Thursday, August 28, 2014

A Motion for Rehearing in Florida Workers' Advocates v. State of Florida

UPDATE 090114. At the time the post below was written, the Circuit Court had already denied the Motion for Rehearing filed by the Florida Attorney General (AG). The AG has since filed a notice of appeal to the Third District Court of Appeal. Whether that court will hear the case or send it to the Supreme Court is not known. See, Florida Court Holds Exclusive Remedy Facially Unconstitutional.

Original Post:

This week finds me off of my regular Monday/Wednesday schedule again. Whether you call it "Padgett," or "that 11th Circuit case," you are all talking about Judge Cueto's August 13, 2014 determination that the Florida Workers' Compensation law is unconstitutional.  It is now styled as Florida Workers' Advocates v. State of Florida, case no 11-13661 CA 25. 

Last week in Orlando (at the WCI conference where thousands discussed all that is Florida workers' compensation), I heard a great deal about this decision. People agree with it, disagree with it, think it is important, think it is of minimal relevance, claim they understand it and deny that they do. People have thoughts, opinions, questions, and more. The opinions, interpretations, thoughts and discussion are all over the board. Many people told me how thorough and concise they thought Judge Cueto's 27 page order is. Substance is one thing, but I consistently heard compliments on the drafting.

One major question raised repeatedly was "what will happen with this next."

Well, I take to the blogosphere this Thursday morning, outside my Monday/Wednesday habit, to tell you that shoe has dropped. The "next" is a Motion for Rehearing filed by the Florida Attorney General. The Motion was filed August 22, 2014 and is not complimentary, referring to the case as being in a "procedural morass." 

The Attorney General complains that the intervenors brought this case against the State of Florida, but did not "present a pleading stating so, or at a minimum, serving process." The Motion states that the end result is "a final judgement with no legal effect, but one which nonetheless creates substantial confusion and uncertainty throughout the state." I do not have the ability to post the Motion and cannot find a posting to which I could link. For that I apologize.

The Motion is filed pursuant to Florida Rule of Civil Procedure 1.530. These rules are not what control the procedure before a Judge of Compensation Claims. Our OJCC proceedings are controlled by the Florida Administrative Code, Chapter 60Q.  That is something that workers' compensation practitioners understand, but which is sometimes confusing to the public. 

The Office of Judges of Compensation Claims (OJCC) is not a "court" and is not governed by Florida's Court rules. The OJCC is part of the Executive Branch. Unfortunately, the confusion of the public on this point is sometimes encouraged by lawyers and even judges who continue to refer to the OJCC as "the court." They could all aid the public's understanding and perception of who we are and what we do if they would quit referring to this administrative office as a "court," but I digress. 

Under the 60Q rules, the filing of a motion for rehearing does not change the deadline for filing an appeal. See, Rule 60Q6.122(3). Thus, many who are involved in the workers' compensation system will be used to this process, and the fact that the deadline for seeking appellate review looms in workers' compensation cases despite a motion for rehearing. In other words, you can seek rehearing in a case before a JCC, but doing so does not delay your deadline for appeal.

The rehearing rule in the civil court context is not the same. Under Civil Rule 1.530, "the court may open the judgement if one has been entered, take additional testimony, and enter a new judgement." This applies to matters "heard without a jury" and includes "summary judgments." Thus, the inherent authority and rules applicable to Florida's civil courts is broader than that exercised by the JCCs. 

Attorney Dineen Wasylik has a thorough explanation of the process on her blog, discussing a decision of rehearing from the Florida First District Court of Appeal. The Florida Bar Journal also has an interesting article published in 2009 on the subject. Anyone struggling to understand motions for rehearing in any context would benefit from these two explanations. 

Under Rule of Appellate Procedure Rule 9.020(i)(formerly (h), as cited in the Bar Journal article noted above), a motion for rehearing in a civil matter changes the date "an order is rendered." When there is a motion for rehearing, the "final order shall not be deemed rendered" until the court files "a signed, written order disposing of all such motions between the parties." Under many provisions of the Appellate Rules, it is the date of "rendition" of the trial order that defines/begins the thirty day period in which an appeal can be filed. 

When the August 13, 2014 decision in Florida Workers' Advocates v. State of Florida first came to my attention, I published an explanation of the potential appellate processes. I am no expert in appellate law, but a decision like this, because of the subject of constitutionality and because of geographic location of the trial court, has some predictable potential paths in the appellate process. The rehearing motion filed by the Attorney General, to my understanding, does not change those potential paths, but it may delay them. 

It may be that Judge Cueto will deny the Motion for Rehearing quickly and the appellate considerations will return to the fore. It may be that he will reopen the case in an exercise of discretion and rehear the case before ruling on the Motion. It appears, however, that the appellate process will not begin until he rules on the Motion in one manner or the other. 

Time will tell how this case will continue its life. There will continue to be much discussion and inquiry and curiosity. I have had inquiries from across the continent. The subject is encouraging conversations about workers' compensation. As someone that has lived, eaten and breathed this subject for many years, I find these discussions very interesting.

A sidenote may be worthy. There is a letter included as an attachment to the Motion for Rehearing that suggests that the praises for the thoroughness of Judge Cueto's order may belong to others, at least in part. It may be that Judge Cueto had a proposed order provided to him to aid his drafting. I do not know to what extent the published order of August 13, 2014 was his work product or a proposed order or a combination of the two. Regardless, I do compliment the drafting however. I know how judges struggle with judicial writing. We have instructors annually at the Judicial College, with the goal of becoming more effective writers. Writing is not an inborn gift in most instances, it has to be worked at, it is the result of effort. Whether you agree with Judge Cueto's order or not, I have heard many compliment the organization and drafting of that order.

Wednesday, August 27, 2014

Will the Postal Service be our Model for Reform?

Should things be logical? When we do an analysis, we think we can see congruity in data. For example, if we decrease the speed limit on the interstate, most of us would likely think that should lead to fewer accidents. 

Somehow, things are not working out that way for the U.S. Postal Service. In an August 19, 2014 report cited in the Federal Times the workforce at your United States Postal Service (USPS) is shrinking. In 2008 the service employed 663,000 people, and by 2013 that has been reduced to 491,000; that is 172,000 jobs lost in about five years. About 26% of a workforce eliminated, or about 5% annually on average. 

With reductions in workforce, one might reasonably expect that the expenses associated with the workforce would likewise decrease. According to the Inspector General the Service's workers' compensation costs have grown by 35%. The report identifies several issues that could be contributing to this incongruity. 

The report notes that "light duty" jobs are harder to find within the Postal Service. This agency has moved to leverage technology over the last several decades as has much of the American employment sector. Without a doubt, there are robots and machines doing so much today that was performed by people just ten or twenty years ago. I watched a documentary recently about a robot that retrieves parts in a warehouse to fill orders. It never occurred to me, but they said a major savings with this automation is that they do not air condition the warehouse anymore, and they turn off the lights. The robot works on, apparently oblivious to the working conditions that would not please you or me. 

The report also notes that there is a degree of their cost increase attributable to the fact that their workforce is older. The say that us older people are "more prone to injuries and slower to recover."

Curiously, they also report that somehow the cost of workers' compensation became disparate between the government and private industry. According to the Inspector General, private industry pays about $.73 per work hour for private workers' compensation, while the Postal Service pays about $1.16.  That is a difference of about 60% more paid by the USPS.

According to the USPS it cost $.03 to send a one-half ounce letter in 1863. The measure changed to a rate ($.02) per ounce in 1885. Thus, rates for mail were decreasing (think of the expanding nature of rail in that era; technology can change things for the better). According to Westegg's inflation calculator, that $.03 in 1865 should be $.45 in 2013. According to the USPS, the rate was actually $.46, so their fees for service over a very long period (150 years) is pretty consistent with inflation. 

The problem with that analysis is that the USPS is losing money at the rates they are charging. How much? As much as $25 million dollars per day in the  last quarter of 2012. In August 2013, the New York Times reported that had vastly improved with the USPS losing only $8 million per day in the third quarter of 2013. The improvements in their losses are attributed to "cost cutting measures and strong growth in e-commerce deliveries." As an aside, the USPS spent $32 million sponsoring Lance Armstrong's cycling team (did anyone learn of the USPS services or decide to use them through this strategic advertising?). 

The Inspector General has reportedly suggested that the workers' compensation trend might be ameliorated if "it capped workers' compensation benefits by time and amount." There is also a contention that forcing injured workers to "take generic drugs for prescriptions when available" would have positive effects on the bottom line. These are not actions which the USPS can take unilaterally. These "would require Congress to pass legislation amending the Federal Employee Compensation Act."

As Congress considers that, if they do, will they weigh in on the constitutionality question? There is suggestion from south Florida recently that changing the quantum or duration of benefits can lead to the conclusion that the "great compromise" is no longer a valid quid pro quo. (See also, a "work in progress," Rethinking the Great Compromise). There is a perceived combination of erosion and accretion that leads some to conclude that workers' compensation is not the compromise that it once was. 

There is the perception that rights have accumulated where they did not exist, in such manner as the decline of contributory negligence provisions, replaced by comparative negligence alternatives. There is also discussion, though, that legislative efforts to restrict benefit levels beyond whatever restriction existed in earlier statutory expressions likewise changes the equation or alters the "deal" that is the "great compromise." 

Over the years, burdens have been added to employers in some workers' compensation systems, benefits to employees have been altered or reduced in some systems. It now remains to be seen whether such legislative changes can be made to responsibilities and rights without impairing the exclusive remedy, that is protection from tort liability, that was a major benefit that business received in the "great compromise." 

If changes can be made within the constitutional construct enunciated by the Miami trial court, what changes? Will there be some judicial standard, or will it be governed similarly to Mr. Justice Potter Stewart's now infamous "I know it when I see it" standard in Jacobellis v. Ohio back in 1964?

It appears that some programs will face these debates in coming years. States are striving to continue to do much with decreasing revenue streams. The Boomers are retiring, birth rates are down, economic growth is elusive, and the Whopper may move to Canada. 

In the instant context, will rates for postage be increased to cover the existing costs? Will the postal service just keep bleeding red ink? Will the federal workers' compensation benefits be reduced or contoured to reduce the costs? Are all of these options even on the table? In the broader context, how will states deal with the parallel issues in our systems. I know I am getting older, and in that may be part of a problem. Can we also be part of the solution?

Monday, August 25, 2014

A Beverage You Cannot Drink

I was privileged to sit through a discussion of workers' compensation issues and challenges this month. I learned a new term, the "ghost policy." When you sit around with workers' compensation experts, you can learn a great deal by listening carefully. I have had the benefit of learning about workers' compensation and its adjudicatory processes from some of the best in the business. Despite this great opportunity, I am nonetheless sometimes surprised by an unfamiliar term or concept, in this instance "ghost policies."

A "ghost policy" is an insurance policy that does not provide any insurance coverage. I know, that sounds like a beverage you cannot drink or ladder you buy that has a warning label "do not climb." The use of "ghost policies" is not limited to any particular industry or business, but there are those who have expressed a belief that the practice is more common in the construction industry. 

According to workerscompensationshop.com, "This type of policy is typically purchased by subcontractors who do not have employees and do not want the financial burden of including themselves for coverage.  A ghost policy typically satisfies the requirements of general contractors.  Not all states allow for ghost policies." Thus it is a policy that perhaps satisfies the legal requirement that one have a workers' compensation policy, but does not fulfill the requirement that there actually is coverage when an accident occurs.

In Florida, when a subcontractor turns out to be uninsured, the law places responsibilities for injuries on the general contractor. These circumstances can find their way to the hearing room for determination. 

These cases generally involve an injured person and her or his need for benefits and treatment. The disputes in many of these cases are not about the benefits, they are about who will pay the benefits. 

Is the injured person a subcontractor, an employee of a subcontractor, an employee of the professional employment organization hired by the subcontractor, an independent contractor under the law, or the statutory employee of the general contractor? Hours can be consumed sorting the facts, circumstances, contracts and law that lead to the answers of who will be responsible for this person's injuries. 

Some states have uninsured employer funds, another method of providing benefits when some business is not insured. In these states, it is likely of less import to determine who will be liable due to the lack of coverage for some subcontractor. If that uninsured contractor is found responsible, this fund steps in to provide the benefits. Those who support these processes laud the seamless transition to fund coverage and the benefit provision for the injured party. 

States require employers to have workers' compensation insurance. There are requirements that such coverage is in place in order to bid for jobs, or otherwise participate in certain industries. There are those who satisfy these requirements through outright fraud, such as purchasing false insurance certificates or forging proof of insurance.

North Carolina apparently is struggling with another inappropriate solution right now, the "ghost policy." One news outlet notes that these policies are profitable for insurance companies, because they charge for the subcontractor to have a workers' compensation (ghost) policy, but the policy provides absolutely no benefit or coverage. The company collects a premium essentially for doing the administrative work of issuing a policy so that the subcontractor has a piece of paper to prove that she/he "has a policy." 

The subcontractor herself/himself is exempted from coverage under the policy. No payroll is calculated as the subcontractor appears to have no employees. Because the policies did not cover any real risk, there has been debate over the practice of selling them in that state. 

In trying to better understand these policies, I have seen the term "ghost policy" mentioned in reference to the construction industry and trucking industry. I have seen the policies variously described as "necessary" and also as "employer fraud" and a "sham." I think it safe to say that there are different perspectives as to the existence and use of these tools in the marketplace. 

Does the ghost policy solve the dispute when someone is injured and the debate arises as to who was the actual employer? It seems it would not, as the subcontractor with such a policy would not have reported their worker as an employee to issuer of the ghost policy. That ghost policy carrier would logically deny coverage for that injured worker, and the search for coverage through the statutory employer would continue to be a point of litigation, at least in the Florida construction industry model. 

I have seen references to various states out there on the Internet. The "ghost policy" is interesting. Is this a subject that is affecting Florida significantly? I have heard the praise of uninsured employer funds that several states appreciate as the more seamless solution to providing benefits to those employees who find themselves in these circumstances. Is that a better solution to the conundrum in which some injured employees find themselves?

Wednesday, August 20, 2014

Judiciary College 2014

Today I am at the National Association of Workers' Compensation Judiciary Judicial College in Orlando. This is presented in conjunction with the Workers' Compensation Institute, the largest gathering of its kind. Imagine 8,000 rabid workers' compensation experts and aficionados waxing eloquently on all things workers' comp.

We have had two full days of judicial education focused specifically on issues that face workers' compensation adjudicators. Professor Ehrhardt (Florida State) provided commentary on evidence in a program that was moderated by Judge Lazzara (Tallahassee). That program included exceptional role-play by Judge Roesch (Panama City), Kellye Shoemaker, Esq. (Orlando) and Steven Coonrod, Esq. (Tallahassee).

We have judges enrolled this year from eigteen states. It is a dynamic and diverse crowd. This morning I will present a program to the assembled Judges, along with David DePaolo from Workcompcentral.  Our subject is social media. It is amazing to me how many people still do not realize what social media is (you are reading it) in its many incarnations. There are places on the world wide web to post pictures, share video, be followed, and tell your story. 

Anytime a workers' compensation case involves a social media element, I am reminded of good old Gary Hart. For those of you too young to remember Gary, he was a Colorado Senator that sought the nomination for president back in 1984 and 1988. He was the subject of rumors, and some thought he was engaged in an affair. When the press asked him about it, he reportedly replied to the effect of "follow me around. I don't care. I'm serious. If anybody wants to put a tail on me, go ahead. They'll be very bored." Reporters took the challenge, followed him, connected him to a young model named Donna Rice (one encounter allegedly occurring on a yacht named "Monkey Business," you can't make this stuff up).  The rest is history, and there was no President Hart. 

That was in the 80s. We were hip and happening. But there was no internet in the real world. Academics had been using the platform for communication and research for years at that point, but the rest of us did not discover it (like Columbus "discovered" America) until the 1990s. Incriminating evidence, pictures, etc. were nonetheless damaging then and they can be damaging now. 

Last week, a variety of news outlets covered the arrest of a young woman who fractured her toe at work and claimed workers' compensation benefits. She was allegedly unable to work due to the toe fracture; she was unable to put weight on her foot or wear shoes. Then the video surfaced on YouTube of her competing in beauty pageants wearing high heels. 

Her case was interesting enough that it garnered discussion at the National Regulator Roundtable that SAWCA presented on Monday. There are ample examples of misstatements and representations in workers' compensation cases. They are not limited to injured workers by any means. 

What is difficult for some people is to understand what has changed. It is likely not the misrepresentation that has changed. That has likely gone on since mankind learned to communicate with the spoke word. The medium has changed. There is an internet today, that means more space to publish things. I doubt any newspaper would agree to publish these thoughts of mine on workers' compensation. They have limited space in each issue, and they have to focus on what sells the papers. They have to be efficient with their space.

The internet is boundless. I can publish this there for the world to see, praise, ridicule, consume or ignore. Thirty years ago, the odds were against a news agency capturing the beauty contestant with the hurt toe. The odds of that video clip getting through the news editor's efforts to pick the 15 to 30 second clip that would get on TV are even longer. That someone familiar with the compensation case would then tune in at that moment to that station and "catch" the young lady, even longer odds. 

Then or now, the video could be published. That has not changed. What has changed is that more people have video cameras. More space is available. Less time is spent editing, virtually everything is uploaded to the internet. And, critically, it is all easily searchable from any PC, Mac, iPhone, or any variety of other devices. 

All that has changed is the "how." How we record things. How we publish things. How we share things. Social Media is not new, the TV and Radio and papers have had it for years. But now it is more widespread, more potentially narcissistic, more easily accessed, more easily shared. The better we understand that, the more easily we can wrestle with the things that make it professionally interesting to those of us who run adjudication processes (call them trials, call them hearings, call them what you will). 

We have to decide whether and when such evidence is relevant. When it is too prejudicial. When it is persuasive. When it is authentic. These decisions exist with newspaper articles also. Our job has not changed. We just see more examples due to the explosion of content (videos, pictures, statements and more).

Monday, August 18, 2014

Another year at WCI

"The Workers' Compensation Conference." 

When you say that now days, no one asks "which one?" There are conferences on workers' compensation held all across the country. Most are state-sponsored conferences focused upon one jurisdiction's issues, concerns and programs. I have attended several and spoken at a few. They are varied in their length, scope and depth. There are invariably medical programs, legal programs, procedural programs, national and state programs.

Specific conferences abound. The WCI, however, provides a variety of topics and opportunities that are frankly mind-boggling. This afternoon, I will sit on a panel discussion called the SAWCA Regulator Roundtable. It will be similar to the program that SAWCA produced at its convention last month, but bigger. I will have the opportunity to hear what the news is from the Florida Division of Workers' Compensation. Both Director Tanner Holloman and Assistant Director Andrew Sabolic will be on the panel. 

SAWCA is the Southern Association of Workers' Compensation Administrators, a group that boasts 20 jurisdiction members. This is not just the southeast either, members include Arkansas, New Mexico, Texas, and more. Along with Mr. Holloman and Mr. Sabolic, I will hear perspectives from a multitude of other state's administrators from across the country. Outside of SAWCA, I am aware of no other opportunity to hear such a diverse group discuss today's challenges to workers' compensation. 

Perspectives will be delivered from Arkansas, Colorado, District of Columbia, Florida, Georgia, Kansas, Kentucky, Louisiana, Maine, Maryland, Mississippi, Nebraska, New Jersey, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Washington and more. 

The discussion will be centered on the current issues facing workers' compensation across the country: carrier and employer bankruptcy, medical provision and costs, fraud and enforcement, regulation and legislation, litigation and adjudication, discovery for trial, impairment determinations and benefits, telecommuting, information and education and so much more. 

As compelling as this program will be, it will have to compete for attendees with programming designed for agents, for medical professionals, A National Trends program and a National Workers' Compensation Trends program. 

I look at the spectrum of programming available, and I am thankful that there is this caliber of education available right here in Florida. If you see me today around the Marriott World Center, say hello and stop to chat if you have the time. If you do not have plans for the afternoon, come by the Regulator Round table in Crystal Ballroom J-1 and see what is hot and what is not around the country in workers' compensation. 

Updated 081814, 4:00. The Roundtable continues. There have been in depth conversations about how Texas, Louisiana and Colorado have use tools to manage medical care provision and expense. Treatment guidelines and closed formularies have been described and generally praised. 

The discussions started with a presentation by Larry Karns, Kansas, regarding the recent bankruptcy of Hostess Cakes there. This is an interesting new perspective on the regulator's challenges when self-insured employers have issues with solvency. There was a somewhat similar situation in the northeast two years ago, with the Prime Tanning insolvency. These illustrate a potential for conflict between state agency processes and the bankruptcy processes managed by the Federal government. 

We have had an overview of the Tennessee transition to the administrative processes there. The Tennessee system used to use the state's court system for adjudication of workers' compensation claims. When Tennessee abandoned their use of the court system, that left only Alabama using a court of general jurisdiction for adjudication of workers' compensation. 

The Oklahoma opt-out has been discussed this afternoon. The question is when and where this issue will be raised legislatively next. There is discussion that Tennessee could be the next target for those who advocate this option. 


Friday, August 15, 2014

Proud of the 2014 WCI Presenters

Republished from my other blog, 

It is hard to believe that it has been a year. It seems like yesterday I saw so many of you at the WCI in Orlando. It is a great opportunity to see and speak with so many members of the section, other lawyers from around the state, doctors, adjusters, risk managers, claims professionals and more. 

I am struck by the vast diversity of programming each year at the WCI. If you cannot find something at this conglomeration that is of interest to you, something is very wrong. There are programs on medicine, safety, risk management, chiropractic, national trends, national legal issues, medical excellence, mediation, regulations, and so much more.

It is gratifying to me that so many of you, the members of The Florida Bar contribute so much time and effort to providing quality programming at this annual event. I wish I could get around to each of your programs and hear the results of that hard work. I am flabbergasted at the amount of effort that you devote to researching, preparing, and presenting on these varied topics. 

I try to use this space to praise and recognize members of the Section and generally members of the Bar on their achievements. Each of the individuals listed below is a contributor to the WCI in Orlando next week. They are listed alphabetically by program and then by attorney.

You inspire me with your focus and your dedication to the goal of providing quality programming. Thank you for the many hours that you have devoted to this project and the credit that your efforts bring to the Section, to The Bar, and to attorneys generally. I am proud of your effort and accomplishment. Your hard work reflects well on attorneys everywhere.

As an aside, there are many other lawyers on the program. However, this column could get too long (I know, too late) and to list the out of state attorneys would be another page or two. Perhaps next week. If I missed you, please email me to correct it. It is two O’clock in the morning and I have done my best to catch each and every Florida lawyer by reading through the program. If I did not list you, my apologies. David.langham@doah.state.fl.us 

Adjuster Breakout
R. Stephen Coonrod, Tallahassee, FL
Raymond A. Lopez, Orlando, FL
Susan N. Marks, Pensacola, FL
Scott H. Silver, Fort Lauderdale, FL
E. Louis Stern, Sarasota, FL

Attorney Breakout 
Geoffrey Bichler, Maitland, FL
Rosemary B. Eure, Sarasota, FL
Jason L. Fox, Clearwater, FL
Paolo Longo, Maitland, FL
Sean O’Connor, Gainesville, FL 
William H. Rogner, Winter Park, FL
Alison J. Schefer, West Palm Beach, FL
Dawn R. Traverso, Miami, FL
Frank C. Wesighan, Orlando, FL
Glen D. Wieland, Orlando, FL
Scott P. Williams, Orlando, FL
Michael J. Winer, Tampa, FL
Honorable Timothy M. Basquill, West Palm Beach, FL
Honorable Margaret G. Kerr, Miami, FL
Honorable Ralph J. Humphries, Jacksonville, FL
Honorable Stephen L. Rosen, St. Petersburg, FL
Honorable Thomas Sculco, Orlando, FL
Mediator Stuart Suskin, Gainesville, FL

Case Law Update
Geoffrey Bichler, Maitland, FL
Marc E. Golden, West Palm Beach, FL
Daniel T. Jaffe, Tampa, FL
M. Kemmerly Thomas, Tallahassee, FL
Mark L. Zientz, Miami, FL

Employment Law Breakout 
Jason C. Taylor, Tallahassee, FL

First Responder Claims Breakout 
Michael Broussard, Orlando, FL
Karen J. Cullen, Orlando, FL
George A. Helm, Lake Mary, FL
Paolo Longo, Maitland, FL
Steven P. Pyle, Orlando, FL

Longshore Breakout 
Randall Baisden, Ft. Lauderdale, FL
Robert L. Bamdas, West Palm Beach, FL
Steve M. Dunn, Miami FL
Mark K. Eckels, Jacksonville, FL
F. David Famulari, Miami, FL
Lisa Torron-Bautista, Orlando, FL

Mediation Institute
Najah Adams, Gainesville, FL
Donna Canina Doyle, Orlando, FL
Robert Dietz, Orlando, FL
Christine L. Harter, Ocala, FL
Clem Hyland, Orlando, FL
AnnaMarie Kim, Orlando, FL
Michael S. Orfinger, Daytona Beach, FL
Rodney G. Romano, West Palm Beach, FL
John J. Schickel, Jacksonville, FL
Robin Caral Shaw, Boca Raton, FL
Stan Strickland, Orlando, FL
Stuart Suskin, Gainesville, FL
Nancy S. Weber, Orlando, FL

Moot Court
Jacqueline L. Blanton Steele, Sarasota, FL
Jennifer L. Gutai, Panama City, FL
Tracey J. Hyde, Panama City, FL
Richard A. Sicking, Miami, FL
Barbara B. Wagner, Ft. Lauderdale, FL

M. Kemmerly Thomas, Tallahassee, FL 

National Review
H. George Kagan, West Palm Beach, FL

Social Security Breakout 
James R. Auffant, Orlando, FL
Carol Avard, Cape Coral, FL
Karrie Beebe, Orlando, FL
Sarah H. Bohr, Atlantic Beach, FL
Richard A. Culbertson, Orlando, FL
Luis R. Gracia, Port Orange, FL
Jana E. McConnaughhay, Tallahassee, FL
Tracy Tyson Miller, Jacksonville, FL
Evan A. Zagoria, South Miami, FL

Thursday, August 14, 2014

Florida Court Holds Exclusive Remedy Facially Unconstitutional

For some reason, I have found myself thinking of great comedians this week (veiled reference to the loss of one of America's greatest last Sunday). I am always a fan of those that make me laugh. One that came to mind yesterday afternoon is Jim Carrey and his portrayal of the Grinch in Ron Howard's modern adaptation. There is a scene in which the Grinch is somewhat forcibly fed "pudding" by the Whos, with each spoonful receiving a comment. This scene ends when one spoon is shoved in his mouth with the comment "this is not pudding," to which he replies with some alarm (and a priceless facial expression) "what IS IT?!?"

I blog twice a week, usually on Mondays and Wednesdays. I have a lot of respect for those who have the energy to produce more often or even daily like Bob Wilson (Bob's Cluttered Desk) and David DePaolo (DePaolo's Workcomp World). But I take to the blogophere this morning because the world of workers' compensation has many questions this morning. Could August 13, 2014 be a "red letter day" in workers' compensation across the country? 

Yesterday, a Circuit Judge in Miami concluded that Florida's workers' compensation law is unconstitutional on its face. That is, there is no circumstance whatever in which Florida's exclusive remedy is constitutional. There will be much head scratching this day and many will be as confused as the Grinch and they analyze this decision and the equivalent of a cry "what IS IT?" will be heard in many a conference room, on many a phone call, and answers will be elusive. In short, it is likely too early to make any concrete conclusions about where Florida workers' compensation stands today. 

The first question on everyone's mind seems to be "where does it (the decision) go from here?" The decision is from the Eleventh Circuit Court in Miami. Therefore any appeal of yesterday's decision will initially be in the Third District Court of Appeal, which is also in Miami. That Court could agree with the trial court, holding that the Florida workers' compensation law is unconstitional, or that court could reverse that decision. That review by Florida's District Courts is the normal or customary procedural process for review of trial court orders. 

If a District Court, such as the Third District "declares invalid a state statute," (agrees with the trial court in this instance) then the case "shall" be reviewed "by appeal" by the Florida Supreme Court, pursuant to Florida Rule of Appellate Procedure 9.030(1)(a). The Supreme Court "may" review any decision of a District Court that "expressly declare valid a state statute." Rule 9.030(2). So, any decision of the Third District in this case could be reviewed by the Supreme Court, but a decision by the Third District concluding the statute is unconstitutional must be reviewed by the Supreme Court. 

There are procedures that allow a District Court to "pass" on review of a case, and instead send it directly to the Supreme Court. Rule 9.030(2) allows the Supreme Court to hear appeals of "orders and judgments of trial courts" if the District Court (in this instance the Third DCA) certifies that a pending appeal "require(s) immediate resolution by the supreme court" and that the appeal is "of great public importance" or has a "great effect on the proper administration of justice." Most Floridians will recall that this was the procedural course in Bush v. Gore, in the early part of the century. Is the situation here of such a pressing nature?

There will be debate today on these possibilities. Will the State of Florida appeal? Will the Third DCA hear the case or pass it to the Supreme Court? In either event, how long will it take for the appellate courts to rule? In the mean time, what does the trial court decision mean, for people on workers' compensation benefits, for people injured today, for the administration of the system? So many will ask today, essentially, "what IS IT?" There will be doubts and questions.

Back to the decision yesterday and what it means. I cannot answer definitively the "what IS IT?" question. I will leave the opinions and prognostications on that to others. But we can better understand some foundational concepts of constitutional law. 

For those who do not study the Constitution, there are a couple of points worth noting. First, constitutional law is is an analysis of competing rights in most cases. Both our Florida and United States Constitutions memorialize rights which we enjoy. It is often when the rights of one person or group collide with the rights of some other person or group that we see a court step in to sort out the conflict. 

It is important to remember that in constitutional analysis, there will be action of the government, that is "state action." The Constitutions protect people's rights, certainly, but that protection is against state action. You generally do not have a right to equal protection from your neighbor John, nor any right to freedom of assembly on someone's private property for example. It is when the government is involved that the Constitution provides protection. For the most part, it is the state's actions which are constrained by these memorials or recitations of rights. 

Courts deal with such conflicts between rights using analyses called "standards of review." Any lawyer will remember three of these from law school, and although there are arguably several additional standards, the primary three provide a rudimentary road map for illustrating constitutionality analysis. They are "rational basis," "intermediate" and "strict scrutiny." 

When laws or state action affect rights, the first decision of a court is which of these standards to apply in analyzing the allegation(s). Most economic regulation is afforded a "rational basis" analysis, in which the court presumes that the government action is constitutional. When action or legislation discriminates against a protected class (race or national origin), or when legislation affects a "fundamental right" (which may or may not be specifically listed in the Constitution), then the Court applies "strict scrutiny," in which the court presumes that the action is unconstitutional. When the action or legislation discriminates based on gender or heredity, then the analysis applied by the court is between these two and is called "intermediate scrutiny."

It would be simpler if these were the only standards, and it would be simpler if each were clearly defined and consistently defined. They are not. For example, in recent years, the U.S. Supreme Court's analysis of gender discrimination has seen a definition of "intermediate" scrutiny that has subtly edged closer to the "strict scrutiny" standard. Generally, these subtleties are of interest mostly to those few who study the Constitution (yes, some of us read this stuff just because it is interesting). But a rudimentary understanding is needed to comprehend Florida's decision yesterday. 

The Circuit Court in Miami concluded that the Florida Legislature, in enacting workers' compensation, impaired a "fundamental right" of Floridians. This conclusion led the court to apply the "strict scrutiny" standard of review. This standard creates a presumption that the law is unconstitutional. 

Presumptions are often confusing and confounding, even to lawyers. They should not be. A presumption is simply a conclusion that will stand unless someone proves that it should not. The example most Americans can quickly grasp is the presumption of innocence. We hear it on television today, and it has been a staple throughout the last forty years of Perry Mason, L.A. Law, Boston Legal, and every other police and court show. That is, when Americans are accused of crime, they are innocent until the state proves that they are guilty; this is the "presumption of innocence." The presumption, innocence, is the conclusion that is true until someone (the state) proves otherwise. 

In "strict scrutiny," the law (Florida' workers' compensation statute) is presumed to be unconstitutional until someone (the state) proves otherwise. That did not occur yesterday in Miami. In fact, the state did not intervene (that is take an active role) yesterday in Miami. The Attorney General did file a response to an earlier order of the trial judge; this response challenged the court's jurisdiction and asserted that changes in workers' compensation benefit levels are within the legislature's appropriate authority. The challenger of the statute (Florida Workers' Advocates and others) appeared in this case, Florida Workers' Advocates v. State of Florida. The Judge heard evidence from the challenger or "plaintiff" (technically those seeking the determination could be referred to as "intervenors" or "petitioners," but it is perhaps clearer to use "plaintiffs" for the non-lawyer readers). The State of Florida, the "defendant," did not appear, did not produce evidence, did not make any arguments.

Based upon the information submitted by the plaintiffs, the court concluded that "among a multitude of other infirmities, the Florida Act, after October 1, 2003, no longer provides any benefit for permanent partial disability" and that "as a matter of law, Chapter 440, effective October 1, 2003 is facially unconstitutional as long as it contains 440.11 as an exclusive replacement remedy." 

Thus, the State of Florida did not prove that the workers' compensation law is constitutional. In the absence of that proof, the "strict scrutiny" presumption, "unconstitutional," stands. The presumption remains true until it is proven untrue. The burden of proof in "strict scrutiny" situations is upon the government, in this instance the state government. 

The trial court's decision will be read and re-read today, tomorrow and for days to come. Decisions will be made about whether and how any appellate review will be pursued. Doubts will be expressed about our process and system. Questions will be asked. Advice will be sought. Opinions and prognostications will be in ready supply. 

The eyes of the nation will be on Florida. Workers' compensation is a "huge" process. For an idea of how huge, see How Huge is it Anyway," in the Lex and Verum, June 2014. In a nutshell, workers' compensation is billions of dollars annually "huge." It is a program that is in place in every state. It is a program that touches millions of lives and the vast majority of employers and their employees (small employers are not required to participate in many jurisdictions). It is is "huge." It's operation and transparency affect many Americans. Whether and how it works or fails is a subject in which millions will be interested and upon which much will be said in coming days, weeks and months. 

What IS IT? Time will tell. 

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Wednesday, August 13, 2014

The things you think are precious I can't understand

Steely Dan immortalized that lyric, in Reelin' in the Years in 1972. It struck me as I was considering some perspectives recently. The stanza from the song goes like this:

Your everlasting summer 
You can see it fading fast 
So you grab a piece of something 
That you think is gonna last 
You wouldn't know a diamond 
If you held it in your hand 
The things you think are precious 
I can't understand

The song conveys various messages, and the rhythm is catchy. It seems to me that the song is about how different people have differing perspectives on things. What one values, another does not. More than that though, can we understand someone else valuing something which we do not?

The world is changing around us. Cities are declaring bankruptcy (everyone knows of Detroit, but there are others), employees are renegotiating benefits, the economy struggles along. Sure there is good economic news some months and bad news other months, but employment and the future remain a concern of Americans according to a recent Gallup poll

I got to thinking about this recently when I read a news item about the next generation, the "millenials." As an aging "baby-boomer" I guess my perspectives are flavored by another age. We "boomers" are quickly going to fade from the fore and become relics of the past, just as our predecessors did. Our kids, the "Millenials," are the future. And, according to Time, they do not necessarily have the same values that we are accustomed to. Theirs is a different perspective, which will drive our economy. In fact, according to Time, "by 2017 Millennials will have more buying power than any other generation."

Some definition for perspective. According to the Pew Foundation, the following are relevant for consideration today, the "Silent Generation (born 1928-1945)," the "Boomers (born 1946 – 1964)," then "Generation X (1965 – 1976)" and the "Millennial Generation (born 1977 – 1992)." So, these "Millennials" are in the age range of 22 to 37. They are in their prime. They are wrapping-up their education, starting lives away from home, starting families, developing carreers, and more. 

According to the article 10 Things Millennials Won't Spend Money On in Time, the Millenials are not consuming pay television (cable), stocks (fears from growing up in the "great recession"), mass-produced beer, cars, homes, "bulk warehouse goods" (think Costco or Sam's), weddings, and health insurance. They are also less likely to be interested in having children, and are less likely to rely on friend or family recommendations for purchases.   

There has been economic growth in this country as our population has grown.  But the latest Census notes that there is a "fertility gap" between the volume of births and deaths in this country. Time reports that death rates are increasing among our aging population and birth rates are not. The population is still growing, just not like it once was. 

What affects will come from the combination of slower growth and Millennial purchasing preferences? These articles suggest that there is already change in what is consumed, that is what is seen as desirable. Will telecommuting and the Internet affect transportation purchases, commercial space needs, or other market segments? Will Amazon and other non-traditional retailers result in decreased desire for shopping areas and malls? 

No one knows the answers to all of this. There are many variables that will likely influence how change will hit us and our economy in years to come. I think we can say that we do know two things for sure. First, change is inevitable, we will have to adapt as it occurs. Second, it turns out that trends and desires are not the same across the generations. The things one generation values may be unimportant to the generation that precedes or follows. 

We will watch our economy deal with the changes and the varied values as purchasing power evolves to each next generation. It has the potential to change much about the society in which we live and work. It may change where and how Americans work and bring challenges to workers' compensation as we know it. 

Monday, August 11, 2014

Self Represented Parties and the Workers' Compensation Rules

I have been thinking of pro-se litigants lately. The subject came up in a recent Rules Workshop concerning the Rules of Workers' Compensation Procedure (Florida Administrative Code, chapter 60Q). Two attendees lamented their perception that the procedural rules have become too complex; others seemed to endorse their perceptions to some degree. They suggest that this complexity is an impediment to litigating in this system, and that it would only be more so for an unrepresented party. 

There are some procedural relaxations for the self-represented in the current Rules. Rule 60Q6.115(1) requires that all requests for relief come as motions. The rule also provides, however, "the judge may treat any request for relief from an unrepresented party as a motion." Thus, a letter, a note, or a statement in a hearing could be interpreted as a motion if the party is unrepresented. It is not an unprecedented idea for a judge to have more latitude under the rules when a party or parties lack representation.  

The subject of representing oneself was suggested again as national news outlets announced the first week of August 2014 that one Jodi Arias would be representing herself in the penalty phase of a murder case. This was news because apparently she has been in the news; she was convicted in 2013 of killing her boyfriend. Apparently the jury reached the conviction verdict, but could not agree on the penalty. The state is seeking the death penalty for what the New York Daily News refers to as a "grisly" murder in which the victim was shot, repeatedly stabbed and mutilated. 

This defendant is not an attorney. In fact, she has never graduated from college or even high school, though she reportedly earned her General Equivalency Diploma (GED) while incarcerated. Facing the ultimate penalty, she now steps to the fore to represent herself. Apparently, she has attempted to discharge her attorneys repeatedly, but the court has not allowed it. Despite her decision to represent herself, both attorneys that represented her in her conviction will remain of record in her case, but "in advisory roles," according to CBS 5 in Phoenix. That in itself is interesting from a legal point of view; it seems curious for the attorneys to remain of record, but to limit their roles.

I have done a very little bit of death penalty appellate writing years ago, and I read The Chamber by John Grisham. Suffice it to say I am no expert on criminal law or the death penalty. However, it seems a very complicated process to navigate for anyone, and would seem a real challenge to someone with the equivalent of a high school degree. The end result could be quite devastating. 

Phoenix CBS 5 says "it's not uncommon for people to represent themselves in court." They interviewed defense attorney Dwane Cates who said, however, "you don't see too many people doing that who are facing the death penalty."  He believes that this new penalty phase trial will be "a circus on steroids," and that it will "be beyond bizarre." He believes that Arias has the determination and drive to proceed, and that "if she goes down, she's going down with guns blazing." In short, he sees a difficult process for her to navigate on her own behalf.

According to the New York Daily News, at the proceeding where she asked to represent herself, the presiding judge inquired whether Ms. Arias was taking medication. She acknowledged she is, but argued that they are not affecting her judgement. The Judge then "wearily" accepted Ms. Arias' decision, but admonished "I do not believe it is in your best interest ... I strongly urge you to reconsider." I have heard many a workers' compensation judge ask unrepresented parties to reconsider. I have seen many a compensation trial continuance, over the objections of a represented party, for an unrepresented party to seek counsel. 

Over the years, I have seen unrepresented parties. Some presume when this situation occurs that it is always an injured worker. That happens, and it is likely the most frequent. However, I have seen unrepresented employers in a variety of settings. I have even seen unrepresented non-parties appearing to object to a subpoena. The fact is that there are those parties who are unrepresented workers' compensation proceedings.

Back to the Arias example. One expert quoted in the news says that the decision "might not be such a bad idea." He explained that her conviction conveys a negative impression, but that in representing herself she will have significant time speaking to the penalty-phase jury. He says that "if she can get just one juror to bond with her on some level, even if they hate her, they're getting to know her and it's harder to kill someone you know." 

Another attorney, Mel McDonald, noted that "I think generally that anybody that represents themselves has a fool for a client." However, he thinks that perhaps her making a fool of herself as her own counsel may "invoke some sympathy from a juror." Both of these seem to suggest that at least in their perceptions there could be an advantage to self-representation. I wonder if any workers' compensation experts would feel that a self-represented party has some advantage.

The situation in Phoenix is interesting. Is it wise to represent yourself? Is the answer dependent on or influenced by what kind of case it is? Is that something about which there is a great deal of choice, or is it the course for those who cannot find counsel to take their case? If the latter, what are the causes? 

In any event, should there be procedural simplification for those parties who are self-represented?  In other words, should the trial judge be given greater latitude to disregard procedural requirements when dealing with the unrepresented? Certainly, we see some of that in the rules already; should there be more?

Wednesday, August 6, 2014

Because it Works

So much in life might be explained by this simple phrase. It came to me several months ago while I was discussing spam email with some attorneys. The conversation started about electronic filing and service, evolved through how you can instruct your email to always accept emails from certain senders to avoid a loss of important messages to spam, and then became about the "why" of spam.

Why do these people send me spam? I get advertisements for CLE programs in areas of the law that do not even remotely touch on workers' compensation. I get offers of employment that any fool knows are scams. I get ads from real estate agents, office supply companies and more. I simply mark these as spam and move on. Some days I receive none, some days a few. 

The same thought occurred to me during a recent late night of statistical analysis. It helps me to have some background noise when I work sometimes. I am therefore in the habit of leaving the television running when I work at home. In this instance, I was vaguely aware that whatever I had tuned in had concluded and some new show had started. About thirty minutes later I realized that the new show was an infomercial for a device whose purpose I cannot fathom and whose purchase I just do not understand. Why do they run these infomercials for junk? 

There was a restaurant I frequented years ago in a city far away. I wonder sometimes if it still exists. They ran a lunch "special" daily that consisted of a particular sandwich, side and drink for a fixed price. We regularly ordered the special even though there was really no savings that resulted. We were lured by the "special" label, and eventually began laughing at ourselves for succumbing to the hype. We would jokingly ask each other why the place bothered to call it a "special." 

Behavior can generally be explained by the simple phrase above, because it works. They send spam because someone is responding to it, buying their product, revealing their identity, something. They pay to run all night infomercials for junk because someone is responding and buying it. They call it "special" so that we will find it more appealing. In short, why do they? can often be answered with "because it works." 

Is professionalism in the practice any different? Why does that lawyer or judge break or avoid the rules? Why does that person always provide short notice of hearings? Why does that person not return phone calls, accept facsimiles, return emails, respond to discovery? Why does that person cut me off when we speak, refuse to listen, ridicule other points of view, threaten and berate? Why? I would submit that it is "because it works." 

I sat in a mediation many years ago that I will always remember. I knew the mediator reasonably well, but it was my first mediation with this particular attorney. I represented the injured worker in this instance, which was a small part of my practice. It is worth noting that claimant's attorneys tend to know defense counsel better than they know other claimant's attorneys, and defense attorneys tend to know claimant's attorneys better. See, we more often get to deal with others in practice who are on the opposite side of the table. As my practice was primarily defense, I consequently did not know other defense attorneys such as this one as well. 

In this mediation, there were many issues. Several had to do with credibility. The trial was going to be a swearing match and that was obvious to all involved. Someone(s) was not being completely forthcoming (that is a nice way of putting it, huh?). The mediator tried the evaluative process on the merits of the case, with little traction. Then the subject turned to what I would have to put up with from opposing counsel if we did not settle; unfathomably long and irrelevant depositions, endless motions of unclear relevance, nasty letters, threats, and other uncivil behavior. 

As we discussed the case and the probabilities, we inched towards compromise. Inched. Inched. It was a long afternoon and a frustrated client. As an aside, I think all lawyers tend to forget that to us this is what we do but to the client it is their life that we are dealing with. There is always room for some compassion and commiserating and explaining for that client. They deserve it and it is not that hard for us to pause and provide it before and during mediations, depositions, and hearings. But I digress. 

The case did not resolve at mediation, but it did a few weeks later. In the meantime, the mediator's prognostications and predictions about opposing counsel began to come true. I saw the mediator again months later and we laughed about our long afternoon and the predictions. I raised the question "why is _____________ like that." We came up with no answers. In retrospect, I now wonder if it could really be that simple. Perhaps "______________ is like that" because it works? 

Will our profession continue to devolve, or can it be reclaimed? Will bad behavior continue because it works? I read a quote once to the effect that "we live on a small island of knowledge awash in a sea of ignorance, and our charge with each generation is regain a little more land." I cannot find to whom it should be attributed, but it is not mine. I would suggest though that professionalism is no different. We decide if we will insist on professionalism. We decide if we will regain ground or watch the erosion. We decide if we let something work, knowing that future behavior may be influenced by the fact that it works. 

There is an effort afoot in The Florida Bar to take professionalism more seriously. Circuit Professionalism Committees are not new. Their recent efforts are documented in an annual report. They and the Center for Professionalism are now part of what we all do. In the last year, the Professionalism Committees have begun an evolution from professionalism education and consciousness-raising to investigation of specific complaints about poor behavior. Circuits are acting to transition, an example is here. It will be interesting to see how this will influence the practice of law. 

There will be complaints to the committees which are beyond the scope of professionalism and may require more formal Bar actions. There may be disciplinary complaints that the Bar determines are more appropriately handled as professionalism matters by the Committees. There will undoubtedly be some evolution in the division of responsibility. In case you have been wondering as you read this "what can I do" to promote professionalism, the answer is easy. The Circuit Committees all need good lawyers, professionals, to participate in their efforts. Contact your Circuit's Chief Judge or your local bar leadership today and see how you can help make this effort bear fruit in your community. 

These will be small efforts, focused on an individual level. These will be community efforts. But there will be many of them. Together, we can regain a bit more land on this island of professionalism. We can spread and encourage good behavior if enough of us care enough to invest some time.