Is there a spoon? Or are we bending?

I became interested in this industry sometime ago. And struggled to understand the implications and the requirements. I think we all started in a similar manner, believing that our individual state statue was ultimately the controlling element. We studied statutes and struggled to understand their nuances, complexities, and contradictions.

Oklahoma recently adopted an opt-out option for their workers' compensation process. There is an interesting white paper explaining the implications of this new opt-out. The implications remind me of an interesting scene in The Matrix. Keanu Reeves' character, Neo, enters the apartment of the "Oracle," to be afforded an audience. He encounters a young man who is telekinetically bending and unbending a teaspoon repeatedly. Neo watches, and the young man says to him "Do not try and bend the spoon. That's impossible. Instead... only try to realize the truth." Neo asks about  "the truth" and the boy explains "there is no spoon;" then expounds, "Then you'll see, that it is not the spoon that bends, it is only yourself."

After reading the white paper on the implications of Oklahoma's new opt-out, which is compared therein with the existing Texas opt-out provision, I am left wondering: is there a "worker's compensation" that is being twisted and bent here or are we all bending?

Texas has had an opt-out for many years. A major feature of the Texas opt-out is that by making that election the employer loses immunity, and becomes potentially liable in tort for negligence that results in injury. The Oklahoma opt-out provides a similar opportunity to escape the confines and regulation of workers' compensation but leaves the employer immunity intact. In Texas, an employer may opt-out completely or may opt out and provide an alternate benefit plan. To opt-out in Oklahoma, the employer will have to provide a substitute plan, which may (non-Erisa) or may not (Erisa) have to be approved by Oklahoma insurance regulators.

The authors of this white paper suggest that the lack of employer immunity has deterred the spread of the Texas-style opt-out plan. They suggest that the Oklahoma plan, providing the savings of opt-out with the protections of immunity may be more likely to spread. 

According to the white paper authors, the Texas opt-out produces savings as a result of decreased attorney involvement in the substitute plans. They identify binding arbitration as a root source of the savings. However, whether arbitration or litigation, in any circumstance, someone will have to determine disputes. No system cannot exist without someone to decide disputes which will necessarily arise. 

In our Florida system, there is a tremendous amount of transparency and as a result predictability. I hope it is like that elsewhere. Much of this predictability/transparency could be lost in an arbitration process. The adversarial process is markedly different in arbitration. Anyone who has practiced labor law appreciates the challenges of the arbitration process. There are also practical differences in that setting, with parties often representing themselves, or being represented by company or labor representatives. It is a field that often does not have the attorney involvement, and the protection of individual rights, to which we are accustomed in the traditional workers' compensation practice. 

According to this white paper, there will be a significant evaluation of this new law, disputes, and regulations yet to come. The authors predict, however, that a process will emerge from this "new law" to sunlight as a model for other states to follow with a non-subscription or opt-out provision similar to Oklahoma's. I have heard rumblings already, with some questioning whether this is the future for us all. Wondering how this will develop both in and beyond Oklahoma, if at all, is interesting and intriguing. Is the Oklahoma experiment the harbinger of the future, or anomalous blip on the radar screen of Worker's Compensation?

At the end of the day, what will apparently matter is whether employers save or lose money by engaging this innovation. Note that it will be the employer's decision in Oklahoma to subscribe to traditional workers' compensation or to opt-out. It is curious that in the "great compromise" (see New York Central Railroad v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917)) that is worker's compensation, one side should be afforded such ability to unilaterally decide such an important question. Many states have opt-outs for organized labor, in which labor and industry together negotiate an opt-out. The Oklahoma example is different in its unilateral approach.

This will be a hot topic at seminars in the coming years. Debates will be engaged, legislatures will convene, bills may be sponsored, some may pass, and in a few years we will know whether Oklahoma is the "new normal," or yesterday's news. 

Is there a spoon? Or are we bending?

The Skill of Advocacy

I attended the Florida Workers' Compensation Institute Spring Forum in May. As usual, there were many interesting discussions and presentations. I am particularly fond of the judicial panel (in the interest of full disclosure, I moderated this panel). 

Of course, there was much discussion of Westphal and other recent case law from the First District Court of Appeal. These gatherings of workers' compensation professionals are always abuzz with such conversations. I heard similar conversations and prognostications at the Florida Workers' Advocates meeting in June. One defense attorney confided to me that case law decisions that are ambiguous and controversial are a boon to that attorney's practice. Lack of clarity may be good for business, apparently. 

I voiced the proposition that there is a fixed quantity of "predictability" in the marketplace (any intellectual marketplace). The result is that participants in such marketplaces are in a seemingly constant quest to obtain more of the predictability.  For example, as insurance carriers gain predictability in case outcomes, claimants might arguably lose predictability, and vice versa. There is a value to predictability. It is the logic behind stare decisis, the legal maxim that describes the courts' affinity for precedent. This is the foundation upon which all attorneys provide advice to clients. No litigant wants to hear their advocate say "I don't have any idea how this will come out."

That does not mean that counsel must be prescient or psychic. Litigation is fraught with risk and the unknown has been the downfall of many an attorney. The old adage "don't ask a question you do not know the answer to" is repeated by seasoned attorneys for a reason. However, there can be predictability without certainty. Appellate and trial decisions need to be written with sufficient recitation of the facts so that a competent attorney can determine whether each decision is or is not likely to impact her or his present case. Additionally, attorneys need to remain focused upon the holding of the cases upon which they rely. Dicta may be the best one has, and if so it is what one uses. However, knowing and understanding the actual holding is critical. Too many rely on the opinions of others (headnotes, summaries, etc.). Attorneys should read the opinion, know the holding, and then advise their client from that foundation. 

Attorneys should know that the OJCC publishes all trial decisions in a database. It is accessible on the OJCC website, www.fljcc.org. This means counsel are able to search for decisions by any judge, or interpretations of any statute section, procedural rule, or case holding. This tool empowers attorneys to find precedents that may illuminate the way their trial may proceed if the trial order was issued by the judge that will hear their case. Or, it may provide an argument in favor of a similar decision before this judge in this trial, even though it was rendered by another judge in some other trial. 

Great attorneys are focused on drawing the inference that a particular piece of authority is either "on point" or distinguishable. Great attorneys never lose sight of the fact that the skill of making those analyses and arguments is one of the true keys to effective advocacy. Great attorneys read, analyze, and use their openings and closings to educate the finder of fact about the impact of opinions that support their advocated outcome or which may not, and should therefore be distinguished. 

In the end, perhaps, the point is not whether the authority could be described as ambiguous. In the end, advocates can advocate, but they cannot force courts or judges to be focused or succinct in their opinions or orders. The point is rather that no two cases are necessarily identical, and the art of advocacy is in the ability to convince the Judge why some decision or order is or is not the clarity that resolves these questions, this trial, on this day, with these facts. I have seen many advocates who are very skilled at precisely that process and are successful because of it. 

Unfortunately, there are also counsels who present ample arguments without the citing authority. There are counsel who seem unfamiliar with the critical facts of their case. There are counsels who are unwilling or unable to focus on the critical factual issues or decisional authority in either opening or closing. 

The finder of fact undertakes a difficult responsibility in deciding a case. The difficulty is diminished when both counsel focus on the issues, define the dispute, and provide the authority that could support their advocated outcome. Which kind of attorney would you want to represent you?

Why Can't I Get My Continuance!?!?

The OJCC sponsors ongoing continuing education for our judges and mediators. We call it "Second Fridays," as that is when it occurs. It is presented 8-9 months out of the year by video, telephone or Webex. Several years ago Richard Thompson (former JCC in Orlando and now with Zenith) was kind enough to present a program "the View from the Other Side of the Bench." It was a success and we repeated it in May this year with Glen Wieland and Karen Gilmartin presenting. They did a great job, and will return in 2014 for a command performance. The whole purpose of the presentation was to bring issues or perceptions to light and to generate conversation. It did.

One of the issues raised in the conversation is a perception that JCCs deny continuances because of some fear of statistics, and the 210 day statutory parameter. A more specific example of this involved instances in which the parties agree to a continuance, but it is nonetheless denied. After "the View" program in May, I heard from some JCCs who were troubled by that perception among the bar. One suggested that I write about the 210 day parameter to provide some guidance on denials of continuances. While it is impractical to know what influences any judicial decision, the following are thoughts that have been shared in response to the perception of "statistic fear."

The statutory reference that comes first to mind is Fla. Stat. §440.25(4)(b). This says "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." This does not afford continuance just because the parties agree/stipulate to the continuance. It requires a showing of "beyond the party’s control." The section also states "A continuance 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 control of the parties." Thus, even if the parties agree that there is a need for continuance, that motion might not be granted if the Judge does not perceive the statutory predicate. As one Judge said to me after the May program, "tell us why in the motion, it only takes a few sentences." Another asked “why do we hear about the circumstances on the motion for rehearing, after the continuance motion has been denied?

Another point raised is the consent issue. Regardless of whether there is a stipulation for a continuance, and regardless of whether sufficient basis is plead for the " beyond the control of the parties" finding, if it is a second ("additional") continuance, the statute requires "written consent of the claimant." Usually this is done by stating this consent in the motion, and having the Claimant sign the motion. In other instances, attorneys attach a note from the Claimant which acknowledges that there will be an "additional continuance" and expressing the agreement with the granting of the "additional." However, there are occasions when the parties properly explain the "beyond the party's control" but fail to present substantiation of the Claimant's consent. This is a critical statutory element of any motion which seeks an additional continuance in a case.

Some take the position that the language in Fla. Stat. §440.25(4)(d) overrides these quoted statute sections in Fla. Stat. §440.25(4)(b). For example, (4)(d) says that "the claimant may waive the timeframes within this section." I am told Judges see that language cited in agreed continuance motions/stipulations. However, there is no period after "section" in the statute, the complete phrase is actually "the claimant may waive the timeframes within this section for good cause shown." In other words, this section may seem to support the continuance language in (4)(b) and it may be prudent to state the "good cause" in that motion. 

In short, the response I have heard from Judges is not that they are hesitant to grant continuances because of any statistic or statutory parameter, but that some feel that the requirements of the statute ("beyond the party’s control;" "consent of the claimant;" and "good cause shown.") should be plead sufficiently in the motion or stipulation to support a judicial finding that the statutory prerequisites for a continuance have been met. These judges' suggestions support the efficacy of pleading the reason for a continuance, rather than simply stating that the parties agree that a continuance is appropriate, necessary, or indispensable. 

Whether to grant a continuance or not is within the sound discretion of the trial judge. Certainly, I cannot know what drives a particular decision any better than anyone else reading the judge's order. However, the best advice and best practice is that a motion for continuance should address the statutory requirements, even if briefly, to justify the outcome which you seek. The better you explain it in the motion, the better your odds.

Sometimes Back to Basics

The last two weeks have brought two interesting settlement issues to my attention. Both were drafted and signed by attorneys with significant experience in Florida workers’ compensation. Therefore, I conclude that some reminders would be of assistance. 

Workers’ compensation in Florida is a self-executing system for the delivery of benefits to workers who are injured in the course and scope of their employment. Most workers’ compensation claims filed with the Division of Workers’ Compensation do not come to the attention of the Office of Judges of Compensation Claims. The claims that come to our attention generally involve disputes about specific benefits or settlement of all benefits. 

In the vast majority of settlements, there is a minimum of information submitted to our offices. Where both parties are represented in the settlement, our judges are asked only to look at whether the attorney fees are consistent with the statute and whether there has been an appropriate allocation of proceeds to account for child support arrearages. However, in the pro-se settlement we still consider the Joint Petition, a lengthy and involved expression of a variety of facts about the claim. The Joint Petition describes the accident which occurred, the medical care rendered, the attainment of maximum medical improvement (MMI), the consideration that is being rendered for the settlement and more.

There are two major categories of pro-se settlements. Those in which the injured worker has achieved MMI (§440.20(11)(b)) and those in which the employer/carrier has denied the claim (§440.20(11)(a)). These are distinct from each other under the statute, and therefore must be distinct in the settlement process. 

Elementary? Certainly.

When any pro-se settlement is concluded, the joint petition may settle the case in which that joint petition is filed. Attorneys cannot include other accidents in that joint petition and seek to settle these additional accidents unless they supply the documentation to allow the required findings about those additional accidents. 

For example, a case that involves a 2006 orthopedic knee claim is filed with the OJCC. The joint petition states the intention to settle that accident and a 2003 wrist strain and 2009 occupational exposure. Neither of these additional dates of accident are in the OJCC database. In other words, no case was ever filed with the OJCC regarding these other accident dates. The Joint petition contains no medical information about these additional accidents, and more critically no MMI date(s) for these additional accidents. The filing attorney is asking the Judge to find that the injured worker has reached MMI for these additional accidents so that they can be settled. Upon what would the judge base such a finding of MMI for the wrist or the exposure?

The situation can be more complicated when the multiple accidents are being settled under different statutory authority. Expanding on the example above, perhaps the knee and wrist claims were accepted by the carrier and treated, but the exposure claim was denied (because of late reporting, because of a medical opinion on causation, etc.). 

The OJCC is required by law to report to the legislature all settlements pursuant to §440.20(11)(a)(“shall submit to the Legislature a summary of all such reports filed under this subsection annually”). If a settlement order is entered settling three accidents, two of which are (b) and one of which is (a), this reporting becomes complicated. This means that each category of settlement will require a separate order, an (11)(b) for the orthopedic accidents and an (11)(a) for the exposure claim. Each case settled pursuant to (11)(a) will require a separate order to keep the required data, pursuant to the statute’s reporting requirements.

So, if the example were changed, and only the knee was accepted, and both the wrist and exposure were denied, then three orders will be required: an (11)(b) for the knee, an (11)(a) for the exposure and another (11)(a) for the wrist. Only in this way can the data be appropriately collected and reported to the legislature. 

To simplify matters, it is not necessary to file a separate joint petition for each accident settled. However, the joint petition should include the necessary information, either MMI (11)(b) or denial (11)(a) for each accident. The joint petition should express consideration for each settlement distinctly. This will allow the entry of a sufficient order regarding each of the various accidents. 

The devil is in the details? Perhaps. However, counsel should know that the details are required and should draft the paperwork accordingly. If multiple accidents, then an MMI or a denial for each. If multiple accidents, spell out the consideration for each.

Technology Spending is Predicted to be Huge, Should you Invest?

According to Harvard University, there are between 760,000 and 1,100,000 attorneys in the United States in 2007. The distinction between these numbers reflects a difference in the way counting occurs. The first figure comes from the Bureau of Labor Statistics and is focused on how many people earn a living practicing law. The higher figure represents the best estimate from the American Bar Association (ABA), which includes those with licenses who do not necessarily practice.

According to the Harvard site, the ABA figure resulted in a ratio of one lawyer for every 300 people in the U.S. They report that this ratio was “flat for most of the 20^th Century, and then rose dramatically after 1970, roughly doubling between 1970 and 2000.” This one hundred percent increase over thirty years is dramatic from any perspective. However, the Harvard page notes that this increase was “similar to increases in the share of service and knowledge-based jobs in the U.S. economy since 1970.” In other words, the Harvard conclusion is that the increase in attorney population is consistent with the more general shift from manufacturing in this country.

Harvard also notes that in 1970 there were 144 law schools, and by 2007 there were 196. This is fifty-two additional law schools over the space of 37 years.  They note that the volume of graduates from law school is more dramatic than the growth in new schools, while noting that that the “elite” school graduation volumes have not risen. This suggests their conclusion that the “non-elite” school graduation volumes are responsible for the increasing volume of attorneys.

What got me interested in this was an article in Forbes recently that described the growing technology dependence of medical professionals. The author notes that physicians are projected to spend about $69 billion on technology by 2017. These expenditures will seek the grail of leveraging technology to create provider (physician, technician, therapist) efficiency. The more efficient a provider can be, the greater the profit. That, at least, is the thought.

The Forbes author argues, however, that the American healthcare crisis is not a failure of efficiency. He notes that there is one licensed physician for every 370 people in the United States.  Please recall from above that there is an attorney for every 300 people. So, you would theoretically have an easier time finding an attorney than a doctor. The figures from Forbes break down to physicians spending about $20,000 each on technology in each of the next four years.

As an aside, the Association of American Medical Colleges states that it “represents all 141 accredited U.S. and 17 accredited Canadian medical schools.” According to the American Osteopathic Association, there are another 26 “osteopathic medical colleges” in the U.S. So a total of about 167 osteopathic or medical schools in the United States at the present time. I wonder whether an increase in ("non-elite) medical schools would help with availability and cost of care in this country?

The main point remains though. Will lawyers spend similarly on technology in the next four years? Not likely. Some of the $69 billion in medicine spending will be on cutting edge diagnostic equipment which does not translate to the legal field. However, there is support that lawyers are spending significantly on technology. A recent survey reported that the majority of attorneys are spending on tablets, such as the i-pad and similar. The market analyses also support that attorneys are investing in software, particularly applications, for organization of documents, tracking of resources, processing of documents, and more. Much of this is investment in commercial software to use, but many firms are investing in applications of their own, for use by their clients or the public generally. 

A challenge will remain though. Attorneys will be challenged to find technology that actually brings value to their practice, technology that actually results in efficiency and creates the leverage which leads to profit. That will be the challenge. Does a particular hardware or software actually make the practice more efficient, more effective, or more productive? If not, this  particular technology may be today's overpriced fad that is tomorrow's lament. 

I am a technology proponent and advocate. But I urge caution in the acquisition and encourage a critical consideration of these questions before you invest. The best source of advice, in my opinion, is the "early adopters" whom you know. They buy, use and position themselves to provide you good advice on whether a particular innovation is a fad or a necessity. Look to the marketplace to focus on the professions. With predicted numbers like $69 in the next four years, the developers and manufacturers will be drawn to the professions like bees to pollen. With the continued expansion of the lawyer population, the leveraging and exploitation of technology may define who survives and who thrives in the marketplace. 

What do I do now?

Recently an attorney filed a Motion for Fees under Rule 60Q6.124. This Rule requires that someone seeking a fee would file a motion, and continues "any motion for attorney’s fees and/or for costs shall be verified and filed." This particular motion was not verified. The result was an order by the Judge dismissing the Motion without prejudice.

When an attorney or party receives an order, they are informed by that order of some action by the adjudicator. The attorney or party then has the option to react. This may be by Motion for Rehearing or Motion to Vacate, See Rule 60Q6.122. It may by a motion for some other relief, See Rule 60Q6.115(1). It may be acquiescence to the decision. It may be appellate review. 

This may not, or at least should not, be a phone call by the party, attorney or the attorney's staff to the District Office staff to ask "what do I do now." In this instance, thought, that call came following the order dismissing the Motion for Fees. The question, "what does verified mean?" This is troublesome. It is more troublesome in that the question came from an experienced attorney. 

Verified is defined in Black's Law Dictionary as:

"The word 'verified,' when used in a statute ordinarily imports a verity attested by the sanctity or an oath. It is frequently used interchangeable with 'sworn'." 

It took less than a minute to look this up the old fashioned "book" way. 

In 1996, the Florida Supreme Court decided Millinger v. Broward County Mental Health Div. and Risk Management, 672 So.2d 24 (Fla., 1996). There the injured worker did not prevail at trial and sought appellate review of the Final Order. The appeal was not timely filed. It was dismissed by the Court of appeal. The case proceeded to the Florida Supreme Court with the Claimant arguing that the timeliness requirement should be disregarded because "Millinger's counsel's legal secretary attesting that she called the Office of the Clerk of the First District Court of Appeal and was informed by an unknown employee that Millinger's notice of appeal would be timely filed so long as it was postmarked within the thirty-day filing period." 

Thus, the injured worker sought review of the First DCA dismissal, arguing that detrimental reliance upon the clerk's representation was where the fault lay. The Supreme Court distinguished the authority Claimant cited, New Washington Heights Community Development Conference v. Department of Community Affairs, 515 So.2d 328 (Fla. 3d DCA 1987), and held:

"We find that the reasoning of the opinion in New Washington Heights is not dispositive of this case for at least two reasons. First, Millinger's untimely notice of appeal in this case was not the direct result of misrepresentations of a state official. Attorneys cannot escape procedural errors by claiming reliance on the advice of a court clerk. See United States v. Heller, 957 F.2d 26, 30 (1st Cir.1992); Neeley v. Murchison, 815 F.2d 345, 347 (5th Cir.1987); Spinetti v. Atlantic Richfield Co., 552 F.2d 927 (Temp.Emer.Ct. App. 1977). Second, it was both inappropriate and unnecessary for counsel's secretary to call the court clerk for legal advice. Florida Rule of Appellate Procedure 4.165(a) clearly states: 'An order of a judge of compensation claims may be appealed to the district court by filing a written notice of appeal with the district court or with any judge of compensation claims within 30 days from the date the judge's order is mailed to the parties.'" (Emphasis added).

In the same spirit, it is inappropriate and unnecessary for attorneys to call our District Offices seeking advice or interpretation. If an attorney does not understand an order or a Rule, there are processes and procedures for seeking clarification. If an attorney does not know how to proceed after receiving a ruling, the Judge's staff is not the place to seek advice or information. 

If no other solution comes to mind, and counsel is unable to proceed, it is possible a status conference with the Judge might afford edification or clarity. However, this is a last resort potential solution. If all else fails and this is elected, the appropriate method to seek such a conference is a proper motion, See, Rule 60Q6.115(1)("Any request for an order or for other relief shall be by motion").

Before one reaches this last resort, though, one should exhaust the other potential solutions. Research. In this case resort to a legal dictionary would answer the question. Consultation with peers or adversaries. In this case, I posit, a quick call to any of hundreds of workers' compensation practitioners would answer the question. 

Counsel should keep in mind that the OJCC staff are not law school graduates or members of the bar. Most often, any advice that is sought from OJCC staff will not be within their knowledge, which suggests that the only way they might answer a question would be consultation with the Judge. This raises the implication of ex parte communication, albeit through a conduit of OJCC staff. 

There are many exceptional attorneys practicing Florida workers' compensation law. There are many exceptional judges on this bench in the Twenty-First Century. Attorneys should bring their issues, and the Judges should adjudicate them. The normal course should be motions. That motion might have to be one asking for a status conference when one reaches a roadblock despite research and effort. Please make that your last resort and remember it is inappropriate and unnecessary for attorneys to call our District Offices seeking advice or interpretation from our staff.

Jacobson, more ripples on the pond?

More ripples on the surface yesterday in Tallahassee, which will come ashore across Florida. Sometimes the effects of a pebble dropped there will grow to a tidal wave as it moves outward. Other times, the effect of a boulder dropped there will create large ripples which, however, dissipate or diminish before reaching distant shores. It is sometimes difficult to predict which issues are huge and which just seem huge. It may also be difficult to judge the results of the impact just from an analysis of the ripples on the surface. 

Judges Van Nortwick, Wolf, and Wetherell concluded yesterday that sections 440.34(3) and 440.105(3)(c) are unconstitutional, as applied in Jacobson v. Southeast Personnel Leasing, Case 1D12-1103, June 5, 2013. The Appellant was represented by Michael Winer of Tampa and Paul Hawkes, former First DCA Chief Judge, of Tallahassee. The Florida Workers' Advocates filed Amicus Curiae supporting the Appellant. 

The Court noted that section 440.105, by its plain language "does not limit its application only to attorneys representing claimants, it has long been interpreted as such in practice." Altstate v. Fla. Dep’t of Agric., 1 So.3d 1285, 1286 (Fla. 1st DCA 2009). This section criminalizes the receipt of attorney's fees for representation in workers' compensation cases unless those fees are approved by the OJCC. A significant amount of judicial effort is invested daily in the consideration and order processes associated with motions for such approval of fees across the state. 

Section 440.34 limits the OJCC to approval of fees. The Judge "shall consider only those benefits secured by the attorney.” Kauffman v. Community Inclusions, Inc., 57 So.3d 919 (Fla. 1st DCA 2011)."

These two were brought into a different focus, according to the Court, by the lens of prevailing party costs. Traditionally, an injured worker could collect taxable costs if she or he prevailed in a claim against the employer/carrier. in 2003, the Legislature expanded this liability, affording the Employer/Carrier the same right to seek costs from the injured worker, in the event the E/C prevailed. The Court expanded the scope of costs, beyond those defined by the Uniform State Guidelines, in Morris v. Dollar Tree Store, 869 So.2d 704 (Fla. 1st DCA 2004), rendering the definition of "costs" less predictable, and encouraging the litigation of what is or is not a cost in particular cases. 

In Jacobson, the injured worker found himself on the receiving side of a motion to tax prevailing party costs. His attorney, having sought the benefits and litigated the case, withdrew from the case, after losing at trial, noting “it is no longer economically viable for the undersigned to continue representation of the claimant in this case.” The claimant sought to hire Mr. Winer to resist this claim for costs. 

The First District concluded that sections 440.34(3) and 440.105(3)(c) are unconstitutional, as applied in this case. The Court relied upon the First Amendment to the United States Constitution, and the right there under to "'to peaceably assemble' and to enjoy freedom of speech," and to "petition the Government for a redress of grievances." The Court concluded that "the speech at issue here is Claimant’s own words – given voice through his attorney – spoken or written before the court in his defense during litigation," and that the Claimant's rights "are implicated because the right to hire an attorney stems from these three enumerated rights." 

The Court held therefore that "the prohibition on claimant-paid attorney’s fees in sections 440.105(3)(c) and 440.34 are unconstitutional, and thus unenforceable, as they apply to cases where the fee is for legal services performed in defense against an E/C’s motion to tax costs." 

Judge Wetherell wrote a concurring opinion to clarify that his interpretation and analysis is limited to the application of these statutory sections to this particular factual setting, unconstitutional as applied here, (emphasis in original), and that "this does not mean that these statutes are unconstitutional in other circumstances." 

Certainly, there is a significant volume of litigation over taxable costs in Florida. Less certain is how many injured workers, like Jacobson, can find the resources to pay an attorney $175.00 per hour (as was agreed in this case) to defend them against claims for such costs. 

The stone is in the pond, whether a pebble or boulder, how far the ripples travel and their effect on the distant shores remains to be seen. 

MEAC opinion 2013-001 and Workers' Compensation

I received a copy of MEAC opinion 2013-001. The mediator who requested that opinion is employed in a court mediation program. She or he asked the Mediator Ethics Advisory Committee (MEAC) about parties or attorneys who attend mediation telephonically. The Mediator explained that she/he experiences situations after such mediations where the mediation agreement is transmitted to the telephonic attendee, with the expectation it will be executed and returned in compliance with the Court order that allowed telephonic appearance. 

However, there are instances in which the agreement is not returned as expected. The inquiring Mediator inquired whether this failure to return the agreement could be reported to the Court. The Mediator questioned whether this failure to comply with the Court’s order could be reported to the Court by the Mediator or the “Court mediation unit.” The Committee concluded that the failure to return the documentation is “non-verbal conduct intended to make an assertion” and is protected by the mediation confidentiality.

The context here includes a desire of the Court to know who is not complying with its orders, and thus perhaps a desire of the Court to thereafter use that information in deciding who might receive permission to appear telephonically in the future. 

In our system, the Judge of Compensation Claims does not decide who may appear by telephone. Rule 60Q6.110(5) provides “No party shall appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator. Any party appearing by telephone has stipulated to be bound by that party’s attorney of record’s signature on the mediation report.” Thus there is no reason in our system for there to be any communication for the purpose of affecting the outcome of future requests for permission to attend by telephone. This is a marked distinction of our system.

Additionally, we need a mediation report uploaded to our case docket. Our rules provide that the preparation of a report is mandatory, 60Q6.110(7): “Immediately following the conclusion of a mediation conference in an open OJCC case, the mediator, whether state, adjunct, or private, shall prepare a report stating which issues or claims in dispute are resolved and which remain unresolved, and whether the parties completed a pretrial stipulation.” This report shall be uploaded to our case docket, the responsibility therefore being upon the injured worker, 60Q6.110(7): “The claimant shall file with the judge within five business days of the mediation conference the mediator’s report and mediation settlement agreement, if any, together with any pretrial stipulation executed by the parties.”

So, if an agreement is sent to a party or counsel for signature, and not timely returned, an OJCC mediator should file a report of impasse, which is essentially what the MEAC opinion refers to as “no agreement” reported “to the Court.” This report of “no agreement” is all that need be filed. That report should prompt the Judge of Compensation Claims to take other action on the case. If one of the parties alleges that they did have an agreement, despite some other party’s failure to sign the agreement, then the aggrieved party can file their motion to enforce with the Judge and proceed to prove their case.

According to the MEAC opinion, communicating to the JCC that the mediator is “waiting for signature” violates confidentiality as does communication that the “documents were not returned.” Therefore, our mediators will not make these communications, but will simply report that there is “no agreement,” or impasse. 

The opinion also encourages that mediators explain this to the parties at the outset of mediation, in the “orientation” stage. In this way, everyone will be conscious of the result which will follow any such failure to sign and return the mediation agreement. It is hoped that having read this blog post you will be better prepared for mediation in this context.

"Stalag OJCC," Really?

I received an interesting email recently. The writer noted that she had read my “blog initially with interest but then realized it was just more of the same old schlock.” She perceived that I “seem to spend quite a bit of time attempting to ‘accurately inform the public’ of what is happening at Stalag JOCC but the truth is never really revealed, is it?” She noted that we have begun requiring our mediators to account for their work time by clocking in and out” and questioned why the Judges do not do so. She also noted that “You've got absolutely no accountability where they (judges) are concerned.”

First, my apologies if this blog is the “same old schlock.” It is not intended to be, and it is hoped that occasionally there will be a nugget or two that will be of use to you in the world of workers’ compensation. Beyond that, it is certainly hoped that people generally do not perceive the Office of Judges of Compensation Claims as a German prisoner of war camp as implied by the reference to “stalag.” Over the last ten years, we have made significant strides in modernizing this agency. Computer software and hardware have been upgraded, work environments have been modernized where possible and cleaned/organized where modernization or upgrading was not practical. I believe our work environments today are better than they have ever been. 

There has also been significant effort at accountability. The performance of this office is more transparent today that at any time in history, of which I am aware. I hear this perception reinforced often by the seasoned practitioners around the state, some of whom have practiced beyond 40 years, some approaching 50. They tell me that they believe we have the best bench today that we have ever had. That is high praise indeed when you consider the many diverse and dedicated people that have served this agency over the years. 

Our judges are accountable to the state and to the people they serve. I will not tell you that the process of appointment and reappointment is perfect. I would argue that there likely is no perfect process that could be engaged. Indeed, the perfection is in the eye of the beholder. Regardless of what process was engaged to select or retain judges, someone would find fault with it. I respect that and recognize that people will feel differently about things. The diversity of views is to be expected, and is one of the best things about this country in which we live. 

It is my hope that we are all living up to the standard of public service. It is my hope that we are delivering an efficient and effective dispute resolution process to employees and employers alike. These are the people for whom this system of workers’ compensation was intended, and they are the people whom we serve. It is my hope that this blog is not the “same old schlock,” and even more so I hope that if it is you will be kind enough to tell me. 

I thank the writer who provided me the feedback that premised this blog post, and hope that I would hear from more like her. Your criticism, suggestions, and feedback are always welcome. While I cannot promise that the Office of Judges of Compensation Claims will or can solve all of the problems perceived, I can promise that the suggestions and comments of the public are always received with an objective attitude and are considered on their merits. 

If you feel that “the truth is never really revealed,” state the truth as you perceive it. It is not practical to focus on “You've got absolutely no accountability where they (judges) are concerned.” That is a broad allegation. If there are specific facts which you perceive, however, I will be pleased to consider your perceptions, answer your questions, and continue to improve this Office.