Sunday, January 7, 2018

California on My Mind







It is intriguing to experience the processes and procedures used by various states' workers' compensation systems. I recently had the opportunity to discuss the California system, and conclude that there are many distinctions between Florida and California. One that is striking is the degree of maternalism described in the California, with conferences and discussions through which judges provide advice and guidance for attorneys, shepherding cases to determination. The plethora of those "conferences" are likely culture or tradition. 

But, a statutory distinction of note is the venue of workers' compensation disputes. In Florida, the venue generally lies in the county in which the accident or injury occurs. This is in Section 440.25(4)(d) "in the county where the injury occurred." Despite the simplicity of this language, there is room in Florida for confusion. Periodically, petitions are filed stating a particular county, but which are not accurate. Mistakes are made on petitions. And, there are times when the parties to the case later agree to have venue transferred. But, the county of accident is our Florida default. 

Something more than 20 years ago, California transitioned to a more permissive venue procedure. A California attorney recently described it to me as "open venue" suggesting that venue may essentially be wherever one wants it to be. I tool a look at California Title 8, §10409 to explore this venue process. The California code indeed provides discretion in selecting venue. The code says the person filing a "case opening document shall designate venue." However, the venue is not precisely "open" as in unfettered. The selection is to be "based upon":
(1) the place of the employee or dependent's residence at the time of filing . . . ; (2) the place where the injury allegedly occurred . . .;or (3) the place where the employee's attorney maintains his or her principal place of business . . ..
This is not exactly "open." The attorney confided that "principle place" affords more discretion than I might think though. But, if one had unfettered choice, possibly every California claim would be filed in the Yosemite National Park District (as if anyone would need an excuse to visit that natural wonder?). 

So the injured worker could find herself or himself litigating entitlement to workers' compensation benefits at some distance from home. That can happen under the more constrained Florida definition also. Keep in mind a great many people travel in their work (truck drivers leap to mind as an example, but many people travel and could be injured far from home). One might live in Key West and yet suffer an injury while on a trip in Pensacola (an 830+ mile, 12 hour drive). 

Coincidentally, the latest installment of the Hot Seat last Friday (click link to view the program) focused on ethical challenges in workers' compensation. And one of the topics that arose was the potential for conflict between the best interest of an attorney and the best interest of the injured worker or employer. These two are important; the employee and the employer are the purpose of workers' compensation. It is for and because of them that workers' compensation exists. Workers' compensation does not exist "for" the rest of us. Contrarily, judges, lawyers, doctors, rehabilitation experts, adjusters, case managers and more exist only because workers compensation exists. 

I stress this for our agency staff and judges periodically. I am persistently surprised that some of us sometimes forget our mission. The Florida Office of Judges of Compensation Claims (FLOJCC) exists because there are injured workers, employers, insurance companies, lawyers and more. And, to put finer point on it, because there are disagreements among those. Our mantra should always be clear, the public is NEVER an interruption of our day at the FLOJCC; you are the PURPOSE of our day at the FLOJCC. More on that in a coming post. 

Our discussion on the Hot Seat included discussion of attorney interaction with clients. I am saddened to hear of attorneys presenting at our offices for mediation, not knowing their client. We periodically have an attorney question our security officers: "which one is my client?" Certainly, an attorney may represent a great many people, and may not be able to recall them all on sight. But in the world of the ubiquitous digital camera, one might take a "selfie" during the client intake interview and alleviate the challenge of not recognizing the client months or even years later at a scheduled event?

I was told that in California, however, there was a perception that injured workers were never meeting their attorneys. Well that discussion led me to another conversation, and later to explore California Labor Code § 4906, which was recently (2016) amended. Some in California feel that this section is unique in the United States. This law purportedly requires a face-to-face meeting between attorney and client. That surprised me somewhat. California has mandated that injured workers and their attorney must meet. Whether there was a real pattern of "never meeting" or whether that was merely a perception, it appears the California Legislature at least thought the potential was real. 

Under section 4906(g) fees for representation of injured workers are limited to "a reasonable amount," subject to judicial approval. And, the attorney must provide the client a "disclosure form" regarding attorney fees. As an aside, the "reasonable" determination is seemingly less complex than that legislated by the Florida Supreme Court in Lee Engineering v. Fellows, 209 So.2d 454 (1968), and later re-legislated in Castellanos v. Next Door. 192 So.3d 431 (2016). In California, the relevant considerations for reasonableness are:
the responsibility assumed by the attorney, the care exercised in representing the applicant, the time involved, and the results obtained.
As mentioned above, the injured worker has to be provided with a disclosure regarding fees and the attorney/client relationship. It has to be:
signed by the employee and the attorney and filed with the appeals board and sent to the employer, or insurer or third-party administrator, if either is known, by the attorney within 15 days of the employee’s and attorney’s execution thereof. 
Thus, everyone involved in the case will be included in the communication, and should be on the same page. Presumably because there is a chance for litigation to occur a great many miles from where an inured worker lives, secondary to the "open" venue statute, the disclosure must state "the exact location of the district office of the appeals board at which the employee’s case will be filed." The employee has to be informed both the location of filing and that "he or she may be required to attend conferences or hearings at this location at his or her own expense.” 

That requirement suggests that perhaps an injured worker or two may at some point have expressed confusion or regret when confronted with a lengthy commute for trial. The drive from Cole, California (north) to San Diego (south) is 782 miles and 11 hours according to Google; not as far as the Key West to Pensacola trip, but a long drive indeed. California is a very long state. While it might be a scenic drive, trips of such duration are expensive. And, such a trip might be uncomfortable for someone with an injury or impairment. 

Were there attorneys that did not clearly express the venue selection, and thus led to complaints that led to this disclosure requirement? Or, were disclosures not heeded by workers who were then more focused on immediate issues like medical care and replacement income following an accident? Does human nature just focus us on immediate concerns over something like a hearing that is months away?

But the disclosure requirement I found most curious is the face-to-face. The employee "may not" sign the required disclosure until she or he: 
has met with or personally spoken with an attorney licensed by the State Bar of California who is regularly employed by the firm by which the employee will be represented, and has been advised of his or her rights . . . . 
That seems to suggest a phone call might suffice ("spoken with"), but I am told that is not the perception of others. Some perceive a face-to-face requirement. There are anecdotal stories of workers never meeting their attorney, we hear some in Florida. In one case years ago, a worker challenging a settlement fee at hearing vociferously argued when the attorney announced his appearance at hearing. The worker loudly interrupted with "that's not my attorney (pointing at counsel), THAT IS! (pointing to the back of the hearing room at counsel's paralegal)." 

The California law is intriguing. Should venue be defined, or "open?" If "open" how open? (maybe all winter hearings would be in the lovely, sunny Keys?) Should attorneys be free to select venue to their convenience? Is injured worker acquiescence to venue 800 miles from home in the best interest of expedient proceedings, an effective and impartial adjudication system, the worker or the employer? Whose interest is served? And, what does it tell us when a legislature must require disclosure of venue and mandate lawyers to personally meet their clients? 

I think, this morning, that if I were representing workers today, I would personally meet every client. That is professional, and appropriate, even if not statutorily mandated. And, I think we would end our consult with a selfie. That would help me remember them at later events, and would dispel any mis-remembering that we met and talked. But, it says something that state law in California mandates meeting. I will be reflecting on that in coming days.

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