If you are not Perry Mason, Bring Evidence

So long ago on a playground far, far away, children engaged in arguments on so many topics, hoping to persuade one another with such retailing logic as “oh huh.” There is little to be gained in an argument or discussion which centers on “yes it is” versus “no it’s not.” The classic “he said, she said” presents a dichotomy to the judge which is difficult at best. Saying it is or it is not does not in itself persuade. It reinforces that there is disagreement, but it does not describe or illuminate that disagreement. At the end of a trial, it should be apparent both how the party feels or believes, but also why.

The judge’s compensation order must be based upon conclusions that are supported by competent and substantial evidence. Too often, litigants present for trial without the necessary evidence to prevail. This happens when corners are cut, or issues are missed, and it happens to the best of attorneys. For example, the medical treatment records may be admitted pursuant to Fla. Stat. §440. 29 (4), however those medical records may not contain the ultimate conclusions required by Fla. Stat. §440.08, Fla. Stat. §440.13 or Fla. Stat. §440.15, to prevail upon the claim for benefits. 

Has the expert stated in those records that the conclusions are “to a reasonable degree of medical certainty, based on objective relevant medical findings” for example? Has the expert stated in those records that the recommended care is “medically necessary” and or “in accordance with established practice parameters and protocols of treatment?” If these elements are not stated in the medical records, counsel may consider something more in the evidentiary foundation, such as a deposition of the provider, to explain conclusions and establish statutory foundations. 

Certainly it is possible to prevail in a dispute through cross-examination. I have seen it done, but not often. As an example, an expert witnesses conclusions, necessary under Fla. Stat. §440.13 to establish compensability, might be completely disregarded by the judge if, on cross examination, the expert were to admit that the opinions rendered are not based upon fact, or are not supported by medical findings. Alternatively, the cross examiner might be successful in getting the expert to admit that she or he is in fact not a doctor, or not an expert, or is a visitor from another planet. These instances in which cross-examination will so completely erode the witness’ foundation, are few. Perry Mason could do it every week. We were all entertained when people broke down on the witness stand under Perry’s withering glare. This is simply not how it works in the real world in the vast majority of cases.

Litigants should not count upon cross-examination to carry the day. In most instances the “burden of proof” party presents for trial with a measure of evidence, upon which a judge could rule in their favor. These instances provide the foundational “competent substantial evidence” or “CSE” upon which a sustainable order could be based. Conversely, in many instances, the party without the burden of proof presents with no evidence, and hopes to prevail simply upon the cross-examination of the other party’s evidence. In most instances, this is likely to be a recipe for failure. 

In many instances, it is the claimant that has the burden of proof. It is the claimant who comes to trial seeking medical or indemnity benefits, and in order to prevail the claimant must present evidence of entitlement to these benefits. This is not always the case. We are also presented with situations in which the employer or carrier bears the burden of proof. Allegations of misrepresentation pursuant to 440.105, allegations of entitlement to prevailing party costs, allegations of entitlement to attorney’s fees as sanction, and allegations of entitlement to reimbursement, contribution, or exoneration by some other employer and or carrier are all instances in which the employer/carrier will come to the hearing room with the burden of proof.

Regardless of which party bears the burden of proof, it is critical that the opposing party recognize that their defense or resistance should ordinarily include presentation of substantive evidence. Certainly, it is possible that the defending party may so critically impair the moving party’s evidence, that substantive opposing evidence is not required. However it is not likely a good bet. 

If the moving party presents medical evidence supporting their allegation, in most instances that evidence should be met with contradictory evidence if that party hopes to prevail. If the treating physician opines that an injury is causally related to the accident, the defense may attack that opinion through cross. However, the defense is far more likely to prevail if it presents contrary CSE, through another medical opinion. There are those who resist this logic and argue that perhaps many medical opinions should be disregarded because of their very lack of foundation or supporting science. The failure of this logic is that such an attack is unlikely to proceed unless the science (or lack) is explained through the testimony of another expert. It will be unlikely that scientific failings in expert conclusions will be so within the Judge’s expertise, and thus subject to discredit absent such contrary scientific evidence. 

As an example, the burden of proof party comes to trial with a physician’s deposition and records, which state the conclusion that there was a work injury, that it requires specific care, and that there is some period in which disability is appropriate. If these opinions are explained by the expert and are not contradicted, they are likely to be adopted by the Judge. That the opposing attorney disagrees with those opinions will not change the outcome. That the opposing attorney propounds Perry Mason questions to that expert will not likely change that outcome. Unless the withering cross results in that expert conceding error or withdrawing her/his opinion, the conclusions and opinions will remain uncontradicted. 

If the burden of proof party brings vocational expert testimony to trial, it is likely that contradictory expert vocational testimony will be required in order to successfully resist that claim. This is no different than the medical question example posed above. Unless the cross-examination is effective in changing that expert’s testimony, those vocational opinions are likely to stand at the end of trial uncontradicted. 

Likewise, if the burden of proof party comes to trial to prove misrepresentation, it is likely contrary evidence will be required to contradict that foundational evidence. This might be as simple as the testimony of the party accused of misrepresentation. It may be the testimony of the person(s) to whom alleged misrepresentations were made. 

Certainly, it is less expensive to respond to allegations in a case without hiring these experts or deposing these witnesses. Certainly, it may be cheaper to defend a permanent total disability claim without hiring a vocational expert, or to defend a misrepresentation without some person being subpoenaed for trial. However it is a troublesome gamble to proceed to trial in hopes that the prosecuting party will not present competent substantial evidence to support their allegations. It is a similar gamble to proceed to trial in hopes that your Perry Mason cross examination will so erode the other party’s evidence that you will prevail without evidence of your own. 

I am not saying that it cannot happen. It just seems to not be the way to bet. It may be like winning an argument with the schoolyard "oh huh" argument.

Response to the "Ghost Town" Perception

On April 27, 2013 a blog was posted on The Legal Examiner. I link to that article is at the end of this post. The author is an attorney. He makes some interesting observations about the St. Petersburg District Office of the OJCC, asserting that “the place is a ghost town” as a result of the legislative removal of the word “reasonable” from Fla. Stat. 440.34 in 2009. He laments that the office is a “ghost town” because “the state legislature has so limited an injured worker's right to hire an attorney, that injured workers are hard-pressed to find a lawyer who is willing to represent them and take their case in front of a judge.”

This may be the case. It is beyond my expertise to determine why filings have decreased, or why fewer are proceeding to trial, and I defer to the attorneys who file claims. They best know what is influential in their marketplace. The author also notes that before this change in the statute, “on any given day, there would be 10-15 mediations taking place and several hearings” in the St. Petersburg district office. Likely, some of those hearings were motion hearings.

The current procedural rules, Rule 60Q6.115(4) define a process where most motions are decided based on the motion and a written response to that motion. The rule specifically states “The judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response.” The current motion practice process is very different from that under previous rules. Certainly, ten years ago, motion practice was far more likely to involve motion hearings. Many judges conducted those hearings at a single time weekly, on a first-come first-served basis. I can recall many congested waiting rooms as attorneys waited in line for their turn to have a motion heard. 

When I started in Pensacola in 2001, the culture could not comprehend a motion order issuing without a hearing. It took some getting used to. Thus, the frequency of a procession of attorneys appearing for various motion hearings has certainly decreased in all of the District Offices in recent years.

That attorneys stood in line to have a hearing does not mean that the process was either effective or efficient. There is room for debate about whether the decrease in motion hearings under the present rules has any responsibility for the writer’s perception of a ghost town. However, the metrics support that many motions are still filed and that many orders are still entered.

The procedural rules have long allowed a judge of compensation claims with discretion regarding telephonic appearances at motion hearings. The rules likewise have afforded mediators discretion regarding telephonic appearance at mediation conferences, which are required regarding most petitions for benefits. There are many attorneys who seek permission to appear for proceedings by telephone. Many now even appear for discovery, such as depositions, using the telephone. It is more efficient for the attorney. 

The attorney appearing by telephone for depositions, hearings, and mediations saves the time and expense of traveling to and from the District Office. This practice, and the requests, therefore, increased markedly about 5 years ago when Governor Crist issued an executive order encouraging telephonic practice, citing the greenhouse gas results of travel.

In my perception, this telephonic paradigm has become more pervasive in recent years. Improvement in technology, that is better phones are a factor. Electronic filing facilitating instantaneous access to filed documents is a factor. The price of fuel is likely a factor. Attorney’s schedules are likely a factor. Constraints on attorneys fees on both sides of the table, and a resulting motivation to limit the time spent travelling, which may not be compensated for either party, may be a factor also. I have heard of attorneys appearing telephonically for such events from other states and countries. A great convenience. 

With the electronic filing system the OJCC has pioneered, we have situations in which pleadings are filed from great distances and orders entered by a vacationing judge several states away. It has been commonplace for the St. Petersburg judge to enter settlement and other orders from the annual workers’ compensation CLE program in Colorado or Utah. Other judges routinely monitor pleadings and enter orders from vacation. These orders are entered without hearing from half a continent away, and most attorneys likely do not realize that this work is occurring despite the attorneys and judge not needing to be present in the St. Petersburg, or other District, office to do so.

I take the author’s perceptions of fewer people being present in the St. Petersburg District Office at face value. I have to presume that he is present in the District Office regularly and that his description of a “ghost town” is based upon his personal observations. I on the other hand am in the St. Petersburg District Office only sporadically. Unlike the author, I live and work hundreds of miles from the St. Petersburg Office.

The author suggests that the attorney fee change in 2009 is the root of fewer people being present in the St. Petersburg District Office. The attorney fee statute change that is referenced was passed in 2003. The OJCC is staffed today at the same levels, essentially, as they have been for decades. One could look at the petition filing volumes in 2012, 61,354, and conclude that PFB filings are down. Compared to the figure in 2003, 151,021, that would be an accurate conclusion. 

However, anecdotal evidence supports the OJCC offices were more congested with live appearances in the 1990s than the 2000s. That is, the congestion and density were greater in the 1990s. From the Blog author’s perspective, it appears he would agree with this. in fiscal 1996, 56,298 petitions were filed. The petition volume today remains higher than in 1996. This seems to support that technology and the rule changes are playing a larger role, in less office congestion, than has been acknowledged by the author. While the fee statute may be playing a role, I am merely suggesting that other factors may likewise be playing a role that is not acknowledged by the post. 

From the statistics we see, that the Judges of Compensation Claims are busy. Our district staff is busy, though engaged in different tasks than in the 1990s. The claims are being filed at a rate consistent with the mid-1990s. Motions are being filed and orders entered, but less hearings are being held. Attorneys are leveraging technology to maximize their efficiency, with the telephonic attendance at events.

Again, I leave the analysis of how and to what extent attorneys are prosecuting those claims. I leave to others to determine the role of the fee changes in this process. These are things about which the claimant’s attorneys know far more than I. What I know, however, is that the Judges of Compensation Claims and mediators, and office staff are working hard, being efficient, and delivering a quality service to Floridians. 

Blog Post:
http://clearwater.legalexaminer.com/workplace-injuries/removal-of-reasonable-creates-ghost-town-in-workers-comp-court.aspx?googleid=308266

Watch What you are Filing

The content of pleadings, including the attachments to pleadings, is restricted by Rule 60Q6.103(2). The Rule is clear, "no pleading shall contain information exempt from public records disclosure." 

The full text of the Rule is

60Q-6.103 Pleadings and Proposed Orders.

(2) Exempt information. Except for the employee’s social security number or equivalent on petitions for benefits and responses thereto, no pleading shall contain information exempt from public records disclosure. Exempt information shall be supplied in connection with a pleading only to the extent it is necessary for the judge’s determination of disputed matters or required by Florida Statutes and shall be appended to a pleading in a separate document conspicuously marked “Exempt Information.”

A regular scenario for the Office of Judges of Compensation Claims goes like this. A party to a case requests or subpoenas medical records. They are organized (and sometimes not organized, but that is another topic) and attached to a Motion to Admit Medical Records. Opposing counsel does not object to the motion or ask that the records be redacted as a condition for admission. The motion is granted, the records admitted, and the case goes to trial. The same result can be accomplished, of course, by attaching the records to a deposition of a doctor, employer, adjuster, or custodian. The same result, regardless of whether they are medical, employment, past employment, or similar records.

What is "exempt information" under this rule? Perhaps the Rule should specifically define that term for us. Hopefully that detail in a procedural rule is not necessary. A quick Google search led me to the parameters of exempt this morning. The short answer?

Social Security Numbers.

Driver's License Numbers.

The longer answer is provided by a detailed document on the State of Florida's website.  The Social Security Number (SSN) specifically presents problems for the people to whom they refer. Regarding SSNs, the State of Florida notes "The disclosure of such number can provide access to private information about a person which could be used to perpetrate fraud upon that person or otherwise cause great harm to that person and his or her family." Regarding Driver's License Numbers, the State notes these are exempt by "state and federal statutes." There are of course exceptions. The reason is apparent, these numbers could be a key to unlock other information. 

The State cautions in this same document that "redact" has a specific statutory meaning, "to conceal from a copy of an original public record, or to conceal from an electronic image that is available for public viewing, that portion of the record containing exempt or confidential information." This specifically means that the copy, not the original is altered. The result, not the intent, is critical. The document recites an instance in which the Transportation Security Agency (TSA) tried to use software for this purpose, but what they intended to have obscured/redacted was instead highlighted. 

How to redact the document? In all instances, the first step is to make a copy and then work to redact the copy. Always maintain the original. To avoid wasting paper, the copy can always be a portable document format (PDF). If the documents arrive in paper form, scan them. If they arrive in PDF form, that is digital, save the original and make a copy. 

I have seen the "text box" tool in Adobe used. Other portable document format (PDF) programs have similar functions. This is a big mistake. The text boxes can be moved aside in the PDF. Even if you "save" the copy as a PDF again, the text you are trying to protect will remain. Learn from the TSA's hard lesson in redacting, and see instructions on how to properly redact a PDF document, and How to Redact a PDF File.

Before you e-file a document with the OJCC, the exempt information should be redacted. At a minimum, this would be the Social Security Number and Driver's License Number. Unless it is relevant to the case, information such as credit card numbers (perhaps used by the patient for their copay at an office visit) or date of birth could also be redacted to protect privacy and prevent opportunities for identity theft. 

When a case is appealed, the record will have to be reviewed for such information. This review will delay the preparation of your record and may add to the cost. Adoption of procedures to avoid filing documents that include such exempt information is required by the Rules, is professional, and is in the interest of the people to whom those records refer. 

Is there an appropriate justification for "churn that bill, baby! mode.”

A large law firm is in the news recently. This firm advertises on the internet that it is "one of the largest business law firms in the world." The are "built to serve clients" and can do so "quickly, efficiently and with genuine knowledge of both local and international considerations." Their clients "range from multinational, Global 1000, and Fortune 500 enterprises to emerging companies developing industry-leading technologies."

According to the New York Times, this large firm sued a client over unpaid legal bills in the amount of about $675,000.00. These fees were associated with a 2010 bankruptcy filing. The Times reported that "a month after the filing, a lawyer at the firm warned colleagues that the businessman’s bill was mounting." there was allegedly an exchange of email in which some attorneys seem to relish the mounting bill. One email allegedly said that a firm attorney had "random people working full time on random research projects in standard ‘churn that bill, baby!’ mode.”

The law firm responded to the billing allegations by issuing a memo to its attorneys, clarifying that the emails about billing were unprofessional (were the billings unprofessional?). They deny that the firm did anything wrong, and claim that the email language was an “offensive and inexcusable effort at humor.” The firm's memo to its attorneys also assured them that "the actions described in this (the NY Times') story did not happen." They succinctly stated that their firm has always "adhered to the highest level of ethics and integrity in all of its work, including billing practices." The memo characterizes the emails as "foolish" and promises to "defend vigorously the firm’s track record of delivering high-quality legal services at a fair price, including the reasonable fees generated in the matter in question." (So, are the attorneys' email representations false?)

The comments to both articles seem not to be on the side of the law firm. However, both detractors and supporters commented. Some comments suggest that the emails are the result of overwork. Others accept the failure of email generally and suggest that the lawyers were naive about who would see them. One detractor even refers to the emailing attorneys as "idiots." Is this how attorneys want the public to perceive them? Is the issue the emails or the billing practices?

The point in this blog? Ethics matter.

Fresh out of law school, I interviewed with a firm in Orlando. It was Spring Break and I was very proud that this firm, with its prestigious name would interview me; I did not attend a top-tier law school. Having clerked in a smaller defense firm, with a similar defense-client base, the first question I asked, after the interviewer concluded and inquired, was about the "billable budget." I was given a number I do not recall, but it was north of 2,000 hours per year. 

The look on my face must have told the tale because the firm partner quickly said, "that is not that hard to reach, I have already billed half that this year." More than 1,000 hours; did I mention it was Spring Break? (that is over 250 hours per month, at 20 billable days per month, that is an average of 12.5 billable hours per day). The partner then explained to me the ease with which hours could be "multiplied" by double or triple billing multiple file "trips" to Daytona and other nearby cities; billing each case separately for all the travel time. I left the interview disheartened. The message, in short, the secret to meeting the high budget is to lie.

In the course of my early practice, I was lectured many years ago for my failure to capitalize on similar billing "realities." I was questioned time entries regarding work I had done at the courthouse, examining the court file in four cases, to prepare status letters to clients. The firm's partner explained that I had made one trip to the courthouse, examined filings in four cases, and had not billed enough time for the tasks. I explained that I had billed the time I spent. The partner explained that I needed to bill each of the four files for the spent walking to/from the courthouse and that my walking time was not sufficient.

I explained that I had billed for the time walking, but had divided the walking time by four, and included the respective 25% (approximate, because it was not readily divided exactly that way) of that time on each file. The partner first explained that no one could walk to the courthouse in the amount of time I had recited (.6 hours, seventeen minutes each way). I had done so; despite the denial that it was not possible. This partner would need at least 30 minutes each way, according to this lecture. 

The partner then explained that at some point I or another firm attorney might need to walk to the courthouse on a single case and be unable to therefore "share" or divide the walking time as I had in this instance. The partner then explained that our clients would then get a bill that showed the "actual" walking time (.6 hours round trip at my pace, or 1.0 hours at the partner's). 

The partner explained that our clients were not smart enough to understand the distinction in these situations, a multiple file trip versus a one file trip, and the walking speed of one lawyer being quicker than another; then the partner instructed me to change the time sheet to reflect at least eight-tenths (.8) of an hour travel time for each of the four cases for that date. Having originally billed one-tenth to two-tenths (it is not easy to divide 34 minutes into equal 6-minute, one-tenth portions attributed to four cases) travel time to each case, a total of .6 hours. Having originally split up .6 hours among four cases, I was now instructed by my employer to increase that to at least 3.2 hours (.8 times 4) of travel time. Disheartened yet again. The partner's message? Stealing from your clients is really a benefit to them because they are not smart enough to understand the truth. 

There was another recent case in the news in Wisconsin, regarding attorney billing. This attorney (a partner in the firm) billed time, and by doing so was entitled to a bonus from his firm. After receiving the bonus, the attorney would later write down the time. The law firm brought a complaint to the bar. The Wisconsin Supreme Court suspended the attorney for 12 months and ordered him to pay the bar's costs of prosecution, $18,916.68. The opinion is not clear on the repayment of the bonus money, $46,978.04, to the firm. Perhaps if the firm wants that money back, they will have to proceed in some form of civil action against their former partner?

The point is that ethics matter. I think clients are certainly smart enough to know the difference between attorney's travel time differing. The condescending belief that they are not is silly; this justification for multiple billing of various clients for the same work is illogical and wrong. Partners should not ask it of their associates and the associates should not be put in the position by their employers.

The NY Times article discussed above illustrates many excellent points raised by those who commented. First, avoid suing clients. Second be honest. Third, there is nothing humorous about stealing from someone (or even about implying or joking that you are). The Wisconsin case illustrates but another wrinkle in the analysis; billing issues also present implications within law firms, and among partners. 

Gallup conducted a poll, asking "how you would rate the honesty and ethical standards of people in these different fields." Judges were rated 10% very high, 37% high, and 37% average; a total of 47% high or very high. Lawyers were rated 4% very high, 15% high, and 42% average; a total of 19% high or very high. Do lawyers want or actually deserve these perceptions?

Is there an appropriate justification for manipulating the billable hours?

2013 Legislative Session

The Legislative session ended last Friday night, May 3, 2013. Unlike some sessions, that have come down to the midnight deadline, this one ended about 7:15. There will be much to examine in coming weeks. It is not simple to know what is happening during the course of the session, and sometimes no easier for days thereafter to determine what happened and did not happen. The OJCC. like other agencies, invests significant time in tracking various legislation, following legislative rumors, and explaining how various proposals would impact the manner in which we deliver services. 

One thing we know is that they passed the largest budget ever. The budget passed Friday morning, for fiscal 2014 (begins July 1, 2013) is $74.5 billion dollars. Of course, my primary interest in this budget is that the Office of Judges of Compensation Claims is adequately funded. Everything I have seen supports that the OJCC budget survived this session with minimal cuts. This is an intense relief. There were plans discussed in the last six months (leading up to and through the  session) that could have had a significant impact on the way the OJCC operates. I am glad that those discussions did not come to pass, and that our budget and agency survived without major alterations. 

I am particularly gratified with the budget item providing for long overdue raises for state employees. Under the budget language, workers making below $40,000 would get a $1,400 pay raise, while those making more than $40,000 would get a $1,000 raise. It has been too many years since our hard-working OJCC staff received a pay raise. Despite the pronouncements from Washington, denying any significant inflation, the cost of living in Florida has increased significantly in the last six years. Anyone that has purchased a gallon of milk recently knows that. I would have liked to see a more significant raise for our staff, but this is a start and is greatly appreciated. The staff of the OJCC works hard and is focused on our customers.

Additionally, about 35 percent of state employees will have a chance to earn up to another $600 bonus if they are given positive evaluations. Which, if any, of the OJCC staff is eligible for this bonus will become clearer in coming weeks. However, it is positive to see the legislature recognizing that hard work and positive contributions to the success of state programs should be recognized.

House Bill 7033 made some progress early in the session. This would have significantly changed the selection of Judges of Compensation Claims. The bill would have eliminated the Statewide Judicial Nominating Commission for Judges of Compensation Claims (SJNCJCC), and would have had the First District Court of Appeal Nominating Commission responsible for vetting JCCs. Under this proposal, candidates for appointment and reappointment would have been travelling to Tallahassee for interviews. Most interviews with the SJNCJCC currently occur in Orlando, many during the WCI Educational Conference. Travel to Orlando can be a significant expense for candidates, and travel to Tallahassee would be more significant for most. There were also some Constitutional concerns with the plan. The Bill ultimately failed to pass. 

Florida is struggling with economies of scale. Senate Bill 1762  was an effort at consolidating State technology efforts. The logic is sound, and there are good arguments for consolidating some State agency efforts. This bill sought to establish the Department of State Technology. As originally proposed, it called for the establishment of "data centers" through which various agency data-storage facilities would be consolidated. 

The vision is for large rooms of servers upon which various agencies would store their information. Economy of scale is logical. For many reasons, this vision is not appropriate for the Office of Judges of Compensation Claims however. The independence of this agency is a critical point. Previous legislatures have established this independence, housing the OJCC in the Department of Management Services, but providing in 440.45 that "the Department of Management Services shall provide administrative support and service to the office to the extent requested by the director of the Division of Administrative Hearings but shall not direct, supervise, or control the Office of the Judges of Compensation Claims in any manner, including, but not limited to, personnel, purchasing, budgetary matters, or property transactions."

Senate Bill 1762 looked destined to pass. There was substantial agreement between the chambers, as the bill went to conference committee on April 18, 2013. One difference between the House and Senate versions involved some language that defined agencies that would be excluded or exempt from the consolidation effort. One version excluded/exempted the Division of Administrative Hearings (DOAH), the other chamber's version did not. Neither version exempted the OJCC, although arguably the DOAH exemption would exempt the OJCC. Ultimately, the bill did not make it out of the conference committee. The idea of consolidation is likely to arise again though.  

Senate Bill 662 passed and was ordered engrossed May 1, 2013. This will amend section 440.13 regarding the price of prescription medication. Much has been written about this topic over recent months. Percentages have been codified, and processes have perhaps been changed. How this will ultimately change the delivery of services to injured workers remains to be seen.

In all, not a huge Session for Florida workers' compensation. While the debates were raging about SB 662, David DePaolo wrote about Oklahoma. The revisions in that state's workers' compensation law may be more significant this Spring. Mr. DePaolo opined that the efforts there may support that "workers' compensation may not be particularly relevant." He notes that the Oklahoma reform efforts, and other evidence, may support "a trend that both employers and employees no longer feel that workers' compensation either meets their needs." 

In one of the most discussed portions of his analysis, Mr. DePaolo states "There is not one person that is in the workers' compensation industry that can claim exemption from being an unnecessary intermediary in the relationship between the employer and the employee - not one."  He says that all of us "insurance, medical, legal, brokerage, legislative, judicial" are but intermediaries between the real participants in the system, the employee and employer. A broad indictment.

Reading Mr. DePaolo's thoughts, I was reminded of a great Walt Disney quote. He once said "I only hope that we don't lose sight of one thing - that it was all started by a mouse." That is, essentially, a compelling back-to-basics sentiment. I likewise hope that we, whether we are but "intermediaries" or more, never forget that this workers' compensation "thing" was all started because of employees and employers. They matter. Our society critically needs them both, and therefore our effort must be to serve them. Walt also said "whenever I go on a ride, I'm always thinking of what's wrong with the thing and how it can be improved." Perhaps we might all consider what is wrong with workers' compensation, for employees and employers, and what could be improved for employees and employers. 

The 2013 Florida legislative season is concluded. I am proud they took care of some issues, like much needed pay raises for the OJCC staff. I am hopeful that there will come a time when industry, labor, and all the intermediaries might come together to bring intellect to bear on what is "wrong with the thing and how it can be improved" for Florida's employees and employers. 

Daubert v. Frye, a Florida Debate No More

In 1923, the courts came up with a methodology for an adjudicator's evaluation of the admissibility of expert testimony in Frye v. United States, 58 293 F.2d 1013 (D.C. Cir 1923). This standard was widely accepted, and when  the Federal Courts adopted The Federal Rules of Evidence, Frye was codified. It was essentially "the test" for expert testimony over a seventy-year period. The Frye Standard essentially "looks at whether or not the underlying basic principles of evidence are generally accepted within the scientific community," according to the staff analysis of the Florida House of Representatives.

In  1993, the United States Supreme Court adopted a somewhat different approach in Daubert v. Merrell Dow Pharmaceuticals, Inc., 34 509 U.S. 579 (1993). Their analysis was not met with universal acclaim. In the years following Daubert, the Court refined that new analysis with their holdings in General Electric Co. v. Joiner, 522 U.S. 35 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 36 (1999). With these revisions came broader acceptance of the new analysis, and Rule 702 of the Federal Rules of Evidence was amended in 2000 to apply that standard to expert evidence in Federal Court.

This was a significant boost to the efficacy of what is commonly referred to as the Daubert standard. However, this amendment to the Federal Rules of Evidence changed the process in Federal Court, not in the state courts around the country. There has been a split among the states, as some adopted the Daubert standard and other retained Frye. In retaining the Frye standard, the Florida Supreme Court referred to Daubert as "a more lenient standard," and held that Florida's Evidence Code retained instead "the higher standard of reliability as dictated by Frye." 

Florida joined the Daubert ranks in the 2013 legislative session, with the passage of House Bill 7015. This has not been signed by Governor Scott, and is therefore not law yet. If signed, it would be effective July 1, 2013. This bill amends the Florida Evidence Code, sections 90.702 and 90.704. 

The Federal Rules, Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

The revision to 90.702 of the Florida Evidence Code provides: 

90.702 Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an  opinion or otherwise, if: (1)  The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case

House Bill 7015 also amends section 90.704. This will change the considerations of an adjudicator regarding admissibility of the facts and data upon which experts rely. The current section 90.704 provides: 

90.704 Basis of opinion testimony by experts.--The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

House Bill 7015 adds the following language to section 90.704

Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

This section 90.704 alteration will be of less impact in workers' compensation proceedings, where we have no juries. An argument may be raised, however, regarding whether a Judge of Compensation Claims should rely upon such "facts or data." The "probative value" will likely remain the analysis in the event that a party seeks to have the Judge rely on such underlying "facts or data."

Practitioners of workers' compensation and civil trial work in Florida should become familiar with the Daubert standard in anticipation of House Bill 7015 becoming law. It is likely that the Governor will sign this legislation. 

What if this is not the Correct Carrier?

I receive periodical complaints from carriers. They note their receipt of “numerous Petitions” from claimant’s attorneys with their company erroneously listed as the carrier or third party administrator (TPA).

I receive periodic requests from claimant’s attorneys asking that a particular carrier or TPA be added to our list in e-JCC. Several times recently, the company someone has sought to have added has been an insurance agent, not a carrier. As I begin my investigative process for such a request, I will check the “coverage database” maintained by the Division of Workers’ Compensation. I often find that the employer’s carrier is listed, and it is not the company that we are being asked to add.

One recent example involved an attorney’s staff insisting that a particular company was the carrier. After multiple phone calls and emails, I was finally able to convince them that a different company was the actual carrier. To convince the claimant’s counsel, though, I ended up having to provide the correct carrier name, their claim number, the phone number of the adjuster and defense counsel. All of which I obtained by looking up the employer on the coverage database and calling the carrier listed there. Before you say it, I concede at the outset that I sometimes enjoy some advantage in getting through red tape to speak to the appropriate person. 

I received a recent carrier request for help “getting off of a claim.” The carrier had received multiple petitions from a particular claimant’s attorney. They reviewed their data and concluded that they did not represent/insure the employer, and had never done so. They repeatedly telephoned the claimant’s attorney, without the courtesy of a returned call. This has serious professionalism implications which I trust that I need not discuss further. The carrier wants to be removed from this case. They write to me in frustration asking how to be removed from the case.

First, I cannot give legal advice. I suspect that each day there are defendants in lawsuits across this country who feel they have been inappropriately included. I find the telephone call efforts described above are appropriate. It was a good way to start. If I were a defendant in a case, which I thought was error, and telephone calls went unanswered, I would then follow with email requesting dismissal of the claims against me. I would reiterate in the emails that I had left phone messages without the courtesy of a reply. If the emails were unsuccessful, I would likely next send a letter by U.S. Mail, with copies of the email and again reiterating the efforts expended in the effort.

I tell people/carriers who contact me with these issues that I cannot unilaterally change or remove a carrier or TPA from a case based upon anyone's word. I appreciate that this may seem like the most expeditious method for correcting an error. However, it would not afford the claimant due process if I received such complaints and then just took the Carrier or TPA at their word and removed them from the case. With that said, I respect that there are carriers that should be removed from a particular case. In our system, however, the merits of an allegation often come down to finding facts, and that is the penultimate role of the assigned Judge. 

I understand that injured workers' have to select the carrier that they file against. This is sometimes based on imperfect information. I understand that all human beings make errors. I understand that whether a particular employer or carrier is appropriately included in a given case may often come down to factual conclusions. 

So, when erroneously added to a case, the carrier of third party administrator should communicate the error. Claimant’s counsel should first use the coverage database to determine the identity of the appropriate party; when contacted by a carrier who disclaims responsibility, consulting the coverage database is an appropriate follow-up.  Unfortunately, some situations will not be resolved by this contact. Unfortunately, there are those on both sides of the table who will not return calls or respond to requests. As a side note, there are likely petitions that could be prevented if the claimant’s attorney could get a initial, pre-petition call, returned by the adjuster in some instances. I acknowledge that life is busy, and returning calls takes time. However, the evidence supports that people are more likely to resolve their differences when they speak to each other.

If the contacts described above are not successful, then the procedural tool for dismissal from a case would be a motion. Rule 60Q6.115(1) (“any request for an order or for other relief shall be by motion.”). That is the vehicle that will focus the attention of the assigned judge upon your dispute. Admittedly, this may cause expense. There is a potential for a carrier to recover attorneys fees under Fla. Stat. §440.32(2) or Rule 60Q6.125 in such an instance. It is hoped that the phone call, email, U.S. mail route described above would preclude the vast majority of such errors from reaching the motion and thus the stage for any claiming of attorneys fees. The factual support for such a motion might include the documentation of the carrier’s phone calls, emails, and letter to claimant’s attorney.

At the end of the analysis, better communication is the key to avoid misunderstandings. Carriers may preclude claims by speaking with claimant's counsel. Claimants may preempt motions regarding the appropriate party by discussing assertions that this carrier or TPA believes it does not belong on the case.