Advances Against Settlements

In Florida workers' compensation, we have seen significant litigation over "advances." This term is familiar in Florida workers' compensation because the statute (Fla. Stat. 440.20) specifically provides for advances paid by the employer/carrier in certain instances. But another kind of "advance" is in the news now and is an interesting topic. 

Workcompcentral reports today that the Institute for Legal Reform, part of the United States Chamber of Commerce, has asked Illinois to look into the subject of lawsuit lending. Essentially, there are lenders who market their services to people who are involved in lawsuits. They do not call their lending a "loan," but an "advance." If the person prevails in their lawsuit, the advance/loan is repaid from their judgment or settlement. If they lose their lawsuit, then they do not have to repay the advance/loan. The balance is written off by the lender/advance provider. 

The Institute sent a letter to the Illinois Commission Chair, stating that "lawsuit lending is an important public policy issue." The letter asserts that "the Illinois Workers Compensation Act expressly prohibits assignment of any payment, claim, award or decision." In short, the Institute is asking the Illinois Commission to investigate the practice of such lending, or advances, in Illinois. 

It is an unfortunate reality of our American economy that some people live paycheck to paycheck. We are notoriously poor savers in this country. Some estimate that as many as 25% of American families have no savings at all. Among those that do save, the average savings account balance is about $3,800.00. This website also says that the average American household annual income is $43,000.00, which is about $827 a week. Using these figures, the average savings account balance ($3,800) would be depleted in less than five weeks of no earnings or income. 

Of course these calculations are based on averages. Some will have more savings, but an appreciable population are believed to have no savings at all. When workers' compensation benefits are instigated immediately following a work injury, many states nonetheless have waiting periods. In Florida, there is no compensation paid for the first seven days of disability. However, if the disability lasts more than 21 days, then that first 7 days is paid later. This is all in Fla. Stat. 440.12. So during the first three weeks following an injury, an injured worker would receive two indemnity checks if everything works smoothly. 

Of course, there will be those claims in which compensability is denied, or in which disability is disputed. In those instances, payment of indemnity (lost wage) benefits may be delayed pending claims, petitions, proofs, mediation, or trial. 

In some ways those injured at work may be better off than others. One of the trade-offs of workers' compensation is that the benefits are designed to be paid periodically and to begin fairly rapidly. In a personal injury action outside of the workers' compensation process, an injured person might receive no compensation for lost wages until a lawsuit reaches trial/verdict or is settled. The waiting period for income replacement in those cases might be months or years. 

Enter the "lawsuit lenders." The term "lender" may be inapplicable but it is the term used by the Institute. According to one such provider, the "cash advance" is not a loan. Their "frequently asked questions" page explains there "are no credit checks and you do not need a job." The injured person only repays this advance and the "advance fee from the proceeds of your settlement, if and when the case settles." If the injured person does not prevail, then she or he pays "Nothing. You keep your cash advance and you repay nothing to us."

So what does it cost? This particular provider charges 22.5% for the first six months, and 12.5% for each six months thereafter. Their website says that a $10,000 advance repaid in a year will cost $13,500, two years is $16,000 and three years is $18,500. These are detailed in a chart that compares this company's charges to two unnamed competitors. They say that with one of their competitors, a $10,000 advance repaid in a year will cost about $18,000, two years is about $32,000 and three years is about $58,000. 

The Institute urges Illinois to investigate the practice, reminding them that "the Illinois Workers Compensation Act expressly prohibits assignment of any payment, claim, award or decision." 

Does the Florida law preclude or limit such lending or "advancing?" The assignment of Florida workers' compensation benefits is addressed in Fla. Stat. 440.22: "No assignment, release, or commutation of compensation or benefits due or payable under this chapter except as provided by this chapter shall be valid, and such compensation and benefits shall be exempt from all claims of creditors, and from levy, execution and attachments or other remedy for recovery or collection of a debt, which exemption may not be waived. However, the exemption of workers' compensation claims from creditors does not extend to claims based on an award of child support or alimony."

Would this affect the "advance" practice? That is for others to decide in that case, when and if the issue is ever raised. The Institute letter urges Illinois to investigate the practice. It also says that the practice is drawing the attention of "attorneys general and other interest groups." It is a subject about which we may see more news in months and years to come.

Update 080414: Attorney Dennis Palso commented on LinkedIn to advise that The Florida Bar has addressed this subject. It is an interesting read also. 

Documentary Evidence Objections

Trial of workers’ compensation cases in Florida requires a familiarity with the Florida Evidence Code. Trials in other jurisdictions may not be so dependent on state evidence rules, but a recent Mississippi case suggests that knowing the code is beneficial in any event. 

The Florida First District Court of Appeal has consistently concluded that the Florida Code applies to trial or workers’ compensation matters.  See, Martin Marietta Corp. v. Roop, 566 So.2d 40 (Fla. 1st DCA 1990); Odom v. Wekiva Concrete Products, 443 So.2d 331 (Fla. 1st DCA 1983). Of course, to try a case you also need familiarity with the workers’ compensation statute, medicine, the facts of the case and more. It is not easy to try a workers’ comp case. But my focus here is on some common documentary evidence objections.

A variety of documentary objections are common in workers’ compensation trials. Workers’ compensation claims generally involve a fair volume of paperwork. Employers keep records of payroll and benefits; doctors keep records of diagnostic testing, examinations, and conclusions; adjusters keep records of authorizations, calculations, and conversations. There are a wide variety of other documentary evidence in addition to these specific examples.

When a document is submitted in trial, there are various evidentiary objections that may be raised. The most common is “hearsay” in my experience but some may also object to “authentication,” and less frequently, there is the “best evidence” objection regarding documents. 

A critical point with these three is that each is an independent grounds for the exclusion of the document being proposed. Stated differently, if three objections are raised, the party seeking to admit the document has to overcome all three objections. Failing to address one of the three may result in the admission and consideration of the document(s). The court in Dollar v. State, 685 So.2d 901 (Fla. 5th DCA 1996) explains this.

The Evidence Code defines "hearsay" as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fla. Stat. §90.801(1)(c). There is a “hearsay rule,” which states hearsay is generally not admissible as evidence. Fla. Stat. §90.802. 

Then, there are exceptions to the “hearsay rule," situations in which hearsay statements or documents are nonetheless admissible into evidence. Some of those hearsay exceptions are dependent upon the party who wants to admit the hearsay demonstrating that the witness uttering the out-of-court statement is “unavailable.” See, Fla. Stat.  §90.804. Other exceptions to the Hearsay Rule are set forth in Fla. Stat. §90.803 and are not dependent on the person being unavailable.

A common error seen in trial is the sequential nature of considering the hearsay objection. The first question needs to be whether this is or is not hearsay. If the statement is not hearsay, there is no need to examine whether the declarant is available or not, whether there is an exception or not, and whether you can satisfy the requirements of any such exception. Question one, is the evidence submitted to prove the truth of what it says? It is common for this initial step to be skipped in the analysis. Even experienced litigators have a tendency to skip directly to the exceptions, without considering whether the statement is actually hearsay.

If the document is submitted to prove the truth of the statements that it contains, then it is hearsay. When that conclusion is reached, then logic leads to the consideration of the various hearsay exceptions found in the Code. A book would be required to address all of the exceptions, but the most commonly raised in workers’ compensation proceedings regarding documents is the “business records” exception. The “business records” exception is stated in Fla. Stat.  §90.803(6). It is a good example of the “exception” analysis that should follow if the statement or document is in fact hearsay.

From the language in Fla. Stat.  §90.803(6), the reader learns that this exception can lead to the admission of hearsay if the party seeking to use it shows that the document(s) was/were: “1) made at or near the time of the event recorded, 2) by, or from information transmitted by, a person with knowledge, 3) kept in the course of a regularly conducted business activity, and 4) it was the regular practice of that business to make such a record." 

This can be shown through the testimony of someone familiar with the document. If it is a medical record, then the doctor or her/his staff could provide this testimony about the medical record. If this were instead a set of payroll records, then the employer's bookkeeper or controller or payroll manager might provide the testimony. This is an example, but each exception to the hearsay rule similarly contains a series of things that must be shown to allow the use of the particular exception.

Authentication is often confused with hearsay. Some lawyers do not appreciate that authentication is not only a different objection but that overcoming an authentication objection requires a different demonstration or argument than what is required for a hearsay objection. In short, there is no “one argument fits all” response for an objection that raises both authenticity and hearsay.

Authentication relates to the genuineness of a document. Testimony would have to be presented upon which a judge could rely in determining that these documents are what they purport to be, that is, that they are authentic. Generally, this will require that there be some evidence placed in the record that the document is real. Again, this may come from the person who created the record or from the person who is responsible for maintaining the record. This may come in the form of a live witness at trial, a witness in a deposition, or a witness signing an affidavit, essentially saying that this document is real.

The “best evidence” of what is stated in a document, is that document itself. The Evidence Code requires the original of such a document Fla. Stat.  §90.952, but then in the next section of the Code, Fla. Stat.  §90.952, provides a presumption that copies are generally acceptable unless there are “genuine doubts raised as to the authenticity of the original” or it is “unfair under the circumstances to admit the duplicate into evidence.” When dealing with documents, the “best evidence” rule should be kept in mind. This rule may prevent a witness from reading aloud from a document in their testimony. 

Dealing with documents can be complex. Trying a workers’ compensation case without documents, on payroll, on employment dates, on accident reporting, on medical care, on post-injury work or work search, may be very difficult. Familiarity with the objections to documents and appropriate foundation evidence (the evidence that shows the document is real, that it is the original or an accurate copy, that it is a business record, etc.) to overcome them are critical to the preparation for trial of a workers’ compensation case.

Much of this post is shamelessly plagiarized from a final order I wrote in 2010. The case is Gregory George v. Greetings from Key West and The Hartford, OJCC Case No. 10012665DWL. Clicking on the link will take you to that order on the OJCC website. I am surprised in my lectures around the state by people who do not know that all of the OJCC trial orders are posted on the internet and that you can search them. 

If you visit www.fljcc.org, you will see a search box at the top of the page which is labeled “Search JCC Final Orders.” In that box, you may insert a judge’s name, an issue (such as “temporary total”) a statute section, an evidence code citation, a procedural rule, a name, or any combination of these. The Google function will then search the whole population of JCC trial orders for your terms. 

Finally, remember that workers' compensation is governed by state law. So results may be different in other states. The Mississippi Supreme Court recently reversed the determination of the Administrative Law Judge in Pulliam v. Hudspeth, NO. 2013-WC-00409-COA, based upon the admission of unauthenticated documents. The dissent in Pulliam reminds that in Mississippi, unlike Florida, "the Commission is not bound by the formal rules of evidence that govern proceedings in courts of law." 

The trial in Mississippi is not governed by their evidence code. The dissent in Pulliam argued that the lack of authenticity should not have been reversible error, therefore. However, the majority reversed the trial court decision nonetheless. Even if the evidence code is not controlling, authentication may be a critical issue, and perhaps hearsay and best evidence too? Pulliam is interesting reading. It reminds us of some evidentiary lessons. It reminded me and led me to write this to remind you. 

Fee Schedules Constrain Some WC Medical Costs

The Workers' Compensation Research Institute (WCRI) released a recent study on medical costs in workers' compensation. It is titled the WCRI Medical Price Index for Workers' Compensation, Sixth Edition. The study analyzes "actual prices paid for medical professional services delivered to injured workers in 25 states from 2002 to 2013." 

Thus, the focus of this reports is not on hospital or facility charges. It is not a study in the overall costs of medical care in workers' compensation. There are various market elements that combine for total medical costs. There have been suggestions that a significant portion of workers' compensation medical costs are associated with the market segments other than professional services. 

For example, hospitals and ambulatory surgery centers are not the focus of this study. Similarly, medication and medical devices are not professional services and so are not part of this study. These elements of the overall medical costs in a given state may be addressed in the state's fee schedule, or a separate fee schedule, or in some instances perhaps are not the subject of any state workers' compensation fee schedule. 

Twenty-five "large" states' professional service expenditures were studied. The report says these states account for "nearly 80 percent of the workers' compensation benefits paid in the U.S." Most of the nations largest workers' compensation systems are included, California, Illinois, Florida, New York, New Jersey, Pennsylvania, and Texas. Of the biggest ten workers compensation markets, only the combined Federal programs, Ohio and Washington state were not included in this study. For a discussion of the largest national programs, see How Huge is it Anyway, Lex and Verum, page 7, June 2014.

WCRI is not a policy-focused institution but a knowledge-focused one. That is, it is focused on the "what is so" and leaves the "so what" analysis for others. The report notes that it "does not seek to address the causal relationship between price variations and policy changes." The numbers are what they are in other words, and the reader is left to draw conclusions about why the numbers are what they are. 

That said, however, the report notes that the prices paid are "associated with several underlying factors, including state regulations, and changes in fee schedules, network penetration rates, market conditions, . . . and provider billing practices." So, each of these may have some relationship to the expenditures in any particular jurisdiction. The actual effect of each in any particular jurisdiction would be difficult to determine with certainty, and the interrelationship between competing factors in any jurisdiction would likely be unique to the particular state. 

There are significant variations across the country regarding the way workers' compensation medical services are delivered and reimbursed. I have mentioned in this blog before that we each tend to view workers' compensation through the prism of our own experience, and thus our own state's program. This is not an invalid view, but it is self-limiting and we need to be conscious of that when we are considering comparisons of various states in contexts such as medical cost. As an aside, the report also notes that there have been some changes in billing codes used by states which make side-by-side comparisons of some studied services, charges and payments impractical in this analysis. 

Different states have or do not have fee schedules. Those that do are not identical. Therefore, the conclusions of a report like this are generalities about the results of the fee-schedule model constraints in a variety of jurisdictions, and the impact that those constraints have on other market segment costs like facility, hardware, or medication costs are not known. 

A noteworthy conclusion of the report is that the medical consumer price index, or CPI-M has risen markedly over the 11 years studied (2002-2013, though only the first half of 2013 was included as that was the data available when this analysis was performed), from 100 to 140. 

The Medical Price Index for Workers' Compensation (MPI-WC) for studied states (6) that do not have a workers' compensation medical fee schedule has for the most part been consistent with that trend. The MPI-WC for states (19 studied) that have medical fee schedules is much lower, having progressed from 100 to about 112-13 over the same period. For professional services, fee schedule states have had slower inflation in the cost of those services. 

Whether fee schedules are positive or negative overall in workers' compensation is a larger issue. Some argue that fee schedules discourage providers from participating in workers' compensation. This, they argue diminishes access to quality care. Some critics argue that fee schedules in any market segment merely drive higher charges in other segments (durables, medication, facility charges). They argue that care costs trend overall to a medical living wage equilibrium, that is providers will find a way to earn a living and if constrained in service charges will seek ancillary opportunities like physician dispensing to compensate. 

Wherever that larger debate over fee schedules takes us, it seems that the WCRI report supports that fee schedules do constrain medical care costs in the fee for professional services segment. The effect over a significant time period, measuring costs in a large segment of the U.S. workers' compensation market, seems supported by this latest WCRI report.

Hey, got an Auto-Injector I Could Use?

There has been good news on the opiod front lately. In early July, this blog (New CDC Report on Opiods) focused on some of that regarding a report from the Center for Disease Control. The concerns remain, with about 100 people dying daily, and thousands requiring emergency room treatment, all related to drug overdose. There is a portion of these individuals who are receiving the drugs for the treatment of their work-related accidents. In providing these people with appropriate treatment, workers' compensation needs to be conscious of the potential for drug interaction and errors. 

The Commissioner of the Food and Drug Administration acknowledged in April 2014 that "misuse, abuse, addiction and overdose of opioid analgesics" are at the root of "important public health problems." She notes that the most recent data "tragically" demonstrates that 16,000 lives are lost annually due to overdoses. She notes that the FDA has attempted to address the tragedy with various actions:

Revising opiod medication labeling, including safety warnings.

Requiring manufacturers to study safety of long-term use.

Providing educational materials to physicians.

Expediting FDA approval of opiod alternatives.

Studying to advance FDA understanding of the mechanisms of pain.

Recommending the reclassification of hydrocodone as a Schedule II drug.

Strengthening surveillance to monitor prescription drug abuse.

And encouraging development of medication to treat opiod abuse and reverse opiod overdose. 

One of the achievements touted by the Commissioner is the approval of an "auto-injector" designed to inject a drug called Evzio, which should "rapidly reverse the overdose of" opioids. The FDA announced the approval of Evzio in early April 2014. In announcing approval, it noted that drug overdose is a leading cause of death in America, more prevalent than automobile deaths and steadily increasing over the last decade or more. 

The announcement does not tout Evzio as much as it does the delivery system, which is simplified to allow use of Evzio without the help of "trained medical personnel in emergency departments and ambulances." The reader is left with the impression that such agents have been available, but with the help of professionals. Perhaps this is part of the drive for approximately 6,000 people visiting medical facilities daily for help with drug overdose or interaction issues.

You have likely seen the ads on television for the "EpiPen" a self-administered drug for serious allergic reactions, called "anaphylaxis." The theory is simple. If you have are prone to allergic reactions, you carry this EpiPen with you at all times. You study your situation and know your risks. You remain vigilant and prepared with your EpiPen, and in the event of a serious attack, you use it to inject yourself with epinephrine. This is a logical process of being prepared for your encounter with allergies.

The theory is the same with Evzio. The question is whether it will really matter in the drug overdose or interaction context. Will those who overdose have the foresight to have an Evzio auto-injector on hand "just in case?" I am sure that some will have the foresight and will plan for an accidental problem like this, but I am not sure how many. 

Will significant numbers of those who overdose have the presence of mind while under the influence of opium to use the auto-injector? I think this is less likely. I posit that those who are saved by Evzio are more likely to be saved through the quick thinking and action of a family member or friend who notes the severity of a situation and reacts for the victim. I fear that those who have a pain killer dosage level that is life-threatening may be beyond the ability to help themselves with this technology.

That only addresses the users of painkillers who are in legal possession of them. Like it or not there is a secondary market for opioids in this country. Pills are being taken by those for whom they were not prescribed. Like any illicit drug use, these people are far more likely to suffer side effects and complications because they have not had any physician advice, and since their activity is illegal they may resist the urge to call for help. They may fear prosecution and complications from asking for help. I fear that the illicit opioid user, who obtains pills on the street, is very unlikely to plan for overdose or to take steps to possess Evzio, "just in case."

I am not knocking the research and work that have gone into this new tool. I am not saying it will not save lives. I am saying that I do not think that this has the potential of the EpiPen. The mind-numbing propensities of the very drugs with which it is meant to assist will be a hurdle. Another hurdle will be that a large number of the overdose victims each year are illicit users more interested in funding their next fix than in funding the possession of Evzio to have in case that next fix goes bad. 

Time will tell if this new tool is a viable weapon in the fight against senseless death in America. In the meantime, will the other efforts of the FDA outlined above be successful in better focusing the prescription use of opium, preventing inappropriate non-prescription use of opium, or developing viable alternatives to the widespread use of opium?

Time will tell. 

In the meantime, we continue to hear about people having tragic results from pain medication. In June 2014, the story broke of a St. John's University pharmacy student who died from touching Fentanyl, a synthetic opiate that can be absorbed through the skin. We also heard about 15 medical workers indicted in relation to compounding medications; an additional element of that story was the death of a 5-month-old child who allegedly accidentally ingested (from coming in contact with a parent's skin after application) a compound pain cream that included Tramadol (which is not an opioid but works in a similar manner). 

There is a need for pain relief and pain management, and as to that, there is likely unanimous agreement. In the workers' compensation market, we see a lot of pain and suffering. There are a great many cases that show us all the effects of trauma on the body and on people's lives and function. Does that relief need to come from such strong medications, and can this country do more to assure the safety of those who may come into contact with these substances? Is the Evzio injector the answer, or even an answer? 

Will the FDA step up the requirements that such drugs include overdose and overuse inhibiting elements? There are methods to discourage the crushing of such medication (illicit users crush the pills to speed absorption). There are methods of including other substances in the formulations to discourage overuse. Will the FDA make such formulation options a mandatory part of any and all opium formulations?

The tragedy of so many deaths from overdose is a national problem. I hope that as a nation we are not paying it lip service and that efforts will lead to success and decreases in the deaths attributed to medication.

The Value of Regulator Interaction

This week, I find myself at the Southern Association of Workers' Compensation Administrators' (SAWCA) annual conference in Sarasota. Florida has been the fortunate host to this convention the last two summers. And, while SAWCA will take a hiatus from the Sunshine State in 2015, hosting in Williamsburg, Virginia next year, it returns in 2016 to the idyllic beaches of Destin, Florida (shameless plug for Florida and specifically the panhandle).

The SAWCA is a group of those who work to administer this thing we call comp. There are 19 jurisdictions that form SAWCA, and it has been hosting these gatherings for 66 years. 

At a dinner Monday night, it occurred to me that we who do comp for a living are a bit nerdy in that context. I felt sorry for the spouses who sat with us around the table as we droned on with each other about treatment guidelines, medication formularies, MSAs and the like. We are a bit academic in our own rights, but get us together talking comp and we really shine, to the chagrin of the "non-compers" who surround and somehow tolerate us.

On Tuesday afternoon, we had a regulator's round-table. This was an open forum of at least 15 states' leaders gathered in a room to openly discuss the challenges and successes of comp over the last year. The subjects were interesting in themselves, but hearing various perspectives on them was a bonus. Unlike an educational seminar with a panel espousing pre-prepared materials, this was a free-flowing conversation. Fifty people sat around the table and another 45 around the periphery of the room. 

Topics of discussion included workers' compensation fraud, challenges of uninsured employers, states with uninsured employer funds or other "safety nets," opiods and the treatment of pain, compounding pharmacies and physicians, physician dispensing of medication, adjudication of medical issues, weight loss claims and particularly the weight loss surgery, the role of medical directors in various state systems, and challenges that technology may bring to the administration of workers' compensation. Certainly not the topics most people would choose to spend their afternoon on, but for us workers' compensation nerds, fascinating stuff!

Fraud examples were shared from a variety of standpoints. There are injured workers who receive benefits to which they are not entitled. There are employers who under-report their payroll to save costs, or who elect not to have workers' compensation coverage at all. There are bad brokers who collect premiums from employers, but who do not procure the policy promised, and the list goes on. From the various examples, it is clear that states are working hard to identify and deal with those who are not following the law. There were also examples of efforts underway to educate people as to what is and is not fraud under various laws. 

Significant time was spent discussing challenges that come from medications. Compounding pharmacies are a growing trend in some jurisdictions, and remain virtually unheard of in others. These companies take ingredients and combine them for a specific patient. This allows a very specific combination of agents into one dose for the patient. It also allows for alternative use of the medication, such as through a topical cream instead of ingestion. The novelty of the practice has led to issues on reimbursement amounts and to new regulations in some states. 

Obesity is an issue that we all face, either personally or professionally or both. As I age, I know I struggle with keeping my weight in check and we hear that this is a struggle across the country. The body weight issue can have a bearing on workers' compensation injuries and treatment. There can be issues with whether anesthesia is safe for someone because of their size, or whether a knee, hip, or back surgery would have better success expectations if excess weight were shed before hand. How can weight be dealt with appropriately, and when is stomach surgery an appropriate alternative to diet and exercise?

States struggle with medical claim determinations. California's recent implementation of an Independent Medical Review (IMR) process was discussed. A good article by David DePaolo describing IMR is here. Some states employ medical directors or consultants in their divisions of workers' compensation. Some states' adjudicators order independent medical examinations to resolve disputes, and Florida is alone in the expert medical adviser process. There seems to be a shared anxiety about whether processes can be better. Is there a more efficient method to resolve treatment and care disputes? As with all dispute resolution debates, can such efficiency come without compromise of the due process guarantees that are fundamental to America?

A fascinating discussion ensued about some technology issues. We learned that there are "apps" out there that allow you to "share" a ride. As I understand it Uber, Lyft, and Sidecar (there are likely others) allow people to connect with one another and "share" a ride. The technology company that markets the app processes a payment by the person not doing the driving, takes a commission from this and passes the rest along to the driver. As it has become more common, it seems there may be some who drive for a living and market themselves through these apps. 

Some states apparently think this sounds a lot like a taxi service, without the regulation, licensing, and yes revenue to the state. In the micro chasm that is workers' compensation, the issues surround whether these drivers are employees of the technology company, and thus whether they must have workers' compensation coverage. This is an interesting debate, and various states are apparently engaged in discussing the ramifications. This is an example of how technology will continue to change our world. How we react to those changes will be up to us. 

The round-table yesterday was a fascinating afternoon of what is hot in workers' compensation. Leaders like Karl Aumann (MD), Melodie Belcher (GA), Rod Bordelon (TX), Darrin Childers (NM), Elizabeth Gobeil (GA), Abigail Hudgens (TN), Greg Jenkins (FL), Deneise Lott (MS), Dwight Lovan (KY)(who according to SEAK is one of the 50 most influential people in workers' compensation in America), Frank McKay (GA), Kathryn Mueller, M.D. (CO) J. Landon Overfield (KY), and Jim Szablewicz (VA), Paul Tauriello (CO) Roger Williams (VA) and Lawrence White (LA) were among those who shared insight and perspectives. 

There are so many things I find make our states unique, and yet so many common issues we face in workers' compensation. there is a huge value in hearing what issues are arising in other jurisdictions and how they are being studied, considered and approached. I find the depth of knowledge that these luminaries bring to the table stimulating. The round-table is consistently a source of great insight.

In August at the WCI, SAWCA will have another regulator roundtable on Monday, August 18, 2014, 2:00 to 5:00, Crystal Ballroom J1. This annual event brings even more jurisdictions to the discussion. This year there will be regulators from Alabama, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky (Dwight Lovan, one of the 50 most influential Americans on worker's compensation), Louisiana, Maine, Maryland, Mississippi, New Mexico, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Washington. Twenty-one jurisdictions and counting! 

If you made the round-table yesterday, I hope you got as much out of it as I did. If you did not make it, perhaps you can make the round-table in August. With the line-up of administrators and experts, it will doubtlessly enhance your perspectives on what is going on in the world of workers' compensation.

The goings-on with SAWCA are mostly the doing of Secretary Treasurer Gary Davis. The accommodations and planning are largely the work of Malcolm Jennings. Without these two, there would not be opportunities like the round-table yesterday.

Judicial Independence

What is more critical to the workers' compensation process than judicial independence?

I hear criticism of judges periodically. Many times, the basis essentially comes down to the fact that the judge did not agree with the person who is complaining. It is natural for parties and attorneys to be passionate about their respective arguments. From experience as a litigator, I know it is disheartening to have the judge disagree with your argument or position. 

In each trial or hearing, though, the judge is likely to disagree with someone. The parties are in disagreement, which is why there is a trial. I have said for years that the definition of judicial independence is your absolute right to have the assigned judge disagree with or rule against you. 

In June, I was privileged to speak to the new judges in the Tennessee Workers' Compensation Court. I cautioned them that there will be those in any particular proceeding who will leave unsatisfied. As a litigator, I learned that attorneys tend to believe most strongly in the judges that rule in their favor (if the judge agrees with me, she/he must be pretty smart!).

Should some supervisor tell judges how to rule on cases? My position is an unequivocal "no." The situation has been in the news in Washington state recently. On May 20, 2014, the Seattle Times ran an article titled State Insurance Office Defends Whistle-Blower's Removal.

Allegedly, the Chief Presiding Officer, Patricia Peterson was "in the midst of an intensely contested case when she was removed from her position and placed on paid leave." The day before that, she allegedly filed a whistle-blower complaint. In it, she alleged, "that OIC (Office of the Insurance Commissioner) Chief Deputy Commissioner Jim Odiorne had violated state law by attempting to influence her on cases before her." The allegation is essentially that this official communicated with her ex parte about pending matters.

The story says that Ms. Peterson has been the chief presiding officer for 19 years, with nine years of experience prior to that also presiding over cases. The Times says that she is "essentially a judge." She says that her direct supervisor "made it clear that he would evaluate her on whether her decisions support the commissioner's position." She concluded that Mr. Odiorne was "clearly threatening my job." The Executive Director of the Washington Federation of State Employees said that he believes the OIC "is trying to influence cases," which he believes is not appropriate.

According to a story on crosscut.com, Ms. Peterson is now represented, by a former Washington Supreme Court Justice, Philip Talmage. The issue has entered the political arena in a hearing before the Washington Senate Law and Justice Committee. Talmage is suggesting that all hearings should be conducted by an independent agency like Office of Administrative Hearings (OAH), an agency like the Florida Division of Administrative Hearings of which the Office of Judges of Compensation Claims is a part.

The separation of the fact-finding from the agency-making policy, he says, would facilitate independence. Mr. Talmage alleges that agency heads in Washington can change the decisions of hearing officers within their own agencies under current law, which would change if those decisions went to the OAH instead. He argued that "if someone can influence an independent hearing officer behind he scenes, it is not due process."

Similarly, according to the Lewiston Sun Journal in June, a legislative committee in Maine voted to continue its monitoring of the state's Department of Labor. There, an investigation concluded that the Governor, Paul LePage and other state officials "had pressured appeals hearing officers" regarding decisions in unemployment compensation claims.

There was another story earlier in the year regarding allegations that the Executive Director of the Maine Workers' Compensation Board instituted a rotating case assignment process for judges there. Some alleged that the process was implemented to penalize a particular "liberal" judge based on complaints from a particular employer. Some alleged that this "sent a message telling other hearing officers to decide more cases in favor of" that particular employer. 

It is critical that both sides to any workers' compensation case, that is the injured worker and the employer, receive a fair and impartial hearing. That is fundamental procedural due process. As leaders, we should have expectations for adjudicators. They should be at work and diligent. They should be attentive to their obligations and timely in their dispositions. They should be courteous and unbiased in their demeanor. They should follow the law. They should explain why they have made their decisions. 

They should not be pressured, or feel pressured, by management, labor, or politics. 

Eliciting Effective Testimony

In June I attended an educational program and the conversation somehow turned to effective advocacy. It is worth noting that many attorneys think they are effective. Some think they are Perry Mason (for those of you too young to recall this TV lawyer, he managed to elicit amazing confessions on cross-examination, often after miraculously producing the "smoking gun" document that was unassailable). 

Most are simply not Perry Mason, and some are just not very effective. It is rare when you pull that "smoking gun" from the file and watch as the witness melts like the wicked witch of the west recoiling from water. Often times such maneuvers are anticlimactic and some attorneys have told me they have seen the "smoking gun" maneuver be downright distracting. 

I do not say that to insult attorneys. I say that because we all need to remain conscious that we can do a better job. I have read thousands of depositions, which are the main method we use in the workers' compensation market to both memorialize and present testimony. How can an attorney be effective? At the outset, remember in workers' compensation there is no jury. Pulling that document on cross, with a flourish, and proffering it to impeach with bravado is unlikely to be as important as the logic and explanation counsel provides. 

Reasonably early in my litigation career, I was schooled in expert testimony by attorney Paul Doolittle. We were  scheduled for a psychiatrist's deposition. Mr. Doolittle arrived early as the doctor was his witness. In that era it was common for injured workers in Florida to select their own treating physicians. As a result he was sitting in the doctor's office guest chair, leaving one other guest chair for the court reporter and relegating me to a beanbag chair on the floor. Not very dignified at the time, but quite a memory in retrospect. 

At the time I looked up to Paul in that deposition (I was on the floor in a beanbag and so I was looking up to everyone). In retrospect shortly after that deposition, I looked up to Paul (all kidding aside) for the job he did, his organization, and the education he provided me. 

At the time, I was used to the expert testimony paradigm in which the medical records were attached, a few conclusory opinions were highlighted from the records, and the "reasonable degree of medical probability" (yes, it was that long ago) was confirmed. Mr. Doolittle took a different course that day though, and taught me a lot about how to construct a persuasive evidentiary foundation. I used his process often after that and have been grateful to him for teaching it to me. It occurred to me as I told the story at the recent educational program that I likely never thanked him for the lesson. 

What Mr. Doolittle did that day was never taught to me in law school, but it should have been. It was very effective. He began by confirming that the psychiatrist had reviewed the treatment records of other providers with which he had been provided. He then read from the Diagnostic Statistical Manual, confirming the definition of the diagnoses for which he was claiming compensability. He asked the doctor to agree that this was his diagnosis of the claimant. He then asked if that diagnosis was documented on his office note of a particular date (first mention) and that it was reiterated in a series of the psychiatrist's office notes thereafter. 

This was not a long process, a few simple questions. Part of the power of the way he organized this is in the fact that he got the conclusions out of the way early, succinctly, and clearly.

Then he got down to business. This diagnosis had a variety of specific criteria. The one that sticks with me to this day had to do with weight, gain or loss I do not recall. Mr. Doolittle asked if the applicable symptom (weight gain or loss) was a criteria for this diagnosis according to the DSM, and the witnesses acknowledged. Then he proceeded through about ten office notes in the treatment records and asked the psychiatrist to acknowledge the claimant's recorded weight on each such visit, concluding with the question to the effect of "does that progression of weight change satisfy the criteria for this symptom of (diagnosis) in the DSM" (again, or something to that effect). The doctor again affirmed. 

Mr. Doolittle went through the whole list of symptoms/criteria for that diagnosis the same way. The detail and specificity were compelling, the organization of the information was impeccable, the effect was logical, organized, and therefore impressive. My cross-examination was what it could be. My expert did not concur with his and so the case was not over. My point is not that the examination will always put the case away, like a knock-out punch. The point is that if the testimony is well organized, logically progressing through the story to be told, and opinions are reinforced with factual support, it is powerful. 

What is not powerful in my opinion is the "my dad's bigger than your dad" argument that we (likely not the ladies, but they nonetheless likely heard the boys) exchanged on the grade-school playground. As children we argued for hours about things, rarely making points or providing support, but just arguing. I would suggest that too much of that has survived into the practice of law. My expert is bigger than your expert is rarely persuasive. 

That line of thought is often seen: "doctor tell us about your experiences at HARVARD, and how they led to your diagnosis." Certainly, making an evidentiary record of your expert's qualifications is important. However, there is no magic that comes from Harvard, Yale, or the Mayo Clinic. Fine institutions all, certainly, but just the affiliation with one does not render that persons every future thought unassailable. 

What makes the opinion(s) or conclusion(s) unassailable (or at least harder to assail) is the ability to lay out the logical progression that lead to the conclusion. My third grade teacher was right when she kept telling me to show my work (It was after law school that I realized that she was also right that to my chagrin I would find a way to use math in my everyday life). In school, I knew the answer, I wrote the answer, I got it wrong. Why? I did not show my work. 

Asking the doctor if she went to Harvard, diagnosed this, believes it is related to the work accident, and holds her opinions to a reasonable degree of medical certainty is much like writing the answer. I am not saying you cannot win with it. What I am saying is that you are far more likely to win with it if you show your work. Walk the witness through the process with some specificity, some facts, that logically lead to that ultimate opinion you want to prove. 

I have seen it done by many attorneys. I have seen it done well and even exceptionally. I have also seen attorneys try to channel Perry Mason with their smoking gun document. I think the latter is a gamble that lacks the probability for success of the former.  

New CDC Report on Opiods

The Centers for Disease Control (CDC) recently issued a report on opiod painkillers. It concludes that prescriptions for opiods remain more common in the United States than anywhere else in the world. In 2012 there were 259 million prescriptions written for painkillers in this country. The report concludes this is "enough for every American adult to have a bottle of pills." (In the interest of full disclosure, I did not get mine, so someone must have gotten my share).

Drug overdose and interaction remains a problem in this country. According to the CDC "deaths from drug overdose have been rising steadily over the past two decades." Each day, "113 people die as a result of drug overdose and another 6,748 are treated in emergency departments for the misuse or abuse of drugs." The CDC says that 9 of 10 "poisoning deaths are caused by drugs."

The report quantifies the number of prescriptions per 100 people in each state (in parenthesis that follow). The five states with the most opiod prescriptions were Alabama (143), Kentucky (128), Oklahoma (128), Tennessee (143), and West Virginia (138). These are labelled as the "highest" states in the study. The five states labelled the "lowest" volume were California (57), Hawaii (52), Minnesota (62), New Jersey (63) and New York (60). 

Florida is in the large group of 21 states categorized as "below average" in the study, with 73 prescriptions per 100 people. The study is encouraging in that regard, fifteen states characterized as average, twenty-one as "below average" and the five listed above as the "lowest." Forty-one jurisdictions listed as average or below, and only ten listed as "above average" or "highest." 

The study is not encouraging for the south in general. The five "highest" states includes three traditionally labelled "southern states," Alabama, Kentucky and Tennessee. The five "above average" states include Arkansas (116), Louisiana (118), and Mississippi (120). In the south, Georgia (91 in the "average" group) and Florida (73 in the "below average" group) are the exceptions. 

The report lauds the efforts of a few states specifically, New York, Florida, and Tennessee. 

New York gets credit for their statutory requirement that physicians check the state's prescription drug monitoring program (PDMP) before prescribing painkillers. This was enacted in 2012 and in 2013 New York saw a "75% drop in patients who were seeing multiple prescribers to obtain the same drug." PDMP seek to monitor the volume of prescriptions individuals receive. Letting doctors know who else is prescribing what for their shared patient is powerful knowledge. 

Florida is mentioned for its efforts to regulate pain clinics and the prohibition on physician dispensing of opiod narcotics in 2010. This led to more than a "50% decrease in overdose deaths from oxycodone." Florida has a PDMP also, but physicians here are only required to put information into the database they are not required to check it before making or filling a prescription. 

This compares interestingly with Tennessee, which is lauded by the CDC for their 2012 legislation requiring physicians to check the PDMP before prescribing painkillers. According to the report, this led to a "36% drop in patients who were seeing multiple prescribers to obtain the same drugs."

Obviously, there is some progress across the country. There are periodic news stories that document various state efforts. This spring, the Atlanta Constitution reported on the conviction of two who "operated a pill mill pain clinic" in Cartersville, Georgia. These two "worked to procure and distribute oxycodone," and "directed the clinic's doctor to see as many patients as possible and to prescribe as many pills as possible." Coincidentally, the two convicts were Florida residents.

It may be a coincidence that Florida regulated physician dispensing of opiods in 2010 and Florida residents were shortly thereafter convicted of running a pill mill in neighboring Georgia. It may be coincidence that Florida painkiller prescriptions have dropped so markedly recently. It may be coincidence that the column of states including Michigan, Indiana, Ohio, West Virginia, Kentucky, Tennessee, Mississippi, and Alabama (with the Carolinas and Arkansas, Oklahoma, and Louisiana on the fringes thereof) represent the highest number of prescriptions per 100 people. It may be coincidence that so many of the states with serious issues are in the south and the industrial mid-west.

I have my doubts that coincidence drives the trends. These states face a serious challenge and will have to do more to curb the problems.

Despite the improvements, there is likely more that can be done. The New York and Tennessee requirements for providers to check the PDMP is perhaps the most encouraging. New York's seventy-five percent drop in patients using multiple prescribers is difficult to argue with. As efforts are undertaken, there is the potential that neighboring states will feel effects. Moving a population away from these medications will not come easily or without continued effort. This is true for the states and for the people that have become accustomed to using these substances. 

There is no reason for drug interaction and overdose deaths to be rising in this country. Unfortunate consequences from these substances will continue to challenge us though, and the real question is what we will do about it.

Can I get a "Team Gulp" with that Please?

There has been much debate recently about the “big soda” effort in New York. The details on obesity and efforts to curb it by restricting portion size were in this blog about fourteen months ago in Get me a Huge Soda Please.

The New York State Courts, concluded their review of the situation in late June. The New York Court of Appeals, which is the highest court in their state system, concluded in a 4 to 2 decision that the New York City Board of Health exceeded its authority, under separation of powers, when it banned the sale of soda (pop, soft drink, coke) in portions larger than 16 ounces. The city could appeal to the U.S. Supreme Court, but with a win record of 0 and 3, they will likely think hard before doing so. 

The plan has often been described as the “big gulp ban,” a reference to the offering of national chain 7-11. According to Smithsonian.com, we have 7-11 to thank for large soft drinks. In a May 2013 story, it says that “30 years ago, the average soda serving was just six ounces.” Then 7-11 pioneered the 32-ounce “Big Gulp,” and today you can choose between that size, the “52 ounce X-treme Gulp, the 64-ounce Double Gulp, or the astonishing gallon-sized jug of soda called the Team Gulp.”

Soda portion control has been an interesting debate from the outset. Curiously, the prohibition would have prevented the sale of “big sodas” in fast food restaurants, delicatessens, and movie theaters. The ban only applied to soft drinks, but not to fruit juice, milkshakes or alcohol, regardless of their calorie content. The ban did not apply to calorie-free sodas either. The ban would not have applied to convenience stores or grocery stores. So, the so-called “big gulp ban” would not even have addressed the big gulp sold at 7-11 or similar portioning at other non-restaurant retailers.

Another interesting point, according to the Washington Post,  is that the ban did not address or apparently even consider the “free refills” concept. Yes, it prohibited restaurants from providing cups larger than 16 ounces for sugary soda, but it allowed customers to fill that cup as many times as they wished. What fast food does not allow free refills in today's market? 

I struggle to find any purpose in the regulation. If the restriction had been found to be constitutional regulatory action by the courts, then a patron could drink all the sugary soda they want in a fast food restaurant (continuously refilling their 16 oz. cup, but there is the exercise walking back and forth to the soda fountain) and could buy gallon size sugary soda Team Gulp (or similar) from a convenience store. What behavior was going to be curbed by this ban?

In a fast food restaurant, a patron would not have been precluded from buying a 32-ounce diet soda cup, as the ban did not apply to cups or serving sizes for calorie-free soda. So the customer steps to the counter, orders a “super-size” hamburger meal and a 32 oz. diet soda. Then, steps to the soda fountain and fills the diet soda cup with a sugary substitute. 

Would the NY health department have required a "soda cop" to stand by the fountain to assure that the restaurant's 32 oz. "diet cups" are filled only with "diet soda?" While the Veteran's Administration system had bigger fish to fry, they made the news with a story of a man issued a $500 fine for refilling his soda cup; is that the sort of diligent and observant police work that would have been required under the NY "big cup for sugary soda" ban?

Consider the cost associated with providing a soda to a customer. I read an interesting post about the cost. According to the author, a 20-ounce soda breaks down to about $.12 for the soda, $.07 for the cup, $.01 for the lid, and $.015 for the straw. So, the $2.00 soda has a cost of about $.22. 

There is one fast food chain (of course I do not eat fast food, as that would be potentially bad for me, but I have heard) that offers a combination meal that includes two regular hamburgers instead of a single, huge hamburger. Would this or some other inventive chain not have simply begun offering a meal combination that includes two 16-ounce soft drinks instead of the banned 32-ounce? The cost of $.22 per soft drink would be unlikely to deter such an offering. Remember, the majority of that cost, $.12 for the actual beverage would remain the same if the soda were in one large cup or two smaller cups The “marginal” or additional cost of providing two cups instead of one would be the $.10 that represents the cup, lid, and straw. If one chain offered two 16 oz. cups for the cost of one in response to the ban, would all the chains follow the lead? Would they have a choice?

The Washington Post reported that in one of the early defeats for the ban, a New York Supreme Court Judge concluded that the ban was “arbitrary and capricious,” because of the many exceptions, the loopholes, and the perception that the ban provided the health department with “virtually limitless authority.” The characterization of the ban seems descriptive in light of the potential issues above.

According to the United States Chamber of Commerce, there were many engaged in this “big soda” litigation in New York. The U.S. Chamber of Commerce, The Business Council of New York State, and the NAACP New York State Conference each led coalitions of groups weighing in on the ban. I can find nothing on the web estimating what has been spent litigating this big soda ban. With the many organizations involved, the many “friend of the court” briefs, and lawyer hours invested, it would be an interesting figure to know.

Certainly, we have much with which to be concerned in today's America. Obesity is a worrisome health issue (I could stand to lose a few pounds myself). I tend to agree that we could all use a little more "green" and "fresh" in our diets. But is “big soda” (strictly in restaurants) really the issue that needs immediate focus? According to MedPageToday, the ruling last month is a “setback not defeat.” Staff writer Kristina Fiore explains that other “health policy measures faced similar stumbling blocks early on, but eventually became important health laws.”

One expert quoted in the MedPage article drew a comparison to smoking in public places. He says that in the past courts determined the NY Health Department overstepped its bounds in banning smoking in restaurants, and that decision led to the New York legislature becoming “incensed at the court” and leading to “passing legislation banning smoking in public places.” He seems to suggest that with the recent separation of powers decision, the NY state legislature or NY city council might step in now to legislate a ban on the "big soda."

The "big soda" ban seems hardly comparable to smoking. Has anyone ever documented an injury or death to someone from second hand soda? With so many exceptions, loopholes and enforcement challenges, would the "big soda" ban on large cups for sugary soda in restaurants have had any real, practical effect anyway? In Nancy Reagan's words, I would "just say no."

The ban would have caused restaurants to alter practices such as cup size. It would not have prevented “two for one” 16-ounce drink deals or filling 32-ounce “diet” cups with sugary soda. It might have encouraged consumption at 7-11 and other convenience stores instead of McDonald's and other restaurants. It would thus have given an advantage to the unregulated retail stores. It would likely have reduced obesity to exactly zero (the effect on "second-hand" obesity that seems to be implied by MedPageToday's expert is beyond me).

Perhaps there is a reason for ideas like the "big soda" ban to be vetted in the open discourse of American legislative debate? Perhaps the NY "big soda ban" with its loopholes and questionable logic would not have survived an open debate in a legislative setting, where these flaws could have been discussed? Perhaps that is why policy is appropriately made by legislative bodies elected by Americans? That is what the New York Court concluded. We will wait to see if the city seeks review by the U.S. Supreme Court. 

In the meantime, try not to sit near anyone who is consuming sugary soda, you never know whether it is a risk to your health.