Wednesday, May 6, 2015

Which State will be Last to Embrace e-filing?

Worker's Compensation (WC) is a result of the industrial revolution. Germany is credited with leading the way. Our U.S. history includes some failed attempts to enact such laws at the turn of the last century, then the tragedy of the triangle shirt-waist fire in 1911.

Worker's Compensation as we know it has included the involvement of luminaries such as Frances Perkins, Franklin Roosevelt, and Supreme Court Justice Louis Brandeis. It may be academically correct to refer to Worker's Compensation as America's first tort Reform. With court congestion in the 1850s, efforts were made to diminish or eliminate litigation. The initial efforts were referred to as "employer liability acts." These did not result in marked improvement, but paved the way for WC later.

Early American efforts at Worker's Compensation laws in the Twentieth Century failed to pass constitutional muster. There were early efforts in New York (1901), Maryland (1902)  and Massachusetts (1908). The federal government entered the social insurance debate with the passage of the Federal Employers Liability Act in 1908. One might argue this was the first workers' compensation.

Wisconsin passed a Worker's Compensation statute in 1911. Thus beginning the era of the great trade-off, or "Grand Bargain." That year Worker's Compensation statutes were also passed in California, Illinois, Kansas, Massachusetts, New Hampshire, New Jersey, Ohio, Washington. Nine states started, including Wisconsin, the revolution had begun.

Between 1912 and 1915 twenty-three additional states would adopt workers' compensation statutes: Arizona, Colorado, Connecticut. Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, West Virginia, Wyoming, In a mere 5 years 32 states.

Between 1915 in 1920 thirteen more states joined the evolution: Alabama, Alaska, Delaware, Georgia, Hawaii, Idaho, Missouri, New Mexico, North Dakota. South Dakota, Tennessee, Utah and Virginia, That's 45 states in the first decade of Worker's Compensation. Notice Florida has not been listed yet.

After a decade of pause, Arkansas, Florida, North Carolina, South Carolina passed Worker's Compensation laws between 1929 and 1939. And so 30 years after the beginning of the Worker's Compensation Revolution, 49 states have passed statutes. Mississippi stood alone. It would be almost another 10 years, before Mississippi passed its worker's compensation statute in 1948.

2015 is momentous for the State of Pennsylvania. It celebrates the centennial of PA Worker's Compensation. Judge David Torrey has led an effort to recognize and celebrate this momentous milestone. Pennsylvania's recognition of its Worker's Compensation act will include events and a book commemorating the anniversary. I have no a expectation of being around when Florida eventually celebrates its centennial in 2035. That is twenty years away, and I hope I am retired comfortably somewhere by then. Perhaps someone will then take similar steps to commemorate Florida's anniversary as Pennsylvania has?

The dawn of the 21st Century brought a technological revolution to Worker's Compensation. In the first decade, this marketplace saw the implementation and development of various electronic filing platforms for Worker's Compensation pleadings. I have featured a number of these on this blog. Among the notable examples are California, Florida, Georgia, Pennsylvania, and Virginia.

Forgive my bias, but I sincerely believe that none of these systems rival the economy and efficiency that is Florida's e-JCC. I was intrigued in April to come across a news story from the great State of Hawaii on WorkCompCentral. Its legislature has passed 2 resolutions calling for the formation of a commission to study how electronic filing can be implemented in its Worker's Compensation system. The commission is charged with presenting a report to the Hawaii Legislature prior to the 2017 legislative session. There was a follow-up story in May

I am a longtime advocate of leveraging technology for the benefit of the marketplace. I'll be the first to admit that technology can be somewhat daunting. The capability of these machines is not always easy to comprehend, and learning to speak the language of technology is a significant challenge. With each new day, comes new terms and ideas as we struggle to keep up with an ever-involving world of technology. As I discuss technology with various state leaders, I hear of their e-goals, e-successes and e-challenges.

However, I applaud Hawaii's decision to move in the direction of electronic filing. Certainly, at this point, they have many states to which they could turn for guidance. There are many states that have had success, and frankly we've all had some mistakes from which Hawaii and others could learn.

An excellent paper by Nick O'Bryant was recently published by the National Association of Workers' Compensation Judiciary (NAWCJ). Mr. O'Bryant has cataloged the various states' efforts toward e-filing. He starts by categorizing the existing systems into three groups, the "expansive" system states, the states with "some sort of e-filing" and the states with none (or apparently with none). 

Mr. O'Brien documents the following 16 states in the "expansive" category: Alabama, Arizona, California, Colorado, Florida, Georgia, Maryland, Massachusetts, Mississippi, New Jersey,  Ohio, Oregon, Pennsylvania, South Carolina, Virginia and Washington. Notice that three of the final states to adopt workers' compensation are among the leaders in 21st Century e-filing adoption, Florida, Mississippi and South Carolina. 

He lists the following 14 jurisdictions as having "some form of e-filing:" Connecticut, Kansas, Indiana, Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North Dakota, Rhode Island, Utah, Washington D.C., and Wisconsin. 

By his analysis that leaves 22 jurisdictions that he says have confirmed that they have no e-filing, or that appear to have no e-filing in workers' compensation. The confirmed states are: Alaska, Hawaii, Idaho, Kentucky, Louisiana, Michigan, Tennessee, Vermont, West Virginia, and Wyoming. Those he catalogs as appearing to have no e-filing are: Arkansas, Delaware, Illinois, Maine, New Hampshire, New Mexico, North Carolina, Oklahoma, Puerto Rico, South Dakota and Texas. 

I know from conversations with state leaders that several states are currently working towards a electronic filing Paradigm. Kentucky, Nebraska, New Mexico, and North Carolina, are all on that path. It is encouraging to hear that Hawaii is also. I have heard that Illinois may move in that direction. So that group of 22 may soon be only 17, and will continue to shrink in years to come.  

It seems to me that the only real question remaining in the technological revolution of the 21st Century of Worker's Compensation, is which state will be last to join the e-filing revolution? Thirty jurisdictions are already offerring it in some form. We know that the last will not be Mississippi this time, nor Florida, which is already in the group of leaders. 

There are many e-filing systems today, and many state success stories. The time to consider whether to adopt e-filing is past. States need to focus now on how to implement e-filing and move towards the Twenty-first Century paradigm. Which state will be the last to adopt e-filing?

Maybe someday this post can be reprinted when Florida celebrates 100 years of e-JCC in 2105. By then, the question will hopefully be answered. I hope there is no state in 2105 still not offerring e-filing, assuming there is still workers' compensation then. Florida may not be the first to celebrate 100 years of that "e" revolution, but we will be in the front of the pack!

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