Make it Work for You

Why do we do what we do? I was in a conversation that included some critique of an (allegedly) annoying marketing campaign. The speaker was annoyed and felt that the ad campaign was obnoxious and unproductive. She questioned the gathering "why do they do that?" There was some agreement and further derision of the effort. I offered a simple answer to the query, however: "because it works." Companies persistently measure marketing efforts. If an ad campaign is not working, the company will spend its money elsewhere. The point of the effort, the campaign, is that it works. I addressed spam email similarly in Because it Works
This came back to me recently when I was reviewing some cases. The subject matter was Expert Medical Advisors (EMA), appointed pursuant to Section 440.13(9), Fla. Stat. Two practices were noted from various appointment efforts. First, there is a practice of filing "notices" instead of "motions" for EMAs, and second there is important information that may be helpful to a party in getting what they want (a resolution) regarding such a desire for EMA appointment regardless of whether "notice" or "motion" is the selected tool.
When a motion is filed, clearly the parties are obligated to communicate with each other. The obvious purpose of rule 60Q6.115(2)("that the movant has personally conferred or has used good-faith efforts to confer with all other parties") is for the parties to attempt to sort their issues prior to any need for judicial intervention. The certification required for motions merely facilitates the judge quickly acclimating to a particular situation. In the motion setting, the filing party is required to enunciate whether opposing parties have any objection to the relief sought.
Certainly in the notice setting, that rule is not technically applicable. However, the party filing a "notice of conflict" is seeking to move their client‘s issue forward. The party is seeking an order appointing an EMA. The District Court of Appeal analyses that excuse the necessity of a motion in this setting relieves the party of the rule obligation to state the opposing party's position. However, making such a statement will nonetheless facilitate the judge's rapid and clear understanding of the nature of the situation. If opposing counsel does not object to the appointment of an EMA, why not so state in the "notice?" Why not facilitate the process of obtaining that order?
If an EMA is to be appointed, the next immediate question becomes who is appropriate for performing that service. Anyone who has practiced in Florida worker’s compensation understands that the published list of expert medical advisers is thin in some specialties and localities. I have been impressed with attorney‘s inclusion of suggestions (which with a statement regarding opposing counsel’s position regarding opposition could very well be stipulations) regarding the appropriate specialty the EMA physician should possess. Something like: "the parties agree the appropriate specialty for the EMA in this case would be an orthopedic surgeon."
However, it is common that lawyers will instead state only the required information, e.g.. “there is a conflict between the opinions of Dr. A and Dr. B.“ In such a minimal statement, there is no edification regarding those physician's specialties, or what other physicians may be involved in the case. Of course, it is possible that either party may lack full knowledge of all physicians who have played a role (a physician may have been consulted as an expert adviser, but not be listed as a witness, nor have any hands-on experience with the patient). But, it would be very productive to at least the identity of those physicians who have evaluated and treated the claimant. 
In any notice of conflict or motion for appointment of an EMA, it would be very handy for the judge of compensation claims to know:
(1) whether the parties are willing to stipulate to the appointment of a particular physician. This is particularly helpful if the available population of certified EMA providers is exceedingly thin, and the parties are able to select a provider that could be certified by stipulation. This may be more of a "consensus IME" pursuant to section 440.13(5)(g), Fla. Stat. and would not even require an order.
(2) The community that is most convenient to the parties (both patient and attorneys, for the purpose of discovery); e.g. "the parties agree that an EMA in __________ . . ." or "the most convenient location for an EMA would be in __________."
(3) if any of the EMA physicians listed by the state are inappropriate for appointment due to their past involvement in the case, or the past involvement of any of the physician‘s partners or associates; e.g. "the EMA list includes Drs. X and Y, who have previously treated claimant (or who are partners with Dr. A) and would therefore be inappropriate to perform the EMA."
(4) whether any of the EMA providers listed would be inappropriate in this case according to the consensus of the parties. For example, in a spine-related case, the parties may well know in their local community that a specific physician on the list is a hand specialist, shoulder specialist, or knee specialist, while that may not be obvious from the EMA list.
This all returns to the analysis in that conversation mentioned in the first paragraph. Why did that company continue with the advertising campaign that so aggravated the individual? Because the advertising campaign worked. In the broader context of practicing law, it is appropriate to follow the rules and to do what the rules require. However, if there are actions beyond the rules that will “work“ and move your clients issues forward, then why not similarly engage those productive practices even though they may not be required or mandated?
If you provide pertinent information, and fulfill your obligation to bring the adjudicator up to speed, you may find that you receive more rapid, cogent, and thoughtful responses. Those likely work to the benefit of everyone involved by expediting the EMA order and by avoiding subsequent reconsideration of appointment following later disclosure of critical information. The suggestions above may decrease the necessity for motion hearings or status conferences. It is practical to anticipate and avoid delay related to a provider her or himself subsequently noting a conflict ("I have previously treated/evaluated the patient"). That disclosure could come weeks after EMA appointment, and that is wasted time. 
In a broader concept of professionalism, there is never harm in more communication between adverse parties. The requirement of 60Q6.115(2) makes it happen in the "motion" context, but it is good in any context. Communication is, at worst, educational and informational. The more we communicate, the better we communicate, the more productive we can be. This is true as between counsel. It is as true when seeking an order: communicate and move your client's issues forward. Not just because the rules require if in motion practice, but because in all contexts it works. That is the best reason to communicate, it works. 

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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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