Thursday, May 31, 2018

Condemned to Repeat it?

It is worthwhile to remember the past periodically. George Santayana is credited with the now famous quote "those who cannot remember the past are condemned to repeat it." That has been paraphrased repeatedly by others, but the message remains. I thought about this recently when writing a post Can We Make Ourselves Safe(er), which focused on security at hearing sites. 

I remember when there was no security at offices of the Florida Judges of Compensation Claims. That ended in the 1990s shortly after an incident in West Palm Beach, described in Terror, Tragedy At Law Firm. An injured worker was "consumed with rage and pain," the effects of a work accident that he said "took away his job and his strength." The worker hijacked a taxi, entered the law firm representing his employer, and took five hostages. 

The worker called a news outlet, then released some hostages, and hours passed. Eventually, the worker shot himself. When police entered the building they discovered he was not the only victim of his violence. A 38 year old attorney, with a young son and pregnant wife, was also killed. The news reported on the positive attributes of this attorney, his contribution to his firm, family and community. Ironically, neither the murdered attorney nor another that was shot in the arm had anything to do with this worker's case. 

As far as I know, the police never discerned why the shooter chose those two attorneys. The attack left lawyers and others worried and fearful, according to the news report. Fearful of their experience, but as likely fearful of not understanding why there was an attack, and what might lead to another. 

When I wrote Can We Make Ourselves Safe(er), it had been some years since I thought of the West Palm Beach death and the changes it brought to Florida workers' compensation. I had been reminded of it in 2005 when a strange attack occurred at a Pensacola law firm. In that incident, a thirty year old attorney had just been elected to the Florida Bar Young Lawyer Board of Governors. The Florida Bar News reported in Meador murdered at work. His wife was likewise expecting "the couple's first child" in a few months. He was involved in the Bar, his community, and his firm. 

Mr. Meador returned to his office one day and found his father in law waiting for him. The two went into Meador's office and closed the door. Witnesses reported that "five seconds later the first shot was fired," and "a minute later" the father in law, Mr. Johnson, exited the office and left the building. The story is a bit confusing because Johnson apparently then "ignored police orders to stop," drove away in his car, and "rammed a patrol car arriving at the scene." The presence of police at that time seems confusing in light of the very short times (seconds, a minute) perceived by witnesses. 

When read in 2005, news of the Meador shooting brought back memories of the Edwards shooting. The similarities were striking. Young, well-thought-of attorneys were murdered. There was no convincing explanation for the motivation, if any, behind the shootings. There were at least suggestions that Edwards was not even known to his attacker. Both troubling incidents that struck a bit too close to home perhaps. And, we reflect upon our safety. 

I concluded Can we Make Ourselves Safe(r) questioning whether we think about our safety often enough, questioning what we can do for ourselves. It occurred to me again more recently when I visited a professional office. The subject of safety was on my mind, and I noted an unattended front desk, furniture positioning that would have foreclosed seeing someone approach even if the desk were attended. It was an environment seemingly devoid of any attention to, or concern for, security. 

There are those who conclude carrying their own weapon is an answer to personal security. Following the Ohio courthouse shooting last year, a National Judicial College survey revealed that 26% of responding judges carried a weapon. Others expressed a desire to, but noted some legal restriction preventing it. I have known several judges over the years who either carried a weapon or kept one within reach during proceedings. One carried a small pistol around in a paper lunch bag. Another kept a gun in a hearing room table. Undoubtedly, it is seen as a step by a significant number. 

But, what of everyone else? I was approached at The Florida Bar Workers' Compensation Section Forum in April with that question. An attorney that takes issue with the OJCC weapons policy had questions and complaints. This attorney is licensed for Florida concealed carry, and is disturbed that the OJCC does not allow weapons in our offices. We do provide weapon lockers. Visitors can and do carry weapons to and from our offices, but they are asked to store them upon arrival. Of course, we prefer that visitors store their weapons in their own vehicles instead, but we offer the option. 

Google searches for "how can I look out for my safety" are less than helpful. When I ran that search, my top twenty results included The Men Without Hats singing Safety Dance, but not much about actual safety. A search for "personal safety violence" was more productive, including a National Crime Prevention Council website with links to tips, publications and programming. There are many suggestions, but most you likely learned long ago. Examples include awareness of surroundings, being discreet with valuables, walking in groups when possible, parking in well-lit and well-traveled areas. 

Review of several websites of suggestions and tips reinforced that I have heard many of those suggestions before. And, that leads to the conclusion that perhaps we all know a good deal about personal safety, but perhaps we forget to think about it. The safety in which we live daily perhaps lulls us into complacency about our safety and allows us to focus completely on our daily tasks. Perhaps hearing that the Florida crime rate is the lowest it has been for 47 years instills us with a sense of confidence? Similarly, I am no longer surprised when an attorney admits her/his firm has no formal disaster (think hurricanes, flooding, etc.) policy or plan. 

Which returns me to the recent visit I made to a professional office. I found no one at the front desk, the front door was thus not monitored. Had someone been sitting there, my approach would nonetheless have been difficult to observe because of the arrangement of furniture and a large plant. I was within a few feet of the receptionist's chair before someone sitting there could have seen me (in some part due to the very high counter built into the desk. There were no apparent cameras, nor even doors separating the lobby from the remainder of the business. The business was open, accessible, and utterly unsecured. 

The experience left me pondering whether we remember the Mr. Edwards and Mr. Meadors. They were reportedly among the best and brightest, were engaged in their families, communities, and practices. Their murders were shocking and disturbing to so many. But, are they remembered today? Better stated, are the lessons of their deaths remembered today? Are we taking precautions to protect our own safety? Are we conscious of our surroundings and observant as we go through our day? Are we using all those personal safety tips and lessons we have heard over the years? Or, are we complacent and comfortable in a world that perhaps all too often surprises us?

Do we "remember the past" or are we "condemned to repeat it?" And, how do we get Safety Dance out of our heads for the rest of the day ("Cause your friends don't dance and if they don't dance, Well they're are no friends of mine")?


Tuesday, May 29, 2018

Approaches to Data

Statistics are fascinating. Statistics are often the subject of quips and criticism. Disraeli said "there are three types of lies - - lies, damn lies, and statistics." Twain said that "facts are stubborn things, but statistics are pliable." And, though it is possible that pliability is a reality, I wonder if the real flexibility of statistics comes down to our individual perspectives?

There was a cacophony last summer when our consciousness realized that American death rates were increasing. There was increased reporting in 2017, but the news had broken in 2016, reported by the New York Times. The Times hinted at drug overdose, suicide, Alzheimer's disease and heart disease. It cautioned that the figures were preliminary. 

In 2017, the focus had cleared somewhat. The "primary causes" of increasing death rates were "drug overdoses and alcohol-related deaths," according to the Washington Post. The Post noted that before 2010 "Opioid and alcohol-related deaths were primarily observed among whites who lived in small cities and rural areas." But, since 2010 death rates for "urban demographics" including "whites, blacks and Hispanics" increased. 

Similarly, in 2017 the Washington Post noted that the U.S. fertility rate in 2016 "hit a historic low." That article noted a perceived trend in declining birth rates, particularly among "teens and twenty-somethings." Conversely, "the birthrate for women in their 30s and 40s increased." The paper predicted potential "economic and cultural turmoil" if the trend continued. It noted, without citing any supporting evidence or source, that the goal should be a "replacement level" of births so that population overall "neither grows nor shrinks." 

Recently, CBS news reported that the trend did continue in 2017 with birth rates declining for "women in their teens, 20s and - surprisingly - their 30s." While CBS acknowledged that decreases have been the trend since 2014, it noted that "2017 saw the greatest year-to-year drop." So, U.S. birth rates have purportedly dropped to levels not seen since 1987. 

CBS prognosticated that millennials may be to blame (must we always blame everything on the millennials?). It suggests that generation has "shifting attitudes" regarding starting families. It also suggested that "changes in the immigrant population" could be a cause. It noted that "Asians are making up a larger proportion of immigrants, and they have typically had fewer children." CBS mentioned the "replacement level," concluding that the "U.S. now stands less than the standard benchmark for replacement." 

Early in 2018, the New York Times reported that the fertility "replacement rate in developed countries is around 2.1." That story noted the U.S. rate for a period ending September 2017 was 1.77, but acknowledged the U.S. rate's "most recent peak" was "2.12 in 2007." The Times blames postponement of marriage (perhaps a veiled Millennial dig). But, it contends that fertility rates "have not changed very much over the last 15 years" when the analysis is "controlled for marital status." The Times also credits contraception (noting that "emergency contraception" use has increased, a process "some consider to be abortions, but are not counted in official abortion statistics"). 

A commentator on Fox News opined that "those having the most children are least able to pay for their upbringing," citing 2015 birth rate statistics delineating rates among various income strata. The commentator concedes that income does not equate to quality parenting, but contends that low income may mean "struggle," and that there may be reliance on "taxpayers to finance their upbringing." 

Though one of those is admittedly an "opinion" piece, perhaps they each bring a perspective without doing the topic justice. Pew research brings yet another perspective. In its January 2018 analysis Is U.S. Fertility at an All-Time Low? It Depends. Pew suggests that "hand-wringing" may be premature, and explains that the analysis of fertility rate is "complicated," more so than perhaps news media has explained. Pew outlines three different fertility measures, and concedes than none is " 'right' or 'wrong,' but each tells a different story." None of the measures is affected by the population volume (each measures birth against population, resulting in a percentage). 

Pew notes that the "general fertility rate," or GFR, "is affected by changes in the age distribution among women of childbearing age." This measure will be higher when the "share of women in their peak childbearing years" is higher (and vice versa). And, it notes that the GFR has decreased "in part" due to the "great recession" that we borrowed, stimulated, and TARPed our way through 2007-2015. In other words, Pew hypothesizes that the economy has contributed to lower birthrates among younger Americans. Younger Americans in the beginning of their economic independence, recession experienced, and wary. Pew seems to put this on younger people's experience, and not on their "Millennial" label. 

Pew also encourages us to focus on a second measure of fertility rate, the "completed fertility rate," or CFR. This one ignores the age of the mother at time of birth. The CFR measures "the number of children a woman has in her lifetime." That measure demonstrated its recent American nadir in 2006. Thus, the CFR does not support that U.S. fertility is currently at the "30 year low" proclaimed by CBS news

The third measure is more important, perhaps. Pew explains that the "total fertility rate," or TFR, is an "estimate of lifetime fertility." This one does not count per se, but instead uses current fertility patterns to estimate or forecast what birthrates will be. And, it is this TFR that is "most commonly used to characterize “replacement fertility.” Thus, while some reports have perhaps been focused on the GFR and perhaps "hand-wringing" about the "replacement level," there has been a seeming disconnect. The news has perhaps mixed two concepts, but at least has not explained well that it is TFR and "replacement level" that generally go together. None of the cited news stories explain the GFR/TFR distinction, nor that "replacement level" is more related to TFR (a prognostication, not fact). 

Pew contends that TFR has been overestimated at times, including during the "baby boom." Likewise, it suggests that "today’s TFRs may be underestimating what completed fertility" will actually look like. Pew notes that while GFR and TFR have been decreasing, the CFR in America "has risen slightly." Pew suggests that overall, during child-bearing years, the rate of birth may not be decreasing as portrayed. The age-defined measure, and the prognostication, are decreasing, while the actual volume of births (CFR) is not decreasing. 

This analysis supports that current birth figures are decreasing, but that over time births will perhaps be consistent with historic figures. The Pew perspective suggests that those births will merely occur later in the mother's life, thus leading to lower rates today (while these mothers-to-be are younger) and a later demonstration of higher rates. 

The entire discussion illustrates some critical points on statistical analysis. First, deciding what to count is critical. The example is the inclusion or non-inclusion of emergency contraception in the abortion statistics. Second, there may be more than one way to analyze data even after the data set is defined. The example is the three postulates explained by Pew. Third, reporting may be disconnected or mis-connected. The example is the news media "hand-wringing" over "replacement level," based on a metric (GFR) that is not "most commonly" used for "replacement level." 

A final note worthy of consideration is that Pew, and the news stories, attempt to delineate social contributors ("Millennials"), economic factors (Great Recession), demographics (ethnicity, marital status, etc), and science (birth control, emergency or not). Thus, the statisticians are identifying trends, and striving to connect their mathematical conclusions to human and emotional foundations. But, understanding math is perhaps far simpler than understanding and predicting individual human emotion and decisions? 

Both the birth and death rate and analysis of the media strive to combine social analysis with statistical analysis. The statistical analysis capable of measuring only what is, and perhaps conjecturing thereon what is likely to be. The social analysis bringing an attempt to understand why the counts and calculations are what they are. 

The figures are mathematically precise, but nonetheless amenable to misinterpretation. How many are born and how many die can be counted. It should be precise and scientific, though Pew instructs us it is not. But more so, perhaps the interpretation of statistics, the "why" is so dependent upon sociology, perspective and definition that Twain perceived them as "pliable," or flexible and ,Disraeli derided them as somehow worse than "damn lies?" And, there is suggestion of the conclusion that some measure of the "why" evolves for some from perceptions, prejudices, and oversimplified social conclusions.



Sunday, May 27, 2018

AWW, Equity, the Law and why Facts Matter

The Maryland Court of Appeals recently rendered an interesting decision in Beavers Construction v. Wagstaff, No 1977 (March 1, 2018). 

Mr. Wagstaff was hired to work at a rate of $18.95 per hour, and the expectation was that he would work a 40 hour workweek. Because of the nature of the employer's business, he was instructed not to report to work "on days when it was raining or snowing." Thus, for the six weeks he worked, he "often worked full, eight-hour days. However, he "worked an average of only 16.75 hours per week" due to the weather exception described. He averaged $317.41 per week in earnings. I briefly worked in construction, and weather can be a real challenge. 

On April 1, 2013 he was injured by accident. A serious fall resulted in a variety of injuries to his head, face, spine, shoulder and knee. The employer paid his maximum wages (40 hours times $18.95) for a time. When the payments ceased, claimant filed for workers' compensation, claiming his "gross weekly wages" as $758.00 (40 hours times $18.95). 

The employer contended that the appropriate average weekly wage (AWW) was $317.41, the amount actually earned. The Maryland Workers' Compensation Commission initially agreed with that calculation. Later, the Commission held a hearing and concluded that the appropriate AWW was $758.00. The employer appealed that decision to the Circuit Court, contending that actual earnings should control. The Circuit Court affirmed the Commission. In the opinion cited above, the Appeals Court also affirmed that outcome. 

In doing so, the Court noted that the Maryland Workers' Compensation Act "should not be strictly construed,” but instead "should be construed to carry out its general purpose.” That is, to "equitably distribute the burden of workplace accidents among the State, taxpayers, employees, and employers.” The Maryland law is one in which balancing of equities is thus specifically referenced. Furthermore, the Maryland Court had previously held the law "is 'remedial' in nature and 'that it should be construed as liberally in favor of the injured employees as its provisions will permit in order to effectuate its benevolent purposes.’” 

The Court also noted that "the current version of the" law does not include a "formal definition of" AWW. Instead, the law merely says that the AWW should be computed using the wages "when the covered employee is working full time" and "at the time of the accident." The Court also noted that existing precedent support that in Maryland, AWW "has always suggested, to some extent, a projection of what an employee would have gone on to earn if not for the accidental injury." 

The employer argued that the Court should “endorse a uniform and predictable basis for calculating average weekly wage” to simplify the process and to afford the ability to anticipate liability. The "projecting," it argued, was speculative and hypothetical. The Court disagreed. 

The Florida statute does not allow as much flexibility as Maryland's thus does. Florida requires that the calculation of an AWW is mandatory, in Section Fla. Stat. §440.14(1):
"Except as otherwise provided in this chapter, the average weekly wages of the injured employee on the date of the accident shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s. 440.12(2), as follows:" (emphasis added).
There follow various methods for this calculation. The Courts have interpreted this statutory structure to require the Florida Judge to examine each section sequentially. Thus, if the first subsection can be appropriately used, the analysis ends. If not, then the second subsection is considered, etc. 

The first consideration is whether the "employee has worked in the employment in which she or he was working on the date of the accident . . . during substantially the whole of 13 weeks immediately preceding the accident." If so, then the AWW "shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks." Section 440.14(1)(a), F.S. Substantially the whole means "not less than 75 percent of the total customary hours of employment." So, if the Maryland claimant were in Florida, he could not utilize this section as he worked only about 6 weeks. Had he worked 13 weeks, the applicability might still be inappropriate if his weekly hours were consistent ("only 16.75 hours per week").

The second statutory alternative is not addressed unless the first is inapplicable (has not worked the substantial whole). The second alternative, when the workers has not worked "substantially the whole of 13 weeks" prior to the accident, is "the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used." Section 440.14(1)(b), F.S. In Florida, the question would therefore next be whether there was some other "similar" employee with the same pay, hours, and responsibilities (generally) with the Claimant. The term "similar" can lead to long legal arguments and disagreement (am I "similar" to someone just because we each have two arms and two legs?). 

The third alternative is used only if the first two cannot be used (did not work the substantial whole of the 13 weeks and there is no "similar employee"). And, for the third alternative to be used, the employee must be "a seasonal worker." In that instance, then the "employee may use . . . the calendar year or the 52 weeks immediately preceding the accident." Section 440.14(1)(c), F.S. There is nothing in the Maryland decision to suggest claimant was "seasonal." Though this third option is provided it is apparently not employed very often. 

The fourth alternative is used only if the first three "cannot reasonably and fairly be applied." In that event, then "the full-time weekly wages of the injured employee shall be used" unless the employee is "under 22 years of age" or is "a part-time worker" or had "adopted part-time employment as a customary practice." Section 440.14(1)(d), F.S. Those two exceptions are discussed more in Section 440.14(1)(e) and (f), F.S. Thus, the analysis in Florida would likely be under section (d). Under that section, the Florida Judge has "broad discretion" and "considerable latitude" in determining the AWW. See, Mauranssi v. Centerline Utilities Contract Co., 685 So.2d 66 (Fla. 1st DCA 1996). But, that section neither discusses "equity" nor proclaims a "benevolent purpose." 

Thus, the analysis in this case might have been decided similarly had Florida been the jurisdiction, but much depends on that "similar employee" analysis in (2). Though the outcome could well have been similar, a prospective or "actual earnings" analysis, the path to that outcome is nonetheless markedly different in Florida. Florida does not have equity as its first stop on the AWW question. Legal definitions are considered and analyzed in Florida. Only when those legal parameters fail to allow a valid calculation does the more equitable, only then does the discretion and latitude become real.

The analysis from Maryland is instructive to the market. It is notable that those who take risk may struggle to quantify it (by selling a policy of insurance, a carrier receives income and takes upon itself the risk of a loss). An auto insurance carrier wants to know, in the event of an accident, whether it will be replacing a Ferrari or a Ford Fiesta. It will tend to charge more to insure the Ferrari, because the cost of replacement and likely repair, are higher. The risk assumed is higher, thus the premium is higher. 

Equity is not always about mathematics. Equitable damages under the law are typically engaged when the legal remedies are seen as insufficient. The Maryland goal to "equitably distribute the burden" of workplace injury, thus introduces an element of uncertainty. When determining equity, courts are often deciding what is "fair," an uncertain standard that is often as dependent upon the observer's perspective or interest. Equity or fairness may be in the eye of the beholder, hard to quantify, and perhaps impractical to predict in advance. 

As an aside, the Florida courts have eschewed equity, holding " Workers' compensation is purely a creature of statute. McDade v. Palm Beach County Sch. Dist., 898 So.2d 126, 127 (Fla. 1st DCA 2005). However equity has been discussed periodically by the courts. Crown Life Ins. Co. v. McBride, 517 So.2d 660 (Fla.1987); Rosenthal, Levy & Simon, P.A. v. Scott, 17 So.3d 872, 876 (Fla. 1st DCA2009). 

But, actual risk is perhaps no more predictable in the Florida "legal" construct than in Maryland's equitable process. In Maryland's analysis, the carrier became equitably liable for a "promised" or "projected" earning amount, while in Florida it could likely have been liable for some other ("similar") employee's earning amount or a similar "projected" wage effected by "broad discretion" and "considerable latitude" in the Florida legal construct. 

Thus, predictability may exist in either context, but may nevertheless be a challenge. That predictability may have to focus upon the "worst case," with focus on the potential wages (everyone might be a ("Ferrari") that could be used in a later calculation, in the event of injury. True, this may extend beyond the mundane accounting of what is (today's actual payroll). However, that calculation is nonetheless capable of mathematical calculation (promised maximum weekly hours multiplied by promised rate). 

What this discussion most aptly demonstrates is that various determinations in workers' compensation require factual determinations. Whether in a sequential legal analysis (Florida) or an "equitable" measuring of "fairness," factual findings regarding what was paid, what was promised, and what is therefore appropriate are required. And, it is worthy of note those factual findings depend upon the careful, competent presentation of evidence, and the patience and attention of focused adjudicators.








Thursday, May 24, 2018

A Wall of Willful Ignorance

Folk singer Woody Guthrie had a song in which he described how he would package himself and "mail himself to you." It is cute set of lyrics from ages ago (1962). He describes his hope that "when you see me in your mailbox," that you will "cut the string and let me out" (for the younger generations, parcels were once wrapped in Kraft paper and then tied with twine). 

A recurring issue with electronic mail bears mentioning. It is an important topic because the Office of Judges of Compensation Claims sends out thousands of emails each day to our users. Every time a document is electronically filed, the filer is afforded the opportunity to electronically serve that document on others involved in that case. This saves postage, paper, envelopes, and time. We estimate an annual "user" (you sending, not what we send such as notices and orders) savings in excess of $1 million.

When a document is uploaded, the filer receives a confirmation screen that can be printed or saved to the filer's records (many "print" these as a PDF and "attach" to their file copy; we used to staple paper receipts that way. Then the filer has the opportunity to select "Service Portal" to send a link to others. This is an opportunity, not a mandate, see Why Wasn't it in our email.


In the Service Portal, the filer will be prompted with the names and email addresses of others involved with the case (red circle below) and may select those the filer wishes to serve. The filer may also add the email addresses and names of others (blue rectangle below). 


So, the fact is that documents are likely to be electronically served. And, it is therefore critical for electronic filers to maintain their user profile in the electronic filing system ("e-JCC"). This is accomplished by clicking on "My Profile." This is a topic we have been stressing since at least 2012, see You Must Keep your Profile Current

A judge related to me a situation recently with a e-JCC user's email. The judge used an email address to contact this attorney. Weeks passed without a response. When the response arrived, it included a disclaimer that "this mailbox is not continuously monitored.   If your message is urgent, please call . . ." An attorney, who has supplied an address for the receipt of notices, orders, and pleadings, says that the mail is "not continuously monitored." Had Woody Guthrie sent himself to that mailbox, he might well have spent weeks "wrapped and tied" before someone finally perceived him.

In another instance, an order was emailed to the attorneys in a case, at the addresses listed in the attorney's profiles. That order required a response by attorney "A." Weeks passed without a response, prompting opposing counsel ("B") to file a motion seeking a sanction for failure to comply with the order. Attorney "A" responded to Attorney "B's" motion, and explained that while the original order had in fact arrived at Attorney "A's" registered address, Attorney "A's" staff failed to direct that order to the right people's attention, for response or action. 

Periodically, we send an email to all of our registered users. Those generate a great volume of emails back to my inbox. Many are "out of office" automated replies. Some are notifying me the message was "undeliverable." These do not provide any detail, but merely inform me that the message did not get through. Some encourage me to "try to resend the message later." Others, are merely confirmations, "your email was received." I suspect that is appreciated acknowledgement in litigation practice. Perhaps everyone could be as courteous when they receive an email? 

I also get some responses that inform me the person is not at a particular business or firm any longer. These generally read something like "John Smith is no longer with our firm" and encourage me to call a particular person if I "need assistance." Some clearly alert that I have failed to connect, with a message such as "unmonitored email address," in the subject line and an explanation that I should email someone else (different name provided) if I need assistance. 

Some of these ask that I "change your records." Those are easy from my perspective, "nope." The OJCC does not change its records regarding who the registered users are and what address will be used to contact them. That responsibility is on the registered users themselves. Any user change this in their profile. That does not mean that the user needs access to a particular email account. A user that changes firms or email, need only log in and change their profile to reflect the new email. 

The issue of misdirected email was addressed by the Florida First District recently in Emerald Coast Utilities v. Bear Marcus Pointe, 227 So.3d 752 (Fla. 1st DCA 2017). That was discussed also in Appropriate Service - A Reminder. In Emerald Coast, an order was entered and the clerk served it by electronic mail to the parties. But, one attorney's email system was "configured to drop and permanently delete emails perceived to be spam." The attorney did not receive the order. 

The attorney later argued that the firm should be relieved of responsibility under the order, because "it never received the order in time to file a timely appeal." The First District discussed "excusable neglect" and noted that refers to "clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir." That might include the example above where staff failed to direct that order to the right attorney's attention. But, the Court held "a conscious decision not to comply" is not excusable, and neither is "gross neglect."

If a lawyer does not receive an order or notice, it is possible that opportunities (to object, to move for rehearing, to appeal) might be affected. Certainly, if someone makes a mistake (the staff that failed to direct the order appropriately within the firm), then such excusable neglect might be ameliorated by the judge. This appears to be discretionary, allowing the judge to provide relief but not requiring it. Emerald Coast at 756. But if that delivery failure results because the rules were not followed and the email address was not kept updated?

A colorful workers' compensation phrase was turned decades ago. It was perhaps The Florida Supreme Court in Davis v. Edwin Green, Inc., 240 So.2d 4 (Fla. 1970) that first gave us a "wall of willful ignorance." That phrase has been repeated since by various Florida judges and Courts. The Davis Court concluded that one may not "insulate" oneself from knowledge, and then claim surprise (like Captain Renault in Casablanca, "I am shocked - SHOCKED . . ."). Potentially, a court might conclude that failing or refusing to keep an address current, or intentionally not monitoring an email inbox (or U.S. Mail box) might be seen in the "wall of willful ignorance" vein. 

It seems that the better course is to keep that email address updated. Electronic mail is how orders and notices will come to you. That is the paradigm now. The only way the OJCC can get these important documents to you is you taking the time to keep your profile current. Don't be willfully ignorant. Don't face having to explain how shocked you are. And, Please don't leave poor Woody wrapped up and stuck in that mailbox. 


Tuesday, May 22, 2018

Is Workers' Compensation Really any Different

Who does not participate in workers' compensation programs? Certainly, there are examples of businesses that break the law and avoid both the benefits and burdens of workers' compensation. As a result, they may find themselves sued for damages in tort. But, many states do not require small businesses to participate in workers' compensation. There are various exemptions in the state systems, including employers with less than a specified number of employees, "sole proprietors," "independent contractors," "domestic help," and more. This is nothing new.

According to Forbes, some thirteen percent of American workers claim to be "independent contractors," or "self-employed." Pew (no, not the @RxProfessor, the "other Pew") concludes that 150 million Americans work. Thirteen percent of that is roughly 20 million. In recent years, a great deal of angst has been expressed about Americans who lack health insurance, but possibly 20 million American workers are not covered by workers' compensation under existing state law accommodations. That 20 million has gleaned little or no media coverage or angst.


As an aside, Forbes also questions whether "traditional jobs" are "running their course and going the way of the typewriter and eight-track tape?" Frankly, that hits a little close to home as I have owned several of each of those over the years. There was a time that most cars had a big, clunky box of eight tracks on the back seat and an after-market player bolted to the underside of the dash. I know someone that still has both an eight track player and a collection of tapes. Shouldn't that be their choice?

The subject of a "gig" economy was recently discussed in this blog in The Gig Economy, Can it Be Socialized. That focused on the suggestion by National Public Radio that some methodology should be developed to deliver socialistic benefits to people who suffer accidents, but who have opted not to exercise their eligibility for traditional workers' compensation. The NPR discussion focuses on the "gig economy" and the seemingly non-traditional work relationship of drivers in New York. 

While NPR and others advocate some separate benefit system, they ignore that any employer can easily elect workers' compensation coverage in any state. Though small employers are not forced into coverage, there is nothing preventing their participation. They are choosing not to underwrite the risk of injury. Choice, a large part of the concept of freedom upon which this country was founded. 

But, how large is the population of American workers that are not covered by traditional workers' compensation? A recent survey by Insureon suggests that it may be significant. This provider of insurance products surveyed 1,200 "small business" owners regarding the kinds of insurance they had purchased. The conclusion was that only 17% of them had workers' compensation coverage. The corollary being the suggestion that as many as perhaps 83% lack coverage, whether they are exempt under the law or merely dodging responsibility. 

That result has to be tempered by the admission that there is no  universal definition of "small business," and there is no geographic information regarding the survey participants either. What, if any, employers must participate in workers' compensation is a state law issue. In Texas, participation is voluntary for any size employer, that 83% is perhaps not of as much concern if this is a Texas (voluntary market) survey, perhaps more concerning if not. And, as mentioned above, the various states have different parameters for mandatory participation with many making workers' compensation optional for sole proprietorship owners or even businesses that have a certain number of employees. Despite this, 83% seems significant. 

It is noteworthy that the Small Business Administration (SBA) says that "small businesses" make up 99.7 percent of U.S. employer firms and 42.9 percent of private-sector employment. That is a larger population than the "independent contractors" or "self-employed," subset discussed above, The SBA definition of "small business" (500 employees or less) includes a businesses larger than sole proprietors (not subject to mandatory WC coverage); it includes a significant volume of businesses that are mandated to participate in WC (except in Texas). 

But, the SBA information supports that a significant volume of American workers are employed by "small business." There is therefore a potentially significant number of businesses that do not have workers' compensation coverage, affecting something well beyond the 20 million workers discussed above. That decision not to participate in workers' compensation may be legitimate under various state laws, or of those without insurance may instead be skirting the law, by misclassification. But, it is a decision nonetheless. The effect of electing not to participate in workers' compensation clearly affects a significant population of American workers.

Some of those employers may be individuals, whose election to eschew coverage may implicate only themselves. But, the survey results nevertheless suggest there are likely a significant population of employee workers not covered by workers' compensation through their employer's choice. If the prognosticators are correct, and if "gig employment" continues its trend, many more workers might find themselves injured and either without workers' compensation, or some substitute, and instead dependent upon some socialist program operated by the federal government, such as Medicaid or Medicare. Those employers elect to be "covered" only by the socialistic safety nets which taxpayers collectively finance. 

As intriguing in the Insureon study are the responses regarding other insurance coverages. Only 6% of the small businesses surveyed have business interruption insurance. While that coverage may seem a "want" rather than a "need" to some, the fact is that hurricanes, tornadoes, wild fires, mud slides, volcanic eruptions, and more have shown their potential to interrupt life as we know it, and that includes business. When disaster interrupts the operation of business, it is likely that will mean an interruption of paychecks to at least some employees for some period. Those individuals may likewise find themselves dependent on social safety nets like unemployment, food stamps, or similar programs. 

More intriguing still is that Insureon found that only 2% of small businesses had cyber insurance. In the days of hacking, skimming, ransomware and more, that seems an incredibly low number of businesses. Virtually every retailer is at least involved with debit and credit cards; and many businesses gather and store far greater data volumes. As they gather data, they may be targets of thieves just like major retailers. More than 500 credit card "skimmers" were found on Florida gas pumps in 2017, a seemingly "small business" concern. Data breach can affect any size business, but 98% of small business is not purchasing insurance for the risks. 

But, perhaps the most curious results of the survey are for general liability insurance. In fact, zero percent of the respondents reported having general liability insurance. General liability insurance is intended to defend and indemnify for claims for bodily injury, property damage, personal injury, and more. This would compensate visitors and customers. The survey included 1,200 small businesses, and not one of them had general liability coverage. Admittedly, those respondents reported 28% had a business owner's policy and 21% had professional liability insurance. Those policies might include some measure of coverage for particular events. But none, zero, had a specific general liability policy. 

The overarching theme is the potential for events and losses for which there is no coverage. States mandate the purchase of some insurance coverage. Examples include mandatory coverage for property damage or injury from auto accidents, as well as the mandatory workers' compensation coverage for employers exceeding some size parameter (except in Texas, a voluntary WC state). There is discussion of further mandating workers' compensation coverage in response to the "gig economy," to avoid "shifting" injury burden to the socialistic state. 

But, perhaps the Insureon survey illustrates that workplace injuries are not a singular concern, but merely a subset. Non-work injury losses can result in economic stress. Someone injured visiting a business (general liability) is as likely to suffer lost wages or medical costs as a worker injured at that business. An employee laid off due to impact of a natural disaster (business interruption) is as likely, at least temporarily, to rely upon societal supports as someone physically injured. A customer defrauded of savings or credit through cybercrime (cyber insurance) or an employee "downsized" by a cybercrime-devastated business may be just as likely to turn to social safety nets for subsistence and recovery. 

Certainly, the absence of insurance does not mean that customers and employees cannot seek relief from these businesses when damages occur. However, without insurance for such losses, small businesses may prove unable to compensate losses that occur. Bankruptcy and closure may be more likely than compensation and continuity. As there is discussion of "cost-shifting," in the realm of workers' compensation and socialistic safety nets, perhaps the conversation should include whether workers' compensation is really unique. It appears that a significant volume of various societal risk remains uninsured. Compromise has mandated certain coverages and left others permissive. Compromise has placed various burdens on society and taxpayer-supported socialistic programs. Some business "shall" provide workers' compensation, but need not provide premises liability to protect its customers.

Is workers' compensation really any different? Should more employers be mandated to participate? Should businesses be mandated to participate in other indemnification coverage to similarly manage or minimize the impacts on social safety nets? Are injured employees really different than injured customers? Are physically injured customers that different than financially ruined customers? Should we all be free to choose 8 tracks if we prefer, or is mandating "progress" preferred? Are our mandating approaches and distinctions consistent and rational, or are they merely expedient. Is workers' compensation really any different?


Sunday, May 20, 2018

Judge asks "Why are we Here?"

I had a chance to speak with a group of judges recently. The topic of discovery arose. Discovery is the process by which the parties to a dispute learn more about each other and the dispute itself. I have found, over years of teaching, that a great many non-lawyers struggle with the concept of discovery. 

Perhaps it helps to think of it in a non-litigation context. Imagine that you have been fixed up on a blind date. This means spending time with someone about whom you know very little. In litigation, you may find yourself similarly spending time with someone whose vehicle has struck yours (or vice versa), or who worked in branch office of your company (or is the boss of your boss in a company), or who you think has stolen your lyrics and produced a record (though your lyrics may turn out to be too "banal" to support a recovery). 

Thus, through some event, action, or inaction, you could find yourself having to deal with someone that you may know little or nothing about. You are in a dispute about which you may have question. Discovery is similar to the proverbial "first date." Think of the conversations in which you engaged while in that "first date" process. What was the point? Quite simply, to find out more about the other person.

In the dating context, that might mean finding out likes and dislikes, similarities and differences, and assessing your own feelings about the perspectives and thoughts that the other person brings. A major question may also focus on what that other person's expectations are, and whether they fit with your own. In the litigation context, similarities and differences may be equally important. Understanding expectations of the parties may be critical. Assessing perspectives and beliefs about the dispute will assist in deciding how to proceed. 

In short, discovery is a critical element of the litigation process. It is the gathering of information, either from the other party or from others that know something about them or about the subject of the case (maybe we need an expert on song lyrics and banality?). There are lawyers that enjoy the discovery process, revel in the accumulation and organization of facts and data, and there are others who simply dread it. But regardless of your feelings for it, discovery is crucial to effective litigation. 

The way this subject came up in my recent conversations was from two perspectives. The first was a discussion of attorney professionalism. A judge described that a lawyer had voiced the belief that in litigation no information should be provided informally. This lawyer believed that the practice of "stonewalling" was the best, and advocated providing no information whatever to the other side unless ordered to by a judge. That attitude, in my humble opinion, can be labelled with various adjectives including: unprofessional, inappropriate, wrong, and more. 

The second discussion was about the solving of discovery disputes. A judge described to me frustration at conducting hearings on motions to compel discovery or protection from discovery. If a party seeks something that should not be disclosed (grossly irrelevant, trade secret, etc.) a party might file a Motion for Protective Order to prevent the discovery. If a party fails or refuses to produce answers, documents, or other evidence, a party might file a Motion to Compel discover to have the judge order a response. 

This second judge was lamenting that significant time is invested in hearings, or at least orders, on these discovery motions. Often, in a hearing the attorney seeking relief (either protection or compel) might spend significant time arguing the merits of her/his position, making the case for relief. The judge described then turning to the party defending against the motion and asking for argument might hear something like "judge, I don't have any real argument against what she/he said, my client will comply if you order them to."

At this stage, another judge interjected that the same occurs when no hearing is held. The judge described receiving the motion, and placing it in a "pending" folder to await response from the opposing party. After 15 days waiting for a response (Rule 60Q6.115), the judge drafts an order and notes that "while the motion states the ______ (opposing party) objects, no response or objection was filed." In this setting, it appears to some that the opposing party may have sought nothing but delay (15 days) and aggravation (failing to respond, objecting to the motion). 

This second conversation included expressions of the judge's incredulity and disappointment. The judge asked me "if there is no real argument, I feel like asking the parties: then why are we here." The judge was frustrated that the parties, the lawyers, could not work out such disputes without motions, hearings, and orders if there was no "real argument." 

I have returned to the discussion repeatedly in recent weeks. At the end of the day, the ultimate conclusion from these scenarios is professionalism. Lawyers who do not answer discovery (that is "no response"), who then object to motions without reason, and fail to file a response to the motion to express a reason, are not demonstrating professionalism. Advocacy means representing a client's interests. Professionalism means doing that in way that facilitates resolution and cooperation. 

Professionals understand that they have a duty to work with their opposition to exchange information in discovery. An exchange of information will edify and illuminate disputes, leading to greater understanding. No one will accept and adopt claims or defenses which are kept in the shadows. For the opposing party to accept an attorney's position, they must understand both the position and the facts or evidence which you contend will support it. Professionalism is about advocating for an outcome, and facilitating that outcome. It does not mean employing every opportunity to deny, delay and obscure. 

Whether a particular attorney loves or hates the discovery process, it is an undeniable and necessary part of litigation. Whether it is loved or hated, it is both necessary and required. And, how an attorney engages in it will speak volumes to her or his professionalism and acumen. What kind of attorney are you? Would your self-assessment match that of opposing counsels or judges before whom you practice? If every request eventually requires a motion, if every motion is opposed, if responses are never filed, you might want to rethink your self-assessment. 

As Taylor's "banal" lyrics remind, we are who we are. She sings of knowing people's nature ("players gonna play, play, play, play, play" and "fakers gonna fake, fake, fake, fake, fake.") She observes and recognizes who adopts which attitude, and resolves herself personally to "shake it off, shake it off." That is the final point of professionalism. The most adept, pro-active, and professional attorney will have to deal with a serial procrastinator, an obsequiously persistent objector, a repetitious non-responder. Professionals will recognize them for what they are, and "shake it off." 

Though it may sound "banal," the outstanding attorney will remain professional despite the failures and offenses of opposing parties or counsel. Know that your demonstration of professionalism (1) is never a sign of weakness, always a sign of strength and resolve,  and (2) your professionalism is noticed and appreciated by both other attorneys and the judges before whom you practice. When a professional files a motion or response, the question "why are we here" will never come up.  

Thursday, May 17, 2018

Fast Tracking MSA

The world of workers' compensation has been complicated in recent years, due to the financial woes of the federal government. The idea is simple enough, strive to have those responsible for the cost of an injury or disease bear that cost. Before the turn of the century, there was a pattern, perceived at least, of employer/carriers settling workers' compensation cases with injured workers, followed by the medical care for that worker becoming a burden on Medicare or Medicaid. Whether those settlements included money for future medical care (and workers received a windfall when the government paid for the care) or did not include that care money because of Medicare (and the payer received a windfall by shifting cost to Medicare), or some combination of the two is perhaps debatable in any particular case. 

The federal government implemented legislation and began requiring those settling a workers' compensation case to take Medicare's interests into account. This required both the injured worker (payee) and the employer/carrier (payer) to consider the cost of medical care that would be likely following settlement, and to make arrangements for that cost to be born by the settlement itself. The process has had its critics. Some believe that this process is slow and cumbersome. Some doubt that the financial impact on the federal government is meaningful. 

The Centers for Medicare and Medicaid Services describe the process of a "Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA)." This is "a financial agreement that allocates a portion of a workers’ compensation settlement to pay for future medical services." These funds are sequestered and are used to pay for medical care that is related to the "workers’ compensation injury, illness, or disease." These funds are, of course, based upon an estimate of likely future expense, determined at the time of settlement. Predicting the future can be challenging under the best of circumstances. 

However, the variables in each particular case are reviewed and the future care cost is predicted. That estimated amount "must be depleted before Medicare will pay for treatment related to the workers’ compensation injury." That, in itself, may be difficult because there are complications and co-morbidities involved often in work injuries. What is or is not "related" may be the subject of disagreement. The responsibility for estimating or predicting the future care amount is shared by "all parties in a workers’ compensation case." The responsibility is imposed by the Medicare Secondary Payer (MSP) laws, with a focus upon protecting Medicare’s interests. 

That laudable goal, and shared responsibility make sense. But, the process and time involved can be significant. Each WCMSA "is determined on a case-by-case basis." That means that individual data is accumulated by people, compiled by people, analyzed by people, then shipped to the government where it is all analyzed by other people. Some estimate that a minimum time frame for approval is 60 days, and in some cases that the process can take much longer. 

I can get an offer on a plane ticket in minutes on the Internet. I can rapidly and conveniently buy virtually anything, often with multiple vendors competing for my business. It may be a simple purchase such as a book, or it could be a quote for a 30 year mortgage. Often, my Internet search for one product (plane ticket to a particular destination) leads to prompts or advertisement for another (car rental or hotel there). I have been told of people receiving prompts for re-order of purchases around the time some computer predicts their last order of a product should run-out. 

Programs have been developed and deployed for all manner of agreements and interactions. Google and others are watching our consumption, predicting our interests in services and products, and reacting to our decisions. These programs are analyzing digital data. The day is coming where all the workers' compensation information, diagnosis, treatment frequency, costs, etc. on a worker will be digitized anyway. Some are there now, but it is not universal. Those that have not digitized yet will do so. It is cost-effective and makes financial sense. 

Why can't the Centers write a simple computer program that estimates future medical care cost? This could be constructed for user-input or automated process. It could be as simple as a website where an adjuster or attorney or others could input the data regarding diagnosis(es), procedures that have been performed, medications prescribed, along with their duration, strength, and prognosis. Or, for those carriers and servicing agents that have digitized records, they could write a computer program to "harvest" the relevant data from their records, align and organize it in a method consistent with the Centers, and submit the data in a further automated process. 

The Centers could easily construct a database that measures past history. I suspect that a patient diagnosed with a rotator cuff tear will travel a path similar others with that diagnosis. I suspect that a patient prescribed any particular medication will have similarities in duration of use with others that use that medication. Averages can be determined. There are literally millions of people who are treated for various maladies, and insurance carriers are already using computer programs in this proposed manner for "predictive analytics." 

Those companies are collecting a premium, investing the money, and then using the proceeds to pay claims when required. To remain in business, those companies must make valid and accurate predictions about the costs for which they will likely be responsible. And, they must make those predictions about populations of people before they even become ill or suffer injury. Those companies are not guessing, they are using data. And, increasingly, they are becoming more sophisticated with data, using "predictive analytics." 

Data exists to study the path traveled by medication prices. Whether the price of other medications will increase or decrease can be predicted on those past experiences. The inflation rates faced in medicine are predictable. The cost of medication today can be readily adjusted for inflation in the future. Whether complications will occur can be predicted. Some percentage of people taking a particular medication will need some other medication or modality as a result. That risk can be measured, valued, and predicted. 

The performance of certain procedure codes could be similarly used to extrapolate the probability of future procedures. A patient undergoing a particular surgery will be at risk of requiring some additional surgery in the future. That probability is predictable, measurable, based on data at hand. Life expectancy is similar. Statistically, it should not be difficult to document a probable treatment path based upon injury, age, degree of perceived recovery from procedure, and perhaps a few other criteria. 

Proof of all of this is also at hand. In fact, this predicting is occurring right now, at the Centers. When a Workers' Compensation Medicare Set Aside Arrangement (WCMSA) is approved, it is because a human being somewhere has made these predictions. That human being has accumulated data, categorized it, organized it, and submitted it. Some other human being at the Centers has reviewed it, recalculated it, and reanalyzed it. And, as with all human-intensive processes, time has been invested. That is the real issue, the passage of time. In some cases, it can require months. In some instances, much of that work is invested in a "what if" process, trying to figure out what an WCMSA "would" require "if" a settlement of the workers' compensation case could be reached. It may be hard to settle a case if the payer does not know how much it will pay and the payee cannot be told how much she/he will have in pocket afterward. 

The assumptions, predictions, and analytics already exist. With all of this programmed, a payer (insurance company or employer) should be able to input the raw data from adjusting files, and the computer program should be able to produce a reasonably accurate MSA amount in a matter of minutes (at most). And, barring some misrepresentation (innocent or intentional) in that input process, the government should be willing to live with the calculation that results. After all, the government would oversee the programming, the methodology, which the machine would apply to that historical data in reaching its output, its prediction. 

Certainly, the issue with statistical analysis is always that there are outliers. If you are above or below average, then "your mileage may vary," and everyone understands that. The program would not produce "the," singular, absolute, "correct" prediction of future medical expense for this patient. However, it could produce a reasonably accurate prediction that is appropriate to use for this patient. Certainly, there would be margin for error. Sometimes future medical cost would be over-predicted or under-predicted. But, it is naive to believe that is not happening today. 

Currently, there are a great many humans who are toiling to make similar predictions. They are just as apt to rely on averages, predictions, and projections. They are just as apt to overstate for those who are actually below the mean and understate for those who are above. But, overall, statistically, the result would be similar using the current process or the programming I propose. But, the programming I propose could be simplified to allow any payer to input the required data and immediately get a stated value. That value of "future medical" could then be understood and applied in the negotiation of settlement. 

And, the government should not necessarily shoulder that expense burden. Instead of a payer (employer/insurance carrier) paying a vendor for this predictive expertise (today), let the government charge the payer a fee to prepare the estimate using this computer program that is replete with that expertise. The same database could persistently monitor its own performance. It could consider whether its estimate for a particular person was accurate; if it predicted use of a medication would continue two years, then in two years the program could note being correct or not. It could then adjust its predictions in future instances of that medication. The computer program could learn through actual outcomes to better predict future outcomes. 

In this method, the government recoups the cost of programming and development through a user fee. The government can downsize a significant workforce that is engaged today in human review and approval of these human predictions. The payer can pay a small process fee to the government instead of paying the commercial processor to have humans accumulate and package the data for human consideration. 

In the end, It is probable that an automated process would cost the payer less and expedite the settlement to the benefit of both the worker and payer. The predictions would be quicker, more consistent, and less costly. To further simplify the process, alleviate the management of that set-aside money. Today, the "set-aside" from the settlement sits in a bank and the injured worker pays for care from that until it runs out. Then Medicare begins to pay for care. 

To simplify the process, simply require the payment of the "set aside" directly and immediately to the government. If the program predicts future care will be $50,000, then upon settlement the worker gets her/his money and the $50,000 is paid to the government just like child support arrearage is paid today. Medicare could begin to cover care immediately, because the $50,000 is in the coffers of the Medicare trust fund (you remember, the Al Gore "lock box") immediately. That way, the entity taking the risk (if the expenses exceed estimated, Medicare will pay) is also entitled to the benefit that results if the expenses are actually less than predicted. In the modern world of American socialized medicine, this is a logical consequence. 

The further benefit of this "immediate pay" process is that the injured worker will immediately receive medical care from Medicare. And, those bills will be paid by Medicare based upon diagnosis codes (ICD-10) and treatments (CPT) which would be documented. The program that estimated the likely future cost could immediately begin to analyze the actual future cost. That would further would "educate" the database as to the "actual" expense compared to the predicted expense in any particular case. Predictions versus actual performance on cases today could be used to adjust assumptions and predictions on future cases. The program could "learn" as it goes. 

Perhaps most importantly, the process would be simpler and faster. It would be as accurate and effective as what is being done today by humans, and probably far more so. The benefits of over-prediction would be enjoyed by the same entity as currently faces the risk of under-prediction. Injured workers would not have to administer those set-asides. And, overall, the cost to individuals and the system would decrease. 

And, perhaps those are all the best reasons to leave things just the way they are. Perhaps such a program would simply be too logical, efficient, and fast? Or, perhaps someone out there will read this and write to explain how I have completely missed the point?

Tuesday, May 15, 2018

The Address Conundrum and Motions to Dismiss

Florida has a fairly stringent set of requirements for specificity in a workers' compensation petition. Those requirements are sometimes a complication in specific instances. Recently, a registered user voiced concerns about two seemingly conflicting statutory requirements, and the potential for effecting prejudice. This seems like a subject upon which more than this one inquirer might benefit from an explanation of both the law and the Florida Office of Judges of Compensation Claims' (OJCC) electronic filing process. 


When an employee believes that she/he is entitled to a benefit "that is ripe, due, and owing," the employee may file a petition for benefits. Section 440.192 Fla. Stat. All such petitions shall be reviewed by the OJCC, and shall be dismissed if "such petition does not on its face specifically identify or itemize . . .." Then follows a significant list of information. First on the list is:
(a) Name, address, telephone number, and social security number of the employee.

This requirement seems simple enough. However, there is an apparent conflict with Chapter 119,  FlaStat., which periodically is raised. Chapter 119 governs "public records." The specifics are spelled-out in Section 119.071(4)(d) Fla. Stat. exempting the "the home addresses, telephone numbers, dates of birth, and photographs" of certain individuals from disclosure through the public records law.

The list of those entitled to such protection is extensive. It includes "active or former" personnel in certain occupations. It also includes confidentiality for the "spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel." A summary of the extensive list of covered occupations and positions is at the end of this post. 

All petitions for benefits filed by employees pursuant to Section 440.192 Fla. Stat. are displayed in the online OJCC docket related to that particular case. It would be inappropriate to display such a petition, if it included the home address or telephone number of the employee protected pursuant to Section 119.071(4)(d) Fla. Stat. Therefore, the Office of Judges of Compensation Claims offers the filing employee the opportunity to submit the information required by Section 440.192 Fla. Stat. but to prevent its disclosure. 



The employee may check the box claiming entitlement to an exemption from disclosure, pursuant to Chapter 119, illustrated in the screenshot of the petition filing process of the OJCC electronic filing system ("e-JCC"). When an employee checks this box, the data regarding name, address and phone number will still be gathered by the filing system and maintained in the records of the OJCC. However, the document that is created, the electronic petition for benefits ("e-PFB") will not display that information. 

This is where the rub occasionally occurs. Periodically an attorney will file a motion (motions are the best way to seek relief, see Rule 60Q6.115(1)) seeking dismissal of the PFB. The grounds stated will be the absence of the address and telephone number on the face of the petition. The moving attorney will cite as authority Section 440.192 Fla. Stat. and Rule 60Q-6.107(1):
(1) A petition that does not contain the information required by Section 440.192(2) through (4), F.S., shall be dismissed.
And, of course, there are a variety of good reasons that an employee's address may be needed (such as mailing the employee a check for missed work, providing the legally required informational brochure, etc.). Thankfully, very few such motions are filed each year. The majority of attorneys, employers, and carriers, are cognizant of the Section 119.071(4)(d) Fla. Stat. requirements and do not file motions to dismiss on the grounds of a non-displayed address and telephone number.

Nonetheless, such motions are periodically filed. A judge, confronted with such a motion, would have to decide whether a petition should be dismissed in light of the broad requirement of specificity counterbalanced by the specific statutory protection regarding disclosure. Of course, this decision is up to the assigned judge, and is made on a case-by-case basis. The balance would likely include consideration of whether the absence of information on a particular petition in a particular case, in which Section 119 provides protection, results in some actual prejudice to the employer/carrier.

There are those who contend that such "disclosure" issues are best addressed by applying the Florida Supreme Court's decision in Binger v. King Pest Control, 401 So.2d 1310 (1981). There a legal requirement of disclosure (of witnesses) was analyzed. Despite the requirement for disclosure, a trial court allowed a party to present an undisclosed witness. The opposing party objected, citing the law and that it was surprised and thus inappropriately prejudiced. The Court declined to delineate a bright-line test, holding it is best to leave such "disclosure problems to the broad discretion of the trial judge and focuses on prejudice."

That analysis recognizes that parties in litigation have conflicting interests and obligations. Disclosure may be generally necessary and appropriate, but there may be instances in which exceptions are appropriate. Thus, when the two statutes seemingly conflict the OJCC has defaulted to requiring the provision of the information, but has declined to publish it. And, then it is up to the parties to seek relief, explain their reasons and convince the assigned judge whether disclosure is appropriate or not in that particular case.

Though, there is reference here to Binger, it is the responsibility of the parties to define their legal disputes, and provide the judge with authority (statutes, appellate cases, or even trial orders). In Holiday Inn v. Sallee, 496 So.2d 227 (Fla. 1st DCA 1986), the court explained that pleading and proving issues is up to the parties. The parties are to bring their disputes, explain their legal authority, and the judge's responsibility is to decide them. It is not the judge's responsibility (nor this blog's) to do the parties' research or define their disputes.

Exempted positions from Section 119.071(4)(d) Fla. Stat.

Law enforcement personnel, correctional and probation officers, certain state agency investigators, firefighters, judges, state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors, general magistrates, special magistrates, judges of compensation claims, administrative law judges, human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management distric
t, code enforcement officers, guardians ad litem, juvenile probation officers, juvenile probation supervisors, detention superintendents, assistant detention superintendents, juvenile justice detention officers I and II, juvenile justice detention officer supervisors, juvenile justice residential officers, juvenile justice residential officer supervisors I and II, juvenile justice counselors, juvenile justice counselor supervisors, human services counselor administrators, senior human services counselor administrators, rehabilitation therapists, and social services counselors, public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel; county tax collectors; certain personnel of the Department of Health, impaired practitioner consultants emergency medical technicians or paramedics, employees of agency’s office of inspector general or internal audit department.