The Litigation Privilege

There are times when litigants, parties, and even witnesses do not like what the judge’s order says (or even what the judge says at trial). The judge is charged with several important roles in a trial, foremost among them maintaining order and decorum. But in administrative proceedings and other “bench” trials, the judge also has an obligation to both decide the case, and to explain how that decision was made. 

In Florida workers' compensation, that means drafting of a “compensation order,” which is mandated by statute. Other states affix different labels, but the process remains similar. The case outcome is stated, and explanation is provided as to why. And, in the process, the judge may have to accept the word of one witness and discount the word of another(s). The judge may have to critical of various claims or defenses, and explain how evidence does or does not support them. In explaining why a witness, or particular evidence, was discounted, there lies the potential to hurt feelings, offend, or anger. 

Judges are not alone in this. Attorneys in litigation pursue with vigor their theme or theory. They are trained to build substantiation for their own case, and to undermine the foundations of their opponent’s. That is their job. In doing that job, attorneys may be critical of a witness’ perspective or perception, bias or prejudice, diligence or (in)experience. In doing so, the attorney may potentially be perceived as insulting, demeaning, or condescending. 

The law facilitates, perhaps encourages, zealous representation by attorneys. Attorney statements during judicial proceedings are ensconced in a litigation privilege. That privilege likewise applies to the statements (oral and written) of judges, whose statements are likewise protected by judicial independence. Periodically, I hear someone suggest that some trial or order statement is “slanderous.” That statements might be perceived as defamatory, either in written (libel) or spoken (slander) forms is troubling.

Almost as old as law itself, there is a litigation privilege that attaches to most of what occurs in legal proceedings. This shields attorneys and others in the litigation process from liability for defamation (libel or slander). According to Louise Hill in the Hofstra Law Review, courts have concluded that “the integrity of the adversary system outweighs any monetary interest,” and thus the privilege prevents most comments from being actionable defamation. Louise Hill, The Litigation Privilege: Its Place in Contemporary Jurisprudence, Hofstra Law Review, Vol. 44:401, (2016).

According to Ms. Hill, this “absolute privilege” applies to “any communication” in litigation, including in a “quasi-judicial proceeding” (such as an administrative hearing by an executive branch judge, like the Florida Judges of Compensation Claims). It protects those comments by attorneys and by “other participants authorized by law,” if they “achieve the objects of the litigation” and “have some connection or logical relationship to the action.” This “other participants” language is very broad and would logically include judges. Ms. Hill contends that “privilege should only be denied if the statement is so palpably irrelevant to the subject matter of the action that no reasonable person can doubt its irrelevancy.”

According to T. Leigh Anenson, writing in the Pepperdine Law Review, the “litigation privilege” dates to the eleventh century, and precludes civil liability for statements, but does not preclude the imposition of “sanctions that can be imposed by the court,” including “the potential for disciplinary proceedings through state and local bar associations.” She notes that such “professional grievance proceedings subject litigators to a jury of peers in the legal community,” and thus assures a professional demeanor even absent any threat of tort liability for defamation. Ms. Anenson’s conclusions regarding the application of this privilege in quasi-judicial proceedings are strikingly similar to Ms. Hill’s. T. Leigh Anenson, Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers, 31 Pepp.L.Rev. (2004)

Thus, statements on the record and in orders are likely not grounds for a claim of defamation. 

However, that a statement is not defamation does not render it immune from consideration or review. Several authorities have noted the constraints of professionalism rules and tribunal rules are nonetheless pertinent, despite the preclusion of liability for the torts of defamation. Administrative tribunals have concluded that statements are actionable under such rules. An interesting example is Gonzalez v. Lasercard Corp., Case No. ADJ8343116 (California Workers’ Compensation Appeals Board, 2014). There, an attorney was accused of intemperate remarks, belittling opposing counsel and witnesses, and making statement that were “insults and provocations.”

The trial judge found the behavior concerning. At one status conference, the judge requested the presence of the California Highway Patrol “to insure that the attorneys behaved appropriately.” The judge's order meticulously documented various statements attributed to one of the attorneys, and ordered the attorney to pay a $1,000 sanction for the behavior and words. And, the judge granted the opposing attorney’s request that a future deposition in the case be videotaped. 

It is not uncommon today for depositions to be videotaped. But, the videotaping in this instance was not to be of the witness, but of the opposing attorney (the one the judge sanctioned), “to encourage ________’s demeanor to be civil and professional.” That behavior or words are shielded from tort liability for defamation does not mean that the behavior or words are shielded from sanction, acceptable, or to be condoned. 

It is logical that the Code of Judicial Conduct is similarly such a professionalism standard, which applies regarding judicial behavior and comments despite any conclusion that statements were not actionable defamation. 

Florida Judges of Compensation Claims are subject to the Code of Judicial Conduct, section 440.442, Fla. Stat. Any complaint regarding conduct or words of a Judge of Compensation Claims is cognizable by “the director of the Division of Administrative Hearings, who “may recommend the discipline of a judge whose conduct” warrants same. Section 440.45(2)(e) Fla. Stat. And, as mentioned above, Judges of Compensation Claims are obligated, following trial, to issue a “compensation order,” which is to “set forth the findings of ultimate facts and the mandate;” such order “need not include any other reason or justification for such mandate.” Section 440.24(4)(e), Fla. Stat. 

For understanding the implication of judicial independence, some Florida appellate cases are instructive. One excellent example of the height of acrimony in a judicial proceeding has roots in Childers v. State, 936 So.2d 585 (Fla. 1st DCA 2006), an en banc (the whole court as opposed to a panel) plurality decision. There, Judge Allen concurred specially, writing “only to offer some brief observations.” Judge Kahn dissented “vigorously” to the en banc review. A litigant thereafter sought certification to the Supreme Court, which was denied. Judge Allen wrote another concurrence in that denial. In it, he took issue with Judge Kahn’s dissent in the original plurality opinion. 

A complaint was filed with the Judicial Qualifications Commission (JQC), which recommended to The Florida Supreme Court that sanctions be imposed. The Court rendered In Re Allen, 998 So.2d 557 (Fla. 2008). The JQC and Supreme Court concluded that Judge Allen had attacked Judge Kahn in that opinion. Judge Allen defended his opinion and contended that any disciplinary proceeding “based upon a judge’s written opinion violates the principles of judicial independence.” 

The Supreme Court concluded that Judge Allen’s concurring opinion was “motivated by his animus toward Judge Kahn,” and was a personal attack and accusation of corruption. The Court found Judge Allen’s accusations to be “based on unverified facts that came from outside the record (news articles) and were not a part of the Childers case.” The Court concluded that Judge Allen’s actions violated the Code of Judicial Conduct. 

Thus, despite being within the litigation privilege, the words were still actionable under the Code. The Court conceded Judge Allen’s argument that judicial independence is “critical to the functioning of the judiciary,” but cautioned independence “is not unlimited.” The Court reiterated that the “duties, responsibilities and powers entrusted to judges are awesome.” Those duties require independence, but “such authority should never be autocratic or abusive.” As Uncle Ben reminded us, in the comics of our youth, “with great power comes great responsibility” (Spider Man, Marvel Comics, also attributed to a variety of perhaps more noteworthy sources). 

The Allen Court went on to say that “generally, appellate judges are free to write almost anything in their opinions regarding the decision of the case.” The Court cautioned only that “the discussion must be germane to the case at bar and the facts within the record of the case.” The Court faulted Judge Allen not necessarily for his criticism of Judge Kahn, or that dissent, but for his use of “extra record materials to personally attack Judge Kahn.” That, the Court concluded “cannot be condoned, nor can it be protected by judicial independence.” 

The Court cautioned that its decision in In re Allen “should not be viewed as a license for the JQC to judge and evaluate judicial opinions.” The Court noted that “often judges use intemperate or colorful language in their evaluation of fellow judge’s opinion or reasoning. The choice of language used in such instances may not be subject to scrutiny.” Thus, it is not the language or criticism that led to sanction. It was the “falsely accusing Judge Kahn of corruption and using unverified statements from materials outside the record” that “crossed the line.”

The Supreme Court later rendered In re Eriksson, 36 So.3d 580 (Fla. 2010). Judge Eriksson “repeatedly refer(red) to In re Allen, in defending the allegations against him, without specifically referencing “judicial independence.” The Court concluded however, that essentially judicial independence was Judge Erikkson’s defense. It reiterated the holding of Allen and authorities cited therein regarding the responsibilities of the judge. 

The Court rejected Judge Eriksson’s defense, essentially, that as long as the judge remains within the record, then s/he cannot be disciplined, in keeping with judicial independence. That was clearly a misinterpretation of In Re Allen. There, Judge Eriksson admitted to raising a criminal defendant’s bond because the defendant had moved to disqualify him. He was accused of being rigid in some rulings and dismissed actions on his personal interpretations of hearsay, when no objection was made. Those actions and statements remained within the record. Those statements remained within the litigation privilege. They nonetheless were found by the Court to violate the Code of Judicial Conduct. 

Thus, the authorities support that the litigation privilege precludes tort liability for statements of lawyers and judges, even though they may be uncomfortable, insulting or hurt feelings. Judicial independence further protects the expressions of the judge. These thoughts may be “almost anything,” may be “intemperate or colorful,” but must be “germane to the case at bar and the facts within the record of the case.” 

If a judge ventures outside the record, or is demonstrated to be proceeding out of a sense of “animus” or a purpose of personal attack, then those actions may violate the Code of Judicial Conduct, and subject the judge to punishment. Further, In re Erikkson illuminates that comments or actions, even in the context of the case and its record may nonetheless exceed the bounds of judicial propriety, and likewise subject the judge to sanction. 

Judges have a duty to adjudicate the cases brought before them, and make sufficient findings to both edify the parties and facilitate meaningful appellate review. See e.g. University of Miami v. West, 8 So.3d 1193 (Fla 1st DCA 2009); Lee County Parks & Recreation v. Fifer, 996 So.2d 229 (Fla. 1st DCA 2008). In Florida workers’ compensation, that requirement is statutory. The statutory requirement of finding merely “ultimate facts” means that a Judge must make enough findings, and what is “enough,” may be subject to interpretation and debate. This standard of “enough” is one with which the Court itself has struggled. See Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003).

This illustrates a few points worth repeating, yet again. First, Judges are obligated to decide the case, and they must provide enough explanation that the parties understand the “why” of the outcome. Second, attorneys are trained to undermine the foundation of evidence; they may not be kind in that effort. Third, the words of attorneys and judges may lead to hurt, disappointment, and even anger. Fourth, those words are likely not a basis for claims of defamation in a tort construct. But, finally, both attorneys and judges should remain conscious of the bounds of professionalism and the codes, rules, and guidelines that define them.

The Role of the Tipsy Coachman

A subject about which I hear a fair number of questions is appellate review of legal interpretations made by trial judges. There is a perception that appellate courts are courts of "justice" and that their function is to find the "right" outcome in any given set of facts. Appellate courts are not, they are courts of "error," and their functions are primarily to correct mistakes of the trial judge and to provide a homogenization of legal interpretations, a continuity and consistency to various trial judges' decisions. 

In 1879, Rutherford Hayes was president of the United States, and the Georgia Supreme Court rendered a decision that helped explain how appellate courts should address trial judge errors. The case was Lee v. Porter, 63 Ga. 345 (1879). The decision analogized an even older poem, Retaliation, by Oliver Goldsmith, to illustrate the concept of arriving at the right decision by a flawed analysis. 

The Florida Supreme Court adopted the Georgia analysis almost a century later in Carraway v. Armour & Co. 156 So.2d 494 (Fla. 1963). Retaliation is lengthy, too lengthy for this post, but various courts have quoted a few lines over the years as the Lee analysis has been adopted in various jurisdictions. 

The pupil of impulse, it fore'd him along, His conduct still right, with his argument wrong; Still aiming at honour, yet fearing to roam, The coachman was tipsy, the chariot drove home; . . .

And the focus became the "tipsy coachman," despite whom the "chariot drove home." The outcome, or "conduct" being "right" though the "argument wrong." The point is that the trial judge reached the right outcome of some legal decision, albeit for the wrong reason. This "tipsy coachman" rule has become a staple of American jurisprudence, with appellate courts striving to find a way to avoid reversing trial decisions; even if it is a way that never occurred to the trial judge in making the decision. 

This is troublesome to many. There are those who believe that it is the job of trial judges to make correct decisions, and when a judge falls short of the finish line in such endeavors, they believe that appellate courts should say so, correct them, and in the spirit of a patient piano teacher make the trial court do it again. But, doing it again in the practice of law and trials is an expensive proposition. Dockets are crowded, trials take time, and lawyers, witnesses, jurors and more all cost money. 

So, the courts concluded that when the right outcome has been reached, even by a possibly circuitous and incorrect route, the real point is that the correct destination was reached (the "chariot" made it home). The appellate court may write an opinion to explain the flaws in the trial judge's route, that is of value to the next trial judge that finds her or himself facing that challenge, but the outcome of the case is affirmed. 

This is a s subject that lawyers and judges discuss. It is a familiar conversation piece, the "tipsy coachman." There are many references, in legal cases, newspaper articles, law journals, and more. But it is not a subject with which non-lawyers are necessarily conversant, and it can lead to some interesting conversations with non-lawyers curious about court decisions and the treatment given them in the news. 

What is less discussed is the potential for trial judges to apply a similar analysis in deciding cases. If it is appropriate for the appellate court to ignore the trial judge's logic and analysis and affirm the outcome, is it appropriate for the trial judge to ignore the attorney or party's flawed logic and yet agree with the ultimate outcome that they advocate, whether that is an award or denial of benefits?

Each side in litigation seeks a particular outcome. They have researched and read, analyzed and argued, and they hope that some trial judge or jury will agree with the facts and law that lead to an favorable outcome. And yet, there are times that the logic and analysis may be strained, contorted, and sometimes just patently wrong. Sometimes, it appears that some small fork in the analysis road was erroneously selected, and that the errors cascaded onward from there. 

Sometimes, the error can be contagious. One party insisting that some issue is critical, can lead the other party to simply deny the relevance of that issue. In some instances, though, the other party becomes infected with the virus of that erroneous tangent and both parties begin to argue, research, and write about things that are not really relevant to the outcome of the case. Having followed their erroneous path into a forest, they focus increasing attention on some ultimately irrelevant tree.

What is the role of the trial judge? Ultimately, in workers' compensation, there is no jury to undertake deciding the difficult issues, to resolve the conflicts in facts and allegations. This is true in many other legal proceedings also, and the trial judge is left to both determine the disputed facts and apply the correct law. And, for the most part, judges are usually adept at spotting erroneous analysis. This is not because they are any more perceptive than the lawyers, it is more likely because the trial judge does not live with the litigation as it progresses and develops, and is therefore a fresh set of eyes, looking at the end result of the lawyer's efforts. 

Some would argue that the trial judge's job is to reconcile the legal authorities, those statutes, rules, and prior decisions (published cases) that the parties bring to trial. They would say that the trial judge role is to decide whether the legal analysis of party "A" or party "B" is correct, and to accept and follow the better of the two analyses. 

Others would argue that if the argument is perceived as flawed, the trial judge should instead apply her or his own legal research and analysis to the facts, and follow the law as the judge sees it, even if that analysis is not something conceived of, argued by, or even necessarily understood by the parties to the case. They would contend that the trial judge has the obligation to reach the "right" decision even when that would come as a complete surprise to the parties to the case.  

It is an interesting debate. One upon which those trained in the law, and accustomed to litigation do not necessarily agree. And, one that those outside of the legal profession find confounding and confusing. It is therefore a discussion that is likely to continue.

People are Talking about Comp (1)

People are talking about workers' compensation. I think that there is more discussion today than there has been in many years, not just about the "nuts and bolts," or how systems work either. There is discussion of the theoretical underpinnings, the economic evolution of man and machine, the scientific advancement of medicine and more. Over the last eighteen months, I have been privileged to hear a great many conversations about the topic.

In a 11-post series (this is the first), I will overview what I believe I have heard. For clarity, the reception and perception are each key factors in any conversation. None of the discussions here will be credited to any person, in the interest of their privacy. And, these writings represent merely my interpretations or perceptions of various thoughts expressed (some might well tell me that I have misunderstood them, and I am as respectful of their right to that feeling as I am to my own right to interpret what I think they said), or at least "received/perceived." 

For several years prior to the 2016 elections, attention was focused on the nation’s workers’ compensation systems. That is plural, "systems." With striking similarities the fifty states and various territories operate regulatory systems based upon mutual renunciation of common law rights and responsibilities. Each state has a workers’ compensation system. In addition, there are jurisdictional systems in the U.S. Virgin Islands, Puerto Rico, and Guam. Additionally, the U.S. government operates multiple tort-abrogation programs including the Federal Employees Liability Act (FELA), the Federal Workers’ Compensation program, the Longshore and Harborworkers’ program, and the Defense Base program. Workers' compensation is a huge social program. These are often collectively described with the inclusive "Work Comp."

In the United States there are monopolistic systems in which the state itself is the “payer” and in which employer responsibility for potential loss is collected through government levy or taxation. There are free-market states in which the vast majority of coverage for accidents is provided by commercial insurance. Employer responsibility is collected in these through insurance premiums, which are set in various manners dependent upon each jurisdiction’s statutory and regulatory construct. Between these two “poles” are a variety of models that mix capitalistic and socialistic elements. Arguably there are as many formats as there are jurisdictions because though there are similarities, each is likely somewhat dissimilar in model, market allocation, premium calculation or other details.

Workers’ compensation systems fundamentally are specific exceptions to our general tort systems in the various jurisdictions. The law of torts allows people to recover damages when someone intentionally or negligently harms them. But Work Comp is a variety of statutory constructs, obviating or limiting tort systems. This is a substance difference, in Work Comp there are "benefits" whereas in the tort system there are "damages," a more generalized and many submit generous recovery.

Work Comp also provides procedural substitution, delegating authority to executive branch agencies for regulation and adjudication. Decisions about "benefits" tend to come from administrative judges rather than constitutional judges. There is no “typical” Work Comp governance model. Various regulatory structures are used. These include agencies run by a director, by a commission, and by a board. Some include a dispute resolution/adjudication component, while others rely upon state administrative law judges housed in a separate agency.

The oldest American workers’ compensation systems recently celebrated centennials, with the first constitutionally successful systems enacted in 1911. The twenty-first century has brought criticisms of workers’ compensation, and that introspection may be a natural side-effect of becoming a centenarian. That is what you call someone that is 100. There is an old children's joke: "what do you call someone 100 years old?" the punchline is "an antique," but that seems a bit unkind. Is Work Comp an antique in need of refinishing or a elder to be respected? Can it be some of each? Various perspectives bring various criticisms of the current status and the systems generally; for example, some believe that programs are too ambiguous and others complain of specificity.

In 2016, a perception emerged that workers’ compensation could be improved through a greater understanding of its strengths and weaknesses. There was discussion of the last efforts at system comprehension or overall consistency in 1972. 

The Occupational Health and Safety Act of 1971 effected significant changes on workers’ compensation. There was discussion at that time of potential “federalization” of workers’ compensation. In examining the strengths and weaknesses of workers’ compensation, the 1971 Act created a national workers’ compensation commission. 

The commission criticized the wide diversity in state programs. In its final report, the commission made multiple recommendations regarding standards for the state’s workers’ compensation systems. Despite the legislative impetus of the commission and report, the impact of that effort has been minimal. Though it continues as a topic of discussion in the 21st Century, the commission report has become a historical perspective. Both the report and those that contributed to it have been criticized. Some note that participant perspective was less than diverse, while others note the participants themselves were less than diverse. There has also been criticism of the prevalence of academics on that commission, and perceptions of their lack of "real world" experience and knowledge. 

But 2016 and 1972 are not unique. Workers’ compensation has long been debated. Various state systems have been “reformed” in the last hundred years, but primarily in the last 50. States have endeavored to refine and better define their systems. Critics have argued that judicial interpretation has enlarged the scope of systems (erosion of employer rights and accretion of employee rights) and that legislatures have corrected these. Others argue the opposite, that legislatures have eroded employee rights and there has been resulting accretion of employer rights. Without question, what began as pages of statutory and regulatory process has grown over that century into volumes in many instances.

In the spirit of introspection in 2016, whether inspired by the election cycle, the centennial celebrations, or otherwise, discussions began. In the course of a great many hours, various perspectives were heard. There are advocates for abolishing Work Comp (those who find it the "antique," quaint, interesting, but superseded by passage of time and progress. There are advocates for "strengthening" Work Comp (those who revere its purpose). The "strengthening" advocates fall into two groups however. 

It is important to remember that there are limited amounts of liberty or "rights." My neighbor and I each have property rights, and she may feel the need to have the Rolling Stones play at her birthday party in her back yard. I, however, would prefer a quiet weekend. Her right to use her property as she wishes may impact my rights. Thus, there is a conflict. The law seeks to bring us both satisfaction, albeit less than complete. Perhaps she can have the performance, but at some decibel limitation, and/or time limitation (duration, time of day, etc.). 

Often, when the rights of individuals conflict, neither party is "happy" with the ultimate outcome, but through some collective deliberation forming law or policy, we each arrive in some compromise posture, short of what we desire and yet perhaps better than the worst alternative (from our individual perspective). Work Comp is like that. It is a mutual renunciation of rights, that means both the employer and employee have given up rights in exchange for the bargain. Each has also gained something. That is a hallmark of compromise. But, returning to the "strengthening" advocates, one must realize that "strengthening" Work Comp for employees may weaken it for employers, and vice-versa. So, "strengthening" itself is perhaps also a matter of perspective?

There is no real consensus about the status of Work Comp. There are those who have perceptions, advocate ideas, and generate discussion. But, it seems that consensus is elusive. From the various discussions however, multiple topics have arisen. They will be addressed in the next ten Thursday posts on this blog. It is likely that there are interrelationships between and among those issues. They may seem discrete; whether they are or not is left to the reader. 

It is hoped that this series will accomplish three primary goals: first, formal documentation of various frank discussions of 2016; second, recognition of the various personalities and perspectives that contributed to the conversation; and finally, stimulation of further conversation regarding America’s workers’ compensation strengths and weaknesses.

Other posts in this series:

Conversations

(2) Benefit adequacy, Regulatory complexity, Delays in treatment even if compensable

(3) System failures, Incentive is different in WC and group health, Systems are persistently adversarial

(4) Staffing and training of the workers’ compensation professions, Permanent partial compensation, Opt out movement

(5) Injured workers beliefs - not informed or uninformed assumption, Treatment protocols, a benefit or a burden, Perceptions and education

(6) Vocational rehabilitation, Ability versus disability, Methodology of claims handling

(7) Medical ignorance, The critical point in a claim, People who are acting inappropriately

(8) Misclassification, Unrealistic expectation of full recovery and youth, Federalization

(9) A new national commission?, Employee participation in the conversation, Occupational disease

(10) Lawyers in the system, Competition between states, Roles and delineation

(11) Single payer, Outliers, Conclusions

Financing Work Comp Regulation

Workers' compensation is a state-by-state regulatory system, or more aptly perhaps various "systems." Most workers' compensation systems are not funded by taxes the way other government services are. That means taxes in the sense of sales taxes or income taxes, sources of state revenue often referred to as "general revenue" within state budgets. Instead, there is a trend of financing these agencies and systems with assessments upon the employers that are in the systems.  

Florida is consistent with this paradigm. Sections 440.50 and 440.51, Fla Stat. delineate the funding process and establish the "Administrative Trust Fund" for safekeeping of the collected funds. Section 440.51 provides:

(b) The total expenses of administration shall be prorated among the carriers writing compensation insurance in the state and self-insurers.

Section 440.50 provides:

There is established in the State Treasury a special fund to be known as the “Workers’ Compensation Administration Trust Fund” for the purpose of providing for the payment of all expenses in respect to the administration of this chapter.

Each year, there is a projection made regarding expenses of administration of Florida system, including the Division of Workers' Compensation, Office of Judges of Compensation Claims, and more. The premiums being written for workers' compensation insurance are examined, and an "assessment rate" is calculated to derive sufficient funding. Essentially, each insurance carrier pays an assessment to the Trust Fund. Self-insured employers pay an assessment essentially upon what their premium would have been if they had purchased a policy instead. 

Though there are nuances and distinctions, funding of workers' compensation systems follows similar practices in various states. It is possible for these processes to result in funds accumulating in trust funds, that is a "surplus." And as a result, states have been known to look to such trust funds for purposes other than workers' compensation regulation. A Florida example was reported by the Sarasota Herald Tribune several years ago. 

In June, WorkersCompensation.com reported Business Leaders Accuse OH Legislators of 'Raiding' Workers' Comp to Balance Budget. Ohio faced an issue with balancing its budget for 2017. Unlike the federal government, balanced budgets are generally a critical requirement for states. That means that income (revenue from taxation) must meet the outflow (spending on state government itself, public works, government benefits etc.). Essentially, Ohio reportedly needed to cut spending or increase revenue by $1 billion.

Faced with an unbalanced budget, Ohio leaders proposed to take money from various trust funds, including the workers' compensation trust. The proposal was to take up to 2% each from a variety of state funds:

including the Industrial Commission, the Bureau of Workers' Compensation, the Environmental Protection Agency, the Department of Insurance and others — are primary made up of fees and assessments paid by businesses for specific purposes.

The Ohio Chamber of Commerce objected, as did other business groups. They characterized the legislative effort as a "raid (of) the budgets of these exclusively employer-funded agencies.” But, legislative leaders portrayed the "transfers" as "no different than the 3-to 4-percent cuts to most state agencies."

The Columbus Dispatch reported that organized labor also objected to such a transfer. It contended that the proposed transfer was inapropriate, and that

the Ohio Supreme Court long ago held that it is unlawful to transfer moneys from the fund to unrelated accounts, such as the general revenue fund.

In the end, the legislature reportedly balanced the state budget without those proposed transfters from other accounts.

In October, the trust fund concept was in the news again, in Kansas. WorkCompCentral reported that state faced a budget issue in 2009, "during the height of the recession." The Kansas legislature "swept" three million dollars from the Workers’ Compensation Fee Fund, and other "user fee" accounts "to balance the state budget." Of the total, $2.3 million was from the workers' compensation trust fund. Litigation soon ensued.

While the litigation was pending regarding the employer's claims for restoration, the Kansas Supreme Court issued its opinion in Kansas Building Industry Workers' Compensation Fund v. State of Kansas. As an aside, that case is an interesting analysis of the "political question doctrine," a practice of courts to refrain from interceding in issues which are essentially policy issues. The doctrine has its roots in the constitutional analysis of separation of powers. The opinion is lengthy, but a worthwhile read regarding this political questions, separation of powers, and who may be a party to a lawsuit. 

The Kansas Building Industry decision remanded a similar lawsuit regarding trust fund "sweeps" to the trial court for further proceedings. In it, the Kansas Supreme Court essentially resolved a number of process disputes in favor of the Building Industry Fund, concluding that it had proven that assessments increased as a result of the legislative action, and that the Fund was an appropriate party to seek relief (that the Fund had "standing"). It is likely that this August 2015 Kansas Supreme Court analysis played a role in the more recent order to restore the "swept" funds.

The Lawrence Journal reported that the Kansas litigation was intriguing in another regard. The lawsuit was filed by the Speaker of the Kansas House of Representatives, representing those business interests. The Journal reports that a lawsuit filed by the Speaker of the House in such a setting is rare. After leaving office, the former speaker continued that representation through the recent decision, which reportedly included an order that the state pay over one hundred thousand dollars in legal fees. 

The experiences of Kansas and Ohio are both interesting. Many will be surprised that tax revenue is not the source of workers' compensation regulatory budgets. The analysis is interesting in that regard alone. In our collective exposure to civics in school, assessments and trust funds are nuances that were simply not discussed as we learned how government works. Furthermore, the interaction of revenue sources, and the process of balancing budgets may be intriguing as well.

It is important to remember that in the federalism system of the United States, much is defined and regulated by state governments. There are at least fifty-six workers' compensation systems, as recently noted in Fee Cap in West Virginia. The various states have workers' compensation laws and systems, and each is subject to interaction with other state law and state constitutions. 

Thus, there will be variation and distinctions among states. Although the similarities in funding sources (assessments) might suggest a potential for some similarity in conclusions regarding the uses to which such funds are put, it is entirely possible that a different state's courts might reach entirely opposite conclusions to those of Kansas. However, the analysis and discussion is nonetheless fascinating for those interested in workers' compensation. 

Fee Cap in West Virginia

A recent decision of the West Virginia Supreme Court is an interesting contrast to Florida precedent. In April 2016 the Florida Supreme Court concluded in Castellanos v. Next Door Company that the statutory constraints on Florida attorney fees in Section 440.34, Fla. Stat. are unconstitutional. On October 10, 2017 the West Virginia Court decided Bandy v. Murray American Energy, Inc., Case No. 16-1165, and rejected constitutional challenges of similar fee constraints.

Bandy involved litigation of some psychotherapy care in 2016. The benefits were denied by the employer/carrier, but the Office of Judges ordered the benefits provided. An administrative appellate process, the Board of Review, affirmed that decision. The claimant sought $500.00 in attorney's fees regarding the Board of Review litigation, to which the employer objected. The employer argued that claimant’s attorney had already received an aggregate equal to the $2,500.00 maximum allowed attorney fees for obtaining medical treatment, following earlier litigation. The Board of Review denied the $500.00 fees.

The claimant sought Supreme Court review, contending that the $2,500 statutory limitation of attorney fees "during the life of a claim is unconstitutional." The claimant contended this limitation arbitrarily "interferes with the ability of claimants to access the judicial system," and denies "due process of law." The limitation allegedly limits "financial incentive on the part of attorneys," and thus makes it difficult for injured workers to find counsel that will represent them. 

West Virginia Code §23-5-16(c) provides several limitations on attorney fees. In (a) it limits contingency fees to "twenty percent of any award granted." This contingency is also limited in calculation to the value of "benefits to be paid during a period of two hundred eight weeks." In West Virginia, fees exceeding the limits are "unlawful and unenforceable as contrary to the public policy." The same twenty percent limitation applies to any "final settlement, pursuant to paragraph (b), subject again to the overall limitation of regarding 208 weeks of benefits. 

The Florida Statute, Section 440.34, similarly applied a formula and limited fees to: 

20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. 

Thus, the percentages in the Florida statute are more limiting than the West Virginia twenty percent. However, the Florida statute allowed that percentage fee on any benefits obtained, not subject to a chronology of benefit entitlement (208 weeks) as West Virginia's. Thus, depending on the facts of a particular situation either formula fee might produce a greater attorney fee.

But, the provision at issue in Bandy is the fee provision regarding the "successful recovery of denied medical benefits" under paragraph (c). That provision provides "additional" fees payable by "the private carriers or self-insured employers," "following the successful resolution of the denial in favor of the claimant." An attorney seeking such a fee must "submit a claim for attorney fees and costs within thirty days following" the order awarding the medical benefits.

The "additional" fee may not "exceed $125 per hour and reasonable costs." Furthermore, the fees "In no event may" exceed $500 per litigated medical issue" and in the course of the "claim" may not exceed the total of $2,500. In "determining the reasonableness" of fees, four factors are consider: the "experience of the attorney, the complexity of the issue, the hours expended, and the contingent nature of the fee."

Thus, the West Virginia fee limitation interpreted in Bandy is perhaps more akin to the "medical only" fee limitation in Section 440.34(7) Fla. Stat.: 

the judge of compensation claims may approve an alternative attorney’s fee not to exceed $1,500 only once per accident, based on a maximum hourly rate of $150 per hour, if the judge of compensation claims expressly finds that the attorney’s fee amount provided for in subsection (1), based on benefits secured, fails to fairly compensate the attorney for disputed medical-only claims. 

The West Virginia statute afforded a slightly more modest hourly rate ($125 v. $150), and a more constrained "per issue" limitation of $500 (Florida not limited by issue). However, West Virginia allows an aggregate of $2,500 for all medical issues in the course of a claim, compared to Florida's limitation of $1,500 for any "accident."

In short, the two fee statutes have similarities, but notable differences. Comparing them effectively would therefore likely require applying them to various factual scenarios.

The Court was persuaded in Bandy, however, that claimant's ability to hire an attorney had not been prejudiced by the limitation. The Court detailed when counsel was hired, and various benefits that claimant received thereafter. This appears from context to illustrate the Court considering the attorney fee issue in a broad, holistic manner. The Court's discussion of fees other than those under the "additional" paragraph (c) fees seems logical only in that holistic context.

The Court rejected the claimant's characterization of this challenge as a "constitutional issue," concluding instead that it was "in fact a policy argument." The Court held that such policy arguments “are more appropriately directed to the Legislature.” The Court affirmed the "Board of Review’s denial of attorney fees," concluding that the "statutory maximum for payment of attorney fees in relation to" denial of medical benefits had been paid.

A major point that is illustrated by comparison of Bandy and Castellanos is that various courts may reach differing conclusions. They are called upon to consider specific facts and to apply particular state statutes. While all courts would consider constraints of the U.S. Constitution, various statutes and facts might also be subject to constraints of state constitutions, with courts thus considering different constraints.

But, the very nature of our federalist system has so far facilitated the development and evolution of over fifty-six workers' compensation systems in America (50 states, District of Columbia, Puerto Rico, Guam, Virgin Islands, Federal workers' compensation, Federal Employee Liability Act, and more). In this federalist system, there will be different outcomes in different states as state law is interpreted and applied.

Though that makes workers' compensation fascinating for those who study it, it likewise makes it frustrating and confusing for many that benefit from workers' compensation. People who travel in their employment and employers doing business in various states are among those who may find distinct experiences depending upon various state laws. 

Volunteer and Scope

Workers' compensation is a social contract, codified in statutes, to provide benefits of a defined nature to individuals that are injured at work. Employers are liable to employees for workers' compensation benefits defined by statute, and in exchange are immune from civil law damages suffered by the employee. This is the "grand bargain" of workers' compensation. 

But what of the volunteer? A recent decision by the Louisiana First Circuit Court of Appeal provides some interesting insight into the volunteer, employment, and the "course and scope" of employment that is so often discussed in workers' compensation, Beasley v. Nezi LLC, d/b/a Subway, 2016 CA 1080, (Fla. 1st Cir. 2017). The appeal arose not from a workers' compensation proceeding, but from a civil case filed in the District Court in Baton Rouge, Louisiana. 

Ms. Beasley was injured when she slipped and fell in a Subway restaurant, of which she is an employee. Generally speaking, most employees in America are limited to workers' compensation when they are injured at work. However, Ms. Beasley filed a civil lawsuit seeking damages from the store, instead of filing a workers' compensation claim. She alleged that the day she fell was her "day off." From her perspective, she was no different on that day than any other member of the public else that visited Subway.

But, Ms. Beasley was one of the managers of the Subway store. Though it was her "day off," she was called by a Subway employee and told that "the ice machine was not operating." Often, people like ice in their soft drinks. If you live in the south, where it is hot, you may find this ice preference is more of a necessity than a preference. And, by definition, it is simply not "iced tea" if the recipe does not include ice. 

Ms. Beasley apparently recognized the importance of the ice. She called a supervisor to seek ice, but learned it could not be delivered to the Subway in time for the expected lunch rush. Ms. Beasley therefore "decided to obtain the ice herself and deliver it to the restaurant." 

It was as she walked to the ice machine in the Subway that "she slipped and fell in a puddle of water." Her lawsuit alleged that the fall was caused because Subway "allowed water from a leaking water heater to accumulate on the floor." That was admittedly a bit unexpected; reading the court opinion, I frankly anticipated that the water resulted from the malfunctioning ice machine.

Ms. Beasley's lawsuit disregarded the "exclusive remedy" of workers' compensation by alleging "she was not within the course and scope of her employment" the day of the accident; it was her "day off." She noted that she was not paid for that day, and that her presence in the restaurant was "[a]s a favor and purely gratuitously." She was acting on her own, and was not "subject to anyone's direction or control" in electing to appear there with ice.

The employer objected to the matter proceeding in the District Court, and successfully sought to have the case dismissed. The District Court concluded that it had no authority, or "jurisdiction" in the case because Ms. Bealsey's injury was a workers' compensation accident. The Circuit Court (appellate court in Louisiana) agreed, and explained the concept of "course and scope" of employment.

First, the Court explained that "Jurisdiction is the legal power and authority of a court to hear and determine an action," and "to grant the relief" that is sought. The Court noted that "original jurisdiction" regarding workplace accidents is "vested exclusively with workers' compensation judges." Thus, if Ms. Beasley's accident was within the course and scope, then the only judge that had authority over her case was the workers' compensation judge.

As in many states, the test of whether an injury is work related is a two-part analysis of whether the injury was from an accident (1) "arising out of'' and (2) "in the course of'' employment. The court explained that these are interrelated, but "distinct" parameters for determining work-relatedness.

The "principal criteria for determining 'course of employment' are time, place, and employment activity." In other words, when, where, and what (was the employee doing) are critical to the determination of whether an injury was in the "course of employment." The Court noted that therefore an

accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of her duties during work hours, either on the employer's premises or at other places where employment activities take the employee.

The Court also explained the legal requirement that the injury "arise out of'' employment. This is not a time, place and activity requirement, but a causation requirement. It "relates to the character or origin of the injury." The inquiry is "whether the injury was incidental to the employment." 

It is noteworthy that the Beasley Court repeatedly cited the Louisiana Supreme Court analysis McLin v. Industrial Specialty Contractors, Inc., 851 So. 2d 1135 (La. 2003) to explain these principles. Suffice it to say that the concepts of both "arising out of" and "course of employment" are not novel issues in Louisiana jurisprudence. 

The Court noted that whether Ms. Beasley was scheduled to work, obligated to deliver the ice, or paid were "not necessarily determinative." The Court explained that she was a manager, and went to the Subway for "an employment-related issue," and therefore the "origin of her injury is employment." She was called precisely because she was employed as a manager, and she responded for the same reason. The Court explained that her actions were "inextricably linked to her employment." 

There is a side-lesson in this decision also. The Court noted that when Subway moved to dismiss this complaint, Ms. Beasley provided the trial court an affidavit, which was attached "to her opposition memorandum." And, that affidavit might provide the evidence to support the lack of employment relationship, and allow the case to proceed in the District Court. However, "the affidavit was not introduced into evidence." As such, the affidavit was "not a part of the reviewable record." Sometimes technical issues can befuddle even the best attorneys. 

Most appellate courts do not consider facts and evidence that is not part of the record. Of course, other appellate courts consider and rely upon non-record evidence. Some even rely on evidence outside the record from such dubious sources as Wikipedia. But, most appellate courts limit analysis to the evidence that is in the record, meaning evidence that was presented at the trial and considered by either the trial judge or jury. In Beasley, the lawyer failed to introduce the affidavit into evidence, and was therefore precluded from relying upon it in the appellate court. 

The Court concluded that dismissal by the trial court was appropriate because the facts in evidence supported that Ms. Beasley was engaged in work activity when she slipped and fell, despite the fact that she was doing so voluntarily and without additional compensation. 

Judge Holdridge disagreed with the conclusion and provided a dissenting opinion. Judge Holdridge focused on the Louisiana Constitutional premise that the "district court shall have original jurisdiction of all civil and criminal matters." Noting that workers' compensation is a statutory exception to that premise, Justice Holdridge contended it is clear that workers' compensation jurisdiction is "only for 'claims or disputes arising out of' the Workers' Compensation Act.'" 

Because this is an "exception" to the constitutional jurisdiction of the District, Judge Holdridge noted, Subway should not be allowed to claim workers' compensation immunity and exclusivity unless it can prove "that the injury to the plaintiff arose out of and was in the course of her employment." But, Subway presented no proof, and merely relied upon the allegations and evidence submitted by Ms. Beasley. Judge Holdridge urged that therefore the allegations of Ms. Beasely must "overwhelmingly prove" that Subway is "entitled to a judgment," that is the dismissal of the civil lawsuit. Judge Holdridge contended Subway did not meet that burden. 

The Court's analysis and holding supported the outcome sought by Subway in this case, that is that Ms. Beasely is limited to a recovery in workers' compensation. However, the decision also presents the corollary in future workplace accidents. Employers in Louisiana now know that "off duty" workers, not being paid or directed in their activity, may nonetheless be in the course and scope of employment and therefore entitled to workers' compensation benefits.  

North Carolina Practice of Law

In a surprise to many, the North Carolina Industrial Commission has begun advising that only licensed medical doctors will be allowed to perform surgery on injured workers there. There was significant dismay expressed that the Commission would begin such a transition, particularly without a formal opinion from the North Carolina Medical Board. There has been discussion of the implications of this decision. Some feel it will add to costs, because those who have been to medical school apparently charge more to perform surgery than those who instead learned medicine on-the-job.

Certainly, that would be an interesting story; as certainly, the foregoing is facetious and a just a bit sarcastic. My apologies. The real story that recently hit the news, Industry Surprised by Sudden Decision to Enforce Lawyer-Only Filing Statute, was reported by WorkCompCentral 

It says that an attorney for the Commission recently began "spreading the word" that motions filed by insurance adjusters would no longer be accepted by the Commission. In other words, adjusters in North Carolina would no longer be allowed to file pleadings in legal proceedings on behalf of their employers (carriers or servicing agents) and their employer's clients. 

Several sources were quoted in the story. Some were critical that the Commission did not seek an opinion from the North Carolina Bar regarding what is or is not the practice of law. Some were concerned that hiring attorneys to file motions would add to costs. And, some were critical that there was no formal rule-making process or public comment period on what they perceive as the Commission's new "policy." In short, a fair few quoted by the story "weren't happy about it." One opined that "it's unfair," to take such action "without really speaking to all the parties." 

The Commission attorney commented for the story. He explained that the Commission has not made a policy, but has decided to

begin enforcing laws such as § 84-4, which forbids anyone but a licensed attorney from preparing legal documents or appearing at a proceeding before the Industrial Commission.

The Commission's attorney referred the WorkCompCentral to North Carolina Statutes, section 84-2.1, which defines what it means to "practice law" there. The statute includes "performing any legal service for any other person, firm or corporation, with or without compensation." That appears to be fairly broad and inclusive. The definition makes specific reference to "court proceeding," which arguably is not descriptive of the administrative process of workers' compensation. But, the definition also further references the "preparation and filing of petitions for use in "administrative tribunals and other judicial or quasi-judicial bodies."

Based upon this statute, the Commission has made a decision. It says that it "does not have — nor has it ever had — any discretion or authority to waive those legal requirements." This, sometimes dredges up the logical argument "but this is how we've always done it." Neither North Carolina nor workers' compensation have any corner on the market of applying that argument to issues. 

Florida's Supreme Court enacted procedural rules for workers' compensation almost fifty years ago, in 1973. Their action led the Florida Legislature to statutorily delegate executive branch rule-making authority to the courts thereafter. Forty years later, following repeated judicial amendments to those rules and assumptions of jurisdiction, the Court decided in 2004 that it lacked jurisdiction to make procedural rules for an executive branch agency. In fact, it noted that it had never had such jurisdiction. (remember the Emily Litella character on Saturday Night Live?)

The decision, In Re Rules of Workers' Compensation Procedure, the Court recounted the history of its foray into executive branch rule-making, and explained that the Florida Office of Judges of Compensation Claims is not a "court." It then explained the basic constitutional concept of separation of powers, and concluded that the courts cannot make rules for the executive. Such an intrusion by the courts is not even appropriate when the the third branch, legislative, asks the court to do so. And, a fair few read the opinion with surprise. Then, they read it again and essentially said "well sure, that's pretty obvious."

There is merit in questioning the status quo. It is important that we not mindlessly meander through life performing functions solely because "that's the way we always do it." Certainly, there is no justification for change merely for the sake of change. Certainly, there is value in precedent and the legal maxim of stare decisis. This brings consistency and predictability that judicial processes should bring to people. 

Should the Commission have provided more formal notice that it would interpret a statute differently henceforth? Perhaps there is some merit in publicizing change in any setting. Preparing and informing customers is a positive. It may be particularly positive when it appears a sizable population is engaged in an activity (completing and filing forms), which a governmental agency has traditionally allowed and accepted. That population could face consequences. 

Apparently, adjusters and others have been completing and filing forms with the Commission. If they are no longer permitted to do so, because the Commission has concluded that action is the unlicensed practice of law, then that implies these adjusters and others have been engaged historically, before this time, in the unlicensed practice of law. And, the law suggests that such a violation would be a Class I misdemeanor. That is, a criminal act. Essentially, might telling someone they broke the law put them in a defensive posture?

If the Commission had undertaken some rule process, or formal proceeding, then their action might have been interpreted as creating a "new" paradigm. That new rule or new order might be seen as changing the status quo, and thereby prospectively precluding activity, while not necessarily suggesting that past activity was previously inappropriate. But, what would one base a conclusion of "change" upon? If the Commission had made a change in its interpretation, might it have faced criticism for a "new" interpretation for which no basis or reason were stated?

Conversely, a conclusion that activity is, and has been, the unlicensed practice of law could potentially expose people to discipline. Whether an adjuster would be prosecuted might be influenced by conclusions of the North Carolina Bar, which opinion some felt should have been sought prior to the Commission interpretation. However, ultimately, the decisions regarding prosecution would more likely be within the discretion of one of the thirty North Carolina District Attorneys, depending upon where in the state such activities were performed.

So, there remain criticisms of the decision and the process. There are implications, and the future may bring further discussion and analysis. 

In Florida, an injured worker may represent her/himself in a workers' compensation case. A person may act as her/his own attorney. However, an employee of a corporation generally cannot represent that corporation in a legal proceeding, unless that employee is an attorney. This distinction is because the worker represents her/himself, while a corporate employee would be representing someone else, the corporation. For reference, here is an extensive, though perhaps not exhaustive, summary of Florida unlicensed practice of law.

2018 Florida Legislative Proposal on Limiting Opioids

The Florida Legislature will at least debate drug abuse, overdose and addiction in 2018, the "Opioid Crisis." The news broke last week with the filing of House Bill 21 (HB 21). 

Anyone that has ever browsed this blog will know that I have been banging the Opioid gong for a while. We have seen some big gains this year in the war on drug abuse, dependency, and overdose. Last May, Governor Scott declared a public health emergency. The Center for Disease Control (CDC) published Opioid Guidelines. In August, President Trump declared the Opioid crisis a "national emergency." That coincided with the inaugural Hot Seat, and our awareness that we currently have 29 such national emergencies, dating back to President Carter (1977-1981). 

The scope of risk has been studied. There was a report last spring that concluded that "prescribing patterns for Opioids have long been thought to be linked to increased risks of continued use and addiction." Those risks "rise sharply in the first few days of use." Patients who use Opioids for three days have an increased risk of still using those drugs both one year later and three years later. And, the risk increases more after five days of use, see Addiction Risks Rise after Day Three of an Opioid Prescription. See also Opioid Dependence Can Start Within Just a Few Days.

Industry has begun to respond to these studies. In September, AOL and others reported that CVS Pharmacy would limit Opioid prescription dispensing for "certain conditions" to "a seven-day supply." CVS is reportedly the first national chain to impose limits. These limits will reportedly "apply to patients who are new to pain therapy."

Back in 2013, I noted that Dying to me don't sound like all that much fun. Then I chronicled the conclusion that there was "misuse and abuse" of medications. National attention was being drawn to Opioids, and Americans were dying. A persuasive point was the CDC statistics showing that overdose death was more prevalent than automobile accident death. The information was out there, but the market was slow to get it. We know Opioids are a problem. 

In 2015, I continued to highlight that drugs were killing Americans. In What can you do in 11.2 Minutes, I tried to illustrate the rate at which Americans were passing from drugs. We keep talking about it, until perhaps I sounded last spring Like a Broken (Drug Death) Record. They are killing people, depriving children of parents, depriving parents of children, and the fact is they are affecting us all. In 2016, more Americans died of drug overdose in one year than died in the entire span of the Vietnam conflict, see Hot Seat. 

There have been efforts. Florida has a robust Prescription Drug Monitoring Program, as do other states, see E-FORCSE and KASPER Cousins with a Cause. Florida started this effort in 2009. Florida requires physicians to report the prescribing of drugs, but has no requirement that they check this database before prescribing. In 2015, I questioned If it's Worth Having, Is it worth Checking? Other states have required physicians to check first. A year ago, I noted California joining this trend in If not, What is the Point? Early this year, I noted Maine Makes Opioid Changes, and last spring, I noted the success of Ohio in PDMP and Opioids in Ohio. Checking the data, it seems, works. 

Success was being made. And now, Florida seems poised to build on the success of restricting Opioid dispensing, and the closure of all those "pill mill" doctor offices/clinics (thank you Attorney General Pam Bondi). There will be debate and discussion in 2018. The impetus of that discussion lies with the Governor, the President, and now Representative Jim Boyd of Sarasota, the sponsor of HB 21. Reportedly, Senator Lizbeth Benacquisto will file a Senate bill to parallel Representative Boyd's bill in the Senate. 

There will be discussion. It is too early to say that there will be success or progress. But there will be discussion. Certainly, there may be good reasons for not checking the Florida PDMP before prescribing these drugs; there may be good reason for sending patients home with a thirty-day supply of these potentially addicting drugs; there may be good reason to not require physicians to be regularly educated about Opioids, standards, and addiction risk. I look forward to the discussion; I am ready to hear the reasons. 

What would HB 21 do?

HB 21 would require physicians to receive two hours of Opioid education every two years. They could enjoy this training in a "distance learning format," from the comfort of their own home or office. (Lines 108 - 115). Perhaps lawyers and judges could benefit from the same education. Perhaps everyone could. 

HB 21 defines "acute pain" and differentiates it from "chronic pain" and carefully avoids the troubling, but ever present "malignant pain." (Lines 155-160). The issue of malignant pain is a distraction  in this Opioid discussion and is best avoided. If someone is suffering from cancer or other life-ending condition, then there should be no limits on their access to pain medications. Malignant pain is not part of this discussion and not part of this bill. 

HB 21 requires Florida to 

adopt rules establishing guidelines for prescribing controlled substances for acute pain, including evaluation of the patient, creation of a treatment plan, obtaining informed consent and agreement for treatment, periodic review of the treatment plan, consultation, medical record review, and compliance with controlled substance laws and regulations. (Lines 300-306)

HB 21 limits most Opioid prescriptions to a "3-day supply." There is an exception that allows physicians to exceed this, and allows up to a "7-day supply." But that exception requires the physician to document the condition and the "lack of alternative treatment options that justify deviation." In other words, prescribe 7 days worth of medication if you need to, but explain why you need to. (Lines 309-325).

HB 21 requires pharmacists to verify the identity of patients receiving such prescriptions. Those patients must present photo identification issued by "a state or the Federal Government," or the pharmacist must "verify the validity of the prescription and the identity of the patient with the prescriber. (Lines 601-605; 627-630).

HB 21 substantially rewords Section 893.055, Fla. Stat. regarding the Florida PDMP (E-FORCSE). (Line 1044). And, the law would place a new requirement on the physician 

A prescriber or dispenser or a designee of a prescriber or dispenser must consult the system to review a patient's controlled substance dispensing history before prescribing or dispensing a controlled substance.

If the PDMP is not available ("not operational"), then the prescriber would have to document the reason for not checking the PDMP and "shall not prescribe or dispense greater than a 3-day supply of a controlled substance to the patient." So, with the PDMP not operational, the "7-day" option is not available. Failure to "consult the system" would result in the issuance of a "nondisciplinary citation to any prescriber or physician who fails to consult." (Lines 1255-1273).

HB 21 requires annual reporting to Florida's elected leaders regarding the success of education programs, progress in decreasing medication obtained by fraud, improved patient care, reduced "drug diversion," and "increased coordination among partners participating in the" PDMP.

HB 21 is 114 pages long. It addresses a great many details and would make many changes. The foregoing is but a summary of a few. In this time of Opioid crisis, there are a few things that seem clear to those who have been following, chronicling and discussing Opioids:

1. Pain is real

2. Pain is a complex, multifaceted issue

3. People are dying and being damaged by Opioid use

4. Those Opioids are both prescription and "street" drugs

5. Prescription drugs have in some instances been seen as a "gateway" to street drug use

6. Addiction is real

7. Addiction is likewise a complex, multifaceted issue

There is no physician that wants to see a patient in pain, and no patient wants pain. But, medicine has to strive to approach pain relief in a responsible manner. There is evidence supporting that Opioids can be a danger to patients. There is ample evidence that PDMP programs have been effective in decreasing inappropriate distribution of these drugs. What HB 21 will not do is magically and instantly correct all risks and issues with Opioids. That panacea either does not exist, or has not been discovered. But, the fact that all issues cannot be completely solved does not excuse failure to try. 

There will likely be critics of these proposed legislative efforts. There will be those who will raise addiction as the primary issue, and they may ask why more is not done for those already in the grip of addiction. Certainly, there are many in that situation and in need of intervention or assistance. They are the victims perhaps of prior prescriptions and Opioid availability. But, if this legislative effort can prevent or even delay new patients from dependence on Opioids, then it is an admirable start. Drugs are killing people. Preventing dependence is important. And, that does not mean there is not a need for further efforts assisting those already dependent. 

Finally, medicine must address pain. The history of Opioid medication is troubling. The death toll is staggering, with predictions that the next decade could bring 500,000 Opioid deaths. But that does not change the fact that people experience pain. Following injury or surgery, people need to understand that pain and they will naturally look to medicine to assist them. Medicine needs to respond with treatment and care that addresses that pain in a manner that does not lead to addiction, dependency, and death. It may be that there is, in a given situation, a "lack of alternative treatment options" (Lines 309-325), but that does not mean medicine cannot seek them.

I wish this were a simple problem with some simple solution. It is not. Pain is real, Opioids have been our collective solution, and pain drugs can damage and kill people. That is an inherent conflict that confounds us. There has to be a way to solve that dilemma. And, frankly, the time has come for that national discussion. How do we deal with pain without merely substituting a different problem like debilitation, addiction or death?