Thursday, September 6, 2012

The Old Gray Mare She Ain’t What She Used to Be


Change is inevitable. Sometimes change means improvement, sometimes not. Most often what it means depends upon your vantage point. The practice of workers’ compensation may not be what it used to be, and perhaps referring to it as an old gray mare is not fair. However, I hope the headline caused you to read at least this far.

The September 1, 2012 edition of the Florida Bar News announced that three attorneys were recently awarded the distinction of Board Certification in Workers’ Compensation.  There are Daniel Gonzalez of Miami, Michael Rabinowitz of Tampa, and Russell Young of Sarasota. As I try to do each time such an announcement is made, I drafted a quick congratulatory letter to each this week.

I was posting the letters when I encountered some attorneys. I mentioned the purpose of my correspondence and mentioned I would like to write them a letter also. One replied that there is no reason to counsel a client to take any case to trial when it can be settled advantageously. This is certainly true. Another intimated that workers’ compensation trials are not the way to keep the lights on at his office (suggesting that settlements are). Certainly there is merit in negotiated resolutions through settlement or otherwise. 
Their comments got me wondering about the practice of Comp and whether the environment today allows certification and recertification, with the perceptions of fewer trials each year.

Coincidentally, work began in earnest this week on the 2012 OJCC Annual Report. Do the statistics support that trials in workers’ compensation are declining? In fiscal year 2012 the OJCC conducted 1,903 “trials.” Trials include merit hearings on benefits requested by injured workers, fee hearings, and a variety of evidentiary motion hearings such as motions for advance, motions to enforce settlement, and motions to appoint expert medical advisors.

Review of prior reports illustrates that the volume of Florida workers’ compensation trials has not changed markedly in recent years.


2006-2007    1376
2007-2008    1760
2008-2009    1920
2009-2010    2080
2010-2011    1888
2011-2012    1903


Although, the 2006-2007 volume seems low, that figure resulted from data reported by the various districts, without any uniform definition of what constituted a trial. It likely included only the merits hearings conducted that year. Certainly, there are fewer trials now than there were in the 1990s. However, the evidence supports that there remains a significant trial volume. I suspect that there are attorneys out there who have prosecuted or defended 25 trials, and are eligible for certification.

There are currently 207 attorneys Board Certified in Workers’ Compensation in Florida. As of June 1, 2012 there were 93,895 members of The Florida Bar. That number has likely changed since that time, and the results of the July 2012 Bar Exam will certainly change those numbers in coming weeks. However, using that figure as a benchmark, roughly two-tenths of one percent of Florida lawyers is Board Certified in workers’ compensation. 

Overall, about 4,880 attorneys are Board Certified according to the bar website, www.flabar.org.  This is roughly 5% of all Florida attorneys. The various areas of specialty are

Admiralty and Maritime
57
Adoption Law
19
Antitrust and Trade Regulation
16
Appellate Practice
174
Aviation Law
32
Business Litigation
239
City, County & Local Government Law
225
Civil Trial
1083
Construction Law
292
Criminal Appellate
57
Criminal Trial
379
Education Law
39
Elder Law
94
Health Law
121
Immigration & Nationality
60
Intellectual Property Law
135
International Law
37
Labor & Employment Law
190
Marital & Family Law
280
Real Estate
450
State & Federal Government & Administrative Practice
104
Tax Law
248
Wills, Trusts & Estates
342
Workers Compensation
207
Total Board Certified Attorneys
4880

To be Board Certified in workers’ compensation, an attorney must have practiced for 5 years, with 30% or more of their practice over the preceding three years in the practice of workers’ compensation law.  A minimum of 25 contested workers’ compensation trials, all involving substantial legal or factual issues, a peer review, 45 hours of continuing legal education within three years prior to the application, and successful completion of the Board Certification examination.

Admittedly, the application is a challenge. However, with the case-search now available on the OJCC website it is much less of a chore than it used to be. An attorney can search their name in the Google search and find those trial orders. This will provide you the case numbers, the opposing counsel details, and the issues that you need for that application.

I am proud to be Board Certified. I am proud of our Judges who are Board Certified, Judges Lorenzen, Murphy, Rosen, Sculco, and Sojourner. I am proud of our Mediators who are Board Certified, Mediators Suskin and Witlin. I am proud of our former Judges who are Board Certified, Juan Bello, Gary Frazier, and Richard Thompson. I am proud of our newest Specialists, Daniel Gonzalez, Michael Rabinowitz, and Russell Young. I am proud, in fact, of all 207 attorneys that have achieved and maintain this designation of “Specialist.”

 It is my hope that attorneys will read this and conclude that they would be proud to be Board Certified also. If you reach that conclusion and I can assist you with research on your trials and trial orders, contact me at david_langham@doah.state.fl.us