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There is a concept discussed in the world of legislation and regulation, labeled "artifact." Merriam Webster provides the following definition:
"something or someone arising from or associated with an earlier time, especially when regarded as no longer appropriate, relevant, or important"
And, the world of workers' compensation has historically demonstrated some history of various artifacts, Jacobson v. Se. Pers. Leasing, Inc., 113 So. 3d 1042, 1048 (Fla. 1st DCA 2013)("the phrase seems to be a mere artifact of the prior version of section 440.34(1)"), as have other statutory settings. Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912, 928 (Fla. 1985)("is an elaborate but irrelevant artifact").
The Florida workers' compensation law has evolved in regards to the view and treatment of settlements. Initially, all settlements required judicial approval, currently only those by unrepresented workers require true approval. These are described in sections 440.20(11)(a) and (b). Those in (a) involve cases in which compensability was denied at (or near) the outset of the claim. In 1990, when the provision for these settlements migrated from section 440.20(12)(a) to (11)(a), the Legislature added:
"Upon the approval of a lump-sum settlement under this paragraph, the judge of compensation claims shall send a report to the chief judge."
Back in olden times, we used to literally fill out a piece of paper with specific data points about such a settlement. The reader might assume that we would send that to Tallahassee by mail, but (I kid you not), we sent it by The Pony Express (July 2019). If you don't believe me, "look it up in your Funk and Wagnalls" (Laugh In, NBC, 1968).
That statutory reporting requirement made little sense in that it directed the collection of data, but expounded no purpose or goal for the data collection. As I travel the length and breadth of America studying the complexities of workers' compensation, I hear many anecdotal criticisms of similar data collection by states. Data is required but no one is sure what it is used for or why it is needed. There is periodic suspicion that such is "just artifact." That may be true in any particular instance or it may just reassure us as to why we do not personally understand. There are varieties of factual information collected, and processes thus questioned.
In 1991, the "why" in this instance was perhaps diminished with the addition to the statute of a further requirement:
"The Chief Judge shall keep a record of all such reports filed by each judge of compensation claims and shall submit to the Legislature a summary of all such reports filed under this subsection annually by September 15."
So, then the assigned Judge at least was in a better frame of reference. When staff asked "why do we have to complete this form?," the Judge could reply "the Chief Judge needs it for the report to the Legislature." That is perhaps imposing and official, a great justification. But, it begs the real question.
The next thought might be "why does the Chief Judge need to submit this data to the Legislature." Well, that is pretty clear. Because the statute says so. And, it has since 1991. For over thirty years, we have been diligently collecting this data and dutifully submitting it. And, without question, none of us knows why. See The 5 Monkey Parable (February 2021). We did modernize the process and those data points are now collected by the database when such settlement orders are uploaded. We have made the collection process more efficient, but still do not know why the data is needed, or at least why it is needed each September.
Every September for the last 17 years, I have received a data set from the Division of Administrative Hearings team with all of the pertinent information on settlements pursuant to section 440.20(11)(a). That has been compiled into an overview report of the prevalence and characterization of these settlements, and duly submitted. And, I don't know why. I have never had any follow-up questions or discussions with anyone in the workers' compensation community about these reports, their figures, or their implications.
In 2010, I expanded the "settlement report" in an effort to use this required tool more effectively. So, for the last 13 years, we have concurrently provided extensive analysis and overview of the efforts of our state mediators. This is a deep dive into the mediation process and it has value to the marketplace. And yet, this information on mediation could easily be incorporated into the OJCC annual report required each December by section 440.45(5).
Similarly, the section 440.20(11)(a) settlement data could as easily be included in that December report annually. But, through artifacts no longer understood, this small subset of settlement data must be reported about 75 days prior each year, by September 15. Thus, as noted, (paraphrasing Lord Alfred Tennyson in his 1854 poem, The Charge of the Light Brigade):
"ours is not to reason why; ours is but to do and die."
And so, "do" we have and "do" we shall. The 2021-22 report is being sent this week to the Florida Legislature and will soon be posted on the OJCC website. The report is recommended reading as it documents each year where the mandatory mediation process is in Florida. Florida led the way to mediation generally, led its integration into workers' compensation, and led the way into mandatory mediation. Our mediation is unprecedented, unparalleled, and envied. More on that in a future post.
Today, however, we focus on the statistics for settlements pursuant to section 440.20(11)(a), where compensability is denied. This is one of two categories of settlement that require judicial approval in Florida (represented settlements no longer require approval per se, only the fees and child support do). The other category requiring approval also involved unrepresented injured workers, the 440.20(11)(b). Unrepresented worker settlements are a small subset of all settlements, and the (11)(a) is an even smaller subset of unrepresented settlements.
The volume of (11)(a) washouts has vacillated notably over the last 14 years. The highest volume was 99 in 2008-09 and the lowest was 54 in 2020-21. While it is interesting that there would be such fluctuation, It is critical to consider the incredibly small volume of data represented. The total volume of workers’ compensation settlements in Florida in fiscal 2021-22 was 24,410; the (11)(a) washout volume of 65 is about one-quarter of one percent of all settlements (0.0027). This is an incredibly small portion of the settlement population. Any particular category within the (11)(a) group, such as "statute of limitations," might be only one or two settlements in a year. One might liken them to unicorns of sorts, rare.
The aggregate dollar value of each year's (11)(a) settlements has also fluctuated significantly in that 14 years, from the low of $414,357 in 2015-16 to a high of $802,220 in 2021-22. That is a significant difference in terms of magnitude, but note that at the highest volume, this small subset of settlements does not reach a million-dollar aggregate value. The average value of each settlement fluctuated over the last 14 years between $4,847 in 2009-10 and $12,342 in 2021-22.
Notably, even with the wide variations demonstrated, The average value figure first exceeded ten thousand dollars in 2020-21 when the average (11)(a) settlement increased by 69%. Thus, the two most recent averages of $11,040 and $12,342 might be of significance as regards these particular settlements in terms of growth or trending upwards. That the major increase in 2020-21 (+69%) coincided with a notably small volume might be of interest. But, we must remember how scarce these settlements are. That the average value remained significant in 2021-22 as volume increased might also be of interest.
It is possible that even one outlier settlement of notable value (high or low) might have a profound impact on the figures represented in such a small data set ("the effect of a single outlier on the mean, standard deviation, and variance diminishes as the sample size increases"). A brief comparison of 2020-21 and 2021-22 is worthwhile in furtherance of that discussion. The overall increase in aggregated value of the (11)(a) settlements in 2021-22 was $206,059. The 2021-22 “high” example in the “Causal Connection Lacking” category of these was $157,500, but the 2020-21 “high” example in that category was $50,000. Thus, over half ($107,500, 52%) of the overall increase in aggregate (11)(a) value for 2021-22 might be attributed to that one settlement.
Similarly, the 2021-22 “high” example in the “Positive Drug Test” category was $75,000, but the 2020-21 “high” example in that category was $20,000, a difference of $55,000 attributable to one settlement. Thus, approximately 27% of the aggregate increase in 2021-22 ($55,000/$206,059) might be attributable to that particular settlement. We might add these two together ($107,500 and $55,000; the two order differences total $162,500). Thus, two settlements (outliers) appear plausibly responsible for almost 80% of the aggregate increase in 2021-22, and the impact or influence on the analysis and the "average settlement" discussion.
Why is this tiny subset of (11)(a) settlements studied with such specificity? The answer might well be the famous "Spicolian" "I don't know" (Fast Times at Ridgemont High, Universal 1982). The analysis of this data may be of great interest in some analysis of the health or practicality of the Florida workers' compensation system. If so, I am not aware of where there is such interest or any scholarship or study regarding the (11)(a) data. It is perhaps as likely that the persistence of this data collection and reporting is an artifact whose purpose is lost to history. We perhaps collect and report this annually only because the statute says to do so.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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