Thursday, December 1, 2016

"Trial Orders," Definitions and Rules in Florida WC

Every year, the Florida Office of Judges of Compensation Claims submits a report regarding the state of Florida's adjudication system. This year's report is in the proofing stage and will be published close to November 30, 2016. The following is an excerpt from that report.

Data interpretation is a focus of this report. For the integrity of the data presented, criteria are uniformly applied to the categorization of orders and judicial efforts. This is in an attempt to produce consistent results. The OJCC does not exercise any guidance or control, however, over the methodology each judge employs for docket management. 

Thus, judicial independence dictates that whether to hold an evidentiary hearing, a procedural hearing, or to adjudicate a matter without hearing is up to the assigned judge. There are those judges who appear to hold a significantly higher volume of evidentiary hearings than other judges. Some judges accuse others of holding such hearings for the sole purpose of producing statistics published in this report. It is impossible to determine a judge’s subjective decision to hold a trial or to rule without a trial. The data reported herein is therefore primarily a recitation of the volumes, but not an analysis of propriety or necessity for such activities. 

There are also judges who appear to hold a great many more procedural hearings than do other judges. For procedural matters, the Rules of Procedure for Workers' Compensation Adjudications provide that the vast majority of motions will be determined without hearing, and that motion hearings will be held only in exceptional circumstances. It appears that there are some judges who tend to conclude that any dispute is an exceptional circumstance and hold many procedural motion hearings. 

Anecdotally, there are also some judges who decline to follow the Rules of Procedure for Workers' Compensation Adjudications in other instances, including ignoring the Rules’ provision regarding approval of costs in conjunction with fee stipulations and motions. 

This annual report marks a departure in the methodology of quantifying trials. In 2006, a committee of Judges of Compensation Claims addressed the historical issue that this agency has faced in this regard. Prior to the legislative transfer of the OJCC to the Division of Administrative Hearings (DOAH), there were efforts at gathering and representing data. However, definition and consistency were difficult. There was no definition of “trial” and each of the 31 judges made independent definitions of what event constituted a trial. 

Historically, there were abuses under this paradigm. One judge was known to consider a “trial” to be any event which “raised his blood pressure.” There were instances in which parties, despite having reached an amicable resolution of issues, were required by judges to present for the scheduled trial so that the terms could be recited on the record. Thus, there was manipulation and inconsistency. 

In 2006, the committee concluded that it would be appropriate to include the known trial events in the definition. Final Hearings regarding petitions for benefits, and hearings regarding contested attorney fees pursuant to a verified motion or verified petition required no real analysis. But, there was recognition that some other evidentiary matters were similar to such proceedings, in that evidence would be required to determine the matter and a substantive order would be required to adjudicate the issue. Thus, the OJCC adopted a definition of “trial” that included merits hearings, contested fee hearings, and evidentiary motion hearings. 

The trial volumes, time to trial and time to order calculations have included the orders in this definition for ten years. That inclusion has not been without controversy. Each order entered by a Florida Judge of Compensation Claims is uploaded to the appropriate case docket. When that filing occurs, the filer characterized the order. Thus, how any order was initially characterized was dependent upon the judgement of the filer, be it judge or staff at the judge’s direction. 

Each year, the “trial orders” were reviewed and audited in the preparation of this report. Many were removed annually from the “trial order” list. These were orders that should not have been characterized in the filing process as “trial orders.” They were non-substantive orders, orders entered without a hearing (no hearing, no “trial”), and orders entered when no evidence was either needed or introduced. 

In the course of that process in 2016, a large volume of orders was identified that did not belong in the “trial order” categorization. Through the audit process critical to this report, various excuses and contrivances were enunciated to excuse the inclusion of these orders in the population of “trial orders.” The most disturbing of the excuses/justifications was that this Office should strive to appear engaged and busy, and these contrived orders would support such a conclusion. 

The clear conclusion is the antithesis of that justification. This Office has no obligation to “look” busy, but is instead obligated to effectively and efficiently process, mediate, and adjudicate workers’ compensation claims. The efforts of this office should be measured as required by law. But, those measurements should be accurate and concise, not contrived or concocted.

Therefore, the definition of “trial order” was changed in 2016 to include only Final Hearings regarding petitions for benefits, and hearings regarding contested attorney fees pursuant to a verified motion or verified petition. That change results in lower trial volumes, and longer periods “to trial” and “to order.” 

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