Throughout the COVID-19 onset, the Florida OJCC has striven to maintain operations. The main changes have been the suspension of sworn child support representations for settlements under Rule 60Q6.123 and the mandate of telephonic mediation. The COVID-19 situation is constantly evolving, Florida is currently re-opening, and there is hope we are all returning to normal (having not missed a day in the office yet, this "return" characterization is difficult for many of us).
There has been much discussion about "coming back" lately. An ABC News affiliate in April reported angst in Northern Virginia about federal workers returning to offices. There is concern about crowded elevators, cleaning workstations, and more. That article noted that "although some are still going to work every day, many federal employees have not been to their offices in weeks." That distinction is likely true in various workplaces. As I hear news from across the country, some workers' compensation systems in the U.S. find themselves in similar discussions. Offices have been closed, employees furloughed or sent to telecommute, and entire processes are in the course of a difficult recovery. There will be precautions, processes, and challenges with increased foot traffic.
Notably, there are also those who never left. The Florida OJCC has maintained operations throughout, in the same 17 district offices across the state. There have been minor changes in operations, primarily for minimizing exposures, but few wholesale changes. Hearings, including final hearings, have proceeded throughout. Notably, the continuance of final hearings has increased, in large part apparently attributable to challenges with memorializing evidence. Many continuance motions cite an inability to obtain medical depositions at this time.
As an aside, I ran recently across an intriguing motion in which a party sought to compel discovery involving a medical expert. The attorney made some unrealistic ultimatums to opposing counsel regarding immediate discovery (essentially "I want dates for a deposition now"). The physician witness objected and explained that her/his time was a bit congested currently dealing with a worldwide pandemic (note to the community: the primary role of physicians is not giving depositions, writing reports, and completing forms; the primary role is actually about treating patients who need care). Despite that explanation, and although various future dates were provided by the physician, the attorney filed a motion to compel. Certainly, everyone faces frustrations in this time of COVID, but Let Us Be the Leaders of Professionalism. It is disappointing to see lawyers frustrated and reacting inappropriately; in such a pandemic, it is understandable (we are all only human), but still disappointing.
Some OJCC employees have requested to telecommute, and some of those requests have been accommodated, though our customers have likely not noticed. The main OJCC changes in operations have been the mandate of telephonic mediation and the use of Internet video-conferencing (ZOOM) for hearings. And, everyone anticipates that mandates and emergency action will end at some point. Florida in general is returning to pre-COVID. Much remains, as theme parks, nightclubs, and others await clearance to open; constraints and cautions remain, but opening is progressing. It is anticipated that in that spirit, the OJCC will end the telephonic mediation mandate and return the discretion in that regard to the individual mediators. Rule 60Q6.110(5).
See, telephonic mediation has long been an option in Florida. The COVID did not create it or define it. The COVID led to mandating it temporarily. But, pre-COVID hundreds of cases were telephonically mediated each year; there is every anticipation that hundreds will be mediated each year even when COVID ends. The difference is that absent a mandate, the parties and mediator work together in deciding which proceedings, or which particular parties, will mediate telephonically. In the recent past, the mandate temporarily removed that discretion. When the time comes to end that mandate (currently set to expire May 31, 2020, but check back for updates), that does not mean telephonic mediation ends, it merely means parties and mediators will again have discretion.
Some mediators have been among the OJCC team telecommuting. When the telephonic mediation mandate ends, some of those mediators may remain telecommuting. Others may remain on a "telephonic-only" paradigm per their discretion under the rule. Still others may return to in-person as a default and look to the parties to seek telephonic accommodation if that is desired. The best course, if a lawyer or party is unsure in a particular instance or case, will be to contact that assigned mediator and inquire. If attending proceedings in person, you will be asked to wear a face mask in all OJCC offices. Space may be limited, and therefore it is possible only parties and counsel will be able to be in mediation rooms or hearings (others may have to wait in lobbies, hallways, or elsewhere so as to accomodate social distancing).
Throughout March, April, and May, the OJCC has conducted hearings. Some have been in person, though admittedly the appetite for those has diminished. The long history of video teleconference (VTC) hearings has continued, though there has also been less demand for that alternative. Others have been telephonic, with the obvious challenges for credibility determinations. Since March, we have begun using ZOOM for hearings, with great success. This platform is easy to use and is accessible even from a smartphone, a benefit for those who may lack access to other webcams. In the coming days, the trend may be back toward in-person proceedings. Please remember the mask and social distancing requirements in those instances.
Throughout the COVID experience, it has remained in the assigned Judge's discretion whether to hold hearings live, via VTC, telephonic, or ZOOM. That discretion will not change as Florida re-opens. Those platforms have all been used during this COVIDetour and they will all remain in the Judge's toolbox moving forward. Parties that wish to influence which platform is employed in a particular case should assert their preference by filing a motion (Rule 60Q6.115(1): "Any request for an order or for other relief").
The actions of others have impacted the Florida OJCC. Three buildings in which we lease space have barred the public from entering in recent months. In this regard, we are limited by our landlords in affording some alternatives such as in-person mediations or hearings. The restrictions of those buildings (Miami, Fort Pierce/Pt. St. Lucie/St. Petersburg) will evolve and change as the Florida situation overall. Thus, even absent any mandate, the opportunities for live events in those venues may remain constrained for some time. The FLOJCC will strive to keep the public informed in that regard on the announcements blog, on Facebook, Twitter, Instagram, LinkedIn, this blog, and the website.
When the temporary Administrative change to Rule 60Q6.123 ends, all settlements will again have to include "A sworn statement by the employee that all existing child support obligations." That requirement was temporarily excused primarily because injured workers were struggling to find notaries available. Of note, Florida has created "online notarizations" (post of March 15, 2020)". That came in 2019 and remained novel and largely unnoticed by the workers' compensation community in early 2020. But, since COVID-19, everyone has now had March, April, and May to secure their credentials as an "online notary," various businesses offering such services exist, and traditional notary service providers have re-opened. Providing such a "sworn statement" should present less challenge moving forward. Of course, in any particular case, a party could seek relief from that "sworn statement" requirement through Rule 60Q6.115(1): "Any request for an order or for other relief."
In short, I am tremendously proud of the Florida OJCC team. Judges, Mediators, Clerks, staff, and our security guards have risen to (above and beyond) the call. While workers' compensation systems throughout the country have struggled, furloughed, and even closed, your Florida OJCC has maintained, persevered, and operated.
In that, we are blessed with having long ago evolved and modernized. In a recent phone call, I heard some state officials explain their recent COVID-era struggles with things called "paper" and "mail." With the help of my trusty Internet, I researched these unfamiliar terms and enjoyed reminiscing. I remember when we used "paper," the "mail," and even the Pony Express here in Florida. It seems like it was the "last century," when in fact it was less than 15 years ago. This community's acceptance of e-filing and e-service, your enthusiasm, attitudes, and acceptance have empowered the digital age and the OJCC response to COVID-19. As an aside, we hope to deploy e-service for certain employers soon; it just gets better and better.
Without e-JCC, operations during COVID-19 would have been more difficult, telecommuting harder to accommodate, and our customer service less seamless. For that, we are grateful to the OJCC IT team, but more so to you the workers' compensation community. In 2015, I wondered Which State Will be the Last to Embrace E-Filing (May 2015). In 2020 as we work through COVID-19 and I hear about jurisdiction's struggles with "paper" and "mail," I wonder again when they will all join us in the Twenty-First Century. And, I thank you again for making it possible for us to be so technology-prepared, flexible, and dynamic.
When will the telephonic mediation mandate and waiver of sworn child support statements end? That remains to be seen (currently set to expire May 31, 2020; stay tuned for further announcements). However, when these exceptions end, we will merely return to operation under the rules. We, lawyers, adjusters, experts, and more, will note that things are not that different. We will simply inquire about particular mediations and hearings; we will adapt back to our prior paradigm. We will prevail and thrive.
We will move forward providing service to the people for whom this system was created: Florida's employees and employers. We will perhaps struggle (we have to remind ourselves we are only human). We will overcome and serve. I am proud of you for it. In my perspective, each person in this community is essential in every regard. I am grateful for you and appreciate you. Thank you for all you do.
