There is a sentiment that the world of workers' compensation is difficult to comprehend. Legislatures have specified that those who would make decisions about disputes should have some degree of experience in workers' compensation. The Florida law is in Section 440.45(2)(a):
"a member of The Florida Bar in good standing for the previous 5 years and is experienced in the practice of law of workers’ compensation."
I have been involved in this system for a few years, and I have only heard this section raised for discussion a handful of times. That said, the Florida phraseology is not very demanding: "is experienced in." That has been sufficient for the nomination of lawyers who never tried a case or represented a client in a workers' compensation proceeding and lawyers whose workers' compensation experience was primarily in other jurisdictions.
These recollections came to me when I saw a news story about lawsuits that are being pursued in Ohio (the old riddle is "what's round on the ends and high in the middle," the answer is o hi o). The plaintiffs there are contesting the composition of the Ohio Industrial Commission. Florida used to have such a commission; more on that below.
The Ohio plaintiffs are focused, at least in part, on qualification language like Section 440.45(2)(a). Their statute requires gubernatorial appointment just as Section 440.45 does. The three members there are partisan, with one each mandated to be (1) "a representative of employers," (2) "a representative of employees," and (3) "a representative of the public." Ohio Revised Code section 4121.02(A).
An interesting sidenote, the statute precludes more than two "belong(ing) to or be(ing) affiliated with the same political party," and one must be "an attorney registered to practice law in this state." Ohio Revised Code section 4121.02(A).
But the qualifying language applies to all three:
"Each member shall have six or more years of recognized expertise in the field of workers' compensation," Ohio Revised Code section 4121.02(A).
Signal Ohio reports that the lawyer for one injured worker who was denied benefits is
"seeking a reversal, alleging each of the three commissioners is legally unqualified to do the job, which by law requires six years of “recognized expertise in the field of workers’ compensation.”
There is at least one additional lawsuit that is similar. Nonetheless, this seems irregular, a collateral attack on an appellate decision(s) by suing the decision maker instead of seeking appellate review through the normal course.
The Signal article notes examples of commissioner experience, including work as a "state lawmaker," chair of "an insurance committee," "city councilor," at the "Chamber of Commerce," "Attorney General’s office and in private practice as a lawyer." Without editorializing on any specific one, the article notes none of the published biographies "mention any direct intersection with the Bureau of Workers’ Compensation."
There is a discussion as to whether a court has authority in such a challenge. The statute calls for gubernatorial appointment and the "advice and consent of the senate." Motions to dismiss the challenge lawsuits assert that is the check on qualifications and the path to challenging someone already appointed is through the impeachment process.
A spokesman for the Senate noted:
"This amounts to nothing more than a poor legal strategy to avoid having claims heard by the members of the Industrial Commission."
The distinctions here are noteworthy. First, Ohio is not alone in having an adjudicatory body that includes non-lawyers. That is not as common as it once was in workers' compensation, but it is not unique. Furthermore, the partisan requirements of representing employers and employees, though also abandoned by some, persist in other states as well.
Florida had such a commission until the late 1960s, with similar appellate review authority and partisan definitions. If that group had been more effective and timely with the appellate process, it would likely persist today.
However, their slow reviews led to discord as the age of administrative law came into its own. States like Florida evolved with executive branch agencies, first Commerce, then Labor, and the evolution continued into the 21st century. This is detailed in Floridiana and the Workers' Compensation Adjudicators (2024). My other publications are also on my website, https://dwlangham.com/free-publications.
Also noted in Floridiana, there are three instances in which the composition of the Florida Industrial Commission was challenged. While litigation existed, the pleas did not all reach judicial conclusions. One did notably, resulting in a change in Commission membership.
It is intriguing to see history repeat. Different jurisdiction, venue, statute, and century, but similar arguments were raised.
I was left wondering whether the Ohio law or Florida's is more precise. Florida requires "is experienced in the practice of law of workers’ compensation," and Ohio requires "years of recognized expertise." While the Ohio use of "expertise" might seem more stringent than our "experience," Florida's specificity on "practice of law" might be seen as more constrained.
The Ohio law does not specify how their "expertise" might be gained. In that vein, one might wonder whether "expertise," without a specific statutory definition, might mean the same as law has defined it for decades? In deciding whether someone has the requisite expertise to opine on ultimate issues in litigation, we tend to look toward definitions like "An expert witness is a person with specialized knowledge, skills, education, or experience in a particular field."
That broad description of "expert" might influence conclusions as to expertise, and allow it to come from practice, education, skills, licensure, and more. The outcome in Ohio will be intriguing to watch, so many decades after Florida both saw similar litigation and abandoned the Commission model.
