Sunday, February 12, 2017

On Mental Status in Workers' Compensation

The subject of mental capacity was in the news recently in workers' compensation. A pro-se party in Alabama was ordered to undergo a mental examination in In re Dwayne Johnson v. Tidra Corporation, (Lee Circuit Court, CV-12-900563). Procedurally, the case is also interesting because it involves Mandamus, an "extraordinary writ." 

Mandamus is an appellate order compelling some government official to perform an official act. In this instance, it was the appellate court ordering the trial court to enter an order to vacate an earlier order. When there is a final order, it is more common in Florida that there is an appeal of the earlier order, and the appellate court would, where appropriate, quash that order in reversing the decision. But in extraordinary situations, such as when no appealable order has been entered, then Mandamus may be the only appropriate process to seek relief. 


In Johnson, the court explained that the trial court had ordered medical benefits for the pro-se injured worker and ordered a mental examination. The injured worker did not resist the order, but the employer/carrier asked the trial court to reconsider ("rehearing"). While the "rehearing" motion was pending, the trial court's order was not a "final" order, and the motion for rehearing did not "toll" (or extend) the time limitation for seeking relief from the appellate court. The Employer therefore sought relief by filing the "writ of mandamus." The court concluded that the employer seeking mandamus was proper, "despite the pendency of its motion to reconsider."

This illustrates a difficult situation for a party. It wants to have an appellate review occur. But, there is no appealable (final) order. The reason the order is not final is because that party has appropriately asked the trial court to reconsider (it is usually quicker and less expensive to point out issues or problems with an order through a motion for rehearing, and hope that the trial judge corrects the issue). So, with no final order to appeal in this case, the party seeks an extraordinary review, the "writ of mandamus."

As an aside, the Rules of Procedure for Workers' Compensation Adjudications also do not "toll" the time for appeal while a motion for rehearing is pending. See, Rule 60Q6.122.

In granting this petition for Mandamus, the Johnson court concluded that the trial court lacked authority to order a mental examination "on its own motion." The rational of the court essentially relies on differences between the Alabama Rules of Civil Procedure and the Alabama Rules of Criminal Procedure. The court noted that the Criminal Rules provide authority for a judge to order an examination on "the court's own motion." However, the Civil Rules say that such an examination can be ordered "only on motion for good cause shown." The Court reasoned that if the authority under the two sets of rules was the same, the rules would say the same thing (or at least be more similar). 



The Johnson decision is instructive on several levels. First, that a judge might perceive issues of mental capacity. When a judge perceives such issues, is it appropriate to act? Second, how do parties seek review of decisions with which they disagree? Third, note that the trial court ordered the mental examination of the injured worker, who did not resist. It was the employer that sought review of that decision. 

Judges are charged with making a great many difficult decisions. How are they to deal with persons that are impaired? This can occur in a variety of circumstances, with impairment that may be temporary or permanent. A temporary impairment example might be a witness that comes to trial under the influence of drugs or alcohol. That has occurred. A simple solution to temporary impairment is delay of trial, in hopes that the temporary impairment will not persist or recur. 

But whose responsibility is it to (1) determine impairment exists and (2) decide whether the extent of impairment (how many drinks has someone had) justifies delay? Should it be up to the parties to object based upon their individual perceptions, or should it be up to the judge to intervene regardless of their perceptions? In other words, should the judge suggest there is a problem, or is that up to the parties trying the case? Who is responsible for assuring that there is due process and effective presentation of evidence? If the parties do not think the witness is impaired, should the judge's responsibility include second guessing them?

When impairment is perceived as potentially more lasting, the same questions might be applied regarding responsibility. This may occur in a variety of settings where the injury, medical procedures, or pre-existing mental capacity are perceived as limiting capacity. There is minimal statutory guidance on this in Florida workers' compensation. 

In some settlements that involve an unrepresented worker (Section 440.20(11)(b)), There is at least authority for judicial inquiry: "the judge of compensation claims shall make or cause to be made such investigations as she or he considers necessary." But, that authority might be limited to the settlement situation itself. 

The Florida statute provides some protections to the "mentally incompetent," see Section 440.19(5), Fla. Stat. And there is provision (italics are direct quote) for appointment of a guardian in Section 440.17, Fla. Stat.:

a judge of compensation claims, may require the appointment by a court of competent jurisdiction, for any person who is mentally incompetent or a minor, of a guardian or other representative to receive compensation payable to such person under this chapter and to exercise the powers granted to or to perform the duties required of such person under this chapter; 


This provision does not appear to empower the Judge of Compensation Claims ("JCC") to remedy a perception of impairment, but perhaps merely to require such a remedy from a court. In other words, the JCC may "require" that competency issues are addressed. By such an order of requirement, does the JCC have authority to compel a constitutional court to appoint a guardian, or simply compel the court to consider such a decision? 

The dependent clause "or any person who is mentally incompetent or a minor" likely means that the court and not the JCC would decide whether or not someone was incompetent; thus, the JCC authority might likely be limited to the decision of whether to compel parties to have such a competency issue addressed by a court. 

This statute does afford the JCC some direct authority and discretion. In addition to that authority to compel consideration by the courts, the JCC has discretion  to:

designate in the compensation award a person to whom payment of compensation may be paid for a minor or incompetent, in which event payment to such designated person shall discharge all liability for such compensation.

Arguably, that authority applies only to an "award" of contested benefits ("in the compensation award"). Similar language is employed by the statute in Section 440.25(4)(e)(italics are direct quote):

(e) The order making an award or rejecting the claim, referred to in this chapter as a “compensation order,” shall set forth the findings of ultimate facts and the mandate; and the order need not include any other reason or justification for such mandate. 

Another broad statutory provision may also become involved in such a discussion. Section 440.33(1), Fla. Stat. (italics are direct quote) includes a very broad description of authority for JCCs 

The judge of compensation claims may . . . do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of her or his office.

This provision has been interpreted in a number of appellate decisions. Whether a JCC or an appellate court would conclude that this statutory authority empowers a JCC in situations of questioned mental capacity is interesting.

Therefore, it is a debatable point whether a JCC could order payment of ongoing, voluntary, benefits to a designate or representative for "a minor or incompetent." In the broadest context, decisions of competency may rest with Florida's constitutional courts, whether on referral ("require") of the JCC, or upon independent instigation of an action by the parties to a case. In the specific context of settlement by an unrepresented party, perhaps the JCC's authority is more broad. 

The second point of interest is how parties seek review of decisions. Statutorily, all review of orders entered by JCCs is within the authority of the Florida First District Court of Appeal. Section 440.271, Fla. Stat. For purposes of appellate review generally, Florida is divided into five Districts. The First District is the largest geographically, including 32 of Florida's 67 counties. The Third District is the smallest geographically, including only two counties (Dade and Monroe). 

An appeal from a constitutional court (Circuit or County) generally proceeds within the geographic area of one of the District Courts. For example, a review of a decision by the Circuit Court in Dade county, regarding appointment of a guardian for an injured worker, would be reviewed by the Third District Court in Miami. However, a decision of a Dade county JCC regarding the same injured worker would be before the First District Court in Tallahassee. This has the potential to become confusing to some. 

How review is requested, and how such appeals proceed, is described and defined in the Florida Rules of Appellate Procedure. While attorneys are generally familiar with those processes and procedure, they are perhaps less known to non-lawyers. The Florida Bar Appellate Law Section has published The Pro Se Appellate Handbook to provide guidance and advice to those less familiar with the appellate practice. There are paths for appellate review of final orders, such as one awarding or denying workers' compensation benefits. There are also processes for extraordinary writs such as Mandamus (to compel action) or Prohibition (to prevent action). 

The final point of interest is in the Alabama trial court's order for the injured worker to be examined. In a discussion of this case at a recent seminar, a conversant expressed surprise at the outcome. The injured worker is the one ordered to be examined, and had no objection to the trial judge's order. This conversant felt it inappropriate therefore for the employer/carrier, that in her/his perspective was unharmed, to appeal an order. 

Another participant in this conversation, however, pointed out that this examination regarding mental capacity would not be performed free of charge. Thus, the order for examination burdened the injured worker with being examined (time, inconvenience, etc.), but burdened the employer/carrier financially. The participant also suggested that a decision of incompetency might lead to further complications and procedures for the employer/carrier, and potentially a commensurate increase in cost.

These suppositions and questions regarding the "why" of the appeal are interesting. But, the point is that any party feeling aggrieved may seek review by the appropriate appellate court, through appeal or writ, and that this process may not be either clear or easy. Thus, while there may be supposition and discussion of "why" one might appeal in a particular situation, it is important to remember that both "why" and "whether" to seek appellate review is up to each party to a case. 



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