What is the scope and purpose of the Florida Office of Judges of Compensation Claims (OJCC)? In a nutshell, this agency delivers process to those impacted by workplace injuries, the employees and employers. In Florida, the process of adjudicating and mediating disputes is a distinct role of the OJCC. The regulatory functions of Florida workers' compensation are primarily relegated to the Florida Division of Workers' Compensation, a separate agency within the Department of Financial Services.
The OJCC is essentially a provider of due process. Employees and employers have disagreements regarding a wide spectrum of issues, such as: was this person an employee, did an accident occur at work, did injury occur from an accident, is particular medical care reasonable and necessary, is the worker capable of returning to work, and more. Some of those issues may clearly controlled by one specific statute section or some decisional precedent (what occurred in a previous case).
But, it is not uncommon for issues to arise that are not so clear. It is the job of lawyers to both refine and define both facts and law, Their role is to bring ingenuity and imagination to conflicts, and to utilize those skills to advocate for an outcome that is favorable to their respective client. They search for distinctions, exceptions, and reasons why their client should arguably prevail.
And, the role of this office is to provide due process for those disputes. Due process is essentially an opportunity to be heard. That implies the opportunity to both present evidence (witnesses, documents, etc.) and to confront the evidence that is presented by those who oppose your perspective or arguments. That opportunity is facilitated by the other basic element of due process: notice. The parties who seek a determination are entitled to know that proceedings, a hearing, a trial (that opportunity to be heard"), will take place.
When a party believes that the trial judge should not act, they are obligated to ask the judge not to. This might include seeking a continuance, or asking the judge to recuse her/himself from a case. Similarly, when parties want the judge to act, they are also obligated to ask. This might include asking that trial be set or that an order be entered. Despite the statutory requirement for entry of a timely compensation order, the OJCC was not know for timely trial orders, or even timely trials, before the twenty-first century.
If the trial judge does not accede to the request of a party, then it may be possible to ask some superior adjudicatory body to intervene. When I use the term "superior," I am reminded of a testy exchange between Captain Dodge (Kelsey Grammer) and Admiral Graham (Bruce Dern) in the spoof comedy Down Periscope. Admiral Graham admonishes Dodge: "You are addressing a superior officer," to which Captain Dodge replies "No, merely a higher-ranking one." A humorous bit of word-working.
Of course, a party might disagree with a trial judge's ruling and yet take no action. The party might conclude that the decision is not "final" and therefore not something an appellate body would review immediately. The party might therefore wait until the case is ultimately decided and then seek appellate review on that and perhaps other previous decisions. Or, the party might seek immediate ("interlocutory") review through an "extraordinary writ." These, by their very name, are "extraordinary," (exceptional, noteworthy, remarkable). If the party is seeking action, the writ of mandamus would be appropriate; if seeking to halt the action, the writ of prohibition.
A July 30, 2017 story from Guam contends that a worker there has been denied a hearing on her claims for workers' compensation. Guam is an unincorporated territory of the United States, and its residents are U.S. citizens. Its status is similar to the U.S. Virgin Islands and Puerto Rico. And, a worker there filed claims for benefits regarding a fall "while attempting to open a door for a co-worker in August 2015." She alleges that this resulted in a broken left leg.
It appears to be a dispute that might occur in any workers' compensation system. The worker alleges that the fall resulted in injury, but her employer claims "she failed to establish a 'causal connection' between her work environment and her injury." Disputes such as these are commonly referred to collectively as "compensability" disputes. Finding herself not provided with workers' compensation benefits, the employee requested that the workers' compensation commission (WCC) order her employer to provide benefits. In that regard, her claim is like many others around the country, in that (1) there is a dispute, and (2) an administrative agency is responsible for adjudicating it.
In March 2017, the worker submitted the paperwork requesting a hearing. However, the WCC has not scheduled a hearing on her claim. The Guam Daily Post reports that she had waited for 16 months, and finds herself frustrated by the delay. She therefore has sought the attention and assistance of a superior court, and has asked it to intervene and order the WCC to perform its function - to provide a hearing. As of this publication date, no follow-up story has been found, leaving the possibility that neither the superior court or the WCC has acted in the almost two months since the story was published at the end of July.
As is not uncommon in litigation, the injured worker has focused on multiple entities. She seeks that order to compel the WCC, the Department of Labor (DOL), or the director or administrator to provide a hearing. The WCC Administrator has reportedly said that the WCC is waiting for "the Attorney General to provide legal counsel for the hearing." There is an implication in the story that some finger-pointing is occurring.
The Guam Federation of Teachers (GFT) has been involved in assisting the employee in seeking a hearing. Its representative reminded the WCC that "justice delayed is justice denied." It appears that the WCC has been asked for, and reminded of the need for, a hearing. It is seemingly axiomatic that a hearing is the only path to sorting out the dispute between this employee and employer.
That statement will likely raise the ire of those who advocate for the premier form of "alternative dispute resolution," mediation. Undoubtedly, mediation is a fantastically successful, efficient, and proactive method for resolving people's disputes. But, it is but one method, a voluntary method. People can meet, discuss, and agree. Those agreements are binding as they are contracts. But, at their root, they are voluntary and require parties to be ready to meet and discuss.
And, sometimes voluntary resolution of disagreements is dependent upon the existence of some other method. In some instances, it may be that the "alternative" may drive the voluntary. That is, if there is no potential for an adjudication, an order compelling action, then perhaps there is less motivation for the agreement in mediation? Perhaps parties are more likely to act voluntarily if there is some mandatory "alternative" that will engage if they do not? Whether a case is adjudicated or resolved through mediation, the existence of the adjudication process plays a role as either the solution following the failure of negotiation or as the "alternative" best avoided by particular parties in a particular case.
That brings us back to the requirement that "due process" exists. The concept of "due process" is enshrined in the United States Constitution, in both the Fifth and Fourteenth Amendments (a professor I once knew used to say "We liked it so much, we put it in twice"). It is astounding how often someone will voice their belief that Constitutional rights have nothing to do with workers' compensation. That is naive at best. Your Constitutional rights are fundamental to both workers' compensation and the process for determination of your benefits. That Constitutional due process is a hearing, an opportunity to present evidence, to be listened to. It is not a promise that any particular party will prevail, be satisfied, or be happy. It is a promise that each party will be listened to.
The issue of "happy" is worthy of note. Some believe that half the parties to any trial will be unhappy with the outcome. That "half the people" statement is one I have heard often from various judges. Unfortunately, because of the nature of litigation, it is not uncommon for everyone involved in a trial to be unhappy with the result. For example, they may prevail but nonetheless receive less than they sought. They may prevail on some issues, but not on others. They may prevail but find themselves perturbed by the amounts they expend in litigating the issues. There are a multitude of potentials, and unfortunately, sometimes everyone involved in a case is less than happy with the outcome.
The delay in Guam seems antithetical to due process. Of course, there are cases that cannot be adequately prepared for trial without many months of preparation. But, whenever delay is thus understandable and excusable, that excuse should be described publicly, in an order. Somehow, the Guam system is failing in this example to provide due process. It will be interesting to see if the Guam courts intervene in response to the employee's writ and order that due process be afforded.
In Florida, the workers' compensation law says that a hearing shall be conducted within 210 days of the filing of a petition. If that is not occurring, you are welcome to contact david.langham@doah.state.fl.us (it is appropriate to provide a copy of any such inquiry to all of the parties to the case). Certainly, not a "superior" judge, or even one with "rank," but as certainly still able to question why a hearing is not being scheduled.
That needs to be clear. In Florida, whether to hold a hearing or not and when, is a decision for the judge assigned to hear a case. The Deputy Chief Judge cannot change such a decision. But, that does not mean that such an inquiry might not provide you with answers as to why a particular case is not proceeding with the speed you might wish. Or, a party in Florida could elect to proceed to the District Court of Appeal and seek an order of Mandamus (extraordinary writ) to compel such a hearing to occur.
The point of this agency is due process. There are disputes, and our obligation is to provide both adjudication and the "alternative" of mediation of those disputes. And, we have the obligation to be transparent as to that process. When hearings are delayed, there should be orders clearly explaining why.
