PENSACOLA DISTRICT 2011 ANNUAL REPORT

Transcription

1 PENSACOLA DISTRICT 211 ANNUAL REPORT

2 Table of Contents Overview Pensacola District History Pensacola District Achievements Petitions for Benefits Final Hearings Scheduled Continuances From Filing to Final Hearing Final Hearings Final Orders Other Hearings Settlements and Attorney Fees Side Stipulations and Attorney Fees Attorney Fee Hearings Total Attorney Fees Approved Final Orders Report Page 2

3 OVERVIEW Workers Compensation is governed by Ch. 44 of the Florida Statutes which defines the rights and responsibilities of injured employees, their employers and the employer s insurance carrier. The system is intended to be self-executing in the delivery of benefits to injured worker. Many times however, the self-executing intent of the statute fails and a dispute arises as to what benefits are due. Adjudication of these disputes falls within the province of the Office of the Judges of Compensation Claims (OJCC). When such disputes arise in Escambia, Santa Rosa or Okaloosa County, the Pensacola District Office has jurisdiction. Disputes generally arise when an injured worker files a Petition for Benefits (PFB) alleging the employer/carrier (E/C) has failed to provide indemnity and/or medical benefits required by Ch. 44. If the employee is represented by an attorney and is successful in prosecuting the Petition, he or she may be entitled to recover attorney fees from the E/C. In addition to adjudicating claims involving disputed benefits and ruling upon motions filed during such litigation, the Judge of Compensation Claims (JCC) is also responsible for reviewing and approving settlements involving unrepresented workers and approving attorney s fees due injured workers who are represented by counsel. Requests for approval of such attorney s fees arise when parties resolve disputes prior to a final hearing or when parties agree to settle the case in its entirety. When parties are unable to reach an agreement regarding attorney fee issues, a Motion for Attorney Fees may be filed requiring adjudication by the JCC. In 22 DOAH began posting orders and other pertinent OJCC case information on the internet providing access by the parties and other interested individuals. In 25 the Pensacola District became the first District to publish its own website. This site provides the public with access to not only District scheduling and personnel information, but every Final Order issued in the Pensacola District since November 15, 21. In the summer of 25, the Pensacola District began offering parties the opportunity to e-file pleadings and other litigation related documentation. In November 25, such e-filing capability was available throughout the entire OJCC system. In October 21, e-filing became mandatory for all represented parties. In 26 the Pensacola District began operations as a paperless office, no longer relying upon nor maintaining physical paper files. In 27, to further enhance its paperless office operations, the Pensacola District implement e-service of all Orders and Notices to represented parties. As a result of the substantial savings e-service afforded, in October 29, DOAH implemented e-service throughout all OJCC District Offices. In 21, in recognition of such significant cost savings, the Pensacola District received an Award of Distinction from the Prudential-Davis Productivity Awards Program. In 28, Video-Teleconferencing (VTC) capabilities were installed in the Pensacola District Office. Utilizing such capability, in October 29 the Pensacola District began exercising jurisdiction over twenty (2) new claims filed each month in the Ft. Lauderdale District. In 21, VTC was utilized extensively during a six month period in Pensacola overseeing claims in the Lakeland District while awaiting the appointment of a new Judge of Compensation Claims in Lakeland. Page 3

4 PENSACOLA DISTRICT HISTORY Michael J. DeMarko retired as Judge of the Pensacola District (previously District A-West) on November 14, 21. David W. Langham served as Judge of Compensation Claims from November 15, 21 until the appointment of Nolan S. Winn on December 18, 26. Judge Winn was reappointed in December 21 by Judge Crist to another four year term. PENSACOLA DISTRICT ACHIEVEMENTS Reorganization following 2% staff reduction. 21 Awarded Davis Productivity Award of Distinction for e-service initiative implemented in Trial District for DOAH implementation of e-service. Trial District for First DCA implementation of e-filing of appellate record. Publication, with Judge Kathy Sturgis, of JCC Manual. 28 Installation of Video-Teleconferencing (VTC) system. 27 Implementation of e-service of Orders and Notices. 26 Creation and publication of topical final order list on the internet. Completion of paperless office implementation. 25 Creation and Publication of District website. Creation and Publication of chronological list of final orders. Implementation of paperless office process. 24 Implementation of expedited final hearing procedure. Implementation of remote digital hearing recording. Recovery from Hurricane Ivan. Development of paperless office proposal. Page 4

5 PETITIONS FOR BENEFITS While the number of Petitions for Benefits filed statewide continued to decrease in 211, Petitions for Benefits ( PFB ) filed in the Pensacola District increased for the third consecutive year. Petitions Filed in PNS Statewide Average per JCC PFB s Filed PNS District Change from Prior Year -21.% -12.% -2.7% 1.% 12.9% 7.7% Petitions Filed Statewide 9,955 82,67 71,979 72,31 65,5 63,5 Avg. per JCC Change from Prior Year -6.1% -9.2% -12.9% 7.2% -9.1% -3.1% Page 5

6 FINAL HEARINGS SCHEDULED The number of PFB s filed each year is not congruous with the number of Final Hearings scheduled for several reasons. First, Final Hearings are scheduled not only on PFB s, but on Motions for Attorney s Fees, Motions to Enforce Settlements and Motions for Advances. Second, scheduling of Final Hearings immediately upon receipt of a Petition or a Motion requiring a Final Hearing may result in scheduling conflicts requiring the Final Hearing to be re-scheduled. Final Hearings Scheduled Final Hearings Scheduled Change from Prior Year -29.% -23.7% 1.8% 2.5% 14.7% -6.9% Page 6

7 CONTINUANCES By statute, a Final Hearing is required to be conducted within two hundred and ten (21) days of the filing of the PFB. Occasionally however, a Final Hearing must be continued beyond such 21 day time period. In most instances such continuance is due to the appointment of an Expert Medical Advisor (EMA) or scheduling conflicts involving medical providers whose testimony is necessary. In 211, six (6) Final Hearings were conducted beyond the 21 day period, the specific reasons being set forth in the 211 Final Orders Report located on pages 16 and 17 hereof. Continuances Continuances Granted Change from Prior Year -38.8% -81.6% -27.3% 12.5% -33.3%.% Page 7

8 FROM FILING TO FINAL HEARING In 211, Final Hearings in the Pensacola District were conducted an average of one hundred twenty-one (121) days after the Petition or Motion requiring such hearing was filed, well below the 21 day statutory mandate. Average Number Days from Filing PFB to Final Hearing Statewide Average Average Days from Filing to Final Hearing Statewide Average from Filing to Final Hearing Change from Prior Year -19.8% 2.5% -2.5% -9.4% 29.9% -34.2% FINAL HEARINGS A Final Hearing is defined as a hearing involving the submission of evidence and the issuance of a Final Order. In 211, forty-six (46) Final Hearings were conducted in the Pensacola District. Final Hearings Held Statewide Average Final Hearings Held Statewide Average Change from Prior Year 43.5% 9.6% 21.1% -2.3% -16.4%.% Page 8

9 FINAL ORDERS The workers compensation statute mandates that a Final Order be issued within thirty (3) days of the conclusion of each Final Hearing. In 211, Final Orders were entered an average of 2.3 days after the conclusion of the Final Hearing. Average Number Days From Hearing to Final Order Statewide Average Average Days from Final Hearings to Final Order Statewide Average from Final Hearing to Order Change from Prior Year 1.5% 69.7% -25.9% -37.3% 7.7% -59.% OTHER HEARINGS HELD In addition to conducting Final Hearings and issuing Final Orders, claims generally require other hearings be conducted with other Orders being entered. Such hearings and Orders include discovery matters, advances, stipulations, and settlement hearings involving unrepresented individuals. In 211, the number of such hearings decreased 55.2% due to changes in the Rules of Procedure which required motion hearings be conducted only in exceptional circumstances. Page 9

10 Other Hearings Held Other Hearings Held Change from Prior Year -29.1% 73.1% -6.7% 8.3% 22.3% -55.2% SETTLEMENTS AND ATTORNEY FEES In 211, eight hundred and fifty-three (853) settlements totaling $27,36,765.8 with attorney s fees of $3,1, were approved in the Pensacola District. These settlements also resulted in the recovery of Child Support Arrearages of $443,932.29, bringing the total Child Support Arrearages collected by the Pensacola District since 22 to $4,479, Orders approving attorney s fees based upon settlement of a claim were entered on average 1.9 days after the parties filed their motion. No attorney s fee exceeding the statutory fee set forth in Ch (1) was approved in any of the 853 settlements. However, in 127 of the 853 attorney s fees approved, Claimant attorney s requested and were awarded fees less than the statutory fee. In other words, in 211, Claimant attorney s waived $169, in fees which they were legally entitled to receive from their clients. Total Settlement Amounts 4,, 35,, 3,, 25,, 2,, 15,, 1,, 5,, Page 1

11 Attorney Fees Approved on Settlements Child Support Recovered 5,, 4,, 3,, 2,, 1,, Average Settlement Amount 35, 34, 33, 32, 31, 3, 29, Settlement Amount $33,35,635 $31,689,61 $37,953,833 $26,61,39 $29,727,51 $27,36,765 Attorney Fees 3,868,969 3,711,7 4,48,378 2,872,149 3,43,612 3,1,573 Child Support 556, , , ,46 518, ,932 No. of Settlements Page 11

12 SIDE STIPULATIONS AND ATTORNEY FEES An employee s attorney is not limited to a fee based solely upon the settlement value of a claim. An attorney may be entitled to a fee based upon the value of benefits secured for the client prior to settlement. Many times, parties agree upon the amount of such fees and submit side stipulations for JCC approval. Such stipulated attorney s fees are based either on an hourly rate or the statutory rate based upon the value of benefits secured depending upon the date of accident. Orders Approving Attorney Fee Stipulations Amount of Stipulated Attorney Fees 2,, 1,5, 1,, 5, In 23, the legislature amended the statute eliminating, in most instances, payment of attorney s fees based upon an hourly rate. The intent of such amendment was to limit payment of attorney fees, whether by settlement or side stipulation, to a statutory fee based upon the value of benefits secured. In October 28, the Supreme Court in Murray v. Mariner Health ruled the 23 amendment did not eliminate a claimant s right to recover from an E/C a reasonable fee based upon an Page 12

13 hourly rate calculation even if the resulting fee exceeded the statutory fee. In response to Murray, on July 1, 29, the Legislature again amended the statute eliminating hourly fees entirely. This amendment however, applies only to dates of accident subsequent to July 1, 29. In 211, E/C s agreed in 166 of the 27 side stipulations submitted which were not subject to the 29 amendment to pay claimant attorney s fees based upon an average hourly rate of $ In 14 of these 166 hourly rate stipulations, the agreed upon attorney s fee exceeded the statutory fee. Percent of Stipulations Approved Above Statutory Rate Average Stipulated Hourly Attorney Fee Rate Amt. of Stipulated Attorney Fees $911,855 $1,356,864 $1,388,524 $97,736 $1,883,728 $87,412 # Side Stipulations # Stips Above Stat Fee % Above Stat Fee 23.3% 33.5% 34.7% 16.3% 27.8% 38.5% # Hourly Side Stips Avg. Hourly Rate $14.48 $ $ $179.9 $ $22.93 Page 13

14 ATTORNEY FEE HEARINGS When parties are unable to agree on the amount of a claimant s attorney s fee and thus are unable to submit a side stipulation, a final evidentiary hearing is necessary. In 211 the percentage of Final Hearings conducted where the sole issue tried was attorney fee entitlement and/or the amount thereof increased for the sixth consecutive year to 23.9%. Final Hearings on Amt. of Atty. Fees Amt. of Atty. Fees Awarded 16, 14, 12, 1, 8, 6, 4, 2, Percent of Final Hearings Addressing Amt. of Atty. Fees Page 14

15 Amt. of Atty. Fees Awarded $4,544 $15,758 $59,14 $148,291 $12,446 $28,57 Final Hearings on Atty. Fees % Final Hrgs. on Atty. Fees 3.8% 7.% 17.4% 18.2% 19.6% 23.9% TOTAL ATTORNEY FEES APPROVED As indicated above, an injured employee s attorney may receive a fee (1) based on the settlement value of a claim; (2) stipulation by the parties as to the amount of such fee; or (3) by Order of the JCC following Final Hearing in those instances where parties are unable to agree on the amount due. In 211, cumulative attorney s fees approved in the Pensacola District totaled $3,846, Fees From Settlement Fees From Stipulation Fees From Hearing 6,, 5,, 4,, 3,, 2,, 1,, Settlement Attorney Fees $3,868,969 $3,711,7 $4,48,378 $2,972,149 $3,43,612 $3,2,573 Stipulated Attorney Fees 911,855 1,356,864 1,388,524 97,736 1,863,868 87,412 Final Hearing Attorney Fees 4,544 15,758 59,14 148,291 12,446 28,57 Total Approved Fees $4,821,14 $5,83,692 $5,928,42 $4,91,176 $5,396,926 $3,846,492 Page 15

16 211 FINAL ORDERS REPORT Days to Claimant Type MH Date PFB Filed Days Appeal Order Date Order Lawson EM 1/4/11 11/1/1 64 1/4/11 York 1/11/11 8/1/ /13/11 2 VanNiekerk EM 1/18/11 12/8/1 41 1/18/11 McArthur EM 1/18/11 1/6/1 14 1/19/11 1 Newell EM 1/31/11 1/28/1 95 2/1/11 1 Kimmons FE 1/31/11 1/5/ /1/1 1 Duncan 1/31/11 5/8/1 257(1) 2/8/11 8 O Neill FE 2/8/11 11/12/ /9/11 1 Hale EM 2/14/11 11/3/1 76 2/15/11 1 Stravato EM 2/18/11 1/6/ /21/11 3 Rogers 2/28/11 3/3/11 327(2) 3/3/11 3 Franklin EM 3/2/11 2/8/11 3 3/3/11 1 VanNiekerk EM 3/7/11 1/28/ /7/11 Knight 4/5/11 7/2/1 271(3) pending 4/8/11 3 Johnson SFO 4/11/11 3/4/ /11/11 Virgadamo 5/3/11 1/18/1 197 pending 5/6/11 3 Bass SFO 5/1/11 4/29/11 1 5/11/11 1 Timolien SFO 5/1/11 4/7/ /1/11 1 Barchus 5/17/11 1/14/ /2/11 3 Newell FA 5/31/11 3/7/ /31/11 Beets FE 5/31/11 2/3/ /2/11 2 Gooden EM 6/6/11 1/27/ /7/11 1 Howard 6/14/11 8/2/1 298(4) 6/2/11 6 Mars EM 7/7/11 6/23/ /7/11 Thompson 7/12/11 2/18/ /14/11 2 Johnson SFO 7/25/11 6/17/ /25/11 Williams EM 8/1/11 5/19/11 74 pending 8/2/11 1 Lovelace FA 8/2/11 1/12/ /3/11 1 Williams FE 8/9/11 3/31/ /12/11 3 Tidwell EM 8/12/11 7/12/ /15/11 3 Cruz FE 9/6/11 5/26/ /8/11 2 Whitehurst 9/12/11 1/1/ /2/11 8 Thompson 1/4/11 5/6/ /6/11 2 Hawkins 1/11/11 11/16/1 329(5) pending 1/17/11 6 Hubbard 1/17/11 4/5/ /18/11 1 Ford FE 1/14/11 9/14/ /21/11 7 Crews FE 1/14/11 8/23/ /21/11 7 Beitchman FA 1/31/11 7/12/ /1/11 1 Edler 11/7/11 4/12/ pending 11/15/11 8 Caples EM 11/15/11 8/1/ /16/11 1 Stravato FA 11/29/11 8/24/ /3/11 1 Page 16

17 Fox EM 11/29/11 9/13/ /2/11 3 Cass EM 12/2/11 9/21/ /6/11 4 Kelly EM 12/9/11 11/1/ /9/11 Cunningham EM 12/9/11 1/26/ /9/11 O Connor 12/12/11 1/5/1 432(6) pending 12/15/11 3 (46) (12.5) (2.3) EM evidentiary motion FA fee amount FE fee entitlement SFO summary final order CUMULATIVE APPELLATE REVIEW SINCE 12/18/26: 273 Final Orders Issued/4 Appeals/ 27.5 Affirmed/ 5.5 Reversals/ 7 Pending FINAL HEARINGS HELD BEYOND 21 DAYS: (1) MH continued to consolidate with second Petition filed (2) MH continued to allow for scheduling of deposition of Dr. Timmons. (3) MH continued twice due to withdrawal of Claimant attorney s. (4) MH continued to allow additional mediation and due to attorney scheduling conflict. (5) MH continued to appoint EMA. (6) MH continued to appoint EMA FINAL ORDERS ISSUED BEYOND 3 DAYS: None. Page 17

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