Sunday, July 23, 2017

Writ Protection as Opposed to Appeal

In June, the Florida First District Court published its opinion in Lewis v. Dollar Rent a Car. The case is instructive and interesting. Though it is an appellate court decision, it is not technically an "appeal." Appellate courts have both appellate jurisdiction and "original jurisdiction," and in this instance it was original. 

Appeal generally follows the issuance of a final order either by some court or an administrative agency such as the Office of Judges of Compensation Claims (OJCC). As an aside, there is no doubt that the OJCC is no "court," though a great many still refer to us as "this court." Whether that is the product of ignorance or inadvertence is unclear and likely as unimportant. But, it is worth reiterating periodically. 

Trial courts and administrative agencies conduct hearings, and make decisions regarding disputes between parties. Those can be major disputes such as whether one side has proven entitlement to damages (or workers' compensation benefits) or not, whether a witness is telling the truth, whether one physician's conclusions are more credible than another, and more. 

Or, the disputes may be smaller conflicts that arise while the parties prepare the larger dispute for trial. When these smaller disputes arise, the parties often work them out through discussions and compromise. But, when they find they cannot, one of them will often file a motion seeking the tribunal's intervention. A motion is simply a formal request for the trial court or judge to settle the minor dispute. It is astounding how many motions are filed and how many orders a judge must enter resolving them all.

During this period when cases are prepared for trial, when these smaller disputes arise, it is possible that a variety of disputes might come to the trial judge for resolution in a particular case. The outcome of any of those disputes might have an effect on the ultimate outcome of the trial towards which the parties are moving. For example, the dispute might be over the production of certain documents one party has but does not want to provide to the other party. How the trial judge decides that dispute may affect what evidence is ultimately available and introduced at trial. 

The role of the appellate court, in most cases, is to review a trial judge's decisions on such issues after a trial is concluded. Dissatisfied with the outcome of trial, a party might appeal based upon the decision regarding a motion before trial, or upon an evidentiary ruling at trial, or upon an interpretation of the law made in the course of the ultimate decision from trial. These appeals can be limited to a single tribunal decision, or may focus on a number of decisions made both before and during trial. 

But, there are also instances in which it may be inappropriate for a decision to await the end of the trial process for review. In those instances, rather than appeal after the trial, a party may seek to have the appellate court intervene on a particular decision that the party believes should not await the conclusion of the trial case. The party in that instance files what is called an "extraordinary writ." There are various descriptions of these, but three common writs are for "prohibition" (asking the appellate court to tell the trial court to stop doing something), "mandamus" (instead telling the trial court to do something particular), and certiorari (correcting an error of the trial court). 

In Lewis, the employer/carrier asked the injured worker to attend a functional capacity evaluation (a test in which the physical capabilities of a patient are tested and measured). The injured worker did not wish to undergo the test, and he employer/carrier filed a motion asking the trial judge to order attendance, which the judge granted. The injured worker might have undergone the test and nonetheless appealed the ultimate outcome of the trial, then contending that order was wrong. But, in this instance the worker sought immediate review by certiorari. 

There are many cases in litigation at any moment in time, and a great many motions are decided in them. It would be impractical for any appellate court to review all such decisions. For example, in Florida there are over 1,000 trial judges at work each day making decisions, and there are only 72 appellate judges (including 7 Supreme Court Justices). The 65 judges of the intermediate appellate courts (the District Courts of Appeal) make their decisions collectively, usually in three judge panels (those 65 judges can collectively form about 22 panels at a time). It is mathematically impractical for appellate courts to review every decision by certiorari. 

Therefore, this type of review, an immediate review, is not available for every trial court decision. To be entitled to such relief, a party must demonstrate that the complained of decision causes "harm that cannot be corrected on appeal,"and that the order complained of results "material injury for the remainder of the case." In other words, the party must demonstrate to the court that there is a compelling reason for appellate intervention in the process before the conclusion of the ultimate trial. 

In Lewis, the Court noted that the motion to compel had been based on a prescription from the treating physician and that the employer/carrier asserted it was "medically necessary." But, the Court noted that no evidence to support those medical opinions was filed in support of the motion. But, on the morning before the motion was heard, documents were filed including the FCE prescription, medical records, and a physician note saying the test was “medically necessary.” 

The trial judge accepted the documents as evidence over the injured worker's objection. The injured worker argued that the documents from the doctor were not provided in a timely manner, and that they were "unauthenticated." Authentication is a legal requirement that is too often ignored or overlooked. Authentication of documents usually requires the testimony of a witness, someone with knowledge as to what the document is. Although some documents are "self-authenticating," because some statute or rule says that type of document is what it says it is (newspapers are an example), most documents require a witness to attest to what they are, where they came from, etc. 

Medical records are not "self-authenticating." In order to be admissible as evidence, medical records generally need to be authenticated by some witness who is competent to testify that these particular pages are what they say they are. Generally, medical records are authenticated by the physician that created them or by an office employee who is responsible for maintaining those records (often referred to as a records custodian). 

In Lewis, there was no such testimony to authenticate the medical records. And as such the genuineness of the documents was not established. One might see this as a technical point. But, it is important that trial judges make decisions based upon evidence that is appropriate, legally allowable, and genuine. 

In Lewis, the Court noted its previous  holdings that 
[i]n the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.
It then rejected the Employer/Carrier's argument that an FCE is not "invasive." The Court held that it had 
never interpreted the invasiveness of the examinations so narrowly, and our decisions have not turned on proof of the type of medical procedures that may be included as a part of the compelled exam.
Essentially, the Court concluded that any medical examination is per se "invasive," and therefore the ordering of any medical examination is potentially "irreparable harm." In support of its conclusion, the Court noted prior decisions in which it had determined that "the invasion of privacy alone may constitute irreparable harm."

The Court also reminded, that in workers' compensation, the rights of both the employer and the inured worker are generally controlled by the statute in effect on the workers' date of accident, which in Lewis was in 1988. That statute did not "expressly provide for FCEs." However, the Court concluded, that because the law "requires the E/C to provide Claimant with medically necessary remedial treatment," then "an FCE may be considered a medical benefit." Therefore, in a 1988 case, an injured worker could seek an FCE and the Judge would have authority to make an Employer/Carrier provide that. 

However, the Court concluded, that the JCC lacked statutory authority to order the injured worker to undergo an FCE, that is to "require a claimant to submit to medical treatment or testing." The Court held that there must be specific statutory authority for such testing, and that there was no such specific in the 1988 statute. Thus, there is statutory authority to give an injured worker the right to such a test if desired, but no authority to force such a test on the worker against her/his will. 

There is a potential that such a test might be seen as a medical benefit. In that regard, the Court noted that "the claimant always has the right to reject medical assistance," but conceded that there might be "consequences" from such refusal. 

The Court held that the absence of such statutory authority precludes ordering the FCE. Because there was no authority, the injured worker undergoing the examination would "cause Claimant irreparable harm." Returning to the distinction between an appeal and an extraordinary writ, the Court did not "reverse" the trial judge but "quashed" (reject or void) the judge's order requiring the FCE. 

The distinction is apparent. By demonstrating the requisite harm, and other facts, the injured worker did not have to undergo the testing. The trial judge's order is nullified. This case aptly demonstrates the effective use of the extraordinary writ. 

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