Sunday, January 8, 2023

No Reply, No Reply at All

In another age, Genesis brought us No Reply at all (Atlantic 1981). The Lyrics include:
"… I get the feelin' you're tryin' to tell me,
Is there somethin' that I should know?
What excuse are you tryin' to sell me?
Should I be readin' stop or go?
I don't know
There's no reply at all, There's no reply at all, No reply at all"
There is an old idiom about the other side of the eight-ball. Another essentially says "if you are in a hole, stop digging." The inverse is also likely solid advice: "if you are in a hole, start working on climbing out." I ponder a recent order I read, and it leads me back somewhat to a post I authored about a California attorney's woes Don't Double Down (June 2017).

I have been more decades in the litigation business than I like to think about. Sure, I am not yet one of the old-timers, but my spring ended long ago. I can be difficult to get along with sometimes, resistant to change, and perhaps am a bit forgetful in my day-to-day. More than once during the preparation of the recent 2022 OJCC Annual Report, I overlooked an order or two for too long in my preoccupation. We can all get distracted, behind the eight ball, or simply overwhelmed. And, not everyone is as lucky as I am - several people keep an eye on tasks and send me reminders periodically (I am grateful for their prompting, or perhaps scolding).

Without naming the case, some history is perhaps in order in this instance. The case I recently reviewed started in the usual manner. A petition was filed seeking benefits. There was a dispute regarding medical benefits, which is also not unusual at all in this system. But, the dispute, in this case, became contentious, and delaying, and was ultimately submitted to the court for partial resolution. Not the JCC, the Circuit Court.

Well, in fairness, it started with the JCC. The parties to a case had set a doctor's deposition to clarify some points (in the doctor's defense, many such depositions are taken every year, and too often they merely reiterate the records or reports and serve no real purpose; I have had doctors complain that they sometimes feel harassed by such experiences). The doctor failed to appear initially and was ordered to appear in February 2022. He did not. He was ordered to appear and failed again in June 2022. 

 The JCC noted that these were lawful orders and that the statute says "the judge of compensation claims shall certify the facts to the court having jurisdiction" in such situations. The Circuit Court is to conduct summary proceedings. The JCC order in this instance is detailed, and frankly demonstrates a great deal of effort and restraint in terms of affording the doctor multiple chances to appear. Last fall, the Circuit Court acted, issuing an Order to Show Cause. The physician had to testify in the Circuit Court regarding the failure to appear. As much as a deposition is an interruption of the day, and perhaps an annoyance, I suspect that an appearance in Circuit Court is more disruptive.

The Circuit Court ordered the doctor to appear for deposition in the case. The Court stated the date and location for the deposition and added:
"Should Dr. __________ fail to appear live for this duly scheduled deposition, counsel shall provide a certificate of non-appearance to this court and this Court will issue a writ of bodily attachment without further hearing. The writ will be executed and Dr. _____________ will be taken into police custody and held in the __________County Jail until he can be brought before the·undersigned judge for further contempt proceedings."
That is an attention-getter. If you don't appear for the appointment, the police are likely coming to get you and house you until you can appear in court again. In the spectrum of consequences, this one is serious. No one, literally, wants to be locked in a cell. 

In reachint this conclusion, the Court also specifically rejected the doctor's excuses regarding the failures to appear. The judge found the doctor's explanations "inconsistent with the record evidence" and noted the "repeated" efforts to obtain this testimony (the restraint and patience noted above). The Court concluded that the doctor "offered no reasonable explanation as to why he failed to comply." Of particular note (when to stop digging), the Court noted that the doctor was aware of the Circuit Court Show Cause hearing, and "still failed to avail himself of "the purge provision and contact (the) Plaintiffs counsel to arrange for his deposition to be taken." See, when the Circuit order to show cause arrived, the doctor could have made that deposition happen and avoided the Court proceeding. The doctor did not. 

The Court noted that the failures had resulted in delay for the injured worker and employer to have their day in hearing with the JCC. It concluded that when doctors treat workers' compensation patients, they "owe() that patient a duty of reasonable cooperation within that system and compliance with its orders."

The court labeled the failure to appear as "gross negligence amounting to willful and wanton, and exhibiting a total disregard for his patient and the workers' compensation system." and thereupon imposed sanctions. The Court scheduled a follow-up hearing for counsel to report on the outcome of the deposition it had compelled and awarded the claimant's attorney fees from the doctor regarding the efforts at compelling this attendance.

The Court ordered that the Order to Show Cause and the order thereafter (ordering the appearance, imposing the threat of jail, attorney fees) would "be sent to the Department of Professional Responsibility. That is a significant event as well, perhaps.

And, that reminds me of an old poem about a nail, by an author or authors unknown:
For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.
Small things can turn into big things. Big things are likely to be accompanied by big consequences. When the situation begins to go astray, it makes sense to address it. In Respond Before the Trouble Starts (September 2022), I noted
"Mistakes will happen. Challenges will arise. Requests may come. The time for addressing each is immediate. Recovery from not appearing at the contempt hearing or not responding to the records request is far more arduous."
When the JCC orders behavior it is best to comply. If you cannot, will not, or should not, then certainly respond. If you commit to doing something (appear), do so. If you cannot, communicate. If you find yourself with a Circuit Court order to show cause that includes a "purge" paragraph that allows you to end the whole misadventure by simply complying, in this case appearing, you should take it seriously, immediately, and sincerely.

JCCs lack the authority to hold someone in contempt. They might impose financial penalties, such as attorney fees or costs for a proceeding. Or they might refer the matter to the courts, which can impose contempt. I struggle to imagine what would make me miss an appointment if the downside might be my immediate arrest and detention in the local jail. Before it gets to the Circuit Court, such instances can be fixed. That may require time, but likely less than is invested in show cause proceedings.

In the end, a simple nail. At any point, there were persistent chances for redemption, remorse, and remediation. But, in the end, there was an embarrassing cause order, a circuit court hearing, a finding of "inconsistent" explanations, a finding of "gross negligence amounting to willful and wanton," and an imposition of attorney fees. In the end, at least a rider, perhaps a battle, perhaps more. All for the want of a . . . nail" (showing up).

It is troubling, disappointing, and worthy of reflection. When you find yourself in a hole, own it. Stop digging. And look for the path that leads you out. Certainly, any hole may have consequences. But the deeper it gets, the more profound those may be. Quit digging. Fix the problem, learn from the experience, and move on. Unlike wine, such instances rarely get better with time. Though some might go away, the case might settle, it is not the way to bet when your good name hangs in the balance. 
"What excuse are you tryin' to sell me? . . . .
There's no reply at all, There's no reply at all, No reply at all"