Monday, April 21, 2014

On Timelines and Deadlines

The news this morning brings a story about the Pennsylvania Office of Adjudication (POA). According to WorkCompCentral (sorry I could not find this story or similar reference on any non-subscription source), the POA is encouraging judges there to "reduce the number of cases they manage that are more than 12 months old." This was communicated to the judges in a memo"recently." 

WorkCompCentral cites the blog of Glenn Neiman, a claimant attorney from the Philadelphia area. Mr. Neiman describes the procedural process in Pennsylvania, in which there is testimony by the injured worker, testimony or a deposition of a fact or other witness, and a deposition of "at least one medical expert on each side." Then legal briefs are written and submitted. He says that "this can take well over a year to all of this completed."

Mr. Neiman writes that the move to have cases determined in something under a year is being referred to as the "rocket docket" in Pennsylvania by "a few" of the workers' compensation judges. He notes that he is "certainly aware of the hardships that injured workers face while awaiting a decision in their cases" and that he hopes "this push by the Bureau was triggered by concern for the injured worker, and not simply an effort to justify a new expensive computer system." Pennsylvania dove into the electronic age last fall with the roll-out of a state-of-the-art electronic case management and e-filing platform. See, Congratulations Pennsylvania.

Over the years, I have many times heard the criticisms of deadlines imposed by the Florida legislature in workers' compensation. Some of the first I recall were in 1991. Back then, an injured worker would file a "claim" with the Division of Workers' Compensation. Then when ready to proceed with actually litigating the claims, another form was filed, the Application for Hearing. It was this latter form that invoked the jurisdiction of the Office of Judges of Compensation Claims. 

In the 1991 statute, the legislature required that a pretrial had to be held by the JCC "no earlier than 30 days after the filing of the request for hearing and no later than 60 days after such date." Further, the "final hearing must be held and concluded within 120 days after the pretrial hearing." There was also a requirement that the parties would have 90 days for discovery between the pretrial and the final hearing. Thus, from the filing of that Application for Hearing, the trial process would have been concluded within 180 (60 day limit for pretrial and 120 after that for trial) days, or roughly six months. 

I have vivid recollections of judicial reaction to that timeline. The one that sticks in my head was expressed at an informal gathering of attorneys and judges in a waiting area one morning. Back then, lawyers used to congregate at the workers' compensation office periodically on either "motion day" or "joint petition day." These were days in which we all had various bits of business to conduct and we all showed up, signed in and awaited our respective turn. I will never forget one sage judge's statement about the "new rules." He said, "I don't care what they write in the statute, it can't be done." It stuck in my head, because on my walk back to the office that morning, I could think of nothing but "how does he know, he has not even tried."

That 1991 statute did not survive intact for long. The Florida Legislature came back to the workers' compensation legislation again in the 1993 special session and the Application for Hearing was replaced with the Petition for Benefits. Under that law, a mediation was to be noticed within 7 days and held within 21 days of Petition filing. A pretrial was to be held within 10 days of commencement of mediation, but the parties had to receive 7 days notice of the pretrial. The parties were to have at least 30 days for discovery and the trial was to be concluded within 45 days of the pretrial. That means Petition to trial would be 76 (21+ 10 + 45) days. The Judge was to issue the order in a summary manner within 14 days.  

Today, we are under statutory parameters that are somewhat longer. The 14 day requirement for the order was changed to 30 days in 2001. In 2002, the The timeline to mediation was amended to within 90 days of PFB filing, with notice to be provided within 40 days, and the trial was to be held within 210 days of Petition filing. The 2003 amendments changed the mediation process slightly, forbidding notice of mediation until 40 days after Petition filing, and increasing the time for it to occur from 90 to 130 days of filing. 

There were those who said that these time lines could not be done. Certainly, there are cases in which some or all of these time lines cannot be met. Having conceded that 100% compliance is not possible, or at least not practical, it has nonetheless been demonstrated in the last 10 years that compliance is most certainly possible in many or even most cases. In the 2013 OJCC Annual Report, we noted that the average days from Petition filing to trial in Florida was 485 days (about 16 months) in fiscal 2005-06, and was 162 days in 2012-13. The time from Petition filing to mediation had reduced from 212 days on average to only 84 days on average in the same period. The average time between trial and the issuance of the final order had decreased from 76 days to 15 days. 

The issue is not that there may be cases that cannot meet the time frames; there are certainly such cases. The issue is that there are many cases which can be mediated and adjudicated within these time frames. In other words, the fact that some cannot be tried within the statutory times does not mean that none can be tried within them. When they cannot be, the statute provides procedural processes and standards by which additional time may be sought. Has the adoption of these statutory parameters changed the way workers' compensation is practiced in Florida? I suspect it has; I suspect that discovery is planned and scheduled earlier. 

Can cases be tried within 12 months of filing in Pennsylvania? I am no expert on Pennsylvania law or procedure, but I suspect that at least some can be. If Pennsylvania's 12 months is a "rocket docket," I wonder what they would call our 210 days? As I have encountered adjudicators from other states, I have had several ask me "why does it take that long (210 days) in Florida;" they claim there systems routinely adjudicate cases in far less time. 

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