Rules Development Workshops

Make plans now to attend the Rules Development Workshops.

July 6, 2012 by video teleconference in Jacksonville, Tampa, West Palm, and Tallahassee. (Details below)

August 22, 2012 live at the Workers' Compensation Institute Educational Conference in Orlando. (Details below)

A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: Friday, July 6, 2012, 9:30 a.m. – 11:30 a.m.

PLACE: (bridge by video teleconferencing): 1809 Art Museum Drive, Suite 200, Jacksonville, Florida; 1000 North Ashley Drive, Suite 309, Tampa, Florida; 5405 Okeechobee Boulevard, Suite 200, West Palm Beach, Florida; and The DeSoto Building, 2nd Floor Conference Room, 1230 Apalachee Parkway, Tallahassee, Florida.

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Lisa Mustain, Administrative Services Director, (850)488-9675. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Loretta Sloan, Executive Assistant, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, (850)488-9675, ext. 221 or through the Internet at http://www.doah.state.fl.us/ or http://www.fljcc.org/

This posting is a reminder of the notice above which has been previously published in the Florida Administrative Weekly (https://www.flrules.org/gateway/readFile.asp?sid=1&tid=11614409&type=1&File=60Q-6.102.htm) and on the OJCC website:

http://www.fljcc.org/jcc/ and http://www.fljcc.org/JCC/rules/

The preliminary draft is also on the website at these addresses.

Additionally, there will be a Rules hearing, regarding proposed amendments to the Workers Compensation Rules, Wednesday, August 22, 2012, 8:00 a.m., Marriott World Center, 8701 World Center Drive, Orlando, Fl 32821, room is "to be announced" by posting in advance on www.fljcc.org, and will be available at the Workers' Compensation Institute information desk and the National Association of Workers' Compensation Judiciary information desk at the Educational Conference.

Free WIFI is Coming, We all Know Why

Technology continues to change around us. For the last six years, the OJCC has advocated and supported the leveraging of technology. The benefits of technology are obvious, in terms of cost and time savings. Technology makes us more productive and efficient.  Most compensation professionals are leveraging technology, and relate to us that they are using far less paper than ever. They recognize that the cost of storing paper, alone, is a strong motivation to minimize paper use and maximize portable document (PDF) images.

Likewise, electronic filing leverages technology. This platform has dramatically reduced the cost of transmitting documents to the Office of Judges of Compensation Claims. As of June 2012, the e-JCC platform has saved practitioners at least $1,269,726, and has saved the OJCC at least $1,981,452, a total of $3,251,178.  This is inspiring and gratifying in itself. It is only more inspiring when you know that the total OJCC investment in e-filing is less than $1,000,000. 

E-filing was voluntary for several years following the initial deployment of the platform in 2005. Effective October 31, 2010, e-filing became mandatory by rule.  In the eight months after that rule became effective, the OJCC averaged 38,475 e-filings per month.  On July 1, 2011, e-filing became mandatory by statute. In the 11 months July 2011 to May 2012, the OJCC averaged 38,352.27 per month.  Enforcement of the mandatory e-filing was deferred following these mandates, as the e-JCC platform was upgraded to permit such enforcement.  When the statutory mandate became effective (see the April 19, 2012 blog), there were factual situations, such as out-of-state accidents, for which the e-filing platform was not optimal.

Why has the average monthly volume of filings decreased slightly following the statutory mandate?  The easy answer is likely the continuing decline in rates of “new case” and petition filings.

This illustrates, however, that the electronic image (PCF) paradigm is now entrenched and accepted. A consistent complaint about this paradigm, however, has been the difficulty of accessing these PDF documents, the case docket, case management systems, and electronic mail from the OJCC District Offices. Certainly, the public is greatly benefited by the ability to access the internet from our offices.

When this idea was initially proposed years ago by practitioners including Ricardo Morales (MIA), Craig Gibbs (JAX), and Brian Carter (PNS)(and others). The difficulty we have had has been financial and logistical. Logistically, the OJCC is obligated to assure that WIFI access in our office is appropriate both in terms of content and bandwidth use. All OJCC office internet traffic is routed through the Department of Management Services, and inappropriate internet use in our offices could be attributed to our staff or agency. Further, allowing public access to our internet could inadvertently allow access to confidential information. The alternative, stand-alone DSL wireless access option represented a significant monthly expense (think of what you spend for access at home and multiply those phone line and DSL charges by 17 offices and twelve months per year and you will find that this alternative would have cost about $10,000.00 annually), in addition to about $2,000 in hardware investment.

The solution came through evolution of technology. In the winter of 2012 our IT department identified a wireless solution that allows public access to a limited sector of the bandwidth already in our District Offices, protects privacy by precluding access to confidential information, and allows us to monitor the use by our customers and guests. The hardware investment to accommodate this use was costly, almost $20,000. However, this hardware solves all the issues above, and allows us to limit the volume of bandwidth guests in our offices may use. This prevents guest internet use from slowing the ability of our staff to process their (your) work. We will recover the cost in about two years, and thereafter face only the minimal maintenance expense to provide this service. 

The equipment is operational in Pensacola, Panama City, and Tallahassee. It will become operational in coming weeks in each office.  Your WIFI device should identify both the “DOAH-OJCC_guest” and “DOAH_staff” networks.  Only the  “DOAH-OJCC_guest” network is accessible to guests, and you will find the other (““DOAH_staff”) network locked.  The public WIFI access utilizes the same internet connection that allows our OJCC staff to upload orders and notices, and which staff uses for database changes including scheduling your trials and mediations. Therefore, the volume of bandwidth for  “DOAH-OJCC_guest” use is limited. The WIFI access should be sufficient for email, accessing documents from the OJCC Docket or an attorney’s case management portal or “cloud.” The bandwidth is not sufficient for downloading music, video or large files such as photographs. Please do not attempt to use the WIFI for these purposes.

We are hopeful this service is of assistance to you, and that it enhances your experience at this Office of Judges of Compensation Claims District Office. 

The Benefits of E-Service

I attended the Florida Workers' Advocates' (FWA) annual Educational Conference on June 8, 2012 in Orlando. This is always an interesting conference, and affords opportunities to discuss the workers' compensation practice with a variety of attorneys. It is informative, despite some complaints or ideas being beyond the scope of issues which the OJCC can address. One recurrent example is the provisions of the attorney fee statute. I recognize that there is frustration and anger about Fla. Stat.§440.34. However, change in that statute can come from the legislature.

An attorney suggested to me at the FWA that he finds it more productive to serve petitions for benefits (PFB) upon employer and carriers (E/C), without filing them with the OJCC. He explained that this puts the issues upon the table for E/C resolution and does not burden the OJCC docket with a PFB that may ultimately not need to be filed, due to resolution of the issues. The response provisions of Fla. Stat. §440.192(8) may or may not be triggered by service of an un-filed PFB. That determination would be up to the Judge who is assigned to the case if the PFB is ultimately filed. 

However, as reported earlier in this blog, the OJCC will be bringing electronic service to e-JCC users in the near future. That new process will allow service pursuant to the alternate language in Fla. Stat. §440.192(1) "The employee shall also serve copies of the petition for benefits by certified mail, or by electronic means approved by the Deputy Chief Judge, upon the employer and the employer’s carrier." (Emphasis added). 

Mailing a petition will incur basic postage charges of $.45 (up to one ounce) to $.85 (up to three ounces, depending on the paper, volume of attachments, etc.). Added to this is the Certified charge of $2.95 currently according to the U.S.P.S. So, service of a PFB currently costs the Claimant between $6.80 ($.45 + $2.95 = $3.40, x 2 = $6.80) and $7.60 ($.85 + $2.95 = $3.80, x 2 = $7.60).  

There is an additional charge for a "return receipt" between $1.15 (email receipt) and $2.35 (U.S. Mail receipt). To utilize this service for both the Employer and the Carrier would double these charges to $2.30 to $4.70. So, if return receipt is used, this increases the cost to $9.10 ($2.30 + $6.80) to $12.30 ($4.70 + $7.60) per petition served. 

In 2011, 64,679 PFB were filed, and the Certified mail service of those petitions cost injured workers or their attorneys between $439,817 (64,679 x $6.80) and $795,551 (64,679 x $12.30). Each of the Responses to Petition, were sent by Certified mail also, and the alternative language in Fla. Stat. §440.192(8) will allow carriers to similarly avoid Certified mail expense when e-service is implemented, "The carrier shall provide copies of the response to the filing party, employer, and claimant by certified mail or by electronic means approved by the Deputy Chief Judge." (Emphasis added). 

The e-JCC electronic filing platform already provides savings to attorneys and carriers. Before e-filing, the PFB were required to be sent to the OJCC by certified mail. Before e-filing, the carrier had to mail their response to the OJCC. The OJCC projects that the savings to practitioners and carriers from the e-filing, and the minimum e-service savings described above, will easily exceed one million dollars annually. This is a tremendous savings. Of note, the entire OJCC e-filing process has been developed and deployed for less than one million dollars in total programming expense, to date.  

Returning to the premise that serving "un-filed" PFBs is advisable.  E-filing is mandatory. Therefore, an attorney that prepares a paper PFB to serve, without filing, on the Employer/Carrier will not be able to later file that paper PFB, if filing becomes necessary.  Thus, there is a risk that effort will have to be duplicated in later creating the e-PFB if filing is necessitated. 

Additionally, as e-service becomes reality in coming weeks, a practitioner that elects to serve a paper PFB by Certified mail will be spending money unnecessarily. Electronic filing of that PFB, with the advantageous e-service available through that process will save significant expense. As important, the OJCC database is designed to accommodate the volume of PFBs that are filed annually, and much more. There is no detriment to filing PFBs with the OJCC and enjoying the cost savings that will flow from the avoidance of Certified mail.  

Understanding the motivation of seeking early issue-resolution, and appreciating the sentiment of not burdening the OJCC database/docket, it is likely more cost-effective to file the PFB and use the e-service alternative. Decreasing the costs of practicing comp is both within the authority of the OJCC and beneficial to the parties and practitioners that participate in this system. The OJCC is committed to leveraging technology to make the practice of workers' compensation as cost-effective as practical.

I welcome your comments, ideas, suggestions and criticisms. E-mail me at david_langham@doah.state.fl.us.

Survey Results are Available

Each spring, the Florida Office of Judges of Compensation Claims (OJCC) and the Workers' Compensation Section of The Florida Bar conduct a survey to gather perceptions about the Judges and Mediators that comprise the OJCC. This has been a long process in development, beginning with planning in 2007 and the first deployment in 2008, and with evolution since. The 2012 survey marks the fifth annual effort.

The Survey grew from a perception that bench/bar relations were strained in 2006. From a meeting of bar leaders emerged a proposal for a survey. From the beginning, there was a consensus that such an effort needed to include an opportunity for practitioners to comment on their perceptions of what could be improved in the various OJCC offices. The ultimate goal of this effort was to bring perceptions to the attention of the Judges on a more regular basis than is possible from the four year re-interview process alone.  

Through several iterations, this joint survey has been deployed in each of the last five years. The initial surveys were deployed on a free platform, with limited customization opportunities. We quickly outgrew the capabilities of that platform and hired a vendor for the 2010 and 2011 surveys. These were a marked improvement, allowing greater selectivity for the survey respondent, and thereby allowing response with a minimized time investment. The "comment" function of that platform also had limitations. In 2011 we therefore began searching for a new vendor, and through the efforts of Lisa Mustain, Administrative Services Director at the Division of Administrative Hearings (DOAH), a new vendor was located and hired in late 2011, and a new survey readied for 2012. 

The 2012 results are in. They are available on the OJCC website, as are the results for all five years of the survey. Each year, the respondents are asked the same questions about the Judges and Mediators. Respondents rate the Judges from one ("poor") to five ("excellent") on their "knowledge of the law," "ability to comprehend complex issues," "knowledge of rules of procedure," clarity and concise nature of orders, "courteousness," "patience and willingness to listen," whether the judge is prepared for hearings, "impartiality" regarding the two sides of the case and the attorneys involved, and "punctuality." The surveys have always afforded respondents the chance to comment on the Judges and Mediators, and to comment on the survey itself. 

In 2012, one comment on the survey itself was that it contained the "same standard questions, not enough of them." Another Comment suggested more specific questions on the survey. Yet another respondent said the survey was "way too long, took almost an hour to complete." Another suggested "I would also like to see some questions about the staff at the judge's offices regarding their professionalism, promptness, cooperation, accessibility, responsiveness, availability, knowledge of procedures, etc. This is also a reflection of the judge's office. Some staff people are more caring in their job and it is a reflection to the general public that deal with them on various matters." These illustrate that some would shorten while others would lengthen the survey.

The survey questions are the result of hours of effort by the survey committee, which has included Judges Thomas Portuallo, Laura Roesch, and John Lazzara. The committee has also included lawyers such as Dan Hightower, Rod Magie, Jeff Jacobs, Tuwanna McMillan, Richard Chait, Richard Thompson, John Brooks, and Jake Schickel. I am sure I am leaving some out, but this is a good representation. There has been a desire to keep the questions consistent from year to year. However, these comments will be discussed when the committee meets at the Workers' Compensation Educational Conference in August.

Some comments about the survey are more general. One respondent suggested: 

"The 'Average' classification is ambiguous. The 'Average' level of impartiality, ability/willingness to explain, etc. for a JCC or mediator operating in a system which is statutorily biased against Claimants and their attorneys would be unacceptable in any other area of the practice."   

Another suggested:

"why not cut the budget by getting rid of state mediators, and force the carriers to pay for private? also do jccs really need support staff. seems like since they rule on motions without hearings, and seldom do you see them other than for final hearings, which are few, that they could take over those chores. isn't that the way it is done with unemployment? is anyone monitoring what they do during the day. i know of some that leave at 2:00 almost every day. counting the number of orders they issue means little, since it takes 2 seconds to sign an order prepared by someone else. what about time sheets, where they reveal what they do. why not make them punch in and out. can't this be done by computer."

These comments are helpful. One illustrates the level of frustration some have with the statutory provisions that govern workers' compensation in Florida. The other suggests that there is at least anecdotal evidence of a Judge(s) that are not working full-time. It is, and has been the policy of the OJCC that our Judges will be impartial and that their job is to follow the law. There are certainly many who would like to see various changes in the statute, and their wish(es) may come to pass. It is worth noting, however, that all OJCC Judges and Mediators are expected to work full-time. It is my hope that if anyone knows of a judge or mediator leaving each day at 2:00, that she/he would step forward and tell me who is doing so, so that the problem can be corrected.  

One respondent commented on the survey and concluded "That said, I am aware that, the greater of the scope requested, the lower the number of respondents can be expected. I also know that coming up with the perfect survey is an impossible task. Thank you for the opportunity to provide some feedback." I appreciate this sentiment. A perfect product is likely impossible, but we appreciate your time in taking the survey and in telling us how it could be better.

Call me at your convenience 850.595.6310, x 108, or email me david_langham@doah.state.fl.us if you can shed more light on these perceived problems or if you wish to participate in the survey committee.