Wednesday, December 10, 2014

Perfecting a Florida Workers' Compensation Lien

The Florida Office of Judges of Compensation Claims (OJCC) is paperless, or nearly so. While there are a few judges who keep some small volume of paper files for convenience, the digital record and database is the official record of the OJCC. When a document is filed, there has to be some place on the computer to put that document. The logistics therefore involve the creation of a “case” within the OJCC database.

Everything related to a particular accident for a particular injured worker will be stored digitally at the OJCC and electronically connected with or "tethered to" that electronic “case.” An OJCC workers’ compensation “case” is commenced in one of two ways. A petition for benefits may be filed. Rule 60Q-6.105(1). In the event that there is “any claim” within the jurisdiction of this Office, which is “not subject to a petition for benefits,” then “the claimant shall file with the clerk of the OJCC a request for assignment of case number,” referred to often as an “RACN.” Rule 60Q-6.105(3).

Filing either of these automatically causes an OJCC “case” to be commenced. A case number is assigned. The OJCC database creates a record for the “case” data and virtual folders into which PDF images of all the “case” filings will be stored.

The data in the database when a case number is assigned is usually provided by an attorney. The attorney for either the injured worker or the employer provides names, addresses, phone numbers, date of accident, and more for that particular case. That data resides in the OJCC database, and is used by the parties and the OJCC thereafter.

For example, if the person requesting the case number states the carrier is “ABC Insurance,” then that is what the database will reflect. If that information is to later change in the database, then there should be some documentation of that change. A phone call asking the assigned Judge or staff to change the name of the carrier to “XYZ Insurance” is not sufficient. Generally, any request for relief will be by motion. Rule 60Q6.115(1). So if it turns out the wrong carrier was named or that the carrier later changes, some party should file a motion to correct the database. This could easily be a joint a motion.

The attorney (the eJCC profile) who creates a case is automatically captured in the electronic case as the attorney of record. Attorneys who appear after a case is created do so by filing a notice of appearance. It is important to note that the 60Q rules address the appearance and withdrawal of an attorney, not the attorney’s firm. Rule 60Q-6.104. See
 Who Represents this PartyAn attorney who has never noticed an appearance on a case cannot withdraw from the case. That seems simple, but it is periodically misunderstood. An attorney who has never appeared cannot file or maintain a lien. Another fairly simple truth.

There are instances in which an attorney represents an injured worker (claimant) regarding an injury, and may not file anything with the OJCC. The attorney may contend that fees are due pursuant to Fla. Stat. 440.34 based upon an obtention of benefits through that representation. The contention may be that fees are due from the employer/carrier or from the claimant. Alternatively, or additionally, the attorney may contend that costs are due either from the employer/carrier pursuant to the statute or from the claimant based upon a contract of representation.

The attorney may wish to place the world (or at least the parties to the claim) on notice of the contention that fees or costs are due. The vehicle for that notice is usually a lien filed in the specific OJCC case. To file such a lien, there must be an OJCC case in which to file it. Years ago, attorneys might mail such a lien to the district office, a paper folder was created for it. If a later case file was created when a claim, petition, or other litigation ensued, that earlier filed lien would hopefully be remembered and consolidated into the same paper folder. However, with rooms full of file cabinets, such fortuitous outcomes were not consistent.

As a side note, contracts of representation are like other contracts between parties. Contracts are not sent to the Courts or judges in any known adjudicatory system for “pre-approval.” People sign contracts all day throughout the world. Those contracts are not filed with courts, and orders are not entered to approve or disapprove them. Imagine if every finance agreement signed at every appliance store every day was sent to a court for approval.

The resources of the adjudication system are for the resolution of disputes. Certainly, if an order is required regarding a specific contract for a specific purpose, then a motion, joint or otherwise, is the appropriate vehicle. Rule 60Q-6.115(1); 60Q6.116(5), but systemic approval of all agreements or contracts is simply not necessary.

There are many workers’ compensation accidents each year. These are filed with the Division of Workers’ Compensation, which is part of the Department of Financial Services. The injury is reported, benefits are provided, and the employer or their insurance carrier periodically files reports with the Division about the nature, severity, and progress of the accident and recovery.

In 2010 (the Division ceased publishing data after their 2011 Annual Report), the Division noted there were 51,598 “lost time claims” reported. Many more “medical only” claims were reported. That same year, 30,525 “new cases” were filed with the Office of Judges of Compensation Claims. So, most “accidents,” (reported to the Division) which refers to accidents and injuries, did not result in “cases,” which refers to litigation in the Office of Judges of Compensation Claims (OJCC).

The point is that this Office is only involved in those cases that are brought to us, not in all workers' compensation accidents that occur. The OJCC is not responsible for “accidents” in the general sense, but for the efficient and timely resolution of disputes about benefits, or “cases.”

Within the proceedings of the OJCC, a “claim” “means each assertion of a legal right or benefit under Chapter 440, F.S.” Rule 60Q6.102(1). Thus, once proceedings are begun in the OJCC, it is based on an “accident” (reported to the Division), there is a “case” (opened with the OJCC) and within that case there are “claims.”

Thus, an injured workers’ issues regarding her or his workers’ compensation comes within the responsibility of the OJCC when there is a dispute about benefits, and thus a need for a resolution through agreement or adjudication. Until that time, the injured workers' relationship with the employer/carrier are subject to the law, and workers' compensation regulations, but that is all within the jurisdiction of the Division of Workers' Compensation. Then a dispute arises, something is filed with this Office, an OJCC case is created, and the jurisdiction of this Office is invoked.

If an attorney is representing an injured worker regarding her or his accident, there is no reason for the OJCC to know of the "accident," “claim” or the representation before their is a dispute. Furthermore, there is no authority of the OJCC to acknowledge, memorialize, or document such representation. There is no “jurisdiction” of this Office. The authority or jurisdiction of the OJCC is invoked by the filing of some document with this agency, either a petition or an RACN.

Thus, the question of how to perfect a lien depends upon whether there is or is not yet an OJCC “case,” that is whether a petition or an RACN has been filed and thereupon an OJCC case number assigned.

An RACN (Request for Assignment of Case Number) may be filed for any of the following reasons:

· Claim for Reimbursement from SDTF
· Claim Limited to Attorney's fees or Taxable Costs
· Motion for Advance
· Motion for Protective Order
· Motion to Compel Discovery
· Motion to Preserve Evidence
· Request for Child Support Information
· Settlement Requiring Approval by a JCC
· Third Party Claim
· Voluntary Mediation

If the relationship between counsel and injured worker ceases and there is no existing OJCC case at that time, then the attorney seeking to file a lien should request a case number (for her or his personal "claim" limited to attorney fees). The attorney may then file a lien in the resulting OJCC case.

To do so, log in to e-JCC, the OJCC electronic filing system, through the portal at
www.fljcc.orgIn the e-JCC program, select “file new case.” The program defaults to “petition for benefits.” Instead, select the “RACN” option from the drop-down menu. Insert the relevant information, and select “Claim Limited to Attorney's fees or Taxable Costs” as the legal basis for assignment of an RACN. This will result in the assignment of an OJCC case number. 

Once the case number is thus established, any future filings such as PFBs will be in that same case. Any attorney who becomes affiliated with that case will have access to the docket, and thereby access to the attorney's lien. This process is far more likely to result in the later connection of that lien and the subsequent litigation than the old paper process was.

If the attorney and injured worker relationship ceases after an OJCC case already exists, it is likely the attorney will have already filed a PFB or a notice of appearance. If not, and the attorney wishes to file a lien, then the attorney need only log in to e-JCC and file a notice of appearance in that case. It is the PFB or notice of appearance that associates that attorney with the case itself.

To do so, prepare a notice of appearance as in any case. Log in to e-JCC and select “file document” from the e-JCC menu header, insert the case number in the space provided, and select “Notice of Appearance.” The program will provide the choice as to whom you represent, “Claimant,” “Employer/Carrier,” or “other.” The appropriate selection in this example is “other” as the attorney in this example no longer represents the injured workers, and is essentially protecting the attorney’s personal contract or statutory rights.

The result of the foregoing, the establishment of an OJCC case and the notice of appearance, will then allow counsel to file her or his notice of lien. Furthermore, the attorney will be “of record” in the case. This results in the attorney being listed in the OJCC database as counsel and thus should cause the attorney to be included on the certificate of service whenever notices or orders are issued by the OJCC. This allows the attorney to monitor activity in the case.

If the attorney does not want to receive ongoing notice of the events in litigation, with her or his lien filed, may file a motion to withdraw. See
 Who Represents this PartyIn doing so, the attorney may maintain her or his lien, and will be marked as a "lienholder" in the OJCC database. 

This process affords counsel the ability to file a lien for the protection of their fees or costs. The process should also assure that the data in the OJCC database remains accurate regarding the identity of counsel.

To summarize, if there is an existing case, the attorney could file a notice of appearance, notice of lien, and motion to withdraw. There is no reason that all of this could not be accomplished with a single pleading so titled, "Notice of Appearance, Lien, and Motion to Withdraw."

If there is no case, then the attorney will have to first file a request for assignment of case number (RACN), and then file the "Notice of Appearance, Lien, and Motion to Withdraw."

This will maintain the public record, put everyone on notice, and accommodate the goal that all filings regarding any particular person and accident will be recorded in association with one case number, with access afforded to all involved.

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