Tuesday, November 14, 2017

The 2017-18 Annual Report and Litigation Volumes

Each year, the Florida OJCC issues an annual report documenting various metrics of litigation character and volume. Two of these are the rate at which petitions for benefits ("PFB") are being filed and another is a subset of that volume, the rate at which "new cases" are filed. Both volumes have demonstrated, with some minor exceptions, a general downward trend until recently. 

The Florida workers' compensation law requires reporting on the volume of "litigated cases." It is difficult to ascertain with absolute certainty how many “cases” are in litigation at a given moment however, because in Florida workers’ compensation there simply is no clear definition for “cases.” 

Litigation in Florida workers’ compensation is usually instigated with a PFB. A particular PFB filed might seek a single benefit, or many  various benefits. A workers’ compensation trial might decide the issues in one PFB or several PFBs serially filed prior to trial. The overall number of PFBs filed is therefore only one measure of system volume. 

A second measure of “case” volume is the “new case” PFBs filed annually. Each “new case” PFB certainly represents an accident for a particular injured worker that is new to litigation, i.e. “new” to the OJCC. This metric measures “new” litigation, but ignores the intensity of litigation. Conversely, the overall PFB number more accurately reflects litigation intensity.
Each metric is an arguably valid method for measurement of the number of litigated cases. Because there are merits regarding the efficacy of both the “raw PFB” measure and the “new cases” measure, the OJCC calculates and reports each. Notably, each of these metrics ignores a third metric, the volume of litigated cases that are instigated by motion instead of PFB. Although these motions also represent litigated “cases,” it is believed that cases instigated by PFB filing effectively represent litigation volume trends statistically. 

Gross Petition for Benefit (“PFB”) Filing
Significant legislative amendments were enacted in 1994 and 2003. After the 1994 reforms, PFB filing volume consistently increased each year. Just prior to the 2003 reforms, annual PFB filings peaked at 151,021. The progressive increase in PFB filings between 1994 and 2003 belies the efficacy of the 1994 reforms’ intent to decrease litigation. Immediately following the 2003 reforms, the PFB filing volume decreased at a consistent annual rate of approximately fifteen percent (15.21% to 15.9%) over each of the next three years, and then continued to decline with reasonable consistency through fiscal 2013 with the sole exception of a slight increase in 2008-09.

Modest PFB filing increases in 2013-14 and 2015-16 were followed by a marked increase of twelve percent (12%) in 2015-16. Questions were raised in the 2015-16 Report regarding whether a trend was potentially suggested by that significant increase. The five percent (4.6%) PFB filing increase in 2016-17 may be seen as indicating such a continued trend of increased filings. It is notable that the 2016-17 increase, while not as marked as 2015-16, is the second highest increase since 2003-04.

New Case Filing      
The volume of “new cases filed” has been tabulated only since the OJCC was transferred to the DOAH in 2001. The term “new cases filed” refers to the volume of PFBs filed, which represent the first PFB in the history of that particular accident by that particular injured worker. While the overall PFB filing volume may indicate litigation intensity, the rate at which “new cases” are filed is perhaps more indicative of the rate at which cases are entering the OJCC litigation process (volume), and is not as affected by the serial nature inherent to workers’ compensation generally as overall PFB filing.
A “new case” filed in 2016-17 could involve an accident that year, or could involve an accident that occurred years prior, even prior to the 2003 statutory amendments. It is possible that an injured worker might receive all benefits due, without any need for litigation, for many years following a work accident. Such a case may enter litigation after years of administrative delivery of various benefits. The OJCC has not attempted to delineate the age of accidents that enter the OJCC system as “new cases” each year.
The volume of “new cases” filed steadily declined after 2003 statutory amendments. The rate of decline in “new case” filing was, however, less than the rate of PFB decline in almost every fiscal year since 2003. The exceptions are 2009-10, when “new case” filing decreased over ten percent (10%) compared to an overall PFB filing decrease of eight percent (8%); and, in 2013-14 through 2016-17 “new case” filings increased slightly. 

The “new case” filings have not been as elastic as PFB filings. The PFB filings returned to 2001-02 similarity much more rapidly than “new case” filings. While there has been some parallel in the trend each demonstrates, the PFB filings have changed more dramatically. In the 2014-15 Annual Report, suggestion was made that the downward PFB trend might be ending. The data since that time substantiates that prediction. However, the extent of that change, as well as duration, remains to be seen.


In summary, the available data supports several conclusions. First, the trend since 2013-14 has been to increasing PFB volume. Second, the volume of “new cases filed” historically decreased, and then rebounded at a much slower rate than PFB filing. Third, the PFB volume has increased, but nonetheless remains below the volumes demonstrated before and immediately after the 2003 reforms. Finally, though the percentage share of “new cases,” compared to the overall PFB volume, has moderated notably in the last two years, it remains significantly higher than prior to the 2003 reforms. 

This data does not support that constraints on the litigation process, that is the 2003 statutory amendments, are decreasing the litigation of issues in claims occurring after those revisions. The data appears to support the contrary, that litigation involving new claims has decreased after 2003, but now remains reasonably consistent, while litigation on previously filed claims has more significantly fluctuated over time.

Observers strive to reach conclusions explaining the fluctuating litigation levels. The changes in attorney fee calculation are mentioned, as are the changes in Florida's economy (the "great recession" and the "housing bubble"), as are the overall indications that workers' compensation injury rates are continuing to decrease.