Tuesday, November 28, 2017

Are More People Representing Themselves in Comp?

There have been various posts and comments on social media that contend there is a growing population of injured workers that struggle to find counsel. However, I have yet to see any empirical data that supports that injured workers cannot find counsel to assist them. 

Each year, the Florida Office of Judges of Compensation Claims publishes an annual report required by section 440.45, Fla. Stat. The 2017 report has recently been published. That report addresses a variety of statutorily posed questions. In addition, the report focuses on other topics that have periodically arisen. Since the statutory amendments early this century (2003), one of those other topics has focused on how may injured workers in Florida represent themselves, or are "pro se." 

This question is fundamentally “are more claimants filing their own cases?” This is a difficult question, which cannot be definitively answered by the JCC Application database as it is currently configured. This database was not designed to answer this question, and cannot be readily or inexpensively adapted to do so. Whether a particular claimant is represented or not at a given moment in time (a “snapshot”) can be determined with accuracy. However, this does not answer whether that claimant in fact filed any pro se petition(s) for benefits (PFB). 

For example, a claimant might hire counsel and through that counsel file three PFBs for various benefits. The JCC Application would then reflect three “open” PFBs attributable to a "represented” claimant. If the claimant thereafter ceased to be represented, and filed one pro se PFB, the database would then reflect four “open” PFBs attributable to a pro se claimant, despite the fact that three of those were in fact filed by (former) counsel. If that same claimant then hired a new attorney, who then filed a fifth PFB, the database would then reflect five “open” PFBs attributable to a “represented” claimant, despite the fact that one of those five was in fact filed pro se. This hopefully demonstrates what data can and cannot currently be readily discerned. 

The JCC Application database can report the total volume of “new cases” opened in a given fiscal year and the percentage thereof on a given day that are “represented” or that are pro se cases. Likewise, the OJCC can calculate the percentage of pro se cases, compared to the total volume of PFBs filed during the preceding year. Admittedly, neither of these is necessarily a perfect reflection of the actual population of PFBs that have been filed by injured workers on their own behalf. 

However, these two calculations are the best answer the OJCC can currently provide to the question of pro se litigant volume. The fact that this answer does not precisely answer the question posed, “how many pro se litigants file petitions,” does not alter the fact that this is the best answer that the OJCC can currently provide. The inability to answer the precise question is conceded, explained, and the best possible answer is provided. 

Notably, if the raw number of PFB attributable to pro se claimants remained static each June 30, the percentage would nonetheless have increased in prior years due to the persistent decrease in overall PFB filings discussed (elsewhere in the 2017 report). The same is true for the comparison to new cases, in light of those volumes decreasing early in this century. But, those reported volumes each June 30 have not remained static; they have decreased consistently.

The available data does not support the conclusion that the Florida pro se claimant population is increasing. The data supports that there is fluctuation in the pro se volume and percentages. However, the changes in recent years have not been consistent with any significant trend of increased or decreased pro se participation. Although both 2015-16 and 2016-17 demonstrate lower volumes of pro-se pending petitions, that change (5.09% to 4.38% to 4.09%) could be explained wholly by the increased PFB filing volumes. 

To illustrate, the actual number of pro-se cases decreased only 106 from 2014-15 to 2015-16, but PFB filings increased 7,044 in the same period. The decrease in pro se cases from 2015-16 to 2016-17 was only 66, but PFB filings increased 3,100. Thus, while the percentage of petitions that were pro se on each June 30 is decreasing, the percentage decrease reflects both fewer overall pro se and greater overall petition filings. The same analysis would produce similar conclusions regarding the comparison of new cases to pro se cases. 

The graph above depicts the ratios of “new cases” (blue) and of the Petitions (red) to the population of pro se petitions pending on June 30 of each of the last fifteen (15) fiscal years, most of this century. The time period illustrated encompasses the entire period since Florida's 2003 statutory amendments. These comparisons demonstrate decreases in pro se cases, as a percentage of either "new cases" or Petitions, though these have demonstrated minor fluctuations in pro se participation over the last seven fiscal years. 

The overall trend over the fifteen year period, extending back to 2002-03, was generally to decrease until leveling more recently. The slight increase in percentages in 2012-13 appears to have been statistically insignificant in light of the decreasing figures in the last three fiscal years.

Thus, all three measures demonstrate no evidence of any increase in Florida pro se. The raw number of pending petitions that are pro se each June 30 have shown reasonably consistent decrease. The pro se percentages of both "new case" and Petition volume likewise have demonstrated persistent decrease. While this does not speak to perceptions of pro se participation nationwide, nor in any other jurisdiction, it illustrates that pro se participation in Florida is not increasing by any objective measure.