Monday, December 24, 2012

Could be the Season?

'Twas the week before Christmas, and all through states
compromise failing and we seem doomed to our fates
The attention was focused on a cliff, we all knew
In hopes of compromise, the members worked through

The nation was coasting, with Christmas in sight
The machinations of Washington just not our plight
And the battle lines drawn, and our own travels to roam
We all settled our brains and left the office for home

When up in D.C. there arose such a clatter
Our LinkedIn alerts announced the grand matter
Away to the Internet we flew like a flash
Looked up the news, and wondered at the brash

The atmosphere in DC has given all doubt
Many think anymore they can work nothing out
But what to our wondering eyes should appear
The Senate and House brought us a gift this year

A singular bill, which means nothing to some
But to others it implicates all that is done
The SMART Act affects all who would compromise their case
The bureaucracy and red tape have hindered their pace

With a wicked slow process, and ambiguous drive
The MSA rules frustrated the injured and their lives
Their cases they languished, awaiting MSA consideration
Their lives on hold awaiting prognostication

On Murphy, on Kind, on House and on Senate
For Christmas, for New Years, Could they really pass it?
From chamber to chamber, from caucus to committee
They called the bill out, and voila! Equanimity!

An then in a twinkling, they passed the SMART act
A simple bipartisan effort which will facilitate a pact
A blessing to all, whether claimant or defense
The simplification of settlements is no simple pretense
There is much to be done in this country, with laws and with bills
The passage of SMART does not cure all our ills
But this SMART bill effort does prove, quiet effectively
Both sides can work together when they wish, definitely!

The headlines have described conflict in Washington these many months. It has been said that Congress could not agree to anything. Confronted with a calendar as proof, some believe they would nonetheless debate what day it is. Perhaps this remains true with some subjects, but Christmas 2012 will long be remembered for a slight but critical thaw in the Capitol.

I was surprised when the House of Representatives passed the SMART act, H.R. 1845. This occurred December 19, 2012. This bill is intended to return a modicum of sanity to the Medicare Secondary Payer Act. The success was a pleasant surprise. The margin, 401 to 3, was simply astounding. In the current political climate, it is heartening to see such a margin of agreement on such an important topic. Certainly, such progress was to be celebrated. I remember wondering on the 19th if this could be just more of the same from Washington, a token passage upon which one chamber might celebrate.

December 22, however, brought more astounding news. The Senate also passed the SMART act, and not to be outdone in demonstrating bipartisanship, the Senate vote was unanimous. Although there had been rumors that the SMART act was making progress, whisperings that there was real hope of passage, too many have become too jaded to accept that this was really a potential. Representatives Murphy and Kind, and frankly all of their peers in both chambers, deserve a congratulations and "well done."
Truly a Christmas miracle to see the partisanship set briefly aside. It is hoped that this effort will bring some much needed reform to the MSA approval process. Time-lines should shorten, and claim closure may perhaps become a bit less stressful for all involved.

Monday, December 17, 2012

Changes in Attitude Changes in Latitude

Jimmy Buffet sings these lyrics, and most will find something in Margaritaville with which to identify. We all struggle with change, some more than others certainly. Even when we overcome the struggle and accept change, many of us remain in passive mode. We deal with how change is transmitted, how it is manifested, and how it affects us. Few “cross the river” and become agents of change. To do so, we have to revert to habits we accepted as children and forego some of the assumptions we accept as adults.

First Corinthians says:
"When I was a child, I spoke like a child, I thought like a child, I reasoned like a child. When I became a man, I gave up childish ways."
Understanding the wisdom this encompasses is simple. The message is clear, concise and persuasive. As a basic premise, however, I would suggest that giving up childish ways does not necessarily mean that we must give up thinking and reasoning like a child. I remember years ago going on vacation with my family and having to tell my kids to power-down their video players when the airplane door was closed. They asked “why,” and as the adult I gave them the best answer I could, “because the stewardess said so.”

I recently read The Secret Live of the Corporate Jester. This short book is full of messages and tips that can either help you understand how to be an agent of change, or at least how to understand why and how agents of change are operating in your organization. Understanding, at a minimum, is critical to you dealing with the change that results from the efforts of such agents.

Children bring to any process a critical element, not unlike that of the Corporate Jester. When you were a child, you always asked “why?” Every child does, to the consternation and frustration of every adult in the room. Such adults invariably seek the refuge of the comforting platitudes like “because,” or “because I said so.”

Similarly, in organizations, the question is posed “why do we do it this way,” to which the only response all too often is “that’s the way we’ve always done it.” This may seem to us to be a reason, but in fact it is no more than “because” or “because I said so.” These are not intellectual responses. They are the kind of pabulum that people hide behind while they wait for someone to steal their Cheese, as described in another worthy book Who Moved My Cheese.

I often recount the story of the five monkeys to illustrate my point on this. I am not sure of the origin of this parable, which is restated across the Internet in support of a variety of arguments. However, the parable is interesting because it illustrates that people acclimate to their surroundings, and accept that things are appropriate simply because that is the way they have always been. Asked to articulate a logical explanation for the status quo, they are at a loss.

Innovators are among us. Some of them we see coming, and to their threats we can adjust. Others surprise us, and their innovations allow us no time to prepare and adjust. Their success will be our failure if our only reaction is to disregard or denigrate their innovation, convinced inherently of our own superiority and comfortable in our paradigm of “this has always worked,” or this “is how we’ve always done it.”

Returning to Corinthians, I would suggest that we need to far more often return to the innocence of the child, and speak like the child. Ask the “why” questions. Do so until the so called adults can provide an explanation that is beyond “because.” Think like a child. That is be curious, creative, and uninhibited. Reason like a child. This is not to say be a child. How does a child “reason?” A child reasons from a position of unmitigated curiosity and often a dearth of data. This juxtaposition leads the child’s reasoning model in which all presumptions are questioned and all conclusions must be supported by facts. Whether the answer is acceptable to the child is dependent upon the acceptance of each fact upon which the conclusion supposedly rests.

Last week the Chairman of the Federal Communication Commission (FCC) wrote a letter to the Federal Aviation Administration (FAA). Essentially, the FCC points out that there is absolutely no evidence that any portable electronic device can interfere in any way with any aircraft. The FAA’s own research fails to prove any foundation for the electronic device ban. Turns out there have been many times that passengers did not power-off their devices. 

Likewise, it turns out that none of those instances has resulted in any interference or mishap. Although claims of interference have been made by Boeing and others, no one has ever been able to replicate these instances. Furthermore, the ban on all electronic devices, some of which do not even transmit a signal such as a DVD player, is simply inexplicable. It is encouraging to see a Federal leader ask the “why” question. It is hoped that she will not accept the “because” answer that I provided my kids when explaining the inexplicable. Perhaps this FAA policy will be reconsidered in light of the absolute and complete dearth of data to support it?

To progress and grow, we must deny the efficacy of laddership and insist on the progress of leadership. That one is higher on the ladder, that it is this person’s “turn,” does not select the best leaders. A leader must have ideas, must question what others accept as assumptions of fact, and must focus the analysis on both the status quo and the potential for change. Are you a leader, a follower, or a “jester?”

Change for the sake of change, however, brings no value. First and foremost, our actions must be focused on bringing value. What goal are we striving for, and does that goal merit our effort? Is the goal appropriate and worthy?  Within the filter of this touchstone, we must question why we do what we do. From where do our processes come? Are they the best, most efficient, processes to our goal?

Examples of the Five Monkeys

The Corporate Jester: http://www.corporatejester.com/

Who Moved My Cheese: http://www.whomovedmycheese.com/

Saturday, December 8, 2012

Don't Decry the Data

WorkCompCentral reported last week that Oklahoma is considering implementation of an administrative system for workers' compensation disputes. The effort is being spearheaded by Oklahoma Senator Mark Allen, whose company does business in both Oklahoma and Arkansas. He notes that his company's activities are similar in both states, but that rates are about thirty percent lower in Arkansas. 

The article says that only Oklahoma and Nebraska have separate court systems for workers' compensation. They note that Rhode Island assigns workers' compensation cases to its constitutional court system like all other cases, and Tennessee has a "hybrid" system that involves the state's constitutional courts. Though not mentioned in the article, Alabama has a similar process which involves its constitutional courts, and which does not have a separate judicial or administrative hearing process in place. 

Workers' compensation experts Greg Krohm (former director of the International Association of Industrial Boards and Commissions) and John Burton (Professor and member of the National Association of Social Insurance) believed that there is no proof that administrative systems necessarily save costs. Mr. Krohm noted that "there are so many variables" to consider. Professor Burton noted that there are few "judicial based systems left" and so studying the differences would be difficult. 

I do not have any basis to disagree with either Mr. Krohm or Professor Burton. Each is a national leader in worker's compensation, and each has been exposed to a multitude of issues over many years. What workers compensation adjudicators learn, however, is that decisions in workers' compensation have to be made, and unfortunately that is not always the best evidence. Sometimes this is because procuring the best evidence is expensive, beyond the pale of what is justifiable in a particular case. Sometimes this is because the best evidence is simply not available, such as the injured workers' testimony in a death or brain injury case, as was reported by the Workers' Comp Insider in recent years. When we do not have the best evidence, the show must go on, and we instead struggle with making the best decision we can with the evidence the parties do bring to us. 

In this instance, there is some evidence to support Senator Allen's effort. And before we discuss the details of the evidence that is available, it is important that everyone in the debate acknowledge that the ambiguous "cost" may include much that is not measurable in dollars and cents spent by the workers' compensation systems. While it is reasonable to consider those funds expended by a workers' compensation system, it is ineffective to isolate the analysis to those direct impacts.

The Florida Office of Judges of Compensation Claims (OJCC) recently issued the 2012 Annual Report. Statutorily, the OJCC reports each December on a spectrum of metrics, one of which is the cost of litigation resolved. Over the course of ten years, the OJCC has reported (page 18) the "cost per claim" by dividing the OJCC annual budget by the volume of petitions closed over that year. Over the last ten years, the cost per closed petition has been $181.00. The Annual Report contrasts that to civil filing fees in Florida, which range from $55.00 each for small claims to as much as $400.00 for Circuit Court filings. As the report notes, the Florida workers' compensation system cost includes the clerk and adjudication services that the civil courts provide, but also include mediation services that are not afforded by the Circuit system. In short, the workers' compensation adjudication process in Florida is a financial bargain.

The "cost" of the workers' compensation system, though, includes the impact on people in the system. This system is for injured employees and the employers for whom they work. When an accident occurs, the employee is affected through pain, loss of function, loss of income, and more. The employer is likewise affected through loss of the advantage for which they hired the worker. The employee may not be present, may be sporadically missing work for medical appointments, and may not be at 100% when they are present. It is axiomatic that the employer hired the employee to begin with because the employer needed that person, her/his skills, etc. After an injury, co-workers may be tasked to take up the resulting work-load, or the employer may have to hire temporary help to accommodate the absence or decreased attendance of the injured worker. In short, both the employee and the employer face issues following a work accident.

According to some blogs on the Internet, it can take about a year to get a civil case to trial. The web has included predictions in recent years that budget cuts will lead to further delays in civil cases. Court resources may decline, and the demands of the criminal justice system are subject to Constitutional constraints that do not apply to civil litigation. An injured worker should not be subject to such a delay, nor should that person's employer. Policy makers should remember that workers' compensation disputes may be focused on large issues that might be seen in civil lawsuits, such as the compensation for total disability or attendant care for the rest of some person's life. 

However, many decisions in workers' compensation are less monetarily impressive, such as an authorization of a change in doctor, provision of a medical test, or authorization of some discreet treatment such as a surgery. These medical care issues may pale in monetary terms. However, these are critical decisions in the diagnosis, treatment and recovery of an injured worker. The goal of workers' compensation is coincidental for employer and employee. The injured worker wants relief from symptoms and dysfunction and to return to work. The employer wants their employee back with as little residual dysfunction as possible. Unfortunately, there are disagreements in this process. When there is disagreement, the speed of resolution or adjudication is critical. Physicians will tell us that early medical intervention is beneficial and that delays may detrimentally impact the efficacy of care. Delay may likewise negatively impact the employee, who is receiving less than pre-injury wages during litigation, or perhaps no income at all in a denied claim. The employer may likewise suffer economic loss during such delay, in the payment to temporary workers, overtime to coworkers, or training expense of new staff. 

Certainly, there are reasons for delay in decisions in particular cases. Some questions may not be ready for an answer. But when those disputes are ready for an answer, there is a benefit to both employee and employer in a process that is dedicated to their disputes, focused upon their issues, and capable of bringing their disputes to timely resolution or adjudication. In 2006, the Florida OJCC averaged 485 days between the filing of a petition and the beginning of trial. In 2012, the average was 166 days. In 2006, the Florida OJCC averaged 212 days between petition filing and the first mediation. In 2012, that average was just 88 days. Along the way, the OJCC leveraged technology, brought innovation to the attorneys and other interested parties, and deployed multiple processes that enhanced transparency and therefore efficiency. 

The WorkCompCentral article quoted Oklahoma Senate President Pro Tempore Brian Bingman as favoring the change to an administrative process, but saying "the devil is in the details." Isn't it always? I would suggest that those who will study Tennessee and Oklahoma should perhaps focus less on whether there are sufficient "court" states remaining to study, and instead make comparisons that are relevant to their decision. I would suggest that those comparisons are essentially whether costs, in their broadest definitions, can be reduced. This means deciding whether employees and employers will receive more rapid and focused consideration than they receive under the court system. Will the proposed process bring greater transparency? Will the process make the dispute process more efficient, empower litigants to make better decisions and resolve their own disputes through compromise? Will the process deliver all of this at less monetary expense, measured per claim, than the expense required by the court system?

There is plenty of evidence in the marketplace in this regard. Certainly, it may not be the best evidence. However, it is the best evidence that is available. 

Wednesday, November 28, 2012

On settlements

The change in Child Support documentation is coming December 1, 2012. 

We sent out a blast (click here) to all of our users today, to reinforce the earlier communications. 

Questions we have received:


In regards to the new Child Support Request. If a case has settled at mediation, with multiple JCC numbers/Dates of accidents, and the cases are not consolidated, must we e-file the Request for Child Support on every OJCC number?
No, you may request the data one time, but do include that with each settlement motion submitted. 
Can you please advise whether child support documentation is required to be filed with an ex-parte motion for attorneys fees. 
No. The child support information is required when the injured worker is receiving money from which that support might be appropriately recouped. See Rules 60Q6.123(1) and (2).

Where does the "50% rule" come from?
There is no rule on the recoupment of child support. There are some patterns and practices. Generally, it is believed by many that 50% of the settlement should be a cap on the amount recovered. However, under the statute, the decision is up to the presiding Judge. See Judge Walker's memo on this.

Do we have to efile the document with DOAH and then receive a response back? And would we have to then efile that response with the washout documents?
Yes. The process remains the same. That is, you get the Child support information from us whenever you wish. Then if you do settle, you attach our response to the motion (represented claimant) or joint petition (unrepresented claimant) you file. We understand, this seems redundant. We are in the beginning of an evolving process however, and this is the first step. This step saves postage, long distance, and time (e-file instead of fax).

Monday, November 26, 2012

Child Support Changes

December 1, 2012 looms at the end of the week. In December, the Florida Department of Revenue will no longer provide child support arrears information regarding injured workers. This information has been required of parties for years. The provisions of Rule 60Q6.123 require that child support arrearage information is filed with motions for approval of attorneys fees and child support. The requirement for this information is set forth below. The requirement for this information will not change December 1, 2012, but the source of SOME of the information will change from the Department of Revenue to the Office of Judges of Compensation Claims. This change will result in cost savings to the State and to the workers' compensation attorneys.

The requirements are the same for settlements under Section 440.20(11)(a) or (b), F.S., (unrepresented claimants) and represented claimants under Section 440.20(11)(c), (d), and (e), F.S. These are found in Rule 60Q6.123(1)(a)5. and Rule 60Q6.123(2)(a)6. These require that Joint Petitions for approval of settlement and Motions for Approval of Attorneys Fees and Child Support shall each include child support arrearage information. This includes a "status statement from the Department of Revenue, unless such information is available to the OJCC directly." The status according to the county clerks is also required, "and a status statement from the Clerk of the Circuit and County Courts, Central Depository . . . from the county in which the claimant resides at the time the settlement documents are filed and the county in which the claimant resided on the date of accident."

The parallel is apparent. Child support arrearage information from the Department of Revenue is required when settling a workers' compensation case. The obligations of the Judge, when considering a settlement, include consideration of "whether the settlement allocation provides for the appropriate recovery of child support arrearages." See Fla. Stat. 440.20(11)(d).

How does this all change December 1, 2012? Substantively, nothing changes. The same information must be submitted, just as attorneys and adjusters have become accustomed. The procedure for "the Clerk of the Circuit and County Courts, Central Depository" also remains unchanged. The ONLY CHANGE, is the source of the Department of Revenue information. Until December 1, 2012, the information will be obtained from the Department of Revenue, as it has for many years. On December 1, 2012, and thereafter, this information will be obtained from the Office of Judges of Compensation Claims (OJCC). 

To obtain the information, parties should electronically file a request with the OJCC. A sample form is available on the OJCC website (www.fljcc.org), on the "forms" tab. The sample form is number 23 on the list, labelled Request for Amount of Unpaid Support Owed. This form, or any form with the same information, should be electronically filed in the appropriate OJCC case. If you need this information in a workers' compensation claim for which there is no OJCC case number, you may electronically file a Request for Assignment of Case Number (RACN) first. Just log into e-JCC and select "new case." One of the available reasons for an RACN is to request child support information.

The OJCC staff will check the child support arrearage database of the Department of Revenue, and will then file a report of the results in the OJCC case docket. One of the major advantages of this new process will be that such responses from the OJCC will be e-served to all counsel of record in the case. Prior responses, directly from the Department of Revenue, were only provided to the requesting party. This effectively encouraged multiple information requests on each case. 

The litigants should not change their practices in terms of when and why they request this information. The only change is simple. When requesting Department of Revenue arrearage information, e-file that request with the OJCC instead of faxing the request to the Department of Revenue.

If you have questions or comments, contact david_langham@doah.state.fl.us.

Wednesday, November 21, 2012

Thanksgiving, Fraud, and Things to Remember

This morning's headlines are loaded with workers' compensation fraud, of all kinds:

"NJ Broker to Serve 135 Months for Bribing School Superintendent"

"TN Safety Manager Convicted of Falsifying Injury Statistics"

"NY DOT Millwright Receives Probation for Comp Fraud"

"OH Double Dipper Must Pay $25k Restitution to BWC"

The New Jersey broker will go to jail for 11 years. Over an eight year period, the broker and others paid millions of dollars in bribes to assure that the school district would obtain their insurance from specific providers/vendors. They agreed, and I quote "to use middlemen, shell companies, sham consulting contracts and third-party payments to secretly pas hundreds of thousands of dollars in cash and bribes . . .." Not content with bribery, the superintendent that accepted the bribes has already plead guilty to mail fraud and conspiracy to defraud the IRS. He was fined one hundred thousand dollars.

Twelve days of trial result in a conviction, and possibly a long prison term for a safety manager who maintained a fine safety record at the Shaw Group in Tennessee and Alabama. He merely elected not to record a few (80) minor injuries such as "broken bones, torn ligaments, hernias, lacerations, and  shoulder, back and knee injuries." The employer obtained more that two and half million dollars in safety bonuses from the Tennessee Valley Authority because of their resulting safety record. The employer previously repaid double the safety bonus money, in settlement of a civil suit against them related to this malfeasance. 

The U.S. Department of Transportation millwright will serve three years probation. He received about eighty-five thousand dollars in benefits while he simultaneously ran his own company. While running that company, he submitted documents in support of his claims for benefits, and claimed he was not working. Now he is paying the money back, serving six months of house arrest, and performing 100 hours of community service. 

Similarly, the Ohio worker collected workers' compensation benefits while simultaneously working for a local real estate company. Turns out that this is a felony in Ohio. He was ordered to pay over twenty-five thousand dollars back to the Bureau of Workers' Compensation. However, his sentence to twelve months in jail was suspended. 

Each instance is troubling. Of course, these are the examples that make headlines. The vast majority of injured workers, employers, and others in these systems are not engaged in these behaviors. Unfortunately, most of the time the public only hears about workers' compensation when these negative stories break. They give us all a black-eye, and likely serve to fuel perceptions that fraud is rampant. As we pause this week to give thanks for all that is worthy in our lives, I am thankful for this system that is workers' compensation.

First, I have earned a reasonable living through my interest in and therefore practice of workers' compensation. I have been privileged to represent some fine people along the way. I have enjoyed being on the same side, opposing side, and a few times in between some exceptionally dedicated, realistic, and professional attorneys. I learned a great deal years ago from a Claimant's attorney I caught in a legal snare. I knew he could escape and, jadedly, fully expected him to escape. All he had to do was lie; my faith in human nature assured me that he would. He did not, my client won, he reported it to his malpractice carrier. Shawn Hideyoshi Pope was fifty when he passed on Halloween 2012. He reminded me much about honor and professionalism one time. I had not talked with him in several years, but I will miss him. 

Second, after transitioning to the bench, I have been privileged to learn a great deal about people. Good and bad. I have worked with some of the best people in Florida, on building a better adjudication process and modernizing the OJCC. There are too many to name, but Jeff Jacobs, Jake Schickel, Jim Fee, Rosemary Eure, and Richard Chait spring to mind from the Claimant's side of the table. Tom Conroy, Richard S. Thompson, Allison Hauser, and Dawn Traverso likewise, from the Defense side. There are so many more, but there is so little space. The many fine judges and mediators would require far to much space to list.

Third, I have learned that the old colloquialisms and jokes about state employees are, as with many stereotypes, blatantly false. I am proud to be associated with a group that is highly dedicated, motivated by high ideals, and hard-working. Certainly, there are some OJCC employees who are still looking for their chance to shine, and a very few remain that perhaps will never shine; I am convinced that this is an exceedingly small minority. The majority of our judges, mediators, and staff are dedicated to the delivery of public service, and they are acutely aware that our role in society affects people's lives, daily, markedly, and persistently. Their patience and dedication is a tribute to their humanity.

Fourth, I have had the chance to witness the formation of an organization dedicated to the development of collegiality between the nations' adjudicators of workers' compensation, the National Association of Workers' Compensation Judiciary. The dedication and commitment, to the formation and growth of this group, of John Lazzara, James McConnaughhay, and Steve Rissman cannot be overstated or ignored.

Finally, having reflected upon those things that make me thankful this season, I sit typing in the dark this Thanksgiving eve. I hope I have reminded you that things are troubling, that there are bad actors in the world, but that they do sometimes get what is coming to them, and that there is far more for which we should be thankful than about which we should complain. I hope this message finds you well, and that we are all together when I ink the next one for Thanksgiving 2013.

Friday, October 19, 2012

Who do You Trust?

The news today includes two stories about physicians. Each is disturbing.

From California, we learn that as many as 201 doctors are accused of writing prescriptions for patients that they either did not evaluate or who did not need the medication. Allegedly, a California based company recruited these physicians and paid a commission to them for prescribing certain topical analgesics to their patients. The company allegedly did the billing and collecting also. According to Workcompcentral.com, 40 of the doctors named in the complaint matched physician names and addresses listed by California in their Qualified Medical Evaluator database, another 37 others matched names only. The story reports that doctors in Florida, Arizona, and South Carolina are also implicated.

The Workcompcentral story reports that allegedly this pharmacy vendor and related companies control about 75,000 prescriptions, and billings of almost $20 million. For comparison, Melbourne, Florida has a census population of about 75,000 people. Those prescriptions may or may not be authentic, and each of those doctors deserves their day in court if they are eventually accused of wrongdoing.

In an unrelated story, a 61 year old Massachusetts surgeon named Kathaleen Porter will spend a year on house arrest, five years on probation, and has surrendered her medical licenses. Her offense? Prescribing an "alarming amount of Percocet to three patients between 2007 and 2009." Dr. Porter admitted she had not examined the patients for months, but that they would call her, tell her how many pills they wanted, and she would tape a prescription for them on her office door. One patient allegedly filled prescriptions at twelve different pharmacies, leading to some suspicion of a potential problem, and an investigation. This may be an example of where a mandatory prescription drug database would help; or this may be an example of how those who ignore laws will simply ignore the mandate to check the database.

The allegations in the first story may support various conclusions. It is possible that there is a massive misunderstanding, and no criminal or otherwise inappropriate behavior has occurred. The plea in the second story may reflect a recognition of criminal liability, or perhaps the doctor elected to accept this outcome because defending against it was too costly in time and or money. It is also possible that everyone involved in each story is guilty and should be prosecuted to the full extent possible under the law. Between these two possible extremes, it may be that there is criminal agency at work here, but that there are also some people involved whose greatest flaw is their trust, laziness or stupidity, none of which is criminal.

It is curious that educated people would make a cost-benefit analysis and decide that their investment in education is worth risking on a few dollars. According to Yale University Medical School, the average Med School tuition in 2010 was about $40,000 per year, and the average school debt of graduates varied by schools, but ranged from about $80,000 to almost $200,000. For reference, in 2010 the median price of a new home in the United States was just over $200,000. Having invested the time and effort to get the best grades in high school, four years of college, medical school, and residency, the financial and other costs of becoming a doctor would seem as obvious as they seem steep. The risk of loss of such a privilege over prescriptions like Dr. Porter's boggle the mind.

Why do the news outlets continue to tell us about physicians involved with "pill mills?" Why would a physician prescribe Percocet in "alarming amounts" to a patient they have not examined in months. Why would a physician put their trust, their license, their livelihood in the hands of a third party who will bill on their behalf and in effect use their good name? There is a hue and cry regarding needs for government regulation on topics like physician dispensing, prescription medication databases, and pill mills. But might we solve some of our own problems if we more regularly enforced the laws we have?

Dr. Porter, for whatever reason, plead guilty to stepping outside the lines. She may no longer practice medicine. Her practice and her good name are no more. Good. The doctors involved in the prescription outsourcing story may be innocent of wrongdoing, guilty of trusting too easily, or guilty. Let the system work and let the penalty fit whichever outcome is reached. 

It is often repeated that we can learn as much from a bad example as we can learn from a good one. From Dr. Porter I hope many will take a lesson to heart. From the California investigation, perhaps time will teach us all lessons about who and how far we trust.

Monday, October 8, 2012

The Florida AWD Website

I came across an interesting story recently in the Florida Current that described the two year journey of the Agency for Workforce Development in developing a new website. The article describes how consolidation into the new Department of Economic Opportunity necessitated an overhaul, "creating a content management system to manage jobless claims" and to integrate the web presence.

Perhaps this is not news, or perhaps it only interests those of us valiantly struggling with the challenges of keeping pace with the ever-changing world of technology. The article notes that "so far" this website redesign  has cost about three quarters of a million dollars. Coincidentally, it is that time of year and the OJCC is in the process of preparing to publish the statutorily mandated annual report to the legislature. That report will note between the OJCC deployment of e-filing in 2005, through the end of the last fiscal year (06.30.12), users have saved about $1,310,177 through use of the e-JCC platform and e-filing. I note this because to date, the OJCC has not spent an aggregate of one million dollars on the entire e-JCC platform. 

Coincidentally, the Florida Supreme Court is moving forward with electronic filing. In an opinion of June 21, 2012, the Court adopted rule amendments characterized as "a significant and important step toward our goal of a fully electronic court system."  The opinion reiterates the Court's 1996 conclusion that the "judicial branch was rapidly moving into the information age." The Court adopted electronic filing and electronic service, see SC11-399 and SC10-2101. 

For the last two years, we have discussed the next step in the development process of E-JCC, e-service. Deployment of this tool has been frustrated by vacillation in a plan to centralize state e-mail systems. There was a plan for such centralization, and we held-off deploying e-service in anticipation of our migration to a new e-mail platform. Last legislative session, that centralization plan was scrapped, and we learned that the OJCC would remain on the existing e-mail platform. Since that decision, we have arranged to upgrade our e-mail capability, both hardware and software, and strengthen the system that will be the foundation of e-service.

The implementation process now draws to a close. The OJCC is ready to deploy the e-service tool for which you have been waiting. The OJCC is not a court. The Office of the Judges of Compensation Claims ("OJCC") is not part of the Florida Judiciary which is created, defined and regulated by Article V. of the Florida Constitution.  Jones v. Chiles, 638 So.2d 48 (Fla.  1994); see also, Millinger v. Broward County Mental Health & Risk Mgmt., 672 So.2d 24, 27 (Fla. 1996).  The OJCC “is not a court of this State because it is neither the supreme court, a district court of appeal, a circuit court, nor a county court.” Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004). Furthermore, the Supreme Court concluded that it "has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for” the Office of Judges of Compensation Claims. Amendments, at 479. 

The Legislature historically delegated the authority for adopting procedural rules regarding workers’ compensation to the Florida Supreme Court, see, Fla. Stat. §440.29(3)(1993). Pursuant to that delegation of authority, the Court adopted procedural rules in 1979. In 1994 the Legislature mandated in Fla. Stat. §440.45(5)(1994) that the OJCC "promulgate" rules of procedure, to supplant and replace the procedural Rules adopted by the Supreme Court. In 2001, the Legislature mandated that the Office of the Judges of Compensation Claims to "adopt" such rules, and stated the Supreme Court Rules shall govern "until the rules adopted by the OJCC pursuant to this section become effective." Fla. Stat. §440.45(2001). On February 23, 2003, the OJCC did enact procedural rules, designated 60Q-6.101, et seq. The statutory mandate for the OJCC to adopt rules was recognized by the Supreme Court in declining to adopt amendments to its Rules of Worker's Compensation Procedure, and in repealing those rules in 2004 as an “unconstitutional encroachment on the power of the executive branch to adopt rules of procedure for its own agencies.” Amendments, at 479.

E-Service for the OJCC will not proceed down the path selected by the Supreme Court. Their choices and rules (the Rules of Judicial Administration) are logical and are designed to meet the needs of the vast assortment of parties and litigation which the Florida Courts service. The OJCC, however, has different needs and requirements. One of these is the methodology for leveraging the electronic paradigm to decrease litigation expense, specifically in the requirement of certified mailings. Therefore, practitioners will need to remain conscious of the differences between civil practice and workers' compensation. One will be the manner of email address maintenance. Another will be the "five days for mailing" differences. Each will be addressed specifically in coming posts. 

The new OJCC Rules will be published soon. Watch the OJCC website for details, or follow us on Twitter for instant updates as we continue to work to make this paradigm a reality for you. 

Monday, September 24, 2012

Mileposts or "call me maybe?"

Life is full of mileposts. I was reminded of that this last week. "The only constant is change." That is not my quote, it has been credited to Isaac Asimov and Heraclitus of Ancient Greece, and others. I have watched the workers compensation adjudication system change over a couple of decades, and have made a living doing it. Early in my career I travelled little and was instead immersed in the microcosm of Jacksonville. As I ventured out to the panhandle, Daytona, Tallahassee, Gainesville, and eventually statewide, I was struck by how different things were in various districts. 

I found a mentor in Daytona Beach though. A judge who had patience with the exubance of a young litigator, who could be decisive without being harsh. A judge that followed the law and the rules, and before whom it was an honor to win or lose. I learned a great deal in those days from Tom Portuallo, and in retrospect I have learned much from him since. More on Judge Portuallo later. 

In July the OJCC lost our Senior Counsel Walter Havers to private practice and the lure of the big city. Walter had been with the OJCC for many years, and frankly seemed irreplaceable. Walter was the unsung hero of our efiling efforts, and a constant force in the management of the OJCC. 

We hired a new Counsel a few weeks back. Her name is Stephanie Hayes. She is an intelligent, enthusiastic, and articulate graduate of Florida State University's fine law school. On Tuesday this last week, like so many others, Stephanie learned that she had passed the Florida Bar Examination. We look forward to the translation of her intellect and enthusiasm into great things for the OJCC and our customers. Her excitement at learning she passed was refreshing, and I reflected Tuesday on how proud I was to join this profession some years ago. Have you reflected on that recently? 

On Thursday, I learned that Judge Lazzara, District Tallahassee, has agreed to teach workers' compensation at Florida State University. Judge Lazzara has been a mentor of mine for longer than I care to admit, and I know better than most his exceptional skill with teaching. I am proud to see him expanding his horizons with this new challenge. Judge Lazzara's excitement about this new frontier is likewise obvious. His enthusiasm at the prospect of challenging and developing legal scholars is inspiring. Have you thought recently about what you can do to expand your horizons? 

I received a call Friday evening as I drove across Interstate 10. Judge Portuallo calling to tell me he received a call from Governor Scott, and that he has been appointed to the Circuit bench. This is a great loss for the OJCC, and for me. I am simultaneously excited for Judge Portuallo, proud of his success, and worried that for the OJCC he is irreplaceable. 

Technically, I guess, no one is irreplaceable, but that does not mean replacing key people is easy for any organization. The Nominating Commission will meet next year, and three fine candidates will be sent to Governor Scott for his consideration. A new, excited, judge will take the bench in Daytona, and will do a great job as they grow into the responsibility as Judge Portuallo and so many others have. Just as our new Counsel Ms. Hayes will translate enthusiasm, excitement and hard work into replacing the irreplaceable Mr. Havers, some appointee will likewise grow into replacing the irreplaceable Judge Portuallo in Daytona. 

We wish the best of luck to Judge Portuallo, Judge Lazzara and Mr. Havers as they each challenge new horizons. We welcome Ms. Hayes to our OJCC team. And I ask you, will you be the one to step up to the challenge of replacing the irreplaceable Judge Portuallo? If I can answer your questions about this opportunity, the Daytona district, or the challenges of seeking and filling this position, "call me maybe?"

Saturday, September 22, 2012

What can I do?

I received an interesting question late one recent Friday afternoon. Essentially, the inquiry was on the subject of a Judge's request for certain information from an injured worker. The worker had filed a motion, and instead of an order, she\he received a phone call requesting more information. 

The injured worker did not think it appropriate that she\he was being asked to provide certain information to the assigned judge. The injured worker at least perceived that there was no basis in law or rule to require the information, as prerequisite to entry of an order. The original question to me from this worker was "what can I do?"

I receive similar inquiries from a variety of attorneys throughout the year. They have run up against something unfamiliar, or in their perspective downright inappropriate, and are unsure how to proceed. I try to preface all of my replies with the same "I can't tell a judge how to rule and I can't give you legal advice." I usually then try to provide some guidance, when possible. This is never legal advice, or specific instruction on how to proceed, but I find some attorneys are benefited by just sharing some ideas or perspectives. A little "brainstorming" can be very productive.

Unfortunately, too many attorneys contact our district offices and seek advice from staff. They find themselves uncertain how to proceed and they resort to calling a judge's secretary for advice. Attorneys should avoid this course. Secretaries are rarely able to provide advice that will move the case forward. It is not appropriate for the assigned Judge, through staff or directly, to tell you what to do, what kind of motion to file, what objection to raise, etc. If you find yourself considering such a call, I encourage you instead to reach out and touch some experienced practitioners and brainstorm for ideas. I am certain that their suggestions will be more helpful than those of secretaries at our offices. 

Imagine yourself in the converse situation. You find yourself at a motion hearing, status conference, or trial. Counsel opposite argues "judge, I didn't know what to do, but your secretary told me filing this motion would solve this situation." Or worse (yes, this actually happened) "judge, your secretary said if I asked for this relief, you would grant it; I don't see why we need a hearing." As opposing counsel on that argument, are you feeling like there is a level playing field? Do you feel like you got a fair shake when there is at least a perception that the other side is getting advice from the judge?

My final answer on Friday? Either supply the information as requested or file an objection. Simple rule of the practice of law, when all else fails, make a record. If the objection route is the one you elect, request a hearing. Under our rules, make that request in the "objection" or, if you prefer make it a "motion for reconsideration" of the judges request. Make the "exceptional circumstances" for this hearing self-apparent in the objection/motion. When I hear from counsel that are upset that there was no hearing on a motion, I often find that the motion either does not ask for a hearing or does too little to explain that there are "exceptional circumstances" that necessitate a hearing. This does not mean write a treatise. A few sentences will usually suffice to explain why this is "out of the ordinary." this could be "in my statewide practice, I have never had such a request for information on a motion like this. I fear untoward consequences for my client and others similarly situated. Conversations with other counsel has suggested this is a situation of 'first impression.' As this appears to be unique and with broad potential implications, the undersigned believes exceptional circumstances support a hearing on this objection."

Of course, ultimately, the recourse might be a writ filed in the District Court of Appeal. This is no ones' choice. It is time consuming, expensive, and lots of work. I would suggest that one not take this route until the "objection" route described above has been tried. This is in the same vein as not filing an appeal until a motion for rehearing has failed. The "objection" or rehearing route is cheaper, faster, and may provide insight for the judge or litigants that will move the issue forward.

I often hear criticism that the process moves too fast. While that could be good news, as a complaint it is troublesome. Speedy trial is virtuous as people need their concerns addressed (which is why they brought them to us to begin with), but trial without appropriate preparation can be a due process issue. More on this in later posts.

David Langham

Thursday, September 6, 2012

The Old Gray Mare She Ain’t What She Used to Be

Change is inevitable. Sometimes change means improvement, sometimes not. Most often what it means depends upon your vantage point. The practice of workers’ compensation may not be what it used to be, and perhaps referring to it as an old gray mare is not fair. However, I hope the headline caused you to read at least this far.

The September 1, 2012 edition of the Florida Bar News announced that three attorneys were recently awarded the distinction of Board Certification in Workers’ Compensation.  There are Daniel Gonzalez of Miami, Michael Rabinowitz of Tampa, and Russell Young of Sarasota. As I try to do each time such an announcement is made, I drafted a quick congratulatory letter to each this week.

I was posting the letters when I encountered some attorneys. I mentioned the purpose of my correspondence and mentioned I would like to write them a letter also. One replied that there is no reason to counsel a client to take any case to trial when it can be settled advantageously. This is certainly true. Another intimated that workers’ compensation trials are not the way to keep the lights on at his office (suggesting that settlements are). Certainly there is merit in negotiated resolutions through settlement or otherwise. 
Their comments got me wondering about the practice of Comp and whether the environment today allows certification and recertification, with the perceptions of fewer trials each year.

Coincidentally, work began in earnest this week on the 2012 OJCC Annual Report. Do the statistics support that trials in workers’ compensation are declining? In fiscal year 2012 the OJCC conducted 1,903 “trials.” Trials include merit hearings on benefits requested by injured workers, fee hearings, and a variety of evidentiary motion hearings such as motions for advance, motions to enforce settlement, and motions to appoint expert medical advisors.

Review of prior reports illustrates that the volume of Florida workers’ compensation trials has not changed markedly in recent years.

2006-2007    1376
2007-2008    1760
2008-2009    1920
2009-2010    2080
2010-2011    1888
2011-2012    1903

Although, the 2006-2007 volume seems low, that figure resulted from data reported by the various districts, without any uniform definition of what constituted a trial. It likely included only the merits hearings conducted that year. Certainly, there are fewer trials now than there were in the 1990s. However, the evidence supports that there remains a significant trial volume. I suspect that there are attorneys out there who have prosecuted or defended 25 trials, and are eligible for certification.

There are currently 207 attorneys Board Certified in Workers’ Compensation in Florida. As of June 1, 2012 there were 93,895 members of The Florida Bar. That number has likely changed since that time, and the results of the July 2012 Bar Exam will certainly change those numbers in coming weeks. However, using that figure as a benchmark, roughly two-tenths of one percent of Florida lawyers is Board Certified in workers’ compensation. 

Overall, about 4,880 attorneys are Board Certified according to the bar website, www.flabar.org.  This is roughly 5% of all Florida attorneys. The various areas of specialty are

Admiralty and Maritime
Adoption Law
Antitrust and Trade Regulation
Appellate Practice
Aviation Law
Business Litigation
City, County & Local Government Law
Civil Trial
Construction Law
Criminal Appellate
Criminal Trial
Education Law
Elder Law
Health Law
Immigration & Nationality
Intellectual Property Law
International Law
Labor & Employment Law
Marital & Family Law
Real Estate
State & Federal Government & Administrative Practice
Tax Law
Wills, Trusts & Estates
Workers Compensation
Total Board Certified Attorneys

To be Board Certified in workers’ compensation, an attorney must have practiced for 5 years, with 30% or more of their practice over the preceding three years in the practice of workers’ compensation law.  A minimum of 25 contested workers’ compensation trials, all involving substantial legal or factual issues, a peer review, 45 hours of continuing legal education within three years prior to the application, and successful completion of the Board Certification examination.

Admittedly, the application is a challenge. However, with the case-search now available on the OJCC website it is much less of a chore than it used to be. An attorney can search their name in the Google search and find those trial orders. This will provide you the case numbers, the opposing counsel details, and the issues that you need for that application.

I am proud to be Board Certified. I am proud of our Judges who are Board Certified, Judges Lorenzen, Murphy, Rosen, Sculco, and Sojourner. I am proud of our Mediators who are Board Certified, Mediators Suskin and Witlin. I am proud of our former Judges who are Board Certified, Juan Bello, Gary Frazier, and Richard Thompson. I am proud of our newest Specialists, Daniel Gonzalez, Michael Rabinowitz, and Russell Young. I am proud, in fact, of all 207 attorneys that have achieved and maintain this designation of “Specialist.”

 It is my hope that attorneys will read this and conclude that they would be proud to be Board Certified also. If you reach that conclusion and I can assist you with research on your trials and trial orders, contact me at david_langham@doah.state.fl.us  

Monday, August 27, 2012

Commission Nominates 5 for Reappointment and 6 for Appointment

On August 20, 2012, The Statewide Judicial Nominating Commission for Judges of Compensation Claims nominated the following: 

Nominees to fill the Miami vacancy resulting from the retirement of the Hon. Henry Harnage
A.  Johnsen, Gregory
B.  Kerr, Margret
C.  Renick, Steve 

Nominees to fill the Tampa vacancy resulting from the retirement of the Hon. Joseph Murphy
A.  Massey, Mark
B.  Campbell, Ya’Sheaka
C.  McCall, Hillarey 

The following judges were nominated for reappointment:
A.     MIAMI: Castiello, Gerardo
B.     MIAMI: Kuker, Alan
C.     WEST PALM: D’Ambrosio, Mary
D.     ST. PETERSBURG: Rosen, Stephen
E.     ORLANDO: Sculco, Thomas

Retired Circuit Court Judge and former Judge of Compensation Claims (ORL) Stan Strickland was appointed by the Commission to serve as Commissioner from the 5th DCA jurisdictional area.