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.
