Recently, I ran into an insurance professional at a conference. Our discussion turned to the National Conversation and this professional's criticism of "prevailing costs." It is not the first criticism I have heard. In 2012 David DePaolo penned an article referring to "cost shifting" as Irrational at Best, Unjust at Worst. You never wondered where David stood on things. The provision for costs in Florida is simple, set forth in Fla. Stat. 440.34(3), which says (italics are direct quote):
If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees.
David DePaolo's point regarding this statutory framework was concise and direct (italics are direct quote)
In particular I'm struck by the inequity of pitting individuals of limited means against much larger litigants with much greater resources - something that workers' compensation laws were originally intended to rectify.
Simply stated, he objected because a party with limited means might find themselves with a liability instead of an asset at the end of the day. That litigation creates risk was troublesome to him.
So, back to the recent conference and my conversation with this industry professional, whom I will not name. In fairness, once you write a blog or other public posting then it is fair game. But when ideas are conveyed in a private conversation only the ideas and thoughts become fair game, but not the speaker's identity. Otherwise, no one would talk to me! Let's be fair, most of you won't talk to me now.
This industry pro suggested the following hypothetical scenario:
The worker's treating physician recommends a medical procedure that is denied by the employer/carrier ("E/C"). A petition for benefits ("PFB") is filed by the worker. The E/C sends the recovering worker to an independent medical examination ("IME"), and that doctor agrees that the procedure is not appropriate (not medically necessary, not related to the work accident, etc.). The recovering worker proceeds to trial (or at least to mediation) and does not prevail. The procedure is not authorized, and the petition is either denied by the judge or dismissed as information and evidence is developed.
The employer/carrier has thus prevailed. Under the provisions of Fla. Stat. 440.34(3) costs "shall be taxed." The industry pro suggested to me that this is fundamentally unfair, because the recovering worker simply followed the advice of the "treating physician." The pro advocated that this medical provider, because of the "treating" status and resulting depth and breadth of experience with this recovering worker, should be afforded deference and respect. The pro contends that following the advice of the treating physician is ultimately "good faith," and absolutely appropriate. Following the advice of the treating physician, even if it turns out later to have been the wrong decision, should not result in detriment, according to this pro.
This is a logical and reasoned position. Whether one agrees with it or not, it is a rational and thought-through construct. In the course of the National Conversation on workers' compensation, there is always room for logical and thought-provoking propositions and ideas. I appreciate and solicit them; they increase introspection and discussion.
I asked the pro to consider a similar hypothetical. What if the treating physician declines to recommend or prescribe a procedure, and the recovering worker obtains the IME supporting the need and relationship? Then the worker files a PFB seeking the procedure. The E/C then proceeds to trial or mediation and either elects to provide the care or is ordered by the judge to do so, based on the IME testimony. The recovering worker has prevailed. Under the authority of Fla. Stat. 440.34(3), the worker is entitled ("shall") to the litigation costs, as discussed above. And, the worker is entitled to attorney's fees for prosecuting the claim and prevailing.
I asked the pro whether the recovering worker should be absolutely ("shall") entitled to recover costs and fees when all the E/C in this scenario had done was follow the advice of the treating physician so revered in the pro's original hypothetical. And the answer was simple and quick, "yes." The pro explained to me that of course the E/C should be liable for fees and costs in this scenario because the recovering worker had prevailed. No similarity was perceived, or at least acknowledged, between the two hypotheticals.
As we continued to talk, ultimately, the logic of the position came down to one point. And though this pro perhaps did not realize it, the pro's position was channelling David DePaolo. At the end of the analysis, the seeming incongruity came down to one point: the E/C has resources and the recovering worker does not. So, the pro's contention is that the party without resources should have every opportunity to pursue any request, recommendation, or claim without any potential for liability, and the party with resources should be penalized for failure despite whether its position was in "good faith" or baseless.
The outcome had nothing to do with whether someone was following the advice of the treating physician. It had nothing to do with that advice being more revered or respected than other opinions. The argument that following the treating physician's advice is the ultimate "good faith," and appropriate, in this discussion was simply a red herring or distraction.
Both of these hypothetical scenarios make for interesting discussions. At the end of the analysis, perhaps the two suggest a similar issue?
Some critics have suggested that the current state of America's workers' compensation systems result from judges exercising too much discretion, expanding liabilities, and working equity outside of, and around, various laws and regulations. I have heard this criticism leveled at multiple jurisdictions, specific rulings, and both trial and appellate judges. The legislative reaction, the critics contend, was to tighten requirements and remove discretion. In some degree, perhaps, with words like "shall."
The critics argue that the distrust of adjudicators has led us to statutes which afford less (or no) discretion. It is less clear whether this purported distrust the critics perceive is legislative or public.
Perhaps some of those who lament the mandatory "shall" of the Florida cost statute, or the attorney fee statute would rather that the judges had more discretion? Would they prefer the less stringent "may?" Perhaps "may" would result in less predictability in terms of how cases would be decided? And, perhaps predictability and consistency are too critical to the system to take such a risk?
Absolute language leads to absolute outcomes. This is true in a variety of Florida workers' compensation settings. The Expert Medical Advisor ("EMA") statute, described in Not with a Bang but with a Whimper, likewise employs the mandatory "shall," and leaves the adjudicator with no discretion. The stated benefit of mandatory language is consistency. The detriment of mandatory language is the risk of results that are at least perceived as inconsistent. Judge "A" in one city may exercise discretion differently than Judge "B" across the state.
In either setting, mandatory (shall) or permissive (may), those outcomes will undoubtedly be absolutely appropriate in some cases, but as certainly they may be inappropriate in others. In other words, critics of the "shall" such as David and the industry pro described above lament the mandatory language in this instance and advocate for discretion. This criticism is of the law. But, given discretion a judge might not award in another instance, and that denial might likewise be viewed as unfair or inequitable. Though that criticism would be of the judge, and the exercise of discretion, it would be criticism nonetheless.
Is it possible for there to be an unassailable, absolutely appropriate, objectively "fair" outcome in every dispute?
This is all intriguing to consider. The issue is likely not about how people perceive or feel about costs, fees, or expert medical advisors. The issue for consideration is more likely how people perceive or feel about trusting judges and affording them discretion. Should systems dictate outcomes through mandatory ("shall") language? Should the systems dictate outcomes without the discretion and reason of the adjudicator? And, in the end, if the adjudicator cannot be trusted with discretion, then what can she/he be trusted with?