Thursday, October 29, 2015

Overtime Anyone?

There is a joke about lawyers. I have heard it set-up in a variety of ways, but generally a lawyer dies and meets St. Peter at the Pearly Gates, complaining bitterly of having died so young; "but I'm only 30" says the attorney. To which St. Peter replies "well we've consulted your billing records, and according to them you're 117." Regardless of the details of the version you hear, it is uniformly demeaning to attorneys, and an unfortunate joke. More unfortunate, it is oft-repeated.

The Washington Free Beacon reported in June that certain Amtrak employees may have exaggerated their reported work time. An audit report revealed “cases of workers claiming over 40 hours of work in a single day.” I have worked some long days. I am posting this at 3:00 a.m. But even I cannot pack 40 hours into a 24 hour day. A partner of mine used to say "if you can't get your work done in 24 hour days, work nights." But even then, 40 hours?

An audit revealed that in 2014 there was "potential fraud, waste, and abuse in the reporting of overtime and regular time." The beacon reports that "employees reported 357 days in which they worked more than 24 regular and overtime hours." These are some very productive employees.

There were “10 employees reported working at least 40 hours in a day.“ one employee “who earns an average of $23 an hour, recorded 47.95 hours in one day, 31.01 of which were recorded as overtime.” At $23 per hour, 47.95 hours would equal $1102.85 if it were "straight time." If 31.01 were at time and half ($34.50), then this day would pay $1,459.47. Not a bad day’s pay, even if the work being performed was worthy of inclusion on Mike Rowe’s “Dirty Jobs.”

One technician "claimed to have worked 130 hours in a single week." There are only 168 hours in a week. 130 hours divided by 7 days equals about 18.5 hours per day. In addition “there were 280 occurrences of employees who said they worked at least 31 consecutive days in a row.” One coach cleaner “claimed to work 108 consecutive days.”

It is possible that some of this is bookkeeping error. The story reports that “the company uses 6 timekeeping systems to process time-sheets and calculate wage payments, as well as 179 unique timekeeping absence and attendance codes.” The more complex the paperwork, the more likely there can be errors.

Overall, “Amtrack paid roughly 19,300 employees $1.2 billion and 2014, including $199 million in overtime.” That equates to an average pay of $62,176.17, and an average overtime pay of $10,310.88. Suffice it to say that this is an employer that pays fairly well, but needs some bookkeeping help.

Amtrak employees are not alone in facing questions for timekeeping. A recent WorkCompCentral story reported that the Director of the Industrial Commission of Arizona and two of its Commissioners recently resigned. Commissioners in Arizona are not full-time employees. They are entitled to a per diem for days that are spent fulfilling their duties. It is $50 per day for the 40 annual (approx) Commission meetings and the time spent preparing for them.

The WorkCompCentral story says the two resigning Commissioners sought per diem for 292 and 253 days respectively. This may likewise represent accounting and paperwork errors. But the story seems to suggest that these two requested the per diem for each of the 40 (approx) meetings and for 5-6 days in preparation for each of the 40 meetings.

A recent story on the TampaBay.com reports that Florida's constitutional trial judges are being asked to report the time they spend at work and on various tasks. This is part of a Judicial Workload Study, which is designed to produce better understanding of judges' work time and the tasks which consume it. The author of this article suggests that some judges work harder than others. Some are there putting in the overtime, and perhaps others are not.

Will there be value in the records that are being compiled? Perhaps that too will come down to how com
plex the records are and how effective the bookkeeping that is applied to them? 

Tuesday, October 27, 2015

Will the Revolution be Violent?

There is a technological revolution going on in the world around us. I have written about this again and again. The world is investing in technology, Technology is disrupting our workplaces and economy, there will profound impacts on the availability of jobs, and some even suggest that some of our occupations may become obsolete.

Some caution this technological revolution may be as disruptive as the mechanical revolution that changed the face of our nation in the 19th century. That era began with more than 50% of Americans working to produce food, and today it is something less than 3%. A vast migration from fields to factories. If the prognosticators are right, will there be another such migration? If from the factories, then to where?

Yahoo news reports that Uber is having another reaction. Most will know that Uber is a "middle man" by their own design. It intends to own no cars, employ no drivers, and simply take a cut off of the money that passes through. This model has run into some friction, with courts deciding some of those drivers are in fact employees. There have also been debates about what kind of insurance coverage may be necessary for these drivers. The regulatory issues are fascinating. 

Could it be a violent revolution? Well, remember that with every innovation there are displaced workers. The mule displaced farmers, and the tractor and combine displaced more. I worked years ago with a lady whose first job was in the "typing pool."  She sat and typed pages all day long, often seeing only parts of a given document. There were literally hundreds of people in the room, all typing away. She became a paralegal when the "memory typewriter" caused a downsizing in the typing pool. Innovation is ongoing and can erase some jobs, and will hopefully produce some new ones. 

Yahoo news reports that the Uber phenomenon has created anger. In June, the cab drivers in Paris blocked the roads leading to Charles de Gaulle and Orly airports. It was a clash between Uber drivers and the cabbies. You see the cabbies are regulated by the government. There are licenses and fees and insurance, etc. The cabbies see their fares being taken by Uber drivers who do not face the same restriction and constraint.

Yahoo reports that "3,000 cabbies took part" in this revolt. Police officers were injured, people were arrested, and "70 vehicles were damaged." This was not a few folks calmly holding signs. Authorities promised to work towards shutting down the service known as UberPOP and in the meantime "vehicles of UberPOP drivers should be systematically impounded." The conclusion is that these drivers are breaking the law with their performance of taxi-like services. 

Taxi drivers are convinced that the Uber produces unfair competition and that "the service is endangering their jobs by flooding the market with low-cost drivers." There has been violence, and officials note that violence is "unacceptable" and has been seen "in both camps."

If government regulates a population of service providers, like cabbies, and charges them a regulatory or licensing fee, it cannot very well allow another group to perform the same function without such costs. By doing so, government creates an incentive for workers to migrate. Imagine your choice is to pay the government for a license and drive a bright yellow car with a meter or to pay no fee and drive any car you like using your phone as a "meter." 

If you may perform the same services in either scenario, and thus perhaps maximize your income by minimizing expenses for equipment and licenses, you would be encouraged to do the work in your car with your phone. Government has requirements beyond licensing, and insurance is another good example. Commercial insurance is typically more expensive than personal insurance. Carriers see the risk as greater and therefore charge more for it. Another savings potential if government requires certain coverage for cabbies and does not regulate coverage for drivers with ride services. 

Change is sometimes not easy. With the advent of email, there have been challenges for the postal service. That agency will shrink, but perhaps slowly enough that the main impact can be absorbed through attrition? Perhaps not, and perhaps other industries will see more radical and dramatic change as technology increasingly disrupts.

As these changes occur, government will struggle to keep up. If there is justification for requiring insurance limits for cabbies, is there the same justification for requiring it for ride service providers? If license fees are appropriate for cabbies, are they less so for ride service drivers? Some of the regulation may be about government revenue generation. Some may be about limiting the population of ride providers. There will be many arguments and various positions on these questions. 

Today it is the cab drivers. What industries and services will be next? The simple fact is that technology and innovation are driving change and to a large extent it is not so predictable. Will that change be peaceful and thoughtful, or will it precipitate more violence? 

Sunday, October 25, 2015

Read the Rules, It is Critical

Timeliness is an issue worthy of attention. In October, the Florida First District Court of Appeal (DCA) decided Matheny, v. Indian River Fire Rescue. An employer prevailed at trial and the injured worker filed an appeal. The Court concluded that the appeal was not timely.

This was a specific kind of appeal, called an “extraordinary writ,” the title is “petition for writ of certiorari.” Appellate rule 9.100(c) “requires such a petition to be filed within thirty days after rendition of the order to be reviewed.” The attorney did not file the petition within thirty days. It was filed on the 31st day.

The DCA explained that “the filing deadline set forth in Rule 9.100(c) is jurisdictional” which means that when the rule is not satisfied, the court does not have the authority, or “jurisdiction” to hear the appeal. This means also that there is no discretion, it is a matter of counting the days, and the filing is timely or it is not.

Early in the appellate consideration of the case, the Court essentially asked the injured worker how the appeal could be seen as timely. Courts ask questions with what is called an "order to show cause.” Lawyers sometimes do not like these orders, as they seem to imply something has been done wrong; but, they are really just asking a question. They are an efficient way for the court or a judge to inquire and to better understand something.

The injured worker explained that in his opinion the petition was timely on the thirty-first day because there is another rule, not in the appellate rules, in what are called the Florida Rule of Judicial Administration (RJA). Those rules say that “when a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire . . . .” This rule, and other like it, had evolved over the years to account for the fact that the U.S. Mail could and often did take a significant amount of time to move an envelope across the state.

But the DCA explained the RJA rule does not apply in this circumstance because it specifically says that the five additional days are afforded by the RJA when “another rule, a court order, or a  statute requires a party to act within a specified time after service.” When lawyers use “service” that essentially means when a document is sent (“served”) to the others involved in a case.  But, the DCA noted that the rule of appellate procedure (Rule 9.100(c)) does not require the petition (appeal) within thirty days of “service,” it requires the petition “to be filed within thirty days after “’rendition of the order to be reviewed.’”

Since the “extra five days” in Rule 2.514(b) applies to rules that relate to "service," and since the rule governing this appeal had a deadline related to “rendition,” the deadline was thirty days, not thirty-five. Because 9.100 does not rely on "service" and since 2.514 expressly does rely on "service."

Lawyers like order, predictability, consistency. Distinctions require more analysis and thought. Likely to avoid needing to analyze, the RJA rule makes no distinction between when documents are mailed in paper form, loaded on trucks and driven across the continent and when documents are transmitted instantly across the Internet.

The Florida Rules of Procedure for Workers’ Compensation Adjudication do recognize a distinction. In Rule 60Q6.108(6), the workers’ comp rules recognize that electronic mail is instantaneous. The rule says

(6) When service of any pleading other than a petition is made by U.S. mail, five days shall be added after the period allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. When service is made by any electronic delivery method or by hand delivery, no additional time shall be added.

So, it is important to know which rules are applicable. In some instances, it is the adjudication rules (for proceedings before the Judge). In other instances, the appellate rules (for proceedings before the DCA or the Supreme Court) apply. Then, it is important to read the rules and know whether “service” or “rendition” is the controlling event. Which rules apply when, and how they may interact is important. 

As a side note, the RJA do not apply to proceedings before a judge of compensation claims because we are not part of the judiciary. The OJCC is a part of the Executive Branch of the government. 

Of course, the easy course is to never wait until the deadline to turn in your work. If it is due in thirty days, turn it in in 25. If you end up a day late then, because of a delay in the postal service, then it arrives on day 26 and it is still on time.  Of course it is hard to meet deadlines, and we are all busy with a multitude of tasks and responsibilities. So in the end, read the rules, it is critical. 

Thursday, October 22, 2015

Maryland E-filing and Statute of Limitations

The Maryland Supreme Court explained e-filing in June. The case was Hranicka v. Chesapeake Surgical, Ltd. it is an interesting analysis

The injured worker was faced with a two year statute of limitations, similar to the Florida limitation period in Fla, Stat. 440.19. Maryland has electronic filing for workers' compensation claims. The claim in this case was "electronically submitted to the Workers’ Compensation Commission (“the Commission”) before expiration of the two-year period, but not filed on paper until after expiration of the two-year period."

The worker was in a  motor vehicle accident on January 6, 2010. A notice of injury was prepared and filed both electronically and in paper form. The Maryland system appears to move matters to a litigated state more rapidly than Florida's. When the notice was received on January 28, 2010, almost immediately on February 3, 2010, the "Commission and assigned a 'consideration date' of February 24, 2010, for" the Employer.Carrier to contest the claim.

In Florida, this would be a progression defined by statute, and would occur without any involvement of our regulatory agency, the Division of Workers' Compensation. Our Division does not notify parties of response dates.  The notice of injury in Florida does not necessarily mean there will be litigation either. In fact, most notices of injury do not progress to Petitions or litigation here. 

Because the Employer/Carrier refuted compensability, a hearing was set for May of 2010. That is a very rapid progress by any comparison. That hearing did not proceed as scheduled, upon the Claimant's request and withdrawal of his claim. Then nothing occurred until 2012. On January 17, 2013 the Claimant electronically submitted a "claim form." On January 24, 2015 the hard-copy of this form and some other paperwork was received by the Commission.

When a new hearing was set, the Employer/Carrier contended that the claim was time-barred. The  assigned Commissioner (Maryland does not have "Judges") concluded that the electronic claim of January 17 was accepted "for statute of limitations purposes." She noted that an electronic signature was not possible in Maryland because of "the concern of privacy and security," thus leading to the requirement for the electronically submitted form to be signed and re-submitted in paper form.

The assigned Commissioner concluded the claim was timely as electronically filed.

After unsuccessful rehearing efforts, the Employer/Carrier filed for judicial review in the Circuit Court. Unlike Florida, appeals in Maryland begin their process in the court of general jurisdiction. That Court concluded that the claim was time-barred. Essentially concluding that the filing of a signed claim was the required event to instigate a new claim. This led to Claimant filing a petition for a writ of certiorari, and the opinion linked above.

The Claimant argued "that one of the purposes of the Commission’s Web-Enabled File Management System is to facilitate the electronic filing of workers’ compensation claims." Essentially, he said, the electronic filing is a superfluous fallacy if it has no legal effect. He also argued that the statute "should be construed liberally in favor of employees, any ambiguity concerning the filing date should be construed in his favor."

Both sides in this case drew support from interest groups filing amicus briefs. Noting that there was some deference to the Commission and its expertise, the Court concluded that the law did not support the assigned Commissioner's interpretation. 

The Court noted that the Commission's regulations require a claim that the employee has signed. The regulations further provide that "(8) Date of Filing. (a) A claim is considered filed on the date that a completed and signed claim form, including the signed authorization for disclosure of health information, is received by the Commission."

Thus, "electronic submission of a claim does not constitute 'filing'of a claim." Therefore, because this Claimant's form "was not filed on paper with and date-stamped by the Commission until after expiration of the two-year deadline," it was time-barred. 

The Court noted that there was no reason that Maryland's system could not work as the Commissioner ruled. It noted that some could view "the language of the Commission’s regulation that requires a paper submission to 'file' a claim is an impediment." But for the Commissioner's ruling to be appropriate, the Court noted, the Commission would need to revise "its regulations to adopt the approach expressed by (the) Commissioner. 

My views on the benefits of electronic filing are no secret. The tool is a value if it saves all of the parties and attorneys time and/or money. A system that allows electronic filings, but requires submission of a duplicate in paper format seems redundant. It is like having a PDMP and not requiring anyone to use it. In this case, it resulted in misunderstanding and significant litigation. 

Tuesday, October 20, 2015

Interpreter Regulation has Changed in Florida's Courts

On March 31, 2015 the Florida Supreme Court rendered an opinion in 14-1055. I, like much of Florida, have been watching the court for a decision on Westphall or Castellanos. This one, 14-1055, slipped past me. Thanks to W. Rogers Turner for emailing and asking about it. 

This decision changes things with "court" interpreters. In this regard, it is important to remember that the Florida Office of Judges of Compensation Claims (OJCC) is an administrative agency, part of the Executive Branch. The Office of Judges of Compensation Claims is not a "court," but an administrative agency of the Executive branch. Therefore, the rules created by the Supreme Court are not binding on the process and procedure before the Judges of Compensation Claims except as incorporated into the workers' compensation rules. 

The Supreme Court has a variety of rules that do fall within its purview. The Rules of Civil Procedure and Rules of Judicial Administration among them. The Rules of Procedure for Workers' Compensation Adjudications (the "60Qs") incorporate some specific rules. For example, Rule 60Q6.114 incorporates the Rules of Civil Procedure regarding taking and using depositions, objections, protective orders, sanctions and more. And Rule 60Q6.126 incorporates Rule of Judicial Administration 2.330 regarding disqualification of judges. These are specific incorporations.

The Rules of Procedure for Workers' Compensation Adjudications do not incorporate the Florida Rules for Certification and Regulation of Spoken Language Court Interpreters, which is the subject of the March 31 decision. So, there is this entire set of rules focused on translation in legal disputes, but their applicability is to the court system and its disputes. Anyone involved in litigation outside of the workers' compensation area should be aware of these interpreter rules and the recent amendments. 

The Rules for Certification promulgated by the Supreme Court provide definitions and parameters. The 2015 amendments provide a "definition of the term 'court interpreter' that is more inclusive than previously understood." In the March 31 decision the Court also clarifies that these rules apply to court hearings, but also to "ancillary activities such as depositions, mediations, and other similar proceedings." So, there is more constraint on who can interpret and the restrictions apply to more than just courtroom situations. 

The result of these amendments will be that all court interpreters will register with the Office of State Courts Administrator (OSCA). The change will bring more persons into the scope of "interpreter" and will require their individual compliance with a Code of Professional Conduct, and subject them to disciplinary rules. In short, there is more structure coming to court interpretation.

The Supreme Court's stated goal of the changes is "to promote the use of more highly qualified interpreters when interpreters are privately retained as well as when they are court-appointed."

Recognizing that the Supreme Court's actions will change qualifications and processes for civil court case interpreters, the question for us is: "does the OJCC need a similar interpreter rule?" If so, should that rule be one adopting the Florida Rules for Certification and Regulation of Spoken Language Court Interpreters in manner similar to the adoption of the Civil Procedure rules and Rules of Judicial Administration? 

I would appreciate hearing from you regarding any thoughts you have on the subject. 




Sunday, October 18, 2015

2015 Injury and Fatality Study is Interesting

The Trust for American Health released a June 2015 report titled The Facts Hurt, A State-by-State Injury Prevention Policy Report. It is a detailed comparison of the states. It provides a great quantity of data and information, but frankly leaves the reader with a few questions. 

The report notes that "drug overdose" is "the leading cause of injury death in the United States" at "44,000 per year." This exceeds "motor vehicle-related deaths in 36 states and Washington D.C." More troubling is that the trend for overdose death is increasing, and the "rates have significantly increased in 26 states and Washington D.C." in the past four years. Half of those deaths "are related to prescription drugs," and the overdose "deaths have more than doubled in the last 14 years."

The relevance is apparent. Injuries are expensive in terms of medical treatment costs and productivity losses. In 2010 the total of these two for all types of injuries was $189 billion dollars, measured over the lifetime of the injury. If the entire 2010 American working age population (18-65) paid an equal share of that, it would be almost $1,000 per working-age American ($189 billion divided by 194 million). That is significant. 

One focus of the report is the rate of death in various states. The authors have color-coded the U.S. map to illustrate the states categorized into three groups based upon the volume of "injury-related death" per 100,000 people in the state. Five states, California, Connecticut, Hawaii, Massachusetts, New Jersey, and New York are coded as "green" states, with a rate of less than 50 per 100,000. 

Sixteen states are "red," with a rate of more than 70. These are Alabama, Alaska, Arizona, Arkansas, Colorado, Kentucky, Louisiana, Mississippi, Missouri, Montana, New Mexico, Oklahoma, Tennessee, Utah, West Virginia, and Wyoming.  The remaining 29 states are "brown" with a rate of between 50 and 70.

West Virginia is the highest on the map at 97.9 deaths by injury, per 100,000. The second highest is New Mexico with 92.7. New York is the lowest at 40.3, with the next lowest Massachusetts at 42.9. This methodology minimizes population disparity as an influence in the comparison.

Florida is a "brown" state. The reported death by injury rate is 61.3 per 100,000. The average for all 50 states is 64.8 (64.6 if the District of Columbia is included), so Florida is below average. The median (the value in the middle of the range) is Indiana at 63.7, which Florida is also below. The range is significant at 57.6 (defined by the difference between the highest, West Virginia with 97.9 and the lowest, New York with 40.3). 

Comparing Florida in this way could lead to the conclusion that Florida is doing well as regards safety. It is below average, below the median, and its total is further (36.6 versus 21) from the worst (97.0) than from the best (40.3). But, 61 people dying of injuries cannot be ignored and should not be minimized. Certainly, some might conclude that injury-related death is inevitable in some measure. However, the real focus should be decreasing the volume. In that focus perhaps an acceptable goal would be zero?

Another focus of the report is safety, and injury prevention. The report identifies "10 key injury-prevention indicators" which it suggests are a path to fewer injuries and thus fewer fatalities. The report annotates the number, out of ten, of these indicators with which each state has achieved. 

The ten listed are:

1. "Does the state have a primary seat belt law?"
2. "Does the state require mandatory ignition interlocks for all convicted drunk drivers?"
3. "Does the state require car seats for children up to at least the age of 8?"
4. "Does the state have Graduated Driver Licensing laws?" (restricting teen driving)
5. "Does the state require bicycle helmets for all children?"
6. "Does the state have fewer homicides than the national goal of 5.5 per 100,000?"
7. "Does the state have a child abuse and neglect victimization rate at or below the national rate of 9.1 per 1,000 children?"
8. "Does the state have fewer deaths from unintentional falls than the national goal of 7.2 per 100,000 people?"
9. "Does the state require mandatory use of data from the prescription drug monitoring program by at least some healthcare providers?"
10. "Does the state have laws in place to expand access to, and use of, nalaxone, an overdose rescue drug, by laypersons?"

Curiously, only number 10 of the "indicators" has anything to do with overdose death, the leading cause of deaths according to the report.  The leading cause of death might be anticipated to relate directly to more of the selected indicators.

Using this ten point evaluation method, the states are graded. Notably, 1-5 and 9-10 are questions of the presence of some process or requirement that is tied to safe (or safer) outcomes. Enactment of those requirements would arguably result in greater safety regarding specific activities, driving, biking, prescription drug use, etc. 

Questions 6, 7, and 8 however are outcome measures, that is statistical results. Achieving those results are deemed by the study as indicative of a likelihood of safer outcomes. These three are not concrete action items, but independent component goals for safety in their respective contexts. In order for those outcomes to be achieved, concrete actions would have to be taken to achieve those outcome statistics.

Unfortunately, the report notes that "twenty-nine states and Washington D.C. scored a five or lower." New York scored the best with "nine out of a possible 10." Florida was among "four states (that) scored the lowest . . . with two out of 10." These four are Florida, Iowa, Missouri and Montana. Their respective rates are Iowa 56.4 (13th), Florida 61.3 (22), Missouri 72.4 (36) and Montana 85.1 (47). 

Some might question whether the ten indicators selected by the study are the most indicative of success in minimizing injury-related death. New York's achievement of the lowest rate per 100,000 people, in conjunction with its score of 9 out of 10 on the selected indicators could argue in favor of the relevance of the indicators. However, conversely, the lowest scoring states regarding the ten indicators might by that logic be expected to be the worst performing, and that is not the case. Iowa in fact is near the best performing despite its score of only two on the ten criteria.

One wonders if the indicator list is an accurate representation of the probability of death. The incongruity of New York and Iowa is worthy of further thought. This at least suggests that other indicators or factors may play significant roles. in injury safety. If so, what other indicators might also be key or at least worthy of consideration?

Thursday, October 15, 2015

A Procedural Progeny Potential of Castellanos

The Florida workers' compensation community waits and watches the Florida Supreme Court for a decision in Castellanos v. Next Door Co.. The claimant in that case is seeking a determination that Fla. Stat. §440.34 is unconstitutional. The contention is that the fee formula in that statute results in fees in that are insufficient to compensate the attorneys that pursue workers' compensation benefits on behalf of recovering workers. 

The analysis is academically interesting. I have heard so many excellent discussions of how the statute is or is not unconstitutional. I know many brilliant attorneys and judges and their impressions and analysis of this dispute are fascinating. The prognostications and legal analysis have made the last couple of years very interesting, as I noted in No other Place I Wanna be

Constitutional decisions can be grouped into two main categories, "facial" and "as applied." A determination that a statute is "facially" unconstitutional is a conclusion that it cannot render an appropriate outcome no matter the facts involved. That is, that the formula in Fla. Stat. 440.34 would not render an acceptable fee in any case under any circumstances. I have not heard many predict that such a determination is likely from Castellanos. The "as applied" conclusion is more specific to the facts of a particular case; it is a determination that the statute is unconstitutional in a particular case because of the way it applies to the facts of a particular case. 

Castellanos can be viewed as a continuation of the dispute regarding attorney’s fees that was litigated extensively in the first decade of the twenty-first Century. That litigation culminated in the October 2008 decision of the Florida Supreme Court in Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008). 

The Supreme Court in Murray did not address the constitutionality of Fla. Stat. §440.34, but instead relied upon a statutory interpretation centered on the continued presence therein of the word "reasonable." Concluding that "reasonable" was inconsistent with the percentage formula restrictions of the 2003 statute, the Court concluded that attorneys were entitled to "reasonable" fees despite the seeming limitation of the statutory percentage calculation.  

Following rendition of the Supreme Court Murray decision, in the spring of 2009, the Florida Legislature amended Fla. Stat. §440.34 to remove "reasonable," and thus to (again?) forbid hourly fees. Murray applied only to cases interpreting the 2003 statute, and thus affected fee cases for the period July 1, 2003 through July 1, 2009. This 6 year period was seen at the time as a significant population of cases. 

Castellanos reiterates the allegation of constitutional infirmity, seeking determination of essentially the same question that the Florida Supreme Court deferred in Murray, by electing to resolve the issue by statutory construction. The Supreme Court held the Castellanos oral argument on November 5, 2014. We are rapidly approaching the one year anniversary of the argument. Many are frustrated and they repeatedly ask "when will the Court rule?" I spoke with one recently who lives in another time zone to the west; she says she gets up early every Thursday to check the Supreme Court decisions for the week in anticipation of a decision.

The Court, after the Castellanos oral argument, allowed issues to be briefed and argued in additional cases challenging the application of Fla. Stat. §440.34 (collectively referred to as “the companion cases”). It is not uncommon for a group of similar cases to develop on a similar subject, such as attorney fees, though the facts of those cases may not be identical. 

A decision on Castellanos or some combination of the "companion cases" was anticipated in fiscal 2014-15 (ended June 30, 2015). Some prognosticators believed that the Court would rapidly dispatch the challenges following the end of the 2015 legislative session. There is no end to prognosticators and predictions about what the Court might do and when.

However, the decision remains pending. The delay in rendition of a final decision regarding attorney’s fees has created anxiety and expectation in the Florida workers’ compensation marketplace for two years. It began when people prognosticated as to whether the Court would accept jurisdiction over Castellanos. I have attorneys and others ask me to venture a guess as to what the Court will do and when it will do it. I like to remind them that the Supreme Court, however, has far broader responsibilities than workers' compensation. It is responsible for cases involving redistricting involved for elections, death penalty cases, and so much more. 

Workers’ compensation is also important. It is a massive enterprise, paying $60.21 billion in benefits in 2011. Florida is the 6th largest market in the country, responsible for 4.5% of those benefits, or about $3 billion dollars annually. The impact of Castellanos may be that decisions and resolutions today remain pending until the Supreme Court renders its decision in this case. In other words, there may be some volume of attorney fee claims that are being withheld at this time until claimant's attorneys know what the Court will decide. 

Castellanos could result in a determination that Fla. Stat. §440.34 is unconstitutional "on its face" or "as applied." It is probable that a determination that the statute is unconstitutional "as applied" would apply only to that case (Castellanos specifically or one of the "companion cases"). Everyone needs to remember, though, that the Courts have consistently concluded that as statutory judges, the Judges of Compensation Claims lack authority to decide a statute is unconstitutional either "on its face" or "as applied."

A decision by the Florida Supreme Court holding Fla. Stat. §440.34 unconstitutional “as applied” to some set of facts could create a procedural challenge for the Florida workers' compensation litigation system.

If the Court in Castellanos determines that the fee in that factual setting is unconstitutional, a Judge of Compensation Claims (JCC) thereafter (the day after the Court rules), presented with nearly identical facts in the "next case," does not have statutory authority to declare the application of Fla. Stat. §440.34 unconstitutional in that "next case." JCCs are not constitutional judges, not part of the judiciary as defined in the constitution (though a great many insist on referring to us as "court"). We are statutory judges and are part of the executive branch of government. JCCs cannot declare statutes unconstitutional. 

In the "next case" the JCC may be compelled by the plain language of Fla. Stat. §440.34 to deny any fee beyond that resulting from the language of the statute, the formula, applied to that next case, unless that statute has been held facially unconstitutional. Even if the parties in the "next case" agree that their facts are sufficiently similar to some Supreme Court's (hypothetical) "as applied" decision, and stipulate to a fee outside the plain language of Fla. Stat. §440.34, it is possible that the JCC may decline to approve the parties' stipulated fee. 

The claimant's attorney in that "next case" may then face the expense associated with seeking review of the First District Court of Appeal. That Court is part of the judiciary of Florida. Unlike the JCC, the District Court could, following such a hypothetical Supreme Court decision of "as applied" unconstitutionality in Castellanos (or one of the "companion cases"), find the application of Fla. Stat. §440.34 unconstitutional "as applied" in that "next case."

Any hourly attorney fee determination deemed appropriate by the Florida Supreme Court in Castellanos, therefore could lead to the necessity of many more attorney fee challenges before the First District in the years following. Certainly, the Florida legislature might thereafter react to a conclusion of "as applied" unconstitutionality in Castellanos. But that legislative reaction might apply only to cases that arise after that hypothetical new law is enacted, just as the 2009 reaction to Murray only affects cases after July 1, 2009.

A great deal can be said about appellate practice. It is intellectually challenging, and it is different from trial practice. In trial of workers' compensation cases, there is no filing fee for petitions for benefits or for motions seeking the award of attorney fees. An injured worker can seek benefits and there will be a hearing before a JCC. There is expense associated with serving the petition by certified mail, but no filing fee per se

The First District Court does have a filing fee for review of decisions, $300.00. In addition to that cost, an attorney seeking review of a JCC fee decision would have to pay for a record (the typed copy of all that was said at the fee trial, and copies of the documents submitted to the JCC). These are both out-of-pocket expenses. That attorney would also have to write a brief explaining to the appellate court why review is appropriate and why the Court should award a fee different than that determined by the JCC, that is, an explanation of how a fee award "as applied" in that "next case" is unconstitutional. 

It is likely that the filing fee and record would be at least $1,000 per appeal. The time for a brief might be at least 10 hours. At a rate of $150.00 per hour (the hourly rate mentioned in Fla. Stat. 440.34 for "medical only fees"), the cost of an appeal might easily be $2,500. As the time involved or that hourly rate increased, this could perhaps make the expense of an appeal as high as $5,000 or more. 

There are a fair number of fee determinations processed by the OJCC each year. Some are by adjudication, many more are by stipulation. But for a determination of "as applied" unconstitutionality, in any of these, it would seemingly have to proceed through the adjudication path, and proceed through the appellate path. 

If 1,000 of these fee disputes each year proceeded to the First District Court of appeal it would impact that Court's workload. Currently about 500 workers' compensation appeals are reviewed by that Court annually. The cost of those 1,000 cases at the $2,500 guess above would result in an aggregate cost of litigation of $2.5 million in appellate costs and attorney fees (at the $5,000 figure, this doubles to $5 million). This would be in addition to whatever fees would be awarded based on the trial-level work, on the basis of an "as applied" determination of unconstitutionality in those "next cases."

If the claimant's attorney prevails on that fee challenge at the First District, it is likely that the cost of such appeals, as well as appellate attorney fees for their prosecution, would be assessed against the employer/carriers in those cases.

So, hypothetically, the Supreme Court could conclude that Fla. Stat. 440.34 is unconstitutional "as applied" to some set of facts. An employer thereafter might interpret the Court's decision in Castellanos (or one of the "companion cases") as dictating a higher fee that rendered by the formula in Fla. Stat. 440.34. 

But, that employer might find that the assigned JCC is unable or unwilling to deviate from the statute language, and the fee dispute might be forced to the First DCA. The resulting costs and fees of such appeals may then be assessed against the employer. The statute in that setting could result in unwanted litigation and expense.

The hypothetical $2,500,000 for such appellate fees and costs is a guess. There are a great many fee stipulations and adjudications in the OJCC system annually. It is difficult to determine which of these would be viewed by the appellate courts as appropriate or inappropriate. There is every potential that the Court in Castellanos and the "companion cases" might determine that there is no constitutional infirmity in Fla. Stat. 440.34, and therefore the foregoing procedural progression of appeals might not come to pass. It is also possible that the foregoing could come to pass, and that the volume of fee disputes in those "next cases" might be higher than the 1,000 guess, perhaps much higher. This is all hard to predict, hard to quantify and at this stage simply hypothetical.

There is no basis on which to intelligently guess how many such appeals might be required in coming years. If it turns out to be 1,000 per year, the impact on the appellate system may be noticeable. The financial impact could be significant. 

It is worth remembering that any decision in Castellanos (or the "companion cases") will apply to any fees related to accident dates since the legislative reaction to Murray on July 1, 2009. The decision that is coming would apply to a population of cases spanning at least 6 years, and would affect cases occurring in the future, unless the legislature reacts again. Such a legislative reaction to Castellanos (or a "companion case") would be in 2016 at the earliest, with an effective date potentially of July 1, 2016, making the population of Castellanos fee entitlement 7 years of cases. Thus, a potentially greater population of cases than affected by Murray

To review, Florida waits for the Court's decision regarding the constitutionality of Fla. Stat. §440.34. There are few who predict the Court will find this statute unconstitutional "on its face." That remains a possibility, however remote. The debate seems to be between the Court finding the statute constitutional as did the First District Court in Castellanos, or the Court finding it unconstitutional "as applied" to some facts. 

The outcome of the case will likely affect workers' compensation in Florida either way. A conclusion that the statute is unconstitutional "as applied" may create a population of cases that are similar, but over which the JCCs perceive or conclude they have no discretion regarding constitutionality. The result could be a significant volume of cases requiring trial by the JCCs and review by the First District Court, and the expense and time associated with that review.  The effect of doubling or tripling the annual workers' compensation appellate cases at that Court are also hard to predict or quantify. It is possible that appellate decisions from that Court might take longer after such an increase. 

There are some who therefore see Castellanos' outcome as potentially affecting the very self-executing nature of the Florida Workers’ Compensation Law for some population of fee cases for dates of accident after the 2009 legislative amendments. A population of factual situations "as applied" that require trials and expensive appeals. 

It appears that there are at least ten such fee cases already decided by the First DCA following Castellanos, and concluding there is no constitutional infirmity of Fla. Stat. 440.34. They are Richard E. Zaldivar v. Prieto, ___ So.3d ____ (Fla. 1st DCA 2015);  Gallagher Law Group v. Vic Renovations, ___ So.3d ____ (Fla. 1st DCA 2015); Zaldivar v. Dyke Industries Inc., 168 So.3d 336 (Fla. 1st DCA 2015); Flores v. Vanlex Clothing Corp., 160 So.3d 962  (Fla. 1st DCA 2015); Mayorga v. Sun Electronics, 159 So.3d 1032 (Fla. 1st DCA 2015); Leon v. Miami Dade Schools, 159 So.3d  422 (Fla. 1st DCA 2015); Gonzalez v. McDonalds,  156 So.3d 1127 (Fla. 1st DCA 2015); Diaz v. Palmetto General Hospital, 146 So.3d 1288 (Fla. 1st DCA 2014);Pfeffer v. Labor Ready Southeast, So.3d  (Fla. 1st DCA 2014); Richardson v. Aramark, 134 So.3d 1133 (Fla. 1st DCA 2014). It is unknown how many others may be pending at the First DCA, awaiting that court's action. 

Tuesday, October 13, 2015

No one in Florida is Talking About it?

WorkCompCentral (WCC) reported this week that the Push for Formularies is Gaining Momentum. It appears that the concept is here to stay. With "here" meaning workers' compensation generally. Some wonder if "here" should or even could mean Florida. A formulary is essentially a list of medications that are approved for the treatment of conditions or symptoms. Texas started the idea, implementing a formulary in 2011. It has reportedly resulted in significant cost savings for the workers' compensation marketplace.

We know California will join the list of states with a formulary for workers' compensation claims. That story broke about two weeks ago. The WCC story this week says that Maine, Georgia, and Louisiana may beat California to deployment because they are working on regulation already. North Carolina is on the path, and Arkansas has worked on exploring the idea. What do all of these states have in common? None of them are among the largest state workers' compensation systems. 

Joe Paduda of CompPharma is quoted in the WCC article. He says "a growing number of states are taking up the question" of a formulary. He sees this as a method to reduce spending and to "ensure injured workers are receiving appropriate care." Mr. Paduda predicts that 30 or more states will have a formulary within the next ten years. He says that the enthusiasm is driven by the fact that formularies have been deployed and "are working." I guess nothing spurs expansion like succcess?

Mark Pew of Prium was also quoted. He said that "New York and Florida have the infrastructure in place for a successful formulary," and New York is making some noise about the process. However, he noted that he "hasn't heard anyone talking about it for the Sunshine State." New York and Florida, on the contrary are among the ten largest workers' compensation systems in the country, along with Texas, California, Washington, and Ohio (which have each adopted the formulary concept). 

Eighteen months ago, the Workers' Compensation Research Institute (WCRI) published a report that suggested Florida could benefit from a Formulary. WCRI concluded that a Texas-style formulary could save significant expense in Florida and New York. 

A year ago, I noted that Formularies were in the news. That was when California was reacting to a study by the California Workers' Compensation Institute (CWCI). The CWCI study was an inspiration for California. Its findings likely drove the legislative effort that concluded last month with Governor Brown signing the law to instigate California's formulary. That forumulary will now be in place in 2017. As I type that, I note that we are coming to the close of the second decade of the century. Time is ticking by. Last October, I questioned whether Florida should consider a forumulary. 

In April of this year, I asked some questions about formularies. The benefits are being touted. The concept is spreading across the country. There are those who contend that a forumlary will make medications less expensive. Others claim that additional savings will result from improved prescription behavior, essentially the prescriptions that won't be written if there is a formulary in place. Still others contend that formularies are harmful to injured workers. That has to be part of any conversation; at its heart, this system is in place for injured workers and their employers.

From a variety of articles and posts, formularies are a reality already in Texas, Ohio, Washington and Oklahoma. They are now mandated by statute and under development in North Carolina and California. Arkansas has discussed one, and we hear that Georgia, Louisiana, Maine, Montana and Tennessee are in the process. It appears that by 2017 it is likely there will already be at least 10 of the 30 states Mr. Paduda predicts will adopt formularies before 2025.

Workers' compensation was born about 100 years ago. A small group of 10 states adopted workers' compensation statutes in 1911 according to EH.net. These leaders were New York, California, Illinois, Kansas, Massachusetts, New Hampshire, New Jersey, Ohio, Washington, and Wisconsin. Thereafter, programs were "originally adopted by most states between 1911 and 1920. The concept spread across the country rapidly. In ten years, by 1920 there were 44 American jurisdictions with a workers' compensation law. 

Florida was not among the innovators or leaders. Florida adopted workers' compensation in 1935, about 25 years after the first. Mississippi was last to embrace Comp, in 1948. Will Florida be among the first to adopt a prescription formulary? Will Florida adopt the concept within the first ten years of Texas' innovation? Texas began the movement in 2011. Will Florida be in the 3/5 (30) the Mr. Paduda predicts will adopt formularies in the next ten years? 

When the first decade of formularies concludes, will Florida be in the number? Or will Florida wait 25 years and again be among the last? Will anyone be interested in even discussing it?

Sunday, October 11, 2015

Don't it make my Brown Eyes Blue?

"Eyes are the windows on the soul." Many people have been credited with that quote. Crystal Gayle sang "Don't it Make my Brown Eyes Blue." Bob Marley sang that a man's eye color is irrelevant in his War, lamenting the significance society associates with skin color. Eyes have had their share of attention over the years.

We see a a great many catchy headlines. Let's face it, the writers and editors are skilled at catching our attention. But a story recently posted by Essilor, the "world's leading provider of eyeglass lenses" caught my eye. We have heard a great deal in workers' compensation about pain, and more specifically how to deal with pain. Stories about pain catch my attention.

Well according to Essilor, the color of your eyes is a predictor of how "pain-tolerant" you are. They tout research out of the University of Pittsburgh that they say supports "eye color is related to pre-dispositional traits such as pain-tolerance and alcohol susceptibility." That is a simplification. Eye color does not affect pain. 

Stated more precisely, "the genes that determine your eye color also impact how your body reacts to pain and alcohol." So the color of your eyes are an external evidence that you have certain gene traits. It is these traits that also affect your perception of pain.

Scientists at one time believed humans "had 2 million genes." But more recently, the published belief is that we have "only" about 19,000. Essilor says that "eye color is based on 12 to 13 individual variations in people's genes." One of these genes "is related to darker eyes" and a proteins controlled by that gene "is related to pain" perception.

The researchers at the University of Pittsburgh studied 58 pregnant women. In the field of statistics, that is a very small sample to study. They found "that women with blue or green eyes experienced less pain than women with brown or hazel." The study also concluded that "women with lighter colored eyes also had less anxiety after giving birth and lower rates of post-partum depression," according to the Daily Caller

One of the researchers told MedPageToday that this is "just a pilot study with small number of women." The lead author provided more detail on the methodology of the study. The reaction to pain medication was one of the study factors. They concluded "dark-eyed women had greater pain," according to the study, because of "their increased pain reduction when they were given epidural analgesia." So some portion of the finding is subjective in nature, relying upon the self-reporting of pain and relief from this treatment. 

The lead author also conceded that the pain reduction figures "show a trend," but admitted that "they are not statistically significant." Instead, "there is more of a reduction in pain with the epidural because those with dark eyes appear to have more sensitivity to pain and therefore may get a stronger impact from pain relief treatment." So the gene influence may not be about how we perceive pain, but how susceptible we are to things that relieve pain?

They promise further studies, including "non-pregnant women and would also look at the relationship between eye color and pain among men." This  breadth should help with the author's perception that the current data lacks statistical significance. For such significance, large groups of people from a variety of perspectives will have to be studied in multiple studies. 

An interesting note from the world of modern medicine. How do they come up with these things? Well, one researcher said this idea came from a water-cooler comment about a patient, in which a resident said "see, that woman has brown eyes . . . she is going to be trouble." That points out the value of the perspective that front line observers might bring to a question.

Pain is a an issue in workers' compensation. It will continue to be an issue because injuries result in pain. How we deal with that pain and other symptoms has been opium-focused for the last three decades and the market is looking for other answers. Perhaps a better understanding of how we react to those medications, and why genetically, will help with this. 

We will also see studies of what else influences pain. Last year we heard about the relationship of smoking and pain. It appears that there are many avenues of inquiry that may be relevant to the issue of pain and how we can deal with it, alleviate it, and move forward from it. 

Thursday, October 8, 2015

The Judge, a Bookstore, and State Employment

The constitutional judges in Florida are governed by the Code of Judicial Conduct. The legislature put the same constraints on the Judges of Compensation Claims (JCCs) through Chapter 440. Because the constraints are similar, it is helpful to know what the Code provides, and the interpretations the Court is applying. An interesting case was decided last year regarding Leon County Judge Judith Hawkins.

Complaints against constitutional judges are considered by the Judicial Qualifications Commission (JQC). That body investigates and makes recommendations, but ultimately it is the Florida Supreme Court that determines discipline for constitutional judges. The JQC does not investigate JCCs, that is a job for the Division of Administrative Hearings (DOAH). The process is similar however, with the JCCs, any discipline recommendation is made to the Governor instead.

In case SC12-2495, the Court reviewed a recommendation from the JQC. The Court noted that it "gives the findings and recommendations of the JQC great weight," but rejected the recommendation in this case. The JQC "found that Judge Hawkins has a generally exemplary record," found "mitigating factors," and recommended "serious sanctions short of removal." The Court disagreed and removed the judge from the bench in October 2014.

The case has many points worth noting.

The Judge was accused of using "judicial office to promote a private business," "failure to respect and comply with the law," "failure to act in a manner promoting public confidence in the judiciary," "failure to devote full attention to her judicial office," and "lack of candor with the Judicial Qualifications Commission."

Essentially the judge in this case was accused of using state resources to "operate a private business" from "her judicial chambers, utilizing official time, office space, utilities, equipment and the services of her judicial assistant." She allegedly sold products (a book she wrote) in her courtroom and sold it to "persons over whom she had disparate influence and authority," including "attorneys appearing before her in chambers."

The complaint also alleged that the Judge "would go off the record to avoid having coercive discussions recorded" and to "avoid the recording of inappropriate comments or the sound of magazine pages turning trial." It alleges that the Judge instructed a criminal "defendant to contact one of three lawyers and tell them" the Judge had sent the defendant to them. And it alleges the judge "was often absent, resulting in disruption to those who appeared before her." 

Finally, the complaint alleges that "on the morning of her scheduled deposition," regarding her book-selling business, the Judge "deleted financial information from her private business computer, which records had been subpoenaed for production at the deposition." 

The opinion is a worthwhile read. The responses to the allegations include many instances in which the Judge simply denied the charges raised. So there were factual disputes. 

The hearing panel concluded that the judge was guilty of promoting book sales using photographs of her in her judicial robes, and of "knowingly using her judicial assistant to promote and produce" for that business during state work hours. She was also found guilty of of being inattentive and of failing to devote full time and attention to her judicial office. 

The hearing panel found the judge "guilty of exhibiting a lack of candor before the Qualifications Commission, ignoring the requirements of the law, and evading lawful orders . . . by deleting subpoenaed financial records," and more, including "obstructive behavior, untruthful answers, and attempts to repeatedly frustrate and obfuscate discovery."

The hearing panel concluded that the appropriate sanction would be "a reprimand, three-month suspension without pay, and a $17,000 fine." The Court said the "object of disciplinary proceedings is not for the purpose of inflicting punishment, but rather to gauge a judge's fitness to serve as an impartial judicial officer." 

On the entire record, the Court concluded the Judge's "prior record of service and good intentions cannot overcome the grievous nature of the violations in this case." The Court said the Judge's actions and participation in the investigation "did not show acceptance of responsibility for her actions, or acknowledge their impropriety . . .." The Court concluded this person was not fit to serve as a judicial officer and removed the Judge from office. 

It is a troubling case to read. There are multiple points that are worthy of consideration and discussion. Marketing and selling in a state office? Tasking state staff with functions that are personal in nature? We have seen this in the OJCC. I am not aware of judges selling or marketing, but we have seen state staff asked to perform personal errands. It is not appropriate. 

We periodically hear of some proceeding held "off-the-record." I am a proponent of all judicial conversations being on-the-record. This is for the preservation of the proceedings and protects everyone involved from misunderstanding. The complaint in this case alleged that the Judge "would go off-the-record to avoid having coercive discussions recorded." This raises the question, why would a judge go "off-the-record?" Is there a good reason? There is no reason for a judge to have coercive discussions. Coercion is not a judicial function. 

If a later dispute arises as to why a hearing was not recorded there will obviously be no recording to refer to, and there may be a "he said, she said" disagreement about what was said and why the record was adjourned. Then, without a recording to which one might refer, it could become a difficult task to determine whose version of what occurred is accurate. I recommend all proceedings be on-the-record. Any appropriate statements can be made on-the-record and anything that cannot be on-the-record can likely just go without saying.  

I have seen JCCs make attorney recommendations. The complaint in this case alleges that the Judge instructed a criminal "defendant to contact one of three lawyers and tell them" the Judge had sent the defendant to them. As a young WC practitioner, I often saw similar referrals. There were Deputy Commissioners and then JCCs who did not like cases involving pro-se claimant's (for whatever reason). I recall many settlement hearings in which a JCC made a referral similar to the one in this case. 

What relationship does such a referral suggest? If a JCC recommends that someone hire any attorney, that is a commentary about the litigation process in general. When a JCC recommends a particular attorney, or even a particular group from which to chose, that nay suggest a relationship between the judge and counsel or perhaps an endorsement of the(se) attorneys? That suggestion or appearance of an endorsement is not appropriate. It does not promote faith and trust in the adjudicatory process. 

An interesting read. Some good guidance for adjudicators.