The 2015 Annual Report is Out

Each July, we begin the process of collecting and auditing data from the last year. Through August, September, and October the task continues. Slowly, the report begins to take shape, and usually by the middle of November we have it printed and in the mail. This year we were a little early, thanks to a great many OJCC team members providing proof-reading assistance. 

What will the numbers show this year?

The e-JCC platform continues to perform strongly. The system saw 522,321 filings last fiscal year. When you consider that each of those would have cost at least $.49 to mail to us, that alone saved attorneys, adjusters, and carriers $255,937.30 last year. 

Petition filing and new case filing were each up slightly last year. There are those who see this as a result of hopes pinned to Castellanos v. Next Door Company. Others contend that the economy is rebounding, and naturally there is more employment and perhaps that naturally means more injuries.  We had 60,021 petitions for benefits filed in 2014-15 (the State is on fiscal years that run from July first through June 30th). That is up about 1.2% from 2014-14, when we had 59,292. 

Notably, though, last years total was an increase also. However, the 2014-15 PFB filing volume was still lower than than 2011-12, and was less than half the volume in 2003-04. 

New cases filed were up very slightly in 2014-15 at 29,870. That is about 100 more new cases than in 2013-14, which was 29,771.  The filing rates for new cases have been virtually flat for the last five years. 

The volume of pending cases which reflected no claimant's attorney as of June 30, 2015 was 10.22%. This is the lowest it has ever been in the thirteen years we have tracked that statistic. Pro-se case volume simply does not appear to be increasing. 

 Attorney fees is always a topic that draws questions. Defense and claimant fees each decreased in both 2013-14 and 2014-15. The total for all fees was $370,741,896 in 2014-15, about $8.5 million less than the year before. The distribution remained similar to prior years, with claimant's attorneys receiving about 37% of the fees and defense attorneys about 63%. The actual totals were $136,180,202 for claimant's and $234,592,581 for defense.

An interesting fact is that most of the fees paid to claimant's attorneys each year are related to dates of accident within the ten years prior to the year in which payment is made. For 2014-15 79% of claimant's fees related to accidents in the ten years prior. But most, more than 60%, is in the four years prior to the year of payment. Despite this, 7% of claimant fees paid in 2014-15 were for dates of accident more than 20 years prior. Back in 2005-06, that was only 2%.

We are proud that our mediators are all averaging less than 130 days to the first mediation in each case. Just as proud that our judges are averaging well below 210 days in getting cases to trial after filing of a motion or petition. Most, 87%, of our judges averaged less than 30 days to get their trial orders published last year. This is a great achievement. We continue to hope for a 100% year, and I am confident that the day is coming!

The report will be published on the OJCC website this week. Watch for it. I am always available for questions about the report and the OJCC generally, david.langham@doah.state.fl.us.

Who is Really the Ultimate Decision Maker?

Many years ago, in 1980, Rush sang Freewill.  One of the lyrics of that tune is "if you choose not to decide, you still have made a choice." That is a line that parties might want to remember when they head to mediation. 

So many times, I have heard the mediator caution litigants about the "worst case scenario." That is, the outcome in which all is lost. Mediators then provide the alternative; the pitch is that "today" (the mediation) is your day. At the mediation the parties are in the position to craft their own outcome to their dispute. There are many angles to this construct, and I have heard it explained in many formats, but at the end of the analysis, the message is the same. The parties decide, freewill.

There are no rules of evidence at mediation. The parties are free to say what they want to say. Each may spread on the table whatever documents or photos they wish. The parties may assign the importance they feel appropriate to testimony already memorialized, testimony expected, or even testimony desired or hoped for. 

At mediation, there are often variables that remain unknown from all perspectives. Parties may have expectations and plans for how evidence will develop, and how it will play out in a trial. When cases do not settle, sometimes those plans come to fruition just as expected at trial, but sometimes there are curve balls and unexpected developments. 

There are times when some witness' perspective and therefore testimony is changed by cross-examination, at a deposition for trial or at trial itself. The witness may learn something new when confronted on cross. Sometimes it may be as simple as the witness being asked a question in a different way on cross. 

Every witness knows her or his own perspective reasonably well. Each party generally knows her or his case, that is the composite of all witnesses or documents, reasonably well. Often the discovery process is revealing or educational and by trial some parties may feel they understand the opposing case reasonably well also. But trial can bring the unexpected.

It may be that the process leading to trial will provide information that leads to decisions. There may be information gleaned in discovery that is perceived to strengthen a party's case, or threaten it. There may be motions filed, and rulings on those may change each parties' perceptions of the evidence, and the strength of her or his respective case. 

There are occasions when cases settle during trial. Something in the course of trial may lead parties to further discussions during some break, recess or pause in the proceedings. 

There are occasions when a case will settle following the trial. At that time, the outcome may remain unknown, as the verdict or ruling has not been rendered. Despite this, a party may have perceptions gleaned through the trial process. Evidentiary objection rulings may have been made that effect a party's confidence, positively or negatively. Evidence may not have presented as anticipated; objectionable evidence may have been admitted or critical evidence may have been excluded. In short, much can happen in trial. 

There are occasions when a case may settle even after the verdict or ruling has been entered. A party may file an appeal of such a decision, and in the course of preparing legal arguments for the appellate court, discussions of compromise may ensue. There are processes for "appellate mediation," discussions about compromise with a mediator to assist. 

The appellate process can take time, and sometimes the result of an appeal is not a ruling in either party's favor. The result may be a remand from the appellate court, an opportunity to go back to the trial court and try that case again. This brings both parties back to square one and the uncertainties, perceived or real, with her/his own case and the opponent's.

At any time, before litigation or even after an appellate opinion has been published, the parties are free to discuss their own solution to their dispute(s). In their discussions, they can proceed based upon their perceptions of the strengths and weaknesses of both their own case and the case of the opposing party. 

The parties have to appreciate and respect the potentiality that at any stage of the case, things may not work out as anticipated or planned. Armed with their perceptions of how things might ultimately conclude in the litigation process, each is free to make her or his own decisions and predictions, to assess risk, to consider strengths and weaknesses, and to decide whether any alternatives are worthy of consideration. 

The ultimate decision maker is not the trial judge, it is not the jury, it is not an appellate court. The ultimate decision maker is the party to the litigation. The decision may be to proceed to trial or appeal or to settle the case; there is no "right" or "wrong" answer except to the extent that the party decides it is "right" or "wrong." Whatever the decision, "you still have made a choice." It's about freewill. 

The Recovering Worker is Sued

Just when I thought I had heard it all, a Texas story (which originally appeared in the Texas Tribune) recently made me stop and think. A teacher, Ms. Hammond, in Texas worked in a facility for at-risk youth near Austin, Texas. In 2011, she was on duty when the dorm "erupted into a full-fledged riot." In the mayhem that followed, Teresa Hammond witnessed a variety of poor behavior.

Ms. Hammond saw a student running past, and she "grabbed the shirt" in an attempt to stop him. The "momentum nearly yanked her arm out of its socket and drove her left knee into the ground." She came away from the incident with a "fractured knee and nerve damage in her shoulder and arm."

She is no longer employed. She was "medically discharged by the Texas Juvenile Justice Department in June 2012." She is receiving "food stamps" and the occasional "overdue child support" while she applies for social security disability benefits (a program that is scheduled to be bankrupt in mere months).

There are those who would tell you that her situation is not unheard of in the world of work-related injuries. There is at least a perception that injured workers can come to rely on federal benefits. But that is not a universal conclusion; there are varied views on the interactions between workers' compensation and other benefit programs. But the perception has driven the development of processes for the protection of Medicare's interests when workers' compensation cases are settled. 

But Ms.Hammond's story is interesting because of the procedural process described. The Texas "risk management office" is described as an "obscure agency charged with insuring thousands of state employees when they are injured on the job." According to the author, it has "paid most of her medical bills." There has been litigation regarding some workers' compensation benefits, and the office has contested "the extent of her injuries - and whether they all occurred on the job."

There have been allegations that some of her complaints, such as the nerve damage in her upper extremity are not related to the work injury, but are "degenerative." There have also been disagreements as to when she achieved maximum medical improvement (MMI). The Administrative Law Judge (ALJ) "determined that the nerve injuries were 'caused, enhanced, accelerated or worsened by" the work injury. The ALJ determined MMI, and ordered the payment of some measure of benefits. The claimant "had declared victory."

In Florida, such a trial decision might be appealed for consideration by the Florida First District Court. Texas presents another procedure though. In a "last-ditch" effort to avoid liability, the Office of Risk Management reportedly has filed a lawsuit against the injured worker, "asking a district court to overturn the administrative judge's ruling." The article says that when this occurs, "the odds are stacked against injured workers." 

There is a measure of expense associated with any litigation. The article explains that according to the Texas Supreme Court, state agencies are not liable for "paying attorneys' fees in such cases - even when they lose." Conversely, if the agency wins the court case, the injured worker could be "liable for court costs." If the agency wins, the worker may have to pay litigation costs, but if the worker wins, the agency does not pay such costs.

The article says that the agency does not often file lawsuits like this one, but the case regarding Ms. Hammond is not unprecedented. The author questions whether the small number of such suits results from a conscious decision of the agency or because "workers (are) winning fewer cases at the administrative judge level." However, no data is provided regarding whether more such court cases were historically filed. The article provides no support for the representation that "fewer" recent cases involve injured workers prevailing as compared to some time in the past. 

The defendants in these cases, the injured workers, "face major obstacles in finding legal help" with defending these lawsuits. The article concludes that this is because the agency is not liable for attorney's fees if it sues a recovering worker and loses. Texas has a law to "discourage frivolous lawsuits," but that law does not apply to the state agency because of "sovereign immunity." So, unless the recovering worker has resources to pay an attorney, "attorneys representing workers in such cases often can't get paid." More accurately, attorneys can't get paid by the state.

There are instances in which attorneys take such cases with no expectation of payment, This is what we call "pro bono." Despite the reputation of lawyers in the community, and all of those lawyer jokes you hear, there are a fair number of attorney hours donated to such pro bono causes every year. According to The Florida Bar, almost 2 million pro bono hours were provided in Florida last year alone. Ms. Hammond has been lucky that publicity of her case attracted a pro bono attorney. One might feel the same about anyone who benefits from any of those Florida pro bono hour donations.

There are those who are critical of the procedural setting that is in motion in a case like Ms. Hammond's. Some apparently blame the Texas Supreme Court for its interpretation of the "frivolous lawsuits" law. Others apparently blame the Texas Legislature for not changing the law that the Supreme Court interpreted, which prevents attorney fee liability against state agencies. These critics, believing the Court has misconstrued the law, think the legislature should amend the law to define a different result, making the state liable for such fees. 

As an aside, I wondered as I read about the use of "frivolous," in the article. It notes that Texas has a law to "discourage frivolous lawsuits," but that it may not discourage lawsuits by state agencies due to immunity. But does the fact that a case is filed, but is lost, make that case "frivolous?" The article provides no further guidance on what is "frivolous" in Texas. 

An interesting story from Texas. 

Attorney Disciplined, in part for Lying

Recently, the Kansas Supreme Court issues a couple of disciplinary rulings. They concern attorneys named Cline and Ehrlich. WorkCompCentral reported on the two in June 2015. The Court found it appropriate to suspend the two attorneys. There are occasions in which the Kansas Court has disbarred attorneys for "inexplicable incompetence," criminal offense convictions, and misappropriation of funds, among others. But these two were not in the disbarment category.

One attorney was suspended for lying to a client. Clients are entitled to know about the status of their case. The attorney has an obligation to keep the client reasonably apprised of how the case is going, where it is likely going, and when it will likely arrive at closure. 

In this instance in Kansas, the attorney was hired in 2009 to file for personal injury and workers' compensation benefits. The attorney did not serve the civil lawsuit on the defendants. This resulted in the court dismissing the lawsuit. Essentially, the attorney made a mistake. We are all human and mistakes will be an unavoidable part of that. In this instance, the attorney then compounded the mistake by not telling the client that the case had been dismissed. 

On the upside, the attorney did obtain some workers' compensation benefits for the client. However, the payment was slow in coming and the client called repeatedly. Counsel said that a hearing would be held to compel the payment of the obtained benefits. The client was told she need not attend. She presented anyway and learned that there was no hearing. The client believed she had been lied to and she complained. 

The attorney and the supervising attorney at the firm then did the right thing. Better late than never, they conceded to the client that she had been lied to, and that her civil case had been dismissed "two years ago." That cannot be easy to hear, nor is it likely to be easy to say. No one enjoys admitting that a mistake has been made. But, admitting it rarely gets easier as time goes on either. 

Much like the Florida system, in Kansas a Board considers complaints against attorneys and recommends discipline. In this case, the Board recommended that the supervising attorney "be censured and that (the attorney on the case) be suspended indefinitely." The Supreme Court accepted the recommendation and imposed those penalties. The article notes that unfortunately this is one of the two attorney's "third run-in with the attorney discipline system."

What can we glean from this situation? First, deadlines and procedures matter. They can detrimentally affect people with real problems. We have to keep the time limitations and procedural requirements in mind, it is what lawyers do. Second, mistakes are not like fine wine. They do not tend to improve with age. If we make mistakes, we would be well served to get them into the open and allow people to deal with them. Hearing it from us may be easier than finding out from someone else?

Mistakes are mistakes but being lied to is something else entirely. We have all been lied to, and few of us would say that we liked it. Some of us may be much more upset about the lie than we are about the underlying mistake. Elton John had a song about lies. Not one of his biggest hits, but a poetic rendition nonetheless. He notes that people lie for so many reasons about so many things. Among these:

Some lie about who they love

Some lie about the truth

Some lie to save their lives

Some lie about their youth

The refrain is "but I never lied to you." Perhaps honesty is the best policy? When one knows a liar, it may be hard to trust them, even if one were to believe that the liar will never lie to us?

We have experienced curious anecdotal instances in the Florida workers' compensation adjudication system. People appear at offices for hearings or mediations that they believe are on the schedule, but are not. We have people call offices to check on the status of orders regarding motions they think have been filed, but have not. Time is invested in helping people understand that there has been some misunderstanding. Hopefully these are the result of some miscommunication or misunderstanding. 

The online OJCC case docket has gone a long way to prevent misunderstandings. Anyone can look at the case filings in any case on www.fljcc.org. Just key the case number in the quick view box at the top of the page or use the case search tab, and find the case. Only registered users can see the actual motions and other pleadings, but anyone can see that something has or has not been filed. Anyone can see if an order has been entered, and can read the order. Free, easy access to information on case status.  

The online case docket is a powerful tool. Beyond pleadings and orders, it provides a great deal of other information, including the dates and times of any hearings. The parties to any case can monitor their own filings, and track whether orders have been entered, and verify dates and times for mediations and hearings. Keeping a client reasonably apprised has never been simpler. 

An interesting side-effect has been a tremendous decrease in the volume of telephone calls at our District offices. When one wonders whether a motion was filed, or an order entered, they are checking the website. There was a period when callers were asked if they had checked the web, we were educating on the existence of this information and how to access it. But that has slowed greatly, and the market has accepted the new paradigm and is leveraging it. 

At the end of the day, we have to remember that we are human and we will all make mistakes. We should strive not to, but the fact is that we still will despite our best efforts. We will never be able to escape the human condition and part of that will be embarrassment about mistakes and disappointment and perhaps frustration. This is all normal. When it happens, we will have to be honest about it though. That may not be easy, but it is the right thing to do for ourselves and the client. 

Disability Awareness Month

Without much fanfare, another October passed us by. It is a busy time of year for me, with the OJCC Annual Report due each November, but each of you has similar deadlines and challenges with briefs, trials, and more. But October is an important month. 

We have days and weeks and months to celebrate and recognize any number of things, conditions, causes, groups, etc. For example, today happens to be national doughnut day. That is one I am not likely to forget or ignore. But October is an important month.

I get a fair amount of unsolicited email seeking to sell me something, attend a seminar, etc., And most of it gets caught in the SPAM folder or immediately deleted. One that I received in October caught my eye though, a promotion for National Disability Employment Awareness Month. It led me to the Source America website, which notes that "my disability is one part of who I am."

Coincidentally, this year those noting the Awareness Month are also celebrating 25 years of the Americans with Disability Act, the "ADA." That is a little hard for me to accept, it seems like they just passed that law yesterday. The last 25 years have sure passed quickly.

There is a lot of information on that website about disabilities. It notes that "the lives of many Americans with significant disabilities are filled with stories of success or unrealized promise." In short, there are inspirations and frustrations. 

But note this, they say there are "60-plus million Americans with disabilities who are of working age." That is quite a number. This site does not define "working age." I got my first job before I was 18, and know many others who did. I know a good number of people who are still working and over 65. So I am not sure those age parameters define "working age."

The U.S. Census bureau however provides some interesting statistics. Its website says that there are 318,857,056 Americans and 23.1% (73,665,980) are under 18 while 14.5% (46,234,273) are over 65. If 18 and 65 define "working age," an assumption at best, then that means there are 198,966,803 "working age" Americans. If the "60-plus million" figure is accurate, that means that more than 30% of the American working-age population has a disability. This might be illustrated by thinking of your two best friends; among the three of you, statistically, one has a disability. That is an incredible statistic.

The Source America website blog says that "almost 80 percent of" that "60-plus million" adults "do not participate in the labor force." Eighty percent of 60 million is 48 million. Forty-eight million working age Americans not participating in the labor force. That is a sobering statistic also. That website author asserts that "it’s clear that we as a society are not doing nearly enough to empower what has become the largest group of disenfranchised people in the country." I provide some highlights from that blog here, but it is worth a visit to get their whole perspective.

She says that there are obstacles to employment for these people. They "include education, leveraging existing resources and current public policy." Not insurmountable in her opinion, but significant nonetheless. 

The author recommends more with disabilities need to make the transition from high school to college. That is perhaps true of everyone, regardless of disability. But college is expensive, and getting more so each year. We have vast campuses, with phenomenal physical assets, and many tax dollars have been devoted to these institutions. 

Some feel that existing facilities and the current volume of instructors could handle a much larger population of students. There are anecdotal reports of full-time college teachers making admirable salaries for teaching 15 hours per week, 30 weeks per year. Other sites claim these faculty members work more like 50+ hours per week. 

So, could existing resources be better used; could more students be educated for the existing expense. The cost per student would decrease if that were true. Still others suggest colleges should spend less on football teams, research, or some other segment of interest. Opinions abound. 

The Source America website blog author also seems to concede that college may not be for everyone, and says that some would do well with "professional development and on-the-job training." With such efforts, her conclusion is that "the skills of our students" will be appropriately matched "with the tasks involved in performing a job.” That argument might be applied to a great many people. Much of our working population learned a great many skills on-the-job. I know I did. 

She notes that there are already resources in the American community, but that they need to be further leveraged. The author says that "over reliance on parents or legal guardians for financial support" by the disabled has to be reduced. She notes that the disabled may have "little incentive to leave the nest and no job opportunities on the horizon." This, she believes, leads to inaction, and atrophy of the skills and abilities that these people have. In short, going to school should lead to gaining knowledge and ability, but like muscles exercise is needed to keep skills. 

The blog post cites a Harris Poll regarding America's perceptions of employment for people with disabilities. The vast majority of those surveyed in that effort support the hiring of those with disabilities. Despite this support or belief, she notes "these statistics are telling, but the reality is that 80 percent of working-age adults with disabilities remain ostracized from the workforce." Remember, that this is about 48 million people if my math is correct. 

That 48 million is a huge number. The population of our ten largest cities, New York City (8.3 million), Los Angeles (3.9), Chicago (2.7) Houston (2.2), Philadelphia (1.5), Phoenix (1.5), San Antonio (1.4), San Diego (1.3) and Dallas (1.2), together are only about 24 million, one-half of the 48 million that these advocates claim are working-age disabled that are not participating in the labor market. 

Finally, she advocates more legislation. She notes that there are a multitude of statutes in place. She concludes that these many statutes have not eradicated unemployment because employers harbor "misconceptions that individuals with significant disabilities lack the ability to complete the work as well as people without disabilities, and that they require cost-intensive accommodations to properly perform the job." 

The Author sees impediments to adding legislation. She believes that there is "fragmentation and differing views in the disability community which challenge the opportunity to positively influence the additional work that needs to be done in public policy." In other words, there is not consensus on what further legislation might move things forward. I remember when the ADA was touted as the be all and end all of the debate. 

The overall theme of the post seems to be that great progress has been made in the world of disabilities, but that more is needed. What more is the subject of debate. Are there interactions with workers' compensation that bear analysis?

Do employers worry about whether a prospective employee could be at risk of future injury? In September I noted one alleged instance of this in A Comp Claim Waiting to Happen. Is an employer right to be concerned about future risk of loss? Should employers ignore potential future risks when making hiring decisions? Is such fear, justified or not, an impediment to those with existing disabilities? Is it widespread or isolated? Many questions come to mind.

When work injuries occur, is the focus to "assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker return to gainful reemployment at a reasonable cost to the employer" set forth in Fla. Stat. 440.105 and so many statutes like it across America? And when we ask that question, it is fair to ask whether this is the focus of both principals in the workers' compensation world, the employer and the employee. 

But, the main point this morning, is that October was National Disability Employment Awareness Month. I am sorry I failed to note it then. At least we are noting it now. With the interrelationship between injuries and disabilities, the workers' compensation community should have noted October's significance. I missed it, but will try to remind you all next year. But for now, I am headed to the doughnut shop, happy doughnut day!

Agreements Matter

Workers' compensation is under most people's radar. There are industry sources for news in workers' compensation. There are not a great many workers' compensation-focused news sources, but a few like WorkCompCentral.com and WorkersCompensation.com provide news and feeds for people that want to keep up with workers' compensation news. There are blog spots like Jon Gelman's and Tom Domer's that provide a vast array of workers' compensation and related material from around the web. There is the WorkCompWire and the WCI360.com which each provides links to content. But news stories about workers' compensation on general news sites and publications is just not common. 

In September, there was a rare exception in the national news. The story caught my eye and it's national coverage surprised me. It involved a fall down the stairs in 1986 up in Harrisburg, Pennsylvania. Yes, that is almost 30 years ago; this accident has become old enough to vote, to drink and to have kids. It was covered on AOL.com, PennLive.com, a local Fox affilliate, and there were links to the story on some of the national news pages. 

According to the story, Maritta Adley is 57 years old, In 1986, she was 28 years old and a police officer in Harrisburg. She had a fall down some stairs and injured her foot. It reports that after "her injury officer Adley "eventually returned to work on light duty" but that did not last. She last went to work in 1993. Unfortunately, there are people who are injured at work and do not return to work. 

Various state worker's compensation programs describe that differently. In Florida, we refer to these as "permanently totally disabled" or "PTD." But according to the Pennsylvania Workers' Compensation Law Information Center: "in Pennsylvania, under the Workers' Compensation Act, there is no such thing as permanent or total disability." 

But, according to the Information Center "Some will receive workers' compensation benefits for the rest of their lives, others will settle their claims and live off of the settlement for the remainder of their lives, while others may have their benefits limited by an Impairment Rating Examination (IRE) or because of other vocational considerations." This might lead one to re-read the recent Protz decision and the implications of impairment guides in Pennsylvania. Workers' compensation administrators will be discussing the implications of Protz at the SAWCA All Committee Conference later this month. It has some interesting implications.

According to the PennLive.com story that has captured some national attention, however, some will receive their full salary, perhaps for the rest of their lives. Ms. Adley has received her full salary, and apparently benefits, for the last 22 years following her cessation of work in 1993 (when Bill Clinton was first inaugurated President). 

The story refers to her as a "ghost employee," and says that the "city officials were made aware of" her "when they took office in 2014." Apparently, the city has tried unsuccessfully to terminate her employment before, the last time in 2003. But she remains an employee of the police force, and "currently makes more than $70,000." 

That is a significant amount of money. Our current maximum workers' compensation rate in Florida is $842, according to the Division. The most one would receive in workers' compensation in Florida is $43,784, about $25,000 less than Ms. Adley.

Another of the impacts of a Florida workers' compensation injury may be the loss of fringe benefits. Certainly, an employer may continue health insurance and other benefits for some period, but when a Florida employee becomes permanently and totally disabled, it would be common for the employment relationship to end, and for those fringe benefits to end also. Ms. Adley has been fortunate to have her employer agree to "continue her medical insurance package" for the last 22 years. 

The story will perhaps stimulate some discussions of workers' compensation. Some will see Harrisburg's decision as generous. Some have commented that the payments are too generous. There has been too little reported regarding the medical condition and the resulting impairment or disability for anyone in the general public to draw any valid conclusions about the agreement. 

But at the end of the analysis, that is the key word in the story, "agreement." See, the article says that "city officials were made aware of" her "when they took office in 2014." But what that means actually is that "the current" city officials learned of this in 2014. The story later reports that in 1993 an agreement was made to pay Ms. Adley "her full weekly salary without deductions" and to continue her health insurance. That agreement was signed by the police department's "Director of Human Resources and "the city's risk manager at the time." Those city officials knew about officer Adley many years ago. 

The recovering worker and the employer made an agreement, and people do that all the time. Sometimes they are good agreements. Sometimes they are not. Sometimes agreements look good through the prism of what people know, and later they look different in retrospect. Everyone has bought something that they later questioned. Before people make agreements, they should consider how they may feel about them in the future.

Because in the end agreements matter. Contracts and agreements are the foundation of American business. They provide predictability and stability to transactions and even to the resolution of disputes. Agreements matter, and people would do well to remember that when they consider making them.

Management is not as Easy as it May Look

Grading can be subjective. Every student knows this, and has likely experienced some feeling of injustice from subjectivity at some stage of the academic career. This is because performance can be subject to perceptions and perspectives. We see the same instances in the working world, and our country generally. News items that excite and inspire some are seen as utterly irrelevant by others. Perspective has its effects.

I was surprised to see a recent story on WorkCompCentral about misclassification. Earlier this year, I tried to outline misclassification for those who had not heard of it in Misclassification - what is it? Many agree that misclassification is a problem. There are implications for unemployment, payroll taxes, competitive bidding, and yes for workers' compensation. It is a topic that is getting attention in a variety of jurisdictions. Some would argue that it deserves more attention than it is getting. 

Misclassification is essentially a problem of labelling a worker "independent contractor" rather than "employee." Doing so may keep a businesses' number of employees less than four and thus it is not subject to mandatory workers' compensation. Or, it may be done simply to keep the number of employees artificially low and thereby minimize the total payroll upon which workers' compensation premiums are paid. 

Several states are working on misclassification. Florida is among these. There have been many schemes reported in Florida news. These can be quite simple in some instances and fairly simple in others. It makes sense that there is some focus, because this misclassification is reportedly very expensive. 

The recent WorkCompCentral story details the efforts Vermont has made to address misclassification. Some might say rather that it documents what Vermont has not done, but then we are back to semantics. 

An audit was performed regarding Vermont's efforts at combating misclassification. It seems to have started three years ago with a gubernatorial task force tasked in 2012 to "develop an outreach campaign to educate employers on appropriate classification." That group elected not to "meet for two years." That is not unheard of. There have been a variety of boards and commissions across the country that did not meet at various times. 

Vermont is not a large state. It is about 157 miles north to south, and between 42 and 90 miles wide (widest at the Canadian border). North to South, that is about the distance from Melbourne to Ft. Lauderdale. The population is about 626,562, or about the same population as Lee county (Ft. Myers, FL). 

The Vermont Department of Labor (DOL) was audited, an effort to measure performance. Not only had the outreach group failed to meet for two years, the documentation of DOL's efforts was curious. The auditor concluded:

Multiple investigations started four years ago remain open.

Over 100 "active" investigations remain "assigned to investigators who are no longer employed."

DOL has imposed penalties on several employers, "but was unable to determine whether the penalties were collected."

The "rules relating to penalties for avoiding premiums" was last updated in 2001. 

The "program's single investigatory had 73 investigations assigned to him, some of them dating back to 2011."

The audit was also critical of the database used by DOL, as well as the quality of the data that has been recorded therein. 

The question now will be what Vermont does with the data. It must determine whether it considers this performance worthy. It must decide if misclassification presents a pressing problem for Vermont's workers and their compensation system. Finally it will have to decide whether to disband what appears to be an inefficient and ineffective misclassification enforcement effort. One might conclude from the findings above that no one has been paying much attention thus far. 

I walked into a similar situation in Pensacola, Florida back in 2001. I cannot believe that I have been sitting here for the last 14 years (this month). As an aside, I have now been a judge longer than I have held any of the other 26 jobs I have held. But accountability is not something at which the OJCC excelled in 2001. This agency had a history of long time-lines, bureaucracy, and inefficiency. 

There were two challenges, with which it appears Vermont is now likewise struggling. How to obtain data, and what to do with that data. The OJCC mastered both, but it was not an overnight result. The OJCC Annual Report will publish this month, with 254 pages of collective and individual data on the status of the OJCC. When I say it is a monumental task, it is no understatement. It is the answer to the question of what to do with the data. 

The process that supports that report each year is a strong database, with consistent data inputs in the field. Those inputs result in comparable outputs. The report, any data, should not be looked upon as a measure of results. The data should be looked at as a measure, about which one might ask questions. 

Two examples are worth noting. The OJCC provided judges with a database report back in 2007. It allowed a judge to print a report of every case that reflected an "open" petition in the database, with a filing date more than 210 days in the past. Did this produce a list of cases that should trouble a judge? No, the point of this list is not that these cases are past the statutory 210 days; the point is that with this list someone knows they are past the 210 days and can review to assure we are satisfied that there is a reason. 

About the same time, the OJCC provided the judges with a report that produced a list of all cases that reflected a status of "open" but which had seen no filing or scheduling activity for one year. Again, this does not produce a list of cases that should not be open. This produces a list of cases that someone should look at. That they are open is not the point. That there is or is not a reason for them to be open is the point. 

Vermont likely needs to re-examine the need for a task force. If it is needed, it should meet. The answer to the data is simpler. The inbound reports of problems need to be tracked, manually or electronically. If it is more than current staffing allows, then someone needs to say so. If the problem is important enough to attract focus, and it appears that it is, then leadership, process, focus, and evaluation have to be part of the plan to both track what is being done and to address the misclassification concerns. 

Overtime Anyone?

There is a joke about lawyers. I have heard it set-up in a variety of ways, but generally a lawyer dies and meets St. Peter at the Pearly Gates, complaining bitterly of having died so young; "but I'm only 30" says the attorney. To which St. Peter replies "well we've consulted your billing records, and according to them you're 117." Regardless of the details of the version you hear, it is uniformly demeaning to attorneys, and an unfortunate joke. More unfortunate, it is oft-repeated.

The Washington Free Beacon reported in June that certain Amtrak employees may have exaggerated their reported work time. An audit report revealed “cases of workers claiming over 40 hours of work in a single day.” I have worked some long days. I am posting this at 3:00 a.m. But even I cannot pack 40 hours into a 24 hour day. A partner of mine used to say "if you can't get your work done in 24 hour days, work nights." But even then, 40 hours?

An audit revealed that in 2014 there was "potential fraud, waste, and abuse in the reporting of overtime and regular time." The beacon reports that "employees reported 357 days in which they worked more than 24 regular and overtime hours." These are some very productive employees.

There were “10 employees reported working at least 40 hours in a day.“ one employee “who earns an average of $23 an hour, recorded 47.95 hours in one day, 31.01 of which were recorded as overtime.” At $23 per hour, 47.95 hours would equal $1102.85 if it were "straight time." If 31.01 were at time and half ($34.50), then this day would pay $1,459.47. Not a bad day’s pay, even if the work being performed was worthy of inclusion on Mike Rowe’s “Dirty Jobs.”

One technician "claimed to have worked 130 hours in a single week." There are only 168 hours in a week. 130 hours divided by 7 days equals about 18.5 hours per day. In addition “there were 280 occurrences of employees who said they worked at least 31 consecutive days in a row.” One coach cleaner “claimed to work 108 consecutive days.”

It is possible that some of this is bookkeeping error. The story reports that “the company uses 6 timekeeping systems to process time-sheets and calculate wage payments, as well as 179 unique timekeeping absence and attendance codes.” The more complex the paperwork, the more likely there can be errors.

Overall, “Amtrack paid roughly 19,300 employees $1.2 billion and 2014, including $199 million in overtime.” That equates to an average pay of $62,176.17, and an average overtime pay of $10,310.88. Suffice it to say that this is an employer that pays fairly well, but needs some bookkeeping help.

Amtrak employees are not alone in facing questions for timekeeping. A recent WorkCompCentral story reported that the Director of the Industrial Commission of Arizona and two of its Commissioners recently resigned. Commissioners in Arizona are not full-time employees. They are entitled to a per diem for days that are spent fulfilling their duties. It is $50 per day for the 40 annual (approx) Commission meetings and the time spent preparing for them.

The WorkCompCentral story says the two resigning Commissioners sought per diem for 292 and 253 days respectively. This may likewise represent accounting and paperwork errors. But the story seems to suggest that these two requested the per diem for each of the 40 (approx) meetings and for 5-6 days in preparation for each of the 40 meetings.

A recent story on the TampaBay.com reports that Florida's constitutional trial judges are being asked to report the time they spend at work and on various tasks. This is part of a Judicial Workload Study, which is designed to produce better understanding of judges' work time and the tasks which consume it. The author of this article suggests that some judges work harder than others. Some are there putting in the overtime, and perhaps others are not.

Will there be value in the records that are being compiled? Perhaps that too will come down to how complex the records are and how effective the bookkeeping that is applied to them? 

Will the Revolution be Violent?

There is a technological revolution going on in the world around us. I have written about this again and again. The world is investing in technology, Technology is disrupting our workplaces and economy, there will profound impacts on the availability of jobs, and some even suggest that some of our occupations may become obsolete.

Some caution this technological revolution may be as disruptive as the mechanical revolution that changed the face of our nation in the 19th century. That era began with more than 50% of Americans working to produce food, and today it is something less than 3%. A vast migration from fields to factories. If the prognosticators are right, will there be another such migration? If from the factories, then to where?

Yahoo news reports that Uber is having another reaction. Most will know that Uber is a "middle man" by their own design. It intends to own no cars, employ no drivers, and simply take a cut off of the money that passes through. This model has run into some friction, with courts deciding some of those drivers are in fact employees. There have also been debates about what kind of insurance coverage may be necessary for these drivers. The regulatory issues are fascinating. 

Could it be a violent revolution? Well, remember that with every innovation there are displaced workers. The mule displaced farmers, and the tractor and combine displaced more. I worked years ago with a lady whose first job was in the "typing pool."  She sat and typed pages all day long, often seeing only parts of a given document. There were literally hundreds of people in the room, all typing away. She became a paralegal when the "memory typewriter" caused a downsizing in the typing pool. Innovation is ongoing and can erase some jobs, and will hopefully produce some new ones. 

Yahoo news reports that the Uber phenomenon has created anger. In June, the cab drivers in Paris blocked the roads leading to Charles de Gaulle and Orly airports. It was a clash between Uber drivers and the cabbies. You see the cabbies are regulated by the government. There are licenses and fees and insurance, etc. The cabbies see their fares being taken by Uber drivers who do not face the same restriction and constraint.

Yahoo reports that "3,000 cabbies took part" in this revolt. Police officers were injured, people were arrested, and "70 vehicles were damaged." This was not a few folks calmly holding signs. Authorities promised to work towards shutting down the service known as UberPOP and in the meantime "vehicles of UberPOP drivers should be systematically impounded." The conclusion is that these drivers are breaking the law with their performance of taxi-like services. 

Taxi drivers are convinced that the Uber produces unfair competition and that "the service is endangering their jobs by flooding the market with low-cost drivers." There has been violence, and officials note that violence is "unacceptable" and has been seen "in both camps."

If government regulates a population of service providers, like cabbies, and charges them a regulatory or licensing fee, it cannot very well allow another group to perform the same function without such costs. By doing so, government creates an incentive for workers to migrate. Imagine your choice is to pay the government for a license and drive a bright yellow car with a meter or to pay no fee and drive any car you like using your phone as a "meter." 

If you may perform the same services in either scenario, and thus perhaps maximize your income by minimizing expenses for equipment and licenses, you would be encouraged to do the work in your car with your phone. Government has requirements beyond licensing, and insurance is another good example. Commercial insurance is typically more expensive than personal insurance. Carriers see the risk as greater and therefore charge more for it. Another savings potential if government requires certain coverage for cabbies and does not regulate coverage for drivers with ride services. 

Change is sometimes not easy. With the advent of email, there have been challenges for the postal service. That agency will shrink, but perhaps slowly enough that the main impact can be absorbed through attrition? Perhaps not, and perhaps other industries will see more radical and dramatic change as technology increasingly disrupts.

As these changes occur, government will struggle to keep up. If there is justification for requiring insurance limits for cabbies, is there the same justification for requiring it for ride service providers? If license fees are appropriate for cabbies, are they less so for ride service drivers? Some of the regulation may be about government revenue generation. Some may be about limiting the population of ride providers. There will be many arguments and various positions on these questions. 

Today it is the cab drivers. What industries and services will be next? The simple fact is that technology and innovation are driving change and to a large extent it is not so predictable. Will that change be peaceful and thoughtful, or will it precipitate more violence? 

Read the Rules, It is Critical

Timeliness is an issue worthy of attention. In October, the Florida First District Court of Appeal (DCA) decided Matheny, v. Indian River Fire Rescue. An employer prevailed at trial and the injured worker filed an appeal. The Court concluded that the appeal was not timely.

This was a specific kind of appeal, called an “extraordinary writ,” the title is “petition for writ of certiorari.” Appellate rule 9.100(c) “requires such a petition to be filed within thirty days after rendition of the order to be reviewed.” The attorney did not file the petition within thirty days. It was filed on the 31st day.

The DCA explained that “the filing deadline set forth in Rule 9.100(c) is jurisdictional” which means that when the rule is not satisfied, the court does not have the authority, or “jurisdiction” to hear the appeal. This means also that there is no discretion, it is a matter of counting the days, and the filing is timely or it is not.

Early in the appellate consideration of the case, the Court essentially asked the injured worker how the appeal could be seen as timely. Courts ask questions with what is called an "order to show cause.” Lawyers sometimes do not like these orders, as they seem to imply something has been done wrong; but, they are really just asking a question. They are an efficient way for the court or a judge to inquire and to better understand something.

The injured worker explained that in his opinion the petition was timely on the thirty-first day because there is another rule, not in the appellate rules, in what are called the Florida Rule of Judicial Administration (RJA). Those rules say that “when a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire . . . .” This rule, and other like it, had evolved over the years to account for the fact that the U.S. Mail could and often did take a significant amount of time to move an envelope across the state.

But the DCA explained the RJA rule does not apply in this circumstance because it specifically says that the five additional days are afforded by the RJA when “another rule, a court order, or a  statute requires a party to act within a specified time after service.” When lawyers use “service” that essentially means when a document is sent (“served”) to the others involved in a case.  But, the DCA noted that the rule of appellate procedure (Rule 9.100(c)) does not require the petition (appeal) within thirty days of “service,” it requires the petition “to be filed within thirty days after “’rendition of the order to be reviewed.’”

Since the “extra five days” in Rule 2.514(b) applies to rules that relate to "service," and since the rule governing this appeal had a deadline related to “rendition,” the deadline was thirty days, not thirty-five. Because 9.100 does not rely on "service" and since 2.514 expressly does rely on "service."

Lawyers like order, predictability, consistency. Distinctions require more analysis and thought. Likely to avoid needing to analyze, the RJA rule makes no distinction between when documents are mailed in paper form, loaded on trucks and driven across the continent and when documents are transmitted instantly across the Internet.

The Florida Rules of Procedure for Workers’ Compensation Adjudication do recognize a distinction. In Rule 60Q6.108(6), the workers’ comp rules recognize that electronic mail is instantaneous. The rule says

(6) When service of any pleading other than a petition is made by U.S. mail, five days shall be added after the period allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. When service is made by any electronic delivery method or by hand delivery, no additional time shall be added.

So, it is important to know which rules are applicable. In some instances, it is the adjudication rules (for proceedings before the Judge). In other instances, the appellate rules (for proceedings before the DCA or the Supreme Court) apply. Then, it is important to read the rules and know whether “service” or “rendition” is the controlling event. Which rules apply when, and how they may interact is important. 

As a side note, the RJA do not apply to proceedings before a judge of compensation claims because we are not part of the judiciary. The OJCC is a part of the Executive Branch of the government. 

Of course, the easy course is to never wait until the deadline to turn in your work. If it is due in thirty days, turn it in in 25. If you end up a day late then, because of a delay in the postal service, then it arrives on day 26 and it is still on time.  Of course it is hard to meet deadlines, and we are all busy with a multitude of tasks and responsibilities. So in the end, read the rules, it is critical.