This was the title of an actual motion filed in Tennessee (an admittedly eye-catcher title). Motions are the appropriate way to seek relief in most adjudication systems. A few systems eschew the formality of motions and instead engage in a seemingly endless parade of "status" or "case management" conferences, a model referred to as "maternalistic" (nurturing, sensitive, etc.). Those who advocate it contend that conversations and brainstorming lead to a smoother procession toward the ultimate trial. Though ours is not maternal, occasionally a Florida lawyer will seek a status conference rather than file a motion. But in Florida, the motion is the right course.
The title of this post comes from the Tennessee Court of Workers' Compensation Claims in Alvarez v. Surface Igniter LLC, Case number 31161-2015, Docket No. 2015-03-0337. And, the purpose of the motion has nothing to do with the "proverbial" middle finger but merely addresses this particular middle finger. It has nothing to do with bringing the finger into the trial (lawyers will have moved to "exclude a witness" from trial). But, from the motion, perhaps we can learn something useful. It is really about injury to (allegedly) this person's middle finger.
The Employer in this case alleges that it found itself in an unexpected dispute. It claims that "in the early stages of this claim" there were allegations only of "partial amputations to the ring finger and pinky finger." The "middle finger," it alleges, was never referenced. Never, that is, until an independent medical examination (IME) report was prepared, later in the litigation.
At that point, "more than a year following the alleged injury," the IME physician "first raised the middle finger." Well, more like "first raised the middle finger" issue" At that point, the employer suspected that the injured worker "intended to claim benefits related to his middle finger." Alarmed at that prospect, the employer filed this motion, to exclude consideration of that particular appendage. Perhaps the motion could have been titled "Motion to Preclude Consideration of Middle Finger?" But, in fairness, still potentially "clickbait."
The employer explained in the motion that discovery was conducted with the focus being "the amputations," with "no reference to the middle finger." They contend that the middle finger initially was "never raised," not in the "initial" filing. Thus it argued the injured worker "waived his middle finger in the early stages of litigation." Essentially, if the middle finger was not raised then it was waived.
What can we learn from this example that is useful? First, it is not uncommon for symptoms to evolve during the course of a claim. This can arise in a number of ways. A worker may injure multiple body structures in an accident. Sometimes the concern about, discomfort from, or physician focus upon one structure may lead the injured person to ignore or downplay another structure. When one's arm is fractured in a vehicle accident, it may be natural to focus thereon and not discuss a strained shoulder, sore neck, or abrasions from the same event.
Or, it is possible that the effect of injury to one structure may lead to concerns with another. For example, someone with a significant limp due to a leg injury may produce strain or discomfort elsewhere. The worker's back might hurt or her/his other leg might develop symptoms, as a result of the limp itself. Similarly, a patient may take medication to ameliorate the discomfort of that leg injury and find that the medicine itself causes symptoms, such as stomach discomfort or nausea.
Though we acknowledge that symptoms may thus evolve over time, we must also remember that there is a requirement in our system for due process. In this context, that is essentially "notice" that there will be proceedings and an opportunity to be heard at that hearing. As voiced in the motion, the employer complains that (1) it did not have appropriate notice because the middle finger was not mentioned at the outset (or at least it was too close to trial when it was), and (2) it is therefore surprised with the middle finger late in the process after the discovery (questions, examinations, etc.) have been done.
And therein lies the challenge. The person who is injured needs to be afforded an opportunity to present her/his case for damages (in a civil setting) or benefits (in workers' compensation). But, that right has to be balanced against the employer's (or other defendant's) right to have notice of the actual issues, and a meaningful chance to defend itself.
What are the solutions? Oftentimes the prejudice caused by such late notice may be a simple continuance. The parties, with more time, may be able to more fully explore the new information. However, that continuance is to allow time to conduct discovery on the new allegation. Depositions may have to be taken (or taken again). Thus, this solution affords time, but the cost associated with preparing again might be significant.
And, there may be times when a continuance merely prejudices one party (the worker who wants a decision about that injury) and does not afford relief to the other party (the employer, having no notice of a seemingly unrelated injury from a year before may be unable to effectively investigate or perform meaningful discovery). It is possible that determining causation or relationship to an accident might require a medical examination closer to the accident itself, and an examination a year later might be of little value.
And, there may be times when a continuance merely prejudices one party (the worker who wants a decision about that injury) and does not afford relief to the other party (the employer, having no notice of a seemingly unrelated injury from a year before may be unable to effectively investigate or perform meaningful discovery). It is possible that determining causation or relationship to an accident might require a medical examination closer to the accident itself, and an examination a year later might be of little value.
At every trial, there is more than one story that will be told. Perspectives on the facts of the case may be different, as in what happened, how, when, where, etc. Interpretations of the law may be different regarding what those facts mean, whether an accident is compensable, whether an illness is related, and whether specific benefits are due. When the due process issue arises with a late-discovered condition, the parties may likewise differ on the extent of prejudice and whether or how it can be ameliorated.
But, ultimately, the motion in this instance was the appropriate tool to start that discussion. One party perceived a problem and so it sought the evaluation and interpretation of the trial judge. That is our process. One in which we recognize that there will be disagreement, differing opinions, and various perspectives. Knowing that this will be our process, parties should remain vigilant for evolving issues and should be willing to enlist the adjudicator's aid in resolving those disagreements.
To be fair, raising the issue with the judge may not resolve all concerns. In the discussion of the issue, contemplation may lead to raising still other issues. Litigation is a difficult road. The landscape can change, the weather can change, and our perceptions can change. The critical point is not specific to this case. Lawyers and litigants must remain conscious that change is part of litigation, it cannot be prevented.
They must be vigilant for those changes, and react promptly when they occur. This means early and diligent review of medical records, careful deposition of witnesses, and attention to detail. These may not be an inexpensive proposition, but they are the path to being prepared to address the facts and to react to changes.
They must be vigilant for those changes, and react promptly when they occur. This means early and diligent review of medical records, careful deposition of witnesses, and attention to detail. These may not be an inexpensive proposition, but they are the path to being prepared to address the facts and to react to changes.
