Tuesday, February 7, 2017

A Very Brief Case Worthy of Study

On June 9, 2016, the Florida Supreme Court decided Westphal v. City of St. Petersburg, 194 So.3d 311 (2016). By this time, that is likely "old news" to most who read this blog. Remember Westphal Over, Questions Remain? Since then, there has been significant discussion of Florida workers' compensation. Should it be "reformed," and if so, what does that word mean? 

Questions I have heard include: Should the measure of temporary indemnity benefits be increased? Should the duration of temporary benefit entitlement be increased? Should permanent partial disability (impairment benefits") be calculated differently? Are statutory benefit caps the problem or the answer? Should the statute provide discretion for an adjudicator to extend benefits beyond presumptive limitations? Can the system be simplified? Can benefit deliver be accomplished with fewer interruptions and less litigation? All interesting questions, and I am certain that there are others equally as interesting. 

This all occurred to me again when the Florida First District Court of Appeal issued its decision in Gomez-Lujano v. Palm Beach Grill (1D15-0670) on January 19, 2017. In that case, the Judge's order was entered January 16, 2015, following a trial on December 17, 2014. The petition for benefits (PFB) that led to the trial and the Judge's order was filed May 23, 2014. The injured worker appealed the order of the Judge of Compensation Claims on February 12, 2015. 

So, this case matter required 208 days to proceed from PFB to trial, within the statutory parameters in section 440.25, Fla. Stat. 

The final order required 30 days, also within the statutory parameters in section 440.25, Fla. Stat. 

The First District rendered its initial decision on November 19, 2015, and the injured worker sought review of the Supreme Court (which already had Westphal v. City of St. Petersburg under review). This first process at the District Court took about 280 days. At the time of the November 19, 2015 court decision, the injured worker's petition had been pending 545 days, or about 1.5 years. 

When the Supreme Court rendered its decision in Westphal on June 9, 2016, Gomez-Lujano's petition had been pending 748 days.

According to Gomez-Lujano, the Supreme Court issued its order in this case 140 days after Westphal, on October 27, 2016 (about 339 days after claimant sought review on November 23, 2015). That decision ordered the First District to reconsider its November 19, 2015 decision in light of the Court's decision in Westphal. And on January 19, 2017 the First District concluded its analysis by publishing its decision. 

As of January 19, 2017, the petition has been pending 972 days, or about 2.6 years. The Office of Judges of Compensation Claims required about 238 days (24% of the total), the initial decision of the First District required about 280 days (29% of total), The Supreme Court required 339 days (35% of the total), and the First District's second decision required 84 days (9% of total). 

If this had been a case that had avoided the Supreme Court, the total would have been about 545 days (or about 1.5 years). Of that time, the Office of Judges of Compensation Claims required about 238 days (44% of the total), the initial decision of the First District required about 280 days (51% of total). 

Notably, these figures do not add up to 100% because some time passed while parties examined the various decisions and decided whether to seek review at different stages in the process. 

To many, either time seems long. Two and one half years could be a long time for anything (and one and one half years is not short). I have an acquaintance that has never owned a car for more than two years. He tells me that by that time, each has become "old." As I drive a 20 year old truck daily, I note that his and my perceptions of "old" differ). More than two years is a long time to be awaiting a decision about your life. Imagine waiting 2 years to find out if you got a job, a raise, or a promotion you sought. Imagine asking someone to dinner and waiting two years to find out if they agree or decline. 

In the workers' compensation context though, this is waiting two years to find out if you would be paid compensation for time missed from work. And, during the same time you might not be working or earning other income (but the bills will certainly continue to arrive in the mean time). Imagine waiting two years to learn whether some medical procedure recommended by one doctor and refuted by another would be provided. And, during the same time you might be uncomfortable, limited or in pain. Two years is a long time. 

Perhaps Gomez-Lujano will not be a case on the tip of every tongue (like Westphal, Castllanos, Miles, and more). This is a very short decision, which essentially says that "finding that reversal is warranted in light of that opinion (Westphal), the order of the Judge of Compensation Claims is REVERSED and this case is REMANDED for proceedings consistent with that opinion." Granted, the opinion itself is not so "ground breaking."

But, it is worthy of our consideration because it involves a person. A person that has invested two and one-half years of a lifetime in getting to the finality of a litigation process. It involves an employer whose business has likely been interrupted, and who has likewise waited years for an outcome. 

The point is that workers' compensation claims involve real people, both employees and employers. They are thrust into a legal process by law, and each relinquishes some volume of rights in exchange for some measure of statutory relief. Leaving arguments aside regarding whether this system is "sufficient" for either, we must remember that each is in the system. Each is dependent upon that system.

Fortunately, the majority of work injuries do not result in litigation. Most proceed through the administrative process and close. But some enter the litigation process through a petition. Those petitions lead to mediations. Those that do not resolve at mediation or other compromise lead to trials. Trials lead to orders, and orders sometimes to appeals. And throughout, everyone involved must remember that this process is for real people. And, the process needs to be expeditions and efficient, and effective. 

If there is to be reform, perhaps it would be well focused on a system that identifies and eliminates as many "friction points" as possible. Perhaps making the delivery system simpler and removing points of disagreement is the best answer. 

In 1983, the movie War Games was released, starring Matthew Broderick. In it, a United States Defense of Department ("DOD") scientist programs a computer to simulate possible outcomes from various hypothetical scenarios of global nuclear war. Remember back in the 1970s and 80s there was still a cold war and computers were not as universally accessible as they are today. The movie was topical then, and quite popular.

Having run through a very rapid succession of potential beginnings and endings of a "game" simulation called "global nuclear war," the computer, named JOSHUA, concludes that nuclear war is inadvisable. This conclusion perhaps makes us feel superior to JOSHUA in that most of us humans had already intuitively concluded that war is a bad idea. JOSHUA explains his conclusion to the scientist saying "a strange game. The only winning move is not to play. How about a nice game of chess?"

Perhaps the system of litigation is in fact one in which the only winning move is not to play. Maybe the delays in finality are themselves an element that drives decisions. In days to come, this blog will discuss some friction points that might be remedied in discussions of reform. Perhaps a simpler system would lead to less disputes, less need to resort to this litigation process that consumes so much time. 

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