Attorney Fees and an Indictment in Texas

There is an old saw that pokes fun at lawyers. I have heard it told many times, each time a bit differently. But, in each iteration, there is a lawyer who is dead or dying and engages in a conversation with St. Peter at the gates or some other angelic figure. Learning of her/his demise, the lawyer protests about young age ("but, I'm only 40" etc.). The response, the punch line, is something to the effect of "according to your billable hours you're 197." 

LOL - the punch line illustrates that the lawyer is over-billing her/his clients, and depending on the number used in the punchline, the transgression might be slight or egregious. 

This came to mind recently when WorkCompCentral.com published a series regarding an indictment in Texas. See Lawyers Concerned After Indictment, New Data on Top-Billing Attorneys. This recounts that a "claimants' attorney was indicted on charges of over-billing and fraudulent billing." The attorney, Leslie Casaubon has been accused after an investigation allegedly demonstrated inflated billings. The indictment is here.

In Texas, the hours billed by workers' compensation attorneys on both sides are submitted to the state and maintained in a database. WorkCompCentral reports that a search of that database revealed one lawyer who "billed for more than the 8,736 hours that are in a calendar year." To be clear, 24 x 365 = 8,760; 24 x 364 = 8,736. That lawyer allegedly claims to have worked every day, Saturdays, Sundays, and holidays, and to have worked in excess of 24 hours a day on some of those days. 

This is not the first time that interesting time accounting has made the news. See Overtime Anyone (October 2015).

How is that possible? That is a reasonable question. 

I was asked years ago to testify in a case as an expert regarding attorney fees. That process requires a review of a file, the claims and defenses, the effort invested, and determining whether the hours invested and the rate claimed are "reasonable." I found some mathematical curiosities in my review of that file. When I asked the attorney who had hired me to testify, about those anomalies, I was told that it was her/his habit to take credit for any work performed by her/his paralegals. Thus, if four hours were spent by a paralegal organizing and summarizing medical records, the attorney would attest under oath that the time was the attorney's time. The attorney would seek payment for that time, expended by paralegals, as attorney time. 

As I recall, I did not end up testifying in that case. 

In another case in which I was asked to testify, I noted similarities in various time entries. When I inquired about the striking similarities ("letter to client re status, .30 hours"), the attorney who had hired me to testify explained this "is how everyone does it." Does what? The attorney explained that when you take your car to the shop they have a book that states a time for each repair a car might need. To replace a starter might be listed in the book at 2 hours. If the repair actually takes one hour or three, the shop charges two hours. It is the "standard" charge. The attorney explained that she/he used the same process. So, a one-line letter to a client reminding of an upcoming appointment for a deposition or a mediation, which required literally seconds to dictate or type, would be charged at 18 minutes (3-tenths of an hour). The attorney explained this was easier for the client to understand, rather than having to explain why some letters took longer or shorter time than others. 

As I recall, I did not end up testifying in that case either. 

When I was in law school, I interviewed for a job with a law firm that bragged about its regional footprint in a state. The interviewing partner assured me that meeting the firm's billable hour budget would be easy because I would spend so much time driving around the state to hearings and other proceedings. The secret, she/he confided was to schedule multiple events on the same day in a remote place, and bill each file for the trip. That is if a lawyer had a hearing in a city an hour away from the office in case "A," the lawyer should also schedule a deposition in that city that day in case "B," and a conference with a doctor in that city in case "C." The travel time would be an hour's drive to that city and an hour back; however, the combined two hours of travel would be billed in each of "A," "B," and "C." Thus, two hours actually invested becomes six hours of billing. 

I did not end up returning to that firm for a second interview. 

WorkCompCentral reported that the Texas legal community now wonders if further investigations will occur in light of the indictment and the resulting scrutiny of time records in the database. State officials have noted that 

“All attorneys in the system should take a close look at their reported hours and fees, and confirm those reports are accurate,” 

The story explains the math above and also notes examples of attorneys reporting 17 to 24-hour days throughout the year. The numbers are somewhat curious. It also quotes attorney sources saying "It's difficult for anyone to work more than 2,000 hours a year." It may also be difficult to bill every minute of the workday (some tasks in the day may simply not be billable). The article concluded that defense fees listed in the recent report were "a little lower" by comparison but "still strained credulity."

Some attorneys assert in explanation that time included in a particular year's reporting may be associated with a prior year's work. Others note that work performed by an associate attorney who departs a firm might "have to be" billed, or at least reported to the state, under some partner's name following the departure. 

The question being asked is whether anything untoward is occurring in Texas. Obviously, one grand jury thinks it has with one lawyer, thus the indictment. Whether that attorney is subjected to criminal penalty or suspension of her license to practice law will be seen in time. It is entirely possible that the accused will be vindicated when all of the evidence is presented. 

But, the question this raises is whether it makes sense to have a database through which all attorney time and billing must pass? It is possible that the time reported in Texas is all explicable, based on accounting issues (last year's time in this year's billing, departed associates, etc.), and there is a possibility that it is misrepresentation (WCC cites a previous example case in which a lawyer was suspended for illegally including "legal assistant's time as his own," as discussed in the example above). But, regardless of the explanation of the numbers, the existence of the Texas database has led to questions being asked. 

The WorkCompCentral article lists the top ten attorneys in both claimant and defense categories, listing the aggregate fees. It also notes that it has requested additional information from the Texas Division, with the suggestion that further investigation and reporting may be forthcoming. 

Should states track and report attorney fee collections in this detailed manner? Would a Texas-style reporting system and database be a benefit or a burden, a valid measure or distraction? The Texas database will perhaps be a subject of discussion as the present indictment proceeds or as further investigation occurs. It is an intriguing topic. 

Commenting by the Judge

Judges must be judicious, impartial, and more. This is a requirement interwoven in the Code of Judicial Conduct. The Code began as a reaction of lawyers, produced by a committee of the American Bar Association (ABA). The ABA promulgated a "Model Code" and various states have adopted a Code, some in more conformity with the Model than others.

The Florida Supreme Court has adopted a Code of Judicial Conduct. A seemingly straightforward set of aspirations and requirements. But, the Code supports that old adage that looks can be deceiving. That is evidenced by the many challenges that confront judges, and the plethora of occasions upon which either the Court or the Judicial Ethics Advisory Committee has needed to issue an interpretation of the Code over the decades.

The Florida Code says that an "independent and honorable judiciary is indispensable to justice." In furtherance of that, the Code requires a judge to "personally observe" "high standards of conduct," such that "the integrity and independence of the judiciary may be preserved." Canon 1. But impartiality is critical to this independence. Impartiality and diligence share the title to Canon 3 of the Florida Code. 

In paragraph (5), the Code states 

"A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status" 

In paragraph (4), the Code states 

"A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals" 

And, thus the combination of Canon 1 and Canon 3 set the tone for the role of adjudicator. 

I thought of these two when I recently ran across a couple of appellate cases that I had long forgotten. The first is TAK Communications v. Gerasimchik, 588 So.2d 305 (Fla. 1st DCA 1991). In it, the Court recited from the record to illustrate an exchange between counsel and the presiding judge. There are two or three instances in which it appears the judge rudely cut off the attorney in mid-sentence. 

Worse, one of those examples illustrates inappropriate language in a judicial setting. Perhaps the reader will disagree, but I find coarse language an unwelcome distraction during hearings. The attorney was explaining a physician's refusal to use the Guides to Permanent Impairment when the judge interrupted with: 

"Counsel, I really don't give a damn what he says. I awarded the benefits and I'm going to stick with my award, and if you don't like it, appeal it. That's all I can tell you." 

This is followed by a brief discussion by each counsel, but the judge again interrupts the same attorney with "The motion is denied, and you can appeal it if you would like." 

Reasonably clear. This judge had decided the pending issue and expressed an unwillingness to listen to the contrary argument. And then, the second shoe drops. The Judge threatens counsel: "It will only cost you a lot of money because they won't reverse me, and if they do reverse me, you're still going to have to pay a lot of money, because when it comes around to attorneys fees, bingo, I will lay it on you." 

The District Court heard the case upon appeal. An attorney might take issue with an assigned judge by moving to disqualify the judge. If that motion were denied by the judge, then an appellate relief might be available through the "extraordinary writ" of prohibition (the Court removing the judge from the case). But in this instance, counsel filed an appeal of the order, just as the assigned judge had suggested. 

The Court affirmed the underlying ruling regarding impairment, that is the benefits for the injured worker. But, the Court noticed the untoward exchange between counsel and judge. The Court concluded that the exchange was inappropriate, and said that "Statements such as those above quoted indicate that the judge has already made up his mind and has determined to award fees as a sanction." Despite its conclusion that the judge was inappropriate, the Court took no action to remove the judge from the case. Instead, it affirmed the judge's award of benefits and cautioned the judge "should continue in this case only if he can do so with an open mind and award attorney fees based on proper criteria."

Some will see this as an ineffectual appellate process. It is unlikely that behavior will change when there is no correction or action even in the face of a conclusion of inappropriateness. 

In another case, an employee was injured in a shooting at work, Mobil v. Trask, 463 So.2d 389 (Fla. 1st DCA 1985). This case came to the Court on a writ of prohibition after the trial judge denied a motion for disqualification. That the injury was serious is perhaps inferred from the fact that it was a shooting. However, the Court noted that there was a factual dispute regarding "whether the shooting was related to claimant's employment or was the result of a personal dispute." 

During a trial, but while on a recess (no recording being made), the trial judge remarked on the case. At the time, the injured worker had not finished presenting his case, and thus no witnesses for the Employer/Carrier had yet testified. The proof of the judge's comment was an affidavit by a court reporter who was present at the time, despite being "off the record." The reporter said the judge's statement was 

"I don't see how you can't find this accident compensable. If I was sitting at my desk and a man came in here with a gun and shot me, it is an on-the-job accident." 

Counsel for the defense moved to disqualify, and the matter proceeded to the Court. The Court declined to remove the judge from the case. It concluded that the statement was not, itself, proof "that he had pre-judged the case or was prejudiced against petitioner." Instead, the Court concluded this was the 

"variety of statement or question not infrequently posed to counsel in order to stimulate a response which would better enable the judge or deputy to adjudicate the compensability of the claim" 

The Court compared this judge's comment to those in LeBruno Aluminum v. Lane, 436 So.2d 1039 (Fla. 1st DCA 1983), in which the judge was more committal regarding having made up his mind. That distinction may be a fine line that is hard to discern, and therefore best simply avoided completely.

In each instance, the impartiality of the adjudicator might reasonably be called into question. Any of the comments might be deemed to "manifest bias or prejudice." And, at least some of the interrupting and colorful language might certainly fail the tests of "patient, dignified, and courteous." Brought to the attention of the appellate court, however, these instances were mentioned and yet ignored. 

I contend that despite the lack of enforcement by the Courts demonstrated in these examples, a trial judge has a duty to be courteous, dignified, patient, unbiased, and fair. I consistently caution judges to avoid commenting upon the evidence, credibility, or their perceptions of the law. The Judge's opportunity for such comments is sacrosanct, but it should be reserved for the ruling upon the case. At that time, following the presentation of all evidence, and the rendition of all arguments, it is appropriate for the judge to comment upon credibility, to find facts, and to provide interpretation of the applicable law. Commenting before that point is inappropriate.

That the District Court is disappointing in its enforcement of the Code in these two cases is unfortunate. That litigants and attorneys were subjected to rudeness, doubts of bias, and profanity is regrettable. However, adjudicators should not interpret such tacit endorsement as a license or encouragement for such behavior. Adjudicators must strive for the best, and challenge themselves to perform in an exemplary fashion. In the end, the question for the judge, the goal, is to fulfill the aspirations of the Code, not to perform just well enough to avoid prohibition or sanction. 

Federal Law Matters in Maine Also

In the beginning, there were people who inhabited North America. The fallacy of Columbus "discovering" the new world, and the debate of whether the "Vikings" may have "discovered it first" is patent. Certainly, someone was the first to human in the "new world," but it was neither of these. Recently, National Geographic detailed the evidence of a sophisticated society here when the Spanish arrived, and there is archaeological evidence of society here thousands of years ago. But, the euro-centrists taught us in school to celebrate Columbus who sailed that ocean blue in 1492; rubbish.

We can, individually and collectively, become indoctrinated, by the press, our schools, our leaders, and our peers. A great illustration of this is an idiot of an emperor whose hubris was so pervasive he allowed himself to be conned by some charlatans into purchasing clothes that did not exist. It is a children's tale by Hans Christian Anderson. It is a parable and it teaches. Its moral lies in one child who speaks his mind and notes that the emperor has no new clothes, but is riding about town naked. 

Marijuana is back in the news. Or, if you prefer, pot, weed, dope, reefer, or cannabis. It is back in the news because the Supreme Court of Maine concluded that there is a hierarchy of law in the United States. It essentially recognized that in the beginning, there were colonists who landed here. They had conflicts with the natives, fought competing colonists from other European powers, and then revolted against their own king. After that war for independence, the Constitution of the United States was drafted and ratified by the states. It is the bedrock of our nation, a recognition of our rights, a tribute to the power of the people, and should be respected. 

The Constitution grants power to the United States Government. That power was granted by the states and the people who had just earned their independence. And, those people made the federal government supreme, the federal law supreme. Article VI of the Constitution says so, clearly and succinctly:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

I periodically run across someone lecturing at a conference or spouting on social media about how many states in which marijuana is "legal." The answer to that question is zero. Certainly, state legislatures have removed their state law prohibitions on possession and use. But, marijuana is illegal according to the laws of the United States, "any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." See Medical Marijuana (January 2015), and So Federal Law Matters in Colorado (June 2015). 

Maine recognized that recently in Bourgoin v. Twin Rivers Paper, 2018 ME 77 (June 14, 2018). Procedurally, a workers' compensation judge in Maine had heard a claim in which an injured worker sought to have the employer ordered to pay for him to have marijuana. This was not a new phenomenon, there have been such orders entered in at least seven states. The courts in seven of the United States have ordered employers to violate federal law and provide pot to injured workers ("Judges in every State shall be bound"). A great many in the workers' compensation community have expressed surprise at those rulings, but many more find some logic with which to justify and accept those decisions. They ignore the law, and our construct of Federalism, and resort to their personal perceptions, feelings, and conclusions about pot.

It bears noting that no American doctor prescribes pot. Even in a setting in which they insist that it is "medicinal," no doctor will write a prescription. Physicians may "recommend" it, but will not prescribe it. That, in itself, is a harbinger. The doctors will not prescribe it because doing so could get them into trouble with the Federal Government, which regulates the distribution of controlled substances. Prescribing could result in federal sanction, so recommend it they do instead. The doctors know it is illegal.

In at least one of those cases in which an employer was ordered to violate federal law, the basis was not medical evidence of efficacy. There was no scientific proof that the pot would provide relief, respite, or cure. In at least one of those cases, the patient merely said he felt better when he smoked dope, the doctor recommended that alone that the patient continue to smoke dope, and a judge (a legal officer sworn to uphold the Constitution and the laws of the United States) ordered an employer to reimburse the employee for up to two pounds of dope each year. If you are unfamiliar with pot, that is quite a lot of pot.

We do not know what the effects of weed will be. I touched on that in What Will the Next Thirty Years Teach Us (January 2016), where the New Mexico situation is discussed at length. Thirty years ago, the workers' compensation community drank the Kool-Aid regarding opioids, and the narcotics flowed like candy in the Wonka factory. And, people were damaged. They became addicted, they decompensated, they acclimated to dosages, and a fair few died (October 2013). The community was seemingly lied to or misled into Opioids. There is consensus today on that, regret, anger, and more. But the same community now seemingly rushes headlong for weed. Not because of science, not based on medical evidence, but because some find it makes them feel better. 

Comedian Ron White was arrested for marijuana possession in Florida some years back; he had less than a gram. He joked "When I have seven-eighths of a gram of marijuana, I consider myself to be out of marijuana." He explained that he has a "medical marijuana" card issued in California. Asked for what condition, he explains it is for depression. He explains that his doctor asked what depressed him, and he explained he becomes depressed when he runs out of marijuana. A funny and circular logic comedy routine, but a great illustration of the logic used by the New Mexico courts to order the employer there to violate United States law. If the patient says it makes her/him feel better, then does logic dictate that the employer should be ordered to provide it? 

The Maine judge and workers' compensation board, both sworn to uphold the laws of the United States ordered Twin Rivers Paper to violate federal law. The employer sought review by the Supreme Court of Maine. The Court explained that 

"state laws, such as the MMUMA, provide safe harbor from state prosecution, but do not—and cannot—create a 'state right to commit a federal crime,' meaning that the state law protections have no bearing on federal criminalization or exposure to federal prosecution for that conduct."

There is no "State right to commit a federal crime." A corollary hypothetical might illustrate. Maine law prohibits kidnapping. See Title 17A, Maine Criminal Code. If Maine concluded that there is no real harm in kidnapping (it might make someone "feel better"), and decriminalized it, kidnapping would nonetheless still be illegal. See 18 U.S. Code § 1201. Imagine that occurred. Imagine further that someone thereafter seized me, locked me in the trunk of my rental car at Augusta airport, and demanded a ransom for my return. Following some crack police work, I am released and the perpetrator is arrested. Would anyone imagine that the person would not be prosecuted because kidnapping has been decriminalized in Maine? Perhaps a reader will comment and endorse that analysis. But, I doubt it. Likely everyone will agree that the kidnapper would still be prosecuted under federal law.

But, in this hypothetical kidnapping is not illegal in Maine. Using the marijuana advocate argument, kidnapping is "legal" in Maine. What if we extended the hypothetical a bit further. What if the kidnapper testified that putting people in car trunks and demanding ransom makes the kidnapper "feel better?" What if the kidnapper had a "recommendation" from a doctor that "if locking people in trunks and demanding ransom makes the patient feel better, I recommend it." Might the employer be ordered to aid and assist the kidnapper in finding and abducting victims? Certainly, this is preposterous. 

No one will conclude this is appropriate. But, they will try to tell you dope is different from kidnapping. But, when I have pressed that comparison with audiences, no one has provided either logic or law in their defense of their perceived distinctions. Every time I raise this comparison, the reefer advocates resort to their "it makes him feel better" argument and their "he's not hurting anyone like a kidnapper" distinctions. They resort to feelings and emotions, sympathy and anecdotal "success" stories. They can never address the simple fact that the stuff is illegal. 

Though I have never used any, I suspect people do not use crystal meth because it makes them feel bad. I presume the same for bath salts, LSD, Heroin, and more. I suspect people use these substances because it makes them feel good. If the standard we will employ is simply whether the person who wishes to use something says they feel better, it may be a bit of a slippery slope. 

The Maine Court did not delve into the inherent conflict of a state law or constitution creating an entitlement to weed. That "broad" analysis was not required. Instead, it merely addressed the facts of the case before it and concluded that any such "right" to personally blow dope under state law could not be converted to a "sword" to allow that drug user to make someone else pay for their illegal cannabis. The Court is quite persuasive in this regard. In this regard, the conclusion is not dissimilar to Coates v. Dish Network (Colorado Supreme Court), discussed in Federal Law Matters in Colorado (June 2015). 

An interesting legal debate is similarly playing out in Florida. Floridians passed an amendment to the Florida Constitution decriminalizing the use of cannabis for medicinal purposes. But, the Florida Department of Health, in implementing that change, has continued to prohibit the smoking of cannabis. The non-criminalized (under state law) uses do not currently include smoking. As an aside, there are those who assert that the "high-producing" elements of weed are not part of the experience with cannabis oils and other cannabis derivatives. Some claim the desire to smoke it is driven in some part by a desire for that "high." Others argue that the desire to smoke it is merely one of personal choice, which they contend the Florida Constitution provides them. It is a loud and sometimes raucous debate. 

Recently, a Florida trial court judge (sworn to uphold the United States Constitution) concluded that in Florida it is unconstitutional to preclude people from smoking an illegal (under federal law, see Article VI above) substance. That sentence will throw a few off and cause some head-scratching for sure. As I described that logic in a recent speech, I was reminded of Austin Powers' (Mike Myers') time travel bit that makes him cross-eyed, too funny. According to the Orlando Sentinel, Judge Karen Gievers held 

Floridians “have the right to use the form of medical marijuana for treatment of their debilitating medical conditions as recommended by their certified physicians, including the use of smokeable marijuana in private places.” 

Note the "recommended" and not "prescribed?" Notice that it is a "right" to use federally illegal substances? In other words, precluding Floridians from smoking a substance illegal in all 50 states violates the Florida constitution. That decision was very recent and is now pending before the Florida First District Court of Appeal. Judge Gievers was, coincidentally, the judge that concluded the workers' compensation rate-making process was not appropriate. That decision was reversed as described in a blog post in May 2017. 

The United States government gained its power and authority from the states and the people. By its own ratified terms, the Constitution and laws passed there under are the law of the land. By that federal law, marijuana is illegal. It is illegal in all 50 states and nothing that any state or local government or official can do will change that. Two state supreme courts have now so concluded (those surprised by Bourgoin likely either did not read Coates, did not understand Coates, or forgot Coates). In fact, those various state and local officials, and judges, that break federal law are a curiosity. Sworn to uphold the laws of the United States, some state officials and officers actually advocate violating federal law, not changing federal law, violating it. 

That is worthy of discussion. There are many avenues for changing federal law. If there is reason for the legalization of weed, then the place for that debate is in the halls of Congress. There, the evidence of any efficacy or danger of cannabis can be debated and discussed. Congress can elect to legalize weed, could elect to withdraw federal controls leaving the legalization debate to the states, or could conclude that it believes kidnapping to be wrong regardless of whether it makes kidnappers "feel" better. But, that debate is of policy and is for the policymakers.

Maybe the "pot is bad" is as fallacious as the "ocean blue" that we were all taught? But, this should not be a debate centered on ignoring the U.S. Constitution, the Supremacy Clause, and the federal laws duly enacted. If we reach the point that people may violate federal law because it makes them feel good, with or without the permission of a state government, then we are in a perilous state. If pot is good, then Congress is the place for change in the pot policy.

And, like the fair townsfolk in the Hans Anderson story, a great many may line the streets and enjoy the parade that is "legal" weed. They will periodically find themselves shocked and dismayed, as they were recently in Bourgoin, when someone points out, reminds, that this emperor has no clothes, and that dope is still illegal. As such, at least in Maine, a state agency or official cannot order someone to break federal law any more than a worker in Colorado can claim discrimination when a business follows federal law. 

Disagree with the logic, or the entire post, if you like. But I wrote it on my doctor's recommendation, and I do feel much better now.

A Comp Laude Overview, Community, and Commitment

The Comp Laude awards have become a part of the American workers' compensation landscape. Each year nominations are opened and we encourage participation. Some thoughts from April 2017 are here. Some broader overview thoughts from April 2016 are here. And, as a proud honoree, I was privileged to share my thoughts on Comp Laude in the WCC World Blog last fall. That is a sampling. I have written fairly often about the Comp Laude efforts instigated by David DePaolo, to recognize what is good and right in workers' compensation. 

In 2017, the awards were barely awarded when the discussion had begun about nominations for the 2018 awards. I was surprised by that, but organizers reminded me that it takes significant promotion and discussion to generate nominations. We all get busy and distracted in the day-to-day, you know, in our real jobs. Though the opportunity to nominate was opened months in advance, I must admit that my nominations in 2018 waited for the spring, waited for the deadline, and waited for some sense of urgency. Why do we all put things off until the last minute?

I made 14 nominations in 2017. I initially identified them all in writing this blog and then elected not to. Suffice it to say I nominated claimant attorneys, defense attorneys, doctors, industry leaders, philanthropy projects, pundits, writers, and speakers. I nominated from Florida, Kansas, Tennessee, and Texas. The nomination process is online and simple. It requires knowing your nominee's name, email address, and phone number. 

The process for selecting winners is a tiered process. Literally hundreds were nominated. Members of a committee individually review all of those nominations. In the interest of full disclosure, I served this year on that review committee. Thus, I was one voice in deciding which nominees would proceed to the "second level" of review. 

That initial review process was challenging and involved a great deal of reading, re-reading, and consideration. I spent hours reading about great members of our national workers' compensation community. My participation in that process gives me an unfathomable level of respect and appreciation for those individuals critical in the next step of the Comp Laude process, the judges who will now have to pick honorees from those that progressed from that review process to the "second level."

After the initial review was conducted, the nominees who progressed to the "second level" received emails from the Comp Laude. For most, that was their first inkling that they had been nominated. Several of those I nominated forwarded their email to me, thanking me for recognizing their effort and contributions. To a person, each of them was modest, shy, perhaps even a bit embarrassed at the attention. I was proud of that. I think too little attention is paid in this workers' compensation world to modest people who dedicate their lives to making it work. They lead us, inspire us, and motivate us, but they tend to downplay their contribution and shun recognition. 

I corresponded with several. My main message, responding to their demurring, is that their sentiment only convinces me more that they should be recognized. They are contributors for the sake of progress and contribution and do not seek recognition or thanks. Those are the people we should be thanking, following, and emulating.  

I was honored yesterday to submit the "second-level information" for the last of my nominees that progressed to the "second level." That process, admittedly, was a bit more challenging. The "second level" requires gathering a digital photograph, a biography, at least one reference, and writing a 500-word narrative regarding the nominee. This is an in-depth explanation for the judges regarding who the nominee is, their path to today, their investment or commitment regarding workers' compensation, and how their values and contributions support recognition with a Comp Laude award. 

I learned that many of those I nominated are not so "Internet-apparent." I struggled to find photos of several. I struggled to find biographies, resorting in several instances to drafting narratives about their history. In the process of drafting, proofreading, and submitting, I learned more about each of them. Note that I know enough of each to have concluded to nominate them, but I was still surprised to learn more about their depth, commitment, and journey. It is astounding how much people do to contribute to this industry, its progress, and the people it serves. 

I mentioned above the respect and appreciation I have for the judges who must now perform the "second level" review. But, in fairness, I also frankly pity them deeply. Submitting "second level" information supports my conclusion, unequivocally, that those poor judges will face an unbelievably difficult task. Of all of these nominees, the judges must now select honorees, who will be announced in San Diego in October. It will be like trying to pick an MVP from the American Olympic basketball “dream team.“ It will be magnificently difficult, challenging, and perhaps frustrating. 

My 2018 Comp Laude experience of nominating, first-level review, and documenting my nominees in the "second level," led me to a few conclusions. First, I am more firmly convinced than ever that this industry is blessed with a great many individuals who exhibit a tremendous character and commitment to functionality, innovation, and progress. The nominees are a fantastic array of contributors. To be nominated is a great compliment. Someone, somewhere, took notice of these nominees and then devoted the time to documenting their contribution. That is meaningful. 

Second, there are so many who should be nominated. As I worked on my "second level" information and contacted potential references for each, I found myself ruminating on those references. I found myself asking why those references themselves have not been nominated. It caused me to start a scratch-pad list for the 2019 nominations to come. Though this process demands time, I will be back making nominations next year. 

Third, someone once said it’s not the destination, but the journey.  It occurs to me that not everyone nominated will be presented with an award. Having read about and considered the nominees, that outcome is a bit troubling. These nominees are all worthy, outstanding, and deserving. I therefore return to the conclusion that it is absolutely a tremendous honor merely to be nominated. When that nominee list is published, just prior to the Comp Laude event in October, we will see a phenomenal list of people. 

As an aside, I dictated most of this post. Voice recognition is a great benefit, but has its shortcomings. When I dictate "Comp Laude," my software consistently hears "comp loudly." After making multiple corrections in this post, it occurs to me that "comp loudly" is actually pretty descriptive and fitting. 

Let's get loud about workers' compensation. If you don't know one professional worthy of recognition, you need to get out more. If you do know one, then plan now to make a nomination in the fall of 2019. Take the time to let someone in this industry know that you notice their effort, commitment, and contribution. That is a part of the community. And, I have taken to heart the message of one of our industry leaders (whom I nominated this year). This leader emphasizes that how we describe is critical. In that spirit, this will be my last post in which I refer to workers' compensation as an "industry," and henceforth will use only "community." Those little changes, and nuances, make a difference. 

In closing, I invite you to be a part of that community. Take the time to submit a Comp Laude nomination for 2019. Take the time to review the list 2018 of nominees later this fall and drop an email or make a call to someone who made that list. Tell them you noticed, tell them you appreciate them, and thank them for being in your community. In the end, it is a journey. I am thankful for you, my fellow passengers. Though none of us say it often enough, thank you. 

Abuse of Discretion

Appellate courts review the actions (or inaction) of trial courts. That is axiomatic, and reasonably well understood by everyone in the litigation business. But, over the years, I have come to appreciate that many who understand that premise do not understand that courts perform that function (usually) using standards. Standards that have been made up over the years by courts, honed and refined, and then applied. That process of sticking to the same analysis, and applying the standards consistently, is called Stare Decisis (Latin for "stand by things decided" or simply "let the decision stand").

As a basic premise, it is critical to remember that appellate courts make decisions collectively, while trial judges do so individually. A trial judge is called upon, often in the heat of the moment, to render decisions about the facts and law in a case. Appellate courts make decisions in more of a committee setting, in which multiple judges (called "panels") or even all of the judges on a court ("en banc") ponder issues and render collective decisions (based on the majority"). For the most part, those courts may take their time, research, debate, and consider decisions virtually indefinitely.

When a panel or court reaches a majority conclusion, one or more of the judges might nonetheless disagree, and author an explanation of that disagreement, called a dissent. One or more might similarly agree with the majority but nonetheless elect to write a separate explanation of their agreement, called a specially concurring opinion. 

There are various standards that courts use. In constitutional challenges, this is generally in two categories. A statute can be "facially unconstitutional" meaning that there is no possible construction of that statute in which it would comply with constitutional precepts or protections. The second is "as applied," in which the analysis is much more narrow. In "as applied," the question is whether some statutory construct affects an unconstitutional result in a particular case, for a particular challenger. Lawyers of imminent training and undeniable intellect struggle with this distinction. 

In the practice of law, the question of greatest importance may not be whether one's position is "right" or "wrong," however. The primary question may eventually devolve to whether there is an authority that can be reached in order to prevail. Justice Robert Jackson of the U.S. Supreme Court wrote in 1953 "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443 (1953). That "we are final" is more readily comprehensible with the highest court in the land, but perhaps less so with lower courts. 

The fact remains, however, that appellate finality can occur in the American system well short of the U.S. Supreme Court. Lower courts may enjoy a similar posture of being seemingly "infallible" not because it is final as a matter of law, but because it is final as a matter of fact. That is, there may remain appellate bodies above it capable of reviewing a decision, but unwilling to do so. Thus, a court might wander from the two constitutional constructs cited, "facial" and "as applied," and create its own standard in a particular case. See Bass v. General Development, 374 So.2d 479 (Fla. 1979), a Florida Supreme Court creation of its own constitutional review analysis. 

But, outside the constitutional analysis, trial decisions in Florida are generally subject to three "standards" of appellate review: (1) the competent substantial evidence standard, (2) de novo review, and (3) abuse of discretion. The three are the foundation of the vast majority of appellate review. 

The first simply asks if there is any appropriate (competent and substantial) evidence that would support a factual finding. If the dispute is over whether a worker did or did not slip and fall at work, there might be 100 witnesses who were watching and deny a fall occurred, but there is one witness that testifies s/he saw the fall. The appellate court does not "re-weigh" the evidence ("Is 100 more persuasive than 1?"), but asks simply whether there is competent evidence that the fall occurred. If the one witness was found credible, then the appellate court will likely sustain a trial judge or jury's reliance on that one witness. A reversal occurs under this standard when the appellate court can discern no competent evidence supporting the trial tribunal finding. 

The second, "de novo" means literally to "start anew," that is to begin again. This standard is applied by the courts not to factual issues (discussed above) but to interpretations of the law. In determining what a statute says or means, or how multiple statutes interact with each other, an appellate court reviewing is in a position at least on par with the trial court. That analysis is not dependent upon credibility determinations, and therefore appellate courts afford no deference to the trial judge's legal interpretation. As an aside, many believe the appellate court is actually better postured for such decisions as it has access to more resources (clerks) and virtually unlimited time in which to analyze, debate, and render a decision. 

The last is "abuse of discretion." That phrase has been defined in Florida as "A court abuses its discretion when no reasonable person could reach the same conclusion.” Verkruysse v. Fla. Carpenters Reg'l Council, 27 So.3d 157, 159 (Fla. 1st DCA 2010). This is derived from the Florida Supreme Court in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), explaining

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. (Emphasis added).

Perhaps the critical portion of that Supreme Court quote is the last sentence: "If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion" If reasonable people could disagree, then the trial judge's interpretation must be affirmed; if reasonable people disagree, then it cannot be abuse of discretion. This is strong language from Florida's highest court. 

This returns us to the post title "Abuse of Discretion" and the second paragraph of this post which explains the "dissenting opinion." An appellate judge writes a dissenting opinion to express disagreement with the majority opinion of the appellate court. Can an appellate judge dissent from a decision holding the trial court abused its discretion (a conclusion that "no reasonable person could reach the same conclusion")?

An appellate holding that the trial judge abused discretion, is a conclusion that the trial judge is not a "reasonable person." The trial judge reached a decision, and to find "abuse of discretion, the appellate court must conclude no "reasonable" person would take that view. And, if one of the appellate judges dissents, then arguably the court's holding is that the dissenting judge is likewise not "reasonable."

Arguably, the inverse is also true. In the event an appellate court reviews using this "abuse of discretion" standard and the majority holds the trial court did not abuse discretion, then a dissenting opinion is effectively one or more judges concluding the majority judges are not "reasonable." When one devolves to using a subjective standard like "reasonable," to measure legal interpretation, perhaps the slope is merely too slippery at the outset?

In Florida, this scenario has been demonstrated literally dozens, perhaps hundreds, of times. In the example of a majority finding no abuse of discretion and a dissenting opinion in opposition, see Ray v. Thomson-Kernaghan & Co. Ltd., 761 So.2d 1197 (Fla 4th DCA 2000). For an example of the appellate court reversing on the conclusion that the trial court abused its discretion, but with an appellate judge dissenting, see Amaran v. Marath, 34 So.3d 88 Fla. 3rd DCA 2010).

Some would likely argue that such an outcome is both illogical and inappropriate. They would contend that any determination of abuse of discretion would necessarily have to be unanimous, or would be inextricably and inexplicably internally inconsistent. Others would perhaps have some other explanation based upon the emotion of individualism and the merit of dissent (note that others could strongly argue that the unanimity requirement perhaps respects that dissent more than the alternative). 

Is ignoring the plain language of the abuse of discretion standard an appropriate judicial practice? Should an appellate court be true to that standard, or continue to infer that its own judges are not "reasonable?" Does the practice continue because it is right, or because no superior court is willing to undertake the task of either better defining this standard or explaining the obvious and apparent contradiction it expresses? Is the practice of non-unanimous abuse of discretion rulings right, or does it merely exist because the courts making those decisions are essentially, factually, last?

Might one even conclude that a non-unanimous holding of abuse of discretion is itself, an irrational and unreasonable, internally inconsistent, conclusion. Is a non-unanimous holding an abuse of discretion, simply an abuse of discretion itself?

We'll Head em off at the Pass!

Every kid grows up wanting at some moment to be a superhero, policeman, fireman, or astronaut. These were the standby responses when I was a kid. A few would wander off the reservation with doctor, nurse, teacher, or athlete. That is all likely due to perspective and exposure. We perhaps better understand or desire what we can see? 

As an aside, several years ago, there was an entertaining parody in which kids expressed their various desires to "claw my way up to middle management," or "be a yes man," or "have a brown nose," or "be replaced on a whim." The numerous videos are worth watching even if you decide to quit reading the rest of the post. 

The "what I wanna be" thought came to me when I read a recent California decision regarding exclusive remedy. Exclusive remedy is one of the quid pro quo of workers' compensation in America. The idea of workers' compensation is that an injured worker will receive a more rapid and more certain treatment, income replacement, and hopefully recovery through this alternative to tort litigation and damages. Like it or not, elect it or not, when you go to work in most states you agree to accept workers' compensation as a substitute for tort damages. 

A potential result is that many maladies, injuries, and conditions are covered and treated in workers' compensation, without the risks and challenges of the tort system. A recent Florida jury verdict illustrates that. A man in St. Lucie County was apparently drinking and listening to music in his garage. When police were summoned for the noise, they say that this man had a gun in his hand when he suggested they leave him alone. There is a dispute about that gun-in-hand accusation. But, there seems no disagreement that he had been drinking and was perhaps even impaired. 

He allegedly shut the door in the police officer's faces to return to his music. An officer shot three or four times through the door. The man was later found dead inside with an unloaded pistol in his pocket. A jury in the tort claim awarded his survivors $4.00 but attributed 99% of the fault to the dead man (called "comparative negligence," this fault of the dead man reduces his damages). ultimately, the family will receive four cents. The tort system can be unpredictable. The news will conjecture and opine on why the jury reached that decision, but the fact is that is the decision. No appellate court can figure out how or why a jury does what it does, but comp judges have to "show their work" in decisions and appellate courts can calculate and recalculate benefits under statutory provisions.  

Certainly, tort damages may be more lucrative than workers' compensation. Most workers' compensation does not really compensate for family impacts (loss of consortium), non-tangible (pain and suffering), or even behavior-correcting (punitive) damages. But, tort damages are also harder to predict (see above), and getting a case to trial in civil courts can take years. And, if you are suing the state, you may find that damages are limited by something called "sovereign immunity." It protects many states. In Florida, there has been recent news about our process requiring legislative approval for damage claim payments beyond the amount of $200,000. Yes, someone suing Florida may see their damages capped at $200,000. Workers' compensation benefits may have category limitations, but there is no such overarching cap. 

Workers' compensation benefits are admittedly not usually as significant as tort damages, but they are usually delivered much more rapidly, most of the time without any litigation whatever. A Florida state database reflects that between January 1, 2017, through December 31, 2017, there were 54,143 "lost time" accidents in Florida. During the same period, only 30,448 new cases entered litigation in Florida workers' compensation. That means, ignoring all the "medical only" and "first aid" injuries that occurred, at most only about 56% of claims entered litigation. 

That comparison is an illustration. It is a flawed illustration because many claims that are "new" to the litigation process are not related to dates of accident in the year they occurred (date of accident year), but are filed later. But, conceding that flaw, and acknowledging that many injuries are not "lost time," a large number of injured workers appear to receive benefits without even resorting to litigation. Certainly, that might also occur in the tort system (claim or allegation that is settled in a lump sum without trial). But workers' compensation appears to deliver on the "more certain" and "more rapid" promises. And, workers' compensation is not eliminated or reduced if the worker is him or herself negligent (comparative negligence). 

This returns me to what you wanted to be when you grow up, and the California case of Gund v. County of Trinity. A deputy received a dispatch that resulted from a 911 call. The caller whispered she needed help, and the 911 operator could not reestablish contact when the call was interrupted. So the deputy did what any law enforcement officer would, he placed a call to the caller's neighbors and asked them to look in on the caller (sarcasm). 

Some police agency employees might instead have driven to the house and checked on the citizen him or herself. This officer told the Gunds that he was "hours away," however. Googlemaps says that Kettenpom airstrip, where the call originated, is about 2.5 hours from the county seat in Weaverville, 97 miles distant in rural California. 

Well, the neighbors drove over to the neighbor's home and were "brutally attacked" by a "man who apparently had just" murdered the nice lady who called 911. Some news stories suggest that the nice lady or her significant other might have been involved in some drug-related transaction at the time. Each of the Gunds suffered wounds in the assault. They later filed a negligence lawsuit against the county and the sheriff corporal who called and enlisted their assistance. The trial court dismissed their claim for damages, on the grounds that their "exclusive remedy" would be workers' compensation. The appellate court affirmed that conclusion. 

And, that raises a discussion of an old English phrase "posse comitatus." This is a Common Law concept that allows a sheriff to call upon citizens for assistance in time of need. (Our national jurisprudence is based upon and greatly influenced by English Common Law). If there was a need, a citizen was expected to "raise a hue and cry," and from that came the duty by which any "male over the age of fifteen" could be called upon to aid the sheriff. This evolved, in America, to the abbreviated term "posse." And, if you never saw a movie in which they either raised a posse or "headed them off at the pass," you frankly missed out and I am sorry. 

There are hundreds of posse movies. The advertisement for The Last Posse adds the catchphrase "when six guns spoke the law - a sheriff had no friends." A sheriff might be a lone authority figure, surrounded by miles of territory. We got that as kids, watching the old westerns. But, if you had told me that it was a modern phenomenon, I would have demurred. Many of us flatlanders might be similarly surprised that a 97-mile drive would take 2 hours, but then mountains and their roads are not like that to which many of us are accustomed.

The California appellate court affirmed the trial court's conclusion that the Gunds are eligible only for workers' compensation. It explained that there is specific language in the California Code that says volunteers are generally not employees or entitled to workers' compensation. But, there is a specific exception to that rule that covers "civilians assisting peace officers in active law enforcement." The Court concluded the Gunds were "clearly assisting a peace officer," and then analyzed whether that was "in active law enforcement service."

In the end, the Court concluded that their actions were in fact so. The Court resorted to the intent of the statute, which it says is to provide coverage to "a person who assumes the functions and risks of a peace officer." The Court distinguished a contrary conclusion reached in a workers' compensation proceeding in which a person was injured while training for a volunteer "mounted posse program," stating that the program (performing police functions like crowd control and crime scene protection) was not "active law enforcement services," because the injured person was training at the time of that accident. Some may find that distinction dubious.

Thus, in California at least, one waives his or her rights to tort damages in some instances in which "assisting" a law enforcement official is requested. However, this is apparently dependent upon the tasks being performed when damaged. If actually "assisting in active law enforcement" or firefighting, then a member of the "posse" is benefited (entitled to workers' compensation) and burdened (not entitled to tort remedies).

That burden/benefit analysis is critical. Those who decry workers' compensation as "not enough," and long for a tort remedy should remember that workers' compensation pays even when no one is negligent. If an officer asks for my help, no officer or agency involved is negligent, and I am hurt, the California statute makes sure my medical bills and lost wages are paid through workers' compensation. But, without that coverage, if I so engage and am hurt in the absence of any negligence, then is it right that I get nothing? And, even if there is officer or official negligence, would I rather have workers' compensation for life (think catastrophically, if I were paralyzed from being hit by a car), or a limited tort recovery capped by sovereign immunity, or reduced by a jury for my own negligence?

Over the years, I have had a great many express their incredulity at the concept that accepting a job waives tort rights. The "social contract" imposed statutorily as workers' compensation is something that people struggle with. I have met with many prospective clients who knew nothing of its constraints until longer after they became employed, learning of it only when injured.

But, I suspect that people might be more surprised to learn that they similarly alter their rights by answering the "hue and cry," and coming to the aid of someone at the direction of, or instead of, the police. I certainly see the Gund's point, and their desire to pursue civil damages; they feel lied to, used, and mistreated. They were volunteers, and likely never even thought of workers' compensation. But, I can also see beneficence in the state providing compensation for people in such settings, who might suffer injury and impairment while performing such assistance even through, in part, their own contributory negligence.

Workers' compensation is a benefit. It affords both employees and employers with both benefits and burdens. It is not perfect and its flaws have been illustrated both in this blog and elsewhere. But, it provides a benefit that is more certain, more rapid, and regardless of employer negligence. Its benefits and failures cannot be individually analyzed only within a particular case like the Gund's but must be considered from the broad perspective of all employers and employees.

And, through this odd posse provision in California, maybe we will all still someday grow up to be the policeman of our childhood prognostications? If I ever do, I hope I also get the chance to head 'em off at the pass. 

Effective Pleadings and Changing Names

There is a long history of reliance on social security numbers in this country. Florida workers' compensation has been using those numbers to identify injured workers for a long time. It is generally believed that the first Social Security Number was issued sometime in 1936, and Florida's workers' compensation system began in 1935. 

Of course, the Florida Office of Judges of Compensation Claims does not require injured workers to provide a social security number. That issue was debated, and some would argue litigated, early this century. But, those numbers are accepted when they are provided. When an injured worker declines to provide that number, the Florida Division of Workers' Compensation provides an alternative numerical designation, the "Division Assigned Number" or "DAN." The purpose is simple, a unique identifier for a particular individual. 

The identifier is necessary because names can become common. The proliferation of names has been studied by National Geographic. Simply stated, there are many John Smiths out there. The identification number, a unique identifier, is a method of trying to differentiate among those various John Smiths. And, the name need not be that popular; David Langham is an actor, a disc-golfer, a musician, a home builder, a candlemaker, the youngest son of a hot-rod-hating father, an obscure Florida judge, and more. A unique identifier helps to keep all of us straight. 

Unfortunately, people get hurt on the job. That is a simple underlying theme or workers' compensation. Without the employees and the employers, there is simply no point in us. The Florida Office of Judges of Compensation Claims exists for a singular specific purpose, the disputes that arise between these two regarding benefits. More unfortunate is that some people get hurt more than once. And so, a single person may be involved in litigation at various occasions during their working career, with one or more employers. 

And, life is a progression of changes. We see people marry, divorce, and otherwise change their names. These are purposeful changes. Other changes are merely in detail. For example, one lawyer may file a petition for Mr. Smith and state the name as "John Smith," and the next may use "John Q. Smith," and yet a third might use "John Quentin Smith." In short, there are a multitude of circumstances that result in confusion as to whether someone is or is not the same as an "apparently," or "potentially," different someone. 

Additionally, there is a practice by some to use other people's social security numbers. Read Kansas Cannot Prosecute Identity Theft (September 2017) and Brock is Gone (January 2015)

A conflict arises when a petition or request for assignment of case number (RACN) is filed with a name and social security number (SSN). That information may not match information already in the OJCC database. This can occur because of a name change, name difference, or even a simple SSN error, in which someone intending to type 1234 instead types 1324. Anyone can make a mistake. In short, it can occur because a name has changed or the way it is presented is merely different. 

The OJCC has experienced instances in which names are misspelled, a middle initial is incorrect, a last name is inconsistent with existing data, or another last name has been added (hyphenated or not). Sometimes it is as simple as one instance including a suffix (Jr., Sr., II) when another does not. When any of these occur, the filing is flagged by the database and is dropped into the "pending" folder for further human evaluation, investigation, and in many instances an order. 

How might an attorney avoid the delay of a pleading dropping into the "pending?" Know that when there is no such conflict the filed pleading (Petition, "PFB," or Request for Assignment of Case Number, "RACN") will almost instantly result in the assignment of the case and progress for the filer. The pending folder gets attention only during the normal workday. A "pending" designation could mean waiting until Monday, or tomorrow morning, to proceed with your case (until the case is established in the system, the lawyer will not be able to file further pleadings, motions, etc.). 

Attorneys may therefore find it beneficial to seek to avoid these name issues. One suggestion is to inquire upon intake: "Have you ever filed a prior Florida workers' compensation case?" If the answer is yes, it may be helpful to know when, where, and what name was used (former, maiden, married, etc.). 

Attorneys can also utilize that new client's SSN in the OJCC case search function (on www.fljcc.org, under the "case search" tab). There, an attorney may try to verify whether the client's social security number is already in the OJCC database for some prior injury or accident litigation. 

This may assist counsel with issues regarding suffixes, middle initials, and middle names. It is not likely to immediately solve issues related to names that have changed but would allow an attorney to provide the OJCC guidance. For example, a client "John Smith" might be found to have filed an earlier claim under a previous name "Michael Smith," or "John Jones." Lawyers have been dealing with this kind of issue forever, and have long ago adapted to using initials like "f\k\a," meaning "formerly known as." 

So, an attorney finding that her/his new client had a prior workers' compensation claim could include that information easily in the PFB or RACN. Filing today on behalf of "John Smith," the lawyer merely notes the Claimant's name is "John Smith, f\k\a John Jones." This acknowledges that the pleading is likely to land in "pending." It acknowledges the potential that the current name may not match the SSN. And, it expedites the clerk's review and processing of the pleading. 

There is an obvious benefit in expediting the transition from "pending" to the active case. The point of filing the PFB or RACN. They each begin a process that leads to action by the OJCC. To expedite that action, it is in the claimant's best interest to provide information that facilitates the clerk's office sorting out name and social security number issues. A quick search or two before filing might very well prevent delays and issues.