Suspended for 180 Days for $450.00

An injured worker hired an attorney to assist him with a workers' compensation claim. The case proceeded without incident, until it settled in May 2010. The Motion for Approval of Fees and Child Support Arrearage was filed in the typical format. The settlement was for $5,000.00, and the fee payable to counsel was to be $1,000. The motion stated that costs were $0.00 and that the Claimant would receive $4,000.00.

To this point, likely everyone is on the same page, and this seems rather elementary. About one month later, however, the situation becomes extraordinary. The injured worker writes to the assigned judge, upset that he received not $4,000.00 but $3,550.00. The injured worker included a copy of his settlement check ($3,550.00) and a "ledger" he had received with the check. The "ledger reflected $450.00 in "costs" that had been deducted from the injured workers' settlement proceeds, after the entry of the approval order. This was comprised of $2.00 for "office expenses" and $448.00 for "investigator fees."

The assigned Judge entered an order to show cause, reflecting these allegations, and noticed a hearing. The order was clear. Claimant, the attorney, and the "investigator" were to appear at a hearing in regards to the Show Cause Order. The hearing was to occur approximately one month later. The attorney sought and received a short (30 days approx.) continuance of the hearing until August 5, 2010. On that date, despite having sought continuance and thus agreed to this date, the attorney did not appear for the hearing, did not seek leave for his absence, and did not notify the assigned judge of any reason for an inability to attend. In his stead, the firm's bookkeeper, a firm legal assistant, and the firm's "investigator" attended. 

The firm's "investigator" testified. He was neither a paralegal, an attorney, nor a licensed investigator. The Judge found that his testimony supported that the investigator's duties were primarily clerical. The Judge concluded that the services performed by the investigator were "surrogate legal services for which the" law firm "bills in addition to services performed by his legal assistant."  

The firm bookkeeper testified that the reduction of $450.00 was an error, and should have been paid from the approved fee of $1,000.00. She committed to "immediately" reimburse the injured worker. It is perhaps curious to the reader that this did not occur in the sixty (app.) days after the order to show cause and prior to the hearing. 

The Judge concluded that the settlement documents filed were "false and misleading," and specifically that the statement, that no costs were charged related to the settlement, demonstrated a lack of candor towards the tribunal. The Judge noted the failure of counsel to appear for the hearing, and that this demonstrated a "lack of competency in the legal representation" and "inadequate or insufficient attorney oversight" of the firm staff involved. The Judge ordered the reimbursement of the $450.00 and referred the matter to The Florida Bar. 

The attorney responded with an angry and inappropriate letter to the Judge, peppered with slurs, hyperbole, and errors. When compelled by The Bar to respond to the complaint, the attorney sent The Bar a similar (almost the identical letter").  In March 2012, The Bar filed its Formal Complaint with the Supreme Court, and concluded that the attorney had violated the following Rules Regulating The Florida Bar: 

4-3.3 (Candor Toward the Tribunal); 4-8.2(a)(Impugning Qualifications and Integrity of Judges or Other Officers); 4-3.4(c) (A lawyer shall not knowingly disobey an obligation under the rules of a tribunal) and 4-1.1 (Competence).

On April 16, 2013, the Supreme Court issued its decision. The attorney was suspended from the practice of law for one hundred eighty days, and ordered to pay The Bar $1,451.41. On October 13, 2013 the attorney will be eligible to renew the practice of law in Florida.  Eligible is a critical word. The attorney cannot just renew the practice in October. 

According to Rule 3-7.10, a lawyer who is suspended for 91 days or more may be reinstated and eligible again to practice by filing a petition for reinstatement with the Supreme Court. The filing must be accompanied by proof that the attorney has deposited the reinstatement proceeding cost with The Florida Bar, and evidence showing "all costs assessed" have been paid and "restitution has been made."  Then there is a reinstatement hearing before a referee appointed by the Court. The details of this are in Rule 3-7.10. It is a lengthy rule. Suffice it to say that reinstatement does not appear to be an easy process. The burden of proof is on the petitioning attorney, who must prove entitlement to reinstatement, The Florida Bar v. Cohen, 560 So.2d 785 (Fla. 1990). The evidence must be clear and convincing. 

Over $450.00? Is that what a license to practice law is worth in today's market? The costs of the original disciplinary proceeding ($1,451.41) are over three times the $450.00 in costs deducted from the injured workers' settlement proceeds to begin with. It is possible that the reinstatement proceedings cost deposit will be similar. 

over $450.00?

They Should Open a Resort There

I read recently about a malady called electromagnetic hypersensitivity (EHS). Some claim five percent of the U.S. population (that is 313,914,040 x .05 or about 16 million of us) suffers from this affliction.  To avoid electromagnetic energy, some sufferers have constructed special living spaces in their homes.

Sufferers allege that they suffer “facial flushing, twitchy muscles, burning or itchy skin, chest pain, headaches, sleep problems, mental for, rapid heartbeat, ringing in the ears or hearing problems, nerve or muscle pain, nausea, and chronic fatigue.”  You can decide for yourself if you buy into the malady, its prevalence, etc.

One solution though, and this is the real point of this blog, is to avoid the energy. That seems a little unrealistic in America, at first blush. We live in a society surrounded by cell phones, WiFi hotspots, television, and more. But, the cited article notes that there is an oasis in West Virginia. They describe an area called the U.S. National Radio Quiet Zone. This is described as a 13,000 square mile area where electronic signals are all outlawed. See, there is a radio telescope and a military facility of some kind there, and the electromagnetic signals from all of our conveniences is thought to be potentially troublesome to these facilities. So the law has created or preserved this electromagnetic energy oasis.

This has people with EHS moving to Green Banks, West Virginia, a town with a population of 147 souls and no electromagnetic energy.  Whether you believe in the malady or not, though, would this not be a great place for a resort? Imagine getting away to a place with no television, cell phones, or other distractions. I sometimes daydream of the day that I can stand on a pier somewhere and try to skip my cell phone on the calm waters of some secluded lake!

Don’t get me wrong, I am a technology believer, you all know.  I see many advantages to the leveraging of technology, to save attorneys and the whole workers’ compensation system time and money. But wouldn’t it be nice once in a while to be able to get away from the pressure. In building a convenient world, we have made ourselves so accessible and so connected, that we have trouble detaching ourselves. Yesterday, I exchanged emails from 35,000 feet as I flew around Florida. Most of us respond to emails from home or work interchangeably, seven days a week. I know few lawyers today that do not carry their internet and email around on their belt or in their purse.

By doing so, are we creating too much stress? Are we allowing ourselves the chance to unwind and relax, so that we can attack the next day with some well deserved rest?

A quote I once heard attributed to Justice Potter Stewart (for which I cannot find any authoritative support today) went something like “I could never get my work done in twelve months a year, but never had trouble getting it done in eleven.” The point being, whoever said this, is that rest and detachment from work can reinvigorate us for the next task.

Perhaps Green Banks would be an ideal location for a resort where we could go to escape the distraction or attraction of all this technology once in a while. Somewhere we could be free of the temptation to check our email constantly.

Or, perhaps we need to just learn to ignore the email and phone once in a while. For me, not having time to travel to Green Banks, I am going to try turning the iphone off once in a while.  

Can "Jake" Authorize a Change in Physician?

I enjoy the creativity in advertising. I have to remind myself that they are all just trying to push a product, one which I would not likely even consider without their advertising. I am often struck by the humor in advertisements. I find that the product name and purpose rarely sticks with me, but the humor I remember. I recently read the Court's decision in Hinzman v. Winter Haven Facility Operations, Case 1D12-2382 (Fla. 1st DCA, February 18, 2013). The date on that will show you how far behind I get in my reading sometimes. 

Hinzman addresses Fla. Stat. §440.13(2)(f), concluding that the statute is self-explanatory. The opinion does not quote the statute, so here it is:

"(f) Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary." (Emphasis added).

The critical language is the “5 days” language. In Hinzman, the Claimant argued that this meant “calendar days” and the Employer/Carrier argued that this meant “business days.” The Court sided with the “calendar days” argument, noting that the statute’s language is “clear and unambiguous” and that therefore the Court “should rely on the words used” and should not “speculate as to the legislature’s intent.” 

The court also noted that the legislature specifically used “business days” elsewhere in Fla. Stat. §440.13. The Court does not cite those examples, but they are quickly located, see Fla. Stat. §440.13(2)(e)(specific objections to the proposed course of treatment by the close of the tenth business day); Fla. Stat. § 440.13(3)(b) (“by the close of the third business day”), Fla. Stat. §440.13(3)(d)(“by the close of the third business day after receipt”), Fla. Stat. §440.13(4)(a)(“ by the close of the third business day following the first treatment”). 

The Court concludes that if the legislature had intended Fla. Stat. §440.13(2)(f) to provide for five “business days,” then the legislature would simply have said so as it did in these other provisions. 

This made me think of a funny commercial (still not positive of the product or the company), in which a man is standing in his dark living room on the phone saying “yeah, I am married; does that make a difference,” as his wife comes down the stairs and accuses him of being on a secretive call. He professes that he is talking to “Jake” and the wife takes the phone and asks what “Jake” is wearing, and upon speaking to “Jake” and hearing he is wearing Khakis, she says “she sounds hideous” or something to that effect. 

Our “take away” is supposed to be that Jake’s company provides such expansive service that we can expect to speak with them 24/7 if we do business with them. I have heard and seen similar commercials. There is a series for one insurance company where singing their jingle will purportedly cause your agent to appear before you much like Barbara Eden in I dream of Jeannie. These are entertaining ads.

Back to Fla. Stat. §440.13(2)(f). It is possible that a request for a change in physicians could come to the insurance carrier or third party administrator at 4:55 on a Friday afternoon. Saturday comes and that is one day. Sunday passes the second day. Monday is the third day. Returning to work Monday, the adjuster needs to jump on this request as time is running out. Tuesday is the fourth day and Wednesday is the fifth. By the end of Wednesday, or arguably by 4:55 Wednesday if a “day” is 24 hours, “the carrier shall authorize an alternative physician.” The adjuster in this scenario has really just three days to accomplish this task. Of course with Memorial Day, Labor Day, Martin Luther King day (which are on Mondays) and other holidays that may fall on Mondays or Fridays, this time could be reduced effectively to two days. A request on the Wednesday before Thanksgiving would require authorization by the end of the following Monday. Really just one day afforded in that instance.

Carriers and employers need to understand that these constraints exist. They may wish to consider establishing processes that allow “Jake” or others like him to run with this change of physician request in the wee hours of the morning or on weekends and holidays. A twenty-four hour per day "Jake" department may be needed. Perhaps there is even room in the process for some “what if” planning in which consideration is given early on as to what physician change would be provided “if” such a request were made?

Whatever the reaction, the Hinzman logic is hard to argue with. If the legislature had intended otherwise, they could have said so. It may make returning to work on the Monday after Thanksgiving as a claims adjuster quite a treat. 

A Proposal for Compromise from a Reader

Editor's note, the following came to me by email from William Gregory, a Florida Workers’ Compensation attorney with 28 years experience with offices in Miami and Orlando. He proposes a statutory change in the way attorney's fees are calculated. Such change is beyond my role in this system, but he asked that his email start a dialog. Therefore, the following is published for your consideration and comment. The remainder of this post is his email, verbatim. Let him know what you think. If you have an idea you think would improve Florida, send it to me and I will likewise publish it for discussion, david.langham@doah.state.fl.us

During the first 16 years of my practice, I worked with my father, Robert H. Gregory, a “dyed in the wool” Workers’ Compensation Defense Attorney, who practiced for greater than 50 years before he hung up his shingle, but even when sharing office space with my father, I handled Claimant’s cases where there were no conflicts with my father’s defense cases– so over the years, I have represented both Claimants and Employer/Carriers, but for the last 12 years or so I have primarily defended Employers (Insured, Uninsured and Self-Insured), Insurance Carriers, Third Party Administrators, Professional Employer Organizations (PEO), etc. all across the state of Florida. 

I am writing to you because, although I know that there are quite a few organizations that have websites offering discussions on virtually anything that has any relevance to Florida’s Workers’ Compensation Law, I believe that you would be the best person to assist me with bringing forth a state wide discussion among all of the attorneys who practice in the area of Workers’ Compensation Law. I want to propose a change to F.S., Section 440.34 (1) that I believe will benefit everyone involved in Florida’s Workers’ Compensation Law- no matter which side they are on and I am hoping that if the majority of Workers’ Compensation Attorneys across this great state agree with me that the change I am proposing will benefit all, that such a majority agreement will result in a petition to our Legislature to make this change.

I have been practicing quite a while and over the years I have handled cases in virtually every jurisdiction and ever since the amendments to our law in October of 2003, it has been my experience that we can no longer settle cases cheaply, as it now typically costs approximately a minimum of $5,000.00 to settle even the low value cases, i.e. “nuisance value cases”, of which there are many examples – with the most common example being where the injury in dispute is minor, but the cost of litigating it is great. I am sure all of us can remember a case that should have been settled cheaply, but under the present statutory scheme could not be. 

We frequently see Employers who swear that they have never employed the Claimant or even heard his name before, but that allegedly wrongfully accused Employer, who desperately wants to get out of this case cheaply, must nevertheless hire an attorney and spend thousands of dollars just to exculpate himself from the pending litigation. Claimants run the risk of getting stuck paying large cost awards if they having to litigate a simple case involving basic issues (compensability, AWW, TPD/TTD, etc.) that otherwise should have been settled for a reasonable amount. 

Many times, we, as experienced attorneys (both Claimant’s Attorneys and Defense Attorneys alike), know that it will be in our client’s best interest to settle the case as quickly and as cheaply as possible, rather than proceed to Court. We used to be able to settle these types of cases for much less than $5,000.00, but it appears to me that it is the statutory scheme mandating an attorney fee of no more than 20% of the first $5,000.00 in benefits obtained, which we all know results in an attorney fee of merely $1,000.00, that is the cause of this increase in the amount of minimal settlements. Clearly, higher minimal settlement amounts hurt the industry. After the Claimant’s Attorney spends his/her valuable time meeting with the Claimant, signing the Claimant up as a client, filing their Notice Of Appearance, filing their Request To Produce, filing their Petition For Benefits, setting up the new file, etc., that Attorney has professional time invested in the file and will not settle the case unless that Attorney is at least minimally compensated for the time already expended. 

Furthermore, both Attorneys involved know that it will cost the Insured Employer or Uninsured Employer $5,000.00 or more to defend even a very questionable claim. However, the present attorney fee statute virtually forces the minimal settlement amount to be $5,000.00 because that is the minimal amount of money necessary to minimally compensate the Claimant’s Attorney for the time they have expended on this matter. Typically, such claims are filed and Defense Counsel gets involved and initiates discovery – usually beginning with the Claimant’s deposition and then proceeding to depose any witnesses to the alleged accident, followed by the depositions of any Health care Providers involved and all of this costs quite a bit of money and as these cases proceed to trial, both the Claimant’s Attorney and the Defense Attorney are continually spending more and more time and resources on the case, which further increases the costs of the case and makes it harder to settle for a reasonable amount, but by that time we have the benefit of hindsight and realize that the amount of money spent on litigating the case would have been better spent settling the case and ending it once and for all. Wouldn’t it be great if the law enabled and encouraged attorneys to settle cases cheaply?

I propose that it would be in the best interest of both Claimant’s and Employers if F.S., Section 440.34 (1) allowed attorney fees up to 50% of the first $5,000.00 - instead of just 20% - because it would enable the lesser value cases to be settled for less than $5,000.00. I believe that there are numerous reasons why such a change would benefit both parties to these cases. It would enable these types of claims to be settled for $2,000.00 or $3,000.00 instead of the $5,000.00 for which they are typically settled now. It would enable the Claimant’s Attorney to be paid a reasonable attorney fee even with a smaller settlement, which would encourage settling cases for lesser amounts and less costly settlements would obviously also benefit the Employer, who would pay less to settle such cases. 

Such a change in the law would provide both the Claimant’s Attorney and the Employer’s Attorney with a way to help their respective clients by providing a quick and cheap way to get out of a case that is becoming too costly to stay involved until the time of trial. Such a change in the law will cause the attorneys to pause and consider a less costly settlement at the beginning of such cases and it will also benefit the overly congested Court System by reducing the number of cases proceeding to trial. Since all Claimant paid attorney fees must be approved by a Judge, this minor change would not result in lesser protections for the Claimants. I am of the opinion that the change that I am proposing herein would benefit Florida’s Workers’ Compensation System as a whole.

Judge, will you help me get this discussion going statewide by disseminating my idea of changing F.S., Section 440.34 (1) to all of the attorneys practicing Workers’ Compensation Law in Florida? What do you think of my proposal?

Get me a Huge Soda Please

Sugar sweetened drinks were in the news recently. New York sought to limit access to sugar sweetened drinks by banning sales of drinks larger than 16 ounces. When that plan was announced, many asked how this effort would change anything. If the cups/bottles had to be smaller, wouldn’t people just buy two or three cups/bottles to obtain the volume of soda to which they were accustomed? Well, a New York Supreme Court Judge invalidated the ordinance recently, calling the limitation “arbitrary and capricious.” Maybe there are some rights for American Citizens?

After New York enacted their ordinance, Mississippi municipalities considered similar bans. There, the legislature stepped in and passed a law that clarifies any such restriction would have to be statewide, thus removing discretion to regulate soft-drinks from cities and towns. Mississippi Governor Phil Bryant signed the bill into law in March, it became law immediately. Mississippi has the nation’s highest obesity rate in the country, with almost thirty-five percent of the adult population meeting that threshold. The Center for Disease Control has a map on its website illustrating obesity rates across the country.

Meanwhile, MedPageToday reports that sugar-sweetened beverages accounted for 184,000 deaths worldwide in 2010. Many of those were in Latin America and the Caribbean. However almost 25,000 of the total were in the United States. The actual causes of death related to the sugar consumption included diabetes, cardiovascular disease, and cancers. At this rate, sugar sweetened beverage deaths approach the prescription drug overdose death rates.

Risk and Insurance reported in January that comorbidities significantly contribute to the cost of workers’ compensation claims. In fact medical costs in cases with comorbidities are about $6,000.00 higher. A “comorbidity” is any medical condition that complicates the care for the work accident, The study concluded that obesity comorbidity rates tripled in workers’ compensation claims between the turn of the Century and 2009. The comorbidity rates for drug abuse and hypertension are even worse; each quadrupled in the first decade of the new Century. 

With about 155 calories in the average 12 oz soda, calories can mount quickly; that’s about 13 calories per ounce. There is debate as to the appropriate daily caloric intake, but the range of 1900 to 2500 calories is stated by a variety of authorities. This means that one 12 oz. soda is between 6% and 8% of total daily recommended intake. One convenience-store offers a “super” sized soda that is over 40 ounces; one of these is about 525 calories, to 21% to 28% of the entire day’s recommended caloric intake. 

So is the “super” sized soda the villain? The Mayor of New York insists that it is, and vows to appeal the Court’s recent invalidation of his ordinance. Is Mississippi on the right track, moving toward statewide efforts to address sugary drinks? Will the comorbity of obesity continue to grow, along with our individual waistbands?

Compelling questions that will continue to be in the news in months and years to come. I will take my "Big Gulp"® to go please, and can I get an self-service egg roll with that?!

The Failure to Prosecute Conundrum

There has been clarity recently in the attorney fee litigation process. The First District Court of Appeal held that when an attorney fee issue remains pending in a case, the petition for benefits that initiated that claim will likewise remain open. Longley v. Miami Dade County School Board, 82 So.3d 1098 (Fla. 1st DCA 2012). When this decision came down, there was much discussion among the employer/carriers and the attorneys that represent them. There was a similar volume of discussion by claimant’s attorneys, albeit from a different perspective. This is to be expected, the perspectives of these two diverse groups is rarely coincident.

Intertwined in this analysis was the proposal regarding compelling attorney fee motions, which arose in the last rules cycle, and which resulted in Rule 60Q6.124(4)(“Upon motion by any party, the judge may require the claimant to file a verified motion for attorney’s fees and costs and adjudicate the verified motion for attorney’s fees and costs.”). There is an old adage in the insurance industry, “a good claim is a closed claim.” Frankly, I think there are many on both sides of the table who feel that way, at some point, in most claims.  This thought process drove the effort to have some way to bring attorney fee issues to the fore in the appropriate setting, thus the Rule.

Since this became the Rule last fall, there have been many such Motion to Compel Verified Motion filed (please note that the rules no longer reference “verified petitions” for fees, but instead we have transitioned to the “verified motion,” see Rule 60Q6.124(3)(a)). I have seen some Motions to Compel granted, others denied. I periodically hear from both sides that there seems little consistency with this process. 

I have even more recently seen a few Motions to Dismiss for Failure to Prosecute, pursuant to Fla. Stat. §440.25(4)(i)(“A judge of compensation claims may, upon the motion of a party or the judge’s own motion, dismiss a petition for lack of prosecution if a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown”). The employer/carriers in these instances are not seeking to force prosecution of the fee issue (whether entitlement or amount) as under the Rule. Under the statute, they are seeking dismissal of the fee issue, just as with any other failure to prosecute.

The constriction of fees passed in 2009, which removed the “reasonable” from Fla. Stat. §440.34, and eliminated much of the hourly fee entitlement from Chapter 440, has increased the importance of determining the "value of benefits obtained." Many great attorneys historically felt that this finding was important under the prior versions of Fla. Stat. §440.34, and did significant work to document and value the benefits obtained. 

However, the current fee statute makes this factual work critical to the fee. Attorneys struggle with the fact that a reasonable determination of this fact may not be practical or even possible until many months have passed. During the passage of time, claimed benefits are provided, and may lead to other benefits being provided. This will be particularly true in compensability cases and many medical benefit claims, where a significant volume of benefits may result over time from one critical determination early in the litigation.

The Judge is therefore presented with conflicting interests. The E/C wants a closed file, the claimant's counsel finds it too early to viably determine the value of the benefits. Thankfully, this is not alien to the judge. Conflicting interests are what we do. There will be many cases in which one interest will outweigh other interests, and a determination will be made. Obviously, most such decisions result in one party finding the Judge’s decision brilliant and the other finding it intellectual refuse.  

It is recommended that parties discuss these situations. The “good faith” requirements of Rule 60Q6.115 (“Except for motions to dismiss for lack of prosecution . . .”) specifically do not apply to motions to dismiss for failure to prosecute. It is therefore probable that the discussion in these instances will not occur before the motion is filed. However, once the motion is filed there should be a good faith discussion regarding the subject of the subject motion. 

There may be circumstances in which the facts would preclude the dismissal of the fee claim. There may be others in which the balancing of considerations will result in denial of the motion to dismiss, despite the existence of seemingly sound factual grounds. In either instance, a withdrawal of the motion might be an appropriate process to conserve judicial and attorney resources. In yet others, the dismissal may be the appropriate outcome. 

The Circumstances’ Existence is not Enough

Time and again a party files that motion to continue next week’s final hearing. Certainly, there are an abundance of circumstances that necessitate such a continuance at the last minute. People become ill, experts cancel or truncate depositions, witnesses ignore subpoenas. These are examples, and certainly do not constitute a definitive list. The requirements of Fla. Stat. §440.25 are reasonably clear. Trials will occur within 210 days of filing (Fla. Stat. §440.25(4)(d)). 

Continuances will be afforded when circumstances necessitate (Fla. Stat. §440.25(4)(b) “continuances may be granted only if the requesting party demonstrates to the judge of compensation claims that the reason for requesting the continuance arises from circumstances beyond the party’s control”).

Too often, I hear stories about denied continuances. Attorneys who contact me in these instances are often feeling that they have been treated poorly or at least inconsistently. I recently heard from an attorney whose continuance was denied. The attorney had come up on the trial date and did not have the expert testimony that was perceived as necessary to prevail. The issue was seen by the parties as neurosurgical, though it is possible an orthopedic specialist might have addressed it. The injury was to the back and for the most part the issues in the case (TTD, TPD, and Impairment) would turn in large part on some specific medical opinions. 

As I discussed this with the attorney, I viewed the motion on the OJCC case docket. I noticed that the motion did not provide much in the way of factual background. So I asked the question: “counsel, the hearing is on ________, you filed the motion on _________ (days before), and you stated that it was not possible to obtain the testimony of Dr. _________ until __________ (several months post-hearing)?” This was all confirmed. But, I asked “when did you first contact Dr. _________ to schedule this deposition?” The answer was too familiar, that contact had been no more than a month prior to filing the motion. 

Is this realistic on counsel’s part? Do we anticipate that surgical specialists (or any doctor) will be available for a deposition on two or three weeks notice? I will not say that this is never possible, but would guess that such availability will be the result of some cancellation or other exceptional circumstance. Years ago, I heard the saying that “people do not plan to fail, those who fail just fail to plan.” I think these words have served me well over the years. 

Most attorneys have overcome this hurdle of practice and plan reasonably well. Knowing that, there are times when our human failings nonetheless surface and we simply make mistakes. We have all had those “V-8” moments when we suddenly realize that something “coulda, woulda, shoulda” been different. Sometimes those include the “oh, I forgot to schedule discovery in the _______ case.” When this happens, I highly recommend a process that has likewise served me well, frank, open admission and a plan for correction. 

Years ago, I coined a phrase (I think, perhaps I picked it up from someone, but I do not think so), “a continuance until someday.” Well, “once upon a time” and “happily ever after” and “continuance until someday” go together. They all sound nice and they all are more at home in a children’s story than a hearing room. Certainly, we may sometimes need continuance to an indefinite date, don’t misunderstand. But, most of the time when we have simply had a life event interfere or have made a simple human mistake, we can determine when this litigation train could be back on track. 

When moving for a continuance because of such a human error, have that deposition scheduled. Put the date in the motion. This defeats the “someday” conundrum and tells the judge that granting your motion will have a specific meaning in terms of the actual delay that will be caused. When you call opposing counsel, be frank. If you are opposing counsel, coordinate that future deposition date even if you oppose the continuance. You are not giving away anything by cooperating with the clearing the date, you can still oppose the continuance. By cooperating, despite your objection, you are being human and professional and admirable. 

When moving for an indefinite continuance (Claimant’s testimony is critical and she/he is in a coma; treating doctor whose testimony is critical was just diagnosed with cancer, will undergo treatment, and recovery time is impossible to predict until after surgery; these are just examples), describe it in detail. Explain why alternatives are not sufficient to correct the situation. Explain what plan you have that will keep the litigation train focused, even if it is not yet on track (that is, how will we fix the train in coming weeks/months, such as “the doctor feels he/she can predict availability for deposition much more accurately after the surgery he/she is undergoing in two months). Most of these continuances are “beyond the moving party’s control.”

In short, your chances of a continuance are best when circumstances are beyond your control. When they are not, and you have made a human mistake: (1) don’t hide it, own it; (2) don’t skirt it, illuminate it in your motion and have a plan to fix it; (3) always be frank with opposing counsel. Admitting error is disarming and frankly professionalism takes some humility sometimes. That is not a human failing, it is a human strength. It takes real self confidence to admit your humanity and own a mistake.

How will Risky Behavior and "Choices" Affect Employment Decisions

Medical care costs are rising. There is also a trend recently for employers to be more concerned about the habits of their employees. Monitoring behavior that is perceived as "risky" is nothing new. I can remember one of the first times I was asked whether I smoked. It was on a life insurance policy application that I completed in college. 

They also asked me if I was involved in skydiving. It did not strike me then that this insurance company apparently saw these two activities of similar interest, along with alcohol use. These perceptions are finding their way into employment decisions though, and there is a growing debate as to whether employers should be allowed to make employment decisions based on their perceptions of risk and cost associated with a prospective employee's habits. 

According to the Unites States Parachute Association, 19 people died in skydiving accidents in 2012, out of roughly 3.1 million jumps. This represents a great decrease from the 43 people who died each year in the 1970s. While the actual volume of deaths has been decreasing in recent years, we have not reached the baseline of 14 fatalities that was recorded in the first year of record-keeping, 1961. I reflect on this because I did sign up to jump out of plane once. I can hear my father now,"why would anyone jump out of a perfectly good airplane."  I got my money back.

According to the Centers for Disease Control (CDC) smoking causes cancer, heart disease, stroke, and lung diseases. They estimate that smoking causes more than 5 millions deaths annually. Smoking is a little more dangerous than skydiving. There is expense involved also. The CDC estimates that actual smoking costs $193 billion ($193,000,000,000) each year in lost productivity ($97 billion) and actual medical cost ($96 billion). They claim that second-hand smoke adds another $10 billion. There are about 315,637,919 people living in the United States. That $203 billion is costing each American about $646.00 annually.

Obesity is harder to estimate. Fat is accused of death and other health complications, but does not directly kill.  So, according to the U.S. National Library of Medicine, "estimates of deaths attributable to obesity in the United States rely on estimates from epidemiological cohorts of the relative risk of mortality associated with obesity." They concede that it is difficult to determine the death rates from obesity with any real accuracy. However, studies have opined on the cost of obesity. CNN cites a figure of another $147 to $210 billion for adult obesity. That is another to $468.28 to $669.00 for each of us.

So each American is underwriting the cost of about $1,100 to $1,300 per year for treatment of smoking and obesity related medical care. 

Obesity has also been linked to increased costs of workers' compensation claims. A 2010 NCCI study concluded "there are systematic differences in the outcomes for obese and non-obese claimants with comparable demographic characteristics. The study also concludes that there is greater risk that injuries will create permanent disabilities if the injured worker is obese."  NCCI also lists smoking as a "risk factor" in injury claims. Both are viewed as a valid consideration in risk management or risk avoidance. 

Recently, companies have found their way to publicity or with  pronouncements on hiring practices. The University of Pennsylvania recently announced recently that they will not hire smokers. Some employers are even screening for nicotine, like other drugs, in their hiring process. There is an apparent trend in this direction. There are some who question whether there is any point in such a policy, as someone could cease smoking long enough to get hired and then resume smoking once an employee. Likewise, one could crash diet to achieve a particular weight or body mass and then, after being hired, return to their former weight or body mass.

In addition to UPA, other hospitals have taken the anti-smoking approach.  Companies adopting these practices cite the high cost of health care associated with such habits in their employees. I have not found any legal authorities that argue this new practice is illegal, unless smoking is protected specifically by state law. I found a few that have such laws. I could find only one state, Michigan, that protects the obese from discrimination in hiring in a general way. However, it is arguable that obesity could be protected by the Americans with Disability Act. The future of these practices regarding the smokers and the obese is therefore not certain.

What is clear is that popular opinion is against the practice of denying employment based on obesity or smoking. Many believe that it is inappropriate for an employer to even ask about health risk issues in the hiring process. 

We know that medical costs will continue to rise. We will see whether legislatures will act to require employers to hire employees they perceive to be high risk. This will be a different debate than previous discrimination debates. Many, perhaps most, Americans view both smoking and obesity as individual choices people make, which they see as different from inherent characteristics such as gender, race, and national origin. Anyone can choose not to skydive. Whether smoking and obesity are similarly "choices" and whether discrimination upon "choices" will be condoned are interesting questions. Will employers be allowed to avoid the direct medical costs and the productivity costs associated with these perceived risky behaviors?

This will be a complex issue. As employers seek lower health premiums and greater productivity in an increasingly competitive job market, and as the number of obese Americans continues to grow, there will be more debate about whether obesity, or smoking, is preventable, whether these behaviors are choices or truths, and whether such behaviors will be protected by the law.  Already, some advocates are arguing that these "behaviors" are more prevalent among the poor. They argue that discrimination on these behaviors will at least have a disparate impact on the poor and that this discrimination is inappropriate.

Better Child Support Arrearage Process is Coming

In December 2012, we started to take control of the child support arrearage information process. Through a historic agreement with the Florida Department of Revenue, they began sharing their data on child support arrearage with the Office of Judges of Compensation Claims electronically. 

The process for attorneys to obtain child support arrearage information changed little in the process. Before December, attorneys would send multiple requests for child support arrearage information in the process of preparing to negotiate or settle a case. Some of those requests would go to various clerks of courts pursuant to 60Q123(1)(a)5. or 60Q123(2)(a)6. Other requests went to the Department of Revenue (DOR). 

In December 2012, we deployed a new form for requesting DOR information on child support arrearage. This form facilitated a change in the process. Beginning in December, requests for information about DOR records of arrearage began coming to the OJCC instead of DOR. The OJCC responses were facilitated by the DOR sharing their arrearage data with the OJCC through a data-sharing agreement. Each Thursday, the DOR computer shares its information with a database at the OJCC. The team that developed that sharing agreement also designed a tool for our mediators and Deputy Clerks to look-up the child support information.

Kudos go to our information technology (IT) department, for developing both the data-sharing and the search engine that facilitates our staff’s access. The Florida TaxWatch announced its Prudential Davis Productivity Awards in March. They recognized the merit and value of this effort by the OJCC IT department. The value is obvious, but you have not seen anything yet. 

Most attorneys have come to accept that the balance reported by various clerks often were different from the amount reported by DOR. Most have also accepted that there may be no rhyme or reason in the results that are generated by these multiple arrearage requests. There are a variety of reasons for the potential variations of reporting within Florida. 

Adaptation to these varieties somewhat, but not completely, prepares the attorney for the kind of variation that may be found when out-of-state reporting is received. Attorneys have become accustomed to seeking such information when the injured worker lives out-of-state after the work accident. 

The next step in the OJCC system is to further consolidate the information sources, to simplify the tasks of our customers. We are working with the Clerks of Court. We believe that we will soon be able to bring the marketplace “one stop shopping” for Florida arrearage information. We do not foresee solving the challenges of out-of-state child support information. Therefore the solution upon which we are working will not be the be all and end all. We believe, however, that it will be a real improvement for our customers. 

Our plan is to extend the scope of the request form that our customers send to the OJCC for arrearage information. The new scope will include request for all Florida child support arrearage information. Our mediators and clerks will have access to the clerk of courts data and the DOR data, so that our staff will look-up all pending child support in Florida records. 

This will simplify the process for our customers. Today those customers may be sending three or more requests for information (DOR, Clerk in county of injury, Clerk in county of residence at time of settlement). Our new process will reduce that to one request to the OJCC in most instances. 

This will obviously simplify and reduce the burden on the Clerks. 

The totality of the benefit is greater than what first-glance reveals. Under the old paradigm, a claimant might request this data from DOR or the Clerks or both one day, and they would respond. The employer/carrier might request the data on the same injured worker from the same sources. The OJCC process precludes this duplication of effort, because when any party requests arrearage information, the results are transmitted to all parties in response. So, one asks and everyone learns. 

The change that is coming will save everyone time, effort, and money. The change is inspired and progressive. We are leveraging our technology, purchased with your money, inspired by your business needs, to benefit you, our customers.

Tell us how we are doing. I welcome your comments and suggestions. David.langham@doah.state.fl.us.

A 21st Century National Compensation Commission?

I recently attended a program at which Professor John Burton spoke regarding his service on the 1972 National Commission on Workers' Compensation. He recounted how that Commission met 11 times, over 32 days. The end result was the formulation of 19 essential recommendations. He noted that these recommendations were not followed by the States and that by 2004 the U.S. Department of Labor stopped even tracking State progress with the 1972 Commission recommendations. 

Professor Burton discussed the 2009 attempt at the formation of another National Commission. He concluded that the membership requirements in the proposed bill by Representative Baca were so complex that it is unlikely any such group of people could have been assembled, even if the bill had passed. He expressed doubt that any such a "modern" commission could effectively address the issues that face workers' compensation. His support for this seems to be his conclusion that politics has become too partisan today. As proposed in the bill, he concluded "the 2009 National Commission" appointment process "virtually guaranteed that the deliberations of the Commission will be divisive and the report splintered.” 

That said, Professor Burton proposed four areas in which he believes there is room for a national debate in workers' compensation. He suggests that there are organizations already postured to play a meaningful role in these four topic areas. He said, "the best way to improve workers' compensation in the 21st Century is to choose narrow topics for which solutions are not immediately obvious and for which the solutions have considerable potential to be beneficial to most if not all parties in the workers' compensation system."

First, he suggested revisiting the determination of permanent disability. After defining the differences between work disability and limitations on activities of daily living (non-work disabilities), he concluded that this subject should be studied by physicians, rehabilitation professionals, nursing professionals, and economists. He explained that there are a multitude of issues that should be addressed, including the causal relationship of injury, the extent of work disability, the determination of what "constitutes an adequate" compensation, and how an appropriate disability guide might be developed and implemented. He noted that the AMA guides, used by many states, are misused. Another criticism he notes is that the AMA guides are not based upon evidence, but are "largely based on consensus among physicians."  Professor Burton suggested that the Institute of Medicine would be a sound body to undertake this project. In some parts, his faith is based upon the IOM efforts regarding the determination of disability for veterans. 

Second, he suggests, there should be an examination of the dichotomy in medical care provision when work versus non-work maladies are involved. He notes that physician choice is one area in which there is a great difference. The injured worker may have her or his work injury care directed by the employer or their carrier in some jurisdictions. However, the same employee suffering a personal injury may be free (or freer) to choose their own physician. He posits that "an examination of these and other issues pertaining to the worker's compensation health care system should produce evidence and recommendations that are beneficial to most participants in the workers' compensation program. He likewise suggests that the IOM is the appropriate organization for this debate/challenge.

Third, Professor Burton notes that tests for compensability have become less straightforward in the years since workers' compensation was conceived. He also argues that many states have "adopted legal tests for compensability that are based on outdated medical knowledge." He says that the result of such tests is a finding of compensability when "there is no scientific basis for that conclusion." He posits that simplification of the tests might be in order and that it may be time for a new publicly funded "disability program that provides" benefits "regardless of the cause" of the injury. He proposes that the National Academy of Social Insurance may be best situated and prepared to undertake a meaningful study of these and other compensability issues. 

Fourth, he notes that the recommendations of the 1972 Commission have not been widely implemented. He believes that "the primary obstacle to state reform was competition among states for employers and the fear that an adequate workers' compensation program in a state would drive employers to a less expensive jurisdiction. He notes that data from NCCI seems to support statutory benefits decreased in the 1990s and 2000s.  He labels this a "race to the bottom" regarding benefits and thereby workers' compensation costs. He argues that states appear to be engaged in such a race, and that the only cure for this is "a viable threat of federal intervention to counter the alms race." That said, he does not support such a federalization plan. 

In all, the presentation and written materials provided a stimulating discussion from a variety of perspectives. 

The Survey is Coming Soon

In 2008, the Workers' Compensation Section of The Florida Bar and the Office of Judges of Compensation Claims jointly decided that a judicial survey would benefit the marketplace. The purpose of the survey is to provide feedback and express your thoughts. The purpose of the survey is not to use expletives or insults in some effort to inarticulately vent. If you would not say a word to your mother, or in front of your mother, please do not use it in the survey. Be sincere, and be constructive. If you have a suggestion that would make a process or procedure better, say so. Explanations and suggestions are particularly helpful.

We ask that respondents only rate judges and mediators before whom they have appeared in the last twelve months. The survey is not intended to be a venue for rehashing issues or actions that occurred years ago. The  survey is about today. Evaluate the perceptions you have of recent performance. 

The survey will be delivered in the form of an email. The email will include a link, much like the link you are used to receiving when an order or notice is e-served upon you. Click on the link, answer the demographic questions, select the judges and mediators that you wish to address, and the software will compile you a survey of just those individuals. The whole process should not take more than 20 minutes. 

If you do not complete the survey, you will receive some reminders. After several weeks, the survey will end so that we can compile the results. The particular start and end dates will be included in the email that transmits the survey to you. 

The survey is being sent to all registered users of the OJCC e-filing program. This includes injured workers, employers, adjusters, attorneys and mediators. We have received complaints as to the survey's effectiveness or reliability, essentially they complain that only attorneys should be allowed to express their opinions. 

With the roll-out of the revisions to e-JCC last fall, any party to a case can register for e-JCC. This includes injured workers, employers, adjusters and attorneys. There are good arguments for the all inclusive approach, and equally good arguments for the attorney only approach. I understand and have considered both sides of that debate. The end decision is that the all-inclusive process was deemed most appropriate. If you disagree, I respect that opinion and particularly appreciate those who have shared their opinions with me. 

Watch for the survey in you email box in April. We look forward to and appreciate your participation!