Monday, October 7, 2013

Consolidate when you can

There are a multitude of cases in the OJCC system that provide a suggestion that consolidation may be appropriate. It is not uncommon for an injured worker to suffer more than one accident during a particular time period. The OJCC database system tries to accommodate situations that obviously implicate consolidation. However, the database cannot identify all of the situations, and human perception, yours, is therefore required.

An injured worker may have doubts as to who is responsible for her/his injuries. There are “statutory” employers, general contractors, borrowed servants, and other legal theories that can make that determination difficult for the best of attorneys. The judge of Compensation Claims database program will only allow assignment of one case number for any particular injured worker for any single date of accident. The system does, however, allow an injured worker to insert more than one employer and/or carrier in a petition for that one date of accident. This kind of consolidation is obvious.

Sometimes, the system does not recognize that it is dealing with the same injured worker. This happens when non-identical data is input during the process of a petition (PFB) or a request for assignment of case number (RACN). In those processes, the injured worker’s social security number (SSN) or division assigned case number (DAN) must be identical. Typically, problems arise when a typographical error occurs in one of these figures. The result is the assignment of two case numbers. There have been instances of this where both attorneys complete an RACN because the case has settled. One attorney uses the SSN and one uses the DAN, and two cases are created. An easy way to avoid this outcome is for counsel to discuss and agree which of them will apply for the OJCC case number.

The consolidation question comes up more often with an injured worker’s accidents that occurred on separate dates, and many times even in separate parts of the state. Cases are assigned to a judge based upon the county of accident. Therefore, one injured worker with two accidents might end up with proceedings pending before two (or more) different judges. Despite the various counties and judges, the employer and carrier may be identical in both cases. When this occurs, the parties may wish to consolidate the two (or more) cases.

There have been instances in which an injured worker had more than two accidents, in more than two counties. Think of all the employment out there that involves travel around the state, and the attendant potential for injury in the various locations to which an employee is sent. There is a tendency to think that consolidation becomes more complex in these situations. Some counsel begin the process by filing various motions in various Districts for change of venue in each of those cases. They seek to move all of the cases into one district, in which they intend to eventually be able to seek consolidation. This is burdensome and unnecessary.

Whether an injured worker has two cases or ten, consolidation does not require a unity of venue. There is also no requirement that all of the pending cases are assigned to the same Judge. Consolidation is accomplished, pursuant to Rule 60Q6.106, by filing a motion with the Judge assigned to “the lowest-numbered case” of those which are to be consolidated. Whether to consolidate or not is a decision up to the judge assigned to this lowest-numbered case. If that judge enters an order granting consolidation of that lowest-numbered case with any other(s), all consolidated cases will become the responsibility of that judge. Those pending in other Districts will become part of that Judge’s case, and thus venue change occurs as a natural consequence to consolidation.

A Judge assigned to any of the higher-numbered cases cannot consider or grant a consolidation motion. Only the Judge assigned to the lowest can consolidate. The parties to the cases are not able to use consolidation to make a selection of venue by electing which Judge (as in which case to file in) will consider their consolidation motion. The motion has to be filed in the lowest-numbered case, and therefore has to be determined by the judge assigned to the lowest numbered case.

If venue change, of the consolidated cases, is also desired, the parties would need to ask for change of venue also. From which judge? That answer is simple, the “assigned Judge,” which is the Judge assigned to the lowest numbered case. Does the order of the process make any difference? It likely does not. For example, With one case pending in Miami and another in Ft. Lauderdale, the parties might be seeking to have one consolidated case in Miami. Here is how the process should work.

Assume that the lowest-numbered case is on the case assigned to Ft. Lauderdale. The parties could file a motion with the Ft. Lauderdale judge for change of venue to Miami, noting in the motion that the injured worker already has another Miami case. The agreed motion would likely result in an order changing venue to Miami, and reassignment to the Miami Judge who is already assigned to the other case. Then a Motion for Consolidation could be filed with that judge.

Or, the parties could file a Motion for Consolidation with the Ft. Lauderdale Judge, resulting in assignment of both (all) cases with the Ft. Lauderdale Judge, and then move to change venue of the now consolidated case. The ultimate outcome should be the same in either instance.

If the lower case number is assigned in the venue which the parties have elected, then the process is simpler, and would involve only a Motion to Consolidate filed in that venue, Ft. Lauderdale in this example. There is no need to seek or obtain a change of venue, in this example, of the Miami case to Ft. Lauderdale before seeking the consolidation. The consolidation itself will effect that desired venue change.

It is helpful when the parties explain the situation in the motion. What is the ultimate outcome that is sought? Simply state it, as in “the parties move to consolidate case numbers yy-xxxxxx and yy-xxxxxx and effectuate venue in District ABC for all future proceedings.” If this will be a two-step process, acknowledge that “the parties seek this consolidation and a change of venue to District ABC.”

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