Florida' Supreme Court in Workers' Compensation

Florida workers' compensation has recently seen various supreme court decisions. Perhaps 2016 was most noteworthy, with Castellanos and Westphal. These are seen as significantly impacting the Florida system, and I hear them discussed by "insiders" of workers' compensation across the country. There are those who contend that 2016 was significant as much for First District Court decisions in cases like Miles v. City of Edgewater, 190 So.3d 171 (Fla. 1st DCA 2016) and Jones v. Food Lion, 202 So.3d 964 (Fla. 1st DCA 2016). 

But, the Supreme Court cases have led to conversations. One question I hear repeatedly is "how often does the Florida Supreme Court become involved in workers' compensation disputes?" That is an interesting question. One to which I have had no real answer. It is noteworthy that Florida Supreme Court involvement was more common in the early days of Florida workers' compensation.

As originally structured, the Florida dispute process was within the jurisdiction of a commission, the Industrial Relations Commission (IRC). The Commission was ultimately responsible for deciding disputes. Initially, the IRC held hearings for those disputes. Later, to facilitate that process, it employed "deputy commissioners," which were essentially similar in responsibilities to our modern Judges of Compensation Claims. Those deputies would hold hearings, consider evidence, and render rulings. If a party was unsatisfied with the outcome, it would appeal the decision to the IRC.

After Florida enacted workers' compensation in 1935, the first reference I can find to the Florida Supreme Court is Maryland Casualty v. Sutherland, 168 So.2d 679 (Fla. 1936). It describes that a party dissatisfied with the ruling of the IRC would appeal that decision to the Circuit Court (Florida's court of general jurisdiction). And, if dissatisfied with the Circuit Court decision, the party could then resort to review by the Florida Supreme Court. Of course, there were no other appellate courts in Florida at the time. It would not be until 1957 that the Florida legislature would create three District Courts of Appeal (Florida now has five).

In Sutherland, the Circuit Court affirmed the IRC order of death benefits under the new workers' compensation law (enacted in 1935), following the worker's injury and death on October 6, 1935. Florida was not among the first to legislate workers' compensation. In fact, though Florida was not last (sorry Mississippi), it was in the last five states. Thus, many states had been limiting recovery for injured workers by statutory provision of benefits for years before Sutherland was litigated under Florida's "new law."

The Court in Sutherland noted however that it had been unsuccessful in finding any "precedent for us to follow in the law of workmen's (sic) compensation." The Court noted that there was no statutory provision for who should receive death benefits if a worker died without dependents as Sutherland had. The Court concluded death benefits must be nonetheless payable to the worker's estate. Its analysis was that if no death benefits were payable without dependents, "then the industry could seize upon this situation and place such men in the most hazardous places of work, knowing that if they were killed, it would cost industry nothing." Some might find that cynical?

The first constitutional challenge to Florida workers' compensation happened the next month in State ex. rel. Jacksonville Gas Co. v. Lewis, 170 So.2d 306 (Fla. 1936). This was a challenge regarding the title of the law and its contents. The challenger contended section 39 of the act was not as described in the title, and thus unconstitutional. The Supreme Court disagreed and concluded the law did not run afoul of the state constitution. 

Time passed, and Florida workers' compensation evolved. Circuit Court involvement was removed and appeals from the IRC went directly to the Supreme Court. In 1979, the legislature enacted Section 440.217 and vested jurisdiction for workers' compensation appeals in the Florida First District Court of Appeal in Tallahassee. That designation was affirmed by the Florida Supreme Court in 1980 in Rollins v. Southern Bell, 384 So.2d 650 (Fla 1980). The IRC was later abolished in 1979, the Office of Judges of Compensation Claims (OJCC) was created in the Department of Labor and Employment Security (DLES), and the litigation process remains similar to this day (except for the abolishing of DLES and the transfer of the OJCC to the Division of Administrative Hearings in 2001. 

So, until 1979, the Florida Supreme Court would be expected to have had more frequent involvement in workers' compensation. A database search revealed 337 decisions of the Florida Supreme Court that mentioned either "workers' compensation" or "workmens' compensation." That second one is clearly genderist, and that phrase has now been removed from Chapter 440, but historic decisions might nonetheless use that term. 

Of those 337, 102 are clearly not related to substantive workers' compensation issues. These include various rule revision decisions, Florida Bar complaint decisions, and even a few related to the Florida Birth-Related Neurological Injury Fund. These mention "workers' compensation," and were therefore in the search results but were excluded from the final analysis. The distribution of the remaining 235 reported cases are as follows: 

From this cursory analysis (without reading all of the individual cases), one might conclude that 2016 was above average for published Florida Supreme Court decisions mentioning workers' compensation; the average over the last 40 years is 6 per year. Some will read the 2016 cases listed below and conclude some are not appropriately included. But, undertaking that in-depth analysis of any particular year would only be appropriate if such analysis were performed for each of the 235 cases. Since that is not undertaken for all years, scrutiny of any single year is not appropriate in this "overview" analysis. 

And, one might conclude that Florida Supreme Court published decisions that mention workers' compensation are decreasing in volume. Dividing the last 40 years (since the abolition of the IRC, and the advent of First District Court jurisdiction) into four decades affords support for that conclusion. Though the most recent decade included 2018, which is now only half-concluded), the average of 2.5 Supreme Court cases per year is notably lower than any prior ten-year period.

It is thus perhaps difficult to conclude that Florida Supreme Court workers' compensation written decisions are increasing. Certainly, 2016 was above that overall average, with 7 published opinions. However, that volume would nonetheless appear to be an exception for that ten-year period, and not the rule. For those who might want to count themselves, the data relied upon is below.

91. Eady v. Medical Personnel Pool  1979

229. Crippen v. Sunland Center 1979

237. Highsmith v. Woodson 1979

242. Tinsley v. City of St. Petersburg 1979

1. International Paper Co. v. McKinney 1980

23. Rollins v. Southern Bell Tel. and Tel. Co. 1980

57. Samaha v. State 1980

113. Strother v. Morrison Cafeteria 1980

115. Croft v. Pinkerton-Hayes Lumber Co. 1980

122. Redding v. Cobia Boat Co. 1980

127. Kerce v. Coca-Cola Company-Foods Division 1980

154. Media General Corp. v. Curry 1980

157. American Bankers Ins. Co. v. Little 1980

162. American Beryllium Co. v. Stringer 1980

186. D’Angelo Plastering Co. v. Isaac 1980

200. Favre v. Capeletti Bros., Inc. 1980

211. Special Disability Trust Fund v. Stone & Webster Engineering Corp. 1980

249. Fuller Lumber Co. v. Parler 1980

86. Houle v. Asphalt Sealing and Stripping Co., Inc. 1981

110. Hacker v. St. Petersburg Kennel Club 1981

114. Motchkavitz v. L. C. Boggs Industries, Inc. 1981

132. City of Miami v. Rosenberg 1981

155. Iglesia v. Floran 1981

160. Silvera v. Miami Wholesale Grocery, Inc. 1981

172. Wright v. Gulf and Western Food Products 1981

220. Oglesby v. Southern Bell Tel. and Tel. Co. 1981

288. Cauley v. City of Jacksonville 1981

142. Lovett v. Gore Newspapers Co. 1982

161. Gulfstream Land & Development Corp. v. Wilkerson 1982

8. Mahoney v. Sears, Roebuck & Co. 1983

17. Acton v. Fort Lauderdale Hosp. 1983

20. Employers Ins. of Wausau v. Abernathy 1983

35. Smith v. Piezo Technology and Professional Adm’rs 1983

70. Sosa v. Knight-Ridder Newspapers, Inc. 1983

109. Caravasios v. M.W. Spates Const. Co. 1983

141. Prahl Bros., Inc. v. Phillips 1983

78. Sasso v. Ram Property Management 1984

100. Nikko Gold Coast Cruises v. Gulliford 1984

138. Norwood Shell, Inc. v. Forbing 1984

139. Morain v. Publix Supermarket 1984

140. Rudolph v. Miami Dolphins, Ltd. 1984

164. Kimbrell v. Paige 1984

34. Aetna Ins. Co. v. Norman 1985

60. Newton v. McCotter Motors, Inc. 1985

65. O’Neil v. Department of Transp. 1985

105. L.M. Duncan & Sons, Inc. v. City of Clearwater 1985

111. Booher v. Pepperidge Farm, Inc. 1985

117. Orr v. Trask 1985

118. Acosta v. Kraco, Inc. 1985

137. Mobil v. Trask 1985

156. Travieso v. Travieso 1985

173. Bredy v. Turner Patrol & Detective Agency, Inc. 1985

308. Everton v. Willard 1985

2. Shipp v. Workers’ Compensation Admin. Trust Fund 1986

48. Fisher v. Shenandoah Gen. Const. Co. 1986

53. Lawton v. Alpine Engineered Products, Inc. 1986

75. Daniel v. Holmes Lumber Co. 1986

133. Allstate Ins. Co. v. Boynton 1986

136. International Hosp. v. Seymour 1986

143. City of Fort Lauderdale v. Sledge 1986

144. Farm Stores, Inc. v. Harvey 1986

266. Florida Steel Corp. v. Adaptable Developments, Inc. 1986

116. Dayron Corp. v. Morehead 1987

125. Streeter v. Sullivan 1987

167. Coon v. Continental Ins. Co. 1987

171. Crittenden Orange Blossom Fruit v. Stone 1987

185. Brackenridge v. Ametek, Inc. 1987

226. Clausell v. Hobart Corp. 1987

286. Dionese v. City of West Palm Beach 1987

72. Tarver v. Evergreen Sod Farms, Inc. 1988

99. Scott v. Otis Elevator Co. 1988

119. Nikula v. Michigan Mut. Ins. 1988

158. Harris v. State 1988

208. Liberty Mut. Ins. Co. v. Chambers 1988

293. Barron v. Florida Freedom Newspapers, Inc. 1988

12. Byrd v. Richardson-Greenshields Securities, Inc. 1989

19. Barragan v. City of Miami 1989

32. Gator Freightways, Inc. v. Roberts 1989

38. Weisfeld v. Weisfeld 1989

63. Department of Public Health, Div. of Risk Management v. Wilcox 1989

77. Leon County School Bd. v. Grimes 1989

98. De Ayala v. Florida Farm Bureau Cas. Ins. Co. 1989

106. Cypress Creek Nursery v. Eagle 1989

149. USS Agri-Chemicals, a Div. of USX Corp. v. Waddell 1989

230. Hullinger v. Ryder Truck Rental, Inc. 1989

275. State v. Simpson 1989

18. Theis v. City of Miami 1990

41. Manfredo v. Employer’s Cas. Ins. Co. 1990

66. Scott v. Otis Elevator Co. 1990

102. D.L. Cullifer and Son, Inc. v. Martinez 1990

120. Department of Agriculture and Consumer Services v. Bonanno 1990

148. Halifax Paving, Inc. v. Scott & Jobalia Const. Co., Inc. 1990

190. Frazier v. Baker Material Handling Corp. 1990

235. Shelby Mut. Ins. Co. of Shelby, Ohio v. Smith 1990

285. Thornber v. City of Ft. Walton Beach 1990

310. Standard Guar. Ins. Co. v. Quanstrom 1990

37. Martinez v. Scanlan 1991

134. Roe v. City Investing/General Development Corp. 1991

176. In re Estate of Platt 1991

180. Gormley v. GTE Products Corp. 1991

196. Florida Power Corp. v. Seminole County 1991

280. Chiles v. Children A, B, C, D, E, and F 1991

25. Mandico v. Taos Const., Inc. 1992

49. University of Florida v. Massie 1992

56. Sibley v. Adjustco, Inc. 1992

88. City of Holmes Beach v. Grace 1992

121. Holder v. Keller Kitchen Cabinets 1992

175. Michigan Millers Mut. Ins. Co. v. Bourke 1992

247. Melendez v. State 1992

265. Georgia Insurers Insolvency Pool v. Brewer 1992

291. Firestone Tire & Rubber Co. v. Acosta 1992

36. Eller v. Shova 1993

59. Commercial Coatings of Northwest Florida, Inc. v. Pensacola Concrete Const. Co., Inc. 1993

62. Weber v. Dobbins 1993

83. Lee v. City of Jacksonville 1993

90. Cash v. Universal Rivet, Inc. 1993

92. Garcia v. Carmar Structural, Inc. 1993

130. Allied-Signal, Inc. v. Fox 1993

147. University of Miami v. Echarte 1993

314. Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp. 1993

47. Zundell v. Dade County School Bd. 1994

82. Jones v. Chiles 1994

108. City of Miami v. Bell 1994

197. Weygant v. Fort Myers Lincoln Mercury, Inc. 1994

212. Thompson v. State 1994

320. Department of Revenue v. Kuhnlein 1994

3. Ramos v. Univision Holdings, Inc. 1995

43. Williams v. Fort Pierce Tribune and Claims Center 1995

68. Keith v. News & Sun-Sentinel Co. 1995

74. Holmes County School Bd. v. Duffell 1995

95. Clair v. Glades County Bd. of Com’rs 1995

193. Keith v. News & Sun-Sentinel Co. 1995

257. De La Rosa v. Zequeira 1995

24. Barry v. Burdines 1996

103. Domino’s Pizza v. Gibson 1996

128. Millinger v. Broward County Mental Health Div. and Risk Management 1996

181. Cramer v. Broedell Plumbing Supply 1996

206. Department of Educ. v. Roe 1996

281. In re Estate of Smith 1996

306. Acosta v. Richter 1996

312. Kinney System, Inc. v. Continental Ins. Co. 1996

313. Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles 1996

4. Hastings v. Demming 1997

11. Broward v. Jacksonville Medical Center 1997

61. Escambia County Sheriff’s Dept. v. Grice 1997

93. Recchi America Inc. v. Hall 1997

227. Galen of Florida, Inc. v. Braniff 1997

252. Forgione v. Dennis Pirtle Agency, Inc. 1997

260. Murray v. Department of Transp. 1997

284. Y.H. Investments, Inc. v. Godales 1997

299. State v. Mark Marks, P.A. 1997

21. Florida Dept. of Corrections v. Culver 1998

39. Lee v. Wells Fargo Armored Services 1998

89. Wal-Mart Stores v. Campbell 1998

182. Rea v. 7-11 Stores/Southland Corp. 1998

192. Paulk v. Palm Beach County School Bd. 1998

201. Mims v. Lipton Toyota, Inc. 1998

15. Deen v. Quantum Resources, Inc. 1999

85. City of Clearwater v. Acker 1999

169. Boulis v. Florida Dept. of Transp. 1999

26. Turner v. PCR, Inc. 2000

30. City of Hollywood v. Lombardi 2000

71. Dixon v. GAB Business Services, Inc. 2000

123. U.S. Sec. Ins. Co. v. Cimino 2000

177. Salters v. State 2000

202. Florida Dept. of Transp. v. Johns 2000

207. Florida Plastering v. Alderman 2000

217. Rollins v. Pizzarelli 2000

267. Trapp v. State 2000

268. Nationwide Mut. Fire Ins. Co. v. Pinnacle Medical, Inc. 2000

297. Allstate Ins. Co. v. Rudnick 2000

28. Florida Dept. of Labor & Employment Sec. v. Boise Cascade Corp. 2001

64. State v. Herny 2001

69. Swartz v. McDonald’s Corp. 2001

94. Jones v. ETS of New Orleans, Inc. 2001

97. Gilbert v. Publix Supermarkets, Inc. 2001

112. Florida Dept. of Transp. v. Juliano 2001

129. Florida HRS Dist. II v. Pickard 2001

178. Ford v. Conklin 2001

179. Florida Dept. of Transp. v. Hogan 2001

221. Florida Power Corp. v. Garcia 2001

294. Mitchell v. Moore 2001

302. United Auto. Ins. Co. v. Rodriguez 2001

10. U.S. Sugar Corp. v. Henson 2002

248. Coregis Ins. Co. v. Mosquito Control Special Taxing Dist. 2002

276. Alterra Healthcare Corp. v. Estate of Shelley 2002

300. Roberts ex rel. Estate of Roberts v. Tejada 2002

166. Humana Worker’s Compensation Services v. Home Emergency Services, Inc. 2003

241. Grenitz v. Tomlian 2003

33. Reeves v. Fleetwood Homes of Florida, Inc. 2004

40. Taylor v. School Bd. of Brevard County 2004

44. Travelers Indem. Co. v. PCR Inc. 2004

9. Aguilera v. Inservices, Inc. 2005

22. Florida Div. Of Workers’ Compensation v. Cagnoli 2005

213. Malu v. Security Nat. Ins. Co. 2005

219. Maggio v. Florida Dept. of Labor and Employment Security 2005

316. Acker v. Acker 2005

13. Jones v. Martin Electronics, Inc. 2006

31. Aravena v. Miami-Dade County 2006

124. Steadman v. Liberty Mut. Ins. Co. 2006

184. Summit Claims Management, Inc. v. Lawyers Exp. Trucking, Inc. 2006

277. Schmidt v. McDonough 2006

27. Bakerman v. The Bombay Co., Inc. 2007

231. Florida Dept. of Corrections v. Abril 2007

29. Sanders v. City Of Orlando 2008

96. Murray v. Mariner Health 2008

183. Rigaud v. Broward General Medical Center 2008

216. Phantom of Brevard, Inc. v. Brevard County 2008

225. Deren v. State 2008

321. Florida Hosp. Waterman, Inc. v. Buster 2008

191. Saleeby v. Rocky Elson Const., Inc. 2009

52. Bifulco v. Patient Business & Financial Services, Inc. 2010

58. Florida’s Sheriff’s Workers’ Compensation Self-Insurance Fund v. Florida Dept. of Financial Services 2010

218. Menendez v. Progressive Exp. Ins. Co., Inc. 2010

234. Perera v. U.S. Fidelity and Guar. Co. 2010

243. Florida Dept. of State v. Mangat 2010

278. Wald v. Grainger 2011

279. Bionetics Corp. v. Kenniasty 2011

174. Petty v. Florida Ins. Guar. Ass’n 2012

209. City of Palm Bay v. Wells Fargo Bank, N.A. 2013

223. Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc. 2013

244. Franks v. Bowers  2013

6. Morales v. Zenith Ins. Co. 2014

79. Palm Const. Co. of West Florida v. Florida Dept. of Financial Services, Div. of Workers’ Compensation 2015

45. Richardson v. Aramark/Sedgwick CMS  2016

46. Westphal v. City of St. Petersburg 2016

51. Castellanos v. Next Door Co. 2016

153. Pfeffer v. Labor Ready Southeast, Inc. 2016

210. Diaz v. Palmetto General Hosp. 2016

282. Paton v. GEICO General Ins. Co. 2016

295. M.M. v. Florida Dept. of Children and Families 2016

16. Stewart v. Florida Workers’ Compensation Insurance Guaranty Association 2017

87. Weaver v. Myers 2017

296. Allstate Insurance Company v. Orthopedic Specialists 2017

304. Searcy, Denney, Scarola, Barnhart & Shipley, etc. v. State 2017

Not Included in Calculations 

131. In re Florida Workers’ Compensation Rules of Procedure 1979

50. In re Florida Workers’ Compensation Rules 1980

269. In re Florida Rules of Judicial Administration 1980

188. In re Certificate of Judicial Manpower 1980

168. The Florida Bar v. Samaha 1981

273. The Florida Bar Re Amendment to Bylaws 1981

317. The Florida Bar 1982

165. The Florida Bar v. Wooten 1984

287. The Florida Bar v. Lancaster 1984

81. The Florida Bar 1984

145. The Florida Bar v. Kirtz 1984

290. Florida Patient’s Compensation Fund v. Rowe 1985

301. The Florida Bar re Rules Regulating The Florida Bar 1986

322. In re Certificate of Judicial Manpower for District Courts of Appeal, Circuit Courts and County Courts, as Required by Article V, Section 9, Florida Constitution 1986

7. The Florida Bar Re Amendment to Rules Regulating The Florida Bar 6-8.3, 6-85, and Florida Bar, The, Re Amendment to Rules Regulating The Florida Bar 6-8.3, 6-8.5, and 6-11 1987

238. The Florida Bar v. Tunsil 1987

307. In re Amendments to Rules of Civil Procedure 1988

67. The Florida Bar 1988

104. The Florida Bar Re Amendment to Rules Regulating The Florida Bar Chapter 6 (Legal Specialization and Educ.) 1989

187. The Florida Bar v. Flinn 1991

199. In re Certification of Judicial Manpower 1991

55. Amendments to Florida Rules of Workers’ Compensation Procedure 1992

150. The Florida Bar Re: Amendment to Rules Regulating The Florida Bar 1992

259. In re Florida Rules of Family Court Procedure 1992

262. In re Certification of Judicial Manpower 1992

263. The Florida Bar re Amendment to Rules Regulating the Florida Bar 1992

272. In re Amendments to Florida Rules of Appellate Procedure 1992

334. The Florida Bar Re: Amendment to Florida Rules of Judicial Admin. 1992

337. In re Amendments to the Florida Rules of Civil Procedure 1992

204. In re Certification of Judgeships 1993

258. The Florida Bar v. Mitchell 1994

76. Amendments to Florida Rules of Workers’ Compensation 1995

84. In re Amendments to the Florida Rules of Workers’ Compensation Procedure 1995

255. The Florida Bar re Amendments to Rules Regulating The Florida Bar 1995

233. In re Family Law Rules of Procedure 1995

54. In re Amendments to Florida Rules of Workers’ Compensation Procedure 1996

80. Florida Birth-Related Neurological Injury Compensation Ass’n v. McKaughan 1996

151. Amendments to the Florida Rules of Appellate Procedure 1996

152. Amendments to the Florida Rules of Appellate Procedure 1996

253. In re Certification of Need for Additional Judges 1996

324. In re Amendments to Rules Regulating The Florida Bar 1996

214. The Florida Bar v. Spann 1996

5. In re Amendments to the Florida Rules of Workers’ Compensation Procedure 1997

274. In re Certification of the Need for Additional Judges 1997

327. The Florida Bar re Amendments to Rules Regulating the Florida Bar 1997

256. Amendments to Florida Family Law Rules of Procedure 1998

264. The Florida Bar v. Sweeney 1998

271. The Florida Bar re Williams 1998

309. In re Amendments to the Florida Family Law Rules 1998

107. The Florida Bar v. Sayler 1998

73. Amendments to the Florida Rules of Workers’ Compensation Procedure 2000

170. Amendments to Florida Rules of Appellate Procedure 2000

189. The Florida Bar v. Buckle 2000

222. Amendments to the Florida Rules of Judicial Admin. 2000

311. In re Amendments to the Florida Family Law Rules of Procedure 2000

318. Amendments To The Florida Family Law Rules of Procedure and Family Law Forms 2000

328. Amendments to the Rules Regulating The Florida Bar 2000

270. Amendments to Rules Regulating The Florida Bar 2001

315. Amendments to the Florida Family Law Forms 2001

42. Amendments to the Florida Rules of Workers’ Compensation Procedure 2002

159. Amendments to Florida Rules of Appellate Procedure 2002

228. Amendment to Florida Rule of Judicial Admin. 2.130 2002

333. In re Report of Supreme Court Workgroup on Public Records 2002

336. Amendments to Rules Regulating the Florida Bar 2002

101. The Florida Bar v. Kelly 2002

254. Amendments to the Florida Family Law Rules of Procedure 2003

261. Amendments to the Florida Rules of Judicial Admin. (2-Year Cycle) 2003

14. Amendments to the Florida Rules of Workers’ Compensation Procedure 2004

251. In re Approval of Form For Use By Clerks of the Circuit Courts Pursuant to Rule 10-2.1(a) of the Rules Regulating The Florida Bar 2004

289. Amendment to the Rules Regulating The Florida Bar 2004

126. Amendments to the Florida Rules of Appellate Procedure 2005

198. In re Amendments to The Rules of Judicial Admin. (Two-Year Cycle) 2005

240. In re Approval of Application for Determination of Indigent Status Forms for Use By Clerks 2005

305. The Florida Bar v. Shankman 2005

319. In re Amendments to the Florida Rules of Criminal Procedure-Conform Rules to 2004 Legislation 2005

335. In re Amendments to the Rules Regulating The Florida Bar 2005

135. In re Amendments to The Florida Rules of Appellate Procedure (Out of Cycle) 2006

246. In re Amendments to the Florida Family Law Rules of Procedure (Out of Cycle) 2006

163. Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Div. of Administrative Hearings 2007

239. In re Amendments to the Rules Regulating the Florida Bar 2007

250. In re Approval of Application For Determination of Indigent Status Forms For Use By Clerks And Amendment To Florida Rule of Criminal Procedure 3.984 2007

205. The Florida Bar v. Varner 2008

215. Florida House of Representatives v. Crist 2008

245. In re Approval of Application for Determination of Indigent Status Form for Use by Clerks and Amendment to Florida Rule of Criminal Procedure 3.984 2009

283. In re Amendments to the Rules Regulating the Florida Bar 2009

303. The Florida Bar v. Head 2010

195. In re Standard Jury Instructions In Civil Cases-Report No. 09-01 (Reorganization of the Civil Jury Instructions) 2010

224. In re Amendments to Florida Rules of Appellate Procedure 2011

330. In re Amendments to Florida Rules of Civil Procedure, Florida Rules of Judicial Administration, Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Small Claims Rules, Florida Rules of Juvenile Procedure, Florida Rules of Appellate Procedure, Florida Family Law Rules of Procedure--Electronic Filing 2012

331. In re Amendments to Florida Rules of Civil Procedure, Florida Rules of Judicial Administration, Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Small Claims Rules, Florida Rules of Juvenile Procedure, Florida Rules of Appellate Procedure, and Florida Family Law Rules of Procedure--Electronic Filing 2012

146. Citizens Property Ins. Corp. v. San Perdido Ass’n, Inc. 2012

292. In re Standard Jury Instructions in Civil Cases--Report No. 2011-01 (Unlawful Retaliation) 2012

232. Samples v. Florida Birth-Related Neurological Injury Comp. Ass’n 2013

329. In re Amendments to Rules Regulating the Florida Bar--Subchapter 4-7, Lawyer Advertising Rules 2013

203. In re Amendments to Florida Rules of Appellate Procedure 2014

298. The Florida Bar v. Gass 2014

323. In re Amendments to Rules Regulating The Florida Bar (Biennial Report) 2014

325. In re Amendments to Rules Regulating the Florida Bar (Biennial Petition Housekeeping) 2015

326. In re Amendments To Florida Evidence Code 2017

332. In re Amendments to Rules Regulating The Florida Bar (Biennial Petition) 2017

194. In re Amendments to Florida Rules of Appellate Procedure 2017

236. In re Standard Jury Instructions in Civil Cases-Report No. 17-04 2017

Recognize the Conflict - Discover the Connection

The Wisconsin Supreme Court late last week rendered a decision in McAdams v. Marquette University. 2018 WI 88, _____ N.W.2d _____ (WI 2018)(Case no. 2017AP1240). It will be much discussed in weeks to come. The Court was called upon, in a "bypass" proceeding (the state's appellate court did not consider the case and instead the Supreme Court directly reviewed a trial decision), to evaluate the First Amendment rights of a college professor within the context of an employment contract dispute. The decision will quite possibly implicate the manner in which university contracts and procedures are written. The Court was critical of the university and its legal arguments. 

The facts are reasonably straightforward. A philosophy instructor, Ms. Abbate, decided that certain topics or viewpoints were not appropriate for discussion in her class. She lectured that these topics were inappropriate topics because "everybody agrees on this, and there is no need to discuss it." A student challenged that constraint after one class, and the professor was adamant, even allegedly suggesting that the student "drop the class" if her constriction on conversation or debate was perceived as too restrictive. Some may perceive that this restricted the student's expression. 

A tenured political science professor at the university, Dr. McAdams, somehow became aware of Ms. Abbate's conversations with the student. He contacted her, but she declined to discuss the issue with him. She later sent an email in which she was both dismissive and critical of Dr. McAdams. Despite Ms. Abbate declining to discuss the incident with him, Dr. McAdams published a November 2014 blog post critical of her interaction with the student. That post included a link that allowed readers to contact Ms. Abbate directly, and to visit her "publicly-available website." Apparently, a fair few people did contact her, and some were less than cordial regarding their perceptions of her and the interactions with the student.

Ms. Abate filed a complaint with the university, and a Faculty Hearing Committee (FHC) was convened (or "named," as there were issues with the previously designated membership hearing the issue) to review the allegations. The FHC is an "advisory body" of faculty, charged with investigating facts and making a recommendation to the ultimate decision-maker, the university president. In the meantime, Dr. McAdams' criticisms garnered interest, and "spread beyond Dr. McAdams' blog post," apparently gaining a national exposure. The First Amendment and suppression of debate on college campuses was and may still be newsworthy. The dean of Dr. McAdams' college suspended him with pay in December, for the duration of the FHC investigation. 

The university has a website dedicated to this dispute. The university asserts that if this blog post had been published without Ms. Abbate's "name and contact information, no disciplinary action would have been taken." Thus, it acknowledges that the content of the speech was, in its perspective, of paramount importance. Despite that admission, the university clearly and unequivocally states that this dispute is not about either freedom of speech, academic freedom, or the professor's political views. The university's conclusions in that regard may be perceived as differing from the Wisconsin Supreme Court's, but that analysis and discussion is for others. The Daily Beast has already weighed in as has the Chronicle of Higher Education. There may be perspectives and factual disputes (the Daily Beast article claims McAdams was fired and that he did more than link to Abbate's public Internet information). The perspectives are likely to be varied and in some cases opinionated. 

The short conclusion of the Wisconsin Supreme Court is that the university's actions breached the employment contract between Dr. McAdams and the University. The Court ordered Dr. McAdams reinstated, that he be compensated for "back pay," and that the trial court hold proceedings to determine what other damages are appropriate. It is an interesting analysis of free speech, contract law, and due process. And, it has little or nothing substantively to do with workers' compensation. 

But, it is of interest in the context of both disputes and due process. But of value here, an understanding of the Court's analysis may be of assistance as regards the role of the adjudicator, and of "appearances."

After the blog post was published, and Dr. McAdams was suspended, another Marquette professor expressed her thoughts on the dispute between Ms. Abbate and Dr. McAdams. The professor, Dr. Lynn Turner, was one of several who signed an "open" letter later published in a newspaper. The letter expressed that the writers "deplore(d)" Dr. McAdams' treatment of Abbate, "support Ms. Abbate," and stated their conclusion that "McAdams's actions" "harmed the personal reputation" of Ms. Abbate and "the academic reputation of Marquette University." Those conclusions were reached and published before any proceedings, due process, or presentation of evidence.

Dr. Turner was later appointed as a member of the FHC that would investigate Ms. Abbate's complaint against Dr. McAdams. Based upon Dr. Turner's public and published comments, Dr. McAdams asked her to recuse (disqualify) herself from serving regarding the complaint and investigation, However:

"The FHC unanimously rejected the request, stating that the letter evidenced no disqualifying bias because, inter alia, her comments did not bear on the issues the committee would decide."

This quote, and a vote by the FHC, suggests that Dr. McAdams first asked Dr. Turner not to participate (recusal) and that his request later morphed into a request that the FHC as a body preclude her participation (disqualification).

The FHC investigated and then recommended that the university president suspend Dr. McAdams. In March 2016 (16 months after the publication of the blog post), the president did suspend McAdams, adding conditions that were required before reinstatement, essentially an acknowledgment and apology letter regarding his comments about Ms. Abbate. Dr. McAdams declined (he allegedly said he would do so "when hell freezes over") and sued the university instead. As noted, the university prevailed at trial, and Dr. McAdams' was successful in obtaining both review and relief from the Wisconsin Supreme Court. 

Despite concluding that the FHC acted as merely an advisory panel (many judges act in that capacity as "fact finders" for some decisional authority), the Court addressed the motion to disqualify Dr. Turner from the FHC at some length. It found the committee's denial of that request "remarkable." The Court concluded that the presence of Dr. Turner "compromised" "the FHC's impartiality." It noted that prior to her appointment to the FHC, Dr. Turner had (in the letter made public):

"a. Deplored Dr. McAdams' treatment of Ms. Abbate; b. Expressed support for Ms. Abbate's position in the dispute; c. Asserted that Ms. Abbate had been harassed and intimidated as a direct result of Dr. McAdams' blog post; d. Stated that Dr. McAdams had harmed Ms. Abbate's personal and academic reputation; e. Claimed Dr. McAdams had created a negative campus climate and caused members of the Marquette community to fear becoming subjects of his attacks; f. Accused Dr. McAdams of betraying his role as a faculty member by asserting the protection of academic freedom and exploiting political issues to further his personal agenda; g. Stated that Dr. McAdams' action was a clear violation of the Academic Freedom section of the Faculty Handbook; and h. Concluded that Dr. McAdams had "failed to meet the standards we aspire to as faculty, as well as the broader ethical principles that guide Marquette's mission as a Jesuit, Catholic institution.""

The Court explained that the extensive report submitted by the FHC to the university president in fact addressed multiple issues which were included on, or related to, that list of previous conclusions adopted by Dr. Turner. It disagreed with the conclusions of both Dr. Turner and the FHC regarding the issues that would be addressed and the propriety of disqualification. The Court listed five FHC report paragraphs that were directly implicated by the "lettered paragraphs above." 

The Court noted that even if Dr. Turner did not recognize the conflict when Dr. McAdams asked her to recuse herself, "she should have recused herself once she discovered the connection" between the FHC efforts and her prior public comments. In fact, the university's faculty handbook specifically says that a faculty member "whose impartiality might be compromised by participating in the processing of the grievance ought to recuse himself or herself." Recusal and disqualification are periodic issues in workers' compensation cases, and thus the Court's analysis of prior comments is of interest and import. 

The Court held that "under any reasonable standard of impartiality, Dr. Turner would be disqualified." It noted that she not only "publicly inserted herself into the dispute and expressed a personal interest in its outcome," but that she "committed herself to" her conclusions in writing. As a result, Dr. Turner could not thereafter "decide the FHC proceedings in favor of Dr. McAdams without contradicting what she had already said to the entire Marquette University campus." In other words, acting as an impartial arbiter, Dr. Turner would perhaps have had to admit "that her initial convictions were mistaken." 

A change of heart in such a setting, the Court concluded, is contrary to human nature. The Court noted that publicly changing her previously expressed stance or views and ruling in favor of Dr. McAdams, might have proven difficult. It noted that the "natural human impulse to resist acknowledging a mistake, especially in light of the audience to whom she would be making the acknowledgment, is sufficiently powerful to affect Dr. Turner's consideration of the dispute." In other words, admitting we were wrong is not easy, and doing so before our peers and the public may be more difficult still. 

Analogizing the implications if such statements were made by an arbitrator while concluding the FHC was not necessarily akin to arbitration proceedings, the Court said that "if an arbitrator evidenced this level of bias, we would set aside the resulting award." The bias defeats the due process, which requires an unbiased arbitrator. The proceedings were not akin essentially because the FHC was advisory and not adjudicatory. But, despite that foundational distinction and the Court's decision to disregard the FHC on that basis, the Court spent pages on the recusal/disqualification issue. Simply stated, "the FHC's composition was unacceptably compromised by Dr. Turner's bias." And clearly, the Court nonetheless thought it important to describe why bias and appearances were important for the FHC process. 

The Court acknowledged that faculty committee conclusions are generally due significant deference when courts review the "substance of a genuinely academic decision(s)." Notably, this was perceived by the Court as a freedom of expression and contract issue, more so than an academic issue. It also noted the usual and logical appropriateness of deference to factual findings in this and similar instances, as the committee was present to observe witnesses and to judge candor (as is any trial judge). However, it declined to afford such deference in this setting, at least in part due to Dr. Turner's "compromise" of impartiality. 

As an aside, in addressing Dr. McAdams' constitutional rights asserted in this challenge, the Court acknowledged that this private university is "neither Congress nor the government, and can adopt and enforce rules not implicated by the Constitution." The absence of that "state action" element might have been the first thought of lawyers examining this post. The Court noted, however, that the university "chose to incorporate into McAdams' contract rights guaranteed 'by the United States Constitution.'" This reminds us that while private actors may have the authority to restrict freedoms, they are nonetheless bound by the contracts that they write and to which they agree.

Another aside, the 160-page FHC Report notes (pages 8-9) that delay in the FHC efforts resulted when multiple members did in fact recuse her or himself. One, Dr. John Pauly, removed himself from the FHC upon a specific request from Dr. McAdams. This was based upon Dr. Pauly's prior work with Dr. McAdams while serving as university provost and is seemingly somewhat similar to his request regarding Dr. Turner. The report is less than clear regarding the identity of all the members ultimately responsible for its findings. The report is signed by Professor Bruce Boyden ("McAdams disclaimer": by linking to his Marquette University webpage, I in no way seek to either identify him or encourage anyone to contact him, a practice The Daily Beast terms "doxing"). Therefore, the FHC clearly had some legal training and expertise. 

Thus, the decision provides an important examination of the role that public comments might play in a recusal or disqualification analysis. That is not the logic and explanation that will garner attention in the coming days, as various authorities are sure to weigh in on the implications and importance of this decision. Instead, their attention will likely be focused on the values of free expression, academic freedom, and public perceptions of America's current university environment. I understand the draw of those aspects, but those analysis I leave to others. 

The decision is, instead, relevant and noteworthy because (1) it reinforces that contracts are enforceable, (2) that due process is appropriate, (3) that process necessarily requires an unbiased arbiter, and (4) that public comments specific to a case by one who will decide a case are simply inappropriate. This portion of the analysis bears consideration by judges, lawyers, and litigants. The broader context of McAdams v. Marquette may otherwise be of interest and worthy of the time to read. But, the explanation of bias and appearance are "must" read for all, including judges.

Specificity and Interpretation

I was recently reminded of the merits and failures of specificity. The Florida First District Court issued Myers v. Pasco County, No. 1D17-5457 on June 4, 2018. The litigation centered upon the injured worker requesting a "one-time change" of physician pursuant to Section 440.13(2)(f). 

This worker was treating with an orthopedic surgeon, and requested her statutory "one-time change." The Employer/Carrier responded by authorizing a neurosurgeon. The injured worker was dissatisfied with that authorization and filed a petition for benefits seeking a one-time change meeting "the statutory requirements." The assigned Judge of Compensation Claims denied the petition:

"reasoning that the term 'specialty' is broader than the 'specialty of [the] physician' and 'should be extended to' the types of conditions the doctor treats." 

The judge's reasoning was that the condition being treated, a back injury, was something that both orthopedic surgeons and neurosurgeons treat (whether there was record evidence of that factual conclusion is not clear to me). The judge therefore concluded the authorization of a neurosurgeon satisfied the statutory right to a "one-time change."

The Court reversed, concluding that this analysis is "not grounded in the language of the statute." The statute provides:

(f) Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days 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.

Failure of the carrier to timely comply with this subsection shall be a violation of this chapter and the carrier shall be subject to penalties as provided for in s. 440.525. (Emphasis added). 

The "language of the statute" makes no mention of the "alternative physician" being an expert in the same specialty or subspecialty as the treating physician. That language instead appears in the next sentence, not about the change, but addressing when such an authorization also affects a "deathorization" of the original physician. 

The implication of that language requiring that the alternative physician practice in the same specialty of medicine (in that first sentence) was created by the Court. The Court first created this requirement in Retailfirst Insurance Co. v. Davis, 207 So.3d 1035 (Fla. 1st DCA 2017).  Davis involved an injured worker requesting the change, but no timely response from the Employer/Carrier. The worker then felt entitled to select any physician as a "one-time change," and the Judge of Compensation Claims there agreed. The Court disagreed. 

The court concluded that the "in the same specialty" language regarding deauthorization of the original physician dictates that the one-time change must likewise be in the same specialty. The Court concluded that any other interpretation could produce the potential result not of "change," but of "addition" of a new physician. The Court reasoned that a "change" to a physician of a different specialty would preclude the Employer/Carrier from deauthorizing the original doctor, thus leaving two physicians authorized. Of course, the statute as a whole generally leaves the decision of authorizing physicians to the Employer/Carrier. 

Some might argue that the Court's analysis and outcome is detriment, while others see benefit. But, many might concede that such a decision to leave two physicians authorized would be a choice appropriately left to the Employer/Carrier? Authorize within the same specialty, thus deauthorize the original, and leave one, or authorize in a new specialty and be precluded from deauthorization leaving two. 

In Davis, the Court concluded such an outcome would leave the injured worker making the selection (because in that instance the Employer/Carrier failed to respond timely). And, the Court noted that worker might "select a specialist who is wholly unsuitable for the 'course of treatment' that has been authorized." In other words, the injured worker might well make a selection that is not in his or her best interest. However, other decisions have reinforced that workers in fact have a right to make their own decisions despite the potential for either benefit or detriment. A month later, the Court reinforced this "selection" interpretation in Zekanovic v. American II, 208 So.3d 851 (Fla. 1st DCA 2017). 

For clarity, the Court in Myers concluded that "specialty" has nothing to do with the treatment provided, anatomical damage to be addressed, or diagnosis rendered. For the purposes of this statute, "specialty" is dependent in no way upon the actual facts or circumstances of the worker. For statutory purposes, "specialty" is entirely controlled by the label that the two physicians must share. The issue is not one of "substance," but merely of "form." Notably, there have been several First DCA opinions that found "form" over "substance" analysis to be inappropriate. 

Explaining its reliance on "form" in this context, the Court noted that

"A physician who provides similar services in a different specialty does not qualify as a doctor in the “same specialty” because—quite simply—'same' is different than 'similar.'” (citation omitted)

"Same" and "similar" are separate and distinct. It is the name of the specialty, not the skills of the practitioner that matter under the law. 

Another aspect of this worth considering is geography. There are areas of Florida in which only one orthopedic surgeon who is willing to treat spinal injuries practices in a community. In that community, there may be neurosurgeons that likewise treat spinal injuries (or vice versa, one neurosurgeon that treats spines and several orthopedics that do). But, an Employer/Carrier may be disinclined to utilize a provider with a specific label, despite their skill, demeanor, and success rate, due to the complication potential from a "one-time change" request. Such a request in this hypothetical community might afford no alternative except a long commute to another town for an alternative that shares the original doctor's label. 

An injured worker with a back injury may be under the care of a physician who has trained in the best facilities under the tutelage of the best teachers, with a broad and deep understanding and expertise in the treatment of back injuries, and the title "orthopedic surgeon." Upon a request for a "one-time change," that patient cannot be transferred to a similar physician likewise preeminent in care for back injuries unless the second physician shares the label "orthopedic surgeon." However, the patient may be transferred to a doctor of lesser skill, training, and experience, a doctor with perhaps passing or even fleeting experience with back injury, so long as that physician wears the title "orthopedic surgeon."

One might wonder aloud about what interest is being served thereby. One might reflect upon Section 440.015 which explains the purpose of workers' compensation to 

"assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment"

One might advocate that the overarching goal of the system is to deliver the best medical care available, to strive for delivery of the benefits that will facilitate recovery, return of function, and employability. Or, one might conclude that the more logical outcome would be to compare form labels and play a matching game. 

In a similar context, I was presented early in my judicial career with a claim for attorney fees in Stromas v. International Paper. My recollection is that this was the second case I ever adjudicated. The Claimant there filed a petition for benefits requesting "authorization for a psychiatrist," and alleging he was "depressed and in need of a doctor." I noted that Section 440.192(2)(f) required specificity. Medical evidence supported that psychiatric care was not medically necessary in that case. 

In the course of the litigation, the Claimant underwent an independent medical examination (IME) with a psychiatrist, who also did not recommend psychiatric care. All the physicians declined to recommend the claimed benefit. The IME did however recommend psychotherapy. The Employer/Carrier later authorized "cognitive therapy." The claimant then filed a verified petition for attorney's fees based upon the claim for "authorization for a psychiatrist" and it was denied. 

The First District Court of Appeal reversed and directed that attorney fees for that petition be awarded. The Court was clear in its view of semantics, noting

"find particularly unpersuasive the hyper-technical effort by the employer/carrier and judge of compensation claims to distinguish the psychological therapy, which was ultimately authorized, from the authorization of a psychiatrist sought by claimant." Stromas v. Champion International, 828 So.2d 495 (Fla. 1st DCA 2002).

In terms of the specificity requirement of Section 440.192(2)(f), and the entitlement to attorney fees, one might argue that the Court has clearly held that "similar" is in fact sufficient, while in the determination of specialty, "similar lacks" the "same" persuasive nature.

It is for the reader to decide first whether the two analyses present the "same" or merely "similar" statutory frameworks and reasoning. Some will undoubtedly argue each way. But, at least for now, the "one-time change" is clearly a matter of "form" and label, and other medical authorization issues may instead be a matter of "hyper-technical" distinctions that lack a true difference. 

Emergency Hearings and Due Process

Litigation is a frustrating and time-consuming method for solving disputes. About government, Winston Churchill said, "Democracy is the worst form of government, except for all the others." The same might be said of litigation among the methods for deciding disputes. Certainly, a great many attest to the benefits of mediation, allowing people to resolve their own issues. However, it is often the threat and expense of litigation that motivates parties down the path to a mediated resolution. 

Workers' compensation is a statutory substitute for the common law right of filing a lawsuit, in tort, for damages. Employers are protected from such lawsuits by injured employees and are responsible for a statutory measure of benefits instead. That liability is broader than tort liability, which is available only when a party is negligent. In workers' compensation, there is no requirement of proving negligence. The employee recovery is likely smaller, but perhaps more easily proven, and benefits are payable immediately after the injury rather than following a civil trial, which might require years of delay. 

Thus, the delivery of damages in workers' compensation will generally be more immediate, paid periodically, but less. Unfortunately, despite best efforts at definition and delineation, there are nonetheless disputes over workers' compensation benefits, and litigation is sometimes necessary to interpret disagreements over the facts in a case, or the law applicable to them.

In a negligence lawsuit, there may be a long period after injury during which litigation proceeds. There is no payment to the injured party until the case is either adjudicated or settled. During the course of recovery from the injury, that person is essentially on their own in terms of obtaining medical care, testing, and treatment for her/his recovery. That, alone, illustrates a great advantage of workers' compensation. In workers' compensation, the employer is responsible for that medical care immediately, and throughout the worker's recovery. 

A reasonable amount of the litigation regarding workers' compensation claims is focused upon the delivery of those medical benefits, whether diagnostic (testing), remedial (intended to produce lasting improvement), or palliative (intended to alleviate symptoms, but not produce lasting improvement). Most of those claims can proceed through the normal, and somewhat time-consuming, litigation process. Some, however, require a more rapid determination. 

For that eventuality, the Rules of Procedure for Workers' Compensation Adjudications include a process for emergency conferences in Rule 60Q6.117

(1) A written request for an emergency conference shall be filed and served by electronic transmission or facsimile on all other parties or, if represented, their attorneys of record. It shall set forth in detail the facts giving rise to the request, its legal basis, the factual or medical basis for the claim that there is a bona fide emergency involving the health, safety, or welfare of an employee, and the specific relief sought. Any documents relied upon should be specifically referenced or attached. (2) After reviewing the merits of the request, the judge may summarily enter an order denying the request for an emergency conference or, after proper notice, conduct an evidentiary hearing to consider the emergency.

This relies upon the statutory provision of Section 440.25(4)(f):

(f) Notwithstanding any other provision of this section, the judge of compensation claims may require the appearance of the parties and counsel before her or him without written notice for an emergency conference where there is a bona fide emergency involving the health, safety, or welfare of an employee. An emergency conference under this section may result in the entry of an order or the rendering of an adjudication by the judge of compensation claims.

The 60Q6.117 process is similar to the procedural rules, now nullified, once erroneously promulgated by the Florida Supreme Court for workers' compensation proceedings. The rule and statute combine to afford the authority to proceed more rapidly to a determination when the circumstances dictate ("bona fide emergency").

It is a process in which there has been significant litigation over the years since Section 440.25(4)(f) was added to the statute in 1994. Despite this, it is not a frequent subject for the appellate court. However, Town of Jupiter v. Andreff, 656 So.2d 1374 (Fla. 1st DCA 1995) is instructive.

Ms. Andreff suffered a fall and injured her neck. There was a difference of opinion as to whether surgery should be performed, and she filed a claim seeking surgery. Ms. Andreff requested an "emergency conference" under the procedural rule (former Rule 4.112), and at the conference, she requested an emergency hearing under the statute. She sought medical testing on an emergency basis. Essentially, the rule allowed for discussion and even recommendation perhaps, but the (then) new statute allowed an adjudication. Under the statute, the employer could be ordered to provide the requested care. 

The trial judge acquiesced and conducted proceedings under the statute, and concluded by ordering the employer to provide the testing. The appellate court concluded that the (then) new statute section did not change substantive rights so it could be appropriately used though it was not in the workers' compensation law at the time of Ms. Andreff's injury. Instead, the statute merely changed the process, and could therefore be applied retroactively. 

The Court conceded that the (then) new statute language did not include a requirement for notice of such a hearing, and allowed a conference “without written notice.” But, it did not allow a hearing "without any notice." The Court reminded us that our constitutional precept of "due process requires notice, but it does not require written notice." And, that requirement is one of "reasonable notice based on all the circumstances." Notice is needed so that all parties are afforded the opportunity to both appear and present evidence and argument. The notice must afford the opportunity to both prepare for and attend a hearing. 

The Court was cautious of this statutory construct. The Andreff decision noted that any order issued following an emergency hearing based on the (then) new statute would have to be (1) limited to that medical emergency, and (2) would have to "include a finding, based on competent substantial evidence, that an actual emergency exists and state sufficient facts to support this finding."

The Andreff Court reversed the trial judge's order for the requested medical testing. It concluded that due process had not been afforded. Certainly, the employer had been provided notice of the proceedings. However, that notice informed the employer that a "conference" would be held by the judge, and cited the procedural rule. That notice did not inform the employer that the injured worker was seeking an adjudication, an order compelling the provision of the claimed benefit. The request to instead proceed under the statute was not made until the "conference" proceedings convened. 

The Court explained that "notice" must be clear about the nature of proceedings. Though the Supreme Court rule was similar to 60Q6.117, it also included language clearly delineating such proceedings as "advisory in nature." In that context, noticing a conference informed that there would be discussion and advice, not that there would be evidence and an adjudication. In that regard, a "conference" may be an advisable starting point in any such emergency. Over many years, I have seen much litigation and disagreement that was ameliorated by the parties meeting face-to-face for conversation, interaction, and clarity. 

The procedural rules have changed over the years, and the "advisory" language is no longer included. But, the lesson of Andreff remains. Within the precept of "due process" is the simple requirement of both notice and the opportunity to be heard. Andreff reminds us that notice must be meaningful notice, in that it must inform both of what issue will be heard and the actual relief that is being sought. If an order compelling the provision of benefits is the desired outcome, then the notice of that proceeding should certainly say so.

Of course, before any such request is made before the litigation system is engaged, it is always best for the parties or their counsel to speak. In this regard, I discourage email, letters, and texts (no facial expressions and too much potential to misinterpret tone). Instead, these instances are fraught with potential emotions on both sides (worker: "I need care, it's an emergency"; employer: "I don't know what is going on, and this request surprises me.") And, emotions perhaps cause us all to become defensive and even confrontational? Threatening correspondence (even if not intended as such) may not move the issue forward like a simple phone call, a conversation, a sharing of perspectives, or a chance to listen.

That is some good advice. Have you listened to anyone today, in the midst of your many chores and tasks?

Evolving Issue of Body Cameras

A couple of years ago, I penned Assume Everyone is Watching (September 2015). There was much discussion then regarding the surreptitious recording of people. The nation was seemingly enthralled with these recordings of police, of arrests, of protests, and more. A defining cry at the time was in favor of more recording, and many called upon police forces to accept and adopt "body cameras" so that an officer's every action would be documented. 

The New York Times claimed that by 2015 "95 percent of large police departments reported they were using body cameras or had committed to doing so in the near future." But in the Summer of 2016, the Seattle Times proclaimed that "slightly more than half of large municipal police departments in the U.S." were actually using body cams. Thus, the volume of "committed" may not have migrated to the "using" in the "near future" as might have been intended or perceived. In January 2018, the City of New York reported 2,470 cameras deployed, and about 15,000 more were needed for full deployment. 

In January 2018, the New York City Police Benevolent Association's International Business Times questioned the efficacy of the cameras. That story quotes from an October 2017 study that concluded an inability "to detect any statistically significant effects" of the use of such cameras." Opponents cited officer privacy, due process, safety, and cost as arguments against deploying this technology. The National Conference of State Legislatures concluded otherwise. In a study it cites, when officers "were equipped with cameras" the volume of "use of force incidents and citizen complaints against officers were reduced by 50 and 90 percent respectively." 

So, there is debate regarding efficacy generally, and there is discussion of the cost/benefit analysis. New York's cost is estimated at $27.5 million, or about $1,833 per camera ($27.5M/15,000) to equip the remaining 15,000 officers. That is significant. The value perhaps is seen in modifying human behavior. As the Times noted it is perceived that the "devices would have a civilizing effect on both officers and civilians." Perhaps we all behave differently when there is a potential we are being recorded? 

The 2015 death of Freddie Gray in Baltimore contributed to the discussion of body cameras. Mr. Gray died in police custody. In South Carolina, Senator Scott explained to CNN how body cameras would benefit the investigation of such situations, mentioning Mr. Gray and a shooting in North Charleston, South Carolina. He explained that "we should always have as much evidence from the scene as possible." He contended that "body cameras would help change behaviors." 

Coincidentally, Last summer body cameras were back in the news in Baltimore. CBS News reported that "thirty-four criminal cases will be thrown out," and many more were "under review" because "body camera footage appeared to show an officer planting elicit drugs at a crime scene." The report noted that after the video was viewed, two police officers were "placed on desk duty" and another "was suspended." Perhaps tending to prove the efficacy of cameras in assuring ethical police behavior?

In March 2018, the Boston Globe similarly reported that multiple criminal arrests there have been "overturned based on body camera footage" during a year-long "pilot program." It noted also that an internal affairs investigation against an officer "was dismissed due to body camera footage." An ACLU described the cameras as "a more neutral witness" removing some of the "he said, she said" conflict that arises in disputes.

Thus, there are examples of video evidence being used to protect citizens from the police and to protect police from allegations by the public. Video evidence, like all evidence, can cut both ways. 

The news about cameras in 2018 has been persistent though. One might wonder if there are more incidents lately, or just more news coverage?

In May 2018, a driver was stopped and tested for sobriety. She failed, as reported by Fox News. She alleged that the arresting officer made unwanted sexual advances. She claimed she was "forcefully groped, fondled" and more "during a prolonged arrest." She hired an attorney and sought relief. The Texas Department of Public Safety did an investigation and then released "nearly two hours of body cam footage." It referred to the complaints as "slanderous" and "false." The driver's attorney issued an apology, complimented the police officer, and accepted responsibility for inappropriately "amplifying these claims." 

Meanwhile, in Milwaukee, the police released footage of a January 2018 arrest involving a professional basketball player, Mr. Brown. CBS News reported in May that officers had claimed Mr. Brown "threatened them while they were writing him a ticket." However, it reported that "at no point in the video does Brown appear to be threatening." Despite that lack of threatening, the officers used a "stun gun" on Mr. Brown. After release of the footage, the police chief apologized for "how his department handled the situation," and announced the officers had been disciplined. 

In New York, body cam footage made the CBS News in May also. In this instance, a man was retrieving his property from a woman's home. There is seemingly a dispute regarding whether the two lived together or whether he sometimes "stayed over." But the woman would not permit entry. He summoned the police, who advised the man "You have the right to kick the door in, if you want, to gain access." The man broke a window, the woman pointed a gun at him, and then she was arrested. Her attorney takes issue with the police officer's advice regarding breaking in. 

In May 2018, a man posted on Facebook "that he was racially profiled" by the police in a traffic stop. He recounted the officer questioning him as to who owned the vehicle and what he was doing in the particular neighborhood. He prognosticated in a Facebook post "Guess I can’t be a pastor and can’t drive a Mercedes Benz and live in a nice neighborhood. Well you know as president of Timmonsville NAACP he stopped the wrong car tonight cause someone needs to answer for this behavior…” SC Now Morning News reported that the body cam video "contradicts his claims. It also noted that the post was "later removed from Facebook." 

In New Jersey, there were three recent body camera stories. The First was in late April 2018, involving a traffic stop reported by ABC News. The mother of one of the people in the stopped car arrived to pick up her daughter and others because the stopped car was being impounded. The mother stated she is a "friend of the mayor," and displayed a "badge," while informing the officers she is "the commissioner of the Port Authority." there was a "tense exchange" and the mother "vows to meet with the Tenafly Police Commissioner." The mother resigned from her position at the Port Authority shortly after the video was released. 

The second, reported by NBC News in May, involved a motorist stopped for a traffic infraction. She reportedly "cursed, complained when she received a summons," and referred to the city police chief as "a skinhead cop." It was reportedly an emotional interaction, during which the motorist became tearful. The officer responded to the emotion by offering to call an ambulance to assist her with what he perceived as a panic attack. One observer concluded the motorist acted inappropriately, "while the officer “remains calm and proceeds to act in accordance to his duties.”

The third, and perhaps most covered on social media, is the beach beating of a teenager by two adult police officers, reported by the Las Vegas Review-Journal. This young lady was accused of underage drinking, and without a doubt, she failed to do as the officers instructed. Arrests are not always the calm process portrayed by Hollywood. But, there are those who were nonetheless incensed by the video of one of the large officers punching the teen twice in the head with a closed fist. Fox News reported that the local prosecutor has concluded there is no reason to prosecute the officer for punching the young lady. As an aside, Mom always told me you cannot hit a girl, but that may not be a thing in New Jersey? 

Of course, the efficacy of body camera video depends upon someone seeing it. The examples cited all involve the decision of a police department or prosecutor to make the video available. And, that raises a converse thought in the minds of some skeptics. In the event a police department declines to provide public access to such video, it is possible that the skeptics will then conclude that either the video does not absolve the officer or department, or worse that it must be incriminating?

In May 2018, WHNT19 News in Huntsville, Alabama reported that the city's police department generally will not release body cam video. The story recounts an incident in which bystander video "appears to show a Huntsville Police Department officer punching a suspect in the back" during an arrest (punching may apparently be different in Alabama than in New Jersey). The news station seeks the body cam video on the theory it is a public record. The city purportedly agrees "to a certain extent," but says "they are not a public record in the sense what is stated in the law that says public records are open to public scrutiny." Not sure what that sentence means. The city noted privacy concerns, and potential civil rights claims, and declined to release the requested video. Does that decision speak to policy or merely circumstance?

Certainly, privacy was an issue noted in various stories about body cameras. In 2016, NBC News reported on concerns of "surveillance on the public," while nonetheless noting that body cam usage was "praised by the ACLU" (American Civil Liberties Union). NBC reported that these cameras could be developed for use with "facial-recognition software," expanding the scope of their impact. Every encounter with police might lead to further scrutiny by an intelligent computer somewhere. 

Facial recognition scares people. It smacks of 1984, and people are concerned about their privacy. That facial recognition concern was raised in May also when The Verge and other news outlets revealed that the Orlando Police Department is operating stationary cameras that are tied into a facial recognition program developed by Amazon. The implications of being watched by Big Brother excited social media and generated further discussion.

Is the jury in or still out? The month of May 2018 evidenced a string of instances in which body cameras aided law enforcement in defending its actions. The examples were in a variety of locations and yet were seemingly consistent in their effect of dispelling accusations and innuendos falsely made. Or, confirmed the action (punching girls in the head), but led nowhere. Or, were not released and led to innuendo. And, there are reports that body camera use has revealed inappropriate police behavior and thus protected citizen's rights. 

Perhaps these several examples prove Senator Scott's 2015 prognostications that "we should always have as much evidence from the scene as possible" and that "body cameras would help change behaviors." If miscreants are revealed on camera, planting evidence, or punching teenage girls (OK, maybe punching girls is not a problem if you are a cop in New Jersey), perhaps behavior will change. If liars are exposed because video recordings do not match their fabrications, perhaps behavior will change. And, perhaps those benefits of surveillance are worthwhile. 

But, there remains a concern in society that our privacy is at risk. There is concern, hue, and cry about where all this video could lead. While it seems likely that body cams are here to stay, despite the costs, many worry that the engagement of facial recognition and artificial intelligence, and Big Brother is the inevitable next shoe to drop. Some will tout benefits from such expanded employment of video and others will decry it. The debate will continue.