Thursday, June 1, 2017

May 2017 Petition Filings Posted

The Florida Office of Judges of Compensation Claims is closing in on the end of fiscal 2017. Throughout this year, there has been significant interest in the trends of petition and new case filings. As a result, it has become habit to calculate these volumes and post them around the first of each month. Eleven of the twelve months of 2017 are now known (the fiscal year ends June 30, 2017). 

The PFB filings in May 2017 were markedly increased (5%) over May 2016. And, this is despite the fact that May 2016 demonstrated an even more significant increase over 2015. Some expected the May 2017 volume to fail to keep pace with the 2016 volume. However, the 2017 data shows that the filing volumes for May continue to be notable and even increasing. 

The projected change for the entire fiscal year had hovered between 6% and 7% for much of the year, and was at 6.2% at the end of April. The average monthly increase as of the end of May is now at 6%, and the projected annual increase remains at about 6%. It is reasonable to anticipate an annual change in the PFB filing volume to remain in the 6-7% range.  

New Case volumes are still demonstrating less elasticity (propensity to change) overall in 2017, but the volume increased markedly in May (+9%). There have been some similarly wide fluctuations from last year in certain months. New Case volumes are presently anticipated to end the year with very little demonstrated change compared to 2015-16, perhaps 1%. 

Monday, May 1, 2017

April Petition Filings Posted

Today is Law Day across the country. It also marks the first day of the last week of the Florida Legislative Session, which might or Might not bring changes to workers' compensation (discussed in a May 1, 2017 post below. 

The petition volumes this year continue to be somewhat unpredictable. Filings in some months are markedly above the same month last year, while other 2017 months have demonstrated remarkable consistency.

The PFB filings in April 2017 exemplified another of the remarkably consistent, decreasing slightly (1%) from April 2016. Overall, the average monthly change through the first ten months of 2017 (July 1, 2016 through April 30, 2017) has been 6%. The projected change for the entire fiscal year has hovered between 6% and 7% for much of the year, and is currently 6.2%. Because two of the most significant PFB filing volume months for 2015-16 were May and June, it is possible that more moderate volumes in those months this year could result in a rate of increase below the current 6.2%. 

New Case volumes are demonstrating less elasticity (propensity to change) overall. There have been some similarly wide fluctuations from last year in certain months. However, overall, 2016-17 currently has the exact same volume of New Case filings as there were as of April 30, 2016 in 2015-16. New Case volumes might end the year with very little demonstrated change compared to 2015-16. 

Legislative Update 2017

The Florida Legislative Session runs through Friday (May 5, 2017). The length of the Session is set by the state constitution. The Legislature's calendar predicts closure of the 2017 Session around 10:00 a.m. Friday, but the chambers will vote on their adjournments when they deem their respective business done. 

Much of the news this Session has centered on the state budget. However, compromise and agreement has been reportedThe budget is a mandatory legislative function. In recent months, some prognosticated that the Legislature might fail to reach a budget consensus during the Session. Had that occurred, or if some other particular need was perceived, the Legislature can be called into a "Special Session." Last year, some advocated for a "Special Session" regarding workers' compensation, but it did not occur. Recently, with a budget seemingly agreed upon, there has been less discussion of any perceived need for a "Special Session" in 2017. 

There has been significant discussion, debate, and discord about workers' compensation this year. The main proposals are noted below. 

Florida's legislature operates on a two year Legislative term. Bills introduced in the first year of a term (2017) remain viable through the end of the second year (2018). Therefore, discussion of the bills currently pending should perhaps include whether they will pass this year and whether they might be taken-up again next spring for further discussion, revision, and consideration. 

The House passed a significant bill regarding workers' compensation, House Bill (HB) 7085. The last House action, as of this morning, was its passage on April 19, 2017 (82 to 37). When a bill is passed in either chamber, it is sent to the other chamber in "messages." In order to reach the Governor's desk for consideration, a bill must first pass both the House and the Senate (each referred to as a "chamber"). The Florida Senate received HB 7085 in messages on April 20, 2017 and referred it to the Senate Rules Committee. UPDATE May 2, 2017 - the Senate has taken no substantive action on HB 7085. 

The Senate also has a significant bill regarding workers' compensation, Senate Bill (SB) 1582. It is listed on the "special orders" calendar for May 1, 2017. That means that a vote on the bill by the entire Senate is likely today. If it is passed, as expected, it would similarly be transmitted in messages to the House for consideration. When bills are received by a chamber, they might be referred to a chamber committee, or could be voted on by that chamber. UPDATE May 1, 2017 - this bill remains on the "special order" calendar, and may well be voted on by the Senate this week. UPDATE May 2, 2017 - this bill was "temporarily postponed" or "TP'd" today. It will be back on the calendar tomorrow. 

There is significant discussion of both of these bills and the impending end of the session. There is seemingly no end to opinions and conjecture regarding the potential for either bill to pass both chambers for presentment to the Governor. That potential is usually seen as more likely when the two chambers are each working on identical or significantly similar bills. 

The 2017 workers compensation bills have similarities, but are far from identical. It is possible that either chamber could accept the language of the other chamber's bill. In that case the "accepting" chamber would amend its own bill by substituting the language of the other chamber's bill. It is also possible that the two chambers could work with both bills and reach some compromise of language that is acceptable to each. Agreements such as these might take significant discussion and time. 

There are also less comprehensive bills, which have some impact on Florida workers' compensation.

SB 1008 (many bill numbers include "CS," which reflects that the proposal is a "committee substitute" for the originally filed bill; this bill is currently "CS/CS/SB 1008," meaning there have been two significant committee substitutes) would exempt information about injured and deceased workers from Florida public record laws. This bill was last acted upon April 28, and is on the Senate's special order calendar for May 1, 2017. SB 1008 applies specifically to information submitted to the Department of Financial Services (Division of Workers' Compensation).

There is a similar public records bill in the House, HB 1107 (which is also the second CS). The impact of the HB is broader. It applies to information submitted to the Division, as addressed in SB 1008, but also to information submitted to the Agency for Health Care Administration and the Division of Administrative Hearings (Office of Judges of Compensation Claims). The House passed HB 1107 unanimously and it was sent to the Senate in messages on April 25, 2017. The Senate has referred the bill to Senate committees for consideration. UPDATE May 1, 2017 - the Senate withdrew the bill from the assigned committees and substituted the HB 1107 for SB 1008. HB 1107 is scheduled for a Senate vote this week. Update May 2, 2017 - the Senate passed this bill unanimously.

Thus, the two public record bills are also not identical. Therefore, for changes in workers' compensation and public records to reach the Governor this year, compromise between the chambers would be required. 

HB 1007 is not per se a workers' compensation bill. however, it would require all insurance carriers to address fraud. Some predict that it could receive a final House vote this week. Whether the Senate will act upon it in the final days of session is a matter of discussion. The House bill has similarities with SB 1012, which is set for a Senate vote this week. 

Time will tell whether the week of May 1, 2017 brings action on these proposals. It is worth noting that a great many bills are filed each year. Few successfully travel through the committee process and reach the floor of either chamber. Fewer still pass both chambers and are presented to the Governor. And, whether to veto such a passed bill is up to the Governor. The path from bill to law is is challenging, sometimes difficult to understand, and often time-consuming. With only a few days left in the 2017 Session, many will be watching these and other bills of interest. 

Saturday, April 15, 2017

Colorado Compensation Conference 2017

The Colorado Department of Labor opens its 2017 Workers' Compensation Conference on Monday in scenic Colorado Springs. It is an ambitious three-day agenda, and has attracted over 175 attendees from across Colorado and various other states, including 12 from Florida. The quality of the programming is illustrated in the variety of attendees. And there are exhibitors and speakers, all told there will be over 300 people in attendance. 

A big draw Monday afternoon will be the Regulator Roundtable. For 75 minutes, the Director of the Colorado Division of Workers' Compensation will moderate a discussion of what is topical in American workers' compensation.

The topics are not published in the conference materials. The Agenda merely promises "agency leaders from three states to a panel discussion focused on the challenges, concerns and issues facing jurisdictions across the nation." And, that is fairly general. What are the issues and concerns facing workers' compensation?

I am honored to be on the panel in Colorado Springs, but I am not the moderator. So, I don't know all of the topics that could be mentioned, and the free-flowing nature of a panel like this is truly a significant part of its charm. But, here are my predictions of possible discussions:

(1) The challenges of the Grand Bargain. Workers' compensation is a series of complex systems. It involves and affects every American, despite the vast majority never noticing or appreciating it.

(2) Legislative and regulatory policy development. How competing interests and perspectives vie for attention and primacy in a complex and evolving political process.

(3) The debates and challenges of constitutionality. Recent years have brought unprecedented volumes of legal challenges. The very essence of the Grand Bargain, access to courts, freedom of association and more have been debated.

(4) Challenges of due process and equal protection. Legislatures have provided special benefits and presumptions to some workers. First responders have come to enjoy status and benefits denied to others; more recently moves to compensate mental injuries and cancers have begun.

(5) Subjectivity and objectivity have each been decried and championed. Recent trends are toward standardization, with states adopting treatment guides, impairment guides, and medication formularies.

(6) The injured continue to struggle with the truth of pain. The promise of opioids has, for many, instead been a disappointing lie. Patients have acclimatized, doses have escalated, addiction has become reality, and death has loomed. It is an illustration of the convergence of medical art, science, compassion, legislation, regulation, competing interests and the challenges endemic to workers' compensation.

Your panelists are fortunate to be led by moderator Paul Tauriello. Paul is Director of the Colorado Division, and a long-time leader in workers' compensation. He brings decades of experience to the podium. Paul has been involved in a variety of national workers' compensation discussions, and is a frequent presenter, panelist and moderator at national conferences. He brings focus to challenges that these systems face. 

The Oklahoma experience over the last few years has been intriguing on a variety of levels. The state recently (2014) abandoned its' workers' compensation court process and joined the majority of states with an administrative hearing process for claims. It experimented with an "opt-out" for employers, which ambitiously promised the best of everything to everyone, but which the courts concluded was unconstitutional. From benefits to process, there have been various constitutional challenges in Oklahoma, and throughout Bob Gilliland has been at the helm.

In the Oklahoma system, workers' compensation is managed by a three-member Commission, of which Bob Gilliland is the chair. He has practiced law in Oklahoma for 51 years. The Commission there provides regulatory leadership, management of both claims and administrative adjudication processes, and acts as an appellate court to review decisions. Oklahoma has been fortunate to have Bob's leadership and experience on hand during its' transition to a modern administrative system. 

Georgia's workers' compensation system is similarly organized, with a three-member Board charged with the overseeing the administrative, regulatory, and adjudicatory processes. Georgia's Board similarly acts as an appellate body, reviewing the decisions of the state's administrative law judges (ALJ). Chair Frank McKay was appointed in 2013, after practicing workers' compensation for 22 years. His experience was both in trial and appellate practice, and he served on the Georgia Workers' Compensation Advisory Council. Several states have similar organizations focused on the challenges of both legislative and regulatory management of the system. 

And, unfortunately, they were unable to find a third speaker of such caliber and so yours truly will join the panel. I am humbled to share the stage with these luminaries of the workers' compensation world.

We will endeavor, in the course of 75 minutes, to bring a variety of subjects to the table. There will likely be agreements and consensus, but there will undoubtedly be disagreement and debate. It is the "must-see" of the Colorado conference. Fortunately, it is followed at 5:00 by the Welcome Reception. Frankly, following 75 minutes of discussion this focused, involved, and passionate, you are likely to feel you need the break. 

I look forward to seeing you at the Regulator's Roundtable, Rocky Mountain style. Sit in the front, we will be calling on those that try to hide in the back rows!

Friday, April 7, 2017

March PFB Filing Rates Posted

The figures are in for Florida workers' compensation litigation filings for 3/4 of the fiscal year, through March 31, 2017.

The PFB filings were up notably in January (14%) over the same month last year. February was statistically unchanged from a year prior. March figures returned to the trend of increase. The average of monthly changes has been approximately 3%. The OJCC continues to project an annualized increase in the range of 6-7%.

Wednesday, March 22, 2017

39 N.J. Prac., Workers' Compensation Law § 34.9 (3d ed.)

Was greatly flattered by a recent contact from workers' compensation guru Jon Gelman. Mr. Gelman is an attorney, author, blogger and advocate in New Jersey. He "wrote the book" up there, New Jersey Practice Series, Workers' Compensation Law. In the February 2017 update to the section above (39 N.J. Prac., Workers' Compensation Law § 34.9 (3d ed.)), he quoted a blog post from last July. 

I feel just like Navin Johnson (Steve Martin) in The Jerk (1979). 

A big thanks to Mr. Gelman for the reference. It is good to know that the blog gets read!

Tuesday, March 14, 2017

Port St. Lucie temporary procedures.

On Monday, March 13, 2017 we temporarily closed the Port St. Lucie office premises. There are some structure issues that we are dealing with and the office will remain temporarily closed for a short period as we assess how best to move forward. In the meantime:

Mediations will resume the week of March 20, 2017. Mediator Paul Harwood will be mediating as scheduled, but they will be telephonic mediations for the time being.

Rescheduling and scheduling calls may be directed to the PSL district number. You will be relayed to staff elsewhere that can assist you. It may be necessary for staff to call you back to make changes. Or, you may call Lyna Hickman in Panama City 850.872.7774 for the time being and she will work with you to make calendar changes.

Hearings will also resume the week of March 20, 2017. The OJCC will be in touch to advise of location changes. Some hearings may be moved to facilities in the local area or to other OJCC offices.

More will be posted here as more information becomes available. Email questions or concerns to