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The Florida workers’ compensation bar, already hobbled by last year’s legislative restrictions on legal fees for representing injured employees, is now awaiting with dread the implications of an unwelcome ruling by the state Supreme Court. On Thursday, the court scrapped the 31-year-old system under which it set the procedural rules for cases brought by injured workers who were denied compensation by insurers for injuries or illnesses suffered on their jobs. The unanimous decision declared that when the Legislature empowered the court to write such rules in 1973, its action was unconstitutional. Such regulations, the justices ruled, are the exclusive province of the Department of Administrative Hearings, an agency of the Bush administration — which claimant attorneys regard as implacably opposed to worker rights. “It’s the last nail in the coffin, and the lid is already closed,” said Frederic M. Schott, chairman of the rules committee of Florida Workers’ Advocates, an association of claimants’ attorneys in Orlando. “Florida workers are going to get reamed.” Jeffrey I. Jacobs, a South Miami lawyer who heads The Florida Bar’s workers’ compensation rules committee and argued against the decision before the Supreme Court, agreed. “Jeb Bush has destroyed the system of worker protection in Florida,” he said. “This is part and parcel of last year’s legislation that limited legal fees in workers’ compensation cases so much that lawyers are rejecting clients with legitimate claims. It’s not anti-lawyer, it’s anti-employee — and therefore it’s anti-employee-lawyer.” Such apocalyptic views are nonsense, according to Mary Ann Stiles, chief counsel of Associated Industries of Florida, who filed a brief in favor of the decision. “Lawyers are just upset because now they can’t accomplish through the rules what they couldn’t do legislatively.” S. Scott Stephens, deputy chief judge of the Office of Judges of Compensation Claims, which after the latest decision now exclusively writes the rules, added that the court “wanted to remove the process from the control of the entrenched members of a secret society. It sometimes looked like a system run by attorneys for the benefit of attorneys.” When employees are injured on the job or made ill by conditions in the workplace, their first claim is against the insurance company that supplies coverage for employers. But if they are dissatisfied with the insurer’s decision, they may take their case to one of the 31 appointed judges in the Office of Judges of Compensation Claims. The rules defining workers’ compensation claims — what constitutes disability, for example — are set by statute. But since 1973, by order of the Legislature, the regulations governing the procedures to be followed or the conduct of attorneys on either side have been promulgated by a committee of The Florida Bar and approved by the Supreme Court. In 1993 the Legislature empowered the OJCC to write its own rules, but provided that until they were adopted the Supreme Court’s regulations would still apply. For reasons that remain obscure, the OJCC did not use its new powers, so in 2002 the Legislature acted again. This time it assigned responsibility for writing the rules to the Department of Administrative Hearings — an office that handles disputes within a dozen agencies, such as the Department of Education, the Department of Children and Families and the Department of Environmental Protection. Workers’ compensation cases are still treated as a separate section of DOAH. Under its new mandate, DOAH promulgated its own rules and last year adopted them. Since then, claimants and defense attorneys alike have operated in an environment where it was not clear whose rules applied. “It was essential that the Supreme Court settle the question,” Jacobs said. But he, like many other workers’ compensation attorneys, would have preferred that the Supreme Court retained its authority to write the rules. They cite two reasons for their view. First, they say, the system that existed over the past three decades better assured the fairness of the rules. Once every two years, a committee of The Florida Bar — made up of 40 members, divided among claimant and defense attorneys specializing in workers’ compensation and augmented by four or five judges — proposed amendments to the rules. These were approved by The Florida Bar’s board of governors and published for public comment, then approved by the Supreme Court and again published for comment before enactment. This system, its proponents argue, provided a degree of oversight not present under DOAH’s rule-writing procedure. Stephens disputes that claim. The level of scrutiny, he said, is now much greater. From a list of some 50 nominees, DOAH has selected a rules committee of 14 members — also including representatives of the claimant and defense bar and three judges. It will hold the first of three public meetings in Tallahassee Wednesday, soliciting public comment before making suggestions for amendments. Ultimately only Stephens and Chief Administrative Law Judge Robert S. Cohen will sign off on the rules. But there are, Stephens said, internal review processes, such as an administrative procedures committee. “There are constraints on what we can do. This is part of a concerted effort to make the system less the property of the attorneys involved.” More substantively, claimant attorneys charge that some of DOAH’s rules are not as fair as those they replaced. One of the favorite examples they cite concerns impeachment and rebuttal witnesses in compensation cases. Under Supreme Court rules, attorneys on both sides were required to list all witnesses 90 days in advance of a hearing. DOAH’s regulations exempted impeachment and rebuttal witnesses — which frequently include, for example, those who testify about surveillance proving that a person who claimed disability is in fact able to play golf or work at another job. Springing such a witness at the last minute puts opposing lawyers at a disadvantage, Schott said, because there is no time to conduct an investigation or test the authenticity of the evidence. With a digital computer, he added, almost any image can be created. Jacobs, who is not at all happy about DOAH’s action, conceded that it need not worry a competent attorney. The Supreme Court, he said, has ruled that an attorney for either side can demand to know if the opposition plans to use surveillance evidence. If an unwary lawyer fails to ask the question, he can be blindsided, but it will be his own fault. Moreover, Stiles said, if they don’t like the surveillance rules, they have the opportunity to go before the DOAH rules committee and plead for changes. Schott is unimpressed. “She has been working to kill the workers’ compensation system since 1987,” he said, “so I have my doubts about the transparency of the DOAH rule-making.” Jacobs is not so much concerned about the here and now as about the future. Cohen and Stephens, he said, are eminently fair and trustworthy. The problem lies in what happens in the future when they may be replaced by individuals more inclined to favor business interests at the expense of workers. Much more pessimistic is Schott: “I predict that within two years there will be no lawyers specializing in workers’ compensation cases in Florida. It’s exactly what happened in Texas. George W. Bush did the same thing. I was in San Antonio recently and the Yellow Pages had just two attorneys listed as handling workers’ compensation cases.”

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