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.