Sunday, August 14, 2016

Filing a Response or NOT?

The Florida Office of Judges of Compensation Claims is responsible for adjudicating workers' compensation disputes throughout Florida. As the state's population has increased, the resources of this agency have remained virtually static. Of course, there was an expansion of personnel and resources in 1994 when the legislature added a mandatory mediation process. Positions were added for 31 state mediators, and 31 staff to support the mediation process. 

In 2006 the Legislature added one judge to the FLJCC, and that position was deployed to Ft. Myers. That "addition" was retracted in 2012, when the legislature eliminated a judicial position and three mediator positions in the FLJCC. This office is staffed today with fewer professionals than in 1994 (22 years ago).

But Florida has grown. The U.S. Census Bureau estimates that in 1994 Florida's population was 13,870,000. National and State Popluation Estimates, 1990-1994, Table 3.  The Florida population is currently estimated at  20,085,000. Over twenty-two years, a significant increase of 6,215,000, forty-five percent. 

In the 1993 special session,  the legislature made significant changes to the Florida workers' compensation law. An intent of that reform was to decrease friction in the delivery of benefits, to decrease both the need for and prevalence of litigation. The effort was not successful. Litigation blossomed and filings increased dramatically thereafter. 

In 2001, there were revisions to the statute, followed by more in 2003. An intent of that reform was again decreasing litigation. The effects were profound. Petition for Benefit filings decreased dramatically over the years following 2003. Simultaneously, the FLJCC and the Division of Administrative Hearings heeded an instruction issued by the 1994 legislature: draft administrative rules of procedure for workers' compensation. For decades, the Supreme Court had inappropriately and improperly provided procedural rules, and the legislature wanted that to end. 

The Rules of Procedure for Workers' Compensation Adjudication (Fla.R.Pro.Work.Comp.) were enacted. Following unsuccessful efforts by the Bar to prevent those rules from becoming effective, the Supreme Court admitted that it had no authority to make rules for executive branch agencies. The Court noted that it had never had such authority. The Supreme Court's Rules of Workers' Compensation Procedure, used for decades, were never legal, a violation of separation of powers. They have been repealed for over 12 years, and yet some attorneys still cite them. It is unclear if this is through inadvertence, artifact forms, or some other cause. 


The Fla.R.Pro.Work.Comp. rules are now applicable (there is debate on this abbreviation). Some believe that although the Supreme Court cannot make executive branch rules, it can dictate how they are cited. They therefore believe the appropriate abbreviation would be the one stated in the Court's Rules of Appellate Procedure, "Fla.Admin.Code.R. 60Q______." An interesting perspective.


One of the major changes that came with executive branch rules in 2004 regards the handling of motions. Essentially, the FLJCC is an adjudicatory body. Its mission and focus is to either resolve (mediation) or adjudicate disputes about workers' compensation benefits. The substantive issues are most often brought to the table through a Petition for Benefits, which states known facts about a case and details what benefits are requested and why. The law then affords the employer/carrier an opportunity to respond to those allegations, through a Response to Petition. 

The paradigm is relatively simple. One side says that it is entitled to something, by filing a petition. The other side then responds and either provides that benefit(s) or states why it is not. This defines and refines the dispute. Both sides should be comfortable with where their positions differ. They should understand what is the nature of, the foundation of, their disagreement. Armed with this knowledge, each may prepare to seek their desired outcome, to accumulate and authenticate the evidence that will prove their respective arguments. 

In the midst of such substantive disputes, it is too often the case that these parties have other disagreements. They disagree over whether various documents should be provided to each other, whether various evidence is admissible, whether certain evidence should be procured, when the trial or mediation should occur, and much more. These disputes, like those in the Petition, need to be decided by the Judge. 

These are brought to the attention of the judge by filing a "motion." The Fla.R.Pro.Work.Comp. require that "any request for an order or for other relief shall be by motion and shall have a title describing the relief requested." Rule 60Q6.115(1). Stated simply, the way to have a procedural dispute resolved is to file a motion in the case. Calling the Judge's office to describe issues, disputes, and conflicts is not the appropriate method to get help. Writing a letter to the Judge is not appropriate. The right tool is a motion, clearly stating the problem and requesting a solution.  

To simplify things for those who do not have an attorney, the requirements are somewhat relaxed. The Rules say that "the judge may treat any request for relief from an unrepresented party as a motion." Rule 60Q6.115(1). Thus, letters from unrepresented parties might be considered a motion and adjudicated. The fact is that letters from uninformed attorneys, who lack an understanding of motion practice, are often treated like motions, just as they would be if filed by an unrepresented party. Some attorneys simply do not grasp the motion concept. 

The point is that the party tells its story by filing a motion. Similarly to the Petition process, this will put the other party on notice of the dispute or issue. It is hoped that these issues will only be brought to the Judge's attention if there is a real dispute. To discover whether there is a real disagreement or just a misunderstanding, the parties need to talk about the motion and the issue. This communication is required: "prior to filing any motion, the movant shall personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion." This means having a "conversation" (from the same latin root as the word "confer"). Rule 60Q6.115(2).

Then, there is the opportunity to reach an even better understanding of the procedural dispute that has led to this motion. The Rules allow that "the other parties may, within 15 days of service of the written motion, file a response in opposition." This is the chance for the "other party" to tell her/his/its side of the story. In a funny sports parody movie, Dodgeball; A True Underdog Story, a commentator played by Jason Bateman provides nonsensical "color" to the ongoing play-by play. When the announcer notes that one team has forfeited (given in, given up, withdrawn) the championship, Bateman vacuously notes "an interesting strategy, let's see how that works out for them." 

I am reminded of that quote when motions are filed, but no response. The "other party" was consulted; there was a conversation. That process did not lead to resolution. The parties have a real disagreement. The motion says so (the rules require that the moving party state in the motion that she/he has conferred as required and that the other party objects). So, from the motion the judge knows there is a real dispute. One party wants something and the other side objects. 

But what is the real dispute? With one side presented in the motion, the other side elects not to file a response as allowed by the rule. They have forfeited, and then we perhaps hear Bateman's voice "interesting strategy, let's see ho that works out for them." Certainly, there is no requirement that a response is filed. But, if there is a reason why the judge should not grant the motion, what is it? If the "other party" does not want to see an order granting the motion, why don't they say why? Why don't they explain their argument? Why don't they tell their side of the story?

It is possible that some believe that they can just wait and make her/his points at a hearing on the motion. But this is naive and uninformed. Most motions in the Florida workers' compensation process will never have a hearing. There will rarely be an opportunity to sit with the other attorney and the judge and voice positions and arguments. Why? Simply because the rules say so, and most of the judges follow the rules.  

The normal process will be for the judge to "rule after the response is filed or after the response period (15 days) has expired, based on the motion, together with any supporting or opposing memoranda." So, the default is for the ruling to be made on the written documents filed. Rule 60Q6.115(4). In fact, the "judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response." While there are a few judges who nonetheless regularly schedule hearings, a party cannot count on a judge breaking the rules for them. With growing litigation and growing state population, there is simply not time for a hearing on every motion. 

The ultimate conclusion of all of this is simple. The judges have their respective hands full. The population of Florida is expanding, and there is significant litigation in this system. In the vast majority of instances, there will be no motion hearing, no oral arguments. Therefore, the "other party" is well advised to take full advantage of the opportunity to file a response to any motion. Tell your story, make your argument. Forfeiting, while perhaps interesting to Jason Bateman, is not likely the best practice to prevail on your opposition to a motion. 

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