REAL CONVERSATIONS ABOUT WORKER'S COMPENSATION - FLORIDA STYLE

 January 26, 2018

REAL CONVERSATIONS ABOUT WORKER'S COMPENSATION - FLORIDA STYLE

By Judge David Langham

I participated this week in Real Conversations about Worker's Compensation (RCWC), part of a two-day seminar produced by WorkCompCentral (WCC) in Saint Pete Beach. It was the first WCC program in Florida, and is noteworthy for that reason alone. However, the program was itself noteworthy. 

The RCWC format is scripted around hypothetical scenarios, primarily arising from situations in California. They are exaggerated for discussion’s sake. The discussion uses their foundational facts to highlight broad and interesting issues by a very large panel of ten subject-matter experts. And, within this construct, there is discussion of ethical and professional issues. 

We discussed compensability of closed-head trauma symptomatology. This is a California hot-topic. With a newly diagnosed but long retired claimant there are issues. There was discussion of whether a Florida petition could or should be filed. There were comments regarding the Florida exclusion for professional athletes, the long delay in diagnosis, and the potential for a statute of limitations defense. There was also discussion, in light of these potential obstacles, of whether a different state might be a better choice of jurisdiction. 

Some panelists doubted a successful Florida claim could be pursued. That led the moderator to ask (essentially) “it seems that this worker might have no recovery at all, is that fair.” Is the world about “fair?” Is that the ultimate measure of our law and our legal system? Fair is a challenging standard if we adopt it. Two people arguing over something might not find any distribution to be “fair.” What is fair to one person may be unfair to another. Can workers’ compensation be fair to everyone?

Another scenario focused us upon behavior of defense counsel, a hypothetical attorney who presses litigation as hard as possible. The panel consensus seems to be that “scorched-earth” attorneys are unlikely to remain popular in a market place such as Florida. By “popular” that is, that the panelists involved in hiring counsel were not inclined to hire the “earth scorcher.” 

This outcome surprised the California panelists (remember, some of the scorching behavior actually occurred there; thus the hypothetical). There was incredulity that Florida attorneys would not behave as described in the hypothetical. But, the panelists seemed reasonably convinced that the threat of prevailing-claimant fees is a Florida deterrent to such behavior. One panelist, who represents injured workers, spent a few moments waxing eloquent as to why the potentiality for hourly attorney fees is thus a Florida imperative, to deter such behavior. 

It was a diverse panel. It included two claimant attorneys, a claims person, an employer risk manager, a neuropsychologist, two defense attorneys, and a nationally recognized workers’ compensation speaker involved in advocacy, academia, and more. A veritable “who is who” of workers’ compensation, plus me; it is humbling to be invited amongst such intellects. 

We learned that there may be a great many agreements on the hard topics. One example regarded an injured worker released to light duty, and temporary partial (TPD) entitlement. But, this worker was precluded from return to work because he lacked immigration documentation. Thus, arguably able to work, not working for reasons unrelated to his injury, and perhaps appropriately denied TPD benefits on a “deemed earnings” analysis. 

Both claimant’s attorneys opined that the immigration status should be ignored and benefit paid. The two defense counsel quickly agreed, as did the claims professionals. There was no dissenting opinion. Across the spectrum of workers’ compensation perspectives, everyone agreed. I cogitated on that unanimity all the way home (7 hour drive). 

And I thought. I had committed to write this post, and that was on my mind. When I write for WCC’s Work Comp World, I am reminded that I write here because David doesn’t anymore. I cannot approach this work without him in my thoughts. I drove and I thought about their unanimity (“pay him, it’s the right thing”), and I thought what would David say?

Four hours in, I had an epiphany. David would say “you gathered the cream-of-the-crop as panelists and you’re surprised they all agreed on the doing the right thing?” I can hear him now, “that’s your problem Dave, you miss the easy answers.” He would explain that unanimity did not occur because it was easy, comfortable, or sometimes even acceptable to do “the right thing.” 

He would say that these panelists all reached the “right thing” not because it was easy or simple, but quite to the contrary that they reached the “right thing” despite it being difficult and a challenging analysis. He would probably remind us there are many opportunities in workers’ compensation to get to the “wrong thing,” to over-claim or over-defend. 

I was two hours further down a very dark and lonely highway before the import of that hit me. Like a swat to the head, it occurred to me that too few people get the opportunity to hear a “dream team” perspective. Sure, we had a nice audience Monday, but this “dream team” was likely preaching to the choir. It’s possible that those who needed the Conversations the most will never hear them. It is likely that people in our industry struggle daily with complex and conflicting statutes, confusing judicial decisions, and that inexorable enemy – time. And, it is unfortunate they do not have access to resources like this “dream team.”

Despite that, all day, every day, so many people are getting to the “right thing.” You know I am talking to you. Know that you are noticed, even if nobody says so. Know that getting to the “right thing” does matter. Know that every day we are all dealing with human beings who are challenged, stressed, and even overwrought. And, know that every day we will each make mistakes, even members of the “dream team.”

So, pat yourself on the back and acknowledge the difference you are making. Find your “dream team” with whom you can have Real Conversations, and whose advice you can trust. And, do something today to make one person’s workers’ compensation experience better. Get to the “right thing” and be proud of doing it.