A report issued by the Florida Office of the Judges of Compensation Claims shows that this year, for the first time in recent memory, the workers' compensation judges in the state met the time standards that are legislatively established for their work. Judge David Langham, in a blog article entitled Historic OJCC Stats 2019, explains in detail what those timeframes are, and how the judges of the office performed in the 2018-2019 year covered in the report. There are three “time parameters” for the OJCC: (1) time to mediation, (2) time to trial, and (3) time to final order. Mediation must occur within 130 days of a petition filing, and any subsequent trial must be held within 210 days of a petition filing and an order must be issued within 30 days of the conclusion of that trial. Those time requirements run concurrently, not consecutively. Langham goes into extensive detail on the challenges of his office in meeting these standards, and how, for the first time, they were able to achieve 100 percent compliance to them. He also points out that for two of the metrics, mediation and time to order, all judges not only met the standard, they beat them. That is worthy of noting.
However, there are more ways to reduce delays experienced in the life of the claim. Probably the best way would be not to have them at all when it makes sense to do so.
These petitions often do not represent “entire cases” that are easily defined as “win/loss” for a claim overall. This is because they usually embody conflict or needed clarification for elements of a claim, not the compensability of the claim itself. They may be filed over a medical procedure that has not been approved, or when a standard such as indemnity amounts or timeliness of actions are in question. This makes it difficult to assess from a purely statistical perspective, but it is easy to speculate that there may be a tremendous amount of unneeded activity and delay from petitions that just didn't have to be; especially if people are doing the job they are supposed to do.
We know that some petitions are, for lack of a better phrase, filed for less than notable objectives. Attorneys in Florida make money when they bring legal actions that benefit their client. That is all well and good, but stories in the state abound where the benefit for the client is negligible, and in fact might actually be a detriment, yet the attorney makes significant dollars for their time and effort. Likewise, some petitions exist because a carrier or claims professional needlessly denies or delays actions when it is fairly obvious to most that it should not be so. Years ago, David Depaolo highlighted one such example in California, when a carrier spent thousands fighting an order for what was essentially a $10 bottle of Motrin. Another example, one that often confounds me, is when an insurer will expend great energy fighting a medical recommendation of a doctor that they selected – one that is in their network. No matter the reason, however, the filing of petitions in these types of cases often represent delays that simply did not have to be.
And while we can rightly celebrate the meeting of legislatively defined timelines in the state, the reality is that those timelines can still represent a delay of up to 8 months for medically necessary treatment (longer if you take into account scheduling and appointments following a decision). I doubt any of us really would want to go through that type of wait ourselves. But some of us routinely allow it to happen to others.
Langham warns his readers that, “It is possible that with increasing petition volumes…. that meeting these three metrics will be increasingly challenging.” Judges are, after all, only human, and like the rest of us can only perform well when the workload is reasonable. Whether it is denying benefits in any form when logic says otherwise, or filing nuisance petitions for fun and profit, they all result in delays that affect workers and their families. They are actions that run counter to the mandate of the industry; to care for and serve injured workers and their employers in a prompt and efficient manner. I suspect that they would not occur with great frequency if financial disincentives were built into the system to discourage their use.
So, the best way to reduce needless delays is not to have them. Certainly, there will continue to be many cases that deserve legitimate challenges, from both sides of the aisle. But if we really take an honest look at the actions and intent behind some of the legal machinations routinely in play, we will see that they are simply causing deferral and consternation, with any benefit derived being for people other than the ones we are supposed to be helping.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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