Thursday, December 3, 2015

Its a Non-Final Order, that Matters in Workers' Compensation

In July, I ran across Empara v. New Rochelle School District. A New York case that makes for an interesting reminder of finality and appellate jurisdiction. In Empara, an injured worker’s claim for benefits was litigated as so many are, in multiple hearings. Workers’ compensation has been referred to as “serial” meaning that cases can be presented in a series of hearings. This is due in part to the manner in which workers’ compensation statutes provide benefits in stages, each based on specific pre-requisites. It can also be a conscious decision of employers and employees. 

As those statutory requisites occur, an injured worker may become entitled to benefits today that were not available yesterday. For example, an injured worker who is excused from work for the time being is not likely entitled to permanent indemnity (lost age) benefits. Permanent benefits are dependent on permanency of injury, which occurs after medical care, and attainment of maximum medical improvement (MMI). So, until MMI is reached the injured worker cannot seek permanent indemnity. That benefit is referred to as "not ripe" for payment and therefore not ripe for a claim or petition. 

So as an example, an injured worker might litigate entitlement to temporary total disability benefits before MMI, but any claim for permanent benefits might at that time be premature and thus not litigated. There could be a trial now on temporary benefits, and another trial in two years on permanent benefits. The entitlement to a specific benefit may be litigated at any time, and a particular worker might therefore be in and out of the litigation process repeatedly.

Likewise, the parties in a case may elect to only litigate certain issues, of all that are currently ripe. They "bifurcate" or separate some issues from the other(s) in an attempt to resolve certain differences. Their intention in doing so is usually based on a belief that resolution of some certain issue(s) will perhaps create enough certainty or predictability in a particular case to allow the parties to solve the rest of their disagreements or issues in that case without litigation, and the time and expense that entails. 

An example of this might be where a physician has recommended a diagnostic test such as an Magnetic Resonance Image (MRI) and surgery. The parties might agree to only litigate the MRI authorization if they believe that a decision on that point will give them the information they need. That is, they believe that if the judge denies the MRI then surgery will not occur and that if the judge orders the MRI that test will answer any questions as to whether surgery is appropriate. The accumulation and organization and presentation of evidence regarding the MRI may be easier, quicker, and less expensive that what would be required to litigate the surgery issue.  

One of the complications faced by a workers' compensation judge is the multiplicity of issues that may be possible when a case comes to trial. The judge must make findings, decisions, but is limited to deciding the issues that are ripe. Despite careful attention to this, findings required for one decision today may affect later claims that have as yet not been filed (not ripe) or which were not a subject of the present trial (they were bifurcated for another trial another day).

In Empara, the injured worker was initially found to have a 37.5% “schedule loss” of the left leg. After another injury, and a surgery on that leg, an impairment of 40% was rendered. A trial was held regarding the impairment, and the judge made a “finding,” that is a conclusion, on the impairment in an order issued in late November 2012. However, no benefits were awarded. Instead, “the matter was continued” for another hearing on various issues, including “consideration of an award of compensation.” So the judge decided the impairment that existed, but did not decide how much the injured worker should therefore be paid.

Thus, decisions were to be made in this case at a series of hearings. The judge decided not to determine the amount of compensation, and to instead decide only the impairment rating. This may have been because the parties asked for that bifurcation. This may have simply been the judge's decision.

Then in January 2013 the judge awarded benefits based on that impairment. The worker’s employer appealed that decision because it was based on the impairment after the left leg surgery, but the judge's decision (order) did not explain the interaction of the prior stated 37.5% impairment. In other words, there appeared to be a question as to whether the worker had a 37.5% impairment and another 40% impairment, or whether the later 40% impairment included the prior impairment. 

The worker objected to the appeal. He explained that the appeal was addressing the conclusion of a 40% impairment, a conclusion reached in November not in January. So, the worker argued, the appeal regarding that impairment, after the January 2013 hearing, was not timely. A critical side note, parties have a limited time to ask the appellate court to act on their case. In Florida workers' compensation it is 30 days. 

The New York appellate court concluded that the appeal after the January order was timely. It explained that the November decision was incomplete as it did not explain the interaction of the prior impairment. As such, “it was unclear from the November 27, 2012 decision whether any award would be made to claimant.” The Court therefore concluded that the November order was ambiguous” and therefore the employer was able to appeal when the ambiguity was clarified in the January order.

I was reminded of Empara recently, when the Florida First District decided Zavala v.Economic Development Commission of Mid-Florida, Inc. Interestingly, the news headline on this case was that the “1st DCA Dodges Constitutional Challenge to Statutory Limit on Indemnity Benefits.” There has been a fair amount of discussion of workers' compensation and the constitution in recent months. 

The court concluded that the trial judge’s decision in Zavala was a “nonfinal order that adjudicates compensability of her accidental injury.” The decision was “nonfinal” because “the JCC reserved for another day adjudications on claimant’s entitlement to medical benefits and other claims.” Thus, some issues were bifurcated from the others. 

Much as in Empara, the order entered by the trial judge in Zavala, made decisions and reached legal conclusions. However, the order neither awarded or denied specific benefits. This made the trial order “nonfinal,” and there will be another hearing in Zavala, as there was in Empara. Then a final order will be entered (going beyond the decision that the injury was in fact a workers' compensation injury, and ordering provision of some specific benefit(s)). When that order is issued, then the constitutional issues, and other specific challenges regarding those benefits will be ripe for determination by the First DCA.

Because the court determined that the trial order was “nonfinal” it concluded that it lacked the authority, or “jurisdiction,” to address the issue of whether a statutory provision regarding benefits is or is not constitutional. The New York court found that the first order was not subject to appeal because it was “ambiguous,” but explained this "ambiguity" was its incompleteness in not determining benefits due. The cases are explained differently by the two courts, but the results are consistent. 

The Florida court concluded that the incompleteness, not determining the actual benefits due, made the order non final. Not ambiguous, merely incomplete. The trial judge in Zavala reserved jurisdiction, specifically telling the parties there would be another trial on the question of actual benefits. With the lack of finality or the “ambiguity” comes the conclusion that it is not yet time for the appellate court to consider the case.

The logic of this is simple. Though appellate courts recognize that the serial nature of workers’ compensation litigation is a fact of life, the courts strive to review cases when they are complete. This allows a single appeal to address a composite of issues at one time. In other words, accepting that the serial nature of this statutory program may inevitably lead to multiple appeals, the court strives to only review complete determinations so as to consolidate review and minimize the serial nature of dispute resolution at the appellate level. 

The time to seek appellate review of a trial decision can be tricky. This is discussed in Read the Rules, it is Critical. Knowing the Florida Rules regarding when to appeal is important. Knowing what kind of order can (e.g. final) and cannot (e.g. non-final) be appealed is also important. 

For the court to have authority, or “jurisdiction,” the Florida order must generally be a final order. There are exceptions to that general rule on finality. Rule 9.180 explains that non final orders may be appealed if they determine the authority to hear the case ("jurisdiction"), or the appropriate place to hear a case ("venue"), or "compensability" if there is an express conclusion that a work injury occurred, that the workers "is entitled to receive" benefits, and the Judge of Compensation Claims "certifies in the order that determination of the exact nature and amount of benefits due to claimant will require substantial expense and time."

The point of all of this is simply that litigation is a journey. It has a starting point and an end. Like many journeys in life, it may be traversed in a single sitting. Conceivably one might drive from Tallahassee to Burbank, California for the Comp Laude awards banquet this weekend. Or, one might drive from Tallahassee to Baton Rouge and spend the night, then from Baton Rouge to El Paso for a few days, then from El Paso to Tucson and spend the night, and then from Tucson to Burbank. Either way, the trip ends in the same place. 

In most civil litigation, like personal injury, the trip is a continuous journey. There is a single trial, a single verdict (decision) and then, if desired by a party, a single appeal. It is possible that some other decisions made by a judge along the way in a civil case might be appealed before the end of the journey, but those will more likely be about the procedure of the case, not about an award of some benefit for some part of the civil case. Workers' compensation is more like the second example with the overnight stops. The trip starts and stops. Benefits are claimed and determined. There are decisions along the way as to where to stop and how long to stay before it is appropriate to move on. 


Knowing when an appeal is or is not appropriate during either journey is important. For the workers' compensation example Zavala and Empara help us remember that finality is usually a critical question on this journey. 

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