Be Clear on the Merits

These are trying times. There is a great deal of stress in our communities. People are struggling with earning a living, maintaining a business, putting food on the table. Many find themselves suddenly fulfilling the role of teacher. Not as an alternative role, but in addition to their existing responsibilities. The news is full of angst and anger, tempers are short, and yet we must all find a way through this time.

This is a time in which conversation will accomplish much. Litigation is always a last resort for most. It is a time-consuming and often expensive methodology for solving problems. This is one of the reasons that mediation is so successful; it allows people to fashion their own outcomes to disputes. Often, I have heard mediators opine that a good result of mediation means no one is happy, but everyone is in agreement. 

Disputes will continue during this challenging time. Hearings will be scheduled and conducted. Discovery will progress. I was honored to participate in a webinar last week that allowed physicians to discuss how medical examinations might proceed in an Internet environment such as Zoom or Hangout. They offered opinions as to challenges, solutions, and trying. To some extent, our questions for some time may not be about the "best" process, but what process we can do best in this time. 
Returning to communication, the Chair of The Florida Bar Workers' Compensation Section published an outstanding message on professionalism last week. I fully agree with his plea for professionalism, and have republished his post from Facebook. The leadership of the Workers' Compensation Institute has likewise endorsed that message. Professionalism is critical right now. 
One context in which this may be raised is communication. It is critical, in order to receive something, to ask. Mahatma Gandhi is said to have suggested "if you don't ask, you don't get it." There is some of that in workers' compensation. There are requirements that litigants act in good faith. This is part of the Florida law. Section 440.192(4) requires that a petition include a certification that the person filing the petition:
"has made a good faith effort to resolve the dispute and that the claimant or attorney was unable to resolve the dispute with the carrier."
What is good faith? Does that mean a dozen un-returned phone call attempts asking for the benefit first? Does that mean one phone call? Perhaps the good faith required depends to some extent on circumstances such as the benefit that is sought, and the overall situation? If a carrier is represented, does that mean correspondence or request to that attorney may be sufficient? Some might say that good faith is a valid and genuine attempt to communicate first, before the Petition is filed.

The communication requirement is also in Rule 60Q6.115. Before a motion is filed, the parties are required to "confer." That means a conversation, not an ultimatum. That means an exchange of ideas. Sending a motion by email and threatening to file it if you do not hear back with some agreement is not a conversation. Lawyers seem to be eschewing the obligation to converse and interact under this rule.
The burden of good faith and communication was well illustrated in an appellate decision regarding change of physicians. There has been significant litigation surrounding the "one time change" of physician in the Florida law. Section 440.13(2)(f), Fla. Stat. (2013). The First District Court explained in Gonzalez v. Quinco Elec., Inc., 171 So.3d 153 (Fla. 1st DCA 2015), that this section:
"allows the E/C only five days to respond to a request for a one-time change of physician, failing which the claimant's requested physician must be considered authorized."
How those days are calculated might therefore decide whether the employee or the carrier actually selects the treating physician to provide medical care in a case. Those are calendar days, so a request on a Friday afternoon might afford a carrier only three days. Such a late-week request in the time of COVID might cause stress and a challenge.

In Gonzalez, the employee's attorney became "of record" in the litigation by filing a petition. Either a petition or a "notice of appearance" will associate an attorney with a particular case under the 60Q Rules. The Court noted that three weeks after filing the petition, the "claimant's counsel also filed a document titled 'Notice of Appearance.'" That, in itself is not inappropriate, though it is redundant. There might be some who would do this in an abundance of caution. Or, with less workers' compensation expertise, in ignorance of the rule that says the petition is also an "appearance." 
But, this particular "notice of appearance" included on the second page, "a request for a one-time change of treating physician." This inclusion was, in part, to take "advantage of . . . (counsel's) belief that adjusters do not always read in full every document they receive." When the Carrier discovered this request, on the sixth day after filing, it authorized a new physician the same day. Litigation ensued, with the attorney asserting the Carrier had lost that right because the statutory requirement is five days. 
The Carrier prevailed at trial. The injured worker sought review by the First District Court. It is likely that the published opinion that resulted was not consistent with the worker's desires or hopes. The Court noted that "this dispute was not the result of inadvertence or ignorance" on the Carrier's part. The dispute was instead "the result of an attorney's intentional act." The Court characterized this procedure of a notice of appearance with a lurking change of physician request as "inappropriate sharp practice and gamesmanship." 
The Court focused us upon "the Oath of Admission to The Florida Bar (which) obligates all Florida attorneys to" use and employ "such means only as are consistent with truth and honor.” The Court reminded that all attorneys are under oath to be true to “fairness, integrity, and civility.” By implication, the opinion suggests perhaps that a lurking request is not honorable, civil, or fair. 
The Court focused upon The Florida Bar Creed of Professionalism, which says that lawyers shall “strictly adhere to the spirit as well as the letter of [the legal] profession's code of ethics." The spirit is critical to the administration of justice. The Creed directs us to "at all times be guided by a fundamental sense of honor, integrity, and fair play.” Thus, perhaps another suggestion the lurking request is not fair. 
The Court cited the Rules Regulating The Florida Bar. These included obligations “to avoid conduct that undermines the integrity of the adjudicative process” and "prohibitions against destruction or concealment of evidence." Furthermore, it mentioned "improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.” By implication, perhaps the Court suggests that the lurking request is obstructive and lacks integrity.
The Court reminded that these authorities all militate against inappropriate pleadings and tactics. The Court discouraged "improper 'gotcha' tactics that generate disputes." It noted that such process or abuse "unfairly and needlessly consume public and private resources while delaying the workers' compensation process and making it more expensive." Thus, perhaps a recognition that litigation for the sake of litigation does not exemplify the purpose of our process or the character that a member of the legal profession should exemplify. 
The Court affirmed the trial judge's determination that such tactics did not control in Gonzalez. It said that "the JCC properly determined that the request for one-time change of physician did not constitute effective notice." Thus, the Carrier authorization on the sixth day was timely and effective. This is a rare instance in which the "five days" stated in the statute would not control because the lurking notice to begin that period was not effective. 
This case is a clear example of poor communication. The method or process was interpreted as being intended to deceive or distract. That was not appropriate according to the trial judge, and the appellate court. The real point may be, simply, if you need something then communicate that openly. The more concisely and clearly a need is communicated, the more likely it will be quickly understood and appreciated. This may be of particular import in this time of stress, telecommuting, and staff shortages.
Today we are in an environment that has everyone under significant stress. Attorneys are struggling to maintain practices. Injured workers are finding clinics and facilities closed or operations limited. Families are challenged and routines are disrupted. Now is the time for clear and frank communication. If something is needed, say so. If it will not be provided, say so. Be clear with each other. Be frank. And, focus on the merits of the dispute. This is no time for personal attacks or name-calling. 
Let us strive to communicate effectively with each other. Let us remember that workers' compensation is a community. It was in Florida before any of us came along, and it will be here long after we depart. We are privileged to be a part of it. We owe a duty to the community, and the workers and employers for whom it was created. Let us keep our eye on the overarching "specific intent of the Legislature that workers’ compensation cases shall be decided on their merits." Section 440.105, Fla. Stat. Let's get to the merits, even if that is not the live hearing preference for which we might wish.
The current challenging environment will not last. We will all return to normal soon. We will reminisce on the COVID-19, the social distancing, the telecommuting, and the angst and uncertainty. We will return, and prevail. When we do, I hope we can all also reminisce on how supportive and professional our community was during that time. I hope we can remember that our community has sacred and critical obligations and that we rose to that challenge, despite it being anything but easy.
Let's communicate. Let's all act in good faith, focus on the merits, remember our obligations, and be a part of leading this community to a better day. I believe in you. I commiserate with what you are confronted with, and respect your many challenges (even though you may carry burdens you alone know). I find you all utterly and completely "essential." It is a privilege to be involved in this community, and to know you.
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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