perceive risk. They are in the risk business. No one can eliminate risk completely. Life is a risky business. Both natural and human events can lead to danger and damages. We have seen the human side all to often recently with dramatic events such as terrorist bombings, and the perhaps more mundane motor vehicle accidents. The natural world is no less threatening, as Hurricane Hermine recently reminded us. Some of these events are perhaps more newsworthy than others. Some are perhaps more likely for us personally. But, they are all risks. 

Insurance at its core is about managing individual risk through spreading the potential effects across a large population. The fact is that someone somewhere will suffer a motor vehicle accident this morning. Not everyone today will have such an event, but someone will. That person will experience some level of property damage, perhaps some degree of injury, likely some delay in the otherwise normal progression of her or his day. Events result in at least inconvenience and in the worst outcomes damage. 

The concept behind insurance is simple enough. A large population that "could" suffer an event each pays a premium for insurance against such an event. I had an insurance professor years ago who explained that insurance is in some ways like gambling. Except in this instance you put your money on the table with every hope and wish that you do not "win" the bet. In other words, in buying insurance one certainly hopes that it never pays off. 

When one buys life insurance, the best outcome is still that you live rather than die. When one buys automobile insurance, you still hope that no accident or injury occurs. When one buys flood insurance, the hope is still that your house does not flood. And the examples continue. 

There is a natural tendency for people to buy insurance only if they perceive a risk of loss. If one lived on the side of a mountain in Colorado, miles from the nearest stream, then the tendency might be to fore go purchasing flood insurance. Flood insurance does not cover damage from falling water (rain) but only for rising water (which may nonetheless be caused by volumes of rain). If you live on the banks of the Mississippi river, that may be more of a concern than if you live on that Colorado mountain.

Likewise, when we perceive ourselves as healthy there may be less inclination to purchase health or life insurance. So, there may be very few Floridians who have insurance for earthquake, while more Californians do. The concept of insurance cannot function if the only people who purchase coverage are the people who will ultimately certainly need it. The concept is only viable when a population of people who might need it purchase it fully hoping that it will never be needed. Many of us buy life insurance in hopes we will live, and as we win that bet each day our premiums are used to pay the survivors of those policy owners who are not so lucky.

Insurance companies are generally adept at predicting risk. They study the potential for having to pay a loss. Before selling wind insurance, a company will study the probability that wind damage will occur in that area. The same is true for sinkholes, earthquakes, flood, and more. Certainly, Floridians could buy earthquake insurance, but the likelihood is it would never be useful. Conversely, coastal Floridians could elect not to buy wind or flood insurance despite the probabilities of hurricanes and the storm surges they bring. 

These are broad concerns, applicable to the insurance decision because of location. Insurance companies make similar decisions based upon classifications. Women are likely to live longer, young men are more likely to be involved in motor vehicle accidents, a particular car may be expensive to repair following a collision, another car may demonstrate a history of less severe personal injury in collisions. It is an industry that measures and predicts risk associated with various aspects of life. Those predictions are based upon available information.

In some forms, people decide whether and how much insurance coverage to purchase. Whether to have life insurance or not is a personal decision. And yet, the purchasing decision is also potentially influenced by others. 

Sometimes, the government steps into the equation and requires certain coverages. Most states require vehicle owners to purchase liability insurance (to pay for damages to others that result from an accident), but may not require the purchase of comprehensive insurance (to pay for damage to the vehicle owner/insurance purchaser's own car). Likewise, government has mandated that every American purchase health insurance coverage. Curiously, I am assured repeatedly that despite that mandate a notable population of Americans remain without such coverage. 

Workers' compensation is similarly required by government in most states. Unlike the automobile example above, however, in many states workers' compensation is required only for certain employers, depending upon sometimes complex variables including the type of business or the number of employees. With the auto it is simple: if you own a car, you have to have liability insurance. Without proof of that purchase, you cannot get a license plate. When stopped while driving, the police can confirm proof of insurance and penalize the driver in the event such proof is elusive. 

It is obviously beneficial to everyone that every car on the roads has some level of insurance. Motor vehicles can cause damages and injury, and there is logic in assuring that some degree of financial responsibility is assured. But is it as logical that some degree of financial responsibility is assured for every employment situation? And thus, there is a fair amount of debate regarding whether "exemptions" from workers' compensation are logical or appropriate. 

For example consider two workers are doing identical work. Their job is to drive a vehicle loaded with cupcakes from a bakery to a reception. Each drives an identical vehicle, loaded with identical products, to an identical destination in the same city. Each delivery vehicle is struck by an identical vehicle resulting in identical injury to the delivery drivers. Each delivery driver misses a month of work recovering from the injury. Driver one is provided medical care and her lost earnings are paid by workers' compensation. Driver two has to pay her own medical bills and receives no immediate compensation for lost wages. 

The difference in their treatment is simple, driver one worked for a large bakery that was required to provide workers' compensation and driver two worked for a small bakery that was "exempt" from the requirement. Over time, each driver may receive payment from other sources, such as the auto insurance on either the delivery vehicle or the one that struck it. But those may be less timely, less extensive, and subject to a variety of debates regarding fault.

We expect there to be automobile insurance on the delivery vehicle (for medical bills). There should be auto insurance on the vehicles that struck them. Despite the mandate for auto liability insurance, however, there are a fair number of vehicle owners that do not maintain that coverage. And, there is the persistent potential that such coverage may not be sufficient, even if it is appropriately owned and maintained. 

Those who do not have insurance are retaining risk. The small bakery owner that is not required to purchase workers' compensation could still do so voluntarily, and avoid risk. The vehicle owner that is required to purchase certain liability coverage could nonetheless elect to purchase more. In those decisions of purchasing insurance, we are each making decisions as to how much risk we should retain, and how much risk we avoid by paying a premium today that limits our exposure later. 

In a world that makes no exception for vehicles or health insurance, some question why there are complex and various distinctions regarding who must purchase workers' compensation insurance. Does this business have the requisite number of employees? What is an employee in this state? Are some of the people that work at this business not employees because they are "officers" or "directors" or "owners?" Are some of the people working at this business not employees because they are "independent contractors?" Are some workers not employees of this business because they work for (are paid by) some other company despite the fact that they perform work at this business? Are some of the people working here not employees because of definitions and exclusions in the law itself?

There may be an incentive for those engaged in some businesses to avoid purchasing workers' compensation insurance. Perhaps this inclination to avoid cost, and thus maximize profit, is natural. Employers who avoid this expense are perhaps advantaged in their competition with other employers. It is perhaps possible for these non-workers' compensation employers to perform work at a lower cost, while maintaining similar profits. The business owner is retaining risk in the same way that an individual may retain risk by not purchasing other forms of insurance. 

When this occurs within the confines of the law, two very similar people like the delivery drivers described may receive very different treatment because of the size of their respective employer. And despite the possible conclusion that this is "not fair," it is an outcome that the law allows in various forms in most states. Recently, there have been determinations that the exclusion of certain workers, in certain contexts, is a denial of constitutional rights. New Mexico has recently concluded that the statutory exclusion of farm laborers is such a denial

But, it is also possible that the distinctive treatment can result from inappropriate manipulation of the law. Where employees are mischaracterized as "contractors," for the purpose of avoiding the requirements of the law, risk is retained. That retained risk affects the employer that is taking the risk knowingly. Unfortunately, the retained risk also affects the employees who only learn of the risk after an injury, when there is no care or benefits. The employee may be profoundly impacted by the absence of workers' compensation coverage. 

There are those who posit that workers' compensation would be better without such exclusions and exceptions. If every working person were required to have workers' compensation coverage, just as every vehicle is required to have liability insurance, they see less opportunity for inappropriate behavior. They see less potential for two very similar workers to receive very different care, treatment and benefits. They argue that through such mandatory coverage, the risk pool (all those paying in, in hopes of winning through suffering no accidents) is larger and overall the costs to all would be minimized. They see little justification for the distinctions in a world in which mandatory coverage for health is seen as an appropriate governmental goal. 

As the debate regarding the future of workers' compensation continues, it will include "exemptions" and "misclassification" and coverage. It will be interesting to see what conclusions policy-makers reach in addressing the implications and effects of these legal definitions. Some will argue that tightening definitions and eliminating exemptions would not solve all the issues. But is the elimination of all issues the test? Or, is the goal to make things better? 



Sunday, September 18, 2016

Unsuccessful Historical Treasure Hunts

I have recently heard from several attorneys. They each have incredible memories, and each was seeking something long lost.

One attorney was looking for a procedural order. He remembered the judge to which the case was assigned and the year that this order was entered (many years ago). He remembered the names of the parties. And he hoped that the Florida Office of Judges of Compensation Claims could help him find a copy of that order.

Another attorney contacted me searching for a merits order. He could not remember the judge, but recalled the district (or "perhaps it was" this other district). He recalled some of his questioning at trial, some of the responses, and the foundation that he had thus constructed for admission of some evidence. The attorney remembered who won the trial, the judge's reasoning, and described how he intended to rely on a similar logic path and that previous decision in a case he was now engaged with.

And, a third attorney remembered an evidentiary ruling rendered in a case. This memory (or record keeping) is truly admirable. He knew the case number, parties, hearing date, and judge. He recited portions of the argument, the case facts, and the judge's ruling. He lamented that the ruling was never reduced to writing, but wanted assistance with obtaining a copy of the hearing recording.

"Fascinating" is the only word I can muster. These individuals have tremendous retention, and I envy their ability to recall so much detail. Perhaps you will too when I tell you that what each item sought was at least 15 years old and one was significantly longer. However, short of assistance from Emmet Brown and Marty McFly, they are all likely out of luck. 

The Fla.R.Pro.Work.Comp. specifically address record retention. That has has not always been the case. Before the DOAH adopted rules, pursuant to statutory mandate, the retention of documents in this agency was controlled by the broader record retention laws. But now, Rule 60Q6.128 Destruction of Obsolete Records is important to know (italics are direct quote). 

(1) All case files that have been closed and inactive for a period of two years are declared to be obsolete and may be destroyed. Designated personnel of the OJCC shall be responsible for the destruction of obsolete records and reports in accordance with applicable statutes and administrative rules. 
(2) Recordings of hearings held before a judge shall be destroyed two years subsequent to the date of the close of the hearing. 
(3) Any forms, documents, reports, duplicate-filed pleadings, or other records filed where this rule chapter specifically provides that filing is not required or requested shall be destroyed upon filing. 

But that does not mean that your documents will be destroyed. It means that they can be. The OJCC began making digital images (PDF) of final orders in 2003. Various offices thereafter began digitizing entire paper files and storing those images. Paper was scanned, shredded, and recycled. The FLOJCC slowly, but surely, went out of the "paper" business. In 2005, we deployed electronic filing, and then spent years encouraging law firms to utilize the system. There were many motivators for that, but one was that it relieved us of the need to process and store paper from attorneys. As the filings increasingly became electronic, the OJCC retained everything filed. Case dockets grew. 

By 2008, electronic filing had gained widespread acceptance. Any paper that was sent to our offices was scanned and uploaded to case dockets. Parties, attorneys, and judges had unprecedented and incomparable access to case filings. OJCC file rooms were emptied, filing cabinets were disposed of, and the digital age dawned. In 2009 electronic filing became mandatory. Within a few years all of the remaining paper was disposed of. 

The good news is obvious. All of the documents now filed are on the case docket. When you look back in 2034 and want to find "that order" in "that case" back in 2016, there is every reason to believe you will be able to find it. With the cost of memory as low as it is, lawyers and insurance companies and even parties may well save their documents forever. What used to require a large room to store now fits conveniently on a flash drive with plenty of room left over. The FLOJCC has no plans to dispose of electronic document images, despite the cited provisions regarding obsolete records that would allow that. So, access in the future should be far simpler. 

But, in this transition to electronic records the FLOJCC did not attempt to docket and save all those documents, pleadings, and procedural orders from old cases. So merits orders and procedural orders from the 1990s and 1980s are simply no longer in our district offices. They were obsolete at the time of the conversion to digital images. Though some were scanned and uploaded, that was not required and did not occur as a rule. Though we would like to be able to provide you copies of an order from 1997, it likely is simply not available from the OJCC. 

Before the age of the Internet, there were paper files regarding workers' compensation cases. They were referred to as the "division file." When there was a hearing scheduled, a judge in that district would send word to Tallahassee and they would send "the division file" to the district for the hearing. Believe it or not, the state contracted for this delivery service with a company called the "Pony Express." No, they drove vans and trucks, but the imagery of antiquity in that name makes it seems much longer ago than it was. 

Those "division" files were imaged in the 1990s. The images were not PDF or computerized, they were actually pictures. The pictures were on a film designed to have many very small pictures on a transparent page. They were called "microfiche." When the Department of Labor and Employment Security was disbanded in 2001, its functions were divided among other agencies. The OJCC became part of DOAH; the Division of Workers' Compensation became part of the Department of Financial Services. 

And, it is possible that the 1990s order you are looking for in a particular case will be on a microfiche record at the Division, even today. The problem is that those microfiche cannot be "searched" for a word the way that a PDF (or folder full of PDF) could be. The way you find something on a microfiche is you look. You look page-by-page for what you seek. And, in time, those old microfiche and the machines that read them will be antiquated and unavailable.  

So, in the event those records still exist, knowing the case number (in those days, the injured workers' social security number) is critical. And, if they can find the case on microfiche, they may ask you to pay for paper copies of the whole file. It is an intensive process to run the fiche through a machine (called a "reader") and look for that needle you want in the haystack they have. Sending you a copy of the whole file is simpler from their standpoint. Then, when you receive a stack of paper from the Division, you will have to sort through it and see if the needle you seek is there. 

The digital recording of hearings began with the OJCC in about 2003 also. It was not welcomed by the judges. I recall when the technical experts talked us into testing the technology, and two digital recorders were installed. For a while, as we tested those, we had both the computer and a cassette recorder running simultaneously. But soon, the efficacy of the digital system was proven, the tapes were discontinued. And, for those hearings since the transition it has been relatively inexpensive and efficient to merely store those recordings indefinitely. 

As time passed, the old cassette tapes each reached a maturation point and they were destroyed. There was a time when each district was storing at least hundreds of tapes, and now there are none. There was simply no requirement, and no reason, for the state to store and maintain all of those old plastic tapes. So, if you are looking for a recording of a hearing that occurred before 2003, it is very unlikely we will still have that. If you are looking for a recording of a hearing since 2003 or 2004, it is likely that we have it, but under the record retention rules it may not be required. 

Not the answer that most would want. But the fact is that is how our history is stored, to the extent that it is still stored. 

There is a lesson to all of this. When microfiche came on the scene, the advantages and convenience were lauded. Storage became so much simpler than storing paper. The modernization was lauded and the convenience was apparent. But, today we find that system quaint and inconvenient by our current standards. What may happen tomorrow that will make our current PDF system (or digital recordings) seem as quaint? 

So, with the cost of memory and the convenience of storage, it makes sense for lawyers themselves to keep copies of orders and motions and memorandums and briefs. There is the chance that one day you may want to reference something again. The same is true of trial or hearing recordings, to which you are also welcome. While our effort is to keep that information available and accessible for you, and while the odds are that our current system will preserve your twenty-first century information for years to come, having in your office on a flashdrive is still likely preferable. 

And now you know. I welcome your calls and enjoy discussing ideas and hopes with you. It is intriguing to attempt to find these older documents that you remember so well. But in each of the three instances described at the outset of this post, I met with unmitigated failure. It is possible to find "ancient" documents, but it is simply unlikely. The OJCC simply no longer has many of those documents sought from the 1990s. So, I am hopeful that knowing these points will make you better informed and encourage you to save your important documents and recordings of today for your future reference.

Thursday, September 15, 2016

Experts and Fakers

A recent blog post caught my attention, titled There's an easy way to tell if you're talking to an expert or a faker. The world of workers' compensation is full of experts. We have experts on medicine, experts on attorney fees, and more.

At conferences and seminars, we also hear from a fair few who are experts on the entirety of workers' compensation. They know what is "wrong" with the system and know just how to "fix" it. Some write articles and blogs. There are those who point fingers and accuse others of inauspicious motivations and financial incentives. Some claim wide-ranging expertise, others profess expertise over some element or segment of workers' compensation, medicine, law, administration, billing, rehabilitation, settlement, etc.

This "faker" post was interesting, for its take on how to spot a faker. The author says that the key to spotting an expert is that experts "don't know that much." They are apparently the people who think a great deal and consider a great many options and alternatives. They formulate and postulate, but they may be the first to admit that a conclusion is possibly flawed or incorrect. They have an academic interest in the subject, and would think about it even if others ceased to be interested. According to this post, the expert is perhaps a thinker more than a concluder? 

The true expert, he says, is "skittish" and "consumed" by the possibilities suggested by all they "have yet to discover." The experts are in pursuit of knowledge, focused on gaining ground from the sea of ignorance that surrounds us all as human beings (a reference to an old Carl Sagan quote remembered from eons ago). In one example, the author recounts an expert's explanation for declining to adopt a question of "100% sure?" Asked why the avoidance of that question, the expert says "I am not 100% sure of anything." Are any of us? The author describes how "experts" will "point to the enormous degree of peer review and replication success in their field, then carefully explain all the questions they have yet to answer." Is uncertainty a valid harbinger of expertise? 

The author concludes that there is some population "of people who are making things up as they go along." Well, it has been said before that "over 85% of all statistics are made up." The author tells us that these "fakers" are confident and convinced. They exude an "absolutely confident tone." As I read that, I was reminded of an old saw that has been seemingly indiscriminately applied across repeated email jokes "often wrong, but never in doubt." Perhaps this best describes the faker? 

This author provides interesting examples from his perspective of scientific writing. Some are dismissive and other not so much. As much as he is inclined to decry certainty, as a sign of a faker, he is nonetheless himself very certain of things. He is dismissive of people who hold different views, based upon his near absolute conclusion that "the overwhelming scientific consensus" supports the result which he has selected. In that regard, one wonders if he is an "expert" or "faker?" Makes me wonder what any of us are?

Perhaps there is danger to our perspective when we, like the author, use terms like "always written," and "never talk that way." When we use absolutes like "always" and "never" are we considering all perspectives, or exhibiting that we have perhaps already reached our conclusions? Are "always" and "never" the purview of the "expert" or the "faker?"

The author finds expertise in less conclusory language. He finds confidence in contemplative reflection as opposed to rapid and certain responses to inquiry. He cites an example of a scientist that he interviewed. When asked a question, this scientist "was silent for sixteen seconds" before responding. I have notices that I am slower to respond as I have gotten older (I am not always contemplative, sometimes just trying to remember your question, or wondering where I put my cell phone down). 

The author assures us, again in absolute terms, that this particular scientist interviewed "is more qualified than almost anyone else on the planet." And this scientist "was silent for sixteen seconds." The author therefore urges support for his conclusions on "experts" and "fakers" because this better-than-anyone scientist nonetheless "wasn't willing to offer even a hint of an opinion he wasn't sure he could back up with empirical data." Instead, this scientist offered "might," "maybe," and "possibly," and then "then qualified the analogy with several caveats."

I found the discussion intriguing. A sure and certain conclusion that we should be skeptical of sure and certain conclusions. Perhaps oxymoronic? In what context does this have any relation to workers' compensation? 

There are a multitude of workers' compensation systems in the world. Each is a product of legislative effort and action. Some would perhaps argue that each is likewise to some extent the product also of the inverse ignorance and inaction. Many might likely agree that each is to some extent the product of compromise, as are most legislative efforts. Compromise could be an accepted part of democracy and government, some feeling it is a great strength and others concluding it the Achilles heal. (How about those caveats and cautions, am I sounding "expert?") 

I am confident that each of our workers' compensation system represents some level of compromise regarding competing interests. They are hybrid systems of benefit delivery and liability protection. Those compromises and contributions have each come from specific perspectives, varying degrees of self-interest, and untold influences of unrelated legislative issues. Observers of each jurisdiction's system may be quick to conclude that their own iteration is "the best" or at least "better than _________." Those observations may be driven to some degree by a given speaker's perspective. They may be driven in part by familiarity (are we not all prone to preferring that which we know well?) 

A hospital executive, doctor or therapist might lament or extol her state's system because of the reimbursement system. Whether impairment or disability is compensated and how might lead to praise or criticism from an employer, labor representative, or vocational provider. Fairness and sufficiency may be so dependent upon perspective that gaining a holistic view of any system may be as elusive to us as description of the elephant once was to six blind men? It may all come down to picking the right "expert" to follow? 
Are there experts in the field of workers' compensation? Certainly there are plenty who would wear that mantle. But labels aside, are there "experts" in the sense described by the author of There's an easy way to tell if you're talking to an expert or a faker? Are there those who are able to stand on empirical data and conclude that one course or the other is "better" or "best," while admitting that there is no perfection? While admitting that there remains a great deal that we simply do not know? 

In Florida, the law has seen a number of panaceas over the years. For every perceived problem, there is a solution. And with every solution seems to come an equal and opposite new problem spawned by the solution of seemingly best intentions. Impairment benefits yielded in the 1970s to "wage loss," which yielded in the 1990s to impairment once again. Each had its proponents and fans, and each had its critics. Could it be that Socialism is no more capable of perfection in all facets than is Capitalism (or any other known system)? 

Those who have been in this industry for decades perceive a roller coaster-like chronology in which "solutions" are born, gain acceptance and prevalence, peak, and then descend into disrepute and criticism. The promises of spine fusion, opioids, wage loss, the SSD permanent total standard, bad faith fees and a multitude of other "solutions" have come, peaked, and faded. And each has been suggested to us, proclaimed, by some population of "experts."

I have heard some of them speak. There is never any inkling that some prior solution was wrong or ill-conceived. The conclusions are usually about how a solution failed for unpredictable reasons, usually associated with some random force, event, or interpretation that simply could not be foreseen or accounted for. 

The Expert or Faker author says that "fakers have opinions on everything." He contends that "no matter how nuanced" a question might be, the "fakers" will "have a sure, ready answer — sometimes about topics you didn't ask about in the first place." The strength of "experts," he contends, is their drive to "poke holes in common ideas." He believes that "experts" therefore "ask better questions." 

And that, in the end, is really the point. I suspect that human nature leads us all to be many things. Singer Meredith Brooks makes a similar point with her compelling lyrics
I'm a bitch, I'm a lover
I'm a child, I'm a mother
I'm a sinner, I'm a saint
I do not feel ashamed
I'm your hell, I'm your dream
I'm nothing in between
You know you wouldn't want it any other way

We are all inconsistent beings. We are all amalgams of thought and experience and perspective. We are all self-contradictions. And, we each bring something a little different to the table and discussion. This is succinctly stated in a 2003 movie The League of Extraordinary Gentlemen. In it, Dorian Gray is shot repeatedly at point-blank range before calmly slaying his assailant. As the assailant slumps to his knees, taking Dorian's shirt with him and thus displaying multiple bullet wounds, healing rapidly, the assailant questions "what are you?" Dorian confidently replies "I'm complicated." And aren't we all?

Meredith and Dorian bring home a point. We are all complicated. We are each comprised of what we have seen, heard, and said. Perhaps each of us will be "experts" at times and "fakers" at others? And as the author of Expert or Faker may have unwittingly illustrated, our evolution to "faker" may occur when we least suspect, when we are the most confident in our conclusion. Perhaps it is an eventuality, but even so it may be one that we can individually and collectively guard against.

Perhaps there is merit in the caution of W. Edwards Deming "in god we trust, all others bring data?" If the "expert" is the one who refers to, and relies upon, volumes of "peer review and replication success," should that be our touchstone? Should our current approach be to consider the original purposes of workers' compensation? And should our discussions be focused on how the empirical data supports we could best serve the employee and employer relationship in furtherance of that purpose?

Let's recognize that socialism is not perfect, though we work in a socialistic system. We can likewise admit that capitalism is not perfect. Perhaps our Achilles heal is "isms" generally. As Ferris Beuller noted "isms in my opinion are not good. A person should not believe in an ism, he should believe in himself." Not a bad bit of advice. I think we can make real progress if we refer to empirical data, remain focused on the real goal, admit that none of us know everything, be wary of vested interests, and believe in ourselves.


Workers' compensation is depending on us. Not to overstate it, but America is depending on us. Employers deserves a functional and appropriate system of predictability. Workers deserve that predictability, functionality, and support of their recovery and return to functionality. Socialism has been selected as the path to these goals. If the various perspectives can be considered, then perhaps we can work to a better compromise while we admit that nothing we do will ever be any more perfect than any of us is individually? Oh, and "save Ferris."




Tuesday, September 13, 2016

Florida Governor Makes Appointments

Governor Rick Scott today announced his appointments for Judges of Compensation Claims. For the last few months, the OJCC has managed with 5 vacancies around the state. Some unexpected retirements at the OJCC created three of those before expected, and two other judges retired last year. 


Ft. Myers
In Ft. Myers. Governor Scott appointed Frank Clark. Mr. Clark is 52 years old and a long-time resident of Florida. He began his legal career in private practice in 1988. He has primarily represented injured workers since that time. Judge Clark earned his Bachelor of Arts from the University of South Florida and his Juris Doctor from the University of Florida.

Panama City 
In Panama City, Governor Scott appointed Jonathan Walker. Mr. Walker is 49 years old. He started his legal career in the State Attorney's Office in Walton County, and then served as Assistant County Attorney. Since 1999 he has practiced workers' compensation defense with the Conroy Simberg firm. Judge Walker earned his bachelor's degree from the University of West Florida and a Masters' in Public Administration at the University of South Alabama. He earned his Juris Doctor from Samford University School of Law. 

Port St. Lucie 
In Port St. Lucie, Governor Scott appointed Keefe Owens. Mr. Owens is 41 years old. He began his legal practice as a Staff Attorney with the Florida Fifth District Court of Appeal in 1998. Since 2002 he has been with Zimmerman, Kiser & Sutcliffe. Though based in Orlando, he has engaged in a statewide practice with emphasis on appellate law. Judge Owens earned his Bachelor of Arts from the Stetson University and his Juris Doctor from the University of Florida College of Law. 

West Palm Beach 
In West Palm Beach, the Governor filled two vacancies. To replace Judge Shelley Punancy, Governor Scott appointed Gregory Johnsen. Mr. Johnsen is 46 years old and long time resident of south Florida. he began his legal career defending workers' compensation cases with Valdez and Villaverde. Since 2006 he has served as a State Mediator in the Miami and Ft. Lauderdale District Offices. Judge Johnsen earned his Bachelor of Arts from Barry University and his Juris Doctor from the University of Miami. 

To replace Judge Basquill in West Palm Beach, Governor Scott appointed Thomas Hedler. Mr. Hedler is 41 years old and a Florida Native. He has practiced in workers' compensation since 2002, primarily representing injured workers. Judge Hedler earned his Bachelor of Arts from Palm Beach Atlantic University and his Juris Doctor from Florida State University College of Law.

Two Judges were pending reappointment. The Governor did not reappoint Charles Hill of Miami or W. James Condry of Orlando. These two positions will be filled as soon as practical. Judge Sojourner (LKL) will be transferring to Orlando as soon as Judge Condry's position is filled (and his position, with its new judge, will be transferred to District Lakeland).