Questions about Mediation

I have received several inquiries lately about live versus telephonic appearance at mediation. There are two basic themes to the questions. First, what is the OJCC "policy" on telephonic appearance (phrased as "what are mediators told to do"). The second is in two parts, essentially why mediators have discretion, and why certain judges do not overrule their decisions regarding telephonic appearance. A third question that comes up periodically is why mediations are scheduled as promptly as they are; such as "why can't we have more time after the PFB is filed to do our discovery and gather information." 

All of these are worthy of a response. And the response is perhaps of general interest to the public, beyond just those that inquire (one inquiry recently asserted that "countless" attorneys express similar thoughts and questions). 

There is no "policy" of the Office of Judges of Compensation Claims, other than stated in the statute and the Rules of Procedure. The statute requires that mediation of a petition (PFB) "shall be held within 130 days after the filing of the petition." Fla. Stat. 440.25(1). This seems like a significant time period to some, but it really offers a fairly small window of opportunity. 

The statute says mediation cannot be noticed until 40 days after the PFB filing. Parties need appropriate notice in order to prepare for and attend mediation. That generally means 30 days advance warning. So if a petition is filed today, May 31, 2016, the mediation cannot be noticed until July 10, 2016 (a Sunday, so July 11, 2016). Thirty days after that (the earliest we can hold mediation and give ample notice) is August 10, 2016. And the mediation needs to be set to occur on or before October 8, 2016 (130 days). 

So, essentially, we have 59 days during which to conduct that mediation (when the first date does not fall on a weekend or holiday, the period is generally 60 days). Eighteen of those days are weekends, and two are holidays (July 4 and Labor day). So, really, we have 39 work days on which to set that mediation. And, three days of that period particular period are WCI (hard to schedule). So, the available period is a fairly concise window at which we aim. Our "policy" is to follow the statute, and so this is what we try to accomplish in terms of scheduling. 

The rules (Chapter 60Q) have been in effect for more than a decade. These provided originally that "no one may appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator." The discretion of the mediator regarding telephonic appearance has been longstanding. This rule does not say "unless otherwise ordered by the Judge." However, there are those who have moved a judge to allow telephonic attendance, and there are judges who have granted such motions. Rule 60Q6.110(5)(2006).

That, of course, is up to the judge. Judges have a measure of discretion in making decisions. People sometimes are troubled by this; either because a judge declined to do so when they wished it or because a judge did so when they opposed telephonic appearance. But the Rules provide very broadly that "any request for an order or other relief shall be by motion." Rule 60Q6.115(1)(2006). Judges have discretion. A particular judge in a case may intercede on the telephonic appearance question. Another may decline to do so. 

The current version of the rules essentially says the same, although the subparagraph (a) of the rule was changed in 2014 to create a default to telephonic appearance by adjusters:

(a) The adjuster, if represented by counsel, may attend the mediation by phone unless an objection is filed with the mediator on the basis of good cause. The mediator shall have discretion to allow any party and/or that party’s attorney of record to appear at the mediation conference by telephone upon the party’s written request furnished to the mediator and the opposing party or, if represented, the party’s attorney of record no fewer than five days prior to the mediation conference. The expense of telephonic attendance shall be borne by the person or party attending by telephone.

Why does the rule provide for this? There was a great deal of discussion. The proposals for rules are published, workshops are held, hearings are held, committees are listened to, the public is listened to, and eventually rules are adopted that are intended to facilitate effective practice before the OJCC. So, why the Rules say what they say in any instance is a a long process, replete with input and suggestion from the public. 

Although some judges may order or excuse appearance by order, the discretion regarding telephonic appearance expressed in the rule lies primarily with the mediator. This has remained the same for a number of years. The answer to the second question, "why mediators have discretion," is essentially that they have the obligation to mediate the case. They individually have to make decisions about the process they believe is most likely to be effective. The rules have therefore sided with that discretion, and throughout a great many rules workshops and hearings, various positions on this discretion have been discussed. The end result of those discussions has been a general consensus that the individual mediator discretion is overall appropriate.

Several people have asked me recently about "the Governor's policy" on mediation. There was a period, during Governor Crist's term, when he directed that state agencies be cognizant of the cost of travel to do state business. This was couched in terms of financial cost, time, and resources (including emission of greenhouse gas). That was a suggestion or encouragement of consciousness and consideration. There was never a specific Gubernatorial mandate for telephonic attendance at state mediation in workers' compensation, and this suggestion or encouragement was several years ago. 

Finally, the third question is fairly well addressed in the discussion above. Why are mediations scheduled so rapidly? The mediations are set as quickly as practical. The window of opportunity is somewhat brief, and the calendar days available within that window are limited. In order to effectively pursue compliance with the law as it has been provided to us, the OJCC attempts to stay on top of the process and get the mediations set as promptly as practical. 

But, can the parties affect this? Absolutely! During that 40 day window following the PFB filing, counsel can cooperate, call each other and call the assigned judge's staff, and coordinate a date that is acceptable to all. Then, when the notice issues on the 40th day (or close thereafter), the parties receive a date they selected, without conflicts, prearranged. This will not always work with calendar congestion and limited availability, but I always encourage folks to try. 

It is well worth it and much more likely to be effective than a similar search for a coordinated date after the 40 days has passed and a notice has been served. The earlier one looks at the calendar, the less congested it is likely to be. It is logical that looking three days after the PFB filing the calendar will be more clear than looking 50 or 60 days after filing. 

Daubert better Explained

The evidentiary revolution that is Daubert has seen significant press. I have written about the Florida legislative transition from Frye to Daubert, and some of the potential implications on Florida workers’ compensation adjudication. It is interesting that the Florida Supreme Court is currently considering whether it will adopt Daubert. Experience has taught us that it is difficult to predict timing of Florida Supreme Court decisions, and the issue has been under its consideration for some months now. It appears that in July the court will schedule an opportunity for oral argument and a great many comments on the proposal have been filed. 

Notably, the Florida legislature creates statutes, and has included the Daubert standard in Chapter 90 (the Florida Evidence Code). However, the Court has adopted a practice of having a parallel set of evidence rules. This is a product of the Court's conclusion that separation of powers in government results in the Court having responsibility for procedural rules regarding how cases proceed. As I teach my Constitutional Law students, the Supreme Court is right because it is last; it is not last because it is always right. The point is that the Court's decision in this context (a state law separation of powers issue) is the last word. It is not something upon which the U.S. Supreme Court would opine, and so when the Florida Supreme Court decides it has the authority to decide whether statutes do or do not apply, it is right. 

Of course, the Office of Judges of Compensation Claims is not a court. It is part of the executive branch. The Florida Supreme Court clarified this a few times over the years, but the clearest expression came in Amendments to the Florida Rules of Workers' Compensation Procedure in 2004. There, the Court explained that it has no "jurisdiction under the Florida Constitution to adopt rules of practice and procedure for an executive branch agency." So, even though it has concluded that it can disregard legislative enactments regarding evidence, by labelling them rules and not adopting them, it cannot, through this rule analysis, adopt evidentiary standards for the OJCC contrary to legislative enactments. 

Thus, if the Court does not adopt Daubert, Frye will remain the evidentiary standard in all of Florida law, except workers’ compensation (and potentially other administrative actions). Some will struggle with such an outcome, and may find it difficult after learning of “separation of powers” in high school civics class (do high schools still teach civics and government?) Many would conclude that the evidence code is a law, and that what it contains would logically be up to the legislature. Many lawyers are confused to learn that there is a Florida Evidence Code (legislature) and then Evidence Rules (court). 

There has been a great deal written already about Daubert, but in December 2015 a very informative opinion was published by the Florida First District Court in Baan v. Columbia County (Case 1D15-0092). It is not a workers’ compensation case, but it provides a substantial factual recitation, followed by legal explanation of Daubert that makes it worthy of study. Worthy, because whatever the decision of the Supreme Court regarding the scope and applicability of the statute, it appears Daubert may be here to stay in workers' compensation and the executive branch. 

In Baan, the Circuit Court judge granted a motion excluding the testimony of an expert witness that was to testify on behalf of the plaintiff. In the area of law called “tort,” or negligence law, a usual issue is whether someone owed someone else a “duty,” or not. The expert in this instance was rendering opinions regarding that duty.

Generally, a duty is the obligation to use reasonable care to avoid injuring others. In instances where allegations are made that some professional has not acted appropriately, a tribunal will hear evidence about what is appropriate performance by such a professional. This is the "duty" of care, and is referred to more specifically as the “standard of care.”

In Baan, there was an infant who experienced difficulty breathing, and 911 was called. Columbia County Emergency Medical Services (EMS)  responded. There was evidence that the EMS crew “did not conduct any examination of him (the infant) and in fact did not even touch” the child. There was some conflicting evidence; an EMS report documented an examination, and listed vital sign findings. It also documented a history of asthma diagnosis, upon which the EMS concluded there had been an asthma attack. The crew demonstrated the use of a nebulizer (medical device for administering medicine), and departed about 10 minutes after arriving. 

About an hour later, EMS received another call, this time the infant "was not breathing at all." EMS arrived the second time to find the child in acute distress. Care was administered, the child was transported and then "airlifted to Shands Hospital," and "was pronounced dead there the next day."

An important issue in this case, in which the County EMS is being sued for its delivery (or non-delivery) of care, is whether the EMS breached its duty of care. This was the question that came before the trial court, and is an issue upon which the family of the infant (plaintiffs) sought to introduce testimony from an expert. 

Dr. Tulsiak is an "emergency room physician retained as an expert." He opined that "EMS breached the prevailing professional standard of care by failing to put the child in the ambulance on their first run and take him to the hospital for evaluation and treatment;" and that “had  the  prevailing  professional standard of care been met by Columbia County EMS, more likely than not," the infant "would have been treated for a lack of oxygen and he would have survived.”

In cases such as this, it is not uncommon for expert opinions to be offered. There are a great many smart people in the world, but they tend sometimes to know a great deal about certain subjects. For example, I do not want my mechanic performing surgery on me, but also do not want my doctor to try and fix my truck transmission.  So, when the question is whether the appropriate steps were taken to repair my transmission, an expert mechanic opinion might help us non-mechanics understand the answer. 

The legal issue came to the fore when "EMS moved to exclude his (Dr. Tulsiak’s) expert testimony, arguing primarily that his testimony was insufficiently reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)." The trial court concluded "that Dr. Tulsiak’s opinions were 'premised on speculation based on an ultimate injury and manufactured facts.'" and held his "testimony inadmissible under Daubert." The trial court then dismissed the case against EMS on the "grounds  there was  no  evidence  of  any  negligence  without  Dr. Tulsiak’s testimony."

The First District Court provided a scholarly overview of the evidence process. It noted that "in forming opinions, an expert is entitled to rely on any view of disputed facts the evidence will support," curiously citing the Federal Rules of Evidence instead of the Florida Rules. In this instance, the Court noted that it is not the trial judge's prerogative to disregard evidence that she/he finds unconvincing or unpersuasive. It is the trial judge's responsibility to determine if any of the factual evidence "provides adequate support for" the expert opinion. 

The appellate Court concluded that there was sufficient factual evidence, if believed, to support Dr. Tulsiak's opinion in this case. It explained that under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), "expert opinion testimony is admissible if the expert is qualified and the opinion falls within the witness’s expertise." This seems like a straightforward analysis, and the Court concluded that under Frye Dr. Tulsiak's opinion would be admissible. 

Under Frye, the analysis turns on Dr. Tulsiak's occupation (board certified in emergency medicine), experience ("an emergency medical service medical advisor for over 25 years at two EMS departments in Florida" and "he dedicated 98 or 99 percent of his time to active clinical (emergency) practice and worked regularly at two Florida hospitals") and familiarity with care and treatment ("treated numerous children with a range of respiratory problems, including among other things: asthma, hyperactive airway disease, bronchiolitis, congestion, pneumonia, and upper respiratory tract infections with bronchospasm.")

The Court then turned to Daubert, noting that this standard has been adopted by the Florida Legislature. The Court mentions that a question remains as to whether the Supreme Court will or will not adopt the standard, but applied that standard anyway.  It noted that the purpose of Daubert is “to tighten the rules for admissibility of expert testimony.” Under this standard, "the  trial  court  not  only evaluates  a  putative  expert’s credentials, but also serves as a gatekeeper in 'ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.'"

As an aside, this is particularly interesting in the context of workers' compensation. The point of Daubert is to prevent a jury from hearing "junk science," that is expert testimony that is not founded on science. In Florida workers' compensation we do not have juries. Daubert in Florida workers' compensation allows a judge to hear expert testimony and conclusions in order to determine if the same judge should later listen to those expert conclusions. In a non-jury setting, Daubert makes little if any sense as the judge is the "gatekeeper" for the judge. This distinction will be ironic if the Court elects to leave the legislative Daubert standard effective only in workers' compensation. 

Returning to the analysis, the fact that an expert is experienced and qualified does not mean that the opinion is admissible as evidence. The expert must also be able to "explain how that experience leads to the opinion, why the experience is a sufficient basis for the opinion and how that experience is reliably applied to the facts.” In other words, the expert must still be qualified, but also "must explain the logic and relevance of the expert opinion."

In the context of workers' compensation, some will argue that this is logical and appropriate in light of the evidentiary standard in Fla. Stat. 440.09 requiring that proof of injury and disability be made with "objective medical evidence." Perhaps the steps described above, with the explanations, will make sense in that context?

What is not sufficient under the Daubert analysis? The Court cited an example in which "the expert was asked how he arrived at his opinion and stated 'when I was asked and thought about it, that is the answer that I came up with.’” This fails because the logic is not explained. It is conclusory, the equivalent of what mom used to tell us "because I said so."

Dr. Tulsiak provided an in-depth explanation of the evidence he considered, in terms of medical records and eyewitness accounts of the appearance and responsiveness of the infant (facts that a jury might accept). He explained his logic, from education and experience, as applied to those facts, leading to his ultimate opinions. It does not matter, the court explained, whether the judge believes those facts; the question is whether a jury rationally could. 

Concluding that the explanation of opinions provided in this case by Dr. Tulsiak was sufficient, the Court rejected "EMS’s contention that Dr.  Tulsiak’s opinion  is  unfounded  speculation," and reversed the trial court.  It concluded that "the record makes clear that Dr. Tulsiak’s testimony was 'the product of reliable principles and methods,' and that those principles and methods were applied 'reliably to the facts of the case.'”  

The Court recognized the "importance of evidence-based medicine" (which might also include the workers' compensation "objective medical evidence"). But noted that "much of medical decision-making relies on judgment—a process that is difficult to quantify or even to assess qualitatively." The test for admissibility and persuasiveness of these opinions may therefore be “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." 

In other words, the court sees merit in the presentation of differing views, the application of confrontation and cross-examination, followed by a judge or jury deciding whether to accept or reject the opinions. This decision could be made based upon how well the expert makes that explanation of how education and experience apply to facts she or he finds relevant, and thus the conclusion. The judge or jury could agree or disagree with the chosen facts, the logic of the explanations and therefore the conclusions of the expert. 

Frye may return to Florida courtrooms, that remains to be seen. Time will tell when the Florida Supreme Court makes that decision. But is seems likely at least that Daubert will remain the analysis in Florida workers' compensation hearing rooms. There are those who feel that workers' compensation is no place for Daubert and the arguably more complicated analysis of evidence. But that decision is apparently for the Florida Legislature. For the workers' compensation practitioner, Baan v. Columbia County (Case 1D15-0092) is worthy reading. For the workers' compensation practitioner, the questions posed in that analysis are perhaps a good start for a road map to analyze expert conclusions and analysis.

Notice of Reappointment Hearing for JCCs

The Statewide Nominating Commission for Judges of Compensation Claims (SNCJCC) announces that it will meet on Monday, August 22, 2016 at 1:00 pm at the Orlando World Center Marriott Resort & Convention Center, 8701 World Center Drive Orlando, Florida 32821, for the purpose of interviewing the following Judges of Compensation Claims (JCC’s) for reappointment; Honorable Mary D’Ambrosio (WPB), Honorable Daniel Lewis (FTL), Honorable Mark Massey (TPA), Honorable Stephen Rosen (SPT), Honorable Thomas Sculco (ORL). 

The Commission will also interview applicants for appointment to serve as a Commissioner, three will be appointed by the Commission. One appointee must reside in the First District Court of Appeal jurisdictional area (Alachua, Baker, Bay, Bradford, Calhoun, Clay, Columbia, Dixie, Duval, Escambia, Franklin, Gadsden, Gilchrist, Gulf, Hamilton, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Madison, Nassau, Okaloosa, Santa Rosa, Suwannee, Taylor, Union, Wakulla, Walton, and Washington counties); One must reside in the Third District Court of Appeal jurisdictional area (Dade and Monroe counties); and one must reside in the Fifth District Court of Appeal jurisdictional area (Brevard, Citrus, Flagler, Hernando, Lake, Marion, Orange, Osceola, Putnam, Seminole, St. Johns, Sumpter, and Volusia counties). 

Application forms for both the reappointment as judge and for Commission appointed Commissioner are on the OJCC website, www.fljcc.org, under the Statewide Judicial Nominating Commission tab.

Guidelines for the operation of the Commission are available at http://www.fljcc.org/JCC/snc.asp

Applications (one original) shall be submitted to Lisa Mustain, The Division of Administrative Hearings (DOAH), The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060 or Lisa.Mustain@doah.state.fl.us, no later than Thursday, July 28, 2016 by 5:00 p.m. Eastern Time. This may be hard copy by mail or delivery, or electronic in PDF format by email. The DOAH will distribute the applications to each individual member of the SNCJCC. The application form is on the OJCC website, www.fljcc.org, under the Nominating Commission tab. 

Any questions or comments relating to any of the above Judges of Compensation Claims should be addressed in writing to: Wogan “Wogie” Badcock, (SNCJCC Commission Chairman), P.O. Box 497, Mulberry, FL 33860. 

Speakers in Opposition to Appointment or Reappointment:

If you wish to speak at the Commission meeting in opposition to the reappointment of any of the above Judges or the nomination of any applicant, written notice must be provided to the Commission Chairman and to Lisa Mustain, Division of Administrative Hearings no later than Monday, August 8, 2016, 5:00 p.m. Eastern Standard Time. Your letter should include your intention to address the Commission and a brief explanation regarding your request. If you wish to present any documents in support of your appearance before the Commission, copies must be provided to the Commission Chairman and the Division of Administrative Hearings by no later than Monday, August 8, 2016, 5:00 p.m. Eastern Standard Time. The DOAH will distribute the requests to the individual members of the SNCJCC. Presentations in opposition to a candidate for appointment or reappointment will be limited to four minutes. 

The Commission will not ordinarily grant any requests for personal appearances to speak in favor of any of the above sitting Judges. However, the Committee will accept letters in support of the current Judges as long as they are delivered to the Commission Chairman and to Lisa Mustain, Division of Administrative Hearings by Monday, August 8, 2016, 5:00 p.m. Eastern Standard Time. The DOAH will distribute the letters to the individual members of the SNCJCC. If opposition to reappointment of a sitting judge is appropriately filed, then the Commission may allow personal appearance to speak in favor of the Judge, at the Commission’s discretion.

The Commission will meet telephonically on Tuesday, August 15, 2016 at 2:00 p.m. Eastern Standard Time This meeting will be to discuss procedural issues of the Commission specifically for the August 22, 2016 meeting. This telephonic commission meeting will be open to the public by dialing 888.670.3525, and entering code number 249 217 2867# when prompted.

Someone has to Pay

Some serious students of workers' compensation gathered in Dallas this month for a discussion of where workers' compensation stands in America. Many diverse perspectives sat around a table and described their individual perceptions about the purpose and promise of workers' compensation, its victories and failures. 

Like a fly on the wall, I listened and took extensive notes. The results were published by Bob Wilson on WorkersCompensation.com. As a primary note-taker, I can tell you that if reading these resulting documents does not cure your insomnia, there is no hope. But, we who "do" comp actually find all of this fascinating. I recently had a conversation with someone new to comp. I told him that my experience has been that people are either intrigued and enthralled by comp (love it) , or that they are disinterested and uninspired by comp (hate it). There just seems to be few in this industry that are "in between."

These folks gathered in Dallas were in the "love it" group, and their commitment and intellectual investment were obvious. One of the critical differences of opinion that was raised regards compensability, that is whether a particular accident, injury, or illness should be paid for by workers' compensation. It seems like a fairly simple question, but the varied opinions expressed belie the perception. There are a great many who believe comp should pay for more than it does. There are others who believe comp is paying for things that it shouldn't. Some details of that discussion will appear in a future post.

One analysis or theme suggested by some is that in any need for medical care or constraint on the ability to work, "someone has to pay." That is a truism in all likelihood. If we need medical care, it has to be paid for. If one is not working and receiving no income, that has to be compensated for. Payment may come in various forms.  Payment may mean actual money paid for care or compensation, or payment could mean detriment to the person injured. That is the injured person might not receive care and "pay" in pain and suffering for the injury. The person might not receive compensation and so "pay" in terms of change in lifestyle resulting from personal decrease in income.  But, "someone has to pay."

Imagine a worker is driving  one morning when there is an accident with another vehicle. The resulting impact results in scrapes, bruises and a fractured bone. The results are painful and require medical care of some degree. For the sake of this discussion, it is irrelevant whether it is a collision, a fall, a virus, an infection, etc. The critical point is that something affects a human body and decisions will be required regarding how to deal with the injury or disease. 

One of the Summit attendees casually reminded us all that "not everyone has health insurance." That took me by surprise, because I had understood that health insurance became mandatory in 2014. I understood (mistakenly apparently) that this legal requirement applied to everyone. I even thought that each American had to attest to compliance with the law. But the Summit attendees assured me that I am wrong and that millions of Americans do not have health insurance (several even laughed at me and one called me "naive" to believe "mandatory" meant everyone). 

As an aside, I am curious as to whether this is an enforcement issue. Are they required by law to have it and just don't, and the insurance police are not catching them. Or, are there Americans who are not required to have this insurance (and how did they get excused)? It seems perhaps incongruous to have "mandatory" health insurance, but allow it to be optional either through some exception or failure of enforcement? But I digress; if there are people without health insurance today then the situation remains as it historically has been: some people have health insurance and some do not. 

So, the injury described above (fracture, etc.) requires care. She/he might deem the injury worthy of expeditious care and head to the local emergency room (perhaps even by ambulance). Or, deeming it less imperative might wait until later in the morning and make an appointment with her/his family physician. In this sense, the analysis of which medical care and when would be influenced by how seriously the injury is perceived, and how convenient or expeditious these care alternatives are perceived. Some emergency rooms now advertise their "wait time" on billboards along the highway; convenience may influence choices. 

In another sense, the analysis of where and which care might turn on the probable financial results. Who will pay for the medical care? Does the worker have health insurance or automobile insurance that would pay regardless of whether the family physician or the emergency room was used? Is one alternative more or less expensive to the worker/patient (because of a deductible or co-pay). If the worker does not have health insurance (accepting that reality exists under "mandatory coverage"), does the worker have the ability to pay, either with cash or credit, for the care that is required? If the worker does not have either insurance or the ability to pay, is there a way to obtain the required medical care nonetheless?

If insurance or ability/willingness to pay does not exist, that does not mean that no one pays. It may mean that no one pays financially, but if no one pays financially it is because the worker/patient is not treated. That is, the worker goes without care, and thus physically (and emotionally) pays the cost of the accident or injury, the poor healing, and ultimately the resulting impairment or disability. This happens all the time. I knew a guy once that fell from a scaffold and complained of chest pain for years (probably broke a rib, but I am no doctor). He refused to see a physician. He saved money, but paid for it with daily discomfort.  

But, in America, it is perceived that this "no treatment" option is not the appropriate ultimate outcome. In America there are a variety of "safety nets" in place for the rendition of care in such situations. Through clinics, emergency rooms, Medicaid, etc. the perception is that medical care of some degree will be provided, despite the absence of health insurance, auto insurance (yes, some people do not have auto insurance either; I know, I thought it was mandatory also) or available cash/credit to provide treatment. One such safety net is Medicaid, which according to its website, is a federally funded program that uses tax money to provide care to "help with medical costs for some people with limited income." 

If the worker described above presents at the emergency room, care will be rendered for the fracture regardless of ability or inability (willingness) to pay. The worker/patient will be stabilized. The hospital will present a bill for that care, to the patient, an insurance carrier (health or auto or both).

The hospital may never collect for the services rendered. Emergency rooms have to provide some level of stabilization and care regardless of whether the patient is financially able (or willing) to pay. The hospital may be successful in obtaining payment from Medicaid, or other state or federal programs. But, if that care is not paid for by the patient, her/his insurance, or government, who pays for that care? Some would argue that the "big," "rich," hospital pays for it. And some might argue that this is not problematic, "they can afford it."

Others might explain that the hospital factors such unreimbursed care into its costs, and then adjusts all of its charges for all of its patients to compensate. According to Readers' Digest, "health care costs are largely arbitrary, inflated and unfair." It notes that the charge for a Tylenol during a hospital stay may be as high as $15.00 per pill, while at the store, they might be pennies. How is that charge justifiable? Some might explain that when people who can (and do) pay visit the hospital or emergency room, a portion of what they pay is actually subsidizing the cost of care rendered to those who cannot (and do or will not) pay for care. 

In other words, the hospital may charge everyone inflated prices. Then those who pay these inflated prices afford the facility a profit in some cases. This profit in some cases then offsets the loss that results when a patient presents and is unable or unwilling to pay the inflated price for their care. In the end, somehow all of this averages out and the hospital remains solvent and open for business.

Now imagine that this fracture instead is a workers' compensation issue. This could be because that accident did occur driving to work that morning, but driving to the bank to make a business deposit, or driving by the accountant's office to pick up documents for the worker's supervisor. The medical condition (fracture) may be identical, but the the payment process may change if it is workers' compensation.

Now that it is work-related, it may be workers' compensation. There is not yet enough information in this example to make that determination. Just because it occurs at work does not mean that it is workers' compensation. The worker may work for an employer that is small and is not required to participate in workers' compensation. The worker may work in a state where workers' compensation is not required of any employer. Or the worker may work in a state in which her/his contribution to the accident (perhaps being under the influence of drugs, or failing to wear a safety belt) may mean that workers' compensation is not responsible.

These are merely examples. There are multiple reasons that an injury at work might not be workers' compensation. And so, even if the accident and fracture occur at work, questions may still remain regarding who will pay for the care and treatment. 

But, if it is workers' compensation, then the worker is seen by an emergency room, a physician, etc., and the employer is responsible for paying the costs. Too often, the intuitive response is that the workers' compensation insurance company (workers' compensation carrier) is responsible. It is important to remember that a great many employers either do not have insurance (they are "self-insured") or have purchased insurance with a deductible (they are "self-insured" for some portion of each loss). 

The law, at least in Florida, puts responsibility for workers' compensation on the employer, and in many states how the employer elects to secure that compensation may present various options. It is important to remember this critical point. If a workers' compensation insurance company will not pay for care, this may result in a contract dispute between the carrier and the employer that bought the policy. 

If the injury is workers' compensation, and the employer or carrier does pay for that medical care, the costs will perhaps be inflated. The employer or carrier may in fact pay $15.00 for a Tylenol pill for the injured worker. That cost theoretically needs to be inflated to cover the cost of, to subsidize, some other patient of the physician or facility that has neither health insurance nor the ability and/or willingness to pay for their own care.  

Thus, in the world of health care, the decision has already been made that when there is illness or injury - someone has to pay (someone other than the patient paying through untreated conditions, pain, etc.). If a person walks into an emergency room (or worse has to be carried in), care will be rendered. Someone will have to pay. It may be the employer, the health insurer, the patient, or the tax payer. With this decision (there will be care) set in stone, the remainder of the discussion and debate is therefore destined to focus on "who has to pay?" And there is evidence that physicians' opinions about critical issues like causation may be influenced by their perceptions of what will be most expeditious or beneficial in terms of their payment. 

There is a great deal of debate in America about socialized medicine. Some dream of it and advocate for it. Some decry it and explain the various historical failures of socialism. But to a large degree, the simple fact is that socialized medicine is a reality in America today. Society has decided that care will be provided. It will be provided regardless of our personal responsibility (smokers will be treated for lung conditions, drinkers treated for liver conditions, and sunbathers treated for skin conditions). 

Those who take care, and take care of their bodies, will perhaps need less care, but will often pay as much for insurance. Those who have insurance or who pay their bills will subsidize those who do not. Someone has to pay. Society could return to that decision and reconsider. Some fear that such an analysis would mean rationing of care or even denial of care for some conditions. Others contend that this rationing has already begun and that it will worsen as the competition for resources becomes more intense. But for now, the decision is that care will be rendered, and the debate is about who will pay. From there we transition to debate of how those payment decisions can be made in the most efficient manner?

There are proposals discussed for removing friction from the "who pays" analysis. Some are convinced that "single payer" will solve all ills. This would be a system in which the government, or an organization designated by government, would pay all medical bills for all Americans. The funds would come from taxes or mandatory premiums (would this be "mandatory" like our current health insurance law?) As a result the need for health insurance would disappear or decrease (if there were some residual personal responsibility such as a deductible or a co-payment in a single payer plan, one might still purchase insurance to cover that).

Proponents claim that "single payer" would control health care costs. Hospitals would charge the same for every Tylenol and get paid the same for every Tylenol (less than $15.00 per pill) regardless of whether the patient overexercised, fell at home, fell at work, or just hurts. Hospitals and care providers would not bill an increased (inflated - profitable) amount in hopes of being paid more; they would be paid the allowed amount for the services rendered regardless of what was billed.

Of course the government would control the amount through regulation (perhaps not unlike the fee schedules currently in use by Medicare and various state workers' compensation programs). Therefore legions of lobbyists would be involved in the setting of rates. Some complain there is too much of that now, and predict that a broader government involvement ("Medicare for all" or "single payer") will only enhance the motivation to lobby for more beneficial billing rates and processes. 

There is promise that such a system might remove points of friction and complexity in the medical care business. Doctors and others might simplify their record keeping and billing, and perhaps thereby reduce staff and overhead. There is also promise that such a system would become as bloated and unresponsive as other federal agencies, leading to never ending tax increases and bureaucratic expansion of staff, regulations, and nonsense too often seen in Washington.  

As with almost anything involving the human condition, the "fairness" of the outcomes will be dependent upon the perspective, beliefs, and posture of the person expressing her/his opinion. Those paying the bill will tend to believe such a system unfair and those receiving the care will tend to believe it fair. Some of this might be tempered if everyone paid (if it were truly mandatory and all paid something regardless, with no exceptions or exemptions and the requirement were enforced). Some of this might be tempered if clear information on any rationing or constraint was provided up front ("this program does not provide care for illness related to smoking" or "this program does not provide transplant services to patients older than 70").

The debate will continue. It may remain focused on the "who" question that inevitably follows the conclusion that "someone has to pay." It may return to that conclusion, and focus on whether that "someone" will unquestionably be someone other than the patient (financially or otherwise). There will be discussion of how decisions are made regarding issues of causation (was that arm fractured falling in the driveway or in the vehicle accident on the way to the emergency room, or in the accident on the way to the bank) and who is responsible, the patient, some property insurer, an auto insurer, a health insurer, the government? And there will be debate about how such decisions are made, by what standards, and by whom. And what are the motivations of those expressing opinions on these questions?

I would suggest it is not a simple set of questions. But then this is the sort of thing that keeps us workers' compensation geeks intrigued and interested. Read the notes from the Summit and decide what you think is important. As Bob Wilson suggests, now it is time for you to weigh in with your thoughts.  

An Interesting Letter from a Servicing Agent

In late April, an interesting letter crossed my desk, It is something that may be of broader interest, and so this post will perhaps inform. 

There was a bakery company most remember, called Hostess Brands. That company had apparently been owned by Interstate Brands Corporation, which had purchased workers' compensation insurance from Lumberman's Mutual Casualty Company. The letter said that through some contractual arrangement, Lumberman's was relieved of responsibility, and Interstate Brands became financially responsible for its own workers' compensation benefits. Interstate then became bankrupt and was dissolved in December 2015. 

The funds that came from Lumberman's to Interstate were said to be deposited with a bank. From those funds, payments to and for injured workers were apparently to be made. However, we are now told that the bank has ceased paying, and so it appears that injured workers employed by Interstate or Hostess Brands will begin receiving their benefits and care from either the Florida Self-Insured Guaranty Association (FSIGA) or the Florida Insurance Guaranty Association  (FIGA). 

This is intriguing in its own right. Was Interstate self-insured? That description has specific connotations. Employers, as defined by the law, are responsible for workers' compensation benefits for their employees. The payment of these benefits are to be "secured" according to Fla. Stat. 440.38. One method of securing benefits is purchasing an insurance policy. Though a great many people fail to understand that transaction, it is essentially a contractual transfer of risk in exchange for a fee (premium). 

Or, an employer may self-insure. Fla. Stat. 440.38 describes that this alternative is available if the employer can demonstrate to FSIGA "that it has the financial strength necessary to ensure timely payment of all current and future claims individually." In this Interstate case, the employer may have satisfied its statutory duty by obtaining an insurance policy. Thereafter, through a contract, it essentially became self-insured. Some may be curious whether that transition to self-insured status was subject to the requirements that FSIGA would have imposed if self-insurance was elected in the first instance?

And FSIGA, in taking over financial responsibility for these claims, may wonder whether any funds remain in the bank from that Lumbermans/Interstate transaction. And, if so, whether and how FSIGA may be able to access whatever funds remain, to the benefit of the injured workers to whom benefits are due. Access to such funds would also be to the benefit of the FSIGA and its overall financial strength. 

So, if you are involved in an workers' compensation claims involving Interstate Brands or Hostess Brands, you may wish to seek more information from representatives of these companies.  

Great Advice from a Great Judge

I heard a great deal about workers' compensation at the 2016 Summit in Dallas recently. A vast spectrum of backgrounds, professions and perspectives were present. I am hopeful that the conversations about workers' compensation will continue. There are contentious subjects, and even the vocabulary can be a challenge.

After, I received an email from Michael Alvey, who is the Chair of Kentucky's workers' compensation board. This three-judge panel is the initial appellate review in Kentucky workers' compensation cases. Judge Alvey is also the President of the National Association of Workers' Compensation Judiciary (NAWCJ). He has an interesting vantage point on the challenges of adjudicating workers' compensation disputes, and a national perspective. With his permission, I am reprinting his thoughts and advice for adjudicators below (all that follows in italics is direct quote unless noted otherwise).  

It is also quite possible that others in the systems might take some wisdom from these thoughts. Some of this advice would be very helpful for adjusters, risk managers, doctors, lawyers and more. Some of the most universal thoughts are in red. 

As judges we must render decisions which provide income, medical and rehabilitation benefits to truly injured workers in a prompt, unbiased, fair and equitable manner. 

Second, while we all have important tasks to accomplish, no particular area is more important than the next. We cannot segregate individual fiefdoms, but must do the best we can with our individual parts of the process.

The key to being a judge is impartiality.

The goal is to do “exact justice according to the law”

Parties are entitled to a correct ruling based upon the circumstances, facts and law affecting the case, not by external forces or biases of the judge.

You must act all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.

Will you get it wrong??? Of course, but don’t get it wrong due to undue influence or impropriety.

We all get reversed. It happens. Shake it off and go on.

Every case involves real people with real issues which affect their lives.

Remember, “It ain’t about you.”

Finally, the following additional tips which I generally provide to judges is applicable to those involved in each step of the claim resolution process:

Be kind

Be patient

Be dignified

Be consistent

Be firm but fair

Don’t take yourself too seriously

A lazy judge is a poor judge

Don’t fear reversal

No case is unimportant

Be prompt

Use common sense

Pray for divine guidance

Never forget that the business of law is people.

Many parties are in a courtroom for the first time. Their view of the law and courts is shaped by television, the movies and the media

They know they want “justice,” but are unsure what you can provide.

Be conscious of the courtroom. It is our workplace, and is very familiar to both lawyers and judges, but is foreign soil for the parties and witnesses.

Communicate clearly. Get to the point

Remove emotion from your analysis

Enter orders/decisions without editorial comment

Recuse if necessary

Kentucky and the NAWCJ are fortunate to have Judge Alvey and so many like him. The efforts towards respect of office, purpose, and the people we serve is apparent in his writing, involvement and performance. In a system where a fair few develop periodic idiosyncrasies and curiosities, he is a stable, focused and professional leader. I appreciate his words above and his leadership of the NAWCJ these last two years. 

A Lesson in Appellate Practice

On May 20, 2016, the Florida First District Court of Appeal rendered a decision in O'Conner v. Indian River County. It is worthy of review because it can provide broader edification and guidance than perhaps perceived at first glance.

This case has many similarities to the Court's decision last month in Miles v. City of Edgewater Police, the Court noted that the case factually "resembles the proceedings described in Miles." And it involved some of the same attorneys.  

The injured worker's attorneys were challenging the constitutionality of the fee provisions of Fla. Stat. 440.34. They presented the Judge of Compensation Claims with "two retainer agreements, one between Appellant and his attorneys’ law firm (the Firm), and another between Appellant and his union" and asked the judge to approve them. 

This is an important point, because there is no statute or rule that says a judge has to prospectively approve such an agreement. In our history as a system, there were those who routinely sent such agreements to the OJCC for prospective approval. But that practice fell out of favor, and is inconsistent with the "self-executing" nature of the workers' compensation act. 

There is no reason for judges to approve contracts between people. There is no context of which I am aware that contracts are pre-approved. Try taking your new car lease to the circuit court and asking the judge there to approve your contract. For that matter, try taking any contract with any lawyer anywhere to any judge for pre-approval. This is anomalous and inconsistent. I can find no other context in which people make contracts and then seek judicial approval. 

And in 2003, the legislature made clear that "The judge of compensation claims is not required to approve any retainer agreement between the claimant and his or her attorney." Fla. Stat. 440.34. This language has been ignored by the courts for now, and it will be curious to see if judges will nonetheless approve such agreements in the future. 

In O'Connor, the approval was not granted, and the attorneys "subsequently withdrew from representing the injured worker." The worker then "dismissed his pending petition for benefits (PFB)" (seeking workers' compensation benefits) and "filed a petition for writ of certiorari" (seeking a determination of the constitutionality of Fla. Stat. 440.34 by the appellate court). Certiorari is called an "extraordinary writ" and is a way to seek an appellate decision without first having a trial, determination and appealling. 

Most appellate cases in workers' compensation reach the First District through an "appeal." In those cases there has ben a PFB or motion, usually a hearing, and a "final order." But certiorari is a process that allows challenges without a "final order." Thus, the O'Conner case was procedurally before the Court on a certiorari writ.

But, the PFB had been dismissed. And the Employer/Carrier therefore sought "prevailing party costs." The trial judge granted that motion, concluding that the Employer/Carrier prevailed at trial when the injured worker dismissed the PFB. This happens from time to time in the workers' compensation system. 

O'Conner then filed an appeal of the order that awarded the prevailing party costs. To appeal a case, a party files a "Notice of Appeal," and in this case, the injured worker filed three of them, an original and two amended notices. Each of these "indicating that he was appealing the final order assessing costs." The Court noted that "nothing in the notices indicated that the real reason for his appeal was to challenge the earlier-entered retainer and fee order," but the Court concluded that this was in fact the purpose of the appeal.

In appellate practice, the notice of appeal is filed, and a "record" is prepared. This "record" documents what occurred at the trial tribunal. Then the party that filed the appeal writes down the error it alleges and describes the error and the law to the court in what is called an "initial brief;" the other side then describes its perceptions in an "answer brief." The first party can file a "reply brief." Sometimes a court will allow "oral argument" where the parties describe their positions to the judges, but many cases are decided "on the briefs." 

In O'Conner, the Court said that when the "initial brief" was filed the Court first learned that this "appeal" was a constitutional challenge essentially the same as the "writ of certiorari" review that had already been filed. The Court concluded that the injured worker "attempted to use this cost appeal to gain a second presentation of his argument concerning the retainer and fee order."

The Court noted that the distinction between Miles and O'Conner is that after counsel withdrew in Miles, the injured worker proceeded to trial on her own behalf, what is called "pro se" in Florida and "pro per" in some other jurisdictions. Since Miles went to trial, and her claims for benefits were denied, she could challenge all of the procedural history of her case in the appeal that followed. 

But O'Conner did not proceed to trial after the attorneys withdrew and filed for certiorari. The Court noted that O'Conner's attorneys never "indicate(d) that he was not actually challenging the cost order on appeal but only the order addressing the retainer agreement attorney’s fees." Thus, O'Conner looked different and distinct from Miles and the Court did not consolidate the two cases into one (which is commonly done at the appellate court when multiple cases all present the identical or very similar legal questions.

Once the Court understood the similarity, after the initial brief was filed, the Court issued an "order to show cause," which essentially asks a party or parties a question and allows it or them to respond. This order/question was "why the purported appeal of the cost order should not be dismissed and sanctions imposed" because it was misstated and essentially a repeat of the previously filed certiorari challenge to the fee statute. 

O'Conner responded to the "show cause" and asserted that "nothing in the rules required him to indicate in his notice of appeal that he was actually appealing the retainer and fee order, not the cost order." In other words, the Rules of Appellate Procedure do not require the appellant to be forthright and clear on what she/he is seeking. O'Conner's counsel "believed that his notice of appeal included earlier interlocutory order, and that the order at issue did not need to be described because no “benefits” as such were at issue."

The attorney also argued that the injured worker “reasonably expected” the appellate court "would consolidate the certiorari petition and this appeal on its own," in other words, the Court would figure out that the issues were the same, without being told, and decide the cases and issues all in one proceeding. This expectation was based on other documents filed that clearly informed the Court that the O'Conner certiorari had been filed earlier. 

The Court seems perturbed that it then had the same issue, constitutionality of Fla. Stat. 440.34 before it in the same case on both certiorari and appeal. The opinion notes that despite appealing "under the guise of appealing the cost order," O'Conner did not dismiss the earlier filed certiorari. In other words, O'Conner might have cured the situation if he had dismissed the certiorari after he filed the cost order appeal. He did not. The O'Conner petition for certiorari was denied March 15, 2016. The next day, the "show cause" order was issued by the Court regarding the appeal. 

The Court found fault in this. Concluding that the appeal was not of the cost order as asserted, it was misidentified; "the sole purpose of this appeal was not to challenge the ancillary cost order identified in the notice of appeal, but to use it as a pretext for making constitutional arguments about the fee statute." The pretext was to obtain review though "counsel knew or should have known" the fee issue was "not reviewable in an appeal of an order arising out of an ancillary proceeding (the cost issue)."

The Court noted that O'Conner's counsel could have changed course. It said that "at every opportunity" the attorneys "failed to make it clear to this court that the appeal solely involved the retainer and fee order." The filings stated the appeal was of the cost order, and simply stated, the Court concluded that it was not. 

The Court reminded "it is incumbent upon every member of the Bar to be honest and open with the courts of this state." Concluding that the attorneys were not "deliberately trying to mislead the court," the end result was in fact that the Court was mislead. So, the Court found it "appropriate to award attorney’s fees against" the attorneys representing O'Conner. The time spent by the Employer/Carrier's attorneys on this appeal will be paid by O'Conner's attorneys. 

Now, it is important to remember that no appellate case is "the law" until the decision becomes "final." After an appellate court makes a decision, it is published just as O'Conner was. Then after a period of time, the Court will issue a "Mandate," which is essentially the Court communicating that the time for any motions for reconsideration and rehearing have passed and the decision is final. The O'Conner decision is not final, and it could change. But regardless it is instructional.

Two critical lessons. First, is that candor towards the tribunal is more than not intentionally misleading. Every attorney is an officer of the court, part of the system of justice with which America is blessed. Attorneys should be forthcoming and responsive. It is rarely productive to just assume the tribunal will figure it out on its own. That stragegy may work out, but it is not the way to bet. And when someone is paying you for your expertise, they may expect your expertise to work to their advantage instead of a court just figuring it out to your advantage.

Second, when an "order to show cause" is issued, it should be carefully considered. Such an order presents an important opportunity to reflect. It is often an opportunity to reconsider. And, it is always a good opportunity to admit a mistake, seek forgiveness, and ask that no untoward sanctions occur. It may not be the best time to continue asserting an argument that does not appear to be working.