Wednesday, October 15, 2014

How Much Florida Workers' Compensation Litigation is Pro Se?

I attended a seminar in September at the International Association of Accident Boards and Commissions, the "IAIABC." Several state officials from around America made points about the challenges they perceive with self-represented parties, that is injured workers and employers who do not have attorneys to represent them. Several said that their state's litigation process commonly included pro-se or self-represented parties. Some believed that this was as common as represented parties or perhaps more common in their state.

The 2014 Florida OJCC Annual Report is progressing well. We have a publication deadline of December 1, 2014. When it is complete, it will be posted on the Notice, Orders and Reports" tab of the OJCC website,

This report memorializes a variety of statistical measures of the litigation process for workers' compensation benefits in Florida. Florida is distinct in that our litigation process, the OJCC, stands alone in one agency while all of the other workers' compensation regulation is managed in a separate agency, the Division of Workers' Compensation. Most jurisdictions have the regulatory and adjudicatory workers' compensation functions in a single agency.

One of the questions that has been asked repeatedly since the 2003 revisions to Chapter 440 is whether pro-se, or self-represented litigants are becoming any more or less prevalent in our Florida litigation processes. The OJCC has a great database, with many functional tools and reports built in. However, this is not a question that it can answer with the clarity that many people seek. When a petition for benefits is filed, our database does not memorialize whether an attorney filed that petition or whether it was filed pro-se.

Whether a particular claimant is represented or not at a given moment in time can be determined with accuracy with the OJCC database. However, this does not answer whether that claimant in fact filed any pro se petition(s) for benefits (PFB).

For example, a claimant might hire counsel and through that counsel file three PFBs for various benefits. The JCC Application database would at that moment reflect three “open” PFBs attributable to a “represented” claimant. If the claimant thereafter ceased to be represented, and filed one pro se PFB, the database would at that moment reflect four “open” PFBs attributable to a “pro se” claimant, despite the fact that three of those were in fact filed by (former) counsel at some point during the history of the litigation. If that same claimant later hired a new attorney, who then filed a fifth PFB, the JCC Application database would at that moment reflect five “open” PFBs attributable to a “represented” claimant, despite the fact that one of those five was in fact filed pro se at some point in the procedural history.

What we can do with the OJCC database is compare the volume of petitions filed in a fiscal year (Florida operates on a calendar that begins each July first and runs through the next June thirtieth) to the number which do not reflect attorney representation as of some particular point in time. For the sake of consistency, we concluded that the comparison should be made as of the same date each year; we selected June thirtieth of each year to use as our comparison moment. The date has no real significance compared to any others, except that it is the last day of the fiscal year.

The percentage that results may not be the best indicator of pro-se participation in litigation. However, if calculated consistently and regularly, it might well be an accurate barometer of change in the litigation marketplace.

For fiscal 2002-03, that equation demonstrated that 8.26% of injured workers were pro se as of June 30, 2003. That percentage declined closer to 7% for each of the three years 2003-04 through 2005-06, then closer to 6% for the four years 2006-07 through 2009-10. For the last four years, the figures have been between about 5% (4.96%) and 5.45%, so rounding it yields about 5%. For 2013-14, the figure is 5.28%.

These figures suggest that among injured workers the percentage of pro-se or self-represented litigants is not increasing. Whether that is significant is subject to discussion and debate. It is possible that fewer people are self-representing, and that the percentages are not demonstrating that because of the decreasing volumes of petition filings overall. That is, as PFB volumes decrease, perhaps a significant volume of the petitions that are not filed compared to previous years would be self-represented.

These figures are perhaps not the best answer to whether litigants are increasingly self-representing in the Florida workers' compensation litigation system. However, they are the answer that we can generate at this time. According to the picture they paint, it appears that the volume of self-represented litigants in the Florida workers' compensation litigation process remains reasonably consistent in recent years, at least comparing the volume in a year-end snapshot.

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