My letter to Hillary Clinton

Dear Sen Clinton,

I was thrilled to be able to stand in the foyer of the Leesfield home in Miami and listen to you speak about your impressions of the problems we face as a nation, hear your suggestions for solutions and answer questions about problems that affect all of us as occupants of this part of the world we call the United States of America.

You might remember me as the supporter who provided you with the countdown clock to your inauguration.

Alexander Heckler, one of your national finance co-chairs, suggested that if I have concerns about issues you have not previously addressed, I should send them in writing to your campaign management, who assist you in determining your position statements.

In your letter to me, dated February 20, 2007, you wrote: "And let’s talk about how we can repair the basic bargain of America: that if you work hard and play by the rules, you and your family will have the tools to make a better life".

For the past 33 years I have represented, as counsel, individuals who have had the misfortune of being injured at work. One area where this bargain of America fails to deliver is the area of workers’ compensation. The various state workers’ compensation schemes are not only a disgrace; they violate a fundamental principal of our democracy: the 7th Amendment to the U.S. Constitution, the right to trial by jury. Not even an Antonin Scalia or a Clarence Thomas could (or would) interpret the Constitution to allow for this exclusive alternative remedy to jury trials. Strict construction without judicial meddling could never justify the imposition of Marshal Law to remove from one group of citizens -- those injured on the job -- the rights afforded all other citizens, even felons serving time.

What is so unique about this issue is its place in connection with your current opposition: a former Senator and trial lawyer and an American of African decent. The workers’ compensation issue does not affect all equally. A disproportionate number of Americans who get the short end of the workers’ compensation stick are minorities. They are the ones least able to protect themselves from income loss by purchasing disability insurance. And, they are most likely to suffer the greatest personal and financial losses when hurt at work.

Neither John Edwards nor Barak Obama seem to care about the real victims of the original tort reform -- the families devastated by an injury to the breadwinner, the resulting lack of income and the poor medical care that is the norm in the workplace injury setting.

Former President Richard Nixon took the lead in 1970 by pressing for legislation that became known as the Occupational Safety and Health Administration. Part of OSHA mandated a study of state workers’ compensation laws. The National Commission on State Workers’ Compensation laws reported to the President and Congress in 1972 that by and large the state schemes for compensating injured workers were neither fair nor adequate. The Commission also stated, unanimously, that the various states were using their workers’ compensation laws as economic weapons in a form of civil war to attract industry with the promise of low premiums (and poor benefits). The Commission suggested that the Federal Government enact minimum standards for state workers’ compensation laws. It never happened.

The time has come.

Bush ‘43', when he was Governor of Texas, destroyed what was left of the workers’ compensation law in Texas and attracted half of Silicon Valley to Austin. Jeb Bush, in 2003, similarly decimated Florida’s workers’ compensation benefits and abolished the Division of Safety. Florida continues to attract business and research facilities with what are the worst workers’ compensation benefits in the nation.

If you talk to your friends and neighbors, few will be touched by the workers’ compensation nightmare. But your friends and neighbors and mine exist at the upper 2% of the nation in terms of income. Speak to your electrician, your plumber, your carpenter, your gardener and Chelsea's former teachers and you will be shocked by the horror stories about injured workers being starved into settling claims for pennies. Just yesterday Eliott Spitzer recognized how bad the workers’ compensation law is in New York and vowed to do something about it. Without Federal assistance, he will likely fail at meeting any of the goals set forth by the National Commission in 1972.

Please consider adopting as one of your goals the passage of a minimum standards bill like the bi-partisan one proposed by Williams/Javits in 1973 (S.208). The main opposition to that effort at the time came from the states themselves, not business or insurance or labor or academia.

Thank you,
Mark L. Zientz, Esq.
9130 S. Dadeland Blvd., Suite 1619
Miami, Fl. 33156

Agenda Item for WILG Board Meeting March 2, 2007

This Friday Jon Haber CEO of AAJ will be present in San Antonio to hear a discussion regarding the relationship between WILG and AAJ (formerly American Trial Lawyers Assn.). I have submitted the following in support of my position that AAJ must be required to advance the cause of injured workers and their families to a much greater extent than at present in order to continue to get the support and dues money from workplace injury lawyers like myself. I have quit AAJ over this issue. I am open to reactivating my membership if AAJ will go to bat, big time, for injured workers and their families.


Our founding fathers would turn over in their graves if they were made aware of the current state of the laws in this country regarding the rights of labor to redress wrongs against management for injuries on the job, even for gross negligence in many situations. Here in FloriBush, the WC law now reads (and remember, this is the exclusive remedy):
Coverage: "The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and scope of employment. The injury, its occupational cause, and any resulting manifestation or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. (MCC is defined as more than 50% of the cause as compared to all other causes and can only be proven by objective medical evidence). In cases of occupational disease or repetitive trauma, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable".
It goes on and gets worse. And the employee may only present testimony in support of his claim from ONE IME that he has to pay for himself. Other medical testimony can only come from the Employers Authorized treating doctor(s), the employers IME or an Expert medical advisor (whose opinion is presumed to be correct) chosen form a list of carrier whores who were pressured to apply for these positions by the carriers.
Employers can only be sued if they don't have required coverage (and which ones of those can afford to pay a judgement?), or "if the employer deliberately intended to injure the employee" (in which case there is no coverage under any policy of insurance) or if "the employer engaged in conduct that the employer knew, based upon prior similar accidents (the first and second dog bites are free), or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgement about whether to perform the work" (or quit, or be fired!). And again, what insurer will insure against this intentional conduct? Emphasis and commentary added.
THIS IS THE EXCLUSIVE REMEDY. Employers, whose business locations in FloriBush will be inspected by OSHA once every 216 years (according to government statistics) can be as ruthless and unsafe as they desire. FloriBush disbanded the Florida Division of Safety in 2003!
And this is not to mention that the injured worker who wants to try to get the meager benefits that are provided (FloriBush no longer provides any compensation for partial loss of wage earning capacity) and who needs the help of counsel, cannot get an attorney except in the biggest dollar cases because fees for lawyers representing injured workers, (but not lawyers representing employer/carriers) are restricted to roughly 10% of the benefits they achieve. And the lawyer has to lay out the costs (including the IME) and if the case cannot be proved up to the standards set forth above, the injured worker can be made to pay the carriers costs!
In researching the law of Master and Servant, which was so liberal as to cause employers to run, not walk, to state legislatures in the early part of the 20th century and beg for the enactment of employer protection acts (now called WC laws), I discovered that the Master/Servant relationship is a lot like the relationship of the seaman to the ship in Jones Act claims. If the worker gets injured on the job, the job must not have been a safe place to work. The duty to provide a safe place to work, to provide proper training, to provide adequate numbers of co-workers to do the job safely, to provide the proper supervision, to provide the proper equipment, to keep the number of hours worked to a reasonable number, are all duties, the breach of which can lead to responsibility for injury. HOW DAMNED HARD IS IT TO PROVE NEGLIGENCE IN MOST CASES?
Here in FloriBush plaintiffs in actions at law can use their group insurance for medical care. Not so with WC claimants. Plaintiffs can borrow against their recoveries while the case progresses, not so with WC claimants. Plaintiffs can sign retainer agreements providing for up to a 40% contingent fee, no so injured workers. Plaintiffs can use as many expert witnesses to prove their cases as the judge will allow. Compensation claimants get ONE expert. Plaintiffs can prove their cases by a preponderance of the evidence, workers compensation cases, of some types, require "clear and convincing" evidence. Plaintiffs can be paid for pain and suffering...shall I go on?
The following words are not mine, but they reflect my frustrations, my sentiment and my call for help at all levels:
"The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world...for depriving us in many cases, of the benefit of trial by jury..." Declaration of Independence, July 4, 1776.
The Bill of Rights (VII) requires trial by jury in all civil matters over $25.00 in value. But not for employees injured by their employers.
The Florida Constitution of 1838 and to the current:
"that the right to trial by jury shall be secure to all and remain inviolate". Except we can violate it if the rights of an injured worker are at stake.
Another of Jefferson's complaints against the King were that he made Judges dependent upon his will. In FloriBush compensation judges are just so. Chosen by a process that excludes the voters and excludes the Bar. And there is no qualifications committee to assist in their removal, only the Governor can do that.
If your life, liberty of your ability to make a living were in the balance, would you trust it to a Bush appointed Judge or to a jury? This question qualifies as a 'no-brainer'.
I can't do it alone. I can't make this outrage public alone. I can't file 50 suits challenging the constitutionality of all state workers' compensation laws alone. Neither can Florida Workers Advocates, and neither can WILG. But AAJ can. We must demand it. The system will not change until it is seriously challenged, either by the Federal Government enacting Federal Minimum Standards for State WC laws, or through the courts exposing WC laws for what they are, unnecessary, illegal and oppressive, all to the benefit of business at the expense of the citizenry.

Insurance Industry Antitrust Exemption

The Republicans, of all people, have introduced legislation in the Senate with democratic support and expect bi-partisan legislation to be introduced in the House as well to remove the anti-trust exemption granted to insurance companies by the McCarran-Ferguson Act. This legislation, if passed will provide the States and the Federal government with the tools needed to rein in runaway rates and other abuses related to the claims handling business of insurance. This legislation is long overdue and should be supported by anyone who has to deal with the insurance industry. A more even playing field will result from passage. Please contact your senators and your representatives and advise them you support this bi-partisan legislation. The tide it is a-changing. 699 (days left in office for G.W. Bush)

A great loss

Yesterday the workers' compensation community lost a valuable asset. We lost a gentle giant who represented the interests of injured workers for over 30 years. He was a great lawyer, a great friend to the workingman and a great family man. He will be missed more that one can imagine. He was bright and personable and one great lawyer. I had the privilege to work with him, learn from him and emulate him. David Harris Levine, rest in peace. My heartfelt sympathies to his family, his partners, his associates and his employees, all of whom loved him and will miss him very much.

National Minimum Standards and Hillary

If injured workers are ever to regain their diginty without repeal of all workers' compensation laws, there must be a dialog and debate in congress about national minimum standards for state workers' compensation laws. Hillary can make this an issue. Either in the Senate or in the campaign or in the white house. I can get her ear and make sure she knows of the problems and the solutions. I need your contributions to make this pitch a reality. This is the best bi-partisan issue she can hook onto. A Nixon administration idea, a unanimous national commission report which included insurance companies, business, academia, labor and only the states agansnt it!
Please consider a contribution NOW, on your credit card at this site http://www.hillaryclinton.com/contribute/E6X7 even $100.00 makes a difference. Maximum is $4,600.00 to November 2008 per person.
Do it for yourself, for injured workers and the people yet to be injured on the job.

Request for Rule Repeal

The following e-mail has been sent to the Chief Judge of DOAH, Bob Cohen and the Deputy Chief JCC, David Langham. You may want to weigh in yourself if you agree with the analysis.

ELECTRONIC MAIL bob_cohen@DOAH.state.fl.us, Judgelangham@yahoo.com
To:Chief Judge Robert Cohen, Deputy Chief Judge David Langham
From: Mark L. Zientz, Law Offices of Mark L. Zientz, P.A., Esquire
Reply to: mark.zientz@mzlaw.com
Matter: Rule 60Q-6.122(3) Rules of Procedure for Workers’ Compensation Adjudications (RPWCA) "A motion for rehearing does not toll the time within which an order becomes final or an appeal may be filed".
Date: January 22, 2007
COMMENTS: Hon. Cohen, It has come to my attention that the rule identified above as one of the RPWCA rules that migrated from the rules which were repealed by the Supreme Court (Rule 4.141(c) to be specific) is an unauthorized intrusion by DOAH into the area of appellate rulemaking. The DOAH rule also lacks statutory support and in fact the statute reserves the right to make such rules to the Supreme Court.
The DOAH rule creates a difference between civil appeals and workers’ compensation appeals. Jurisdiction of the 1 DCA must be invoked in civil cases 30 days from the date of the order or 30 days from resolution of a timely filed motion for rehearing, whichever is later. The DOAH rule limits the jurisdiction of the 1 DCA to appeals timely filed within 30 days of entry of the order with no additional time even if a proper motion for rehearing is filed.
You should also be aware of an unwritten rule which is enforced by the 1 DCA. That ‘rule’ requires a motion for rehearing to be filed upon pain of waiver of an issue not brought to the attention of the trial judge by motion for rehearing.
Rule 9.180(a) Appeal Proceedings to Review Workers’ Compensation Cases provides that appellate review of these cases shall be as in civil cases except as specifically modified in this rule. The rule contains no specific modification regarding the effect of filing a motion for rehearing, and no grant of authority for DOAH to modify the rule. The general rule is found in 9.020(h) Rules of Appellate Procedure, which delays rendition for appeal purposes until the motion for rehearing is disposed of by the trial court.
Section 440.25(5)(a) says, "Procedures with respect to appeals from orders of Judges of
Compensation Claims shall be governed by rules adopted by the Supreme Court. Such an order shall become final 30 days after mailing of copies to the parties, unless appealed pursuant to such rules. The DOAH rule has not been adopted by the Supreme Court, nor will the court do so.
In fine, it is respectfully requested that the current DOAH Rule 60Q-6.122(3) must be repealed immediately for lack of statutory support, as an intrusion into the jurisdiction of the Supreme Court, and for a lack of jurisdiction in DOAH to promulgate a rule bearing on appellate review.
Respectfully,
Mark L. Zientz
FBN 150168

2/9/07- Reader question answered

February 9, 2007- Blogging Continues...
I was asked by a reader in response to my "New Analysis" whether or not any of the Attorney fee decisions relating to the 2003 act made any distinction between an "awarded" fee and an "approved’ fee.
So I went back and reviewed Lundy, Wood, Campbell, Duprey, Murray, and Buitriago.
Murray is still on Petition for Review in the Supreme Court just filed February 8, 2007 on the same certified question. The fee in that case was "awarded" using the strict statutory guideline.
Duprey is the case where the JCC "awarded" a fee greater than the fee schedule and the E/C appealed. That case was just decided by the 1 DCA February 5, 2007. The court reversed the JCC and said a fee "award" "must be based upon the value of the benefits actually obtained on behalf of the claimant". The court did not certify the same question or any question. In fact, the court awarded appellate costs to be paid by claimant to the E/C! Wayne Bilsky and Bill McCabe will be filing for rehearing and I have provided them with my "New Analysis" of the fee section should they choose to use it.
Wood was also an "award" of fees and the decision turned on the interpretation of the word ‘reasonable’.
Lundy dealt with the constitutional arguments related to the legislatures ability to limit fees in workers’ compensation cases. This case held, as I argue in my "New Analysis", that the JCC did not have authority to ‘approve’ a fee that exceeded the fee schedules.
Buitrago was another "award" of fees based upon the fee schedule.
Campbell was another "award" of fees in accordance with the fee schedule.
Lundy is therefore the only case that dealt with the JCC’s inability to "approve" a fee in excess of the guidelines. The other cases must be presumed to "award" fees that must be in accordance with the fee schedule when that is not the wording of the statute. An "award" of a statutory fee may still be presumed to be the correct amount unless one party or the other can demonstrate a "manifest injustice" and can prove that a higher or lower fee may be appropriate. It is the lower fee issue that got the attention of the court in Wood. The court said the statute "specifically prohibited a JCC from "awarding" a fee in excess of the percentage fee, but did not, with the same specificity, prohibit a lower fee". The court used the wrong word. It used "award" instead of "approve". And if a lower fee may be "awarded", what criteria are used to reduce the fee from the fee schedule?
I hope this answers the readers question.

Well here goes...Florida Workers' Compensation and Employer Liability Issues

I'm new to this thing called "blogging". But I will admit it is rather exciting to know that I can write what I want to say and put it 'out there' for anyone who is interested to read. If you have something to say on any particular topic, e-mail me at this link and I will either reply, post your comment to the blog (with your written permission please), or ignore you entirely. I plan on adding to the blog on a three times a week schedule but that might be too ambitious and if so, I'll cut it down to one or two times per week. Check back often because breaking news in workers' compensation law will be reported as soon as possible.
Look for anything related to workers' compensation, employer liability and related issues to be discussed here. Here's my first post:

AWARD VS. APPROVE: A NEW ANALYSIS OF s.440.34(1)
Yesterday, in advance of my first attorney fee hearing on a post 10/1/2003 date of accident I did what I always do, I re-read the statute. I am one of those people who can look at a whole page of text and a misspelled word will jump off the paper and hit me between the eyes. This time it wasn’t a misspelled word that jumped out of s.440.34(1), it was a mis-used word. Or maybe a mis-interpreted word. The word was ‘approve’. So I looked at the next subsection, 440.34(2), here I found the word "award". "Award is missing from 440.34(1). And unlike (1) there is no fee schedule in (2).
I looked for a definition. Ch. 440 has no definition of ‘approve’ or ‘award’, so I went searching for the plain meaning that must be attributed to these common words. ‘Award’ is defined by Merriam - Webster as "to give by judicial decree or after careful consideration; to confer or bestow as being deserved or merited or needed". "Approve" is defined by Merriam - Webster as "to have or express a favorable opinion; to accept as satisfactory; to give formal or official sanction to".
S.440.34(1) only speaks of "approval". Approval of a joint stipulation, a stipulation or agreement of the parties, any other agreement related to benefits that provides an attorney’s fee in excess of the amount permitted by this section, or ‘approval’ of an "order". That last part gets me confused. What does approval of an "order" mean? I can only assume it is an "agreed order" on attorney fees. Nothing in s.440.34(1) prohibits the "award" of a fee in excess of the fee schedule, it only restricts "approval" of agreements presented to the JCC for sanctioning.
S.440.34(2) on the other hand speaks of an "award" of fees based upon benefits secured but no fee schedule or other method of measuring the amount of the fee is present. In s. 440.34(7) the legislature once again uses the word "approve" in connection with the one time medical only fee. That section says "if an attorney’s fee is owed under paragraph (3)(a), the JCC may "approve" an alternative attorney’s fee not to exceed $1,500.00 only once per accident, based upon a maximum hourly rate of $150.00 per hour...".
What I gleaned form all this inquiry was that the legislature was trying to protect the general public from excessive fees being negotiated by the parties to the disadvantage of the employers who pay premiums based upon the cost to their carriers of the claims they have. It also protects the injured workers from paying, by an agreement that they may not totally understand, an excessive fee for services rendered to their own attorneys. I can understand and respect those ideals. JCC’s may not and should not "approve" those types of agreements or enter those types of agreed orders. It would be wrong to allow such conduct in furtherance of remedial legislation.
But when the parties don’t agree that the schedule in s. 440.34(1) should apply and be approved, when judicial intervention is needed, (the Supreme Court has always said that setting the amount of an attorney fee is a judicial action, Lee Engineering v. Fellows , 209 So. 2d 454 (Fla. 1968), an "award" is needed. A judicial decree after careful consideration. Not by the mere application of a numerical percentage. Factors are specifically set up for the "award" of a reasonable fee. Those guidelines appear in Lee Engineering, and in Rule 4-1.5 of the Rules of Professional Responsibility for contingent fee cases. s.440.015 says the law must not be interpreted to favor either the Employee or the Employer/Carrier. Allowing unlimited defense fees while restricting claimants lawyers fees would be just such an unlawful interpretation. On appeal, the Court may award attorney fees which are not restricted by any fee schedule (440.34(5)). The DOAH is charged with measuring the performance of JCC’s by such factors as their "awards" of extraordinary fees (s.440.45)(4)).I assume that contemplates that such extraordinary fees can be awarded. But if a case is settled while on appeal, the district court will remand for the JCC’s "approval" of such settlement, including attorney fees amounts, (Rule 9.180(c)(3) Rules of Appellate Procedure).
As further proof that ‘award’ and ‘approve’ are different consider that the JCC may not "award" attorney fees for services performed (not benefits obtained) before the filing of a valid petition, (s.440.192 (7)). The legislature knows how to restrict an "award" of fees if it chooses to do so.
Has anyone else noticed that if the parties agree to arbitration and the JCC "consents" to the agreement, an arbitrator can "award" or "approve" an excess attorney fee and not be subject to appeal or reversal? (s.440.1926). Has anyone noticed that in utilization disputes the agency can "award" a health care providers attorney a reasonable attorney fee for prosecuting a petition? (s.440.13(7)(f)(3)). That means there are no fee schedule constraints for doctor’s attorneys, only injured workers attorneys, against the same employer/carriers?
So the case is made for a distinction between the "approval" of stipulated fees and the "award" of disputed fees. In the first instance a fee schedule applies, in the latter the good judgement of the JCC is called for, after consideration of the evidence required by the rules.
P.S. I tried my case. I made my argument. I am only left to wonder now whether I will be the Appellant or the Appellee.

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