Wednesday, November 26, 2014

Marriage, the Law and Workers' Compensation

The Florida workers' compensation statute provides benefits for death in 440.16, F.S. Most workers' compensation programs have some form of death benefits. As you will notice in studying workers' compensation, the provisions of the various states' codes and statutes have similarities, but also distinctions. This is consistent with the structure of our Federalist American system, where there will generally be variety among the states' laws. 

So, in workers' compensation, we see a variety of statutory distinctions. In the October 2014 Lex and Verum (p.23), I recently outlined some of these gleaned through discussions and presentations at the NAWCJ/IAIABC Judicial program in Austin last September. The program was part of the IAIABC celebration of their 100th annual convention. That is an interesting side-note, workers' compensation has been part of the American legalscape for just over 100 years. 

Florida's workers' compensation law is not quite that old. Florida was not among the first states to enact workers' compensation. One of the best discussions I have seen of the entire history of workers' comp is on the Florida Division of Workers' Compensation's website. Florida got into the workers' compensation business in 1935, so while other states will be celebrating their 100th year anniversaries in the next few years, Florida is about 21 years away. I hope you are around for it, and in the same breath I hope I am not. 

Fortunately, death benefits are not prevalent. The 2013 OJCC Annual Report provides an overview (p.9) of the most plead workers' comp disputes, and death benefits is not on the list. Workplace deaths do happen, tragically, but fortunately they are not as common as other work accident outcomes. According to the Occupational Safety and Health Administration (OSHA), 4,405 occupational deaths occurred in 2013 (this is preliminary data, subject to revisions). 

That may sound like a large number, but that is nationwide over 52 weeks. This is less than 90 per state for 2013, and about 1.7 deaths per week per state on average. Still too many, but it is encouraging that the OSHA chart memorializes that the 2013 figure is the lowest since 1992. Too many, but the volume is decreasing. The OSHA report details causes. One example is that 40% of these are from transportation related causes. Another is that "A disproportionate share of fatal work injuries involved men."

Surprisingly, "Homicides were a much higher proportion of fatal work injuries to women than to men." The report says that 22% of women's workplace fatalities were homicides, compared to 8% of men's. It is frankly troubling that either of these homicide figures is so high. It is also curious that homicide is so disproportionately affecting women in the workplace. 

Recent news brings workplace homicide to the fore. No, not the recent beheading in Oklahoma, though that was both tragic and interesting. Bob Wilson wrote an interesting piece on that. However, the homicide I am referring to happened in Alaska, several years ago, and may therefore not have come you your attention. 

According to KLDG Radio, Kerry Fadely and Deborah Harris worked together at the Millenium Hotel in Anchorage, Alaska. They were also domestic partners. In 2011 a former employee of the hotel shot and killed Ms. Fadely, and Ms. Harris sought workers' compensation death benefits. The two had been partners for about ten years. The Human Resource page of BLR.com provides more details on the history and decision of the case.

In short, the Alaska Workers' Compensation Commission affirmed the trial decision that no compensation was due. Their affirmance was founded on Alaska not recognizing "same sex marriage." The matter proceeded to the Alaska Supreme Court, which reversed the decision last summer, according to Reuters. The full decision in Harris v. Millennium Hotel is here

We have a structured system in America, defined and constrained by the United States Constitution. Because we have this Federalist system, rights and structure are further defined in each of the states' respective constitutions also. 

It is important to remember that we have recognized that rights are possessed not by some grant of a beneficent government, but because we exist. In the Declaration of Independence, our rights are described as "inalienable" and we are  "endowed" with them by our "creator." Rene Descartes is credited with the famous "I think, therefore I am." In like logic, the United States recognizes that you are, therefore you have rights, and that many are inalienable (meaning "impossible to take away or give up," according to Webster's). 

Asked to determine the applicability of the protection of those rights, the U.S. Supreme Court in our early history concluded that the rights recognized in the first ten amendments to the Constitution, the "Bill of Rights," only constrained the Federal government, not the states. In time, the Court's view evolved and it concluded that the states were also precluded from infringing those rights. The Court concluded this by sequentially applying the protections of the Bill of Rights in specific cases to constrain the states, and the Fourteenth Amendment played a critical role in that "incorporation" of recognition of the inalienable rights of people. 

Reuters reports that the court "ruled that utilizing a narrow definition of a widow to exclude same-sex partners violates the surviving partner's right to equal protection under the law.'" The equal protection clause is in the Fourteenth Amendment to the U.S. Constitution (precluding discriminatory action by the states). Though the phrase "equal protection" is not in the Fifth Amendment, that provision has been interpreted as providing the same equal protection against actions of the Federal government.

On this precedent and "equal protection" predicate, the question of workers' compensation death benefits across America may be tied to the broader questions of legality of state definitions of marriage. The Washington Post noted recently that in the Supreme Court's 2014-15 term, same-gender or same-sex marriage "loom(ed) large." It quoted University of Chicago professor Strauss that "the rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues." 

As October progressed into November, it appeared that the Supreme Court would not address this subject, at least not soon. And so the various Federal Circuit decisions on the state's authority to define marriage would stand, at least for now. These are summarized by the New York Times here. Then the 6th Circuit, in a more recent divided opinion, upheld bans on same-gender marriage. There is now a conflict among the Circuits, and some prognosticate that the Supreme Court will therefore take up the issue in the next year.

Marriage, and the definitions applied to it may have broader social and legal implications, but for a moment focus the impact of the definition on workers' compensation. 

The Florida death benefits provision in 440.16, F.S. provides that these benefits are provided "to the spouse," and other generally referenced beneficiaries including, in various situations, children, parents, siblings, and grandchildren of the dead employee. The use of "spouse" is not uncommon in workers' compensation statutory phraseology across the country, as it is used in Alaska and Florida.

Thus, any decision of the United States Supreme Court that provided clarity on the question of what "spouse" means in a general context, under either state law definition or in a broader sense under equal protection, could likewise provide clarity on the more specific questions which this word presents in workers' compensation. The impact on certain individuals, that is those who would then be entitled to or denied death benefits, could be significant.

Back to our Federalist constitutional government structure. According to "the Supremacy Clause," the U.S. Constitution, and the laws of the United States are the "the supreme law of the land," "anything in the Constitution or laws of any state to the contrary notwithstanding."  In this construct, a United States Supreme Court decision on what "spouse" means would likely have a great effect on states' various interpretations of their workers' compensation death benefit laws.

There will be those who argue that the developing consensus of U.S. Circuit Court decisions provides essentially the same conclusiveness, but the recent 6th Circuit departure from the logic of other Circuits could frustrate that conclusion. Certainly those appellate decisions will be cited in arguments and discussions. None have been found that address the specific question of defining "spouse" in the context of a workers' compensation death benefit dispute. 

In our Federalist system the decisions of state Supreme Courts like Alaska's or Florida's are controlling within their respective state, but do not control disputes in other states. The State of Alaska is a state, just as good as, but no better than or superior to, any other state. While a state like Florida's courts might be compelled to follow federal law, pursuant to the Supremacy Clause, it is not compelled to follow the decisions of other state's courts, even other state's supreme courts. Thus, Harris v. Millennium will control the determination of "spouse" benefits in Alaska, but may have no effect whatsoever in a similar claim in some other state. Florida's courts could follow the logic of that decision, or could choose their own course, just as the 6th Circuit did in their recent decision. 

Appellate courts should bring predictability to the jurisdiction. Predictability comes through transparency and clarity. The decision of the Supreme Court must be understandable to the populace (clarity) and its reasoning must be explained (transparent). A clear decision from the highest court might bring that clarity to the "spouse" issue in workers' compensation.

The import of national clarity might not be considered to be economically significant to the industry as a whole. The processes that will be required to define death benefit entitlement across the various state systems as regards same-sex marriage will not necessarily be any more prohibitive than proving benefit entitlement in any discrete question, state-by-state. The economics are constrained because most death benefit statutes have limited measures of benefits, which lend them to certain financial predictability. Furthermore, as discussed above, death cases are a very small portion of the workers' compensation exposure overall, and the frequency of workplace death is thankfully decreasing.

Clarity from the Court on "spouse" and the equal protection clause might be beneficial. However, the Court has not yet accepted any of the challenges that were submitted for review. According to National Public Radio (NPR) the Supreme Court has not established "a constitutional right for same-sex couples to marry," but it has as yet "declined an opportunity to rule one way or the other." NPR concludes that the Court is "less and less likely" to "rescind" the trend toward acceptance of same-gender marriages, and perhaps there is a decreasing likelihood now that the Court will "even take such a case."  

It is an intellectually interesting issue which is likely to continue challenging workers' compensation. This will continue until the U.S. Supreme Court addresses the subject or until the various state supreme courts have each considered the question and resolved it. Alaska has had that opportunity, and absent the U.S. Court reconciling the issue, the "court of last resort" for workers' compensation in each state is likely to eventually consider the issue. 

Monday, November 24, 2014

Who Represents this Party?

There seems to be a great confusion about representation in Florida workers' compensation cases. Fortunately, not a great deal of attorneys are confused, but the few confused attorneys are causing a great deal of work. 

Here is the situation, an attorney leaves her or his firm and either starts a new firm or goes into business with some other firm. That attorney wants to "substitute" the new firm for the old firm. Some attorneys are incredulous when they are told that no such substitution is needed or even allowed. 

Attorneys have to understand that the Florida Rules of Procedure for Workers’ Compensation Adjudication (FRPWCA), Chapter 60Q, F.A.C., do not permit a law firm to make an appearance on any case. The rules only allow an attorney to appear on a case. The lawyer's first firm cannot appear. Thus, certainly the lawyer's next firm cannot appear.

There is no purpose in a notice of substitution or a motion for substitution of one firm for another. The first firm was never "of record," the second firm will never be "of record." This seems obvious, but it just keeps coming up. 

Some references:

Rule 60Q6.104 provides

"Representation and Appearance of Counsel (1) Appearance of Counsel. An attorney who files a petition or claim on behalf of a party has entered an appearance and shall be deemed the party’s attorney of record. All other attorneys appearing for a party in an existing case shall file promptly with the judge a notice of appearance and serve copies on all other parties or, if represented, the parties’ attorneys of record. The notice of appearance shall include the style of the proceeding; the case number; the name of the party on whose behalf the attorney is appearing; and the name, mailing address, e-mail address, telephone number, and Florida Bar number of the attorneyAttorneys shall keep their e-JCC profile current by logging into e-JCC and updating their mailing addresses, e-mail addresses, and telephone numbers when such information changes. (Emphasis added).

In no context whatsoever is there any mention of a law firm appearing on behalf of a client. The attorney appears on behalf of a client. There is no appearance by any firm.

The conduct of attorneys in Florida is controlled by the Rules of Professional Conduct ("FRPC"). Its provisions are consistent with the same outcome. 

In the FRPC Preamble "A lawyer, as a member of the legal profession, is a representative of clients.” And “as a representative of clients, a lawyer performs various functions.”

In the FRPC definitions, “Lawyer,” means “a person who is a member of The Florida Bar or otherwise authorized to practice in any court of the State of Florida.”

The FRPC obligations to the client are those of the "lawyer:"

A lawyer shall abide by a client's decisions concerning the objectives of representation.” FRPC Rule 4-1.2. (Emphasis added). 

A lawyer shall act with reasonable diligence and promptness in representing a client.” FRPC Rule 4-1.3, Rules of Professional Conduct. (Emphasis added). 

Requirements of FRPC Rule 4-1.4 fall upon “a lawyer.”

When the need arises, according to the Rules of Professional Conduct, “the lawyer may withdraw.” Comment to FRPC Rule 4-1.2. (Emphasis added). 

In some instances, “The lawyer must, therefore, withdraw from the representation of the client in the matter.” Comment to FRPC Rule 4-1.2. (Emphasis added).  

In conflict of interest, “the lawyer should withdraw from the representation.” Comment to Rule 4-1.7. (Emphasis added). 

In a variety of circumstances, “a lawyer shall not represent a client.” FRPC Rule 4-1.16. (Emphasis added). 

Withdrawal is also “allowed” by FRPC Rule 6-1.16(b): a “lawyer may withdraw from representing a client if . . ..” (Emphasis added). 

No reference is made to "the firm," or "a firm." A Lawyer is a person, and it is the lawyer that appears on a case according to FRPWCA Rule 60Q6.104. This is consistent with the FRPC.

So when a notice of appearance or a petition for benefits is filed, that filing attorney becomes counsel of record in that OJCC case.
What if the document is prepared and signed by attorney “X” and is “on behalf of the firm” called “ABC P.A.” and it is uploaded by attorney “Y” also of that firm? Well, then attorney “Y,” who uploaded that notice, is now counsel of record for that party. Why not “X?”  Because “X” did not file it, “Y” did. The database does not read the document to decipher who signed the notice, it associates and acknowledges that attorney that filed the notice. 

Is “ABC P.A.” counsel on the case? No, attorneys are counsel not firms.

What if attorney “X” is the correct attorney and the filing by “Y” is error? Then “X” and “Y” will work together to fix their error. The simplest method for this repair is for “X” to now file a notice of appearance. This will add “X” to the case.

But what if “Y” wants to be removed from the case, so that s/he is no longer served with the notices, orders, etc.? Then “X,” after filing her/his notice of appearance, files a stipulation for substitution” pursuant to Rule 60Q6.104(2)(a). This will remove attorney “Y” from the case.

Why can’t the attorney or paralegal just call the OJCC and have the public record changed to correct their mistake? Because the pleading is what created the public record and another pleading to repair it is consistent and provides a history to explain why data in the database was changed (attorney “Y” removed from the database for case yy-nnnnnn because of stipulation for substitution of counsel).

The next context in which an understanding of this is relevant is how an attorney can be removed from a case in which that attorney has filed either a notice of appearance or a PFB.

Rule 60Q6.104(2) provides
“During the pendency of any issues before the judge, an attorney of record remains the attorney of record until: (a) A stipulation for substitution has been filed with the judge and served on all other parties or, if represented, their attorneys of record; or (b) A motion to substitute or to withdraw, which reflects that it has been served on the client and all other parties or, if represented, their attorneys of record, is granted.” (emphasis added).

Once an attorney is associated with a case, s/he remains on the case until another pleading is filed, a stipulation or a motion.

As with paragraph (1) of the rule, paragraph (2) makes no reference to “firm” or “law firm.” This is inherently logical because a firm cannot make an appearance (1), only an attorney can appear (1). Therefore, there is no provision in (2) for a firm to be relieved from a case.

If attorney “X” leaves law firm “ABC P.A.” and opens “X and Assoc. P.A.” and will continue to represent the party, what filing is required? Nothing need be filed with the OJCC. Attorney “X” should visit e-JCC, open her/his “profile,” and change her/his contact information to the address, phone, email, etc. of “X and Assoc. P.A.” It was attorney “X’s” case when s/he filed a petition or notice of appearance, and it is still attorney “X’s” case.

That nothing must be filed does not mean the attorney or some attorney at the former firm may want to file something, which is certainly appropriate.

Does attorney “X” need to file a new notice of appearance referencing “X and Assoc. P.A.?” No, firms are not counsel, attorneys are. Attorney “X” is counsel of record regardless of the firm with which s/he is affiliated, or with which s/he was formerly affiliated.

What if “ABC P.A.” feels it has a lien for future recovered fees or costs? Then someone at “ABC P.A.” will now need to put the world on notice of that assertion, by filing a Notice of Lien.”

Can the OJCC just add “ABC P.A.” to the case database and mark them as a lienholder? No, to be a lienholder one must file a lien. To file anything in any OJCC case, an attorney (not a firm) must be counsel of record. This is accomplished by filing a notice of appearance. Rule 60Q6.104(1).

Can “ABC P.A.” file the notice? No, “ABC P.A.” cannot, it is a firm and not an attorney. Some attorney at “ABC P.A.” will have to file that lien on behalf of the entity whose interests that attorney represents, that is the firm. To do so, some attorney at “ABC P.A.” will have to file a notice of appearance, which will allow that attorney access to the case so that s/he may file that Notice of Lien on behalf of the firm "ABC P.A." 

When filing a notice of appearance, the e-JCC offers the choices of "claimant," "employer/carrier" or "other." Such a filing would be to represent "other," a lienholder.

What if attorney “X” leaves law firm “ABC P.A.” and opens “X and Assoc. P.A.” but the client has elected to remain with “ABC P.A.” and be represented by some other attorney with “ABC P.A.”? Then the other attorney at “ABC P.A.” needs to file a notice of appearance. That will accomplish adding the new “ABC P.A.” attorney as counsel of record. Then the other attorney at “ABC P.A.” needs to file a “stipulation for substitution” 60Q6.104(2)(a) or "X" or the other attorney may file a “motion to substitute or to withdraw,” 60Q6.104(2)(b). If attorney “X” has a lien, that should be noted in whichever pleading is filed so that the OJCC database can be properly notated to reflect the lien. 

The process is reasonably straightforward. The key element is that attorneys represent clients in this process, firms do not. There is no provision for a firm entering an appearance, and thus no basis for a firm substitution for another firm. 

Wednesday, November 19, 2014

Can I get an uber lift?

Transportation can be an issue for anyone, but it can also be an issue in handling claims. There are those who wonder if it will raise itself in resulting claims, misclassificationand other liability.

I recall a workers' compensation case I defended many years ago that included a claim for medical transportation. The transportation was frustrating, in a peripheral sense. The adjuster had no qualms about the need for and appropriateness of transportation. As with a variety of other workers' compensation issues, it was not the "if" or the "why," but the "how" that was troubling.

This injured worker lived and had worked in a small rural Florida community. The transportation issue came down to one key point, there simply was none. The town was not conveniently located. The big transportation companies were all willing to provide the transportation, but would charge to drive there from their city, transport the worker to the medical appointment and then charge to return to their city.

It is difficult to fault the transportation company, the hours their driver spent getting to the injured worker could be more efficiently employed transporting people within the city where the driver and company were located. So, they charged for the time spent getting to the remote location. If your perception of Florida is urban, like Miami, Tampa or Jacksonville, understand that there are many towns here that are just not that easy to reach. All of Florida is not a burgeoning metropolis.

The injured worker certainly cannot be faulted. He lived in a rural community that had limited conveniences. Not every community can have the services that are available in metropolitan communities like Orlando, Miami, and Destin (O.K. that last one maybe not so much). It is not just medical transportation, there are instances in which an injured worker in Florida will be unable to obtain medical care locally, some travel hours just to reach a specialist to treat their injury. Rural life can have its complications and challenges.

The adjuster eventually found a taxi service in the town. It was not listed as such in the phone book. Imagine a taxi service not listed in the phone book? This was not "Yellow Cab." After the first use, the injured worker's attorney called me to complain about the provided medical transportation with this service. It turns out, I kid you not, the "taxi" was a (thankfully four-door) Chevrolet Chevette. If you do not remember these, they were economy cars produced in the 1970s and 1980s. At the time,
 Popular Science compared them to the "Omni and Rabbit," but if you do not remember the Chevette, you likely do not remember these either. Today this might be comparable to the Mini Cooper or Toyota Yaris. The Chevette was an economy car with little in the way of creature comforts.

The point is that viable commercial transportation exists in some places, and not in others. Decades later, we are the beneficiaries of the digital age, the Internet, electronic filing and so much that emanates from technological improvement. And it is now changing the way people find a ride. Ride-sharing programs are becoming widespread on various smartphone applications. They may make finding a ride simpler, they may also raise additional questions though.

As an aside, on the downside, all this change means we must constantly adapt and adjust. A recent posting on Linkedin caught my eye in this regard,
 Are You Ready to Become Obsolete? What an impertinent question! That post is worth reading.

I have written about the challenges that misclassification bring to business. And when I say business, I mean "doing business," not just owning or managing a business. This is a challenge for hard working individuals who are misclassified. It is a challenge for honest businesses that appropriately classify and then try to compete for work with businesses that break, or tortuously bend the law. This is a challenge for the entire system that is workers' compensation.

These thoughts came to be when I recently had lunch with a group of workers' compensation luminaries from around the world at the IAIABC conference in Austin, Texas. As we discussed the challenges to this industry, one said "I want to hear more about this uber lift issue." Sounds like a beverage you might get on a tour of the Wonka factory. While "uber lift" is what I heard, what they said was "This Uber, Lyft issue."

I began to look into these (the internet to the rescue once again). Uber and Lyft are two of the "ride-share" applications that are becoming commonplace. Instead of relying on taxicabs, people can download an application (for the older generation, that is a computer program on your phone and for the younger generation, that is simply an "app"). Each service helps individuals who need a ride to connect with people who are willing to provide a ride.

Lyft says that "with the tap of a button" you can get a ride "whenever you need one" from a "reliable community driver within minutes," and "it's that easy." How does it work? You just tap your phone and the software matches you with a "friendly, background-checked driver" within minutes. You see the driver's approach on your smart-phone (believe it or not, I do know one guy that does not have a smart phone), and you get a picture of the Lyft driver on your phone in advance (mom always said not to ride with strangers). Lyft says "hop into that front seat and greet your driver with a friendly fistbump." When you arrive, you pay with your smartphone, through the app.

Uber is similar. They promote that it takes "one tap to ride," that their service is "reliable," that their pricing is "clear," and that payment is "cashless & convenient." Is it lucrative? The New York Magazine says Uber Might Be More Valuable Than Facebook Someday(again for my generation, Facebook is a popular application on the internet for obsessively sharing every minute detail of your life with every other person on the planet that you decide to "friend").

That's all there is to it. The Lyft and Uber owners take a cut on the payment, you get to your destination, the driver makes a living, no licenses, no regulations, no muss, no fuss. What could be wrong with this picture?

Well, some government officials are skeptical about or against these services. These services are not licensed the way taxi cabs are. According to the
 Washington Postmost cities regulate the number of taxi operators and require certain insurance, and driver background checks. The Post notes that "taxi cab companies are some of the most powerful political interests in cities across the country" and the cab companies are not pleased with Uber, Lyft, and similar competition. 

The Post notes that California and Colorado regulate ride sharing through state regulation, and Virginia has outright "banned Uber and Lyft." In other locales, municipalities have banned application-based ride sharing in places "like Vancouver, Berlin and Hamberg." Others, like Seattle have "voted . . . to severely limit the number of rideshare driver permits."

There may be safety concerns also. Recently, Cnet questioned
"How Risky is Your Uber Ride? Maybe More Than You Think." Their story recounts the Uber ride of a 35 year old and friends in San Francisco. The course was punctuated with increasingly heated exchanges, and the alleged driver ultimatum for the group to get out of his car. Allegedly, the driver, armed with a hammer, confronted the passengers after they were out of the car, and then beat one. According to a witness, he "clobbered him in the head with the hammer." The story says the passenger may or may not "regain vision in his left eye."

Who is responsible? Before that becomes the focus, we can switch to some hypothetical facts. Imagine instead that it had been the passenger that assaulted the driver and it is now the driver who needs medical care. Is the driver covered by workers' compensation?

In either instance, is the rideshare company, Uber, Lyft, or otherwise, responsible for damages caused by or to the driver? How about for damages in an accident in which neither the ride-share driver or the passenger is at fault? Allegedly, these services claim that they are not employers, and deny responsibility for any liability of or to the drivers.

So, there may be disputes emanating from the use of these services. Drivers, passengers, pedestrians and more may have questions for the legal community about liability, responsibility and damages. Recently, another passenger awoke from a night on the town to find that her 20 minute
Uber ride home had drained over $360.00 from her bank account. Perhaps not as affordable as was expected? She took to social media the next day to find funds for her rent (essentially a bunch of strangers contributed cash to help her, based on her story; another Internet phenomenon). You just can't make this stuff up. 

Are the drivers for these services employees or contractors? In Florida, an "employee means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire . . .." 440.02(15)(a), F.S.

There is a "passenger vehicle-for-hire drivers" exception in 440.02(15)(d)10. F.S. This says "employee" does not include "a taxicab, limousine, or other passenger vehicle-for-hire driver who operates said vehicles pursuant to a written agreement with a company which provides any dispatch, marketing, insurance, communications, or other services under which the driver and any fees or charges paid by the driver to the company for such services are not conditioned upon, or expressed as a proportion of, fare revenues."

There are those who would argue that in Florida drivers dispatched by Uber or Lyft are within this exception and not employees for the purpose of workers' compensation. One question might be how are the Uber or Lyft shares/payments calculated, as a proportion of fare revenues? In this context, perhaps these services are not misclassifying; perhaps they are simply competing against other dispatching services like Yellow Cab, whose drivers are likewise independent contractors? 

Are Yellow Cab,
 Uberor Lyft responsible for injuries to passengers, pedestrians, or other motorists? Do any or all of them require that their drivers maintain insurance coverage (including uninsured motorist) in the event that an accident or assault occurs? Will regulation be required regarding licensing, insurance, background checking, or otherwise?

Would such services solve the transportation issues of people in rural areas? There are many parts of Florida that do not have local cab companies. But might the result of a "tap" to
 Uberor Lyft there result in a response by someone driving a Chevette, Honda Fit, or Smart For 2? Would an insurance adjuster be willing to use such services for medical transportation absent assurances of licensing, insurance, and safety generally?

There are great expectations for ride sharing as noted by New York Magazine. There are regulatory resistance issues as noted by The Washington Post. There are potentials for liability as illustrated by Cnet. There are questions about insurance coverage in the event of a simple accident.

In short, there is much still to learn about this development in ride sharing. How will we adapt personally and legally to this and other innovations of the Internet age? I find myself agreeing with the IAIABC luncheon group, "I want to hear more about this uber lift issue."

Updated 121014: An interesting blog Uber Blocked from Brazil to California as Hurdles Mount noted complications including issues in Los Angeles, San Franciso, Portland, New Dehli, and Rio de Janiero. 

120814: An interesting March 2013 story about an Uber driver in Washington DC accused of raping a 20 year old passenger. The story is coming up in Google searches again in light of a more recent story from New Dehli. The city cracked down on Uber after accusations of rape against an uber driver

Updated 120314: An interesting recent taxi case from North Carolina.

Sunday, November 16, 2014

The Forgotten 2014 Florida Supreme Court Workers' Compensation Case

I thought there were only two workers' compensation cases pending before the Florida Supreme Court? There has been a great deal of activity this year. There are three workers' compensation cases currently before the court, one recently dismissed by the court, and a fifth interesting case currently in the Third District (Miami). 

There is much discussion in Florida about the constitutional challenges to the Florida workers' compensation statute. There is the challenge to temporary and permanent indemnity benefit provisions in Westphal v. City of St. Petersburg (SC13-1930 and SC13-1976), and there is the challenge to the attorney fee statute in Castellanos v. Next Door Company (SC13-2082). These two have been the main focus of the Florida workers' compensation community.

There is also the certified question referral to the Florida Supreme Court from the Eleventh Circuit United States District Court of Appeals in Morales v. Zenith Insurance (SC13-696). All three are discussed at length in my post, There's No Other Place I Wanna Be.

There is also the appeal currently being considered by the Third District Court of Appeal (Miami) regarding whether the exclusive remedy of Florida workers' compensation is unconstitutional, due to the changes made in benefits over the decades. This is Florida Workers' Advocates v. State of Florida, but is being called "Padgett" by most. Until mid-October, there was doubt as to whether the Third District Court of Appeal (DCA) would consider that case or certify it to the Florida Supreme Court, but that doubt has resolved. The Third DCA will decide the appeal. Whether or when the Supreme Court will become involved in Padgett remains to be seen.

Four interesting cases, each of which has received a significant amount of attention in this blog and elsewhere. In discussing these in various previous posts, I failed to mention the fifth intriguing workers' compensation appellate court case of 2014, which until recently was pending in the Florida Supreme Court. It was a third constitutional challenge, but it received less attention as it was arguably more tangentially connected to broader issues like indemnity benefit provisions and attorney fees.

This one, Brock v. Waste Pro USA (SC14-1208), centered on misrepresentation. Section 440.105 is titled "Prohibited activities; reports; penalties; limitations." This statute section contains a variety of prohibitions on false statements.

Francisco Brock was arrested during a raid on Waste Pro USA, Inc. in Ft. Pierce. He was "undocumented" (quote from the appellant's brief in the Supreme Court), and charged with violating Florida Statute section 440.105(4)(b)(9), which says:

"It shall be unlawful for any person: To knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a claim for workers’ compensation benefits." (Emphasis added).

The arrest affidavit stated that the charge was "W/C Fraud." The arrest apparently followed a complaint by a life insurance company, which alleged that multiple Waste Pro employees had "submitted false social security numbers for the purpose of employment." (Quote from the appellant's brief in the Supreme Court). I think it might have intended "obtaining employment."

The claimant sought to dismiss the criminal charges on the grounds that no workers' compensation claim was ever made. There was apparently no dispute on this issue. Essentially, Mr. Brock argued he cannot be guilty of "workers' compensation fraud" because he never suffered or sought benefits for any workers' compensation injury or illness. Thus, he argued, this statute is applicable only when a workers' compensation claim is made.

In March 2013, the trial court agreed and dismissed the charges on the basis that the state did not prove that Mr. Brock "obtained employment for the purpose of workers' compensation benefits." The trial court essentially concluded that the false statements in obtaining employment only become fraud if that employment then leads to a workers' compensation accident or illness.

The State of Florida appealed that dismissal to the Fourth District Court of Appeal, which held that the statute is "clear and unambiguous." The Court concluded that this statute "makes it a crime to present  . . . any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment . . .."  (Quote from the appellant's brief in the Supreme Court). Their conclusion is that this statute is not dependent upon the subsequent occurrence of or claim for workers' compensation.

The Court noted that because the statute is "clear and unambiguous" it need not resort to an analysis of statutory intent. However, it then bolstered its opinion concluding that the statutory intent nonetheless supports its conclusion, stating "our analysis confirms the legislature intended to prohibit illegal aliens from using false identification information to obtain employment, and by doing so, specifically intended to close their gateway into the Florida workers' compensation system." The Court cited "the Florida  Senate Interim Project Report 2004-110 (December 2003) in discussing its conclusion regarding statutory intent. 

Mr. Brock sought discretionary review of that decision by the Florida Supreme Court in June 2014, Brock v. State of Florida (SC14-1208). Essentially, Mr. Brock argued that the Fourth DCA holding in his case conflicted with the First District Court of Appeal decision in Matrix Employee Leasing v. Hernandez. Briefs were filed with the Court regarding the issue of the Court's jurisdiction, Mr. Brock's on June 25, 2014 and the State of Florida's August 13, 2014. Both briefs are interesting reading. 

The State of Florida argued that the two cases were not in conflict and therefore the Supreme Court should deny discretionary review. On September 29, 2014, the Court declined to accept jurisdiction of the case, stating on its docket:

"This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Article V, Section 3(b), Florida Constitution, and the Court having determined that it should decline to accept jurisdiction, it is ordered that the petition for review is denied. No motion for rehearing will be entertained by the Court. See Fla. R. App. P. 9.330(d)(2)."

So, the third Supreme Court constitutional challenge of 2014, and the last to be brought to the court is the first to be resolved. According to the Fourth DCA, the provisions of Section 440.105 say that people cannot "knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment." The Fourth DCA says that this clause stands on its own and that using false documents or statements to obtain employment is a crime, with or without a workers' compensation accident or injury occurring. That is controlling authority in the Fourth District. 

In Florida, that is not controlling authority in the other four Districts. If the issue is raised in one of the other Districts, Brock v. Waste Pro is persuasive authority that may be followed, but the other Districts are not compelled to follow it. If one of the other four Districts concludes otherwise, then there may be conflict, which may lead the Supreme Court to consider the issue. Until such a conflict occurs, however, it appears unlikely that the Supreme Court will be considering this issue. 

And now everyone can turn their full attention back to Castellanos, Morales, Padgett, and Westphal. Each is intriguing in its own right. 

Wednesday, November 12, 2014

The Data is Corrected, Florida Defense Fees Decreasing

Defense attorney fees decreased in 2013-14. The OJCC Annual Report will be published later this month and will have more detail on the recent history of defense fees. The OJCC captures data on claimant's attorney fees by reviewing each fee order that is entered throughout the year. Defense fees are documented through a process in which carriers, servicing agents, and self-insured employers report their individual aggregate Florida defense fees each year. 

This is required by Rule 60Q6.124(5).
"No later than September 1 of each year, all self-insurers, third-party administrators, and carriers shall report by e-JCC to the OJCC the amount of all attorney’s fees paid to their defense attorneys in connection with workers’ compensation claims during the prior July 1 through June 30 fiscal year."

Math is not the subject that defines many of us in the legal profession. Many times I have joked that I would have gone to medical school had it not been for having to pass calculus. Just last week, I was asked to reconcile a set of statistics from the OJCC clerk's office with my manual calculation of similar statistics provided to a judge 18 months ago. It took me an hour to find the incongruity. As usual, human error was responsible. That's not good. Worse, it was my human error. 

Unfortunately, we all make mistakes. We all invest much time in checking, double checking, proof reading, etc. and nonetheless we all still make errors. Computers are a great benefit in this regard. Adam Osborne is credited with saying "people think computers will keep them from making mistakes. They're wrong. With computers you make mistakes faster." 

Other great computer quotes for which I have not found attribution are "computers make very fast, very accurate mistakes" and "computer: a device designed to speed and automate errors." These tongue-in-cheek truisms remind us that computers are powerful and convenient, but that power can compound our human errors. 

For the last several years, the trend in claimant's attorney fees has been consistently downward. The reported trend in Florida defense fees demonstrated increase early in the century, which then resolved into a vacillating trend, with the increase seen through 2005-06, followed by two years of decrease (06-07 and 07-08), then two years of increase (08-09 an 09-10), then two years of decrease (10-11 and 11-12). Then in 2012-13, the trend was reported back to increase.

This year, the defense fee report aggregate total demonstrated a marked decrease. The extent of the decrease made me wonder about the cause. I spent a day comparing the figures in each line this year's report to the corresponding lines in last year's report. A couple of lines proved worthy of additional investigation. One in particular showed a servicing agent with a decrease in reported defense fees of almost $26 million this year compared to last. 

I wondered what would cause a company to make such dramatic decreases in its defense fee expenditure in a one year period. I suspected that there had been a sale, merger, etc. that had resulted in some portion of business being done under some different identity. I thought I might find some new entity that had reported the rest of the $26 million or some part of it. I also wondered if I would find that some new entity that had acquired that business had not reported its defense fees, perhaps not knowing of the requirement.

I contacted the servicing agent and inquired about this marked $26 million difference. The answer was not what I expected. Essentially, after investigating their reporting, the company explained that a simple human error had been made when it generated the 2012-13 figure it had reported last year. 

Essentially, computers answer whatever question you ask, they are literal not intuitive like humans. This company had asked a question which was not sufficiently specific, and their computer answered that question literally and correctly. The answer was correct, the question was flawed.

That led me ask whether the prior year's figure for 2011-12 was likewise error; turns out it was. Turns out that all of the figures this servicing agent reported between 2002-03 and 2012-13 were erroneous for the same reason: flawed questions asked, literal answers provided and reported.

The company was gracious about the effect of the errors, and agreed to recalculate the accurate defense fee amounts for each of the last eleven years. I have some experience with generating data from databases; I am certain that this was no small task and their effort in this regard, particularly in recalculating rapidly to facilitate clearing-up this data in the 2013-14 Annual Report was most appreciated. The difference over eleven years was significant, it totals $120,082,482.  

That aggregate defense fees have been declining in Florida over recent years was already apparent; it was apparent even before the corrected figures were provided. But the overall change is not what was thought. 

Defense fees for 2014 were $237,082,331, compared to claimant fees of $141,858,184. Combined, these two are $378,940,515; 62.56% defense fees and 37.43% claimant fees. The annual tabulation of attorney fees, previously (erroneous) reported defense fees and the corrected defense attorney fees are represented in this chart:

Fiscal Year
Previously Reported Defense Attorney Fees
Previously Reported Percent Change
Corrected Defense Attorney Fees
Corrected  Percent Change





The corrected trend is down over the last four years. The last previous increase in 2009-10 is no longer even one percent. That increase is likely statistically insignificant (it likely insignificant at .69%, reported previously, but arguably less significant now) at about two-tenths of a percent. the trend in 2009-10 thus now appears to have been a flattening of the trend to "no change" followed by four consecutive years of decrease defense fees through 2013-14. 

It is hoped that this entire exercise reminds us all of the challenges of mathematics and statistics. Computers will answer many questions, but they will do so literally, answering exactly what we ask. It is important that our questions are therefore accurate. 

The real lesson though is that we can catch our errors, and when we do the best course is to correct them. That requires added effort, and it is unlikely to be pleasant, but it is what we do.