In a surprise to many, the North Carolina Industrial Commission has begun advising that only licensed medical doctors will be allowed to perform surgery on injured workers there. There was significant dismay expressed that the Commission would begin such a transition, particularly without a formal opinion from the North Carolina Medical Board. There has been discussion of the implications of this decision. Some feel it will add to costs, because those who have been to medical school apparently charge more to perform surgery than those who instead learned medicine on-the-job.
Certainly, that would be an interesting story; as certainly, the foregoing is facetious and a just a bit sarcastic. My apologies. The real story that recently hit the news, Industry Surprised by Sudden Decision to Enforce Lawyer-Only Filing Statute, was reported by WorkCompCentral
It says that an attorney for the Commission recently began "spreading the word" that motions filed by insurance adjusters would no longer be accepted by the Commission. In other words, adjusters in North Carolina would no longer be allowed to file pleadings in legal proceedings on behalf of their employers (carriers or servicing agents) and their employer's clients.
Several sources were quoted in the story. Some were critical that the Commission did not seek an opinion from the North Carolina Bar regarding what is or is not the practice of law. Some were concerned that hiring attorneys to file motions would add to costs. And, some were critical that there was no formal rule-making process or public comment period on what they perceive as the Commission's new "policy." In short, a fair few quoted by the story "weren't happy about it." One opined that "it's unfair," to take such action "without really speaking to all the parties."
The Commission attorney commented for the story. He explained that the Commission has not made a policy, but has decided to
begin enforcing laws such as § 84-4, which forbids anyone but a licensed attorney from preparing legal documents or appearing at a proceeding before the Industrial Commission.
The Commission's attorney referred the WorkCompCentral to North Carolina Statutes, section 84-2.1, which defines what it means to "practice law" there. The statute includes "performing any legal service for any other person, firm or corporation, with or without compensation." That appears to be fairly broad and inclusive. The definition makes specific reference to "court proceeding," which arguably is not descriptive of the administrative process of workers' compensation. But, the definition also further references the "preparation and filing of petitions for use in "administrative tribunals and other judicial or quasi-judicial bodies."
Based upon this statute, the Commission has made a decision. It says that it "does not have — nor has it ever had — any discretion or authority to waive those legal requirements." This, sometimes dredges up the logical argument "but this is how we've always done it." Neither North Carolina nor workers' compensation have any corner on the market of applying that argument to issues.
Florida's Supreme Court enacted procedural rules for workers' compensation almost fifty years ago, in 1973. Their action led the Florida Legislature to statutorily delegate executive branch rule-making authority to the courts thereafter. Forty years later, following repeated judicial amendments to those rules and assumptions of jurisdiction, the Court decided in 2004 that it lacked jurisdiction to make procedural rules for an executive branch agency. In fact, it noted that it had never had such jurisdiction. (remember the Emily Litella character on Saturday Night Live?)
The decision, In Re Rules of Workers' Compensation Procedure, the Court recounted the history of its foray into executive branch rule-making, and explained that the Florida Office of Judges of Compensation Claims is not a "court." It then explained the basic constitutional concept of separation of powers, and concluded that the courts cannot make rules for the executive. Such an intrusion by the courts is not even appropriate when the the third branch, legislative, asks the court to do so. And, a fair few read the opinion with surprise. Then, they read it again and essentially said "well sure, that's pretty obvious."
There is merit in questioning the status quo. It is important that we not mindlessly meander through life performing functions solely because "that's the way we always do it." Certainly, there is no justification for change merely for the sake of change. Certainly, there is value in precedent and the legal maxim of stare decisis. This brings consistency and predictability that judicial processes should bring to people.
Should the Commission have provided more formal notice that it would interpret a statute differently henceforth? Perhaps there is some merit in publicizing change in any setting. Preparing and informing customers is a positive. It may be particularly positive when it appears a sizable population is engaged in an activity (completing and filing forms), which a governmental agency has traditionally allowed and accepted. That population could face consequences.
Apparently, adjusters and others have been completing and filing forms with the Commission. If they are no longer permitted to do so, because the Commission has concluded that action is the unlicensed practice of law, then that implies these adjusters and others have been engaged historically, before this time, in the unlicensed practice of law. And, the law suggests that such a violation would be a Class I misdemeanor. That is, a criminal act. Essentially, might telling someone they broke the law put them in a defensive posture?
If the Commission had undertaken some rule process, or formal proceeding, then their action might have been interpreted as creating a "new" paradigm. That new rule or new order might be seen as changing the status quo, and thereby prospectively precluding activity, while not necessarily suggesting that past activity was previously inappropriate. But, what would one base a conclusion of "change" upon? If the Commission had made a change in its interpretation, might it have faced criticism for a "new" interpretation for which no basis or reason were stated?
Conversely, a conclusion that activity is, and has been, the unlicensed practice of law could potentially expose people to discipline. Whether an adjuster would be prosecuted might be influenced by conclusions of the North Carolina Bar, which opinion some felt should have been sought prior to the Commission interpretation. However, ultimately, the decisions regarding prosecution would more likely be within the discretion of one of the thirty North Carolina District Attorneys, depending upon where in the state such activities were performed.
So, there remain criticisms of the decision and the process. There are implications, and the future may bring further discussion and analysis.
In Florida, an injured worker may represent her/himself in a workers' compensation case. A person may act as her/his own attorney. However, an employee of a corporation generally cannot represent that corporation in a legal proceeding, unless that employee is an attorney. This distinction is because the worker represents her/himself, while a corporate employee would be representing someone else, the corporation. For reference, here is an extensive, though perhaps not exhaustive, summary of Florida unlicensed practice of law.