Another month of COVID-19 is behind us. I strive to look back on the onset of this pandemic and the challenges that have faced the workers' compensation community. I have had the opportunity to informally discuss obstacles and innovation with so many in the community. Perhaps some have received help through those conversations, others maybe simply got the chance to vent their frustrations and struggles.
Through it all, despite the serious consequences many face, I have been overwhelmingly impressed with the flexibility, innovation, and professionalism I have encountered in this workers' compensation community. Last week, I even attended a virtual Inns of Court meeting with the E. Robert Williams Inn in Jacksonville! Despite the challenges of group gatherings, the Inn continues to serve its members and community.
That does not mean things have been trouble-free or easy. Many things have been anything but. Is COVID-19 affecting Florida workers' compensation litigation? The answer in March was "not yet." In April, that turned to "yes." With the numbers now apparent for May, the answer is "yes, consistently." The Florida Office of Judges of Compensation Claims (OJCC) continues to see decreased filings. I have had some people question why the analysis of these numbers is important. There are multiple reasons.
First, market segments (an employer, a carrier, a law firm) may perceive their current experience as altered. One might feel from their own isolated perspective that claims are increasing or decreasing. There may be a tendency to question whether that is isolated to that segment (personal experience), or whether that segment's perceived impact is consistent with overall averages and experience. Hopefully, knowing the overall community activity level is helpful in that regard.
Second, an understanding of trends is helpful to all community participants. Whether new cases are being filed in consistent volumes may indicate claim frequency or claim denial perceptions. Whether overall filings remain significantly consistent in trend and volume with petition filings may offer insight into the intensity of litigation that is occurring.
In April 2020, the "new cases" filed with the Florida OJCC were markedly decreased from April 2019. The overall petition volume similarly decreased. This is detailed in COVID-19 Effect on Florida Litigation? The short version is that petition filing had been increasing in fiscal 2020 (started July 1, 2019). In March 2020, petition filing dropped 2% compared to March 2019. April 2020 petitions dropped 23% over 2019. The new figures for May demonstrate a 29% decrease compared to May 2019. Litigation is slowing.
Thus, the previous trend of increasing petition volumes has changed in recent months. The most recent two months have markedly decreased compared to 2019. Through June 15 2019, 70,181 petitions had been filed for that fiscal year. For the same 11.5 months of fiscal 2020, through June 15, 2020, 69,203 petitions had been filed. The annual (through June 30, 2020) decrease in petition volume is therefore expected to be about 1%. That should be considered in light of the marked decreases at the end of the fiscal year, an indication of the strength of petition filing growth earlier in the fiscal year.
The "new cases," cases that are first being created in the current fiscal year, demonstrated similar decreases noted in COVID-19 Effect on Florida Litigation? The trend was increasing volumes of new cases in fiscal 2020, as of the third quarter (March 31, 2020). However, in March 2020 new cases were merely 1% more than in March 2019. The new cases in April decreased 24% compared to a year earlier. That trend continued in May 2020 with new cases decreasing 33% compared to May 2019. For the 11.5-month period through June 15, 2019, 30,386 "new cases" had been filed. For the same 11.5-month period ending June 15, 2020, the "new cases" totaled 30,022, another decrease of about 1%.
Overall, OJCC filings (all pleadings) likewise were trending upward through the third quarter of 2020 (through March 31, 2020). However, that growth flattened in March with the March 2020 filings (52,581) virtually the same as the March 2019 filings (52,423). The overall filing rate dropped by 11% comparing April 2020 to April 2019. The decrease in May was more pronounced dropping 19% from 54,169 (May 2019) to 43,500 (May 2020).
Therefore, it appears that fiscal year 2020 is likely to demonstrate overall filing rates similar to 2019. However, those overall annual figures include increased filings early in the fiscal year and markedly decreased filings in recent months.
Notably, the effect of decreased petition filing does not generally have an immediate workload effect. When a petition is filed, a mediation is necessitated (unless one is already scheduled based on some prior filing). That mediation will be 70 to 130 days in the future. A final hearing is also likely to be set 150 to 210 days in the future (some judges wait until after mediation to schedule, but that affords parties less notice and can lead to continuance issues). Thus, the impact of the decreased petition and "new case" volume on a judge or mediator's calendar should not be immediate.
In June 2020, a judge's calendar is likely to be consumed with petitions filed in December, January, and February, and the motions that are related thereto. There is likely also motion activity related to some of the petitions filed in March, April, or even May, but perhaps less so. In June 2020, a mediator's calendar is likely to be filled with issues filed in February and March, with some lingering contribution from January filings perhaps.
Similarly, the impact of decreased filings in May and June, 2020 will most likely evidence a slowing of mediation and trial volume later in calendar 2020, that is during the first six months of fiscal 2021 (July 1, 2020 through June 30, 2021). There is no mathematical corollary in absolute terms. However, a 29% percent decrease in the volume of petitions filed one month (May 2020) may be rationally expected to lead to a decrease in the volume of mediations in August or September and a decrease in the volume of final hearings in November and December.
The fact is that petition filing rates have demonstrated some inconsistency historically. Because of weather, business cycles, or causes unknown or undetected, there have been fluctuations before. Depending upon the cause of a particular decrease, it may be that filing volumes might seem to thereafter surge (weather-related closures). In other instances (business cycle decline and fewer accidents), there may not be any such immediate surge thereafter. It has proven difficult to predict filing rates.
This is important for market participants to consider as the decreased volume of filings may create a near-term languor. In those times it is important to remain productive and to accomplish delayed tasks or build better processes to facilitate better performance when volume returns. And, there is a need to be prepared for the agitation or challenges that a returning volume may bring, whether in a surge or not.
The current volumes illustrate a slowdown in Florida workers' compensation litigation. March brought a "flattening of the curve," and more recently we have seen a significant decrease. While the overall figures for 2020 will not demonstrate a drastic decrease overall, the volumes in recent months will more than offset the increased filings earlier in the fiscal year. Those who work in this marketplace will likely struggle with a general slowing of pace in the near term, and the challenges of a return to normal perhaps in mid-2021 (the holiday season of calendar 2020).
