Sunday, January 27, 2013

The Section Announces New Website

Have you seen the new website for The Workers’ Compensation Section of The Florida Bar? I had the opportunity to preview it as I waited in an airport Friday night. The new site is a dramatic change. http://www.flworkerscomp.org/

I also had the chance to reminisce with some attorneys at the Section Executive Council meeting last Friday. The new website has been a long time coming, and I am proud of the Section. I am particularly proud of the chairs that have facilitated this in recent years. I am certain I am missing some people, but Jeff Jacobs, Dawn Traverso, and Chair-Elect Christopher Smith jump to mind.

It is also appropriate to acknowledge the efforts of Martin Liebowitz, Executive Committee member from Jacksonville. His efforts in leading the Section’s adoption and leveraging of technology have been herculean. Change is never easy, and I have witnessed the Section’s transitions through various stages of technology in the last 15 years. Much of what we have seen has come to pass in this regard has been because of Martin’s leadership and vision. He is to be congratulated.

One of the changes is the new blog section of the site. The Executive Council has graciously offered me space for a blog on this new website. I am pleased and excited about this new opportunity. There is much to be noted as we pass our time in this thing we call Comp. Much of it slides past us in the current of commitments and obligations we have, and the necessity of earning a living. 

I would like to celebrate your mileposts however, if you will tell me about them. When someone achieves a milepost (30 years of practice), or achievement (presented a CLE program, was honored by an organization, prevailed on an interesting case, achieved Board Certification, etc.), if you bring it to my attention, I will do my best to get it out to the world on this new blog platform.

I came away from the meeting Friday with continued enthusiasm about the relationship that has developed between bench and bar. I think we have “come a long way baby,” and I hope you all will “hang in there.” We can accomplish much together. I think we prove this every day. I believe good days lie ahead of us, and I look forward to doing what I can to make sure this is true. 

Free Seminar Next Month - Register NOW

The OJCC is presenting a free CLE program: 

The New Reality of Workers’ Compensation Litigation in 2013 

This will be February 8, 2013 at the Florida First District Court of Appeal in Tallahassee. This program is sponsored by the Workers' Compensation Institute and the OJCC. Details are in the December WCI newsletter: 

Or, email me for more information david.langham@doah.state.fl.us 

There are limited seats available, and we are rapidly closing in on our limit. If you are interested in attending, please visit the link above, print the registration form, and get it submitted to WCI as soon as practical. We look forward to seeing you there!

Saturday, January 26, 2013

Are You a Mentor

I was humbled last week to share a meal with an amazing group of people. To a person, the room was filled with names which are synonymous with Florida workers’ compensation. Certainly each has faults or flaws, everybody does. But, these luminaries have had their names on doors in this state since I can remember, although that is not that long. This was the Workers’ Compensation Institute Hall of Fame, the second annual induction dinner. The event was held in Miami this year, with the planning and organizational efforts of Ray Malca and Steve Rissman.

I heard a great many stories about the way workers’ compensation used to be, and the “good old days.” I do not doubt those stories for a minute, and I respect the way in which all of the Hall members revere those that came before, those that have passed, and those that have brought texture to the fabric of this practice. I have to balance those recollections against the refrains of today, that “comp is dying,” or ‘it isn’t fair.” Certainly workers’ compensation is not easy. However, I am reminded of the line from a Billy Joel song in which he reminds “the good old days weren’t all that good, and tomorrow ain’t as bad as it seems.”

The role that these Hall members have played in the development of Florida Workers’ Compensation is dramatic. Around the table at dinner, I saw those who have represented parties in (now) famous cases, founded little law firms that became statewide, dedicated careers to developing successful insurance companies, lobbied for change, served the state, wrote articles and gave speeches. All important, helpful and gratefully acknowledged. Bravo ladies and gentlemen.

Despite these fine accolades and contributions, not their best work in my opinion. These are what you may know them by. But as I listen to stories around the table, I was struck by the contributions each has made to other people. One attorney raised his glass last Friday to another and said “you made me the lawyer I am.” When it all comes to rest, I suggest, the people are more important than the accolades and achievements. This is nothing new, and I realize I am echoing old sentiments about the importance of touching other people.

Our agency rolled out electronic service last week. Immediately, I began getting emails from attorneys who could not find the carrier they needed in the list on our e-JCC platform. We asked in October for the data to make this list complete. Some carriers provided it, others did not. Lives are busy, I get it. I started calling carriers. At one, the lady that answered the phone was an adjuster I worked with years ago. At another, I happened to reach a claims manager who also had been an adjuster I worked with in the 90s. Days later, yet another representative responded to an email request, and turned out to be yet another. She took the time to reminisce a few minutes with me about the 90s and our work for an employer in Jacksonville. That employer is gone, I have lost track of the people, but it was nice to remember.

My point? Each of those people reminded me how I learned to be the lawyer that I was. Those people changed me, mostly for the better. I remember writing a magnificent opinion letter, as a young lawyer, describing the many reasons my client’s employee’s death claim would never prevail at trial and why it should be denied. Like the narrator describes in “Alice’s Restaurant,” I had everything I needed to win (my letter took longer to read than Arlo’s 26 minute rendition). After reading my letter, the client asked me a question that I recalled many times thereafter as an attorney, “yeah Dave, but is it right?” My client paid me for my fine letter, and then paid the widow for the death benefits. It was the right thing to do.

Still don’t get the point? The most compelling stories from the Hall dinner, to me; the “best work,” to me, of those Hall members sitting around the table? That most of these workers’ compensation icons was a mentor, and many still are. Their “best work,” in my opinion, is the extent to which each has obviously and repeatedly touched the lives of other attorneys, adjusters, and paraprofessionals, struggling to balance the challenges and obligations of this fine profession.

When you help someone, there is a direct and practical value transferred. More important, you set the example which should motivate that person to, in turn, help someone else. Thus each of these Hall icons, with each person mentored, has mentored so many more. I consider this their “best work” because, as I said, workers’ compensation is not easy, nor is life. It can be easier, though, if you have a few good mentors or role models. We certainly have much to thank the Hall members for, over the course of (collectively) hundreds of years of service. However, what I want to specifically thank them each for is the contributions they have made mentoring.

Too few attorneys seek a place in workers’ compensation. Too many are leaving the practice. The reasons are varied. Past is the day when I met many fresh faces at the WCI conference each August. Despite this, there are young people around us, some in comp and others in our community. If we are to be measured a success, I would suggest that the best benchmark may be how much you do to assist and advise these young people, such that they may grow and become tomorrow’s icons.  Have you mentored someone today?

Friday, January 18, 2013

Applicants for Daytona Vacancy

The deadline for applications for appointment as Judge of Compensation Claims in Daytona Beach was January 17, 2013. 

The applicants are:

Jane C. Almy-Loewinger
Wilbur Anderson
Robert L. Dietz
Bruce A. Epple
Mark A. Massey (withdrawn)
Clay Meek
Keef Owens
Steven P. Pyle
Timothy S. Stanton
Michael F. Wilkes

The interviews by the Statewide Judicial Nominating Commission will be February 11, 2013 at the Airport Hyatt Regency, inside Orlando International Airport. The notice is here 

Check the Notice for details of the procedure from this point forward. As always, feel free to email me david.langham@doah.state.fl.us, or call 850.595.6310 x 108.

Thursday, January 17, 2013

Comings and Goings

Not long ago, I took to this Blog to discuss the departure of Thomas Portuallo, a long-serving Florida  Judge of Compensation Claims.  I described my feelings about Judge Portuallo and his service to this State. I write today to thank another icon of our organization, Judge Alan Kuker, and to congratulate and thank others (more on that later).  Judge Kuker was appointed Judge of Compensation Claims in 1973 by Ruben Askew. He thereafter served continuously for forty years in District MIA, leaving an indelible mark on the history of Florida’s workers’ compensation adjudication process. Judge Kuker’s term is expiring, and he will not be serving another.

As I mentioned in the Blog regarding Judge Portuallo, none of us is irreplaceable. Someone will have large shoes to fill indeed when she or he replaces Judge Kuker in Miami. His departure is the end of an era in South Florida. Judge Kuker has seen the time of Deputy Commissioners and JCCs, the First District and the Industrial Relations Commission (IRC). In fact, by special designation, Judge Kuker presided as a part of an IRC panel several years ago with Leander Shaw, Jr., who would go on to serve as a Florida Supreme Court Chief Justice.

 The OJCC will miss Judge Kuker and his positive contributions to the adjudication process. His persistence and fortitude are an inspiration to all who would hold the job of JCC.  To devote one’s career to this job, over the span of 30 years, cannot have been an easy task. Believe it or not, being a JCC can be a thankless job some days. Judge Kuker told me repeatedly, though, that he loved the job and greatly enjoyed what he was doing.

One reason that being a JCC is sometimes frustrating is in the nature of our system. In civil cases and criminal cases, there is usually a clear victor. The extent of victory is perhaps debatable in those contexts, but usually there is a winner and that party emerges from the process pleased. Not always so in workers’ compensation. Because of the serial nature of claims, it is not uncommon for both sides to leave a hearing upset or even angry.

I recall a case in which a claimant sought multiple benefits; the Carrier denied and asserted the so-called “fraud” defense. The judge denied the benefits and declined to ban the worker’s potential future benefits, by declining to rule against the claimant on the misrepresentation. The Judge simply elected not to address “fraud” and thereby denied the defense. The carrier, having prevailed, owing no claimed benefits, appealed to the Court seeking an order compelling the Judge to rule on the misrepresentation. They lost again. The point though, is that in that case all parties were displeased with the trial result. Neither party felt they were the victor. All parties were mad at the judge and mad at the system, and dissatisfied. Some of them told me so.

I hear complaints from attorneys, injured workers, adjusters, risk managers, employers, doctors (well, you get the picture) about workers’ compensation generally and the adjudication process specifically. No one would tell you our system is perfect. What each might wish to change, however, varies. But returning to the point, it is not easy being a JCC. Knowing we are engaged in a difficult and sometimes thankless job, we are proud and excited to welcome Judge Massey to our ranks soon. Congratulations Mr. Massey! Governor Scott appointed him to serve in Tampa, replacing Judge Joe Murphy, upon his retirement. This week Governor Scott also reappointed Judges D’Ambrosio (WPB) and Rosen (STP) for four more years. Congratulations Judges! We are proud of them all.

During the twelve years since I was appointed in PNS, Judges have left the bench, and the OJCC is not the same as it was. I could write an entire Blog page about each of those who have departed, and perhaps someday I shall. For today, though, it has been my personal pleasure to know Judge Kuker and Judge Murphy over these comparatively short twelve years that I have been a judge.  I am certain that each will bring great energy to whatever endeavor each selects as his next challenge. Parting will not be easy for any of us. We wish Judges Kuker and Murphy Godspeed and the best of luck. We commit to you that we will continue to grow in our capabilities and improve this organization, bringing you be best service that we can.

Remember that none of us is irreplaceable, though that does not mean replacing certain people is easy by any means.

Wednesday, January 16, 2013

Where Seldom is Heard a Discouraging Word

Senator Braynon has sponsored SB 308, "A bill to be entitled An act relating to abusive workplace environments; creating the “Abusive Workplace Environment Act.” This bill seeks legislative recognition that social and economic well-being of Florida is dependent upon healthy employees, and that employee health is threatened by workplace bullying and abuse. The bill notes that employees who feel abused or bullied do not have legal recourse at the present unless they can establish that the behavior was motivated by "race, color, sex, national origin, or age." The bill seeks recognition that "legal protection" at work should not be limited to those "protected class" types of legal recourse.

This law would provide:
"relief to employees who have been harmed, psychologically, physically, or economically, by being deliberately subjected to an abusive workplace environment; and incentives for employers to prevent and respond to abusive mistreatment of employees at work."
The bill defines the "abusive conduct" that would be actionable under the law. That is "a pattern of behavior or a single act of an employer or employee in the workplace which is performed with malice and is unrelated to an employer’s legitimate business and which a reasonable person would find hostile or offensive considering the severity, nature, and frequency of the conduct or the severity and egregiousness of the conduct." The bill then lists actions that would be actionable. The list is not exclusive, but provides examples.
Repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets;
Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;
Sabotaging or undermining a person’s work performance;
Attempting to exploit an employee’s known psychological or physical vulnerability.
Lots of bills are filed each session. Some receive attention and others fall by the wayside as attention is focused on other priorities. This session, like so many recently, may be about the budget and perhaps little else. However, this is a bill to watch as it has the potential to require examination should it be one of the measures that "gets legs" and passes.

It is likely impractical to determine with any certainty how many employees suffer the behavior which this bill describes. However, it is likely that such issues might come to the fore after a work-place injury, filing of a petition and the workers' compensation litigation. Unfortunately, we find that the workers' compensation mediation process is sometimes the first time employers and employees speak with each other about issues that bother each. While it is fortunate that mediation provides that opportunity, it is unfortunate that this communication does not occur far earlier and without the need for litigation.

Have you talked with your employer or employee lately about what may be bothering you? More importantly, and only tangentially on topic, have you complimented your coworkers, employees, employers recently? It is a tough economy, a stressful time, and a kind word or two goes a long way. My advice today is that you pay someone a compliment each day. Use more "thank you," "please," and "good job" in your workplace. Recognize that everyone involved in your business has a purpose and brings value to the operation (that is why they were hired). Appreciate the value and try to ignore the distracting personality deficiencies we all have. When we put aside petty differences and work together we can accomplish almost anything.

Wednesday, January 9, 2013

Please See The Rules

How do I . . . .

It is rare that I get an email asking "how do I . . . " that I cannot answer the question by cutting and pasting a portion of a 60Q Rule into the reply email. I do not mean that I do this to support my answer, I mean that the pasted portion usually is my answer.

Some recent examples:

Issue One:
"I have a motion to file, but I want a hearing on this. How do I communicate that to the Judge?"
60Q6.115(4) "The judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response."

Shorter answer: explain in the motion or response what is exceptional, and what the good cause is that supports holding a hearing.

Issue Two:
"I filed a motion, but the issue has resolved. I sent the judge a letter but an order was nonetheless entered."
60Q6.108(c) "The following documents shall not be filed with the OJCC unless relevant to an issue to be heard and not more than 10 days but at least two days before the scheduled hearing: requests or notices to produce and objections or responses thereto, deposition transcripts, correspondence between counsel or parties, correspondence to the judge or the judge’s staff, subpoenas and returns of service."

Shorter answer: don't send correspondence, e-file a short pleading "withdrawal of motion for . . ." That is "Comes now the ____________ and withdraws the motion for ____________ filed ________, dd, YYYY. The issue(s) is resolved and no order is necessary."

Issue Three:
"I made a mistake in a pleading, petition, or notice and it needs to be corrected in the OJCC database."
"I filed some document in the wrong case by accident and would like it stricken from the mistaken case as it contains information that others should not see."
"I called the clerks office and they will not fix the error for me. What do I do?"
60Q6.115(1) "Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested."

Short answer: Don't call the clerk's office to fix an error. You are putting the staff in a difficult position. If you need something changed in our database, file a motion to correct scrivener's error or motion to amend. If you need something stricken from the record, file a motion to strike or motion to seal. This is within the discretion of the assigned Judge. Our clerks are here to help you, but the assigned Judge needs to make the decisions about her or his cases. However, if you have an emergency, feel free to contact me (david.langham@doah.state.fl.us).

Video Teleconference CLE Program

Moderator Christopher Smith (Tampa) will guide judges Beck (Sarasota), Lazzara (Tallahassee) and Lewis (Ft. Lauderdale) through a variety of ethical concerns. This program will be rebroadcast throughout the state at noon on February 8, via the OJCC videoteleconference system. Program rebroadcast locations include Miami, Ft. Myers, Port St. Lucie, Orlando and Tampa.

There is no need to register for this program. Come to any of the noted locations (the OJCC District Offices, check our website for addresses). First come, first served!

We are sorry we cannot broadcast to all Districts. The recording will be made available afterwards on YouTube for your use.

Free Seminar February 2013 in Tallahassee

The fourth annual Tallahassee workers’ compensation seminar will be February 8, 2013 in the general purpose room of the First District Court at 2000 Drayton Drive. Tallahassee, Florida.

This program would not be possible without the support of the Workers' Compensation Institute. Our thanks to James McConnaughhay, David Parrish, Steve Rissman, Gerald Rosenthal and all the Institute leadership and staff that makes this even possible.
The agenda is packed with workers’ compensation information critical to the adjuster, risk manager or attorney. There will be a judicial panel addressing ethical issues confronting workers’ compensation. Moderator Christopher Smith (Tampa) will guide judges Beck (Sarasota), Lazzara (Tallahassee) and Lewis (Ft. Lauderdale) through a variety of ethical concerns. This panel will be recorded, and rebroadcast throughout the state at noon on February 8, via the OJCC videoteleconference system. Program rebroadcast locations include Miami, Ft. Myers, Port St. Lucie, Orlando and Tampa.

The program includes a segment presented by Randall Porche, and the workers’ compensation unit, focused on the art of writing a persuasive appellate brief. Attorneys and parties will gain a better understanding of the effort and organization that go into preparing a brief that says enough, does not say too much, and is organized so that it is comprehensive, informative, and persuasive.
A mediation panel including Susan Bisbee (Tallahassee), Alan Gordon (Jacksonville), and Jake Schickel (Jacksonville) will address issues confronting the mediation process. They will explore the conflicts between early defense expenditures that may decrease the funds available for settlement versus the difficulty of negotiating a settlement on incomplete and imperfect information. The necessity and reality of a complete settlement agreement, and the downside risk of that motion to compel settlement that results from poor draftsmanship will also be explored.

The afternoon portion of the program will begin with another judicial panel moderated by Steve Coonrod (Tallahassee). He will navigate Judges Condry (Orlando), Medina-Shore (Miami) and Sojourner (Lakeland) through a variety of issues including the new procedural rules, effective drafting and pleading, and tips and tricks or effective advocacy generally.
An attorney panel will follow, moderated by Jake Schickel (Jacksonville). He will be joined by panelists Christopher Smith (Tampa), Kimberly Syfrett (Panama City), Steve Coonrod (Talahassee) and Amy Warpinski (Jacksonville). This geographically diverse panel of exceptionally expereicned attorneys brings perspectives from the injured worker, the employer/carrier, and the in-house counsel for the defense. Their focus will share a wide array of challenges faced by the litigators in the system. Reference will be made to various recent court decisions and the new procedural rules.
The program will conclude with an all-star panel on appellate law and its interaction with the trial bench. Judges Lazzara (Tallahassee), Ervin (Tallahassee, First District Court of Appeal, retired) and Wetherell (Tallahassee, First District Court of Appeal) will provide an overview of the interaction between trial and appellate bench. They will address issues including the preparation and filing of the appellate record, the process for dealing with appellate exhibits that cannot be e-filed, the issuance of appellate decisions and how the trial judge and parties should proceed following an order from the court or issuance of a mandate.
The agenda is full, and the program participants will enjoy the wit and wisdom of some of the most knowledgeable workers’ compensation system participants from around the state. This program brings an exceptional level of geographic diversity to Tallahassee for an unparalleled program.

The registration form is on page 24 of the December WCI360 newsletter (www.wci360.com). Register early, space is limited!