Sunday, March 20, 2016

When it over, Is it really over?

In 2001 Sugar Ray recorded When its over. The lyrics ask 

When it's over, Can I still come over?
And when it's over, Is it really over?

These lyrics came to me recently as I wrote a letter to an injured worker. It is not uncommon for me to hear from the same injured worker multiple times. During a single week recently, I heard from two. 

One was upset that he cannot get the assigned judge to return his calls. I studied the case, and found that I have written to the injured worker 19 times in recent years. In my first letter to the worker, I had to acknowledge that when his petitions were initially assigned in 2004, the judge did not bring them to trial for over two years. That judge is no longer with this agency. Delays happen, but two years is a long time. 

In this particular case, there was some confusion about whether the Judge entered a "stay" back in 2004. Judges of Compensation Claims do not have the authority to enter a stay. When a petition is filed, there should be activity. The matter will be set for mediation, and some judges will set it for trial immediately as well. This is a good way to provide parties with ample notice of trial, and to keep the case from being forgotten. If it is not immediately set for trial, then following the mediation it must be reviewed again to see if issues remain to set for trial. Some of the early confusion in this case would have been solved if the case had been set for trial. 

A successor judge dismissed the petitions. Soon thereafter new petitions (making some of the same claims) were filed and yet a third judge heard and decided the case in 2007. It was a complete denial of compensability (the Judge said no benefits of any kind were due because of the law). So, the injured worker lost the case at trial. There was appellate activity, and in the end the First District Court did not reverse the trial judge. The injured worker, without an attorney at that point, asked the Florida Supreme Court to review that decision, but review was denied. 

In 2015, the injured worker filed another petition. The injured worker was seeking benefits, and the employer/carrier was denying them, essentially saying "judge we've been here before, the claims were denied, and the employer should not have to defend again. A fourth judge conducted a hearing. The judge again denied the case. No appeal was filed regarding that decision. 

In 2016, I continue to hear from the injured worker. The worker says he does not understand why the judge's office will not return his calls. He wants to have a hearing on his complaints of disability and his desire for medical care. He is upset that his right to due process has been denied. He seems immune to my explanations that his case is "over."

To answer Sugar Ray's first question in this context, it is "no." When it's over, you cannot still come over. The answer to the second question is "yes." When it's over, it is really over.  

In a 1992 (now classic) litigation movie, A Few Good Men, somewhat inexperienced Lt. Commander Galloway (Demi Moore) is in trial. There has been an objection to some testimony, and the judge has overruled it. Galloway later stands and says "we renew our objection . . .," and the judge again overrules it. Galloway, sticking to the proverbial guns, then says "the defense strenuously objects," and the judge overrules her objection yet again. Sometimes when something is over, it is really over; adding adjectives like "strenuously" are perhaps unlikely to change the decision. 

The injured worker example discussed above is not uncommon. We see a variety of issues during and after workers' compensation claims. We see litigation filed in circuit courts against lawyers. We see complaints filed with The Florida Bar, the Commissioner of Insurance, and the Division of Workers' Compensation. Periodically, we see litigation filed in federal court, and on at least one occasion an injured worker sought to have The United States Supreme Court review a workers' compensation case (05-418). 

In some of these instances, the injured worker complains that they did not receive due process, or that the denial of benefits was a result of prejudice or bias. Often there is a complaint that the opposing attorney or the injured worker's attorney was underhanded or acted inappropriately. Due process is afforded to all by this Office. Due process means that there will be a trial and all sides have an opportunity to tell their story. Due process does not mean telling the same story over and over, after the decisions have been made.

When a petition for benefits is filed, the Office of Judges of Compensation Claims has an obligation to oversee the litigation of the claimed benefits. This includes an obligation to bring the matter to a timely hearing, or to document why a delay was necessary. Not every case can be brought to trial in the 210 days prescribed by statute, but it is always possible to describe why any particular case did not. In this, the OJCC failed this injured worker back in 2004. But, a trial was eventually held.

It is the obligation of this office to afford people an opportunity to tell their respective sides of the story. The employee and employer should each have a chance to bring witnesses, submit documents, and try their case in the way they feel is appropriate (of course subject to the parameters of the law in Chapter 440, the Florida Evidence Code, other applicable statutes, and the Rules of Procedure for Workers' Compensation Adjudication). That is what due process means.

This Office has the obligation to issue a trial order thereafter in a timely manner. The statute says this will occur within 30 days. The vast majority of OJCC orders meet that deadline. When we do not meet that deadline, just as with timely trial, we should explain why.

If someone is not happy with the outcome of a trial, they can ask for the judge to reconsider the decision. This is a motion for rehearing, the rule is 60Q6.122. It has to be filed within 10 days of the judge issuing the order. Though the rule says "motion," Rule 60Q6.115(1) says that "the judge may treat any request for relief from an unrepresented party as a motion." Essentially, the person that wants reconsideration of a decision has to ask the judge to do so; in writing is always best. 

If someone is not happy with the outcome of the trial, they may also appeal a Judge of Compensation Claims' order. All workers' compensation appeals in Florida are within the authority of the Florida First District Court of Appeal. I sometimes get asked "why," and the best answer is that the statute says so. That is what the legislature has decided. To appeal, the person files a document with the Judge's office that says they want to appeal or want the case reviewed by the Court of Appeal. This "notice of appeal" has to be filed within 30 days of the order. 

Sometimes litigants represent themselves. They should know that there are Rules of Appellate Procedure for workers' compensation claims. There is also a book written by the Appellate Law Section of The Florida Bar that may be helpful. These resources are both available on this Office's website,, under the "Resources" tab. 

This Office conscientiously strives to make the best decisions possible, based upon the information appropriately provided by the employees and employers in each case. When someone is dissatisfied with the outcome, they can seek to involve the judicial branch, the Florida First District Court ("I object"), and if still unsatisfied can seek review by the Florida Supreme Court ("I strenuously object"). 

But, when that process is over, it is really over. The injured workers and sometimes employers that contact me think that there is something I can do to change the decisions of the trial judge or the appellate courts. Once 30 days passes after the order, if no notice of appeal is filed, it is over. Once the appellate courts have ruled, it is over. 

I cannot change what the Courts have decided. I cannot investigate or punish attorneys, employers, or insurance companies. When its over, it is really over in the Office of Judges of Compensation Claims. Though it is possible to file complaints with the Department of Financial Services, Division of Workers' Compensation, Office of Insurance Regulation, The Florida Bar and more, none of those agencies can change the decision of the trial judge or the appellate court. Though each might take action against someone involved in a case, none will be able to award benefits to an injured worker. 

It is therefore critical that people understand the proceedings before a Judge of Compensation Claims are their opportunity to prove entitlement to workers' compensation benefits. It is their one opportunity regarding those specific claimed benefits. If they lose, he/she/they have a right for one appeal, review by the First District. After that, she/he/they may ask for further review, but that further review is not a "right," and may not occur. And, "when it's over," it is really over. 

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