The Old Gray Mare She Ain’t What She Used to Be

Change is inevitable. Sometimes change means improvement, sometimes not. Most often what it means depends upon your vantage point. The practice of workers’ compensation may not be what it used to be, and perhaps referring to it as an old gray mare is not fair. However, I hope the headline caused you to read at least this far.

The September 1, 2012 edition of the Florida Bar News announced that three attorneys were recently awarded the distinction of Board Certification in Workers’ Compensation.  There are Daniel Gonzalez of Miami, Michael Rabinowitz of Tampa, and Russell Young of Sarasota. As I try to do each time such an announcement is made, I drafted a quick congratulatory letter to each this week.

I was posting the letters when I encountered some attorneys. I mentioned the purpose of my correspondence and mentioned I would like to write them a letter also. One replied that there is no reason to counsel a client to take any case to trial when it can be settled advantageously. This is certainly true. Another intimated that workers’ compensation trials are not the way to keep the lights on at his office (suggesting that settlements are). Certainly there is merit in negotiated resolutions through settlement or otherwise. 

Their comments got me wondering about the practice of Comp and whether the environment today allows certification and recertification, with the perceptions of fewer trials each year.

Coincidentally, work began in earnest this week on the 2012 OJCC Annual Report. Do the statistics support that trials in workers’ compensation are declining? In fiscal year 2012 the OJCC conducted 1,903 “trials.” Trials include merit hearings on benefits requested by injured workers, fee hearings, and a variety of evidentiary motion hearings such as motions for advance, motions to enforce settlement, and motions to appoint expert medical advisors.

Review of prior reports illustrates that the volume of Florida workers’ compensation trials has not changed markedly in recent years.

2006-2007    1376

2007-2008    1760

2008-2009    1920

2009-2010    2080

2010-2011    1888

2011-2012    1903

Although, the 2006-2007 volume seems low, that figure resulted from data reported by the various districts, without any uniform definition of what constituted a trial. It likely included only the merits hearings conducted that year. Certainly, there are fewer trials now than there were in the 1990s. However, the evidence supports that there remains a significant trial volume. I suspect that there are attorneys out there who have prosecuted or defended 25 trials, and are eligible for certification.

There are currently 207 attorneys Board Certified in Workers’ Compensation in Florida. As of June 1, 2012 there were 93,895 members of The Florida Bar. That number has likely changed since that time, and the results of the July 2012 Bar Exam will certainly change those numbers in coming weeks. However, using that figure as a benchmark, roughly two-tenths of one percent of Florida lawyers is Board Certified in workers’ compensation. 

Overall, about 4,880 attorneys are Board Certified according to the bar website, www.flabar.org.  This is roughly 5% of all Florida attorneys. The various areas of specialty are

Admiralty and Maritime	57
Adoption Law	19
Antitrust and Trade Regulation	16
Appellate Practice	174
Aviation Law	32
Business Litigation	239
City, County & Local Government Law	225
Civil Trial	1083
Construction Law	292
Criminal Appellate	57
Criminal Trial	379
Education Law	39
Elder Law	94
Health Law	121
Immigration & Nationality	60
Intellectual Property Law	135
International Law	37
Labor & Employment Law	190
Marital & Family Law	280
Real Estate	450
State & Federal Government & Administrative Practice	104
Tax Law	248
Wills, Trusts & Estates	342
Workers Compensation	207
Total Board Certified Attorneys	4880

To be Board Certified in workers’ compensation, an attorney must have practiced for 5 years, with 30% or more of their practice over the preceding three years in the practice of workers’ compensation law.  A minimum of 25 contested workers’ compensation trials, all involving substantial legal or factual issues, a peer review, 45 hours of continuing legal education within three years prior to the application, and successful completion of the Board Certification examination.

Admittedly, the application is a challenge. However, with the case-search now available on the OJCC website it is much less of a chore than it used to be. An attorney can search their name in the Google search and find those trial orders. This will provide you the case numbers, the opposing counsel details, and the issues that you need for that application.

I am proud to be Board Certified. I am proud of our Judges who are Board Certified, Judges Lorenzen, Murphy, Rosen, Sculco, and Sojourner. I am proud of our Mediators who are Board Certified, Mediators Suskin and Witlin. I am proud of our former Judges who are Board Certified, Juan Bello, Gary Frazier, and Richard Thompson. I am proud of our newest Specialists, Daniel Gonzalez, Michael Rabinowitz, and Russell Young. I am proud, in fact, of all 207 attorneys that have achieved and maintain this designation of “Specialist.”

 It is my hope that attorneys will read this and conclude that they would be proud to be Board Certified also. If you reach that conclusion and I can assist you with research on your trials and trial orders, contact me at david_langham@doah.state.fl.us