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.
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?
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?
