Serendipitous Repetition

Serendipity seems to follow me.

I was, of course, at the National Workers' Compensation and Disability Conference at the Mandalay in Vegas last night, attending a cocktail party, and became engaged with a Certified Shorthand Reporter, aka court reporter to those who don't wander the Halls of Justice.

I don't recall which jurisdiction she was from, but we were talking about how CSRs were going out of favor, sometimes being replaced by technology and sometimes not being replaced at all.

I was in hyperactive mode, and rambled something largely unintelligible to her. She wistfully replied, "say again counsel."

And that put us into a discussion about how, in certain circumstances, technology can not replace a human doing the job of a CSR - because a machine can not stop the person whose speech is unintelligible and request a restatement, and then certify to others that what is transcribed onto paper is what was actually said.

In her jurisdiction the courts no longer provide a CSR at taxpayer expense, so counsel must hire their own out of pocket and hopefully recoup that cost later in the case. Sometimes the opposing parties will agree to share the cost of a CSR because if there's any anticipation of appeal a certified transcription of testimony will be necessary for a complete record going up to the appellate court.

Then I wake up this morning, and the top headline in WorkCompCentral News is "Supreme Court: WCC Must Provide Stenographers for All Hearings."

Whoa! Did I really have THAT much to drink last night? Or was someone eavesdropping?

Turns out that yesterday the Oklahoma state Supreme Court released an opinion that the Workers’ Compensation Commission will be required to provide a stenographer for all of its hearings.

The 7-2 decision came after attorneys filed an application for original jurisdiction with the high court on behalf of six claimants who were denied commission-provided court reporters for their case hearings.

Guaranteed by the OK Sup. Crt.

Supreme Court Chief Justice Tom J. Colbert took authorship of the one-paragraph decision, assuming original jurisdiction of the case and directing the commission to provide a stenographer for all hearings before the commission.

As you likely are aware, the state went through a bit of trauma last year when legislators overhauled the workers' compensation system, including its administrative dispute resolution process, and also implementing a form of "non-subscription" to better compete with neighboring Texas.

As part of that reform, a new Workers’ Compensation Commission was created to handle hearings for claims of injuries on or after February 1, with the Court of Existing Claims handling legacy claims.

The WCC rushed to implement emergency rules to accommodate the deadline and part of those rules provided that the commission is required to make an audio recording of all hearings before the commission or administrative law judges. The commission is also required to provide those recordings on digital media to any requesting party at no charge.

But a court-reported transcript would be made “at the request and expense of the person ordering it, or at the request of the Commission, in which case, a copy will be made for any person requesting it, at that person’s expense.”

That WCC's rule, found in Title 810:10-5-48(d), conflicts with Title 85A-72(B) in the state’s Workers’ Compensation Act, which just states that all commission hearings “shall be open to the public and shall be stenographically reported.”

“To the extent that Emergency Rule 810:10-5-48(d) conflicts with the requirements” of the workers’ compensation statute, Colbert wrote, “the Commission is prohibited from providing only an audio recording of all hearings, in lieu of a stenographer.”

“Because we have many workers in Oklahoma that don’t speak flawless English,” one of the attorneys who petitioned the Supreme Court, Bob Burke, told WorkCompCentral. “So an oral recording would not work on appeal. Because with a court reporter sitting there, if they don’t understand that word, they can literally say, ‘Sir, could you repeat that,’ or ‘How do you spell that?’”

So there you have it - another serendipitous moment comes to life.

"Could you repeat that please?"