Separation of Powers - An Intersting Analysis

Can Courts convey authority, or do they just interpret the law, which they are given by the Legislature?

There is a concept of American constitutional construction that seeks to define and constrain government, called "separation of powers." The idea is simple enough, though it is perhaps less respected today than historically; perhaps less than intended. But, interpreting the intent of constitutional framers can be a difficult endeavor. 

Separation of powers, stated simply, keeps the state's executive out of legislative and judicial responsibilities, while keeping the courts out of executive and legislative responsibilities, and keeping the legislature out our executive and judicial responsibilities. The message of separation of powers is "focus on the job that the people have given to you"; after all, under our American concept of government, the people are the root-source of all authority. 

In this constitutional construct, "we the people" have given specific (called "enumerated") powers to the government through the U.S. and various state constitutions. From our delegation of our authority, we have empowered government. From our delegation comes government's power, and from our delineation and definition comes the need for their various powers to be separated and distinct. This came to mind when I read a recent thought-provoking piece in which former U.S. Representative Mickey Edwards asserts that We No Longer Have Three Branches of Government. 

In 2004, the Florida Supreme Court provided us some insight on separation of powers in Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 494 (Fla. 2004). The Court ended by clarifying that separation of powers precluded it from making rules for workers' compensation proceedings in the Office of Judges of Compensation Claims. First, It began by describing a long history through which it had nonetheless done so for decades.

It began in 1973. Workers' compensation had come to Florida in 1935, and had managed without procedural rules for almost 40 years. Then, in 1973, the Court adopted formal rules of workers' compensation procedure in In re Florida Workmen's Compensation Rules of Procedure, 285 So.2d 601, 601 (Fla. 1973). The process began with rules drafted and proposed by the Industrial Relations Commission of the State of Florida ("IRC"). The Court recognized then that the proposed rules were for executive branch agency officials, then called "a judge of industrial claims" which was a "quasi-judicial officer.” As an aside, back then the judge's decisions were subject to appellate review by the IRC. 

Under the statutory construct, the appellate decisions of the IRC could then be reviewed by the Supreme Court, and therefore the Court found it had "a direct interest in" the process and procedure by which cases progressed. Under its constitutional authority to "adopt rules for the practice and procedure in all courts...,” the Court adopted those 1973 procedural rules, finding that the fact that a "court" would later potentially review the decisions made the whole workers' compensation process "more judicial than quasi-judicial." In that decision, the Supreme Court was in error, and it unconstitutionally adopted rules for the executive branch to follow. 

But, the Court was not alone. The next year, the Florida Legislature passed a statute that said the procedural rules would come from the Court, essentially legislatively "delegating" the rule-making authority to the Court. Thereafter, the Supreme Court adopted rules and revisions repeatedly, approximately every two years. Initially, the Court had cited the Florida constitution for its authority, but in each decision of the Court thereafter, adopting new rules, it cited instead to the 1974 statutory delegation. Each time that is until 1992 when the state constitution was mentioned again. 

In 1993, the legislature amended the statute and instead delegated authority to make rules to the "Office of Judges of Compensation Claims (OJCC)," part of the Department of Labor and Employment Security (DLES). The OJCC ignored that delegation. In 2001, when the OJCC became a part of the Division of Administrative Hearings (DOAH), the statute was amended yet again delegating that authority to DOAH. Unlike the Department of Labor, DOAH took the legislature at its word and promulgated rules. 

The Florida Bar disagreed with the legislature. The Bar saw this legislative action as taking away the authority of the Supreme Court. It sought to have the Court continue rule adoption for the OJCC in 2002. The Bar felt that the "Legislature had improperly usurped" the Court's rule-making authority. It was the Bar's petition to amend the Court's then existing workers' compensation rules in 2004 that resulted in Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 494 (Fla. 2004).

The Florida Supreme Court concluded there that it lacked "the authority to promulgate rules of workers' compensation procedure." The Court explained that its authority and powers emanated from "article V. of the Florida Constitution." And, that article's grant of authority to "adopt rules for the practice and procedure in all courts” is limited to courts. After a review of the constitutional definition of "courts," the Court concluded that the OJCC is not a "court of this State." (Confusion abounds still among practitioners and judges alike who for some reason still refer to JCCs as "courts," despite this clear authoritative interpretation to the contrary). 

In its analysis, the Court noted that it previously clearly made this same point in 1994, concluding that “compensation claims judges are executive branch officials, not judicial branch officials.” Jones v. Chiles, 638 So.2d 48, 51-52 (Fla.1994). But despite that recognition, the Court continued thereafter to make rules for the executive branch for another ten years. 

The Court in 2004 then explained separation of powers and concluded that it had no authority to make rules for the executive branch. It said "this Court has no authority," and "nor has this Court ever had the constitutional authority" to make rules of procedure "for this executive entity." The Court concluded that it had acted unconstitutionally for over thirty years, from 1973 to 2004. And, the Court therefore receded "from the decision in In re Florida Workmen's Compensation Rules of Procedure, 285 So.2d 601 (Fla.1973), to the extent that that case and all subsequent cases conclude that this Court had jurisdiction to promulgate such rules." (Yes, Florida used to regurlarly use the genderist "workmen's")

The Court also addressed the legislative delegation of rule-making authority. It held that the "Legislature in 1974 had no authority to" delegate authorization, authority or power over such rules to the Court. It clarified that the power "conferred upon the courts by the Constitution cannot be enlarged or abridged by the Legislature.” The Legislature's 1974 enactment of section 440.29(3), Fla. Stat., which said the Court would make rules, was "an unconstitutional delegation of executive branch authority to the judicial branch in violation of the Separation of Powers Clause of the Florida Constitution. See art. II, § 3, Fla. Const."

The Florida "Separation of Powers Clause" says "no person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Thus, only when the Florida Constitution provides for delegation of authority will the exercise of delegation be appropriate. The Court noted that were it "to conclude otherwise, the Legislature would have the discretion to statutorily alter this Court's jurisdiction under the Florida Constitution." So, what the people delegate to the Courts in our constitution, the Legislature cannot change. The power of government comes from the people. 

Thus, the Supreme Court retreated in 2004 from a decades-long involvement in workers' compensation rules in the executive branch. In it, the Court conceded that it had acted unconstitutionally for decades. It provided explanation of both Separation of Powers and Delegation. The Court clearly and succinctly clarified that Judges of Compensation Claims are not, and frankly have never been, "courts." It took 30 years for the Court to reach that conclusion. In the thirteen years since 2004, practitioners and judges have nonetheless continued to refer to the OJCC as "this court." 

Perhaps before the 30th anniversary of Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 494 (Fla. 2004), practitioners and judges alike will accept that the OJCC is not a "court of this State," and will quit referring to this office as "this court?" Perhaps the Court's analysis is of value in recognizing that because we become accustomed to the way things are, that does not necessarily mean things are the way they should be? 

Today, I insert the 2016 "Best Blogs" banner in my post for the last time. As nominations open tomorrow for the 2017 "Best Blogs" awards, the 2016 banner becomes history. I am proud to have been selected last year. When the 2017 judging is concluded, perhaps I will be able to display that banner here for the next year?

Challenges in Policing Appearance

Last fall, I ran across an article about banning flip flops and exposed belly-buttons for Kentucky employees. This described a broad policy for all Kentucky state employees, and a more specific set of guidelines for the Kentucky Labor Cabinet. It struck me as interesting because of various recommendations I have heard in the past for an OJCC dress code. I touched on this subject briefly last April in Aspire to Apply the Law Fairly, essentially recommending visitors to our offices be "dressed neatly."

The Kentucky guidelines state: "personal appearance plays an important role in projecting a professional image within the Cabinet, to the citizens of the Commonwealth who we serve, and to other public and private professionals with whom we associate." The document concedes that there will be various challenges in consistent compliance with any dress code and therefore also encourages "good judgment and common sense." 

This order defines "business attire," "informal business attire," "business casual attire," and "non-business casual attire." And there are distinctions based on gender. For men, "business attire" is essentially a suit or jacket and tie. For women, it means "dresses or suits with skirts or slacks with a blouse, dressy top, and/or jacket or dress sweater, and flats or dress shoes." 

"Informal Business Attire" is as specific, essentially allowing one to be without a jacket and tie. And there is a specific list of inappropriate shoes: "athletic shoes, tennis shoes, and hiking shoes are not permitted." The intent is that the clothing is "sufficiently formal" to "to meet with the public at a moment's notice." 

"Business Casual Attire" is slightly more casual. This category allows polo shirts without a jacket, but maintains the prohibition on certain shoes. While it relaxes the categories of acceptable slacks, "jeans or denim pants of any length are not permitted" 

Finally, "Non-Business Casual Attire" allows "jeans and athletic shoes, tennis shoes, and hiking shoes." 

The policy requires that Administrative Law Judges (ALJ) and Commissioners and members of the Kentucky workers' Compensation Board "shall dress in Business Attire, except that Informal Business Attire may be worn on Fridays." ALJs are "expected to wear Business Attire at all court or hearing appearances or meetings with counsel." So, for judges, it is suits sports-coats, and dresses. There is "blue jean Friday" for ALJs.  

Managers and supervisors are to dress in "Informal Business Attire, except that Business Casual Attire may be worn on Fridays." And the remainder of employees "shall dress in Business Casual Attire in the office environment, except that Non-Business Casual Attire may be worn on Fridays." There is "blue jean Friday" for managers and supervisors.

The directive goes on to say that employees must be clean and "free from offensive body odor." They may not wear soiled clothing, exercise clothing, shorts, clothing that exposes the abdomen, or chest area, clothing with commercial writing or graphics which are oversized; clothing with writing or graphics that could be considered offensive, vulgar, violent, sexual, or insulting to a reasonable person; flip-flops; camouflage clothing; slippers; and hats or caps.

The policy calls upon supervisors to send employees home if their choice of wardrobe does not comply. 

The policy makes perfect sense, but it is amazing that pages are required for such an endeavor. Must employers really tell employees to be "free of odor," not to wear vulgar or offensive (you know, like an FSU or UF or UMiami or Alabama shirt), and to leave the flip flops for the pool? 

As an aside, the policy carefully defines "flip flops" as "flat, backless platform shoes with a strap between the first and second toe or strap(s) across the top of the foot and which typically produces an audible sound when the platform hits the bottom of the foot." I suspect that someone, at some point, professed confusion when confronted wearing such an "audible" shoe. Thus, a detailed definition of flip-flop was required. 

But, would anyone think to modify a pair of these cheap platforms, to put the strap between the second and third toe? Such a modification might just avoid the definition and thus the prohibition on a particular "audible" shoe. 

I suspect that there is discussion of attire in various Florida offices. I know there used to be. Florida has had judges famous (infamous?) for trial attire. One, years ago, had never been seen with socks. He consistently wore what we called "boat shoes" (or "docksiders"). There was a judge that consistently (every time you saw him) wore the same tie (some prognosticated that he had a closet full of identical ties, others thought he owned only one). Another consistently wore the same blue blazer (which on non-trial days hung conspicuously on the back of the office door). 

There are probably those who notice that polo shirts are my normal attire around the office. I thus often fall into Kentucky's "business casual" category. But, you will not catch me at a public event or hearing without jacket and tie. 

I favor the process exhibited by the Kentucky effort. It is important that there are both standards, and that employees are informed. The Division of Administrative Hearings has a Policy on Dress Standards. It makes no distinctions based on job category or position. It makes no distinctions based upon gender. It says (all italics direct quote):

All personnel shall dress appropriately in business attire. Jeans and other casual dress will not be worn in the course of the normal work day in the office. Tank tops, bare midriffs, shorts, bare feet, and revealing attire are not acceptable.  

This policy will not apply when employees are engaging in manual labor, such as boxing and moving files (pre-approved by supervisor); when employees are in the office briefly while on vacation or other leave; or on designated casual days (i.e., “Casual Friday” when employees may wear semi-casual clothes to work, such as jeans). Any other exceptions must be approved by the Director and Chief Judge or the Deputy Chief Judge. 

I think that this is probably guidance enough. Perhaps the same policy is guidance enough for those who visit our facilities. Wear appropriate "business attire," avoid jeans and revealing clothing like shorts and tank tops. If your appearance is professional and clean, it will demonstrate respect for the process, your clients, and the people (employees and employers) that it is meant to serve.

And, please leave your "audible" shoes at home, regardless of which toes the strap is between. 

More on Prevailing Party Costs in Florida

A recent case from the Florida First District Court of Appeal addressed a constitutional challenge to the prevailing party costs provisions of Florida workers' compensation. In Govea v. Starboard Cruise Service, Inc., the court denied the challenge, and provided some pointers on constitutional challenges. In Appellate Lessons, Explanation, Contrition, Persistence, I noted that "lawyers rely upon rulings in one case, with an expectation that other similar cases will be decided in a similar manner." In other words, it is practical and efficient to learn from the cases others have prosecuted or defended.

In Govea, the recovering worker sought benefits, and did not prevail. The Employer/Carrier sought "prevailing party costs" pursuant to "subsection 440.34(3), Florida Statutes 2 (2011)," which the Judge of Compensation Claims awarded. The District Court affirmed. There was little discussion from the Court of the particular costs in this case. The discussion was centered instead upon arguments that the costs statute is unconstitutional.

The Court reminded three important issues with challenging the constitutionality of workers' compensation cases.

First, Judges of Compensation Claims (JCC) "do not have the authority to address constitutional issues."

Second, constitutional "issues may be raised for the first time on appeal, without having been preserved below.”

And third, that parties before a JCC, seeking to later make such a challenge, "may build a record so that constitutional challenge might be made on appeal."

This is challenging to some lawyers. Knowing the Judge of Compensation Claims cannot rule on constitutional issues, they refrain from (or forget) introducing evidence on those issues. But, they have the ability to make arguments and present evidence at trial, on subjects that a JCC cannot and will not decide. Trial is an opportunity to build the record of facts and evidence that a lawyer might later use "for the first time on appeal," to seek a constitutional decision. This is a critical point for attorneys to remember.

The recovering worker in Govea argued on appeal that the "imposition of prevailing party costs" is "unconstitutional as a denial to access to courts." The Court reviewed previous decisions regarding access to courts, challenges and mentioned some critical points.

First, someone must have "standing" to pursue any particular legal challenge. Standing means that the person or party has a significant interest in the outcome of the case. I explain this to students as a direct and personal harm that will occur from the application of some law or regulation. The Court in Govea explained that the challenging party "must demonstrate ‘an injury which is both real and immediate, not conjectural or hypothetical.” (Citations omitted).

The court noted that a similar challenge to the prevailing costs provision had been raised in 2011 by another recovering worker, Robert Punsky. In that case, the recovering worker argued that "it will be ‘a rare injured worker’ who can afford to pay the costs of litigation when his claim fails.” This urges a standard of "affordability." Should people be excused from financial implications if they feel they cannot afford to pay?

The logic of this argument is reasonably clear: if a law provides for someone without resources to face liability, then that law is unconstitutional. But the Court in Punsky did not accept that argument. Instead, the Punsky Court concluded that the record (the evidence presented at trial to be used "for the first time on appeal") did not support that the award of prevailing party costs is "an injury which is both real and immediate, not conjectural or hypothetical.”

In Govea, the Court concluded the same. It noted the recovering worker's argument that "the requirement of claimant-paid costs has a potential chilling effect on the pursuit of claims." The Court noted that the recovering worker "offers no support of a real and immediate injury." As such, the Court concluded that the recovering worker "failed to establish a real and immediate injury resulting in a denial of access to courts," and thus his challenge was denied.

The result is that Govea is liable for the prevailing party costs pursuant to "subsection 440.34(3), Florida Statutes 2 (2011)." According to the trial order of April 20, 2016, this amounts to $3,170.00.

Back in 2012, David DePaolo concluded that taxation of prevailing party costs should be one-sided. He advocated a test of "ability to pay." If the E/C lost a case, it should pay costs to the recovering worker. If the recovering worker lost, then each party should bear its own costs.

Never one to sugar coat anything, David titled his piece FL Taxing Costs - Irrational at Best, Unjust at Worst. His logic was fundamentally that requiring workers' compensation claimants to be responsible for the costs of others created an "inequity" by "pitting individuals of limited means against much larger litigants with much greater resources." He concluded that this is "something that workers' compensation laws were originally intended to rectify."

I had a long conversation with David about this post, and frankly it seems like yesterday (I still struggle to accept that he has passed from this world). His point was that subjective fairness should be somehow measured and determined, and that regulations and statutes should ensure fairness. I conceded his point. Years later, I would realize that a great portion of our individual struggles and disagreements come down to definitions, and I penned The Devil is in the Definitions (June 2016). There rests an area in which there remains disagreement and discontent. What is "fair," and how is that determined.

In some measure, "fair" may not be the point. Perhaps because what is "fair" is often subjective. It depends, it has been said in an old idiom, on "whose ox is being gored." Should liability for costs be dependent upon the ability to pay? Should it matter whether the a particular recovering worker that does not prevail has or lacks resources? In deciding "fairness" should it matter that one side is "larger" and has "much greater resources," regardless of the worker's ability or inability to pay? Should it matter that those "larger" entity resources are accumulated by collecting premiums that contribute to cost of most of the goods and services we all consume?

The real point may not be whether laws are subjectively "fair," but whether laws are permissible within the constitutional construct that we have defined for ourselves. It is worth stressing that no one person made up our laws in this country (for that we are truly blessed). Instead our laws were made up by great gatherings of persons in convention and congress, each hopefully trying to do what they believed was right. Whether it is the content of our constitutions (there is the U.S. Constitution, but each state has one also) or our statutes and codes, our laws come essentially from ourselves.

Certainly, we all likely perceive some particular laws which we might wish were different, or with which we individually disagree. We all likely perceive some law as "unfair" from our own subjective perspective. But, those laws and constitutions embody the collective wisdom of democracy. In the end, our structure is built around elected officials striving for their perception of fairness in our laws, and we ask our courts to measure those laws against the protections and limitations in our constitutions.

The court outcomes may be easy to accept or may challenge our sensibilities. But, perhaps that is more related to our personal values and our own perceptions of "fair." Those perceptions and beliefs may parallel the beliefs of others, but may also contradict others. In the end, perhaps it is impractical to hope that all of us would agree 100% on anything? But, the lessons of Govea are worthy of review. It is worthwhile to understand the method for making a record, and presenting a constitutional challenge. Doing it well does not mean one will prevail, but doing it well will likely enhance one's chances.

Dr. Death Sentenced to Life in Prison

I habitually read the news every day. As I scan headlines, I assiduously avoid various subjects that tend to increase my blood pressure. Among these are losing New Orleans Saints scores, people operating meth labs, high-speed police chases and more. 

On February 21, 2017, I read a headline that drew me in: Former Neurosurgeon Sentenced To Life In Prison For Maiming Patients. That one was catchy for a couple of reasons. Any headline with "maim" or "maiming" will likely be an attention-grabber for me, unless it is "Forty-Niners Maim the Saints Sunday." It is also attention-grabbing when you see "life in prison" in a headline. The seriousness of the topic is certainly suggested. But, "life" for "maiming," there has to be more to the story. 

I read the story. It was disturbing, but I went on with my morning. As I worked, the theme song from an old television show kept running through my thoughts. 

Come and listen to my story about a man named Jed
A poor mountaineer, barely kept his family fed,
And then one day he was shootin at some food,
And up through the ground come a bubblin crude. 

As this tune played and replayed in my thoughts, I subconsciously substituted lyrics, and the connection of this song to my morning became clearer. I re-wrote the lyric thus

Come and listen to my story about a doc named Chris
A neurosugeon god, with patients that he bled,
And then one day he was cuttin once again,
And botched up the cuttin til the lady was dead

dead that is, bled out, never coming back.

According to CBS News Dallas, Dr. Christopher Duntsch "botched" thirty-two spinal surgeries. Two of his patients are living in wheelchairs today. Two other patients are dead. These are not flattering testimonials to this physician's skill or expertise. But, the story becomes more disturbing. The jury convicted Dr. Duntsch of "intentionally injuring the patients he was supposed to be helping." This was apparently not a case of an incompetent surgeon, but a case of someone that decided to hurt people and used a position of trust to pursue a goal.

Last November, D Magazine labelled Dr. Duntsch "Dr. Death" and said he "left a trail of bodies." Its headline proclaimed "the shocking story of a madman with a scalpel." It reported that the two patients who died following surgery were Kellie Martin and Floella Brown. Ms. Martin died "from massive blood loss, and Ms. Brown's "sliced vertebral artery triggered the stroke that killed her."

According to CBS News, "prosecutors say Duntsch was malicious and reckless while he performed surgery." The recent criminal prosecution centered on victim Mary Efurd, who underwent a "botched" spinal surgery in 2012 and is now confined to a wheelchair. The doctor's conviction was for "intentionally causing serious bodily injury to an elderly person." One count, sentenced to life in prison.

According to the Dallas News, Ms. Efurd lost a third of her blood during the surgery performed (some will likely see a trend emerging here). Dr. Robert Henderson treated Efurd after the surgery. He "said Duntsch had 'done virtually everything wrong.'" Dr. Henderson's treatment revealed "implants placed in muscle instead of on bone, a screw drilled into her spinal cavity and a nerve root that had been amputated." He commented that "It's as egregious as you can imagine." 

CBS News reported that "jurors heard from several people who shared their nightmares." They testified that Dr. Duntsch "maimed them on purpose," from July 2012 and June 2013. Note that this behavior and malfeasance went on for a year. People were maimed and people died. Dr. Duntsch's attorneys argued that he did not do anything intentional or criminal, but that he was "just a lousy surgeon."

The Dallas News reported that these patients included Philip Mayfield, who "often passes out from chronic pain." Another patient, Barry Morgaloff, "limps with a brace and a cane as a result of irreparable nerve damage in his spine." Jeff Cheney, "woke up paralyzed from the neck down on his right side." Jackie Troy, "talks in a permanent whisper and almost died from an infection" from "puncture wounds in her throat." The News reported that Dr. Duntsch's attorneys claimed his errors resulted because "he was 'not a skilled surgeon'," and the chaotic operating room" distracted him. 

D Magazine's story featured a patient named Lee Passmore. He was "hooked on prescription opiates" for the "pain radiating from his lower back, down each of his legs." His pain management physician referred him to Dr. Duntsch. After surgery, he "can’t feel his feet," and he walks using his "hips to heave" his leg forward. 

That surgery, to remove a herniated disc, required assistance from a general surgeon. D Magazine reports that Dr. Mark Hoyle fulfilled that role. He first met Dr. Duntsch that day. He opened an incision, "and moved the blood vessels and organs out of the way," to facilitate access to the disc. As the surgery proceeded,Dr. Hoyle noticed "blood and not much else." He said it "was pouring out of the epidural blood vessels and pooling in the disc space." (others may now be joining those who see a pattern). Dr. Hoyle said that Dr. Duntsch commented at that point that "he was working by feel, not sight." 

According to D Magazine, Dr. Duntsch then "announced that he would be removing the ligament that separates the disc from the spinal canal." This is an important anatomical "stabilizer" and it is "less than a millimeter from the spinal canal." This is when Dr. Hoyle "stepped in front of Duntsch to block his way." Dr. Hoyle cleaned the wound and stopped the bleeding, but the surgery proceeded. Dr. Duntsch installed a "surgical cage," then "tried to reposition it" and instead "stripped a screw" holding it in place. Dr. Hoyle says he "was the first surgeon" to refuse to work with Dr. Duntsch, "but not the last."

D Magazine reported that there were "rumors circulated of late-night partying leading into early-morning rounds. There were "whispers of drug and alcohol abuse." It is apparent that there were some signs and symptoms that might have warned patients, or at least other medical professionals, of untoward outcomes. It is not clear whether those who were "in on" the "rumors" and "whispers" did anything to alert the authorities in Austin, the management of the hospitals, or the patients under Dr. Duntsch's care. 

Thirty-two patients with complaints following "botched" surgeries. The D Magazine story suggests that it is common, at least in some instances, for a surgeon and patient to be accompanied in the operating room by others. Lee Passmore was certainly lucky that Dr. Hoyle was present for his surgery. Had Dr. Hoyle not stepped in to stop the bleeding, Mr. Passmore might have joined Kellie Martin and Floella Brown, whose surgical blood loss was fatal. Who were the other medical professionals involved in these thirty-two surgeries? What did the anesthesiologists, nurses, assistants and other surgeons notice and think? What did each of them do to alert authorities and prevent further harm?

I guess I am left wondering why it took thirty-two patients, maiming, and two deaths before this surgeon was stopped. If the public is to have any faith in the medical care system, someone needs to explain a few things. First, how did this go on so long without intervention by hospitals or the state? Second, if such travesties can go on in this manner, what confidence can we consumers have that other doctors are not similarly misbehaving or under-performing?

How many fatalities does it take before there is publicly available information from news sources? How many rumors before a doctor is reported to hospital administration? What is the role of other medical professionals in spotting and reporting situations like this? What responsibility does the hospital have in spotting trends and outcomes? What role should the payer play in monitoring outcomes and trends? So many questions. 

After a horrific story like this, who will restore our faith that medical professionals, state license boards, and hospital administrations are worthy of our trust and faith?

A Comp Fraud Drug Dealer Kills

WorkCompCentral recently reported on sentencing for a Drug Dealer Who Once Defrauded Federal Comp System. The story has several points worth consideration. It has ties to a workers' compensation claim, illustrates issues with workers' compensation fraud, and reminds us of the challenges that opioids cause for our country and its citizens. 

The opioid challenge part is nothing new for readers of this blog, see Maine Makes Opioid Changes, Opioid Guidelines from the CDC, Like a Broken (Drug Death) Record. I think too many people are dying in this country from drug overdose, and have repeated that in many forums. 

The subject of this story, Mr. Christopher Koegl, was a veteran, employed by the U.S. Postal Service. He was entitled to lost wage benefits as a result of a knee injury at work. The U.S. Attorney says that he was also "required to immediately report if he returned to work or obtained new employment," which included self-employment. Reporting on employment is not an uncommon feature of workers' compensation laws that provide for payment of wage-replacement benefits. 

In September 2014, Mr. Koegl was arrested and was charged with "possession of heroin with intent to deliver." He plead guilty to being a drug dealer and was sentenced to 5 years probation. (Red flag #1, heroin dealing = probation?) 

According to the U.S. Attorney's Office, he was also sentenced in March 2016 to probation for making false and fraudulent statements in order to qualify for workers' compensation benefits. Mr. Koegl was indicted for submitting "a false form to the Department of Labor. In it, he attested that "he was not self-employed or involved in any business activities" during the time he was both receiving workers' compensation benefits and running his drug business. (Red flag #2, on probation and committing felony fraud = probation again?)

The felony fraud conviction resulted in cessation of Mr. Koegl's workers' compensation benefit entitlement, and he was ordered to pay over $31,000 back to the government. A drug dealing workers' compensation fraud was caught and convicted. The penalty is to pay back the money, years of probation and no more workers' compensation. If the penalty for stealing $31,000 is paying back $31,000, will that deter people from stealing?

But as noted above, Mr. Koegl made it back in the news recently due to yet another conviction. According to WorkCompCentral, Mr. Koegl was running a "full-fledged operation" in 2014. When he was arrested for dealing drugs, he had "more than 20 grams of heroin, cash, a digital scale, pay/owe sheets and, in the trash, 65 tin foil squares containing black tar heroin residue." And, Mr. Koegl had a three-person sales force assisting him with marketing his product. But, he was sentenced to probation.

How did it all start? Mr. Koegl told investigators that he suffered a knee injury in 2010. One source reported that he also had a "military injury" at some point and that he was prescribed opioids for that condition. For some reason, Mr. Koegl was later unable to "get opioids" for his complaints and he therefore turned to heroin. At some point, he became addicted to heroin, and then became a drug dealer to support that habit. 

Alexander Herdt, a customer, somehow came in contact with one of Mr. Koegl's salespeople and purchased heroin. In 2014, Mr. Herdt fatally overdosed. Cellphone records led authorities to connect Mr. Herdt, the three salesmen, and Mr. Koegl. All four were indicted for "conspiracy to distribute heroin," but Mr. Koegl was also charged with "distributing heroin resulting in death." If convicted of that, Mr. Koegl faced "a minimum 20-year sentence." His recent plea bargain avoided that. 

The described circumstances involve elements that individually are unfortunately not uncommon today. Medication dependence exists. Some people are eventually denied access to prescription opioids. Evidence supports that some of those people turn to non-prescribed (street) opioids, or other substances. People are dying in America. We know all of this is true. 

I am reminded of Ross Perot's presidential bid eons ago. When describing the national debt (then about $4 trillion), he said it "is like a crazy aunt we keep down in the basement. All the neighbors know she's there, but nobody wants to talk about her." Is the American drug death pandemic any different? We all know she's down there. Why is this not being talked about? It is definitely more important than the latest escapades of the Kardashians, the Bieber, or the donut-licking pop star, but somehow it rarely makes the headlines. 

How did we get here? An article by National Public Radio (NPR) reminds us that perspectives on pain changed in the 1980s. Doctor's beliefs about pain coincided with "more available prescription painkillers." The result was increased prescriptions and increased addiction. Thirty years after the pandemic started, NPR says that "in 2011, the Centers for Disease Control and Prevention declared a prescription drug epidemic as a result of doctors over-prescribing painkillers." Mr. Koegl is thus certainly not alone in his use of opioids. This NPR article is a "must read" to understand how America got where it is regarding prescription pain medication. 

When I was young (yes, I was young once), heroin was in the news periodically. There were populations that frequented that drug and there were overdoses. However, the news of that is seemingly more prevalent today. And, some believe the medical community and its love affair with opioids is to blame. The National Institute on Drug Abuse concluded that "the incidence of heroin initiation was 19 times higher among those who reported prior nonmedical pain reliever use." Note that "nonmedical" use is "characterized by three main sources of opioids: family, friends, or personal prescriptions." In any event, those opioids were prescribed by a physician. 

The Partnership for Drug-Free Kids reports that "people addicted to opioid painkillers are 40 times more likely to abuse or be dependent on heroin." And heroin is definitely cheaper than non-medical opioids. The Partnership for Drug-Free Kids reports that OxyContin "sold on the street is $50 to $80 per pill, while generic oxycodone sells for $12 to $40 per pill." The Washington Post reported that a dose of heroin is cheaper, in some states, than a pack of cigarettes (we tax the cigarettes). 

The downward path is relatively simple. A patient is prescribed narcotics, and through health insurance or workers' compensation, or other programs is provided with that medication at minimal personal financial expense. It is easy to get and cheal to use. They become addicted to, or dependent upon, the substance and crave the feelings and relief that it brings. Then, whatever system has thus introduced this person to the drugs abandons them. High and dry, they have choices. Unfortunately, many are choosing to continue using drugs, but now without that prescription. And the economic choice seems pretty simple to calculate, $12 for an oxycodone or "about $5" for heroin. 

People are dying, and Dying to me don't sound like all that much fun. Overdose is touching thousands of lives, of the users, and those around them. I know I sound Like a Broken Record. 

The fraud in Mr. Koegl's case cheated the workers' compensation system and he was slapped on the wrist. He was convicted of drug dealing and was slapped on the wrist again. And, now that someone has died, Mr. Koegl is going to prison, where he unlikely to pay back the $31,000 he stole from workers' compensation. 

Perhaps as a society we should be more concerned about prescribing opioids to begin with. Are there viable alternatives instead of opioids; can we at least discuss that question? When they are prescribed, perhaps we should be more concerned that there is care and intelligence in the course of later discontinuation of those drugs. And, perhaps there are better answers to curbing the inclination of so many to both use and abuse drugs. People are dying, and I am just not convinced that we care about this "crazy aunt" we just don't want to talk about.  

Daubert, We Hardly Knew Ye, Or do We?

For those who wonder, the title of this post is adapted from Hamlet's soliloquies regarding "poor Yorick," by William Shakespeare (unless you believe someone else did all that writing). 

On February 16, 2017, the Supreme Court of Florida rendered its opinion In Re: Amendments to the Florida Evidence Code, Case No. SC16-181. The process leading to this decision began in the Florida Legislature, comprised of representatives and senators elected by the people of Florida. In 2012, those representatives amended the Florida Evidence Code to change the legal standard for admitting expert conclusions into evidence. That bill was signed by the Governor of Florida, and many would, relying upon their civics lessons growing up, conclude that such would thereafter be the law. This was discussed in this blog last May in Daubert Better Explained. 

But, today, the Daubert standard is not the law in much (frankly most) of Florida. The Florida Supreme Court has decided that this decision making about filtering the evidence that a jury hears is procedural. Generally speaking, there are laws that are "substantive" and then there are "procedures." The Florida Supreme Court has long ago concluded that it has the authority to decide what procedures will be used in Florida courts. And, to the extend that the Evidence Code, Chapter 90, Fla. Stat. delineates procedure, the Court may either adopt such procedure or reject it. On February 16, 2017, the Court rejected the procedure that is the Daubert standard. 

Explained differently, there is a Florida Evidence Code (enacted by the legislature) and then Evidence Rules (adopted by the Court). Though this is difficult for some lawyers to comprehend, it is truly confusing for the public. In several conversations over the last year, since Daubert Better Explained, I have attempted to respond to non-lawyer questions about this distinction. In each instance, I have received head nods and thanks, but I have walked away each time convinced that I did little to clear the fog from the landscape for these questioners. This distinction, to many, is as clear and simple as quadratic equations or differential calculus. 

In Daubert Better Explained, I noted another distinction that has been equally difficult for people to accept. There are actually more variables in this equation. It is not just about whether the legislature or courts will make the law. This is because the Office of Judges of Compensation Claims (OJCC) is not a court (though a fair few judges do offhandedly refer to themselves as "this court" and "the court"). The OJCC is part of the Executive branch. The Florida Supreme Court stated this in Amendments to the Florida Rules of Workers' Compensation Procedure in 2004. So, the Florida Supreme Court cannot make procedural rules for the OJCC, according to its own logic and decision. Thus, while the February 16, 2017 decision of the Court is interesting in a broad context, and will certainly affect procedure in Florida's courts, it likely changes nothing in Florida workers' compensation. 

Today, in constitutional courts around Florida, the Frye standard controls under the Evidence Rules, despite the legislative adoption of the Daubert standard in the Evidence Code, because of the Supreme Court's decision. And in the Florida workers' compensation dispute system (the OJCC) the Daubert standard in the Evidence Code applies despite the Supreme Court's procedural rejection of the statute in the courts (as they used to shout at the ball park, "you can't tell the players without a program"). 

Interestingly, in an unrelated section of the opinion, the Court cited professor Charles W. Ehrhardt's book, Ehrhardt’s Florida Evidence. There, the professor recognizes value in avoiding "having the evidence rules scattered in piece-meal fashion in various statutes and rules of procedures” and instead having “a single comprehensive set of rules.” This outcome of a single comprehensive set of standards is avoided by the Supreme Court adoption process. And, the process likely creates two standards for Florida litigation, one in the courts and another in workers' compensation (and perhaps other administrative) proceedings.

The Court's decision on February 16, 2017 resulted from the Court's regular biennial process of reviewing rules. In that process, a committee of The Florida Bar makes recommendations regarding various rules, the Court considers recommendations and comments from the public, and rules are kept current. This opinion was written by a majority consisting of Justices LaBarga, Pariente, Lewis, and Quince. Justice Polston wrote an opinion concurring in part and dissenting in part, in which Justice Canady concurred. The newest member of the Supreme Court, Justice Alan Lawson, appointed in December 2016, did not take part in the decision. 

The Court noted that the Bar committee, by a very closely divided "vote of 16-14," recommended that the Daubert standard not be adopted by the Court. The Court considered reports of both the majority and minority positions of that committee. Some other recommendations of the committee were not as contested. Anyone interested in medical malpractice should read the opinion for more on that subject.  

The majority followed "the Committee’s recommendation and" did not adopt, "to the extent they are procedural, the changes to sections 90.702 and 90.704 of the Evidence Code made by the Daubert Amendment." Thus, Florida's courts remain using the Frye standard. According to Jurlytics.com, There are now 9 Frye jurisdictions (though that site has not yet been updated to reflect the Florida Court decision), including Alabama, California, Florida, Illinois, Kansas, Minnesota, Pennsylvania, Utah, and Washington. That site reflects that 21 states are Daubert jurisdictions and that 18 apply a standard that is a hybrid of the two. Two other states, North Dakota and South Carolina apply standards that are each unattributed or unrelated to either standard. The Federal Court system throughout the country adheres to the Daubert standard. 

There is debate  as to whether there is any real difference between the two. 

The Court explained that "the Frye test only applies to expert testimony based upon new or novel scientific evidence, and in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’” 

And, that "Daubert provides that the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Opinions may be rendered "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."

A second legislative amendment could also arise in workers' compensation proceedings. Though the Bar recommended Court adoption of legislative changes to Section 90.803(24) Fla. Stat., the Court rejected that legislative change also. This is an exception to the Hearsay Rule (which prohibits a witness from repeating things other people said outside of the hearing or court room, unless such a statement is (1) not being submitted for the truth of what was said, or (2) subject to one of the many exceptions recognized in the rules. This particular exception related to the statements of "elderly person or disabled adult." Thus, the process regarding this evidentiary standard is likewise likely to be different in the courts and in workers' compensation. 

Justices Polston and Canady dissented regarding the Daubert standard. This opinion noted that the prognostications of “grave constitutional concerns” about the Daubert standard, were not of concern because that standard was set forth by the United States Supreme Court in Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579 (1993). Presumably, the body with responsibility for ultimately determining constitutionality, see Marbury v. Madison, would not contrive an unconstitutional standard. He added that "the clear majority of state jurisdictions also adhere to the Daubert standard." And, he noted that there are no reported cases finding that standard constitutionally challenged. He concluded that Florida's Court "should adopt the Daubert standard," and Justice Canady concurred. 

What does this mean for workers' compensation disputes in Florida? In August 2015, the Florida First District Court of Appeal rendered Perry v. City of St. Petersburg, 171 So.3d 224 (Fla. 1st DCA 2015). In it, the Court reiterated that it had "long ago determined that the evidence code applies to workers' compensation." (Emphasis added)(Citations omitted). The Court remanded this case to the Judge of Compensation Claims (JCC) with instruction that the "JCC apply the Daubert test." It is perhaps symantics, or perhaps critical, that the Court used the phrase "evidence code" and not "evidence rules." The Court also recommended consideration of the Daubert process described in Booker v. Sumpter County Sheriff's Office, 166 So.3d 189 (Fla. 1st DCA 2015).

The "rules" and "code" distinction was explained by the First District Court in Baricko v. Barnett Transportation, 2017 WL 163692 (Fla. 1st DCA 2017). That case has no court opinion, it merely affirms the JCC decision. But, Judge Wetherell wrote a concurring opinion, essentially explaining his rationale for affirming. That opinion essentially agrees with the conclusions previously published in Daubert Better Explained. Judge Wetherell wrote even if in In re Amendments to the Florida Evidence Code, the Court declines to adopt the Daubert test in section 90.702 for judicial proceedings because the test is procedural in nature, that decision will have no impact whatsoever on the applicability of the Daubert test in workers' compensation proceedings."

The logic of this conclusion is dependent upon the distinction between "code" and "rules." But, fundamentally, it is likewise rooted in the Florida Supreme Court's conclusion that it has no authority to dictate procedural process to the Office of Judges of Compensation Claims. Amendments to the Florida Rules of Workers' Compensation Procedure (Fla. 2004). As it has no such authority under the Florida Constitution, its decision rejecting the Daubert standard would appear to have no affect on procedure in workers' compensation litigation. Seemingly, the First District would so decide if the specific question is presented, in agreement with Judge Wetherell. However, the concurring opinion in Baricko does not have the weight of law which a published opinion would carry.

As to how the standard works, the District Court's decisions discussed in Daubert Better Explained, Perry v. City of St. Petersburg, Booker v. Sumpter County Sheriff's Office, and Baricko v. Barnett Transportation are perhaps worthy of review. As Florida's constitutional judges tomorrow lament "alas poor Daubert, I knew him," perhaps the JCCs will instead lament "alas poor Frye," and some practitioners may lament that Florida now apparently has two standards, and no “single comprehensive set of rules?”

An Act Relating to Workers' Compensation

Valentines Day 2017 brought a news release from Associated Industries of Florida (AIF). Last summer AIF formed a task force to study Florida workers' compensation. Meetings were held, and suggestions discussed. Then on Valentines Day, AIF released its proposed bill to the public. 

Many will remember that workers' compensation has been on the "front burner" in Florida from many perspectives for the last several years. There was hand-wringing and "what iffing" about the constitutional challenges to the Florida act. Last spring the decisions started coming from the courts, and several decisions included constitutional conclusions by the courts. 

The first decision was Miles v. City of Edgewater Police, reported in Fla. Stat. 440.34 (Florida Attorney Fees) Unconstitutional. There was a  follow up in Some Interesting Questions on Miles. Miles was rendered April 20, 2016. The Court concluded that injured workers in Florida have the right to contract with attorneys as they wish, a right based in "Equal Protection, Due Process of Law and First Amendment freedoms." The court concluded that there was a "general interest in regulating fees" that related “specifically to the state’s interest in protecting the amount of benefits secured by an injured worker under chapter 440 from depletion to pay a lawyer’s bills."  

It recognized that the state has "police powers" and that those powers might justify limiting fees. But, the Court concluded that the state's interest is not advanced by limiting attorney fees. It concluded that the constraints on fees "do not actually prevent a public harm," but do prevent injured workers in some cases from being able to hire an attorney. And, the Miles court concluded that “[laypersons] cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries.” The Court noted that only claimant fees were constricted, and "the restrictions on her right to contract for legal work" were "being arbitrarily and capriciously applied," as only claimant fees were constrained. 

Eight days after Miles, the Florida Supreme Court rendered Castellanos v. Next Door Company. That was covered in Castellanos is Decided by Supreme Court. There, the majority concluded that "a reasonable attorney’s fee has always been the linchpin to the constitutionality of the workers’ compensation law." (Emphasis added). The Court did not expound upon that statement further. Whether this statement confines "the linchpin" based upon the kind or source of attorney fees is therefore perhaps left open to discussion?

In an interesting approach, the Court declined to decide Castellanos using traditional constitutional analysis, and instead concluded that the constraints on fees in section 440.34, Fla. Stat. were an "irrebutable presumption" and therefore unconstitutional. The Court based its decision on Recchi Am. Inc. v. Hall, 692 So. 2d 153, 154 (Fla. 1997)(a case interpreting a statute that actually included a presumption, "it shall be presumed").

The Court did not explain how the "presumption" conclusion about a statute that does not use the word "presumption" might implicate other statutory constraints which likewise do not use the word or infer "presumption." For example, arguably any statute which imposes a "minimum" prison term for a criminal conviction likewise, under the Castellanos logic, could be viewed as creating an irrebutable presumption. In those cases, as in pre-Castellanos workers' compensation fee cases, "the statute prevents . . . challenging the reasonableness . . . in his or her individual case." If such a resulting inferred presumption is constitutionally critical regarding fees in workers compensation, some may argue it is as inferrable and as critical when liberty itself is at stake in the criminal conviction context? 

A third case, Westphal v. City of St. Petersburg was decided June 9, 2016. See Westphal Decided, Questions Remain. The Court's analysis in this case was that the 104 week limitation on temporary total disability benefits. The Court struck that provision, reviving the prior statutory limitation of 260 weeks. The First District Court of Appeal interpreted that decision as also extending to temporary partial disability in Jones v. Food Lion, Case Number 1D15-3488 (November 9, 2016).

These developments were all discussed recently in an OJCC mid-year (fiscal year) report on case filings and attorneys fees. And, last fall a bill was proposed to change Florida workers' compensation. It is described in Legislative Seismic Shift in Florida. The bill was apparently not filed, but it generated a great deal of discussion. 

The AIF bill released on Valentine's Day 2017 does not address constraints on indemnity benefits (Westphal). But, it does attempt to refine pleading practices. The apparent point to this language is reducing litigation through greater clarity in pleading. The bill does some "cleaning up," with removal of the requirement of social security numbers in section 440.192(2)(a), Fla. Stat., and requirements regarding pleading the location of an accident/injury in (2)(c). It also makes pleading more specific for indemnity benefits in 440.192(2)(f) and calculation of the average weekly wage in 440.192(2)(j).

It would amend section 440.02(40), Fla. Stat. as follows (underline is added language and strikethough would be removed (all italics are direct quote).

"Specificity" means information on the petition for  benefits sufficient to put the employer or carrier on notice of the exact statutory classification and outstanding time period for each requested benefit, the specific amount of each requested benefit, the calculation used for computing the requested benefit, of benefits being requested and includes a detailed explanation of any benefits received that should be increased, decreased, changed, or otherwise modified.

The bill would remove the criminal prohibition on workers compensation attorney fees in section 440.105(3)(c)(all italics are direct quote):

(c) It is unlawful for any attorney or other person, in his or her individual capacity or in his or her capacity as a public or private employee, or for any firm, corporation, partnership, or association to receive any fee or other consideration or any gratuity from a person on account of services rendered for a person in connection with any proceedings arising under this chapter, unless such fee, consideration, or gratuity is approved by a judge of compensation claims or by the Deputy Chief Judge of Compensation Claims. 

The bill would legislatively overrule two First District Court of Appeal decisions regarding the process and procedure for an injured worker to obtain a "one time change" of treating physician, see A Victory (Whose?) on One Time Change. The law currently allows an employer/carrier 5 days to respond to such a request. If they fail to respond in that time, then the recovering worker may select their own doctor. The "5 days" has been mentioned in the context of "gamesmanship" by the Court, but it has directed critics to have this addressed by the legislature. The AIF bill would amend section 440.13(2)(f) as follows (underline is added language and strikethough would be removed (all italics are direct quote).

The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days, excluding Saturdays, Sundays, and legal holidays, 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. 

The bill would strive for more communication and perhaps thereby less litigation. It significantly amends section 440.192(4) in this regard as follows (underline is added language and strikethough would be removed (all italics are direct quote). 

 (4) Before filing a The petition, must include a certification by the claimant or, if the claimant is represented by counsel, the claimant's attorney, must make stating that the claimant, or attorney if the claimant is represented by counsel, has made a good faith effort to resolve the dispute. A petition for benefits must include a certification by the claimant or, if the claimant is represented by counsel, the claimant's attorney, and that the claimant or attorney made such a good faith effort but were was unable to resolve the dispute with the carrier or employer, if self-insured. Upon determining that the claimant or, if the claimant is represented by counsel, the claimant's attorney, has not made such a good faith effort to resolve the dispute, the judge of compensation claims shall dismiss the petition and may impose sanctions to ensure compliance with this subsection. Certification by the division that the claimant or attorney has made a good faith effort to resolve the dispute is prima facie evidence of compliance with this subsection. 

The bill would further constrain judges in terms of compelling rapid decisions on motions to dismiss for lack of specificity. The Judge would have ten days after a motion to render such a decision, or twenty days after a hearing on such a motion. It amends section 440.192(5)(b) in this regard as follows (underline is added language and strikethough would be removed (all italics are direct quote). 

(b) Upon motion that a petition or portion of a petition be dismissed for lack of specificity, the judge of compensation claims shall enter an order on the motion, unless stipulated in writing by the parties, within 10 days after the motion is filed or, if good cause for hearing is shown, within 20 days after hearing on the motion. 

The bill would remove the prohibition on fee payments for non-specific petitions. This is a section that has been ridiculed for its poor phraseology. See, Langham, 1994 Obviation of Carrier Paid Fees for Valid Petitions, News and Four-Forty Report, Summer, 1997. It amends section 440.192(7) in this regard as follows (underline is added language and strikethough would be removed (all italics are direct quote). 

(7) Notwithstanding the provisions of s. 440.34, a judge of compensation claims may not award attorney's fees payable by the carrier for services expended or costs incurred prior to the  filing of a petition that does not meet the requirements of this section. 

Notice that statute currently says that no fees or costs can be paid "prior to the filing of a petition that does not meet the requirements." Thus, fees can only be paid if an incomplete or unintelligible petition is filed pursuant to the current language. This language has been in the statute for over 20 years. 

What will draw the most discussion and attention, however, is the AIF bill's near complete removal of section 440.34 from the statute. Paragraphs (2) through (7) are all stricken (but see special treatment for paragraph (3) below). Paragraph (1) would be all that remains, as follows  (underline is added language and strikethough would be removed (all italics are direct quote).

(1) A claimant is responsible for payment of her or his own attorney fees fee, gratuity, or other consideration may not be paid for a claimant in connection with any proceedings arising under this chapter, and a judge of compensation claims may not award attorney fees payable by the carrier or employer. Any retainer agreement between a claimant and her or his attorney must be unless approved by the judge of compensation claims or court having jurisdiction over such proceedings as consistent with The Florida Bar's rules of professional conduct, and attorney fees payable by the claimant must be approved by  the judge of compensation claims to ensure compliance with the retainer agreement.

What is currently in section 440.34(3) would become a new section, 440.341 Fla. Stat., as follows  (underline is added language and strikethough would be removed (all italics are direct quote).

440.341 Costs.—If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney fees. 

It is an interesting proposal. It will undoubtedly receive significant attention and discussion in days to come. Some will question whether injured workers will have funds to pay for attorney fees. In an instance such as Miles, where a third party (union) is willing to pay fees for representing an injured worker, this may be less of a concern. However, some injured workers may simply lack the funds for such representation. Faced with the denial of a small bill such as a prescription, some recovering workers may elect to pay the prescription cost themselves or do without the medication rather than paying an attorney to pursue the payment. Critics may argue that some employers might withhold authorization for some benefits in the belief that they are too inconsequential for a recovering worker to pursue. This may be related to a logic mentioned by the Supreme Court in Castellanos: fees “'discourage the carrier from unnecessarily resisting claims' and encourages attorneys to undertake representation in non-frivolous claims."

The bill would impact the Office of Judges of Compensation Claims. It would statutorily require judges to prospectively approve attorney fee retainer agreements. However, only the attorney fee agreements between recovering workers and their attorneys. It is not clear if this distinction would be permissible within the analysis of the court in Miles, "being arbitrarily and capriciously applied." An argument might be made that this (claimant but not defense) is a distinction without basis. However, an argument might likewise be made that this contract approval is part of the overall approval of claimant fees (and there is no similar approval of defense fees), and is for the protection of the recovering worker. 

If this bill becomes law, it is possible that some disputes will arise between recovering workers and their attorneys regarding the appropriateness of fees. The Supreme Court noted in Castellanos that "a 'lengthy and expensive contest' with an E/C, a claimant proceeding 'without the aid of competent counsel' would be as 'helpless as a turtle on its back.'” The District court in Miles that “[laypersons] cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries.” Some have questioned whether an injured worker in a contest against any attorney, such as in a dispute over the amount of fees, would be any less helpless or any more able to "protect their rights" "without the aid of competent counsel." 

It will be interesting to hear what thoughts, comments, and criticism, are voiced regarding this proposed bill. Things in Florida are rarely dull.