Who is Dependent on Antiquated Technology?

In 2018, the Centers for Medicare and Medicaid Services (CMS) announced a vision for "the free flow of information between patient, provider and payer." Posts on this blog have advocated for greater transparency as part of improving the delivery of medical care in America. See Transparency for Efficacy (June 2019) and Medical Charges and Challenges June 2019). 

CMS perceives technology as the path to this information flow, as reported by Healthcare IT News. The particular tool in which it is interested will be web-based, likely as "consumer-friendly applications for Medicare beneficiaries to connect." Thus, the drive is toward new technology and through it transparency for those who use Medicare. The critics, at this stage, will point out that us boomers are perhaps less app-savvy than other generations, and we are a larger part of the current and certainly near future Medicare beneficiaries. 

In that, there may be a disconnect between the technology and (some of) us users. Intertwined in this drive for applications to share information is less-favorable news for older, some would say antiquated, technology that remains ubiquitous. After announcing the app plans, the CMS Administrator also suggested that these efforts could help us "make doctors' offices a fax-free zone by 2020." Apparently, that proposition drew applause from Administrator Verma's audience. 

What is the point of transparency through technology? A patient is seen by a primary care physician, who recommends a consultation with a specialist. Or, a patient is seen in the emergency room or after-hours facility, treated, and told to follow up with the primary care or a specialist. Each of the care providers is interested in the delivery, interpretation, and evaluation of care, including that of ancillary providers such as a radiologist or laboratory. 

In the age of paper, each participant on the care team obtained information about and perhaps from the patient, recorded it, and filed it away. When the patient presented elsewhere, physicians and facilities shared that information through the use of correspondence, facsimile, and the telephone. Each of these consumes time. Even the facsimile, though quicker than the mail, still requires contacting the possessor of the record in question, the retrieval of that physical record, and the transmission back. 

The age of electronic medical records has dawned. However, some may say that sunrise is proceeding more slowly than it should. Systems exist to both record and store medical information. Sharing that information within an office or facility has been greatly enhanced, from doctor to doctor, from treatment to billing, and more. But, there remain challenges to sharing that information, seamlessly, with others that are more detached from the particular facility that created the record. 

The IT News says that some healthcare providers contend "data can't be shared," when in fact they mean they choose not to share. The story quotes CMS Administrator Verma's contention that this refusal choice is because "of the fear the patient will be poached." There is thus a business reason for declining to share. Administrator Verma plans to counter that with another business factor, reducing physician and hospital payments for those who decline to afford patient record access electronically. 

Vox reports that in medical practice, records currently are virtually always transmitted by facsimile or mail. It reports that clinics have progressed to the use of electronic records, but some say their "electronic system can’t connect with other clinics’ records." 

This is a portability issue that has been mentioned periodically in workers' compensation. However, with an even broader scope. Attorneys lament that they can, using a prospective client's identification and password, review medical records within the Social Security system. Thus, when discussing the potential of representation, an attorney may be informed in real-time from the actual records rather than only the best recollection of the potential client. There is value in such real-time information. 

That opportunity does not exist widely in the workers' compensation world. Certainly, there are medical providers that provide patients with each office visit note. There are patients who assiduously catalog and maintain those records. But, the vast majority of us are not consistently that organized. We find ourselves in that familiar position of clearly remembering having some piece of paper but being utterly unable to recall what we have done with it. Thus, an interview with a prospective client may be a bit challenging at times. 

Understanding the drive for portability, and the view that the Internet is the platform with the most promise, why the disdain for the facsimile machine? A later Healthcare IT News describes the risks that facsimile presents. It asserts that "75 percent of all healthcare communications are still processed by fax." Those communications are vulnerable to hacking. It concludes that "the antiquated devices pose real privacy issues when it comes to transmitting patient data." While that is an issue for stand-alone machines, it could apparently be a larger issue for facsimile machines that are connected to computer networks. 

Vox notes: 

"Most industries abandoned the fax machine in the 1990s, and for good reason. Fax machines are terrible at sending data. Busy signals interfere. Printouts are blurry. And sometimes faxes go to the wrong place entirely." 

It says that the "Obama administration spent upward of $30 billion encouraging American hospitals and doctor offices to switch from paper to electronic records." That effort brought about significant change in terms of having electronic records, but "didn’t account for a critical need: sharing." 

Despite the criticism of facsimile, Vox says that "in the medical sector, the fax is as dominant as ever. It is the cockroach of American medicine." Popular Science reports that "its continued use among doctors, lawyers, and governments" means that the machines will remain "in one form or another, for years to come."

I have discussed the elimination of facsimile machines in the practice of workers' compensation repeatedly. Each time, the suggestion is met with objections. Some remain convinced that the law cannot be practiced without such machines. About a year ago, the facsimile machine in the Pensacola District office ceased to function and was removed. The world did not stop, there was no hue or cry. In fact, it seems that no one noticed that the "cockroach" was gone. Life went on, and cases were filed, mediated, and adjudicated, without the antiquated technology.

I will be curious to hear from readers. I wonder how many lawyers out there remain convinced that the fax machine is an indispensable part of the practice of law in the 21st century. I wonder how many lawyers have calculated what their facsimile line costs them each month, and compared that to the number of actual faxes she/he has sent or received. How many of those lawyers have investigated the Internet-based alternatives to that old, dusty, fax machine. Are lawyers clinging because medical providers are, or is this a co-dependency based in fear of progress or change?

Progress comes for us all. Some of us are merely better prepared to greet it.

The Life You Save May Be Your Own

Following up on the topic of distracted driving. This blog featured the topic in December 2018: Texting and other Distracted Driving (December 2018). That focused on the proposals in Senate Bill (SB) 76 and House Bill (HB) 45. Motor vehicle accidents are a major cause of workplace accidents; driving safely is an important workers' compensation subject. The statistic quoted in that post that "92 percent of drivers" have used mobile devices "while in a moving car" is troubling.

In the December post, there were other examples of distracted driving. At least according to one ranking, "cellphone use" was not the most pervasive distraction. The number one distraction listed was "lost in thought," contributing to 62% of the distracted events. Conversely, "cellphone use" was listed in only 12% to 14%. There are a variety of potential distractions on the road. The Legislature elected to address this one. 

As often happens, bills in the legislative process change through the course of the session. This year, the Senate altered the language in SB76 various times. One version of that bill included an "informing and educating" period beginning October 1, 2019, through December 31, 2019. During that period, law enforcement would have been able to stop motorists "to issue verbal or written warnings." After December 31, 2019, the actual enforcement was to begin (a warning period). 

House Bill 45 was withdrawn prior to introduction, on January 10, 2019. The House began working instead on HB107. That bill was ultimately passed by both chambers, substituted for SB76 on April 25, 2019, and signed by the Governor on May 17, 2019. Much of it it becomes law on July 1, 2019, and that has generated news coverage as well as commentary. 

Florida law already provided that:

"A person may not operate a motor vehicle while manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data on such a device for the purpose of nonvoice interpersonal communication." Section 316.305(3)(a), Florida Statutes.

Therefore, texting while driving was already illegal in Florida. The change effected by HB107 is largely the change rendering it a "primary offense," meaning that a driver might be stopped specifically for using a device. In prior laws addressing texting and driving, the offense was "secondary," meaning that a citation for texting could be issued if the driver was stopped for some other, "primary," offense such as speeding, running a red light, etc. Some Floridians will remember that mandatory seat belt laws followed a similar path of first being "secondary" and evolving into "primary."

HB107 also includes specific language precluding law enforcement from accessing someone's cell phone ("wireless communications device") without a warrant, from confiscating such a device, or from obtaining consent to a search of a device "through coercion or other improper method." The new law requires police agencies to record and report on the race and ethnicity of any violator cited under this law. All state law enforcement agencies will be required to both maintain that data and to report it to the Governor and Legislature annually. 

Florida motorists will continue to see cell phones in driver's hands. Section 316.305(3)(a), Florida Statutes provides:

"a motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph."

That exception is also reiterated in Section 316.306, which is a new section added by this law. This specific portion is not effective until January 1, 2020. This section is specific to "school crossing, school zone, or work zone area as defined in s. 316.003(101)." The stated intent of it is to "improve roadway safety" in these specific areas. This new provision does include a "warning period" allowing officers to issue warnings regarding this section and the use of devices in these "zones" beginning October 1, 2019. This three-month warning period may help educate drivers as to the change. 

There are exceptions that allow the use of a "wireless communication device" even in these specific zones. These include 

"operator(s) of an emergency vehicle . . . , a law enforcement or fire service professional, . . . emergency medical services professional, Reporting an emergency or criminal or suspicious activity . . .. . messages related to the operation or navigation of the motor vehicle; Safety-related information, including emergency, traffic, or weather alerts," Radio broadcasts, and use in hands-free or hands-free in voice-operated mode."

Those exceptions are essentially the same as the exceptions that already existed in Section 316.305(3)(a) regarding the use of such devices outside of these specific "zones" addressed in the new section. 

The distinction between the general prohibition and the new addition is in the penalties. A driver that violates Section 316.205 "commits a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318." A second violation "within 5 years" is "punishable as a moving violation as provided in chapter 318." Section 316.205(4). However, a violation of the "zones" prohibition, Section 316.306, is "a noncriminal traffic infraction, punishable as a moving violation." The new section says that the driver "shall have 3 points assessed against his or her driver license" for violation. The penalty for the "zone" violation is stricter. 

However, there are two specific methods for a driver to avoid the Section 316.306 penalties. First, for a "first offense," the driver instead "may elect to participate in a wireless communications device driving safety program." This would waive the assessment of point, and a court clerk would be allowed to waive "associated costs." The law also empowers a "clerk of the court" to "dismiss a case and assess court costs" for a first offense if the driver "shows the clerk proof of purchase of equipment that enables" the driver to use "his or her personal wireless communications device . . . in a hands-free manner." There is a definite emphasis here on education and transitioning to "hands-free."

With some of the law changes taking effect July 1, some in law enforcement have expressed doubts as to the efficacy of the new law. Fox13 Tampa Bay recently reported that "police officers say enforcement is going to be a challenge." The focus of their skepticism is their perception of a "loophole" in the law. A memorandum was circulated to St. Petersburg officers reminding them that drivers are allowed to use their devices for specified purposes even while driving. There is some conjecture that any driver will claim one of these exceptions if stopped for the use of a device while driving. 

The Fox13 article quotes a spokesperson of the St. Petersburg police. She says that for "an officer to know for sure" what a driver is using a device for, "he (or she) must inspect your phone." The spokesperson notes, as discussed above, that the driver "can decline to give it to him (or her), under the law." It is the perception of these listed "approved uses" that is driving the skepticism regarding enforcement. 

Thus, the significant amendments to Section 316.305 regard the change from "secondary" to "primary." Whether that will enhance enforcement or not remains to be seen. The creation of Section 316.306, and the enhanced penalties, may perhaps make drivers think twice when in school zones, crossings, and work zones. Notably, according to Brightfleet, "distracted driving has overcome impaired driving as a major cause of road injuries and fatalities." The fact that it is an issue is thus clear. With the passage of HB107, and again as implementation nears, there has been significant coverage of distracted driving both in news and commentary. 

Perhaps in that raising of awareness alone, there is value in this new law. Possibly all of the coverage has discouraged distracted driving. With the implementation of Section 316.306 delayed until next January, perhaps there will similarly be significant news coverage of distracted driving this fall and winter. To the extent the subject can be reiterated, revisited, and stressed, there is a likely benefit to all motorists. We can all use that periodic reminder to recognize and avoid distractions. 

Some will take to heart the discussion above and particularly focus on the conclusion that there are many potential distractions while driving. Can we all learn from the statistics concerning the seemingly innocuous "lost in thought?" Will employers take to heart the legislative focus? Might parents as well? Any of us might put aside distractions while we drive, and encourage others to do likewise. And, if we know someone is driving at a particular time, we might defer making a non-emergency call or sending a text to that person. 

As Flannery O'Conner wrote: "The life you save may be your own." It is definitely worth skipping that call, text, or news flash until you can pull over and take a break. 

Final or Not?

There is a recurring challenge in Florida workers' compensation, the finality of a "final" order. The topic seemingly frustrates the most seasoned attorneys periodically. The challenge relates to the nature of workers' compensation. There are statutory provisions that will close a workers' compensation case forever. However, workers' compensation is different from many other types of civil cases in Florida because they may proceed over long periods of time in a serial nature. 

The Florida First District Court has reminded periodically that "workers' compensation proceedings are, of necessity, often serial in nature. See, e.g., Nelson & Co. v. Holtzclaw, 566 So.2d 307, 309 (Fla. 1st DCA 1990)." There may be issues tried in a particular hearing while other issues or benefits are not ready for adjudication. This may present questions regarding such issues as "'res judicata,' prevailing party costs," and more. See Hernandez v. Manatee County Government, 50 So.3d 57 (Fla. 1st DCA 2010). 

The lack of finality might be caused by doubt regarding what issues are or are not ripe for a particular trial. The Court has cautioned that because "workers' compensation matters can result in numerous hearings relating to a single accident and injury, the parties cannot simply ignore outstanding issues when they attend final hearings." The law may result in an issue being "waived" if it is ripe for hearing and yet not raised at that trial. 

The Rules of Appellate Procedure acknowledge there are similarities and differences. Rule 9.180 (a) "Appellate review of proceedings in workers’ compensation cases shall be as in civil cases except as specifically modified in this rule." Thus, workers' compensation cases are similar to "civil cases," but warrant specific rules. 

That Rule, sub-paragraph (b) defines the jurisdiction (authority) of the Court. This is limited to a (1) "final order," or "any nonfinal order of a lower tribunal that adjudicates": (A) "jurisdiction" or (B) "venue." Thus, an order concluding the lower tribunal (Office of Judges of Compensation Claims) does or does not have jurisdiction (authority), or an order determining the place where the trial will occur (venue) are subject to appeal. 

The appropriate venue for the trial of a case is of particular interest. The Court has concluded that if a trial is conducted in the wrong venue, the judge there "lacked jurisdiction to hear the claim." Thus, the decision in that case was reversed and a new trial was ordered. See Talisman Sugar Corp. v. Jaime, 498 So.2d 516 (Fla. 1st DCA 1986). 

Additionally, there is a third non-final order that may be reviewed by the Court, despite being non-final. These are orders that determine "compensability." However, this is a more narrow exception to the general requirement that orders must be "final." For a non-final order that adjudicates "compensability" to be reviewable, the order must: 

"expressly finds an injury occurred within the scope and course of employment and that claimant is entitled to receive causally related benefits in some amount, and provided further that the lower tribunal certifies in the order that determination of the exact nature and amount of benefits due to claimant will require substantial expense and time." Rule 9.180(1)(C). 

That must be an "express" conclusion of the Judge of Compensation Claims. In Cadco Builders, Inc. v. Roberts, 712 So. 2d 457 (Fla. 1st DCA 1998) the Court said that the judge noted he "gave consideration to the substantial amount and variety of benefits in dispute." Thus, the judge made a reasonably clear acknowledgment that the issues were somewhat complex. The Court concluded though that "he did not, however, expressly certify that determination of those benefits will require substantial expense and time." 

The Court explained that review of non-final ("interlocutory") orders are seen as a "waste (of) court resources," and a cause of delay. Therefore, they are not viewed favorably (by that, the Court implies they will be examined critically). Because of those concerns, the Court there held that the order must contain "a certification which clearly conforms to the prerequisites of the rule." The absence of that clear and precise certification rendered the order non-final; as it was not final and not within the Rule's exceptions for specific non-final orders, the order was not appealable. The appeal was therefore dismissed. 

This arises sometimes when the parties seek to have the Judge of Compensation Claims "bifurcate" the issues in a case. The suggestion is sometimes that if some threshold claim or defense is adjudicated, then the remaining issues may become clearer to the parties. For example, if the question of whether the worker was or was not an "employee" of the particular employer; or, if the employee was in the course and scope of employment when the injury occurred. See Personal Comfort - Testing Compensability (April 2019). 

That the parties may agree to such a bifurcation, or that a judge may order it, may present tacit or implied recognition that the other issues are complex and "will require substantial expense and time." But, the judge's decision to bifurcate is not the same as the judge actually saying in the order: "determination of those benefits will require substantial expense and time." 

The time to know whether an issue is ripe for appellate review is before the appeal is filed, before the record is prepared and paid for, and before the briefs are written about the alleged error in the lower tribunal. It is unfortunate for the time and effort to be invested only to result in "we . . . dismiss this appeal for lack of jurisdiction," see Cadco Builders because the required certification is not included. This certification is an issue for the judge in preparing the trial order. However, it is likewise one for the parties to raise when proceeding to try only the "compensability" of an injury or accident.

If the certification is not included, that does not bar or prevent seeking appellate review. Certainly, review remains a right. The absence of that certification merely delays review until after the parties have returned to another trial for determination of "the exact nature and amount of benefits due." And, because that might "require substantial expense and time," such a second trial might be specifically what the parties sought to avoid when trying the case in the first instance.

Though this limitation on the appeal of non-final orders may confuse and confound periodically, it is reasonably straightforward in many instances. It is one of the subjects that merits attention and consideration when a trial proceeds on less than the full spectrum of issues and benefits that may be ripe, due, and owing at that time.

. 

Sanctions and Speech

There is a litigation privilege in Florida and indeed in many jurisdictions. This is discussed in depth in The Litigation Privilege (October 2017) and Defamation in the News (September 2018). This is a protection from defamation allegations regarding "what occurs in legal proceedings." This privilege "prevents most comments from being actionable defamation." However, I cautioned in the Privilege post that just because "a statement is not defamation does not render it immune from consideration or review." There are examples of imposition of sanctions, Judicial Qualification Commission proceedings, and lawyer rules of professionalism to consider. 

In December 2018, the Florida Third District Court decided Bank of America, N.A. v. Atkin, ___ So. 3d ___; 2018 WL 6595138 (Fla 3rd DCA 2018). It is an extraordinary writ case, with the bank seeking a writ of prohibition. The three most frequent types of extraordinary writs are discussed in If it is Moot, What Does it Matter (August 2018). The situation lends itself to further analysis as it is one of those examples of significant implications despite there being no cognizable defamation. It is also pertinent because the statements in question were not in a trial proceeding. 

An attorney in the Atkin appellate proceeding filed a response to the Bank's petition for writ, which contained statements that the Court concluded were "recklessly impugning and disparaging (to) the judges of this court and two judges of the circuit court." The opinion quotes these in detail, but includes that the Court "ignored . . . precedent," "falsified facts"; and the attorney further questioned the Court's impartiality, and asserted that a circuit judge disregarded the law and constitutional rights in making a ruling in an unrelated, previous case that this appellate Court had thereafter affirmed. 

Later, the attorney filed a petition for review with the Supreme Court of the United States (SCOTUS) in Atkin. In documenting the arguments to be raised there, the attorney included statements "impugning and disparaging the judges of this court (Third District) and the Florida Supreme Court." These included allegations of the Court misrepresenting facts, ignoring precedent, and accusing the Court of "dishonesty," "factually dishonest opinions," partiality, "cover-up," and of "ignoring fraudulent conduct." These are serious allegations to level. The fact that such allegations were made against multiple courts and judges itself is worthy of note. 

The Third District in December issued an order to show cause, and compelled the attorney to address the statements made. The Court noted that: 

"Every lawyer admitted to the Florida Bar has sworn that he or she 'will maintain the respect due to courts of justice and judicial officers' and to 'abstain from all offensive personality.'” 

The Court explained that "insults or disparaging comments by lawyers to courts in court filings cannot be justified as zealous advocacy." Such language risks "alienating the very judges the lawyer was hired to persuade." Therefore insults are "not attempts at persuasion," but instead are "the abandonment of any attempt to persuade."

A lawyer "venting" frustration in pleadings or in a hearing "cannot be justified as a means to identify problems in the legal system." The result is not an improvement in the system, "because insults usually garner resistance to an idea rather than a sympathetic consideration." In other words, when you insult someone it builds walls, not bridges. That particular point applies to parties in litigation making references to one another. Disparaging an injured worker or an employer with insults is unlikely to engender good feelings or encourage productive communication. 

Notably, the Atkin Court reminds us, that “attorneys play an important role in exposing valid problems within the judicial system." It is a responsibility that they do so. However, statements "made with reckless disregard as to their truth or falsity, erode public confidence in the judicial system without assisting to publicize problems that legitimately deserve attention.” Florida Bar v. Ray, 797 So. 2d at 556, 560 (Fla. 2001). Furthermore, as I stress each year when it is time for the survey, "the point is not to belittle, insult, or slur," but to provide positive suggestions on how something might be done better and more effectively. 

The Court also noted that this attorney had "previously three times (had) denied" various motions to disqualify the entire Third District Court. In the Atkin case, the attorney again filed such a motion. Based upon the Court having "denied virtually identical motions," filed by this attorney, it concluded that the filing of that significantly similar motion in this case violated court rules and justified the imposition of sanctions. The Court concluded that:

"In light of these prior denials, the fourth motion to disqualify appears to have been designed to serve no other purpose than to allow (the attorney) to express 'the bottomless depth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully sought appellate relief.'” 

Upon those conclusions, the Court ordered the attorney to show cause why sanctions should not be imposed. The response was filed in early January 2019. The response provided an explanation and admitted that the statements quoted by the Court were "unprofessional and unwarranted.” The response also explained steps the attorney had undertaken “to prevent any reoccurrence.” The Court was duly impressed, it appears, with the admission of fault, the acceptance of responsibility, and the efforts to prevent recurrence. The Court noted: "Frankly, if this were an isolated event, we would be inclined to end this matter." 

But, this was not the first such encounter this attorney had with this Court. The Court noted prior similar conduct, stating "We have previously sanctioned (the attorney) for similar unprofessional statements." On April 10, 2019, the Court entered an order of referral, sending the matter to The Florida Bar for investigation. The Court concluded that it was "not in a position to ascertain the veracity of this latest explanation" from the attorney. Furthermore, it was concerned with a perception that the attorney's "latest explanation is inconsistent with the previous one." 

The lessons and reminders in Atkin are numerous. First, things said in litigation may not be "defamation," but they can still cause trouble for the speaker or writer. Second, those statements might be made entirely in an appellate action, in an attempt to change a trial decision or outcome; one might exercise caution in describing feelings about a trial. Third, it is important to be forthright when confronted; accepting responsibility, being proactive in preventing future recurrence, and being contrite are all appropriate and helpful. Finally, the Atkin matter proceeded to The Florida Bar primarily because on two occasions this attorney provided explanations, and the Court at least perceived those were not consistent. Consistency may be a critical issue in any proceeding; one which deserves attention and consideration. 

But really, only one point is necessary to remember: "You catch more flies with honey than with vinegar." If you are striving to convince someone of something (a party in mediation, a judge or witness at trial, an appellate court), attacking, belittling, or insulting is unlikely to accomplish your goal. The height of professionalism is accomplishing your goal, achieving your end, without resorting to such. The best cross-examining lawyers I ever witnessed managed to achieve what they needed (discrediting or even co-opting) with a witness without that person ever realizing what had happened. The best litigators are effective without being mean, name-calling, or bullying.

This is perhaps a good example also of the value of a mentor or peer to whom you might express such irrepressible feelings. Internalizing frustration and anger might be damaging, despite the deposition, hearing, trial, or pleading being an inappropriate place to vent. Every lawyer, judge, adjuster, or otherwise should have someone to whom she or he is comfortable getting feelings and emotions expressed and relieved. 

A Constitutional Challenge Denied

On June 18, 2019, the Florida First District Court rendered Abreu v. Riverland Elementary, ___ So. 3d ____; No. 1D17-2755 (Fla. 1st DCA 2019). The injured worker there took issue with the application of the Expert Medical Advisor (EMA) statute, section 440.13(9)(c), Florida Statutes. The subject of EMA has appeared in this blog before. The Striking of an EMA (May 2019), Not with a Bang, but with a Whimper March 2016).

The Abreu opinion revisits some authority that is familiar, including Delisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018)(Dissing Daubert (January 2019), Daubert's New Day (May 2019)) and Amendments to Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004)(Separation of Powers (February 2017), Conferring Jurisdiction (July 2017)).

This case is significant because the injured worker:

"challenges the statutory (EMA) presumption as violative of separation of powers, equal protection, and due process guarantees of the Florida and federal constitutions."

There is a perception that constitutional challenges to workers' compensation are on the increase. Some see a tendency toward viewing those analyses from an atomistic rather than holistic perspective. The worker in Abrue sought to have the judge's decision set aside on the argument that the statute was affecting an unconstitutional encroachment upon her rights particularly. See A Procedural Progeny Potential of Castellanos (October 2015), Constitutional Law in Florida 2016 (December 2016), Westphal is Over, Questions Remain (June 2016). The Court in Abreu concluded that the EMA statute was not unconstitutional either "as applied" or "facially," and affirmed the trial judge's decision and reliance on the EMA report. 

The injured worker, Ms. Abreu, sought a judicial determination to provide her with shoulder surgery. The initial authorized treating physician performed surgery once. Then the worker sought an alternative orthopedic surgeon, who did not recommend further surgery. The worker then sought care with "an unauthorized orthopedic physician" who did recommend surgery. The employer then authorized yet another orthopedic surgeon who also concluded that further surgery was not recommended. Such a conflict in medical opinions is not uncommon in workers' compensation. 

The matter thus proceeded to litigation, and the injured worker obtained an independent medical examination (IME) regarding the surgery recommendation. The testimony of the unauthorized surgeon with whom she had sought care was not admissible as evidence under the law. This is a critical point, the Florida workers' compensation law affects the admissibility of evidence in various ways, including limiting opinion testimony to authorized treating physicians, expert medical advisors and independent medical examiners. Section 440.13(5)(e):

"(e) No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims." See also Office Depot v. Sweikata, 737 So. 2d 1189 (Fla. 1st DCA 1999). 

The IME agreed surgery was both necessary and related to the work injury. Thus, there was a conflict between the opinions of the authorized physicians and the workers' IME. The judge therefore appointed an Expert Medical Examiner (EMA), who concluded that further surgery was not medically necessary or recommended. The statute affords the opinions of an EMA a presumption of correctness. It may be disregarded only if contradicted by clear and convincing evidence. It is also noteworthy in this case that the EMA physician did not testify in the trial, and only his written report was therefore in evidence. The judge accepted the EMA opinion and denied the worker's claim for authorization of surgery. That led to the appeal. 

The Court noted that the explicit constitutional challenge was "as applied" (unconstitutional as applied to this particular worker's dispute), but that there was a suggestion of a "facial" challenge in the documents filed by the lawyers in the appeal. The Court therefore analyzed both. When a decision concludes that a statute is unconstitutional, which did not occur in Abreu, it may be critical for the Court to be clear and specific as to whether the pronounced infirmity is "as applied" (the statute cannot be applied in this case) or "facial" (the statute cannot be applied in any case). When the conclusion is that a statute is not unconstitutional either facially or as applied, an explanation of subtle distinctions between the two analyses is perhaps less critical. 

It is noteworthy that the injured worker, after the judge ruled against the surgery claim, first sought to have the trial judge re-open the case for further evidence. Having elected to not obtain the EMA physician's testimony (at trial or by deposition), the worker then sought to re-open the evidence after trial. The Court noted that the decision not to depose the EMA was a "tactical decision" and that the judge did not err by declining to reopen the case following the issuance of the trial order. That is a critical point to guide attorneys. Tactical decisions on evidence may or may not be the best decisions, may or may not work out as planned, and often will be permanent choices.

The Court concluded that the EMA statute is constitutional. It noted the statute includes a "presumption of correctness" for the opinion of EMAs, but that presumption is rebuttable. The Court noted that the evidence required to rebut that opinion is significant but noted there are other such statutory presumptions with similarly significant (clear and convincing) proof requirements. 

The Court dismissed an argument that the statutory procedure that defines EMAs is an inappropriate legislative "procedural rule." The worker had argued that only the state Courts can define procedural rules, and asserted that the legislature's adoption of a procedural process violates the legal maxim of "separation of powers." In support, the worker relied upon the allegedly inviolate "supreme court’s authority to impose rules governing evidence." But, in Florida, there is both an evidence code and there are evidence rules. See To D or not to D, that it appears, is the Question (January 2016).  That is a conundrum that frustrates both practitioners and academics. The Court was not persuaded, noting that the Supreme Court has concluded that it cannot proscribe procedure in the Executive Branch. Amendments to the Fla. Rules of Workers’ Comp. Procedure, 891 So. 2d 474 (Fla. 2004).

The worker also argued that the legislature defining process was an unconstitutional incursion (separation of powers) into the "executive branch’s ability to fairly adjudicate workers’ compensation claims." The Claimant argues the EMA presumption is impermissible as the "legislative branch" is "dictating (procedure) to the executive branch and without the approval of the supreme court." As to the legislative delineations interfering with the authority of the Executive Branch, the injured worker essentially argued that because her IME in this case did not overcome the presumption of correctness of the EMA in this case that therefore:

"a single IME cannot produce the evidence necessary to reach the standard of contrary, clear and convincing evidence sufficient enough to successfully challenge an EMA opinion." 

Essentially, the argument seems to be that if the evidence was not enough in this case, then "enough" simply cannot be achieved. The Court concluded that proceedings before the OJCC are "subject to statutory regulation." Indeed, the entire existence of workers' compensation, the OJCC, and the authority of its Judges is entirely the result of legislative creation, definition, and delineation. The Abreu Court noted multiple "examples of the Legislature dictating procedure in workers’ compensation actions." The Court also cited multiple prior decisions upholding the Legislature's authority to dictate evidentiary determinations and other procedures in this administrative process. 

As an aside, the Court noted that the injured worker argued "that workers’ compensation proceedings must follow the rules of evidence." (emphasis added). That is an interesting point. The Courts have, however, concluded that the "evidence code applies to workers' compensation proceedings." In Dissing Daubert (January 2019), there are several citations to cases specifically using "code" (what the legislature passed, not what the Supreme Court has adopted). In U.S. Sugar Corp. v. Henson, 787 So. 2d 3 (Fla. 1st DCA 2000), the Court makes specific reference to both the "Evidence Code, chapter 90, Florida Statutes," and to the applicability of "common law rules of evidence" that were applied in workers' compensation "prior to the adoption of the Evidence Code." Though the Court mentions the argument about evidence rules in Abreu, it is not clear from the decision what authority, if any, the injured worker has cited in support of that inference or allegation that the Court's "rules" apply to these proceedings.  

In addressing concerns of due process, the Court reminded "that an injured employee’s right to receive workers’ compensation benefits qualifies as such a property interest." Thus there must be "procedural safeguards including notice and an opportunity to be heard," which must be "meaningful, full and fair, and not merely colorable or illusive." The Court noted that Ms. Abreu was afforded the opportunity to present the testimony of her IME. She therefore “was not completely denied the right to present evidence.” Therefore, "no violation of due process occurred." In this context, the tactical decision to forgo presenting some available evidence, the cross-examination testimony of the EMA physician, may be relevant. 

The Court also discussed an interesting argument of the injured worker that the EMA statute violates "her equal protection rights guaranteed by Article I of the Florida Constitution and the Fourteenth Amendment . . .." But, the Court concluded that "the EMA statute applies equally to claimants and E/Cs alike." Furthermore, the "Claimant has failed to pinpoint a classification created by the presumption which runs afoul of equal protection." An argument of equal protection is dependent upon the demonstration of a law either through word or impact effecting different results upon different groups or individuals based upon some inappropriate classification of those groups or individuals.

The decision is an interesting read. It helps with the understanding of constitutional analysis and the application of constitutional protections and constraints to statutory authority. In the end, the various challenges were not persuasive, and the Expert Medical Advisor remains a mandatory process in Florida workers' Compensation. Similar decision-making processes, such as California's Independent Medical Review (IMR) have similarly been upheld by the courts. See IMR and Due Process (December 2018).

Transparency for Efficacy

There are challenges with medical costs in America. For some reason, medical inflation has run well in excess of inflation generally. See Medical Charges and Challenges (June 2019) and The Conundrum of Medical Inflation. The simple fact is that medical care costs in this country are growing faster than the economy generally. While the cost of everything is rising, the cost of medical care is rising significantly more rapidly. And, that will affect our ability to spend on a variety of other matters. Why are medical costs so high and rising so consistently?

This hyperinflation is not solely isolated to medicine. There is also evidence of rapid growth in post-secondary education in America. Recently, in Risks for Attorneys (June 2019), a report from the Virginia State Bar Special Committee on Lawyer Well-Being was surveyed. It noted that "in 1985, the average annual tuition in private law schools and public law schools was $7,526 and $2,006." Had those increased commensurate with inflation since then, in 2018 the costs "should have been $17,520 and $4,670." That is, they should have each increased 232% over that 33 years. 

Instead of $17,520, private school tuition in 2018 was $47,754. That is over 634%. That may seem a bargain compared to the $27,160 for public schools, which is over 1,353%. Money magazine blames the increases in costs on government. It asserts that "the government no longer carries its fair share of college costs." An interesting position; it seems easy to simply blame government for our woes. The author of that article urges better record keeping so that students can be better counseled regarding debt. In other words, more information and education for making better consumer decisions. 

After writing Medical Charges and Challenges (June 2019) and Risks for Attorneys (June 2019), two news articles came to my attention. In May, Forbes reported that the federal government may soon "make it easier for patients and employers to comparison shop for healthcare." This is purported to come through an executive order that "would mandate disclosure of prices throughout the healthcare industry." Forbes describes the world of healthcare pricing as less-than-transparent, calling it "murky." 

Forbes lauds two legislative actions signed into law in 2018 which it says started us down a path to greater transparency, and led to this executive order. Forbes claimed that before these statutes, pharmacies were precluded from telling a patient that their prescription medicine would be cheaper if they paid cash than it would be under their health insurance. Presumably, this would be medications whose price is less than a patient's co-pay. Someone was keeping information away from the consumer, the person paying in the economic exchange? 

Forbes also notes that since January 2019, hospitals have been required "to post lists of prices of services and technologies online." Despite the requirement, Forbes concedes that there has as yet been little enforcement of this requirement. Furthermore, the information that is posted is "identified in acronyms, abbreviations, billing codes, and medical terminology that most consumers can't be expected to understand." Thus, there appears some compliance with the letter of the law and an avoidance of the spirit?

Forbes cites Kaiser Health News on the concept of posting pricing information, detailed in a March 8, 2019 article. It asserts that "most hospitals appear to be complying with the rule." But, the information is not prominent on websites. And, the information is difficult for the average consumer to interpret or decipher. The question is whether the transparency is effective or merely present. Posting information is not that helpful if consumers cannot interpret or comprehend it.

The second article that hit my news feed almost simultaneously comes from Foxbusinessc.com, regarding "unexpected medical bills." The theme is that despite having good health insurance, Americans are being surprised with "surprise bills, and often threatened by bankruptcy," despite that coverage and their efforts to comply with their health insurance carrier's rules. The author contends that insurance companies and medical providers are "wrangling," and that their efforts or struggles with each other "often leaves patients holding the bill." See Confusions and Disconnects in Medicine (July 2018). 

Essentially, patients are presenting for care with a provider or at a facility that is "in their network," only to have care or interpretation (testing) performed by someone who is not "in their network." When those services are billed, the insurance company is not covering the out-of-network cost, and the patient is being billed for the "often outrageously high" cost. 

Fox Business contends that this is occurring in about "20% of inpatient emergency department cases." After some portion is paid by the health insurer, the physician or facility then bills the patient for the remainder. The author notes that receipt of such a bill may be stressful, but that there is also the additional "threat of being turned over to a collection agency." 

Nationally, there is a discussion of somehow solving the resulting consumer dilemma. As yet, however, there is no such national or universal solution. But, Fox Business says that "some 20 states have established various forms of consumer protections." The article concludes with the sentiment that "comprehensive solutions" are needed "that address the excessive costs of the broken U.S. healthcare system." 

What do all of these examples have in common? Transparency. And, transparency that is full and clear. Providing information that is in abbreviations or professional codes will not benefit the average consumer. Doctors make referrals to other providers or testing facilities, and consumers need to be able to easily determine whether those recommendations are appropriate, or whether some alternative provider may be equally efficacious and more affordable as an "in-network" alternative. That may be practical today with a phone call to either the health insurer or the referred-to provider.

Such a call might solve the "out-of-network" provider issue, and the surprise medical bill. But, such a call is unlikely to be an option when those services are provided in an urgent care or even emergency situation. When the patient is battered and bloody in the emergency room following a vehicle collision, she or he is not in the state of mind to check the credentials and the financial details of the various providers that render services. Thus, it appears likely that the most vulnerable of patients are least able to be an informed consumer.

When the non-emergent consumer is afforded transparency, she or he may elect to make informed economic decisions about care. Knowing that one facility charges twice as much as another for a particular service might influence a consumer's decision. But, it is likely that those with health care coverage will be concerned only with their own economics. That is, "What is my copay." Generally, the economics of facility selection may only be of interest to a patient who will have a personal financial interest. Otherwise, transparency regarding cost may be of more import to the health insurer in selecting "partners" than to patients making choices.

What information would be of interest to all patients? Perhaps a patient would be interested in transparency regarding how many surgical patients at a facility required readmission within some period following discharge? Perhaps consumers would be interested in how many patients at a particular facility required wound care that was beyond some level deemed to be "normal" or expected? Perhaps the volume of a facility's patients that suffered secondary issues such as infection would be of interest?

In the end, requiring the publication of such data might be helpful to consumers. But, if required would such information be understandable to the consumer? Would it be prominent and accessible, or hidden in the depths of a website? Could it be manipulated like the emergency room "wait times" being advertised on billboards around the country (the minimal times listed allegedly refer to how long you will wait for someone there to speak to you, not how long you will wait to actually receive care).

This all illustrates a struggle with the availability of information and our willingness as consumers to use it. It illustrates that despite our desire to use it, we may lack the knowledge. And, it illustrates that America seems to remain focused on the cost of medical care rather than the quality and effectiveness. Providing clear and transparent information regarding cost may be of little assistance without the information about the effect.

In the end, there is much in medicine about which to complain. There are market forces at work that consumers do not understand, secrecy, and reluctance to change. Will American consumers demand more and better? 

Challenges with Evidence

Not a workers' compensation case, but interesting contract litigation in the Florida panhandle resulted in an interesting appellate decision in Tarantola v. Henghold, 254 So. 2d 1110 (Fla.1st DCA 2018). This was one of those cases that was considered by the appellate court three times.

The first instance, Tarantola v. Henghold, 214 So. 3d 726, 726-27 (Fla. 1st DCA 2017), was an interesting issue regarding an action for a temporary preliminary injunction, to enforce a non-compete agreement entered between Dr. Henghold and Dr. Tarantola. On that issue, the Court concluded that the judge's injunctive relief was overbroad. The contract between the two doctors prohibited Dr. Tarantola from "performing Mohs surgery . . . within a forty-mile radius of" her former employer's office. The trial judge's injunction prohibited her from "practicing dermatological medicine" within that area.

Thereafter, Dr. Tarantola "put up a billboard and activated a website" for a clinic. Her former employer sought "civil contempt sanctions," which the trial court granted, imposing conditions. By complying with the trial judge's order, Dr. Tarantola avoided significant fines for contempt and sought review, Tarantola v. Henghold, 233 So. 3d 508, 509 (Fla. 1st DCA 2017). The appellate court quashed that order on the second review of the case, an example of an extraordinary writ for the appellate court to quash the trial judge's decision. See Writ Protection.

But, it is the third trip to the appellate court that is of potential interest to the world of workers' compensation This third review of the case was related to an evidentiary issue, one that might be litigated in workers' compensation. The fact that the case was reviewed three times, however, is illustrative that any litigation can become complex and expensive.

The path to the third appellate review came from Dr. Tarantola's eventual resulting motion to "terminate a temporary injunction," which the trial court denied. It concluded that the two-year contract period was extended by the trial court's perceptions of her violation of the original agreement, by her "advertising or marketing activity." The appellate court reversed the trial judge again on this third review. It noted at the outset that "we are now over three years from the date of Dr. Tarantola’s resignation, with a temporary injunction still in place to enforce a two-year agreement not to compete."

There was some agreement between the parties as to some tolling of the two-year period. However, they disagreed regarding tolling during a period in which it was alleged that "Dr. Tarantola was in further violation of the covenant not to compete . . . as a result of improper advertising through a website." The issue, essentially, was whether the website in question "constitutes ‘advertising or marketing activity.’" And, therefore the content of the website became a relevant issue. The trial court concluded that it was advertising, leading Dr. Tarantola to appeal. 

To reach that conclusion, the trial court relied upon "screenshots of the website as proof the website was in existence in May 2015." This was "date stamp(ed)" October 14, 2015, but Dr. Hengold alleged "the website was actually launched in May 2015." However, Dr. Hengold had no "evidence to support this." To support his argument regarding the publication date, Dr. Hengold directed the trial court "to May 2015 Facebook posts, which direct viewers to Dr. Tarantola’s website." Thus, perhaps indirect proof of the existence of that website. 

The Court noted that while the Facebook posts do indicate "a" website, they did not prove the existence of "the" website (that is the specific iteration with the objected to "advertising or marketing activity." That was certainly a complication in the evidence. 

More importantly, however, the Court noted that those screenshots "were not introduced into evidence, but were attached to pleadings." Attaching documents to a pleading (a petition, a motion, etc.) does not make those documents evidence, upon which a judge or jury can rely. Thus, the Court concluded that the findings based on those Facebook screenshots were "based on mere speculation." As there was no evidence as to the existence of Facebook screenshots, "the trial court abused its discretion in its determination that the website existed in May 2015."

Substantively, the Court noted that "even if evidence of record supported that the website existed in May 2015," the content of that website "did not constitute improper advertising or marketing in violation of the non-compete agreement." The Court noted that the website information may have said she is “Mohs surgery and fellowship trained.” However, the information did "not advertise availability and performance of Mohs-related services in the restricted area." The Court explained that the provision of biographical information was not the same as "advertising or marketing activity" as regards performing that type of care. 

The Court ended its analysis concluding that the non-compete period had concluded. And, it clarified that "this opinion should not be read as precluding Dr. Tarantola from the argument that she was wrongfully enjoined from practicing general dermatology in the restricted geographical area." Therefore, it is possible that litigation continued in the matter after this third appellate review. 

The point for workers' compensation is clear. The content of various Internet sites may be seen as relevant to a party in a workers' compensation case. It might be a website of an employer, potential employer, physician, or others. Likewise what a party or service provider posts on social media may be seen as relevant to some dispute or controversy. A party seeking to prove the content of such Internet evidence may struggle with proving what some Internet source represented (the "what") and proving that it did so at some relevant time (the "when").

The "what" may require whomever wants that evidence viewed to prove that their images (screenshots) are real. That is referred to as "authentication." There may be issues regarding whether the images are original or copies, which is called "the best evidence." And, finally, there may be issues about what the screenshots portray, and whether they are used to prove the truth of what they say (that the doctor is or is not certified for the Mohs services perhaps). That is a challenge governed by "hearsay." In all, it can be a complex and multi-faceted process to have a judge or jury consider documents or pictures. 

Comp Laude Nominations

What is good about workers' compensation? There are some who might decry that question, and respond with a firm and unequivocal "nothing." But they are wrong. There is so much going on in this community that is good, positive, and productive. David DePaolo of WorkCompCentral.com recognized that with the launching of the Comp Laude® awards. I have written on the subject various times. For general information, see A Comp Laude Overview (June 2018), published about a year ago. 

I believe that there are many in this workers' compensation community that merit mention. They are each fulfilling a role in what remains a "grand bargain." Despite the many critics who emphasize its failings, workers' compensation has very positive effects on people, businesses, and more. It has been an integral part of the American workplace for over 100 years, and it is delivering every day. Some will point out that it does not always deliver, but it does deliver. Furthermore, it is constantly evolving, striving, and becoming more than it was. 

In 2018, I submitted 14 nominations for the Comp Laude® (nominated in 2017, but concluded the process in 2018). I described the process in that Overview post and explained that the effort can be a challenge. Nominating itself is reasonably simple, you will need the person's name, title, company, email, and phone.  Then you select a category ("service provider," "defense attorney," "applicant attorney," "industry leader," "philanthropy," "employer," injured worker," physician," or "other"). You will also have to provide your own information to facilitate contacting you back.

This year, I submitted 32 nominations. This included industry leaders, philanthropy, applicant attorneys, defense attorneys, physicians, judges, and vendors. Those were submitted between November 20, 2018, and March 31, 2019. And, I am proud of every nomination. Each of them demonstrates a commitment to this workers' compensation community and each is an example that is worthy of study and emulation. My nominees came from eleven states: Arizona, Florida, Georgia, Kansas, Kentucky, Massachusetts, Mississippi, Pennsylvania, South Carolina, Tennessee, and Utah. 

On May 21, 2019, my email got a little exciting. I received six emails, one right after the other at 12:16 p.m., and the subject lines were identical: "Congratulations on your 2019 Comp Laude® Nomination." As I read the first of these, which led with: "Your nominee, __________, has passed to the second round in the 2019 Comp Laude® Awards process," I began to think about what I would need to do to submit the "second round" documentation requested therein. 

The "second round" requires a short biography, a "head and shoulders photo" at least one reference to "confirm the details/accomplishments of your nominee," and a "detailed explanation that demonstrates why your nominee is deserving of a Comp Laude® Award. Minimum one typewritten page, around 500 words." So, each "second round" effort would require some work. 

I no sooner closed that first message than 8 more emails hit my inbox at 12:17 p.m. I started a handwritten "to-do" list of names, and began to archive those 14 emails. Before I could finish, another arrived at 12:20, then another at 12:21. As I worked to build my list, the inbox continued to receive. at 12:35 the messages stopped. Twenty-three. Of the 32 nominations submitted, 23 (72% app) had made it to the second round!

I had learned my lesson in 2018, and started the 2019 process with an email to each of the nominees, requesting that they each send me the bio and photo I needed. That same day, I began emailing potential references, certain that would be a time-consuming challenge. Wrong. The reference replies came almost as fast as I could send requests. They said "glad to," "my pleasure," "nobody more deserving," "absolutely," "I'm a big fan," "for sure," "my privilege," and more. These outstanding workers' compensation leaders were not too busy to support a nomination, they were glad to do it and proud to be asked. 

On June 7, 2019, I finished the process of submitting the second round of information (two days before the midnight Sunday deadline). Admittedly, it involved some work and effort. But, I was proud of each and every nominee. They are each part of what makes our community of workers' compensation great. Some had similarities, but for the most part, they each contributed and inspired differently. They make us better because they set an example for us. They make us better because they are building on the simple fact that this is a community. They are each imperfect, human, but striving for better workers' compensation.

I cannot wait to see if any of these 23 are announced at the Comp Laude Gala® in September. But, one thing I know for sure is that I did not nominate the winner of the People's Choice award. See, that one is not up to any of us to nominate, or the judges to choose. Those nominees will place themselves in contention by proposing a "Ted talk" to deliver. Six or seven will present (it is officially seven, but I know for a fact that one guy flaked out last year and left them hanging with only 6; it was me, and I stayed home at the last minute to watch Hurricane Michael hit our Florida panhandle). And, the audience will vote. The attendees will pick the People's Choice winner.

So, if I nominated you, congratulations again! If you did not nominate anyone, please consider doing so next year. I believe that every person in this community of workers' compensation knows someone who fits the Comp Laude® criteria: 

Career dedication to integrity and excellence.
Commitment to working with all industry stakeholders and treating injured workers with dignity and respect.
Contributions have improved or advanced the industry.

So, when the time comes (nominations will likely re-open in November 2019), take the time to recognize those who you notice, and those who inspire you. They may not win an award but think of the compliment you are delivering by merely nominating them. If nothing else, perhaps you can make them blush a bit, reflect a bit, and know they are making a difference. In the end, isn't that a pretty nice compliment to deliver?

Risks for Attorneys

There has been much publicity in Florida this spring as The Florida Bar has focused on the health and wellness of its members. It all seemed to start in early 2018 when then-Bar President Michael Higer highlighted the subject in the Florida Bar Journal. That issue had various related articles including Mental Health and Wellness: Destigmatizing the Discussion and Promoting Solutions; What do the Statistics About Lawyer Alcohol Use and Mental Health Problems Really Mean?, The Surprising Master Key to Happiness and Satisfaction According to the Lawyer Research, and more. Perhaps those efforts were spurred by a "landmark report on attorney well-being" that was published in August 2017. 

That 2017 report was mentioned recently in a report by the Virginia State Bar. The Virginia authors find significant merit in that report of the National Task Force on Lawyer Well-Being, a group assembled by the American Bar Association (a voluntary group to which some lawyers belong). While praising the effort of the Task Force, the Virginia report concludes that "little has been done to 'drill down' to the reason that lawyers experience wellness problems at a disproportionate rate." That is, accepting that there are wellness issues as identified, why are there such issues?

The report leads with a discussion of a national survey of 13,000 attorneys. And it demonstrates we have problems with drinking, depression, anxiety, and stress. The effects of these mental health problems included suicide, social alienation, work addiction, sleep deprivation, job dissatisfaction, a diversity crisis, and even negative public perception. Significantly, the ABA study found that younger lawyers in the first ten years of practice and those working in private law firms experience the highest rates of problem drinking and depression. 

The Virginia report identified both physical and non-physical risks that are of interest. The "physical included sedentary nature of work," "long and unusual hours," "sleep deprivation," "working indoors," and the "aging of lawyers." The non-physical factors included: "adversarial nature of the work," "individual work," "professional demands," "vicarious trauma and managing other people's problems," "the duty of confidentiality," "educational debt," "business management and the practice of law," and the "need to display confidence and conceal vulnerability." 

Physical Factors: 

"Physical included sedentary nature of work" 

The report says there is "a risk of dying similar to the risks of dying posed by obesity and smoking" associated with a lack of activity. This is not only a lawyer problem, as it also notes "86% of American workers sit all day at work." But, there is evidence that this one can be reasonably simple to combat. In fact, "low-intensity, non-exercise activities" are seen as effective. The report recommends: "parking at a distance from a building, using stairs instead of elevators, setting reminders on a phone or watch to stand up and move, working at a standing desk, taking multiple stretch breaks, and walking at lunch" as efforts worthy of consideration. 

"Long and unusual hours" 

It notes "working long and unusual hours is a fact of life." This may "yield predictable consequences, including exhaustion, stress, and mental burnout." The report notes that our affinity for remaining connected and leveraging technology is part of both the "long and unusual." The report recommends various methods to combat this including delegation and organization. But also suggests avoiding the lure of multi-tasking and procrastinating to reduce the stress. Finally, it says "schedule time to relax and recharge." Lawyers are inherently (it seems) resistant to such scheduling. 

"Sleep deprivation" 

Surveys suggest that lawyers are the "most sleep-deprived professionals." A recent study on the effects of sleep loss found even minimal interruption is problematic. Admittedly, this is a stressor, but also itself "a major health issue," that may impact "mental and physical health." The impacts are listed in detail but include impaired driving, food cravings, obesity, diabetes, and high blood pressure. The authors recommend a variety of tools, including exercising regularly, putting "thoughts on paper and out of the mind," and even mid-day napping. The report suggests that recognition of the importance of sleep by organization leadership may encourage good habits by associates and employees. 

"Working indoors" 

The report says that this tendency leads to "limited exposure to sunlight," "disruptions of circadian rhythm," and "vitamin D deficiencies," and can thereby contribute to issues with sleeping. There are also attendant risks of depression, air quality, and even vision issues. This is also not an issue limited to lawyers, it notes that "90% of all people spend close to 22 hours inside each day." The authors suggest more time outdoors, "two hours of daylight per day," and advocate that firms and other employers should "adopt policies promoting time outdoors, such as permitting 'walking meetings.'” 

"Aging of lawyers." 

This one is certainly not about lawyers only, and the authors acknowledge that. The authors contend that with age comes "the potential for mental or physical impairment." These may include physical challenges due to degenerative disease, or mental issues related to memory, attention, concentration, or emotion. The report recommends annual medical examinations, and if necessary with specialists in psychology or psychiatry. Employers should encourage all lawyers to "watch out for each other," and to be conscious of "red flags that suggest a colleague’s cognitive abilities" may be suffering. 

In a nutshell, it seems a great deal could be accomplished in regards to all of these physical factors by each of us taking a couple of breaks daily and spending time walking around outside with others while we all engage in conversation? 

Non-Physical Factors: 

"Adversarial nature of the work," 

The authors conclude that legal work "is necessarily conflict-ridden, and conflict breeds stress." This may be frustrated by the fact that lawyers involved may be high-stress ("type - A") to begin with. The very nature of the work means "conflict is an unfortunate reality for many lawyers." The process leads to "anger, guilt, and fear," and the chronicity of it can produce physical effects. The authors suggest training and education on "civility-centered" topics and engagement in "organizations devoted to professionalism and civility, such as the American Inns of Court." Firms should "create comradeship and combat the feeling of isolation engendered by the chronic aggression of law practice." 

"Individual work," 

The report suggests that attorneys are lonely, concluding the practice is "the loneliest kind of work." There is a danger of feeling isolated as well as challenged by an "often-competitive culture." Loneliness is seen as driving "diminished physical activity," "depression," "disrupted sleep," a variety of physical changes that could affect health. How detrimental is loneliness? The Authors conclude "loneliness has the same effect as smoking fifteen cigarettes a day on our overall health." The report suggests lawyers should "say 'yes' to as many social gatherings as" possible. A concerted effort should be made to "maintain healthy relationships with family and friends." And, employers should be aware of the "risk and symptoms," and create "positive social support in the workplace." 

"Professional demands" 

The report notes a tendency for lawyers to be "pulled in too many directions to manage," noting "clients, colleagues, and the courts." There is no mention of the concurrent commitments to family, friends, and other social outlets (see above, re loneliness). The authors note that clients are often in stressful situations, thus they hire a lawyer. They may be disappointed, demanding, or even angry. And that may lead to "bar complaints, unfavorable online reviews, and malpractice claims, adding to the lawyer’s overall stress." The authors suggest establishing expectations at the outset of relationships (clients are mentioned, but this might as well apply to others). Furthermore, they recommend focusing on communication, time management, and having a "trusted mentor or colleague" to speak to about such issues. 

"Vicarious trauma and managing other people's problems" 

The report says this one is complicated by the primacy of other's problems, and the way lawyers "shoulder" them. These aggravate other issues already mentioned such as "increased stress, depression, anxiety, sleep disturbance," and more. The pressures can lead to “emotional fatigue” and “compassion fatigue,” as the lawyer's emotions and energy are invested in the troubles of others. The effects may include avoidance of some kinds of work, "risk-taking behavior, insomnia, feeling helpless," and withdrawal (social isolation, see above). The report suggests that lawyers acknowledge and recognize the potential, and commit to "not feel guilty about taking breaks during the work day," whether that is "a workout, lunch with a friend or even a massage or quick trip to the mall." The emphasis for such breaks should be something "that will occupy the mind and provide a break from worrying about a client’s situation." 

"The duty of confidentiality" 

This leads to feelings of isolation according to the authors. That may be particularly challenging when facing a novel issue, situation, or circumstance. When there are issues "attorneys cannot unravel," there is frustration and stress. When an attorney must maintain confidentiality of "disturbing facts," that may prove particularly challenging. The authors suggest that this may be more prevalent in the "solo practitioner" who lacks an attorney confidant with whom to consult or share. The report suggests that therefore "lawyers should strive to develop strong working relationships with the other attorneys in their firm or organization." "Collaborative environments," where attorneys are "companions rather than rivals" is a suggested remedy. That is not of assistance to the "solo" attorney. The report recommends that such attorneys might reach out to their state bar, through an ethics hotline, for support and advice on dealing with challenges of confidentiality. 

"Educational debt" 

The report sees debt as "relatively new" and "potentially soul-crushing." It notes that law school "tuition increases have vastly exceeded the normal rate of inflation." In this regard, the educational process may have similarities to the medical inflation situation featured in The Conundrum of Medical Inflation. The report advocates for planning before undertaking debt of this magnitude. However, it contends "many law students make the life-altering decision to take out large amounts of student loans with little to no thought as to the repercussions." In short, people are borrowing money, obtaining education, and then facing a lifetime of repayment. And that, the authors contend, is causing these lawyers to stress. The report advocates better research and informed decisions, delayed law school entry until some capital is saved, and more thorough thought about return on investment. They contend that "simply beginning — and continuing — this conversation is a good start." 

"Business management and the practice of law" 

Lawyers learn a variety of skills in law school. Business management, in my experience, is not one of them that is stressed. Thus, the graduates are trained to practice law, but not to manage their bank account, staff, assets, liability, and more. The report notes that "many new lawyers are forced to start their own practices to make ends meet"; that the employment market is not sufficient for the volume of graduates being produced. The authors conclude that the lack of business training and knowledge therefore "certainly contributes to stress and anxiety." The report recommends having resources for "preparing law students for the business side of being a lawyer." The authors advocate for "Practicing lawyers (to) consider taking business classes through local colleges." There is also the suggestion that small firms or solo attorneys should network with others to confront these business challenges. 

"Need to display confidence and conceal vulnerability" 

The report concludes on this point that the practice of law "can be, at times, ruthlessly competitive." The education process discourages any showing of vulnerability, which includes "seeking help." The authors see this as an outgrowth of "the inherently competitive nature of law school," and processes that "pit students against one another without regard to their individual merit" as they will be in "the practice of law." This is magnified perhaps by the public perceptions of attorneys, and their role in our country, which "incentivizes lawyers to exude confidence." The recommendation on this point is to essentially destigmatize those who seek mental health assistance. The authors advocate that employers should similarly "indicate acceptance, and even encouragement, of help-seeking behaviors" such as obtaining mental health treatment. Furthermore, "more social interactions and team building" might "increase firm profitability in the long run." 

The verdict, having considered all of this, is perhaps not clear. Some may argue about particular conclusions of the report regarding risks or solutions. Some may see particular aspects as avoidable or not, addressable, or not. Some may even raise the potential for some proposed solutions to create unintended detrimental consequences. Some will note that the report repeatedly acknowledges that various issues are not "only lawyer issues." But everyone should remember that they are perhaps nonetheless issues for lawyers. That they are faced by a variety of professions should perhaps not in itself diminish the potential effect or importance. 

Perhaps everyone could agree, despite the potential differences of opinion regarding various details, that the key point of the whole report is best summarized in the particular suggestion regarding debt that "simply beginning - and continuing - this conversation is a good start." While the report makes that contention as to debt specifically, perhaps the fact that there is this conversation, from the Florida Bar Journal articles devoted to the topic or from this Virginia report, that we are perhaps beginning to be introspective, analytical, and self-critical is truly "a good start?" As for me, having been up most of the night writing this, I am going to go try that "sleep" thing with which they seem so enamored. Each of you should perhaps go have a conversation about these topics with a co-worker or friend as you take a nice break and walk outdoors? After all, what can that hurt?