The Comp Awakens!

I hope you have concluded your annual Christmas, Festivus, Hanukah, Kwanza, or “other” celebration. The year draws inexorably to a close. I reflect back this week on the year that was, a collection for all of us of ups, downs, and so much in between. This is my last post for 2015. 

You may have noted that our year-end included a subtle reminder of 1977. Some of you will have been to see the seventh Star Wars (for the first time a Star Wars sequence and Episode coincide). It is titled The Force Awakens. Some fans avoided it, because of their disappointment with the fourth through sixth Star Wars movies, which were in fact the first through third Episodes (prequels). Some die-hard fans despise these. They decry anything but the original Star Wars movie, episode four, and its sequels, Episodes five and six, the second and third movies. That may seem a little closed-minded? Do the prequels not, at least potentially, add something to the discussion?

2015 was a year of workers’ compensation challenges. A primary feature is our ongoing inability to get a handle on drug abuse. An American dies every 11.2 minutes from drug abuse. Much of it is prescription medication; some is street drugs, which many claim was that person’s destination to which prescription drugs paved the path. We need to address this in 2016. Just today, some encouraging news that one manufacturer of Opiods has agreed to pay a state allegedly damaged by Opiods. 

In Revenge of the Sith (Episode III, the sixth movie, “Revenge”), Yoda tells Obi-Wan "in a dark place we find ourselves, and a little more knowledge lights our way." As an industry and a nation we need to find that knowledge regarding pain and dealing with it. Opiods are killing people. We know how pain has been treated historically, with ever-increasing dosages of medication. In The Empire Strikes Back (Episode V, the second movie, “Empire”) Yoda tells Luke that "you must unlearn what you have learned." In other words, continuing to do what we have always done may not be the solution. 

We have seen criticism of the concept of workers’ compensation in 2015. ProPublica has published a series of critical articles. Some people assert these articles are one-sided or unbalanced; others refer to them as “attacks.” In Return of the Jedi (Episode VI, the third movie, “Jedi”) Obi-Wan Kenobi tries to explain to Luke that Anakin became Darth Vader, but they are different people. He says "many of the truths that we cling to depend on our point of view." Can the combatants step back from the fight and consider each other’s perspectives? 

Is workers’ compensation ideal, or perfect? Unlikely. But is workers’ compensation “the dark side?” That is just as unlikely. Can we try to put our points-of-view aside and work toward a system that is less-than-ideal for anyone but a reasonable compromise for everyone?

I think that workers’ compensation can be improved. I have had many an “expert” knowingly shake her/his head in pity as they tell me in response that it cannot be fixed. My response is the same as Han Solo’s in Empire, "never tell me the odds." See, I know a great many people who have devoted their professional lives to comp. I have seen many changes in statute, regulation and interpretation, in Florida and elsewhere. We have to believe that this system can be improved, nothing and no one is perfect. We are each other’s solution if we think about it. 

Some suggest that “the solution” is to involve the federal government. One lonely Jedi has been wandering for 40 years preaching the federalization solution to whoever will pause to listen. This year we have again heard rumblings of federalization. What would that mean? Would Congress act to nationalize the system, pre-empt if from the states? With the current interpretations of the Commerce Clause, it seems likely Congress could. Legal scholars might argue over the Commerce Clause, the “dormant” Commerce Clause, and more. Some even question whether the executive branch could pre-empt the states without Congress. There are some intriguing aspects to this. 

From where will leadership for workers’ compensation come? There are a great many pundits and prognosticators. They are quick to tell us what we can or cannot do. I am reminded of Qui-Gon Jinn’s advice to Jar Jar Binks in The Phantom Menace (Episode I: the fourth movie, “Menace”). He says “the ability to speak does not make you intelligent." Perhaps the same could be said for some of those (us?) prognosticators? Defending himself a bit, Obi Wan in A New Hope (Episode IV, the first movie, “Hope”) questions "who's more foolish? The fool or the fool who follows him?" We might do well to ask ourselves that of anyone who would have us blindly follow to her or his solutions? Feel free to remind them, as Watto did in Phantom, “mind tricks don’t work on me;” I think for myself. 

To change workers’ compensation, you will have to believe. In Empire, Yoda uses telepathy to lift a spaceship out of a swamp. Our hero, Luke Skywalker, expresses his disbelief at this feat. Yoda acknowledges Luke’s disbelief and says “that is why you fail.” If you think you can’t, you certainly won’t. Yoda reminds us that we may "do or do not. There is no try."

2016 will bring plenty of activity on the current state-centric regulatory scene. States will continue down the formulary path, but will Florida? States will likely continue to work on treatment guidelines and evidence-based medicine. Virginia has already struggled with a medical fee schedule, and that appears to be a debate that will continue in 2016. Attorney’s fees will be of interest; In Florida, this could have very interesting consequences. Constitutionality will be of interest here and elsewhere. The debate over sufficiency of benefits is also likely not over. The market has seen instability from the failure of stare decisis and that trend too may continue. There will be change in 2016. As Shmi Skywalker said in Menace, “you can’t stop change any more than you can stop the suns from setting.”

The courts have demonstrated some long timelines in 2014 and 2015. We enter 2016 hopeful that there will eventually be resolution and guidance. In Florida, we await word from the Florida Supreme Court. History has demonstrated minimal Florida Supreme Court involvement in workers’ compensation, about one case per year, since the elimination of the Industrial Relations Commission and the establishment of exclusive appellate jurisdiction of the First District Court. But we now await three major decisions from the Florida Supreme Court, and we wait, and we wait. But as Yoda told Luke in Empire, “Patience you must have, my young Padawan."

So, let’s look to that future. As Shmi Skywalker encourages young Anakin in Menace: "now, be brave and don't look back. Don't look back." We may learn from the past, but we have to look to the future. Across the continent, there will likely be legislation and regulation that is characterized as proactive and reactive. Some will lead, others will follow. Where is workers’ compensation going in 2016? As Yoda noted in Empire, the future is “difficult to see. Always in motion is the future.”

So what advice for 2016? Well, I would wish you “good luck,” but like Obi Wan teaches in Hope: “there is no such thing as luck.” I would remind you of the advice of Gold Five in Hope, as Luke vacillates taking his shot, that we must all “stay on target,” focused on the destination that we each believe will bring progress (we could all be right or wrong, but our focus and perseverance could perhaps drive some productive conversations?) Unlike the Hope fans whom refuse to see the other movies, perhaps no one can have it all their way? Perhaps the origins of Comp, like Hope, cannot be the “end-all;” perhaps progress could mean something other than steadfast insistence on clinging to the original? 

Conversations, ideas, compromise? Perhaps we can bring “balance to the force?” as Obi Wan noted in Sith. No one is all-powerful. As Padme reminds young Anakin in Attack of the Clones (Episode II, the fifth movie): “you're not all-powerful, Ani.” As with too many others', Anakin’s hubris shines in his response, telling her “well, I should be.” It is perhaps easiest to know we are right (whatever we individually believe) and to know we “should be” all powerful and able to “fix” it as we each individually would. But, we all know that is neither rational nor practical, and so we must work together. 

Finally, in the spirit of a team approach, let’s share. As Yoda advised Luke in Jedi, “always pass on what you have learned." All the lessons we can learn through study and cooperation may prevent us from having to make each of the possible mistakes ourselves. 

Happy New Year.

Oh, to be a Federal Bureaucrat

In November, the Wall Street Journal (WSJ) ran an interesting opinion piece by Mac Zimmerman, who is director of policy at Americans for Prosperity. It was titled "The Sweet Gig of Being a Bureaucrat."

This caught my eye because, like it or not, I have been a "bureaucrat" (I hope not in the pejorative sense) for a good many years. The WSJ story is focused on those employed by the federal government generally, with emphasis on Washington D.C. Mr. Zimmerman contends that the story is emblematic of problems in government (I hope he means federal government).

He builds from the recent revelations regarding the Department of Veterans Affairs, which he describes as "a well-known sinkhole of mismanagement." CNN in one article reports that the VA may be responsible for 1,000 veteran's deaths over the past decade. Its own inspector general issued a report that says hundreds of thousands of American veterans may have died awaiting care from that bureaucracy. So, take your pick deaths it has caused or deaths it has allowed.

These Veterans are the people who served to protect us all from threats foreign and domestic. Their injuries and conditions are something we all agreed to care for in a social contract.

Mr. Zimmerman notes that the VA, despite its publicized issues and failures, "handed out more than $142 million in bonuses last year." That is tax revenue paid to employees of the VA, an agency that has been credited with making delay a veritable art form. That is reward and incentive money. We hear about the bonuses paid on Wall Street in the wake of financial collapse, but not much coverage out there on the $142 million paid by the VA to reward its performance allowing hundreds of thousands to die waiting for treatment.

He brings our attention to a recent report of the Cato Institute, concluding that "the average federal employee earned $84,153 in 2014—roughly 50% more than the average worker in the private economy." This does not include "benefits like health care and pensions." If the full compensation package is considered, the "average federal worker’s compensation rises to $119,934—nearly 80% higher than everyone else." This apparently does not include any bonus money, like the millions doled out at the VA.

This has not occurred in state government, at least not in Florida. Pay for state employees has been markedly flat over the last decade in Florida. With budget and economic challenges, there has been significant competition for revenue, and the raises or bonuses have for the most part been few and far between for Florida state workers.

In fact, though the U.S. Government has led us to believe that inflation has been minimal in recent years, most employees of Florida state government are effectively making less today than they made in 2000.

An analysis of the last 25 years makes some sense, since the WSJ article makes such a comparison. In 1990 a Florida Judge of Compensation Claims earned about $79,359 annually. Today a JCC earns 123,564. A dollar in 1990, according to the government's own calculator, would be worth $1.82 in today's dollars. That $79,359 in 1990 would be equal to about $144,197 in today's dollars. This is illustrative of many Florida state employees. Yes, we earn less today than we did 25 years ago, while federal government jobs are making more and more.

The Cato report concludes that “The federal government has become an elite island of secure and high-paid employment.” Mr. Zimmerman concludes that "pay for federal employees has grown significantly faster than for private employees." In fact, "the percentage difference between the two has doubled in the past 25 years" (since 1990, the 25 year comparison in his analysis that can be compared to the 25 year decline in Florida employee earnings).

According to the report, "the median household income in September hovered a little above $56,000. That is only 1% higher than in 2009 when the recession officially ended, and 0.5% lower than before the recession began." Average American income has decreased, Florida state employee income has decreased, but federal employee income has increased.

Conversely, he notes that "consumer prices increased 10.6% over the past six years." In other words, living is increasingly expensive, federal employees are increasingly compensated and provided significant benefits, and the rest of us, well, not so much perhaps. And, despite the protestations that inflation is not an issue, the prices have increased 10.6%. Those increases are making living more expensive.

It is curious that one segment of society. would do so well, compared to other segments like private and state government employment. That their performance would be called into question with something like 307,000 Veterans dying while awaiting these bureaucrat's attention only makes the situation more curious.

Veterans deserve better. Why is this growth in federal payroll and benefits receiving so little attention? Why are the Veterans receiving so little attention? How does a government running trillion dollar deficits, with a national debt that has doubled in the last seven years, find money to pay $142 million to some of the best paid employees in the country?

There are many questions raised by this WSJ piece. 

How will You be Known?

Do you have a reputation? Perhaps everyone does, and it is just a matter of what reputation?

There was a great movie a few years back, The Pirates of the Caribbean. Johnny Depp plays the part of Jack Sparrow, an intriguing pirate. He is introduced early in the film, shown sailing into port and cavalierly abandoning his sinking/sunken boat dockside.

Shortly thereafter, he rescues the movie's heroine, only to be confronted by the local law, in the person of Commodore Norrington. An exchange ensues between the Commodore and Jack Sparrow.

Examining Captain Sparrow's belongings, the Commodore examines a flint-lock pistol and says "no additional shot, nor powder. [opens Jack's compass] A compass that doesn't point north. [smirks; partially un-sheaths Jack's sword] And I half expected it to be made of wood. [re-sheaths the sword]. You are, without doubt, the worst pirate I've ever heard of." Captain Sparrow with a grin proudly replies "but you have heard of me."

Long before Pirates, Irene Cara won an Academy Award in 1980 for her hit song Fame. In it she questions "don't you know who I am? Remember my name." She says she's "got what it takes," and reiterates throughout the refrains "remember my name" and "fame," and "I'm going to live forever." The message is catchy.

Way before Fame, Napoleon Bonaparte is credited with saying that "glory is fleeting, but obscurity is forever." Is there benefit in notoriety, fame or glory? Some seek it, others have it thrust upon them. William Shakespeare wrote "some are born great, some achieve greatness, and some have greatness thrust upon them." Is fame or recognition really any different?

Does fame or greatness find you through your actions in this community of workers' compensation? Is there someone out there that might say "you are, without doubt, the worst (adjuster, lawyer, nurse case manager, risk manager, etc.) I've ever heard of?" Should your response be a proud homage to Captain Sparrow, "but you have heard of me?" 

Or are you anonymous, working the continuous and unfortunately sometimes contentious world of claims litigation? Might someone say of you "you are, without doubt, the BEST (adjuster, lawyer, nurse case manager, risk manager, etc.) I've ever heard of?" My hope is that we would each strive for our reputation to be that; I hope we would never be satisfied with simply "but you have heard of me" for any reason, perhaps bad, perhaps the worst?

In February, the OJCC will sponsor another free continuing education program in Tallahassee. It will be a phenomenal event. The leader that organized this program is Hon. John Lazzara, a name that has become synonymous with Florida workers' compensation adjudication. I dread the day there is no Judge Lazzara in the OJCC. A committee of Judges Anderson, Dietz, and Humphries have also played a huge role in conceiving and planning this program.

We were privileged to have a phenomenal group of professionals volunteer their time and resources to present and moderate the 2016 program. Some will travel hundreds of miles to make their contribution. Some you may know already, and the others you will come to know. They are the kind of professionals you will hear of for the right reasons. 

Today I thank the following (in alphabetical order after our hosts), without whom we simply could not produce this program. 

Hon. Clayton Roberts, Chief Judge, Florida First District Court of Appeal

Steve Rissman, Esq., WCI Program Chair

Hon. Wilbur Anderson, Daytona Beach

Crystal Chancey, WC Claims Manager, Publix Supermarkets

Steve Coonrod, Esq., Tallahassee 

Mary Cruickshank, Esq., Tallahassee

Hon. Robert Dietz, Melbourne

Hon. Judge Richard Ervin (ret.), Tallahassee

Corlis Hill, Claims Adjuster, City of Tallahassee

Hon. Marjorie Renee Hill, Gainesville 

Hon. Ray Holley, Jacksonville 

Kathleen Hudson, Esq., Florida First District Court of Appeal

Hon. Ralph Humphries, Jacksonville

Mary Ingley, Esq., Florida First District Court of Appeal

Paolo Longo, Esq., Orlando 

Hon. Ellen Lorenzen, Tampa 

Hon Tom Portuallo (Ret.), Jacksonville 

William Rogner, Esq., Orlando 

Todd Sanders, Esq., Florida First District Court of Appeal

Sara Steele, Esq., Florida First District Court of Appeal

Tod Stupski, Deputy Director, State Employee Workers’ Compensation Claims 

Michael Winer, Esq., Tampa 

Hon. Nolan Winn, Pensacola 

Also a big thanks to our co-sponsor, WCI. Without the help of the WCI and Resource Managers Inc. (RMI), we could not produce a program like this; our thanks to: 

Jim McConnaughhay WCI

Stephen Rissman (WCI)

Cathy Bowman (RMI)

Woody Douglas (RMI)

Shirley Kendall (RMI) 

Kathy Shelton (RMI)

The registration information is attached to an e-newsletter sent in November. It is here if you wish to review the program details and register. See you in Tallahassee!

Attorney Fee Reform

Attorney's fees are in the news. Not in Florida, here we await the next development from the Florida Supreme Court in Castellanos and those other cases upon which the Court has invited briefs (the "companion cases"). 

But  in June, the Oregon Governor signed a new attorney fee bill. According to WorkCompCentral, the result will be that "claimants' attorneys" will be compensated "for more services," and they will be able to "collect interest in cases where the employer challenges an award of attorney fees." These are two interesting topics.

There are limits on attorney fees in Oregon. Attorneys fees there are capped at $4,000 "where an attorney successfully argues a carrier or self-insured employer unreasonably delayed or denied payments." Before this reform bill was signed, attorneys were not "paid for working on these cases." 

So, one might argue that before the recent Oregon reform Florida's attorney fee provisions were more generous than Oregon's. That is hard to quantify. I have read fee statutes from a variety of states, and they are very difficult to compare to one another. The specificity of their provisions, in some cases to particular classes or periods of benefits, is interesting and intriguing. 

Generally, when the statutory law is changed in Florida, the substantive provisions apply prospectively, to the future, only. If a procedure is changed, then that procedure may be applied to cases involving accident dates before the law was enacted. Generally speaking, procedural changes are applied retroactively and substantive changes only prospectively. 

It is a fair bet that an attorney fee statute change like this would be deemed substantive in Florida and applied only to recent and future claims. The Oregon bill, however, is specifically intended to apply to any "decision issued on or after January 1, 2016." (emphasis added). The legislature intends that regardless of the date of accident involved in a particular case, or when a claim was filed in that case, the new fee statute applies if the decision on the fee comes after December 2015. That is interesting. 

Some would argue that this puts a burden on the party paying. They would argue that the insurance premium collected back in 2010 was based on what claims might cost under the law in effect that year. To now add liability for those past claims might seem to add cost without compensation. Most benefits are fixed by the law in effect on the workers' compensation date of accident, for this reason. 

Others might argue that restrictions on fees or benefits, fixed in a particular year, do not keep pace with the market when inflation changes the relative value of goods or services. Inflation may change what fixed dollar amounts are actually worth. 

Another interesting element of the law will require some consideration of the effects of inflation. The Oregon Workers' Compensation Board will now have to "review attorney fees every two years to ensure payment is reasonable for the amount of work lawyers put into representing injured workers." 

Inflation is a complex subject. There are multiple ways of considering inflation, and to some extent your conclusions about whether there is inflation, and how much, is a product of what you analyze (or buy). The U.S. government defines what is considered in determining the Consumer Price Index, or CPI. That calculation measures a "market basket" of certain consumables. By comparing the cost of that basket today against the same basket at some point in the past, they tell us if prices are rising, declining, or static. 

This does not always necessarily equate to our personal experience in a micro-sense. Though the government tells us that inflation is minimal over the last few years, the price of bread, milk and eggs have certainly increased in my neighborhood. Possibly, other good's prices have decreased, which could make the whole "basket" look reasonably similar. Or, it could be that bread and milk are not included in the basked of what is calculated. 

So Oregon will now try to do an administrative evaluation bi-annually to assure that its workers' compensation attorney fees are reasonable. That is a different approach than we have taken by codifying an alternative fee in Florida for some (medical only) claims of up to ten hours at $150.00 per hour. That rate and hour limitation is in the statute, and has not changed since that provision was enacted, about fifteen years ago. 

Another element of the Oregon change worth further discussion, is allowing attorneys to "collect interest in cases where the employer challenges an award of attorney fees." In Florida, there can be delay that results from litigation. An attorney might claim fees are due, and that could be denied by the employer or carrier (e/c) The attorney would file a verified motion for fees, and the E/C is required to file a response. 

In the normal course of our procedure, it should take no more than 90-100 days for this issue to be heard, and our judges have been reasonably consistent in producing final orders within 30 days of trial. In all, a fee determination should usually be concluded with a trial order in less than six months; most are adjudicated more rapidly. Of course, the trial decision could be appealed, and review might take six months or more. 

But the point is that for this six months, or year if appellate review is sought, the claimant's attorney does not have the money for that fee. It appears that the Oregon law change will allow the attorney to collect interest on that fee amount. This may be an incentive for the E/C to resolve fees when they can, without litigation, because unresolved fees become more expensive the longer they require for resolution. 

As Florida waits for the Supreme Court, it is interesting that limits on attorney fees, and fee reform generally, are the subject in other states also. 

The Florida Court Declines Review of Padgett

In a brief order dated December 22, 2015, the Florida Supreme Court declined to review Padgett v. State of Florida. This saga began with a Miami Circuit Judge presiding over a case involving an injured worker, Cortes, and his employer, Velda Farms. Those two resolved their differences, but the Florida Workers' Advocates (FWA) and Workers' Injury Law and Advocacy Group (WILAG) had "intervened" in the case, meaning they also became parties.

With Velda Farms no longer in the case, a defendant was needed though. The trial judge allowed FWA and WILAG to change the name of the case. He allowed a new injured worker, Elsa Padgett, to join the plaintiffs' side of the case. Then the name was changed to Padgett and FWA v. State of Florida. 

At that point, it would have been helpful for the plaintiffs to "serve" The State of Florida. When a lawsuit begins, it is "filed" which creates the case with the court system. Then the defendants are "served" which is how the defendant knows that it or they are being sued. In America, this action of being "served" is important, because it is the "notice" that we call due process under the law. Procedural due process is protected by the Constitution, and it is comprised of two important rights, the right to "notice" and the right to an opportunity to tell your side of the story, called the "opportunity to be heard."

The Third District Court concluded that changing the name of the case to include "The State of Florida" as a defendant was not sufficient to put the State of Florida on notice. The Court concluded that sending the State of Florida a notice of the name change was likewise not sufficient for notice. The defendant has to be "served" with the lawsuit. The Third District also concluded that the question of constitutionality was moot by the time the Circuit Judge ruled on that question. The Third District's Opinion is an interesting read. 

Because the District Court disposed of the case with that decision, it never reached the due process question regarding Ms. Padgett's employer. She became a plaintiff in the case (Cortes' case against Velda). Her employer, from whom she was seeking damages in this lawsuit, was never invited to the case. Her employer, the one that would apparently have been liable to pay her damages if she prevailed in this lawsuit, was never named in the lawsuit, never served, and never (apparently to this day) given any opportunity to be heard in this case. That has often been mentioned by curious lawyers discussing the case. 

The Florida Supreme Court order of December 22, 2015, in the case now styled Florida Workers' Advocates, et al. v. State of Florida, Case Number: SC15-1255 (Lower Tribunal Case(s): 3D14-2062)(a/k/a Padgett) states: 

This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Article V, Section 3(b), Florida Constitution, and the Court having determined that it should decline to accept jurisdiction, it is ordered that the petition for review is denied. No motion for rehearing will be entertained by the Court. See Fla. R. App. P. 9.330(d)(2).

About 60 years ago, writing for the United States Supreme Court in Brown v. Allen (1953), Justice Jackson observed that "we are not final because we are infallible, but we are infallible only because we are final." A paraphrase of this has been a favorite of Supreme Court scholars since: "the Court is not last because it is always right, but it is always right because it is last." As a general rule, the Supreme Court is the end of the road for litigation. Its decision is the last word.

There will be no rehearing or reconsideration of Padgett in Florida's courts, the Court's December 22, 2015 order says so. The Supreme Court can pre-emptively deny motions for rehearing that have not been written, filed or read yet.

There will be those who will immediately ask "can this order be appealed?" No, not "appealed." An Appeal is something to which we each have a right in Florida, but that right ends with one appeal. The "right" to appeal in this instance was the right to appeal to the Third District. Any appellate review beyond that is not a "right" but is instead what we call "discretionary review."

Certainly, the Florida Workers' Advocates could ask the U.S. Supreme Court to review the case further by petition for writ of certiorari (this is how discretionary review is requested, and is how FWA and WILAG unsuccessfully asked the Florida Supreme Court to review this). The old saying is that "if you do not ask, you do not get." So certainly, one could ask ("petition") the U.S. Supreme Court to review.

Certiorari has been sought in many cases over the years, and the U.S. Supreme Court accepts a very small fraction of such cases. In fact, that Court only reviews about 100 cases each year. Can the FWA, WILAG and Padgett seek review? The answer is absolutely "yes." Are the odds in favor of the U.S. Supreme Court reviewing it, clearly "no." The conclusions of the Third District Court of mootness and notice are unlikely to compel the attention of the Court.   

Rather, it would appear that the saga that has been Padgett and FWA and WILAG v. State of Florida (or as the Third District referred to it "Padgett v. [?]") has run its course and is now concluded. 

There remain other Florida Supreme Court cases in which we await decisions: Westphal v. St. Petersburg, Castellanos v. Next Door Company, and Stahl v. Hialeah Hospital. So many interesting issues. Last Christmas I said 2015 would be an interesting year at the Florida Supreme Court. I was wrong; for the most part it was quiet. Many of us spent the year marking our Thursdays with a rush to the Court's decision webpage, reminiscent of a child's rush to see what Santa left under the Christmas tree. We had a great many anticlimactic Thursdays in 2015. 

Hopefully 2016 will bring decisions in some of these cases? In Home, singer Daughtry cautions us "be careful what you wish for, you just might get it all, and then some you don't want." Keeping this in mind, I still wish for 2016 to bring closure for Florida on some of these important issues. There are those out there that think Jerry Clower's idea ("shoot up here amongst us") is not such a bad idea; maybe Florida "has got to have some relief" in 2016?

Form Letters

In October, 2015, a story was published about some letters sent regarding workers' compensation claims in Ft. Worth, Texas. At best, the letters were insensitive. It may be that the furor over the letters is worse because of previous issues with the city's workers' compensation program.

In workers' compensation some businesses buy insurance, and the insurance company, or "carrier," covers the risk and provides the adjusting of the claims. Some employers instead "self-insure" the risks, meaning that the employer will be responsible for losses. These are usually large businesses or in some states smaller businesses may form groups for this purpose. Some really large employers hire adjusters and do their own management of claims, check writing, etc. And some of these self-insured employers instead hire a third party administrator, or "TPA," to do their adjusting and management of claims. The TPA model seems to be the more common approach for self-insureds. 

Ft. Worth's workers' compensation program is administered by a TPA or "servicing agent." These companies adust workers' compensation and other kinds of risks, but do so with money that is the client's (Ft. Worth) or perhaps an insurance company (a carrier who is covering a risk may find it beneficial to hire a TPA if the carrier does not do a volume of business in a location and desires local adjusters and managers). Either way, these TPA companies are focused primarily on delivering a service. 

Recently, in Ft. Worth, this company sent out letters. It sounds as if they may have gone to a large number of recovering workers. It also sounds like they were form letters. Many companies use form letters. They are a convenience. They may help to provide information to large populations of people that have common interests.  

According to NBC 5 in Dallas-Ft. Worth, the letters informed recipients that Ft. Worth would be changing adjusting companies. So the old service provider mailed these letters to inform recovering workers of the identity of the new service company. That makes sense. The TPA would be the point of contact if a check is late arriving, if a treatment requires authorization, if a medical appointment is needed, etc. The recovering worker needs to know who to contact with questions or issues. 

Some took issue with the letters though. Specifically, the story mentions that the families of two deceased employees received letters. That seems logical, because families that survive someone killed in a workers' compensation claim may be entitled to ongoing workers' compensation benefits. It would perhaps be helpful for them to know who to contact with questions, issues, etc.

These two employees happened to be police officers. Each passed following injuries suffered in the line of duty. There has been a fair amount in the news lately regarding police officers, and the dangers that they face. Most of us face injury risks everyday. The statistics support that some occupations are more dangerous than others. I am confident that being a police office has a higher risk associated with it than being a judge. I sit at a table all day staring at a computer screen, which is perhaps very low risk, and by comparison there are some very dangerous jobs out there. 

While informing everyone of the change in companies makes sense, the phraseology of the letters caused concern and upset. These letters named the new company, the effective date of the change, and then closed with "we wish you a speedy recovery." Survivors of the two deceased employees found the statement difficult. Of course, those deceased employees are not going to recover, quickly or otherwise. As one put it, they made "the ultimate sacrifice."

One of the widows found the choice of words "disrespectful" and commented that she "hope(d) they would learn how to handle their business better." Another employee of the city was more critical, saying that "to get a form letter in this manner is just despicable."

A representative of the TPA company that sent the letters sought to reassure, saying "this oversight was not intentional," and that the company "regrets any hurt its communications caused these fine families."

Form letters. This story reminded me of having little kids around the house. I realize that seems an odd transition, but stick with me. I remember many occasions when falls and bumps led to those little kids visiting the pediatrician. I would make a co-payment, and the bill would go to the health insurance company for processing and payment. 

Afterward, the mail would always deliver an explanation of benefits, or EOB. I have a business degree and a law degree and those EOBs have never made any sense to me. I just look at the bottom line and see if there is a "+" figure (I need to send a check) or a "-" meaning I might get some money back. More often than not, there was no "-."

But more curiously, having taken a 6 year old to the pediatrician, I almost always received a form letter from the group health carrier about collateral sources (in other words, a question as to whether someone other than group health carrier should pay that bill). The question was always the same, "was this injury suffered at work?" I found these letters somewhat humorous. 

I sometimes thought about writing back and telling the health insurer that my 6 year old was injured at work. I thought of providing a long, detailed, description of the child's work, the long hours, and the resulting accident. Most parents would probably tell you that the majority of pediatrician visits involved virus or infections. The diagnosis of "ear infection" is not likely to suggest workers' compensation at any age, but I digress. 

I restrained myself from writing a sarcastic letter because I believed that anyone incapable of noting that the injury or illness was to a 6 year old might be as incapable of appreciating the sarcasm of such a letter. I also appreciated that I was already wasting money mailing back their form and more waste in the time to write a letter was not going to improve my bottom-line in the relationship. 

I also thought about writing back to them and suggesting that they, and I would save money if they quit sending those letters regarding 6 year old children. There was postage and the paper. I am fairly confident that sending the letters was an automated process, but as confident that someone at the health insurer had to open my return form, read it, make a note in some file or system. A monumental waste of everyone's time and an expense for the health insurer. But even when I sent the form back, I would often get an identical form a few weeks later. I was not at all certain that those on the other end were paying much attention to their own forms and frankly doubted they would read a suggestion letter.

Computers are wondrous tools. Keeping people informed is important, and on that level the Ft. Worth TPA should be praised for informing the workers' and their families of a change. But it seems that a computer could be programmed to not send "work related?" letters regarding injuries and illnesses to 6 year old children with green nasal discharge or "speedy recovery" letters to the families of police officers that died in the line of duty (or any families of any deceased employees). We have come a long way and computers are not the glorified memory-typewriters that they once were. 

At the end of the day, it may come down to a quote I heard many years ago, that "common sense is not that common." or, perhaps it comes down to the fact that "the devil is in the details." But it may also just come down to the fact that everyone is human and we will all periodically make mistakes? Computers are merely tools that do as we tell them, in a very literal sense. Computers do not make mistakes, but we that run them are very capable of doing the mistake-making for them. 

Mitch Radcliff is credited with the quote that "the computer allows you to make mistakes faster than any other invention." That may be something to remember. 

Maybe the computer can be programmed to do a better job on these form letters? While they are at it, perhaps an EOB can be designed that does not require a PhD. or an accountind degree to understand?

What Worthwhile Can You do in 11.2 Minutes

Tim McGraw had a huge hit a few years ago in 2004, Live Like You Were Dying. About receiving a shocking diagnosis and less-than-optimistic apparent predictions regarding survivability, the song says that "I spent most of the next days . . . talking 'bout sweet time."

I have a friend that recently got such a shock, learning that lesions had developed on the brain. Conversations apparently followed about specialists, biopsies, operability, and clinical trials. These are the kind of conversations that we may find uncomfortable and depressing, about friends, from long-distance, and I struggle to comprehend how they must feel in first-person.

I have had this friend on my mind often in the last few weeks. I have thought about time and how we take it for granted. Time can seem glacial in our youth, seemingly the next school holiday will never arrive. Unfortunately, even our youth learn that when a deadline approaches, that test, that term paper, time passage perversely and inexplicably accelerates. As I age, I feel time accelerating and perhaps time is framing my perspective more than it ever has. Time seems so short.

How do we spend our time, and what is the relevance of that 11.2 minutes in the blog title?

On average, we spend 19 minutes each day reading. That is about 1.5 eleven minute periods each day. That is not much time reading, and apparently young people spend even less. 

Americans spend an average of forty minutes each day on Facebook and an average of about 46 minutes each day in an automobile. So, each are about 4 eleven minute periods.

The average employed American works 7.8 hours, or 468 minutes each day, about 42 eleven minute periods.

Sleeping? That averages 512 minutes each day, about 46 eleven minute periods.

Two years ago, I penned Dying to Me Don't Sound Like all that much Fun. That post centered on the 2012 statistics regarding death in America, compiled by the Center for Disease Control (CDC). Prescription overdose was a "national epidemic." In 2012, the CDC shocked us by reporting that drug overdose was more likely to kill an American than automobile accidents. That was a product of growing overdose and shrinking auto death, but was a surprising headline nonetheless.

According to a 2013 Huffington Post article, deaths in 2010 from drug overdose totalled 38,329, or "105 every day." The article noted that by "comparison, traffic accidents were responsible for 33,687 and firearms 31,672. There was a great deal of hand-wringing and calls for change. States went to war on "pill mills," and millions of dollars were invested in prescription drug monitoring programs. Some states even mandated that prescribers check those databases, others just require that the prescriptions are entered in them.

Progress was reported. It is not an easy problem. This statistic is about all drug overdoses, and much of that occurs with street drugs and not prescriptions. But many contend that prescription pain relievers are "gateway drugs" to the street drugs like Heroin. They seemingly suggesting that all drug overdoses are possible interrelated. In the end, does it matter which drugs are the last straw?

Last night (like most everyone else in America) I ventured to Star Wars, the Force Awakens. It ran for 136 minutes, or roughly 12 eleven minute periods. I do not really pay attention to all the ads that precede the movie, and instead entertained myself with my antiquated i-phone. Imagine my surprise, when I ran across a CNN article pronouncing Drug Overdose Deaths Reach All Time High. 

Well, that cannot be right? We have taken such bold societal steps? I thought we had drug overdose on the run?

No, CNN reports that we have not made any dent in American drug overdose deaths. In fact, the rate increased double-digits, fourteen percent, from 2013-2014 (2014 is the year under review, and the 2015 results will not be out for months). The 2014 death toll for American drug overdose was 47,055, which was "1.5 times greater than the number killed in car crashes." Just a few years ago we were flabbergasted (one of my fellow judges would instead say "gobsmacked") that drug overdose exceeded car accident deaths, and now American overdose is 1.5 times the vehicle death rate!

Here is some interesting information on the rates of death from automobiles, guns and drugs. 

A little math is in order. Sixty minutes each hour, times 24 hours each day, times 365 days each year equals 525,600 minutes each year. I did the math, but if you doubt me listen to Jonathon Larson's Season of Love released back in 1996 in the musical Rent. Catchy tune, in which they keep repeating this figure, driving the total home, and asking how we use that time. 

Well, if you divide that 525,600 by those unfortunate 47,055 overdose deaths in 2014, you get one American overdose death each 11.2 minutes all year long. In the short time you likely spent reading today, someone died of an overdose out there. There are 129 such deaths each day.

We see a great deal of news coverage about violent death in America. As Don Henley sang in Dirty Laundry, lampooning the news industry, "it's interesting when people die, give us dirty laundry." With dash cameras and cell phones, we increasingly see video of tragedy and violence. But where is the video of those 129 people dying of overdose each day? Tragically, the deaths may eventually get someone's attention, but an even greater tragedy is likely the loss of productivity, vitality and activity that results from the addiction of those who suffer and struggle but do not die.

Far more overdoses in 2014 than gun deaths or automobile deaths. But for some reason, this pandemic does not merit media attention except for a brief mention each year when the annual statistics are released. The entire December 18, 2015 CNN story is 1,351 characters long, not even a letter for each of the 47,055 deaths. This is a little less than the attention CNN paid that day to the financial take of the new Star Wars movie (1,381 letters). Yes, 12 Americans died of overdose while I watched The Force Awakens.

In 2014 the American population was terrified by Ebola. It was a news story on every platform, despite the majority of its impact being thousands of miles away. The total worldwide death toll from Ebola in 2014 was about 4,877 according to the International Business Times.  American overdose death was almost ten times the world-wide Ebola death toll. But it sure did not make the news. 

CNN reports that the leading states for drug overdose are "West Virginia, New Mexico, New Hampshire, Kentucky and Ohio." I am so pleased that Florida did not make the top 5, but then guilty for this selfish reaction. The death toll is staggering. The story notes that "since 2000, opiod drug overdose deaths rose 200%." Nearly half a million American lives have been lost to opiod drug overdose since then. 

For perspective, that is more than the 418,500 America lost in World War II, according to the National World War II Museum in New Orleans. This century we have lost more Americans to drug overdose than to the entire catastrophe of World War II!

Seasons of Love from Rent asks us "how do you measure a year in the life," and suggests perhaps "in truths that she learned, or in times that he cried, in bridges he burned or the way that she died." 

We are on Notice and we are failing. People are dying. Tonight while you sleep, statistically, another 46 Americans will die of overdose. While you commute to work Monday or peruse Facebook, statistically, another four Americans will die. As you work through your day of emails, phone calls, trials and tribulations, statistically another 42 Americans will die. And that is only if the 2015 statistics remain on pace with 2014, without the double-digit year-over-year increases that recent years have demonstrated. All day, every day, Americans will die of drug overdose, 129 of them today, tomorrow, and on and on. 

Some are the responsibility of pushers and dealers. Some will suggest that some deaths are intentional and if drugs were not the vehicle, another would be found. Some are suggesting that some volume are the responsibility of physicians. Los Angeles and others have sought to hold the manufacturers of pain medication responsible. 

So, how will we "measure a year in the life?" Must it be in the "way that she died?"

Think "'bout sweet time," and those who learned of tough medical diagnoses this year. They will face months to come of specialists, tests, and treatments. We as a society and as individuals will focus an incredible attention on these people, and rightly so. They will be in our hearts and minds as they should be. Do we owe any less attention and focus to those at risk of death by overdose, whether it is Heroin or pain medication or Xanax?

Does it have to be in the "way that she died?"

We are better than this. 

Fraud and Jail Time for a Business Owner

I have noted before that the news often reports incidents of workers' compensation fraud. In the Bumped Knee Massacree, I recently noted some fraud observations. Fraud is a tough issue, which many people react to strenuously. I am frequently approached at meetings and seminars to be told that employer fraud is an issue that does not get equal news coverage. Well, fraud is back in the news, but with a somewhat unique twist. 

In several other posts, I have noted the challenges of the misclassification issue, with which states are struggling. These include Misclassification - What it is, and Is Misclassification in Trouble? By some accounts misclassification is on the run, and by other accounts it is alive and well. Misclassification is a process through which employees are instead labelled "independent contractors," thus relieving the employer of responsibilities for payroll taxes, workers' compensation and more. 

As troublesome as misclassification is, it is not the only way in which employers can act inappropriately. A recent story highlighted a business owner in New York who, instead of misclassifying workers, invented fake workers/employees to commit fraud. He was convicted of payroll misreporting and underpaying employees, and sentenced to serve time in jail as a result. That is fairly unique in the news. There are periodically stories of an employer fined, but jail time is an attention getter. 

This business operates nine franchises of a nationally known company in New York. According to Small Business Trends, this employer did not pay "proper minimum overtime wages as required by New York State law." The employees apparently worked overtime, but the business owner did not want to pay overtime. As a general rule that overtime pay is about 50% higher than regular wages.

Of course, the employer saved money by paying lower wages. Also, however, the employer pays payroll taxes based upon payroll. The lower the payroll, the lower the payroll tax liability. The article does not mention whether the federal government will become involved to collect additional payroll taxes.

Workers' compensation insurance premiums are also based upon payroll paid. This makes sense, because when an employee is injured at work, the amount of indemnity benefits to which she or he is entitled is likewise dependent on that employee's earnings prior to the accident date. Workers' compensation insurance premiums are thus influenced by the level of overall payroll paid by an employer. So the lower wages paid benefit the fraudulent employer in multiple ways.

To hide the overtime wages, paid at the lower amount, this employer created "false identities under which he filed employees’ overtime hours, making it appear as if other workers were actually working those extra hours," at base-wages instead of the overtime rate. These are sometimes referred to as "ghost employees." It was apparently not a small endeavor for this employer; the story says that "about 300 current and former employees were affected." The impact was significant.

Last summer, the Labor Department entered an agreement with the business owner. He agreed "to pay $230,000 in back pay for his workers, $230,000 in damages and $50,000 in civil monetary penalties." The employees of this business were cheated out of $230,000. With 300 employees involved, that is roughly $766.00 per employee (if the process was uniform, but it is possible and perhaps likely that some employees were subject to this scam more than others).

According to the Business Journal, this franchisee is not alone in running afoul of labor laws. The Journal quotes the New York Attorney General calling on all "fast-food companies to step up and stop the widespread lawlessness plaguing your businesses and harming the workers who make and deliver your food."

Is the "downside" in the reported case normal? The back wages are not really a deterrent to this kind of behavior; being ordered to pay what you should have paid to begin with will not deter. That is like making someone pay for the candy bar they are caught shop lifting. If the whole downside is to pay for what you tried to steal, many will not be deterred.

But here, the thief is ordered to pay for the candy bar, $230,000, and then pay double the price, another $230,000, and then pay a fine of $50,000.  So, getting caught results in paying what was already owed, $230,000 and then another $280,000 as deterrent. The penalties are about 122%. If this downside is normal, is it sufficient? If it is sufficient, then why is "widespread lawlessness plaguing" businesses in New York?

Perhaps the owner of this business will be deterred by spending 60 days of his life in jail, instead of running his business? Perhaps the news coverage of his incarceration will be persuasive in deterring others?

High Time for Florida Change?

Marijuana holds a fascination and attraction for people. It has been illegal in America for decades, but nonetheless sees significant use and acceptance. This is discussed recently in Measuring Marijuana Intoxication. Recently states have begun electing to decriminalize Marijuana, some for medical purposes and others for recreational. The substance remains illegal under federal law, but federal officials have announced their intention to ignore those laws. 

Because of the illegal nature of marijuana, it has not seen significant testing, development and approval the way other drugs have, through the Food and Drug Administration. What are the long term effects of use? What are the side-effects? There has reportedly been an aversion to private testing and development, broad clinical trials, because of the legality issues. Medical Marijuana may even be an oxymoron. Use of it, even without the overshadow of state law criminal prosecution threats, also have serious potentials in the labor market.

Currently, state action to decriminalize Marijuana has not occurred in the south. The IB Times has published a map produced by Graphiq, illustrating the state of decriminalization by state law, which is reproduced here. State action thus far has primarily been conspicuously in the northeast and the west, with some exceptions in the northern mid-west.

Without much fanfare (if it was in the news, I missed it), a bill was introduced in the Florida House last August, HB 63 (Representative Steube, District 73 Sarasota). A similar bill was filed in the Senate in November, SB 852 (Senator Brandes, District 22, Hillsborough and Pinellas). Each are titled "Medical Marijuana" on the MyFlorida pages, but the House bill would create the "Florida Low-THC Cannabis Act," and the Senate calls it the "Florida Medical Marijuana Act." 

The purpose of the bills is to allow "registered patients and designated caregivers to purchase, acquire, and possess Marijuana in some form. The House bill is more limited, to "low-THC cannabis . . .." Both bills would legalize "cultivation and processing" in Florida.

As with many statutes, the newly created Fla. Stat. 381.99 in either bill begins with definitions. In the House version, the legalization would only affect "low-THC cannabis," which "means cannabis that has no more than 0.8 percent tetahydrocannabinol (THC); has been tested in accordance with s. 381.997; meets the standards established by the department; and is packaged, labeled and ready to be dispensed." 

There are those who find the strength a critical issue. States that have decriminalized have reported some overdose issues, while some contend there have never been proven instances. There may be relevance in knowing the strength of any particular Marijuana, although at this time there are no real strength standards published, similar to the "proof" measures mandated with alcohol. These "low-THC" parameters in the proposed House statute may seek to provide standardization of strength, to afford a basis upon which to direct safe use? 

The legalization under the House bill would be only for "medical use," which means "the acquisition, possession, transportation, use and administration of the allowed amount of low-THC cannabis. The term does not include the use or administration of low-THC cannabis by, or possession of low-THC cannabis for, smoking." The House bill would bring forms such as "topical applications, oils, and food products." 

The Senate bill is broader, however, without the limitation for "low-THC," and includes use by smoking, but limits smoking in a residence in which child care or adult care are provided for compensation. There have been some interesting questions posed about the damage that smoking can cause to lungs and heart, with some believing that Marijuana smoking could have concerns similar to cigarette smoking. 

Marijuana use would be limited to "qualifying condition(s)" which in HB 63 are (1) cancer, (2) human immunodeficiency virus (HIV), (3) acquired immune deficiency syndrome (AIDS), (4) epilepsy, (5) amyotrophic lateral sclerosis (ALS), (6) multiple sclerosis, (7) Crohn's disease, (8) Parkinson's disease, and (9) a terminal illness ("a life expectancy of 1 year or less if the illness runs its normal course"). 

The Senate bill (SB 852) includes these same conditions and adds (10) paraplegia, (11) quadriplegia, and (12) "any physical medical condition or treatment that chronically produces one of more qualifying symptoms" (which include: wasting syndrome, severe and persistent pain, muscle spasm or nausea, or persistent seizures). 

Pain is a persistent issue in workers' compensation. We are beginning to understand more about it, see Don't it Make My Brown Eyes Blue and Smoking Linked to Chronic Pain, but it remains a difficult subject. There have been many who rushed to join the opiod bandwagon to deal with pain in the 1990s, and the resulting death toll and other unintended consequences has been nothing short of a pandemic. 

Some critics may point out that the opiod pandemic occurred with the very FDA safeguards, testing and trials that Marijuana lacks. Thus, some may question the efficacy of the FDA process in arguing that proceeding with Marijuana without such safeguards is warranted. Others may argue that with approval and testing disaster has occurred, and that bad outcomes are even more likely when regimens are created without such testing and approval. There is likely to be some interesting debate on this point. 

The drug will be available only to a registered and qualified patient. To qualify, the patient must be a state resident "who has been certified by a physician as having a qualifying condition." The physician will "order" marijuana, because it cannot be prescribed. To prescribe marijuana would violate federal law and subject the physician to potential punishment. Marijuana is illegal, listed as a Schedule I drug by the federal government. To "order" marijuana, a Florida doctor may have to complete special training. 

For a patient to be certified for marijuana, under either bill, they must have been a regular patient for "at least three months immediately preceding the patient's submission of a patient registration form." The physician must "believe, in his or her good faith medical judgement, the patient suffers from one or more of the the qualifying conditions." 

There are some caveats. The "use or administration" is not allowed in public places, on public transportation or "in a registered patient's place of work, if restricted by his or her employer." It would also not be allowed in state correctional institutions, on the grounds of schools or on school buses. These caveats may seem curious from the standpoint of equal protection under the law. If Marijuana is a medically necessary product, on what basis does a society preclude those in correctional institutions from receiving equal medical care? Are prison inmates less entitle to relief of their symptoms? This point may also see some interesting debate. 

Under both bills, provision to a minor child cannot be ordered without parental consent. And, if the patient is under 21 years of age, in the House bill, or a "minor" in the Senate bill, "a second physician must also submit a patient certification form" to the department. 

The growing and cultivation would be limited to "a facility building or enclosed space" under the House bill, but might be less restricted under the Senate bill. Under the House bill the selling of Marijuana would occur in "a facility or building where no other merchandise is sold." 

There is a local option included in both bills, stating that the "department may not license any retail facilities in a county unless the board of county commissioners for that county determines by ordinance the number and location of any retail facilities that may be located within that county." So, this proposed state decriminalization for medically ordered Marijuana might not make the drug available for purchase in all Florida counties. 

Colorado has seen some marked "tourism" effect of its decriminalization of recreational Marijuana. People reportedly travel there and make purchases. If a particular Florida county elects not to allow distribution, patients might have to travel to adjacent counties to obtain their Marijuana. Those adjacent counties would enjoy the benefits of whatever tax revenue this generated (direct or indirect, people might stop for lunch while there). Thus, should the medical Marijuana bill pass, there will likely be some interesting debates at county commission meetings also. 

There is an interesting insurance element in the bills. Many are familiar with the workers' compensation proceedings in New Mexico, in which an insurance carrier has been ordered to reimburse an injured worker who sought and received medical Marijuana. There are various issues with ordering an insurance carrier to pay for something that is illegal under federal law. 

The House Bill (HB 63) creates Fla. Stat. 381.9991, which states "The Florida Low-THC cannabis Act does not require a governmental, private, or other health insurance provider or health care services plan to cover a claim for reimbursement for the purchase of low-THC cannabis." The Senate bill contains similar language, substituting "medical marijuana," and clarifying that the Florida Medical Marijuana Act "does not restrict such coverage." Thus, under the Senate bill an insurer could provide coverage for Marijuana if it wished. 

Would this caveat be enough to keep medical Marijuana out of workers' compensation? 

Discussing these bills recently with a group of lawyers, the recurring question was "will it (the decriminalization) pass?" That is the question with all legislation and is a chorus on a variety of bills each legislative session. Will it pass is dependent on so many factors that prediction is no easy task. Those who are interested should stay tuned. Time will tell whether Marijuana is decriminalized in Florida in 2016. As the bills move through the process, it is possible that the House bill or the Senate bill will be successful, and just as possible that the end result will be a compromise of some sort between the two versions.