Sunday, September 29, 2013

Congratulations Pennsylvania, and Thanks Again to our Florida IT Team!

Pennsylvania launched an integrated electronic management system last week. The Workers' Compensation Automation and Integration System, or WCAIS is described as the first system of its kind. It integrates data-sharing among three Pennsylvania state agencies, the Bureau of Workers' Compensation with the Workers' Compensation Appeal Board and the Workers' Compensation Office of Adjudication."

We do not have such an integrated program in Florida. In our system there is no integration of data between the Division of Workers' Compensation (in PA, the Bureau) and the OJCC (PA's Office of Adjudication). It is not that this integration of data has not been discussed. In fact the leadership of the Workers' Compensation Section has been driving a conversation lately about precisely this question. A recent post on this blog questioned what benefits might come from a data warehouse that combined information from multiple sources. 

The news from PA is inspiring, as it demonstrates the dedication to an electronic paradigm that will pave the way to the future. Every state should be focusing on the way the internet and its benefits could be leveraged to save system participants time and money. This is an idea whose time came years ago. Pennsylvania's new program will allow:

        Filing electronic petitions
        Filing electronic answers
        Uploading electronic exhibits
        Provide all judicially required filings electronically 
        Notify parties of document filing
        File appeals in an integrated system

The cost is a consideration. According to Workcompcentral.com, ("WCC") reporting on the PA roll out, PA is one of two states mentioned that used Deloitte Consultants for design and implementation of their WCAIS program. Pennsylvania did not comment on the cost of their deployment of the new WCAIS. WCC reports that "online records kept by the state Department of General Services, however, show that the department signed a $45,097,181 contact with Deloitte Consulting for the WCAIS system in October 2010."

WCC also notes that California used Deloitte for their adjudication system. The California program, called Electronic Adjudication Management System, or EAMS, was designed by Deloitte. Their initial plan was built for $36 million, but did not work as anticipated. Functionality was delivered for an additional $25 million (yes, the total is $61 million).  These are incredible figures.

The Florida OJCC system does not integrate with the Florida Division of Workers' Compensation. There is a clear distinction between claims and litigation in Florida. This was the design when the operations of the Florida Department of Labor were divided in the government reorganization of 2001. Regulation and claims went to the Division of Workers' Compensation in the Department of Financial Services. The adjudication process went with the OJCC, nominally a part of the Division of Administrative Hearings. As I learn more about the nation's programs, the more I find that Florida's division of responsibility in this regard is unique. 

It is not clear what benefits for litigators the new WCAIS provides, which are not available in Florida's e-JCC. It appears that our program provides most, if not all, of the benefits delivered by WCAIS, including the electronic appellate processing (though to deliver that, our system integrates and interacts with the State Court System). 

The main difference I can find between WCAIS and e-JCC is cost. Pennsylvania appears to be involved to the tune of $45 million and California to the tune of $61 million. The Florida adjudication system is rapidly approaching the investment of our first million dollars. For what California and Pennsylvania have reportedly invested ($106 million), each of the fifty states could have had two each of the Florida e-JCC and case management processes. 

Perhaps there are additional functions that these programs bring to the table. It is likely I do not understand all of the tools which accompany WCAIS. I am not faulting the development or deployment of these programs. I applaud them. I am, however, pretty proud of the little IT department that could (at DOAH), and all that they have managed with a small fraction of the resources with which others have been blessed. 

Our IT team does not get the spotlight they deserve. The Davis Productivity Awards have given them honorable mentions, but no real recognition. I find this astounding when they have done so much for a fraction of what other states have spent. Our IT team is Susan Brown, Jeff Russell, Wayne Reynolds, Kevin Wallace, Alex Harris, and Scott Rioux. 

The actual e-JCC and other programming has been provided by Russ Vaughn and Rich Vaughn. In the midst of their duties regarding our hardware, connectivity, networking, and more, they have driven the development and deployment of the OJCC case management program, i-JCC, e-JCC, our robust website presence, integrated scheduling for our one-of-a-kind videoteleconfernce capability, and so much more. They deserve the credit. They have accomplished with pennies the same miracles for which others have required millions. 

Congratulations Pennsylvania! The benefits of full-scale electronic filing will be immediate and appreciated. I predict that your commitment to this paradigm will bring great efficiency and benefits to litigators, employers and employees alike. The world is rapidly changing around us; the commitment of leaders like PA will be noted and appreciated as other states join the electronic paradigm and provide these benefits to their customers. 


Tuesday, September 24, 2013

Westphal is Decided

The First District Court yesterday handed down it's En Banc decision in Westphal v. St. Petersburg. This opinion has been much anticipated, after the Court decided in February 2013 that part of section 440.15, Florida Statutes was unconstitutional. Since that time, there has been conjecture and discussion throughout Florida, and much of the larger workers’ compensation community across the country.

This Blog is reporting the Court’s decision, and some of the history around it. At the conclusion, some questions are raised. Neither the author nor the OJCC has or will take any position on those questions in this kind of forum. They are presented as discussion only, and for the consideration of the workers’ compensation community.

I say "was" unconstitutional because the Court's decision yesterday did not conclude that the statute is unconstitutional. There will be those who will find curiosity in that distinction. The three judge panel who decided Westphal last February was unanimous in their conclusion that the statute was unconstitutional. The En Banc decision yesterday included a majority opinion by Judge Padovano, a concurrence by Judge Benton, a concurrence by Judge Wolf, a concurrence in the outcome with dissent by Judge Thomas and a dissent by Judge Wetherell. None of the judges concluded that the provisions of section 440.15, Florida Statutes are unconstitutional.

The decision provides interesting reading, in the majority opinion and the concurring and dissenting opinions. The history of yesterday's En Banc decision will be written about a great deal in days, weeks, and months to come. There are many perspectives on the underlying facts and the Court's conclusions. Some history is related today. 

There used to be longer potential periods of entitlement to indemnity benefits. In 1993 Florida Statute 440.15 was amended, as were many other sections of the law. These have been referred to as "sweeping changes." The 440.15 change restricted temporary indemnity to 104 weeks. Anytime there is a limitation imposed, there will be cases that do not fit neatly within such limitation. This was no exception, and by 1998 the issue of the 104 week limitation reached the First District Court.

The initial analysis was in City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998). There, Judge Benton wrote for the Court. The conclusion was that an injured worker might reach the end of that 104 week period and still not have reached maximum medical improvement ("MMI"). The Court concluded that achievement of MMI was a prerequisite for an award of permanent indemnity benefits, such as permanent total disability ("PTD"). Accepting that some injured workers might face a "gap" in indemnity benefits at 104 weeks, the Oswald Court created a solution, an "exception" which it intended to fix the perceived flaw. 

The Oswald Court concluded that an injured could be awarded PTD after 104 weeks of temporary benefits if the worker could show “total disability upon cessation of temporary benefits.” and that such disability “will be existing after date of maximum medical improvement.” Judge Padovano wrote a concurring opinion in Oswald

Some years later, Judge Rosen heard a claim in Jacksonville. He concluded that an injured worker, Mr. Hadley, had not proven entitlement to PTD under the Oswald exception. He nonetheless concluded that the Legislature could not have intended that there be a gap between temporary and permanent benefits. He therefore awarded Mr. Hadley PTD benefits. The Court reviewed that decision in Matrix Employee Leasing, Inc. v. Hadley, 78 So.3d 621 (Fla. 1st DCA 2011). This was an En Banc decision, in which all judges of the First District Court participated. The Hadley Court concluded that Judge Rosen was in error, and reversed his award. The Hadley decision essentially upheld the "narrow exception" of Oswald. The Hadley decision was written by Judge Wetherell, and included a dissenting opinion written by Judge Padovano.

A few years pass, and Judge Rosen transferred to Pinnellas County when Judge Hafner retired. He then presided over the trial in Westphal v. City of St. Petersburg. He concluded that Mr. Westphal faced a gap in indemnity benefits, similarly to others in Oswald and Hadley (and other cases that had been decided and or compromised on those authorities). However, Judge Rosen followed the Hadley decision. The Hadley opinion succinctly stated that trial judges are obligated to follow the rulings of the appellate courts: “JCCs are bound by the decisions of this court interpreting the Workers’ Compensation Law unless and until the decision is overruled by the Florida Supreme Court or this court recedes from the decision en banc.” Essentially, JCCs must follow the rulings of the appellate court.

The First District reviewed Judge Rosen’s denial of PTD in Westphal. In February 2013, a three judge panel found the indemnity statute, limiting to 104 weeks, unconstitutional. That decision was written by Judge Thomas;  Judge Davis and Judge Padovano agreed with the decision. That panel essentially concluded that the “gap” between temporary and permanent indemnity, in the situation of an injured worker who reaches 104 weeks of benefits and has not reached MMI, was unconstitutional “as applied” to that injured worker, and others “similarly situated.”

The City of St. Petersburg sought review by the Court En Banc, which was granted. Various other non-parties participated in the En Banc debate by filing “friend of the court” or “amicus curie” briefs advocating various outcomes. Much of the state watched, waiting for the oral argument En Banc. That hearings was, however, never to come. The Court, instead, issued its En Banc decision on September 23, 2013 without further oral argument. That decision yesterday receded from the Court’s decisions in Oswald and Hadley. That decision yesterday receded from the panel decision that held the 104 week limitation unconstitutional. That decision yesterday concluded that the expiration of 104 weeks of temporary benefits results in an injured worker essentially achieving “statutory MMI;” that is, the law results in MMI despite medical conclusions that might be contrary to, or at least unsupportive of an MMI determination.

There will be much discussion of statutory MMI in coming days, weeks, and months. There are those who will express criticism of this label. There are those in the medical community who would tell us that MMI is not a medical term, however. They would tell us that any such conclusion is a legal conclusion and a legal term and is needed for those in the legal profession. They might tell us that such a conclusion as MMI has little or no relevance to the purely medical context of providing care and treatment to people. As such, if it is merely a legal term, is statutory MMI really different than a medical opinion of MMI, a legal term upon which the judicial and legislative systems place significance? There is discussion of this in the Westphal opinions.

There will be much discussion to come on the concept of stare decisis. This is a legal maxim which holds that courts should follow prior court decisions. It is a venerated rule that is at the very root of American jurisprudence. Every lawyer is trained to respect and even exalt it. It is at the root of predictability and consistency in the law. When a court recedes from precedent like Oswald and Hadley, the predictability of the law is affected. Since 1998, attorneys have advised their clients based upon the Court’s holding in Oswald. Clients have made decisions, important decisions, based on the law as held by the Court. Those people now know that their decisions were based on conclusions which the Court now rejects. There is interesting discussion of this concept in the Westphal opinion delivered yesterday.

There will be much discussion to come on whether JCCs “are bound” by the rulings of the appellate court. Will JCCs be persuaded that decisional authority with which they are presented are flawed? Will attorneys persuade JCCs that those authorities, in some instant context, are no more controlling than Oswald or Hadley (an En Banc decision of the controlling court, whose life was but two years before ended by the En Banc decision yesterday)? In other words, will attorneys convince JCCs not to follow precedent, on the premise that in a particular case that precedent is not controlling or can be distinguished or should be changed?


There will be much discussion to come. The foregoing are merely questions which came to my mind as Westphal roiled through my thoughts over the last 18 hours. There may be other questions. There is much in the Westphal opinion that is worthy of consideration, and it will be discussed for weeks to come.


Monday, September 23, 2013

Can we be Addicted to our Electronics?

The world is changing rapidly around us. The information age of the Twenty-First Century has resulted in great advances, which have worked to our advantage. Electronic filing and service, computer aided research, e-mail, smart phones, texting, social media, blogs . . .. There are a myriad of digital opportunities open to us all every day. Can it be too much? I recently learned that the first "hospital based recovery program in the United States" is being offered in Pennsylvania. This is also the "first ever Digital Device Treatment Program in the nation." Medical treatment to assist with putting these devices down. 

This program is being offered at the Bradford Regional Medical Center in Bradford, PA. It is designed for adults not minors. Any parent might tell you that signs of "digital device" addiction in teenagers today is axiomatic. We have all seen those photos of four young people around a restaurant table, not conversing, but each and every one texting on their smart phones. Some evidence supports that young people today are spending as much time playing video games as they spend watching television. Boys apparently spend more time on them than girls. 

The Bradford Center program is designed for those who believe they are using the internet or electronic devices excessively. The program defines addiction as "any online-related, compulsive behavior which interferes with normal living and causes severe stress on family, friends, loved ones, and one’s work environment." Patients will have attempted to limit or eliminate their use, and will have been unsuccessful. Having failed to confine or refine their digital connections, patients are voluntarily admitted for ten days hospitalization focused on diminishing the influence of technology on his or her life. 

The promotional material proposes the following criteria by which we might determine our need for such a program

Meeting five of the following symptoms were considered necessary to be diagnosed:
  • Do you feel preoccupied with the Internet? (Think about previous online activity or anticipate next online session)
  • Do you feel the need to use the Internet with increasing amounts of time in order to achieve satisfaction?
  • Have you repeatedly made unsuccessful efforts to control, cut back, or stop Internet use?
  • Do you feel restless, moody, depressed, or irritable when attempting to cut down or stop Internet use?
  • Do you stay online longer than originally intended?
  • Have you jeopardized or risked the loss of significant relationship, job, educational or career opportunity because of the Internet?
  • Have you lied to family members, therapist, or others to conceal the extent of involvement with the Internet?
  • Do you use the Internet as a way of escaping from problems or of relieving a dysphoric mood (e.g., feelings of helplessness, guilt, anxiety, depression)?

Other Symptoms Include:

  • Failed attempts to control behavior
  • Heightened sense of euphoria while involved in computer and internet activities
  • Neglecting friends and family
  • Neglecting sleep to stay online
  • Being dishonest with others
  • Feeling guilty, ashamed, anxious, or depressed as a result of online behavior
  • Physical changes such as weight gain or loss, backaches, headaches, carpal tunnel syndrome
  • Withdrawing from other pleasurable activities
Digital devices can be a great benefit to us, and allow us to be more productive. However, it now appears that there is an argument that we can become too dependent upon digital equipment and the information superhighway to which they provide access. While I am not sure that I know anyone whose affinity for the internet has risen to the levels described by the Pennsylvania plan, it is perhaps appropriate to ask these questions of ourselves. Possibly one might avert attention from these devices before their use reaches the treatment stage?

Wednesday, September 18, 2013

A Review of History

We all want to be different or unique. When he still did stand-up, comedian Jerry Seinfeld made many observations about the similarities he found in observing people around him. He suggested that despite our human desire to be different or unique, we all have many similarities with each other.

I was privileged last week to deliver a lecture on the history of workers' compensation in this country. Having lived workers' compensation for more years than I prepared to admit, I was astounded by what I learned researching the history of workers' compensation. With all that I thought I knew, I learned a great deal from preparing to deliver that lecture. I also learned a great deal from the questions posed by the audience after that lecture. Workers' compensation (WC) is genuinely and thoroughly intriguing. Despite common beginnings through similar state legislation, it is today full of differences and distinctions.

The whole WC concept came from a convergence of various perspectives and interests. There is a tendency sometimes to think that changes around us, particularly legislative changes, come from some person or group's unique perception. While that may be true sometimes, it is also possible or even probable that change will come not because of a singular interest, but because the change or solution answers the interests of more than one person or group. I reflected on that in studying the "great trade off."

Did you know that there were multiple efforts in the 1800s to preclude lawsuits against employers in this country? Georgia and 25 other states passed Employer Liability Acts between 1855 and 1970. These were not compromises with labor. These were statutes intended to deal with liability and what people perceived as congested court systems across the country. The advent of contingency fees had led to greater involvement of attorneys in personal injury litigation in the mid 19th Century. People perceived congested courts as a problem. It is interesting that today we hear similar complaints about the congestion of our courts. Perhaps some things do not change. Like new highways that become as congested as their predecessors, perhaps our struggle to build and staff enough courts will be a constant in our society as the population continues to grow and our relationships continue to become more complex?

Did you know that early attempts at workers' compensation in North America failed? Courts were not convinced that liability without fault was consistent with due process. Early attempts by Maryland, New York and others were struck down as unconstitutional, in large part on this argument. Later efforts were successful, constitutional, because of the "great trade off," or "great compromise," where there were benefits and burdens for both sides of the equation that defined employee and employer relationships and which is workers' compensation. 

In 1911, the first successful state acts were passed. The Federal Government had led the way with the Federal Employer's Liability Act (FELA). The first WC states were California, Illinois, Kansas, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Washington, and Wisconsin. Not exactly a geographic cluster. By 1915, 32 states had enacted workers' compensation statutes. Thirty-two states in four years? By the end of the next decade, 1929, only five of the United States did not have workers' compensation programs. Over the next decade, by 1939, only Mississippi remained without a statute. Mississippi completed the unanimity in 1948. In all an intriguing process of the "great trade off" spreading across various jurisdictions. So much in common.

I was also privileged to share the stage for a discussion of the question of compensability determinations. This discussion led to reiteration of the many varieties which now exist across this continent. Certainly, the compensability question is diverse in various jurisdictions. We have a variety of tests and definitions and presumptions. After the presentation, I had an interesting conversation about the similar diversity in benefit volumes and duration across the various systems. We have many similarities across the continent, and many distinctions both subtle and not.

I was struck with the conclusion that we do have much in common among our state statutes, and some interesting differences. The existence of workers' compensation is unanimous, with each state participating and with multiple Federal programs now in place. The commonalities are striking. There is employer immunity, there is exclusive remedy, there is administrative process. I was likewise struck by the conclusion that these various systems are so very different in terms of the benefits delivered and the processes used for determination of those entitlements.

At the end of the day, it is fascinating that the process begun about 100 years ago has spread as uniformly as it has. It is equally as fascinating that there are so many distinctions and differences among the many programs. As a student of the law, I am privileged to be able to study this thing we call workers' compensation in its similarities and differences. Later this month the International Association of Industrial Accident Boards and Commissions, the IAIABC will present its 99th annual convention in San Diego. This organization of workers' compensation leaders and regulators began shortly after workers' compensation began in North America in 1911. They are a group of those privileged to be able to study this interesting and compelling area of the law. 

I hope that this look back is as interesting to you as it is to me. It is inspiring to me that what we do is a part of something that exists in various forms across an entire continent. I hope that it is as inspiring to you, that this system exists for employers and employees. I have yet to meet anyone that feels their respective state's system is perfect. I have met so many who believe that they can make their state's system better. With so many intelligent, talented people out there focused on workers' compensation, I find it likely that they will make it better, continuously. I am privileged to have known many of them on both the employer and employee side of the argument, and I am inspired by their spirit, dedication, and focus on making it better.

Monday, September 16, 2013

The New Child Support Information Paradigm

The new OJCC child support process launched on September first. So far there have been a few questions about how the process works. The new process should save time and money for all involved. It should also provide a greater access to information than we have ever experienced. 

We have progressed from a process requiring two or more requests for arrearage information, faxed in by counsel, and faxed back out only to the requesting counsel. The new process now allows the request to be submitted by e-filing, with no expense. The new process affords response to all counsel involved in the case, by e-service, with no expense. The long distance call by facsimile has been eliminated from both ends of the process.

A lawyer in a case submits a request for arrearage information. Staff in one of our offices will look up that injured worker in a database we built, which contains all of the Department of Revenue arrearage information. You used to request that data from DOR; since December 2012 you have been requesting it from the OJCC.

Our staff will also now look up that injured worker in the Circuit and County Court database. This will provide results from all 67 of the Florida counties. That's right, all of them. In the past, the attorney asked for this information from up to two counties, the one in which the injured worker lived when the accident occurred, and the one in which the injured worker lived when the settlement was effectuated. 

The scope of information searched is therefore broader under this new process. 

When we respond to provide you with this information, it is through the e-JCC e-service program. The response is on the OJCC case docket. The response is served electronically on all the attorneys in the case. A single e-filed request from any party generates a response with more information and it is served on all the attorneys involved in the case. 

The old process was more expensive for the attorneys (each counsel that wanted the information faxed their individual request to the DOR and at least one clerk). The old process was inefficient because responses from the clerks and DOR only came back to the requestor, so each attorney filed their own requests. The old process was inefficient for the DOR and the clerks, with them each individually looking up the same injured worker and with each of them responding to the individual requestors. The old process cost the state money faxing these multiple responses to these multiple requestors. 

The new process has brought us a long way and provided efficiencies and savings for all.  

Last spring, we had a couple of attorneys present a CLE for our judges and mediators. Glen Weiland and Karen Gilmartin collected perceptions and ideas from many attorneys, and presented the "View from the other Side of the Bench." One of the complaints/suggestions they brought was that this blog is not accepted by all as an information source. They tell me that some business offices have restrictions on internet use that does not allow access to this (and perhaps to any) blog. They suggested a "frequently asked questions" alternative. We have followed-through on this suggestion. There is an "FAQ" link regarding child support on the www.fljcc.org site now.  

Visit it here http://www.fljcc.org/JCC/files/ChildSupportFAQ.pdf, or access it from the front page of the website. 

A similar FAQ section on carriers and petition filing is in the process and coming soon. 

I appreciate the suggestion(s) and am proud of the progress we are making. The child support process innovation helps everyone in the system. Tell us how we can innovate further to serve you. 

Monday, September 9, 2013

If We Build it Will They Come?

In the Field of Dreams, a voice kept telling Kevin Costner that "if you build it, they will come." The "voices" asked much of Costner's character, leading him on a journey of faith, with more than a few surprises along the way. This is not different in some ways from the odyssey that has been electronic filing, electronic service and the long, slow move toward the paperless judge's office. The latter is noted to be slow and long as it is still in process. There are some judges who print nothing, some who print everything, and then many on the continuum in between who print some and review other documents on the computer monitor. 

The Florida OJCC is focused on leveraging technology for the benefit of the state and for our customers. Technology can be a great benefit in making the practice more efficient and thereby make attorneys and others more effective in the practice. What is the best next step in terms of technology? One suggestion recently raised is focused on making discovery an easier and less expensive proposition for everyone involved in a workers' compensation case. 

The suggestion is that we would create a data warehouse for use by parties in each workers' compensation case. The process/system would be modeled on the Social Security system. Readers who work in that system are already familiar with their process. There, inbound medical records and government documents are saved into an organization of folders on the Internet. The applicant for benefits (in our case the injured worker) is given access to their data folder, and all of the sub-folders within it. This gives the applicant access to their own medical records, their own document history, etc. Instead of telephone calls to determine status, they might answer their own questions by referring to these documents. The applicant can grant to their representative (attorney) access to such documents also.

Building such a warehouse would require significant effort, albeit not the kind of effort and time required by e-filing, e-service and other projects we have undertaken. The real question, though, is: if we build it will they come? It is an easy answer if there was a reasonable expectation of finding data in the warehouse. In other words, people are more apt to visit if they are confident that they will find their answers there. Who has the data for the warehouse? Most would be in the hands of the insurance carrier. Some the applicant or injured worker may have.

In order for a doctor to be paid for services, she/he will submit a bill to the carrier accompanied by the office note describing the patient, the diagnosis, the work restrictions, etc. Many times, the doctor will also submit the DWC-25 form. In the course of administering a claim, a carrier will submit a volume of data to the state's regulators at the Division of Workers' Compensation. In the paper age, these data reports were made on a variety of forms. They reflected change of work status, change of indemnity status, payments made for various services, and more. In the digital age, the same data is reported, but the familiar forms and formats are no longer the norm. The data is submitted similarly, but without the "form."

The Division is interested in the idea of a data warehouse. The availability of some measure of data in each claim might benefit the Division in terms of less requests for data. There are, of course, regulatory privacy concerns that must be accommodated. 

The big unanswered question is whether the insurance industry would be interested in such a data warehouse. When I say interested, we are returning to the main question, would the insurance industry "come" if we built it? Would carriers submit medical reports and DWC-25s to such a warehouse? Perhaps their adjusting/case management programs could be modified to automatically submit such data/forms to this data warehouse when it/they are loaded into the carrier's proprietary data storage. In that setting, there would be no "cost" in time to participating in the data warehouse, but changing their programs to do this would represent a cost. If the documents had to be manually loaded to the data warehouse, then this would more likely represent a significant "cost" to the carriers.

The benefit would be notable, if the warehouse resulted in less need for formal discovery. Proponents envision a decrease in discovery requests in workers' compensation litigation if each side could easily access the medical records in a case by simply logging into the data warehouse. Questions could be answered, work status updated, payments verified, by anyone with access to the data warehouse. If the warehouse were well-stocked (consistently updated and used), then its existence might well save everyone involved a great deal of time and money. 

Thus, we return to the original premise. Everyone would likely conclude that such a system/process could be a great benefit to the participants in the Florida workers' compensation marketplace. Could be, is the key.  Kevin Costner's character in Field of Dreams plowed under his corn to build a baseball field in the middle of Iowa. Since they came after he built it, not necessarily a bad investment. But what if they had not come? What if we build this data warehouse and they, the carriers with the data, do not come?

What do you think of the idea? email me at david.langham@doah.state.fl.us

Wednesday, September 4, 2013

Attorney William Gregory's Idea to Amend Attorney Fee Statute.

I often ask people for their opinions about the Florida workers' compensation system. Sometimes, I hear unsolicited from people who have opinions and ideas. The following is an example of this. 

William Gregory, an attorney with considerable experience in Florida workers' compensation, has an idea for amending the attorney fee statute. The idea is his. It's expression here is at his request. The publication of the idea on this blog is neither an endorsement or indictment of the idea. Neither I nor the OJCC take any position on such matters. It is presented here merely for information of the public, and any comments you might wish to make. From Mr. Gregory (in blue):

I want to propose a change to F.S., Section 440.34 (1) that I believe will benefit everyone involved in Florida’s Workers’ Compensation Law- no matter which side they are on. I am (hopeful) a majority agreement will result in a petition to our Legislature to make this change.

I have been practicing quite a while and over the years I have handled cases in virtually every jurisdiction and ever since the amendments to our law in October of 2003, it has been my experience that we can no longer settle cases cheaply, as it now typically costs approximately a minimum of $5,000.00 to settle even the low value cases, i.e. “nuisance value cases,” of which there are many examples – with the most common example being where the injury in dispute is minor, but the cost of litigating it is great. 

I am sure all of us can remember a case that should have been settled cheaply, but under the present statutory scheme could not be. We frequently see Employers who swear that they have never employed the Claimant or even heard his name before, but that allegedly wrongfully accused Employer, who desperately wants to get out of this case cheaply, must nevertheless hire an attorney and spend thousands of dollars just to exculpate himself from the pending litigation. 

Claimants run the risk of getting stuck paying large cost awards if they having to litigate a simple case involving basic issues (compensability, AWW, TPD/TTD, etc.) that otherwise should have been settled for a reasonable amount. Many times, we, as experienced attorneys (both Claimant’s Attorneys and Defense Attorneys alike), know that it will be in our client’s best interest to settle the case as quickly and as cheaply as possible, rather than proceed to Court. We used to be able to settle these types of cases for much less than $5,000.00, but it appears to me that it is the statutory scheme mandating an attorney fee of no more than 20% of the first $5,000.00 in benefits obtained, which we all know results in an attorney fee of merely $1,000.00, that is the cause of this increase in the amount of minimal settlements. 

Clearly, higher minimal settlement amounts hurt the industry. After the Claimant’s Attorney spends his/her valuable time meeting with the Claimant, signing the Claimant up as a client, filing their Notice Of Appearance, filing their Request To Produce, filing their Petition For Benefits, setting up the new file, etc., that Attorney has professional time invested in the file and will not settle the case unless that Attorney is at least minimally compensated for the time already expended. 

Furthermore, both Attorneys involved know that it will cost the Insured Employer or Uninsured Employer $5,000.00 or more to defend even a very questionable claim. However, the present attorney fee statute virtually forces the minimal settlement amount to be $5,000.00 because that is the minimal amount of money necessary to minimally compensate the Claimant’s Attorney for the time they have expended on this matter. 

Typically, such claims are filed and Defense Counsel gets involved and initiates discovery – usually beginning with the Claimant’s deposition and then proceeding to depose any witnesses to the alleged accident, followed by the depositions of any Health care Providers involved and all of this costs quite a bit of money and as these cases proceed to trial, both the Claimant’s Attorney and the Defense Attorney are continually spending more and more time and resources on the case, which further increases the costs of the case and makes it harder to settle for a reasonable amount, but by that time we have the benefit of hindsight and realize that the amount of money spent on litigating the case would have been better spent settling the case and ending it once and for all. 

Wouldn’t it be great if the law enabled and encouraged attorneys to settle cases cheaply? I propose that it would be in the best interest of both Claimant’s and Employers if F.S., Section 440.34 (1) allowed attorney fees up to 50% of the first $5,000.00 - instead of just 20% - because it would enable the lesser value cases to be settled for less than $5,000.00. 

I believe that there are numerous reasons why such a change would benefit both parties to these cases. It would enable these types of claims to be settled for $2,000.00 or $3,000.00 instead of the $5,000.00 for which they are typically settled now. It would enable the Claimant’s Attorney to be paid a reasonable attorney fee even with a smaller settlement, which would encourage settling cases for lesser amounts and less costly settlements would obviously also benefit the Employer, who would pay less to settle such cases. Such a change in the law would provide both the Claimant’s Attorney and the Employer’s Attorney with a way to help their respective clients by providing a quick and cheap way to get out of a case that is becoming too costly to stay involved until the time of trial. 

Such a change in the law will cause the attorneys to pause and consider a less costly settlement at the beginning of such cases and it will also benefit the overly congested Court System by reducing the number of cases proceeding to trial. Since all Claimant paid attorney fees must be approved by a Judge, this minor change would not result in lesser protections for the Claimants. I am of the opinion that the change that I am proposing herein would benefit Florida’s Workers’ Compensation System as a whole.

Judge, will you help me get this discussion going statewide by disseminating my idea of changing F.S., Section 440.34 (1) to all of the attorneys practicing Workers’ Compensation Law in Florida? What do you think of my proposal? I appreciate you taking the time to hear my thoughts on this matter and I would sincerely appreciate hearing back from you, as your busy schedule may allow. Thank You!

Let Mr. Gregory know what you think. Email him at wgregory@williamgregorylaw.com

Do you have an idea upon which you would like feedback or comment? Email your idea for publication to me at david.langham@doah.state.fl.us.

Monday, September 2, 2013

Telephonic Mediation and Hearings

Ferris Bueler, movie character, explains his carpe diem attitude with "life moves pretty fast. If you don't stop and look around once in a while, you could miss it." Life does move fast sometimes. A couple of experiences recently reminded me how time moves around us. One, I found myself on the plane home from the National Association of Workers' Compensation Judiciary ("NAWCJ") College in Orlando. Sitting, waiting for takeoff, I reflected on the week and wondered at how fast it had passed. Too fast. During the College, held at the same time and venue as the Workers' Compensation Educational Conference, I spoke with an attorney who had concerns about a friend. 

The attorney described that this friend feels trapped in cage that the attorney has her/himself constructed. The cage is built of things and possessions and commitments that were dreamed of and amassed to a great extent when the economy was better. Unfortunately, when we have economic downturns, the commitments like mortgage payments, office rent, and similar are still due despite the fact that sometimes revenue decreases. The friend of this attorney has attempted to deal with decreasing revenue in this economic environment by  slowly increased the number of hours worked each week. This plan has reached its ultimate, predictable, outcome as the attorney has run out of days and hours to pour into work. 

S/he is now reportedly working seven days a week and more than ten hours per day, with office time often closer to twelve hours many days in a given week. I have touched on this before from various perspectives, but there is only so much time in the day, only so many days in the week, and only so much focus you can bring to a given project, case, or effort. 

Coincidentally, one of the NAWCJ College speakers this year was an appellate judge who spoke on effective judicial writing. She described a perception or conclusion that there is no such thing as "multi-tasking." She says that our minds are only capable of doing one thing at a time, and that when we think we are "multi-tasking" we are actually still handling one mental task at a time, to the detriment of whatever task we think we are "also" accomplishing.  In effect, she says that we are switching back and forth between the two tasks and one or both is suffering.

The point? There is an increasing body of evidence supporting the conclusion that driving a car requires all of our attention. Despite this, the results of polling support that we do many things while we drive. People eat and drink, send and read texts, use our GPS, adjust our hair or makeup, surf the Internet, and make or receive phone calls. There is data to suggest that our use of electronic devices is perhaps increasing, even with the publicity of its perils.

Leveraging technology to make yourself more productive and therefore profitable is likely inevitable. The word-processor, laser printer, cell phone, the list goes on. Technology can allow us to be effective and more efficient. Appearing by telephone for a motion hearing or status conference can save a great deal of time not spent on travel, parking place hunting, and waiting. Telephonic appearance at mediation can save time on these same tasks.

However, using technology such as the cell phone, while engaged in another activity, particularly one as dangerous as driving, is likely not smart. This is true when the phone call is a simple conversation, but becomes much more so when the phone call requires all of your mental acuity, creativity, and focus. That is, it is much more so when that phone call is to attend a proceeding which requires our full attention such as a hearing or a mediation. 

I am not suggesting that you cannot attend such a proceeding from a cell phone. Technology has improved dramatically. Dropped calls are far less common today than a decade ago. But pull the car off the road; find a safe parking place (it's Florida, look for a safe and shady spot). 

Use the technology appropriately, and safely. I recognize the temptation to keep moving, on to the next commitment, while attending with the cell phone. The economic needs and commitments may argue against our stopping. However, there is a sound argument that you are not focused on both the call and the driving when you do so. Which is getting your true attention at the moment? If you are truly doing a service to your client (focused on the call) you may not be appropriately focused on the road (your own safety), and visa versa. 

This economy is perhaps going to drive us to work harder and even longer. However, if we are not safe about the manner, if we don't remain focused on taking some personal time periodically, we are not doing a service to ourselves.  We all owe it to ourselves to look out for our own safety, and you owe it to your clients. They need you for tomorrow also, not just today.