Monday, September 15, 2014

There's No Other Place I Wanna Be

I check the Florida Supreme Court opinions each Thursday. Florida's District Courts of Appeal issue their decisions when they are made. If you are interested in them, you can sign up on their sites to receive email notifications (access them through Unlike Florida's District Courts, the Supreme Court releases their opinions on a schedule, each Thursday, which provides some regularity to the process. 

Watching the Supreme Court is not usual in Florida Workers' Compensation. There has not been much regarding substantive workers' compensation issues from this Court since 2009 when they decided Murray v. Mariner Health, 994 So.2d 1051. Before that, there was Sanders v. City of Orlando, 997 So.2d 1089 in 2008. Looking for a substantive workers' compensation case in the Florida Supreme Court before that might take you back to Aguilera v. Inservices, Inc., 905 So.2d 84 in 2005. 

There have been some other cases on the subject, which were arguably not exactly substantive workers' compensation cases, but touched the subject. They are interesting reading nonetheless, such as Saleeby v. Rocky Elson Const., Inc., 3 So.3d 1078 in 2009, Bakerman v.The Bombay Company, 961 So.2d 259 in 2007, Summit Claims Management Inc. v. Lawyers Exp. Trucking, 944 So.2d 339 in 2006, Florida Division of Workers' Compensation v. Cagnoli, 914 So.2d 950 in 2005 and Taylor v. School Board of Brevard County, 888 So.2d 1 in 2004. 

So, over a ten year period, something perhaps around ten cases, I am sure I missed some. Certainly you might make arguments in favor of including a few more on this list. But, the fact remains Florida Supreme Court decisions on workers' compensation issues are not very common. 

There are currently three workers' compensation cases pending in the Supreme Court: Morales v. Zenith Insurance, Westphal v. St. Petersburg, and Castellanos v. Next Door Company.

Morales v. Zenith Insurance (SC13-696) is case referred to the Supreme Court by the Eleventh Circuit United States Court of Appeal in Atlanta. Federal courts hear various kinds of cases, and when they hear a case involving state law, they apply that state  law rather than federal law. In this instance, the Eleventh Circuit could not determine what Florida's law is with certainty and so it asked the Florida Supreme Court to clarify the issue. This case was filed in April 2013, and the oral argument was held April 10, 2014. So some court watchers predict a decision could come from the Court on any Thursday. 

Westphal v. City of St. Petersburg (SC13-1930 and SC13-1976) is a discretionary review of a decision of the Florida First District Court of Appeal. This is interesting because it began as a decision by a First DCA panel holding part of the workers' compensation law unconstitutional. It evolved from there to an "en banc," meaning by all the judges of that court, decision adopting a statutory interpretation. The Court's most recent interpretation of this statute in Westphal is different than one rendered by the same court, en banc, only a few years before (Matrix Employee Leasing, Inc. v. Hadley, 78 So.3d 632 (Fla. 2st DCA 2011). The Supreme Court heard the oral argument in this case on June 5, 2014. Some Court watchers question whether there will be a decision on this in 2014.

Castellanos v. Next Door Company involves a constitutional challenge to the computation of attorneys fees under Section 440.34. The First District Court of Appeal decided that the attorney fee provision is "constitutional, both on its face and as applied," providing a lengthy list of citations to prior District Court decisions. The court "certified" to the Supreme Court a "question of great public importance," that is, "whether the award of attorneys fees in this case is adequate and consistent with the access to courts, due process, equal protection, and other requirements of the Florida and Federal Constitutions."  The Court accepted jurisdiction to hear this case. Last week it scheduled oral argument to occur November 5, 2014.  It seems unlikely that there will be a decision on this in 2014.

As I check the Florida Supreme Court opinions each Thursday, sometimes I hear music in my head. Recently, these songs have become recurrent:

From 1971, Carly Simon sings "we can never know about the days to come, but we think about them anyway," then the chorus "anticipation, anticipation, is making me late, is keeping me waiting," and concludes "and stay right here, 'cause these are the good old days." Like the song or not, Simon has a tremendous voice and that song has resonated for decades. The Court is keeping us waiting, curious about how these cases will affect the future. 

Sometimes while I check the page, I hear Tom Petty from 1981 instead. The chorus goes "the waiting is the hardest part, every day you see one more card, you take it on faith, you take it to the heart, the waiting is the hardest part." That may just say it all. 

Sometimes I hear Jesus Jones from 1990 in my head, singing "right here, right now, there is no other place I wanna be; right here right now, watching the world wake up from history." Many in the workers' compensation community are intellectually curious how the Court will address these questions. It is very interesting. 

That interest has to be tempered. There was a hit movie in 1996, Independence Day. The premise is that the great UFO conspiracy of the 1950s is confirmed when "the rest" of the aliens appear and begin blowing up Earth's cities. The President and entourage end up at Area 51 and meet the scientists who have been studying the 1950's crashed aliens. 

Dr. Okun, the lead scientist, explains to President Whitmore what they know and what they have been studying for years and then exclaims "the last 24 hours have been really exciting!" The President replies "EXCITING? People are dying out there. I don't think 'exciting' is the word I'd choose to describe it." This puts things into perspective. Maybe these are not "the good old days"  as Carly Simon sings. Maybe "exciting" is not the way to describe what is going on today in workers' compensation, particularly in Florida.

Each of these cases, in fact all workers' compensation cases, involves real people, important issues, critical points of law and construction. I tend to side with Independence Day's President Whitmore, "exciting" is not the best word to describe it. But it is interesting. Over the coming months, the Florida Supreme Court will address three very intellectually interesting workers' compensation questions. As I ponder the many potential outcomes and the possible effects on this thing called workers' compensation, into which I have poured much of my adult life, I end up with Jesus Jones, concluding that right now "there is no other place I wanna be."

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