PENSACOLA DISTRICT 2010 ANNUAL REPORT

Transcription

1 PENSACOLA DISTRICT 21 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 Order Summary Page 2

3 OVERVIEW Workers Compensation is governed by the provisions of 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 disputes arise as a result of industrial accidents 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 injured workers not represented by attorneys and approving attorney s fees due injured workers who are represented by counsel. Requests for approval of such attorney fees arise when parties resolve disputed 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 providing user friendly access to District scheduling and personnel information as well as every Final Order issued since November 15, 21. In the summer of 25, the Pensacola District began offering parties the opportunity to e-file pleadings and other litigation documentation. In November 25, e-filing capabilities were available throughout the entire OJCC system and became mandatory in October 21 for all represented parties. In 26 the Pensacola District began operations as a paperless office. In 27, the Pensacola District was the first to implement e-service of Orders and Notices to represented parties. E-service has resulted in a direct and substantial cost savings for both the Pensacola District and the Department of Administrative Hearings (DOAH). In October 29, DOAH began implementation of e-service throughout all OJCC District Offices. In 21, in recognition of the significant cost savings of e- service, the Pensacola District was honored with a Prudential-Davis Productivity Award of Distinction. 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 ten (1) new claims each month filed each month in the Ft. Lauderdale District. VTC was also utilized from April through October of 21 when the Pensacola and Jacksonville Districts oversaw day to day operations, motions and Final Hearings of the Lakeland District while such district awaited the appointment of a new Judge of Compensation Claims. 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. PENSACOLA DISTRICT ACHIEVEMENTS 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. 23 Implementation of District Deputy Clerk process. Investigation and implementation of digital hearing recording. Upgrade of computer hardware from Pentium processors. Page 4

5 PETITIONS FOR BENEFITS In 29, Petitions for Benefits ( PFB ) filed in the Pensacola District increased for the first time since 22. In 21, the number of Petitions filed in the Pensacola District increased once again despite a near double digit decrease Statewide Petitions Filed in PNS Statewide Average per JCC PFB s Filed PNS District Change from Prior Year -28.% -21.% -12.% -2.7% 1.% 12.9% Petitions Filed Statewide 96,89 9,955 82,67 71,979 72,31 65,5 Avg. per JCC Change from Prior Year -16.4% -6.1% -9.2% -12.9% 7.2% -9.1% Page 5

6 FINAL HEARINGS SCHEDULED As a result of the increase in the number of Petitions filed in the Pensacola District in 21, there was a significant increase in the number of Final Hearings scheduled. The number of PFB s filed each year however, 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 and motions requiring evidentiary hearings such as Motions to Enforce Settlements. Secondly, by scheduling Final Hearings immediately upon receipt of a PFB or motions requiring such hearings, the date selected by this office may result in a conflict requiring re-scheduling. Final Hearings Scheduled Final Hearings Scheduled Change from Prior Year -22.8% -29.% -23.7% 1.8% 2.5% 14.7% Page 6

7 CONTINUANCES Petitions received in the Pensacola District are initially scheduled for Final Hearing approximately one hundred and forty (14) days after filing. As previously indicated, scheduling conflicts or unforeseen circumstances may result in the continuance of a Final Hearing. Occasionally, a Final Hearing must be continued beyond the 21 day time period in most instances due to appointment of an Expert Medical Advisor (EMA) or scheduling conflicts of medical providers. In 21, six (6) Final Hearings were conducted beyond the 21 day period. Continuances Continuances Granted Change from Prior Year -25.8% -38.8% -81.6% -27.3% 12.5% -33.3% Page 7

8 FROM FILING TO FINAL HEARING By statute, the Final Hearing is required to be conducted within two hundred and ten (21) days of the filing of the PFB. In 21, Final Hearings in the Pensacola District were held on average one hundred eighty-seven (187) days after the Petition was filed, well within the 21 day 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 -6.% -19.8% 2.5% -2.5% -9.4% 29.9% FINAL HEARINGS A Final Hearing is defined as a hearing involving the submission of evidence and the issuance of a Final Order. In 21, 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 -3.3% % 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 21, Final Orders were entered on average 5.6 days of 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 - 33.% 1.5% 69.7% -25.9% -37.3% 7.7% OTHER HEARINGS HELD In addition to Final Hearings, claims often require hearings and Orders other than a Final Order. Such hearings include discovery motions and settlement hearings for unrepresented individuals. In 21, the number of such hearings increased 22.3%, most likely due to hearings conducted in the Lakeland District while awaiting the appointment of a new JCC. Page 9

10 Other Hearings Held Other Hearings Held Change from Prior Year -44.7% -29.1% 73.1% -6.7% 8.3% 22.3% SETTLEMENTS AND ATTORNEY FEES In 21, eight hundred and eighty-five (885) settlements totaling $29,727,5.55 with attorney s fees of $3,43, were approved in the Pensacola District. These settlements also resulted in the recovery of Child Support Arrearages of $518,121.33, bringing the total Child Support Arrearages collected by the Pensacola District since 22 to $4,479, Orders approving the settlement attorney s fee requests were entered on average 2.2 days after the parties filed their motion. No attorney s fee in any of the 885 settlements approved exceeded the statutorily presumed fair fee set forth in Ch (1). However, in 16 of the 885 attorney s fees approved, Claimant attorney s requested and were awarded a fee less than the statutory fair fee. In other words, in 21, Claimant attorney s waived $111, in fees they were legally entitled to receive from their clients. Total Settlement Amounts 4,, 3,, 2,, 1,, Page 1

11 Attorney Fees Approved on Settlements Child Support Recovered 5,, 4,, 3,, 2,, 1,, Average Settlement Amount 4, 3, 2, 1, Settlement Amount 39,167,637 33,35,635 31,689,61 37,953,833 26,61,39 29,727,51 Attorney Fees 4,558,49 3,868,969 3,711,7 4,48,378 2,872,149 3,43,612 Child Support 526, , , , ,46 518,121 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 also obtain a fee based upon the value of benefits secured for the client prior to settlement. Many times, the parties agree upon the amount of such fees and submit side stipulations for JCC approval. Such stipulated attorney fees are based either upon an hourly rate or the statutory rate based upon the value of the benefits secured (25/2/15% or 2/15/1% depending on the date of accident). Orders Approving Attorney Fee Stipulations Amount of Stipulated Attorney Fees 2,, 1,5, 1,, 5, Percent of Stipulations Approved Above Statutory Rate Page 12

13 Average Stipulated Hourly Attorney Fee Rate Amt. of Stipulated Attorney Fees $1,566,7 $911,855 $1,356,864 $1,388,524 $97,736 1,883,728$ # Side Stipulations # Stips Above Stat Fee % Above Stat Fee 14.3% 23.3% 33.5% 34.7% 16.3% 23.8% # Hourly Side Stips Avg. Hourly Rate $ $14.48 $ $ $179.9 $ In 23, the legislature amended the statute eliminating, in most instances, payment of attorney fees based upon an hourly rate. The intent of such amendment was to limit payment of attorney fees, whether pursuant to 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 the E/C a reasonable fee based upon an hourly rate calculation which may exceed the statutory fee. Of the 287 hourly rate based side stipulations submitted for approval in 29, 266 were for dates of accidents which would have been subject to the 23 amendment. Following the decision in Murray however, in 123 of the 266 cases, the parties stipulated to payment of attorney fees of at least $363, greater than would have been payable utilizing the statutory fee formula. Page 13

14 ATTORNEY FEE HEARINGS When parties cannot agree on the amount of attorney fees and therefore are unable to submit a side stipulation, a final evidentiary hearing is held before the JCC. In 21, 19.6% of all Final Hearings conducted in the Pensacola District were hearings solely addressing attorney s fees. Final Hearings on Amt. of Atty. Fees Amt. of Atty. Fees Awarded 25, 2, 15, 1, 5, Percent of Final Hearings Addressing Amt. of Atty. Fees Page 14

15 Amt. of Atty. Fees Awarded $22,535 $4,544 $15,758 $59,14 $148,291 $12,446 Final Hearings on Atty. Fees % Final Hrgs. on Atty. Fees 12.% 3.8% 7.% 17.4% 18.2% 19.6% TOTAL ATTORNEY FEES APPROVED As discussed above, an injured employee s attorney may receive a fee (1) based on the settlement value of a claim; (2) when the parties stipulated as to the amount of the fee due; or (3) when the JCC issues an Order awarding a fee in those instances where parties have been unable to agree on such amount. In 21, cumulative attorney s fees approved in the Pensacola District amounted to $5,396, Fees From Settlement Fees From Stipulation Fees From Hearing 6,, 5,, 4,, 3,, 2,, 1,, Settlement Attorney Fees $4,558,49 $3,868,969 $3,711,7 $4,48,378 $2,972,149 $3,43,612 Stipulated Attorney Fees 1,566,7 911,855 1,356,864 1,388,524 97,736 1,863,868 Final Hearing Attorney Fees 22,535 4,544 15,758 59,14 148,291 12,446 Total Approved Fees $6,327,14 $4,821,368 $5,83,692 $5,928,42 $4,91,176 $5,396,925 Page 15

16 21 FINAL ORDERS Claimant Type MH Date PFB Filed Days Order Date Order Days to Richards 1/27/1 8/26/8 518 (1) 1/29/1 2 Cotton EM 2/9/1 1/27/9 15 2/9/1 Jones EM 2/9/1 1/8/1 32 2/1/1 1 Skipper 2/22/1 8/28/ /23/1 1 Martin 2/23/1 9/8/ /2/1 7 Glenn 2/24/1 9/14/ /8/1 12 Jones 2/24/1 8/17/ /8/1 12 Dandridge 3/5/1 11/16/9 19 3/9/1 4 Watson 3/8/1 8/26/9 194 PCA 3/11/1 3 Berman EM 4/12/1 8/31/ /16/1 4 Lovelace 4/13/1 11/4/9 16 4/22/1 9 Hildreth FA 4/2/1 12/22/ /27/1 7 Biro 5/5/1 12/3/ /6/1 1 Bartsch FA 5/1/1 1/26/1 14 5/11/1 1 Woods 6/1/1 11/5/9 28 6/3/1 2 Lovett FA 6/21/1 2/9/ /22/1 1 Holland EM 6/22/1 2/24/ /23/1 1 Penton 6/2/1 12/3/ /4/1 2 Feacher 6/22/1 1/25/ /29/1 7 Meneses 6/29/1 3/16/1 15 6/3/1 1 Stravato FA 7/19/1 3/29/ /22/1 3 Jones FE 7/19/1 2/23/ /22/1 3 Yukenavitch 7/21/1 11/3/9 233 (1) 723/1 2 Richards FA 7/26/1 4/6/ /3/1 8 Brito(LKL) FE 8/11/1 12/18/ /12/1 1 Kirnes(LKL) 8/1/1 2/9/ /12/1 2 Moore(LKL) EM 8/1/1 7/15/1 26 8/13/1 3 WilliamsEM 8/3/1 4/19/ /31/1 1 Carter(LKL) 8/31/1 2/25/ /2/1 2 Fuerte(FTL) 9/8/1 3/2/1 19 9/15/1 7 Ferreira 9/2/1 11/9/9 315 (2) 9/21/1 1 Lewis 9/22/1 7/26/ (3) 9/28/1 6 Goodall 9/28/1 5/2/ /29/1 1 Rutherford FA 1/5/1 1/27/1 251 (4) 1/12/1 7 Page 16

17 Byrd(LKL) 1/21/1 7/1/9 --- pending 11/2/1 13 Johnson(LKL) 1/19/1 4/23/ /3/1 15 Bell(LKL) 1/13/1 9/2/ /9/1 27 Berman FE 11/8/1 5/26/ /1/1 2 Escobar(FTL) 11/3/1 1/8/9 391 (5) 11/17/1 14 Avery 11/15/1 4/28/ /22/1 7 Stone 11/15/1 5/2/1 179 pending 12/2/1 17 Rogers EM 11/3/1 8/17/ /3/1 3 Long 11/29/1 7//22/ /6/1 7 Johnson EM 11/29/1 1/2/1 4 pending 12/7/1 8 Wible 12/7/1 3/8/1 218 (6) 12/2/1 13 Lovelace 12/13/1 5/2/ /2/1 7 (46) (187.15) (5.6) EM evidentiary motion FA fee amount FE fee entitlement SFO summary final order APPELLATE REVIEW: 4 Appeals/ 1Affirmed/ Reversal/ 3 Pending REVERSALS None FINAL HEARINGS CONCLUDED AFTER DATE OF HEARING: None FINAL HEARING HELD BEYOND 21 DAYS: (1) MH continued as Dr. Richman unable to schedule deposition prior to originally scheduled Final Hearing. (2) MH re-scheduled following Claimant s failure to appear. (3) MH continued as first EMA stricken, second withdrew and Claimant failed to appear at initial appt. with third EMA. (4) MH continued to consolidate with Motion to Determine Amount Due necessary re value of future benefits. (5) - MH continued to afford uninsured Employer opportunity to retain counsel. (6) MH continued as Dr. Davis unable to schedule deposition prior to originally scheduled Final Hearing FINAL ORDERS ISSUED BEYOND 3 DAYS: None Page 17