Monday, August 24, 2015

The NAWCJ College

This week (08.24.15), the National Association of Workers' Compensation Judiciary (NAWCJ) will present its seventh annual Judicial College in Orlando. I have been privileged to be associated with this organization since it inception. The premise of the NAWCJ and its annual college is a recognition that there were no educational opportunities in the marketplace for adjudicator education focused on workers' compensation.

In developing and presenting curricula focused on filling this need, we have found that there are a variety of distinctions between state workers' compensation programs. There are also a multitude of similarities. The education has been invaluable. The opportunities for collegiality, commiseration, and comparison have been equally beneficial. 

We worked through the day yesterday preparing. A special thanks go out to President Michael Alvey (KY) and Past-Presidents John J. Lazzara (FL) and Ellen Lorenzen (FL). We hold this vent in the midst of a huge workers' compensation conference, perhaps the biggest in the world, #WCEC2015. 

We had 45 of our members kick-off our conference yesterday by volunteering in the 28th annual Earle Zehmer Moot Court Competition. I am proud of that and thankful to these selfless volunteers. I wish I had been afforded the chance that those 22 teams from 15 schools had. it was a great learning opportunity, and each team I saw yesterday was worthy of the competition!

A Mississippi appellate opinion in May, Blackwell v. Howard Industries, which was reported by WorkCompCentral, reminded me of some of the distinctions and similarities among various jurisdictions.

Procedurally, Mississippi has an appellate process unlike Florida's. In Florida, most disputes regarding workers' compensation benefits are determined by a Judge of Compensation Claims (JCC). Exceptions to this rule include medical reimbursement disputes, which are determined by the Division of Workers' Compensation, and workers' compensation liens against third-party recoveries, which are determined by the Circuit Courts. 

Once a JCC decides a case, the parties are entitled to review by the Florida First District Court of Appeal. It is a streamline process. With all cases being considered by one appellate court, the chances for conflicting appellate decisions is minimized. There are those instances in which the First DCA disagrees with itself, which sometimes lead to "en banc" review, where the entire court decides a case. Generally, en banc cases historically provided predictability to the marketplace. 

There are still some other opportunities for conflict. In considering whether worker's compensation immunity applies to a civil suit, Circuit Courts around the state interpret Chapter 440. Violations of 440.105, essentially a "fraud" statute, are prosecuted in Circuit Courts around the state. Appeals of these decisions flow to the District Courts geographically distributed around the state, and the result can be conflicting statutory interpretations, or at least allegations of conflict. Such conflict was recently in the news in Brock v. State of Florida

There are also opportunities for a single court to disagree with itself. Currently, the marketplace waits for Florida's Supreme Court to decide how to interpret 440.15. The First District has published multiple interpretations. The entire court participated (called "en banc") in Employee Leasing v. Hadley in late November 2011. 

About 15 months later (02.13) in Westphal v. City of St. Petersburg, a panel of the Court disagreed with that en banc precedent and concluded that 440.15 is unconstitutional under "natural law." The entire court later heard the case  and issued an en banc decision in September 2013, Westphal en banc. That decision reverses Hadley, and essentially overturns the Westphal panel decision without much discussion of the "natural law" constitutional conclusions in the earlier panel decision.

So, it is possible, though not common, for the Florida marketplace to be presented with conflicting appellate decisions regarding workers' compensation. The Mississippi case in May illustrates the appellate process there. Mississippi has a Workers' Compensation Commission, where Florida has a Division of Workers' Compensation. 

Their Commission hears appeals of workers' compensation cases. If a party wishes further appellate review after their commission hears an appeal, the party may appeal to the Circuit Court (a court of general trial jurisdiction there). If dissatisfied at that stage, the party may appeal to the Mississippi Court of Appeals, and from there to the Mississippi Supreme Court. Though this path and process may seem alien to Floridians, it is not unique. Georgia has a similar process as does Virginia.

A major distinction between Mississippi and Florida is the manner in which decisions are made regarding the admissibility of evidence. Florida applies the rules of evidence to workers' compensation proceedings. As regards admissibility of evidence, the rules in Florida are the same in proceedings before the Office of Judges of Compensation Claims (OJCC) as they would be in the Circuit Courts. 

Mississippi has an evidence code also. But it does not necessarily apply in workers' compensation proceedings. The proceedings in Mississippi workers' compensation are more informal in general. Conferences are held there, in which solutions are suggestions or intimated to the parties, and resolutions are reached through these discussions. Many of these are not recorded, but are "off the record." It is not "mediation" per se, but it is leaning toward alternative dispute resolution. Now back to that May decision in Mississippi.

In Howard, the injured worker was appealing to the Circuit Court. So the administrative process before an ALJ and the Commission had concluded. On appeal, he failed to file a brief, and the Circuit Court dismissed his appeal (appeal I). The Mississippi Court of Appeals reversed that dismissal. Although the Circuit Court had issued a "notice of deficiency" so that Blackwell would know he had erred in not submitting his brief, the Appeals Court concluded that the Circuit Court should have sent "a second notice of defiency"" before sanctioning him, and that "lesser sanctions, rather than dismissal, would have been appropriate."

With the case then back in the Circuit Court, Blackwell submitted his brief, but attached to it an Internet article which Howard (the E/C) contended was "inadmissible hearsay [and] irrelevant, [it] lack[ed a] proper foundation [and it could not] be authenticated." The Circuit Court dismissed the appeal again for failure to comply with procedural rules and for submitting this Internet article to supplement the proof of his allegations.  

That decision led to the Appeals Court decision in May. The Appeals Court concluded that Howard had essentially waived its arguments regarding rule violation because these were not raised by Howard soon enough, and because Howard never argued that it was "prejudiced or unfairly surprised by discrepancies between Blackwell's notice of appeal and the issues . . . raised in his brief."

This is not dissimilar to the law in Florida regarding disclosure of evidence. When evidence is brought to a proceeding here, it should have previously been disclosed to the opposing party(ies). When that does not occur, and someone involved claims "surprise," there is an analysis of whether admitting or considering that evidence would result in prejudice or actual harm to the party complaining about that evidence ("objecting").

But, Mississippi has that analysis of prejudice when a hearsay objection is raised. The question being about the timeliness of the evidentiary objection and the prejudice from the allegedly improper evidence. This is an interesting process and analysis. The logic is apparent, but it is still a bit different that how a Florida case might be considered. 

This morning we will kick off the Seventh Annual Judicial College with an evidence program featuring Florida's undisputed heavyweight on the subject, Professor Charles Ehrhardt of Florida State University. We will have examples of trial on videos produced by judges in Kentucky, Mississippi, and Pennsylvania. It is a great way for us all to know more about evidence as we need to, and to better understand how other jurisdictions deal with these complex and sometimes difficult decisions. 

We will also have a comparative law panel with judges from five states discussing the similarities and distinctions between and among their jurisdictions. Bruce Moore (KS) will moderate and Scott Beck (SC), Glen Goodnough (ME), Kenneth Switzer (TN) and Brian Watkins (WA) will be on the panel. Comparing, contrasting and considering, all of our attendees will grow as adjudicators this week. Welcome to Judiciary College 2015!


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