Wednesday, October 30, 2013

Annual Report Installment - Petition Filings

Petition filings and new case filings continued to decline last year. Remember, the Florida Office of Judges of Compensation Claims (OJCC)(and the rest of the state) runs on a fiscal year, which begins each July 1 and concludes the following June 30. So, fiscal 2013 ended last summer, and the OJCC has been compiling and preparing statistics and measures since then. It is a long process that includes verification of data that our district staff has entered into the database through the year.

In 2012-13, 58,041 PFB were filed. In 1995-96 the total PFB filing was 56,298. So, after a significant increase in litigation following the 1994 reforms, PFB volumes are approaching the pre-reform volumes. This is an imperfect comparison. Before the 1993 reforms, "claims" were the operative pleading for identifying the dispute, and jurisdiction of this Office over such disputes was effected by filing an "application for hearing" regarding the claim. With this significant change in 1993, it is difficult to compare filing volumes to periods before 1993. 

The Florida Legislature enacted significant amendments to the Florida Workers’ Compensation Law in 1994 and again in 2003. It is interesting that petition filings steadily increased after the 1994 reforms. Just prior to the 2003 reforms, PFB filings peaked at 151,021. The progressive increase in PFB filings between 1994 and 2003 belie the efficacy of the 1994 reforms’ intent to decrease litigation. 

Immediately following the 2003 reforms, the PFB filing volume decreased at a consistent annual rate of approximately fifteen percent (15.21% to 15.9%) over each of the next three years, and then continued to decline with reasonable consistently through fiscal 2013 with the sole exception of a slight (less than 2%) increase in 2008-09. Despite these decreases, PFB filing volume in 2012-13 remains in excess of the volume in 1994 (38,254) when the reform was passed.

The slight increase in 2008-09 is a curiosity. During that year, PFB volumes had trended down on a monthly basis until the rendition of the Supreme Court Murray decision regarding attorney's fees. After that decision, there was an increase in PFB volume for the second half of the fiscal year, leading to this small (less than 2%) overall increase for the year. The trend returned to decreases the next year and since, however.

In 2012-13, the decrease in PFB filing was 5.4%. This is the third consecutive year in which PFB filing has decreased about 5%. If this trend (decrease) and rate (annual 5%) continue, the annual PFB filing rate will return to 1994 levels (38,254) in approximately eight years, about 2021. 

The "new case" volume in 2012-13 was 28,912. This is the lowest new case volume since the OJCC began tracking this statistic in 2001-02.

Tuesday, October 29, 2013

Will E-service Replace Certified Mail Elsewhere?

The demise of Certified Mail may be coming. Florida has already migrated to electronic mail for transmitting petitions, responses and other pleadings. The savings that result are dramatic. Cost savings are detailed in eJCC Saves Millions

Last week the South Carolina Workers' Compensation Commission announced that they have decided to begin moving away from Certified Mail. This is a discretionary action on their part, as their transmission of documents is directed to be by either Certified Mail, U.S. Mail, or electronic mail. 

The action by the South Carolina Commission may not be an abandonment of paper, but it may be a first step. Their announcement last week does not say that the Commission will not use the U.S. Postal Service for sending notices, forms and orders, just that they will not use Certified. Certified adds about $3.10 to each mailing, in addition to the postage ($.46). 

The Commission's notice also does not address how attorneys serve documents. Experience in Florida supports that much is spent by the state to transmit documents to parties and their attorneys, but as much or more is spent by the parties communicating with each other throughout a case. Consistency is also a benefit to attorneys. If they are to expect email from the Commission, adopting a process by which they use the same medium for communications among themselves brings consistency. 

This step by the South Carolina Commission may signal that it is moving in the direction of an e-mail process. Certainly, much will be saved by not adding that $3.10 to the tab for Certified Mail. Significant savings may be added to this by migrating to email as the primary delivery system, and abandoning the United States Post Office entirely. The $.46 price of a First Class stamp will only continue to rise. 

The paradigm has shifted in Florida. The indicators support that change is coming elsewhere. The paperless process is a reality towards which we will all progress. We will not change the fact that change is coming, we may only choose how we react to it.

Wednesday, October 23, 2013

The Notice of Unavailability

There has been an increase lately in the filing of questionable documents with the Office of Judges of Compensation Claims. One is cover letters. We really do not need a letter with your motion, which explains that the attached document is a motion We can get that from the motion. Please stop filing cover letters. 

Another is the Notice of Unavailability. Invariably, they identify a range of dates upon or between which counsel is otherwise committed to other pursuits and therefore not amenable to scheduling in this particular case. The tenor may not be so consistent, however. Some state something like "the undersigned also requests that no depositions be set during that time frame," while others may be more coercive, like "parties therefore shall refrain from filing any motions, notices of hearing, or refrain from setting hearings during this time period."

Is a Notice of Unavailability of any practical use?

The Southern District of Florida has a Magistrate who unequivocally says no. In the SDFLA Blogspot, they note that Magistrate Stephen Brown published a "Notice to Parties" in 2010 explaining:
The parties should note that there is no local rule in our Court providing for the filing of same, and no federal rule supporting same.  While the Court is not precluding anyone from filing same, and as a matter of professionalism and courtesy they should be considered, the parties should understand that these filings have no legal significance.
Is there a 60Q Rule that either describes or suggests this document/notice?

From where did this practice come then? There are those who point to the Florida Rules of Judicial Administration generally, and the provisions of Rule 2.550 specifically. I have seen this Rule cited in a few motions for continuance over the years also. Some proponents feel that this rule either allows, or perhaps requires, the notification of calendar conflicts. Keep in mind that the Florida Office of Judges of Compensation Claims is not a Court. The Rules of Judicial Administration apply to Courts. The RJA does not control the OJCC except where our rules incorporate them, such as the disqualification of judges.

The SDFLA Blogspot has some interesting comments on the topic, and you can decide for yourself whether the Notice has any utility in your workers' compensation practice. I would suggest that there is a utility to such a notice. That is courtesy to your opponent. Everyone has an interest in getting the case moving. Any case will have discovery issues and calendar conflicts. They are virtually inescapable. People on both sides of any litigation, and the witnesses that will be needed therefor, are busy. That is a simple fact of litigation life. Notifying opposing counsel of calendar conflicts may be the polite and helpful course. Sending such a notice that identifies virtually all the days for the next six months? not so much.

You cannot expect a Judge to sift through the docket, in setting a hearing. Imagine yourself sifting through all of your cases trying to figure out who might be unavailable in a given case. This is not practical. Therefore, do not find yourself surprised if something gets scheduled during a time for which you have filed a notice of unavailability. That notice has no force of law, and you cannot expect that filing it will unequivocally protect your calendar. 

You may, however, find that a notice is helpful to your opponent. Being helpful to her/him, is contextually beneficial to you. First, it is more professional. Second, when you need the Judge's help on a motion for protective order or a motion for continuance, it may behoove you to be able to point to the Notice of Unavailability (attached to a Motion). 

In other words, it cannot hurt you to file such a notice, but do not think it is the be all and end all. I recommend avoiding any language as to what parties or the Judge "shall" do or refrain from because of your notice. Grandma always told me that you catch more flies with sugar. I commend that course.  

Monday, October 21, 2013

Is there a better way?

There are so many similarities around the country's workers' compensation systems. All jurisdictions do many things with at least commonalities. This becomes more apparent to me when I get the opportunity to sit around a table with officials from other states. The Southern Association of Worker's Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC) are exceptional venues for such interaction.

Great ideas have come from these groups, and the IAIABC notably has led the way for consistency among the states in the area of electronic data interchange or "EDI." Computer programmers are creative people. Certainly, they live in a world that is dependent upon logic and they create programs that are themselves functional because they react and respond in a predictable manner to the input with which they are provided. However, if you sit ten of them in a room and describe what you want a program to do, you will get ten, creative, and distinct programs. There is a creativity and art to programming. 

Without the EDI leadership and planning, there would therefore be fifty or more EDI processes out there. In other words, the insurance companies that are able to collect the data regarding claims would be burdened with reporting that data to each of the various jurisdictions in  a vast number of formats. I am sure that even with the EDI leadership, that there are still distinctions that complicate data reporting, but I am as sure that the situation is better than it otherwise would be without the leadership on consistency that grew out of a national or international approach. 

This subject came back to mind as I was reading California's news last week. Their Commission on Health and Safety and Workers' Compensation, or CHSWC, has approved a proposal for reimbursement of copy services. This is not the first time that the subject has been in the news, David DePaolo blogged about the process about two years ago. He acknowledged that those of us outside California likely did not understand the process, and he conceded that he, and therefore likely other Californians, has little information as to how other jurisdictions address the procurement of medical evidence. 

Mr. DePaolo explains in his blog that there are two approaches for obtaining medical records in California. one for the defense and one for the injured worker (or her/his representatives). Whether because of laws, contracts, and custom, he explains that injured workers' access to records is governed by a "more rigid" process, with record authentication being a significant focus. Rigidity, in my experience, often translates to expense. 

The issue which California faces with a fee schedule is interesting. Not because I see any grand significance in their decision last week to reimburse $103.55 for up to 1,000 page, if timely paid (60 days) or to reimburse $251.20 if that payment is not timely paid. They can argue all they want about whether such payments are appropriate, and whether their system for payment is fair or just. 

I find the issue interesting because it seems to me this ignores a debate that might be more appropriate. In today's world of the portable document format (PDF), the internet, and the electronic transmission of documents, is there not a better way than having a "copy service" procure paper replications of injured worker medical records?

I have seen the vision that The Florida Bar Workers' Compensation Section has for some kind of "data warehouse" system for medical records. They want to build something similar to what the Social Security Administration uses. That vision accepts that the world around us is changing, and that many or perhaps most medical practices have evolved from paper records to digital records. Doctor's offices and hospitals are either in that mode, or moving that direction, for the same reasons that compel the rest of us, digital filing and records save physical space, time, and money. 

The vision of the Section is to build a data warehouse in which injured workers' and carriers could stock documents and data from various medical providers. They see it as a cooperative method by which everyone in our compensation disputes would have increased access to complete and inexpensive information and data. I can see the potentials for savings in both time and money. That does not mean the path to such a process is not complicated by obstacles, they abound. 

I am not sure we will get such a warehouse built. I am convinced that it is a valid process for consideration. If the providers are keeping the records electronically, why should those be converted to paper replications for production to any party? Is it only so that a digital file which could be emailed becomes a revenue generator when it is printed at  $1.00 per page or more? 

Is there a way for the discovery processes to encourage electronic production? Are there pitfalls to such a process? Is the data warehouse methodology the answer, or a path to more questions? Is there benefit in establishing a paradigm or model that more jurisdictions might be able to adopt, as the IAIABC EDI model suggests?

I see California expending significant effort over the last two years, trying to deal with the apparently difficult issue of what is the fair price for copy services. I wonder if that effort might be better channeled into a broader debate about process and how it might be modernized, simplified, and expedited?

Wednesday, October 16, 2013

It's not over 'til its over

Starship released that lyric years ago, and it came to mind today following the Florida Supreme Court's decision on October 15, 2013 regarding Westphal v. City of St. Petersburg. The Court has listed this case as a "high profile case" on their website. The case number is SC 13-1930. 

The Court's order notes that the designation is based upon the "significant public and media interest in this matter."

The petition for review by the Court, titled Notice to Invoke Discretionary Jurisdiction, was filed in early October. 

The workers' compensation world will likely watch with interest as this case proceeds. Because of the Court's designation, interested persons should be able to access the Court filings through the Internet.

Dying to me don't sound like all that much fun

John Mellencamp had a hit years ago, called "the authority song." I heard a DJ once say that this was from his "rebelious period," which I thought really did not narrow it down much with Mellencamp. One of his lyrics in this song struck me when I read a recent report on opioids: 

He said , "You don't need no strength, you need to grow up son."

I said, "Growing up leads to growing old and then to dying"

"OO and dying to me don't sound like all that much fun."

Indeed, dying to me also does not sound all that appealing. Certainly, we are all headed that way. Death and taxes, I get it. That does not mean that because it is inevitable it is necessarily inevitable on any given day. Death can still be senseless and needless in specific instances. 

The "Trust for America’s Health is a non-profit, non-partisan organization dedicated to saving lives by protecting the health of every community and working to make disease prevention a national priority." They recently released a report on prescription drug abuse. The death rates and issues with drugs are not "news," but their findings are staggering.

Taken alone, their findings would be staggering. Taken in context, they are even worse. Context? In 2012, the Center for Disease Control reported that "drug overdose" is a more likely cause of death in this country than "automobile accident." That conclusion should have resulted in some serious soul-searching and some serious action across this country. Certainly, there have been some efforts made. There are many officials who take this situation with appropriate concern. However, the deaths continue and more must be done. 

The Report notes the scientific advances of the past twenty years and all that has meant to pharmacology, but notes 

"there has been a striking increase in the misuse and abuse of these medications — where individuals take a drug in a higher quantity, in another manner or for another purpose than prescribed, or take a medication that has been prescribed for another individual." 

In short, these medications are not being used appropriately in some instances, and they are getting into the wrong hands. There is a particular issue with pain medication. The Report notes "Overdose deaths involving prescription painkillers have quadrupled since 1999 and now outnumber those from heroin and cocaine combined." 

About 50 Americans die each day from prescription pain killers in the United States. This country takes heroin and cocaine very seriously. Legislatures and law enforcement have pursued these with zeal. Will the same effort be directed at the pill problem? The Report says that the annual cost of prescription drug abuse is about $53.4 Billion. Dividing this by the 314 (approx) million people in this country, this epidemic is costing us about $170.00 each annually. 

There is evidence cited in the Report that supports people are engaged in "abusive purchases of controlled substances." Examining the Medicaid population led the Government Accounting Office to conclude that 65,000 Medicaid patients in five states "acquired the same type of controlled substances from six or more different medical practitioners during fiscal years 2006 and 2007 through “doctor shopping.” Are these people using multiple doctors to obtain the pain medication they need for their medical conditions? 

Vast volumes of pain relief medication is in our marketplace. The volume of prescribed pain medication quadrupled in America between 1999 and 2010. In an odd coincidence, the volume of "fatal poisonings" related to pain medication also quadrupled. An incredible set of statistics. Emergency room visits for medication misuse have increased. Many such visits involve minors. They are often taking medication that belongs to some adult. Is this possible because of the sheer volume of pills out there? The volume of minors who seek treatment for medication poisoning is double the volume who seek such treatment for household product poisoning. 

States are taking action. The Federal Government is focusing attention on this pandemic. Tools such as prescription drug databases are being deployed, allowing physicians and pharmacists to look for patterns in prescriptions. Few jurisdictions require doctors to consult such databases before prescribing medications. When I have asked why they are not required, the response I get is that the physicians do not want to be regulated or restricted, so they are not. Interesting answer. 

Physicians and clinics referred to as "pill mills" are being examined, and some are being closed. Some physicians are being prosecuted for their prescription practices. Just Google "physician pill mill prosecution" to learn about those instances. It is not as though America is sitting on its collective hands, but the deaths and illness continues. Some feel that the death rate has not crested yet, that is that the rate continues to increase. The numbers take some time to compile. Therefore the results of the various efforts are hard to measure in real time. 

The workers' compensation system serves a vast array of people with a great diversity of medical issues and complaints. It is a self-executing system, which involves injured workers, employers, and insurance professionals. There are also physicians, therapists, nurses, case managers, and more. With this community, is there any reason that medication should be an obstacle or danger for injured workers' or their families? 

Everyone in this community should be focused to "assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer." Fla. Stat. 440.015. This community has to understand the potential for these medications, appreciate the benefits that they represent in the appropriate circumstances, and yet remain cautious of the harm that they might cause if misused or overused or poorly monitored.

While the workers' compensation community cannot change the world, it might change one corner of it. Our marketplace should be conscious of this epidemic and must commit to assuring that workers' compensation patients and those who live with them are not part of the statistics. Dying to me don't sound like all that much fun. 

UPDATE 10.17.13

The National Safety Council declared prescription drug overdose a "national epidemic" this week. Their report cites some similar statistics as those above. They have graded the state's efforts on this problem, and concluded that three states (Kentucky, Washington and Vermont) meet the NSC's four rating standards. Twenty three states partially meet the standards, and 14 simply do not (Arizona, New Hampshire, Idaho, Kansas, Missouri, Delaware, Iowa, Maine, South Carolina, Wyoming, Hawaii, Nebraska, Pennsylvania and South Dakota). The NSC suggests some actions to make changes in the drug overdose arena. 

Monday, October 14, 2013

Why wasn't it in our email?

There is a periodic inquiry I get from carriers. They have become aware of  a Petition for Benefits (PFB) through the electronic docket in a particular case, but they are concerned that this PFB did not come to them through the electronic service process of e-JCC. They will send an email outlining this situation and asking why/how the e-service process failed. 

In the vast majority of these situations, the e-service system did not fail. There have been a handful of instances in which some computer error did preclude or delay e-service. However, the reason for no email delivery in almost all instances comes down to an election made by the claimant's attorney in the filing process. You see, e-service is an option that is provided to claimant's counsel when the e-PFB is completed in e-JCC. 

The filing of PFB must be through electronic means if the injured worker is represented, Fla. Stat. 440.192; Rule 60Q6.108(1).  Service of the PFB and the response by the carrier "shall" be "by certified mail, or by electronic means approved by the Deputy Chief Judge." The e-service component of the e-JCC system is the electronic means that has been approved. But note that this is disjunctive, "or" and a claimant's attorney may still elect to use the more expensive and more time consuming certified mail process if they wish. 

Certainly, it is valid to ask why one would use Certified mail. The cost of Certified mail is about $3.56 per envelope. Counsel (PFB) and the Carrier (Response) saves that with each e-filing, as the the use of the e-filing process is mandatory, so no Certified mail expense to send to the OJCC. Conversely, counsel (PFB) and the Carrier (Response) can save that $3.56 on each copy served, but "can" is the operative word. E-service, unlike e-filing, is permissive, not mandatory. 

The usual answer, when a Carrier asks us why a particular PFB or other document did not come to their attention as they would have expected (in the email box), the reason is that this particular attorney did not use the e-service option at the end of the e-filing process.  

The advantages of e-service are clear. First, there is no expense, e-service through e-JCC is free. Second, the process of e-service can be accomplished without printing, folding, inserting into an envelope, and walking to whatever "outgoing mail" is usual in your office. The whole e-service process can be accomplished from your desk. Finally, the receipt of e-served documents can be easily and quickly verified in e-JCC, removing doubt of "did they get it" or "when did they get it."

If you would like to save time and money, but are not sure how to use e-service, contact me. I will arrange for someone to show you how to take advantage of this tool, and start saving money and time. 

As always, feel free to contact me with any questions/comments about e-JCC and its benefits. You can reach me by email at david.langham@doah.state.fl.us

Wednesday, October 9, 2013

e-JCC Saves Millions?

Last year (the OJCC operates on a fiscal year that begins July 1 each year and concludes the next June 30), thousands of documents were filed with the Office of Judges of Compensation Claims. Obviously, some were filed by Claimants and some by Employer/Carriers. The “service” of these motions has traditionally been a job for the U.S. Postal Service or the facsimile machine. In a general sense, each motion is served on counsel for the opposing party. There are those attorneys who will serve a motion on both the attorney and the party, but that is very rare.

The current cost of a First Class stamp is $.46. The postal service rates have been rising. In 1863, the cost for the first one ounce was $.06. That decreased to $.02 by 1885, and remained somewhat consistent until 1932, when the Postal Service increased the cost to $.03, where it remained for almost 20 years. If the historic inflation rate were applied to that $.02 applicable in the early 20th Century, the cost of a postage stamp today would be $.47, so the USPS is beating inflation. Inflation will likely continue, and the cost of postage will likely continue to rise.

Certified mail adds $3.10 to the cost. This service is intended to prove both the mailing and the receipt of documents. For merely $3.56 ($.46 + $3.10) you can mail a one ounce letter and both prove that you mailed it and prove that the addressee received it. This was the procedural tool adopted by the legislature in 1994 for sending both petitions for benefits and the responses required by law.

The cost of postage is a cost of doing business in the litigation world generally, and until a few years ago was as major in the micro-litigation world that is Florida workers’ compensation. What has e-service saved the marketplace?

Last year, there were 58,041 Petitions filed. By law, those are to be served by Certified mail, unless served through our e-portal, the e-JCC service process. At $3.57 each, those  PFB represent an expenditure of $206,626 (58,041 x $3.56). (That was saved in the e-portal serving the carrier). Remember that before e-filing that same amount was required to file by Certified mail with the OJCC, a total of $413,252).

Last year, there were 42,116 Responses to Petitions filed. Each of these would have cost $3.56 each to send to the OJCC by Certified and $3.56 each to send to Claimant or counsel by U.S. Certified mail. E-Filing and e-service saved the market another $299,866 (42,116 x $3.56 x 2).

Last year, parties e-filed 502,448 documents with the OJCC. Of these, 59,432 were petitions for benefits, discussed above. Another 42,116 were Responses to Petitions, also discussed above. This leaves 402,291 (502,448 - 59,432 - 42,116) documents e-filed. Each of those saved the sender at least $.46 in expense of mailing to the Judge’s office. Most or all of those would have been e-served on opposing counsel. Thus another e-filing savings to the marketplace of about $370,108 (402,291 x $.46 x 2).

The combined one-year savings to the workers’ compensation marketplace from the e-filing and e-service tools? $1,083,226 ($413,252 + $299,866 + $370,108). Yes, that is over one million dollars in annual savings to the marketplace from the combination of e-service and e-filing. As postage charges continue to rise in the future, these savings will remain, and the value of both e-JCC processes will become greater.

Also, the system results in savings for the state. There were 112,712 motion and stipulation orders issued last year. Before e-service, the OJCC was sending two (at least) of those orders out by U.S. Mail, one to each party or counsel. That $103,695.04 (112,712 x $.46 x 2) expense was avoided last year through the use of e-service. Likewise, for the 58,041 Petitions filed last year, at least one notice was sent (mediation), in some cases more than one was sent (mediation and trial). The minimum that was saved on notices through e-service was $53.397.72 (58,041 x $.46 x 2).  The e-service process saved the state at least $157,092.76 ($103,695.04 + $53.397.72) last year.

Annual savings to market $1,083,226
Annual savings to OJCC     $157,093

This $1,240,329 in savings is significant, recurs annually, and represents only actual postage savings resulting from e-JCC capabilities. In addition, tons of paper, significant document preparation time, and document processing time were also saved. 

Overall, the e-service and e-filing system has produced financial savings to the marketplace of $4,323,894.34 since it was deployed in 2005 through the end of last fiscal year on June 30, 2013.

These numbers are particularly interesting when I consider that the OJCC has not yet invested one million dollars in the e-JCC system that is generating savings to the marketplace and state in excess of one million dollars annually.

We all periodically hear the sarcastic reference to “your tax dollars at work.” The difference here is that no tax dollars contribute in any way to the operation of the OJCC. One hundred percent of the funding for your OJCC comes from the Administrative Trust Fund, which is funded by assessments on insurance policies for workers’ compensation. The second difference here is that there is no sarcasm, this is your assessment dollars at work, providing efficiency, transparency and savings for the Florida workers’ compensation marketplace.

The value is clear. The value will only become more impressive as postage rates continue their inevitable path upwards.  

Monday, October 7, 2013

Consolidate when you can

There are a multitude of cases in the OJCC system that provide a suggestion that consolidation may be appropriate. It is not uncommon for an injured worker to suffer more than one accident during a particular time period. The OJCC database system tries to accommodate situations that obviously implicate consolidation. However, the database cannot identify all of the situations, and human perception, yours, is therefore required.

An injured worker may have doubts as to who is responsible for her/his injuries. There are “statutory” employers, general contractors, borrowed servants, and other legal theories that can make that determination difficult for the best of attorneys. The judge of Compensation Claims database program will only allow assignment of one case number for any particular injured worker for any single date of accident. The system does, however, allow an injured worker to insert more than one employer and/or carrier in a petition for that one date of accident. This kind of consolidation is obvious.

Sometimes, the system does not recognize that it is dealing with the same injured worker. This happens when non-identical data is input during the process of a petition (PFB) or a request for assignment of case number (RACN). In those processes, the injured worker’s social security number (SSN) or division assigned case number (DAN) must be identical. Typically, problems arise when a typographical error occurs in one of these figures. The result is the assignment of two case numbers. There have been instances of this where both attorneys complete an RACN because the case has settled. One attorney uses the SSN and one uses the DAN, and two cases are created. An easy way to avoid this outcome is for counsel to discuss and agree which of them will apply for the OJCC case number.

The consolidation question comes up more often with an injured worker’s accidents that occurred on separate dates, and many times even in separate parts of the state. Cases are assigned to a judge based upon the county of accident. Therefore, one injured worker with two accidents might end up with proceedings pending before two (or more) different judges. Despite the various counties and judges, the employer and carrier may be identical in both cases. When this occurs, the parties may wish to consolidate the two (or more) cases.

There have been instances in which an injured worker had more than two accidents, in more than two counties. Think of all the employment out there that involves travel around the state, and the attendant potential for injury in the various locations to which an employee is sent. There is a tendency to think that consolidation becomes more complex in these situations. Some counsel begin the process by filing various motions in various Districts for change of venue in each of those cases. They seek to move all of the cases into one district, in which they intend to eventually be able to seek consolidation. This is burdensome and unnecessary.

Whether an injured worker has two cases or ten, consolidation does not require a unity of venue. There is also no requirement that all of the pending cases are assigned to the same Judge. Consolidation is accomplished, pursuant to Rule 60Q6.106, by filing a motion with the Judge assigned to “the lowest-numbered case” of those which are to be consolidated. Whether to consolidate or not is a decision up to the judge assigned to this lowest-numbered case. If that judge enters an order granting consolidation of that lowest-numbered case with any other(s), all consolidated cases will become the responsibility of that judge. Those pending in other Districts will become part of that Judge’s case, and thus venue change occurs as a natural consequence to consolidation.

A Judge assigned to any of the higher-numbered cases cannot consider or grant a consolidation motion. Only the Judge assigned to the lowest can consolidate. The parties to the cases are not able to use consolidation to make a selection of venue by electing which Judge (as in which case to file in) will consider their consolidation motion. The motion has to be filed in the lowest-numbered case, and therefore has to be determined by the judge assigned to the lowest numbered case.

If venue change, of the consolidated cases, is also desired, the parties would need to ask for change of venue also. From which judge? That answer is simple, the “assigned Judge,” which is the Judge assigned to the lowest numbered case. Does the order of the process make any difference? It likely does not. For example, With one case pending in Miami and another in Ft. Lauderdale, the parties might be seeking to have one consolidated case in Miami. Here is how the process should work.

Assume that the lowest-numbered case is on the case assigned to Ft. Lauderdale. The parties could file a motion with the Ft. Lauderdale judge for change of venue to Miami, noting in the motion that the injured worker already has another Miami case. The agreed motion would likely result in an order changing venue to Miami, and reassignment to the Miami Judge who is already assigned to the other case. Then a Motion for Consolidation could be filed with that judge.

Or, the parties could file a Motion for Consolidation with the Ft. Lauderdale Judge, resulting in assignment of both (all) cases with the Ft. Lauderdale Judge, and then move to change venue of the now consolidated case. The ultimate outcome should be the same in either instance.

If the lower case number is assigned in the venue which the parties have elected, then the process is simpler, and would involve only a Motion to Consolidate filed in that venue, Ft. Lauderdale in this example. There is no need to seek or obtain a change of venue, in this example, of the Miami case to Ft. Lauderdale before seeking the consolidation. The consolidation itself will effect that desired venue change.

It is helpful when the parties explain the situation in the motion. What is the ultimate outcome that is sought? Simply state it, as in “the parties move to consolidate case numbers yy-xxxxxx and yy-xxxxxx and effectuate venue in District ABC for all future proceedings.” If this will be a two-step process, acknowledge that “the parties seek this consolidation and a change of venue to District ABC.”

Thursday, October 3, 2013

“Should I Stay or should I go now?”

“Should I Stay or should I go now?” That lyric was immortalized by the Clash in the 1980s. The song comes to my mind as I focus once again on the power of the Judges of Compensation Claims to delay the prosecution of a case pending for trial. It is not uncommon for parties to find themselves unprepared to try their case, for a multitude of reasons. Sometimes it is scheduling issues, sometimes it results from changes in circumstances. Those who practice workers’ compensation litigation are familiar with the continuance, and the circumstances which necessitate one.

Many times, however, we see motions for a stay, rather than a continuance. The parties seek to suspend the proceedings. Usually courts enter a stay to secure the rights of the party or parties seeking that relief.

Frequent workers’ compensation practitioners in Florida are familiar with the fact that the Office of Judges of Compensation Claims is not a Court, and has no inherent judicial power. Though there are those who insist on mislabeling this administrative office a “court,” the Florida Supreme Court has clarified that it is not. See, The Quart of Claims, News and 440 Report, Volume XXXI, No. 1, Winter 2013. That mis-characterization, “court” has led to confusion at times.

As a limited, statutory agency, the Judges of Compensation Claims have only the authority, power and responsibility that is vested by statute. For the most part, these are in Chapter 440. There is a catch-all provision, therein, which empowers JCCs to do those things which are required to facilitate or accommodate the needs of performing statutory duties. Section 440.33(1) provides authority to “do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of her or his office.”

That is a slim exception though, and it does not answer the Clash’s question as to whether we should Stay or we should go. The answer is found, however, in Alachua County Detention Center v. Alford, 727 So.2d 388 (Fla. 1st DCA 1999). The definitive answer is that the Judges of Compensation Claims do not have the authority to enter a Stay.
There, the E/C sought a Stay, which the JCC denied. They then filed a petition for writ of certiorari that the court denied, holding “the E/C have not shown that the JCC departed from the essential requirements of law.” The court affirmed the JCC’s conclusion that “the authority to grant a stay or injunction has not been specifically delegated to the JCCs by the Legislature.” The opinion reiterates that the OJCC “exists and operates under grant of quasi-judicial power from Legislature supplemented only by rules of procedure applicable to it,” (citing authority that had made that determination regarding the former Industrial Relations Commission).  The Court found it persuasive that the E/C could cite no authority which afforded a JCC to “grant such relief (stay) in a case like this.”

Many times, a request for Stay filed with the OJCC is accompanied with a copy of a Stay issued by a court, often a bankruptcy court. The party is asking the JCC to enter a Stay because the Bankruptcy Court has entered a Stay. This is redundant. The OJCC is likely bound in most instances by a Bankruptcy Court Stay. In such an instance, the party is not really seeking a Stay from the JCC, but instead a recognition of the existing Stay. What the party is seeking from the JCC is essentially “comity,” or respect for the other Court’s ruling.

The OJCC is prepared to accommodate such rulings. There are characterizations for hearings in our database. Among others, a hearing may be “set” or “resolved prior” or “continued.” These characterizations merely describe the status of an appointment for trial or mediation. We have a specific characterization “continued for court stay.”

Should I Stay or should I go? The answer to your question is that you should seek a continuance “for court stay,” and that we should afford that accommodation out of Comity.