NAWCJ

February President’s Page



February 2020

February? FEBRUARY!?!?!? How can it be February already? I haven’t finished my Christmas shopping yet, and you’re telling me it’s February? Criminy! Where does the time go?

Greetings, my fellow adjudicators. Yes, I guess it is February, and 2020 is off to a running start. After a holiday lull, litigation is starting to ramp up. I’m not yet seeing a sudden surge in case filings or hearing settings, but I do perceive what appears to be a steady and gradual increase in activity. While the tempo is up, my February dockets are still short of capacity. I have available “slots” on virtually every docket, even as dockets are starting to fill in March and April. Go figure. It seems that the biggest impediment to a claim getting to hearing is finding a date that works with both attorneys’ calendars.

When I do have a docket, I try to be proactive. I intend to use valuable hearing time resolving disputes that cannot be resolved informally. I review court files and exhibits well in advance of scheduled hearings. I reach out to the parties a few days prior to the schedule hearing, to ensure that a hearing will be necessary. I invite discussion as to the issues for the hearing, and whether there are issues that can be resolved short of hearing. This simplifies and expedites any hearing that does take place.

Probably my most common hearings are those where the claimant is requesting additional medical treatment. If a claimant has been provided medical care, and has been released as having achieved maximum medical improvement, a request for additional treatment must be supported by a recommendation for that additional treatment from another physician. Where there thus is a demonstrated dispute as to whether additional medical care is necessary and appropriate, I am authorized by statute to refer the claimant for a court-ordered neutral examination (IME—independent medical examination) to break the “tie.”

Where a review of the file suggests that a court-ordered IME is the likely outcome, I contact counsel by email, advise that I have reviewed the pleadings, summarize the issues as I understand them, and suggest an IME in lieu of waiting for a hearing. Even if there is some issue that I may not have considered, and an evidentiary hearing is ultimately necessary, I may nonetheless glean valuable information about that issue in advance of the hearing. If there is no collateral issue, counsel almost always accept and endorse my suggestion, to save both time and money. An IME moves the case, gains valuable input from an impartial physician, and leads to a resolution of the issue before me.

I recognize that counsels’ time is valuable. I also recognize that, while the employer’s attorney may be being paid “windshield time” to travel to/from a hearing, the same cannot be said for the claimant’s attorney (who doesn’t get paid, for the most part, until the claim is resolved). For both sides, time not spent on the road is time better applied to other tasks.

[I should note that my office and home courtroom are in Salina, in north-central Kansas. I “ride a circuit” to four other hearing locations in north-central Kansas. Most of the attorneys that appear before me are coming from the metropolitan areas of Kansas City (170 miles distant), Topeka, or Wichita (both about 100 miles distant). A trip to one of my Salina dockets is at least a half-day, if not a full day, commitment for most attorneys. A trip to one of my out-of-town docket adds another couple of hours to the tally. Both sides appreciate the opportunity to avoid that time out of the office.]

In advance of a scheduled hearing, and even in lieu of scheduling a hearing, I invite and encourage discussion of the issues with me by telephone conference call and/or email chain, involving all parties of record (no ex parte discussion of the issues). Virtually anything that needs to be said can be said through either medium, without waiting for a formal hearing or spending a day out of the office traveling to and from a hearing. I can give my “two cents’ worth” informally, and the parties, so-informed, can decide whether to go forward with holding or scheduling a hearing.

Some hearings are necessary. Often there are factual disputes and a hearing is the vehicle by which the credibility of the claimant and/or other fact witnesses may be assessed and operative facts established. Other times, hearings and formal decisions are necessary to preserve the right to appellate review. The vast majority of hearings, however, involve procedural and technical issues in compensable claims, issues that are susceptible of resolution today, with a little frank discussion, rather than waiting weeks or months for a formal hearing.

I hold most of my Pre-Hearing Settlement Conferences by telephone, and am available for a conference call at either party’s request. I also hold hearings by CourtCall, where a hearing is necessary, but travel to/from a hearing makes no economic sense (e.g., where the claimant lives out of state, and the cost of travel to/from a hearing, including time away from work, could well exceed the value of the benefit sought).

I am always open to trying something new. If you have suggestions for managing dockets and streamlining appearances, please share them with me and the rest of NAWCJ. To reward your philanthropy, a custom-engraved NAWCJ pen will be promptly mailed to the first to share her or his tips.

Next month, on March 5 and 6, NAWCJ will host a “Boot Camp” in Nashville for the new (and newer) adjudicator. A “Boot Camp” in this context is a short, intensive, but broad-ranging primer on the role and function of a workers compensation adjudicator, presented by seasoned adjudicators from across the country. This is the second formal boot camp offered by NAWCJ (although NAWCJ informally provided instructors and materials to the inaugural class of Tennessee adjudicators, after that state overhauled its workers’ compensation act and created a new workers’ compensation system in 2014). In the future, NAWCJ will continue to provide the new judges’ “Boot Camp” each spring, in addition to the longer, more intensive “judiciary college” presented by NAWCJ each August in Orlando, in conjunction with WCI’s Workers’ Compensation Educational Conference. In this issue of the Lex and Verum, this March’s “Boot Camp” is profiled and the agenda presented. There’s still time to join us in Nashville, so check out the information on our website, NAWCJ.org. The curriculum for August, 2020 in Orlando is in its final stages of preparation, and will be shared in a future issue.

Elsewhere in this edition of the Lex and Verum, guest columnist Tim Robinson shares his views on some of the most bizarre workers’ compensation cases of 2019. Are any of yours on his list? Did you have any unusual cases that should have made his list? Be the first to share your novel claim or defense (but please change the names to protect the innocent), and I’ll mail you a famous, limited edition, custom-engraved NAWCJ pen.

I’m still recruiting volunteers to digest past issues of the Lex and Verum, such that an index can be constructed to facilitate topical searches of those past editions. If you are willing to help, please email me at Bruce.Moore@ks.gov.

I believe I’ve taken enough of your time, and I need to write a decision, so it’s time to close. I am a big fan of Garrison Keillor and his “Writer’s Almanac.” With due credit, I endorse and adopt his closing, “Be well, do good work, and keep in touch.” I couldn’t say it any better. Talk to you next month.

Bruce