Discovery in Workers' Compensation

The process of litigation is instigated with a document that seeks something. In criminal law a complaint or indictment, in civil a complaint, and in workers' compensation a claim or petition. Those all tend to be primarily informational, meaning they are to put the other party on notice of the dispute. However, the states impose various requirements as to the volume and quality of information (specificity) that must be included. After this initial pleading, the other side of the case likely files an answer or response. Regardless of how much must be, or is, included in those initial pleadings, the third step is most likely to be "discovery."

Discovery is the process through which the parties gather information to better understand each other's positions, the claims and defenses. The claims and defenses having placed each other on notice, this third stage is where the details are discerned. Generally speaking, discovery comes in various forms including requests for production of documents, depositions, interrogatories, requests for admissions, and examination of persons. In Florida, these are all set forth in the Florida Rules of Civil Procedure. Those Rules are promulgated by, adopted by, the Florida Supreme Court and apply therefore in any Court proceeding. Critical to this is the word "Court."

There is a tendency among lawyers and even judges to refer to Florida workers' compensation adjudication processes as "court." As I persistently remind you, the judges of compensation claims are not a court. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004)("the Office of the Judges of Compensation Claims (OJCC) is not a court of this State"). Therefore, the Court cannot make rules for this Office. When this topic came up at a recent conference, an attorney with a flair for vernacular asked me "Is it ignorance or obstinance that drives the persistence?" An intriguing question. Perhaps it is merely the force of habit though?

Because the Supreme Court concluded that it cannot make rules for this Office, the Rules of Civil Procedure, do not apply by their terms to proceedings before this Office. Make no mistake, some of those rules do in fact apply, but not through their own force. They apply to Florida workers' compensation proceedings through the force of the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications.

The process and procedure in Florida workers' compensation proceedings are defined and delineated by these administrative rules required by the Florida Legislature in section 440.45(4), Fla. Stat. "The Office of the Judges of Compensation Claims shall adopt rules to carry out the purposes of this section." The first rules promulgated under that authority were published in 2004. Each of the iterations of those rules remain available on the OJCC website. The Florida Rules of Civil Procedure control workers' compensation discovery disputes because the Fla.R.Pro.Work.Comp. incorporate (adopt) those civil procedure rules specifically. Rule 60Q6.114 specifies what discovery is permissible. This includes depositions (2), production of documents (3), and entry onto land (inspection of premises)(3). 

The Fla.R.Pro.Work.Comp. does not incorporate or include other discovery tools that may be familiar to those engaged in civil practice generally. There is no authority to engage interrogatories or requests for admission in workers' compensation. These two discovery tools were not incorporated in the Fla.R.Pro.Work.Comp. and are therefore not available in preparing a workers' compensation case for adjudication or other resolution. Often the answer to a "why" question is "because the rules say so." But as to why there are no interrogatories in workers' compensation discovery, the better answer might be "because the rules do not say so."

Rule 60Q6.114 also incorporates tools for the enforcement of discovery. It specifically adopts the process for responding or objecting to discovery requests (4). And, the authority of a Judge of Compensation Claims to compel discovery, protect parties from discovery, and impose sanction (5) are "as provided in the Florida Rules of Civil Procedure."

Generally, the enforcement provisions are not resorted to as often as one might think. The discovery process tends to usually proceed of its own accord without judicial involvement. There are exceptions, and the periodic motion to compel discovery or motion for a protective order is necessary. However, those instances appear to be the exception and not the rule. When such motions are required the situations may range from the mundane to the extraordinary, but that is a topic for another day. 

The Volume of Appellate Litigation

I was provided an Overview of 2018 Florida First DCA Cases, which was presented recently. The statistics about the Florida First District Court were interesting to me and might be to others. 

In 2018, the Florida First District Court considered about 5,336 cases. Some of those did not persist long enough to involve a substantive decision by the Court, but those that did require at least three judges to decide. The appellate courts consider and decide cases generally in panels of three judges. Some minority cases are considered by an entire appellate court, called an en banc review. 

The vast majority (60%) of the cases reviewed were criminal cases (3,197) followed by civil (1,424; 27%), and administrative (560, 10%). Of that 5,336, only 3% (155) were workers' compensation cases. And, the volume of workers' compensation cases at the Court has been diminishing since 2009, when there were 522 such appeals filed. It is noteworthy that all workers' compensation appeals in Florida are within the jurisdiction of the First District. Thus, comparisons year-over-year, reflect the overall state volume of workers' compensation appeals. 

Following declines for four consecutive years, the total in 2012 was 243. For three years thereafter, the volume decreased, but almost imperceptibly: 2013 = 243; 2014 = 239; 2015 = 235. In 2016 and 2017, the volume barely exceeded 200: 2016 = 209; 2017 = 206. That the 2018 volume follows a downward trend is perhaps therefore minimally surprising. However, that in 9 years the volume of workers' compensation appeals would be down 70% might be seen as significant by some (522 - 155 = 367; 367/522 = 70%).

Who is filing workers' compensation appeals? Injured workers are seeking review in 72% of those cases filed in 2018; the employer/carrier in 25%. Another 1% was filed by former counsel for some party. 

There is a notable distinction in the disposition of appealed cases. Overall, 51% of appeals to the First District in 2018 were "affirmed," 42% were "dismissed or transferred" (reinforcing the point above that not all cases required a substantive decision), and 7% were reversed. 

That can be compared with workers' compensation cases. In workers' compensation cases, 53% were affirmed compared to the 51% overall. The "reverse" in workers' compensation was also higher, 12%, than the overall rate of 7%. That, logically, leads to the volume of "dismissed or transferred" in workers' compensation being lower, 35%, compared to the 42% overall. So, more workers' compensation cases reach the merits (65%) than cases overall do (58%).

The District Court also is responsible for deciding issues that are not appeals but are "extraordinary writs." The distinction is discussed in Writ Protection as Opposed to Appeal. The distinctions are as pronounced comparing "all petitions" (petition for writ of certiorari, prohibition, mandamus, etc.) to the workers' compensation petitions. 

Overall, 10% of petitions were granted in 2018, 41% were denied, and 49% were "dismissed or transferred." In workers' compensation, there were no petitions granted (0%), 56% denied and 44% "dismissed or transferred." So, again, more petitions in workers' compensation reached a decision on the merits (56%) than did so in the overall analysis, 51% (41% + 10%).

Finally, the presentation provides insight into how cases are disposed of. These statistics support that the majority of cases are "dispositions by opinion." That does not mean, however, that they were lengthy, explanatory decisions. In fact, most often in either the civil or workers' compensation categories it is the brief per curium decision that concludes the case. 

Overall, in civil cases, about 53% were "dispositions by opinion," and in workers' compensation, about 65% were. The "dispositions by opinion" are in two forms, a per curium affirmance or denial category (PCA/PCD) and a "written opinion" category. In both civil (59%) and workers' compensation (78%) the majority of "dispositions by opinion" are either a brief PCA or PCD. Those opinions do not generally provide an explanation of the rationale for the Court's decision. These decisions, while "opinions," are essential that the trial judge is affirmed or the petition is denied. 

It is noteworthy that there is no "precedential value" to a per curium affirmance or denial, as explained by the Florida Supreme Court in Department of Legal Affairs v. District Court of Appeal, 5th District, 434 So. 2d 310 (Fla 1983). There, the Court clearly held that an appellate decision "with no written opinion" has no precedential value. It stated that "the rationale and basis for the decision without opinion is always subject to speculation." In other words, the foundation for precedential value is in knowing why a court decided as it did. 

Nonetheless, the Supreme Court held that it is not improper to cite such an opinion in order to call "a court's attention to one of its own unwritten decisions." That does not mean that it is "a precedent" or that it should be "relied upon," but such a citation would not be improper. But, neither would a decision by the court to disregard that citation be improper. 

These statistics illustrate that workers' compensation is a small percentage of the cases in one of the five Florida District Courts. And, that percentage is decreasing. Further, the appeals and petitions in workers' compensation are each more likely to reach a decision on the merits of the appellate review than are appeals and petitions in civil cases in that Court. And, those decisions of workers' compensation cases are less likely to result in a substantive written opinion that brings precedential authority. 

It remains unclear why workers' compensation is different. However, the statistics seem to clarify that it is indeed different. 

A Little too Late?

The California Second District Court of Appeal recently rendered Fisher v. Channing, Case - B292689 (Cal. App. 2d 2019). The relationship is only tangential to workers' compensation, but the tale is educational on the topic of timeliness. 

The case dates back over forty years to 1978. James Earl Carter was serving as the 39th President of the United States. That year, Mr. Fischer "sustained a serious work-related injury." Six years later, "in 1984" (during President Reagan's first term) the case was settled "for $67,000," from which Fisher was paid $4,000. He says he asked his attorney, Mr. Channing, "to hold the rest of it in trust." Mr. Channing disputed that allegation, contending that he disbursed to Fisher all of the proceeds to which he was entitled.

In 1991, During George H.W. Bush's term as President, Fisher was sent to prison. He requested that his attorney "transfer the balance of the workers’ compensation settlement proceeds to Fisher’s commissary account at the prison." He says that between "1991 and 1993 (he) wrote Channing 'a lot' of letters" about the funds. Attorney Channing "never responded." During that time, Fisher claimed he called Mr. Channing but found the number disconnected. He also tried to contact another lawyer who had represented him, in hopes that a second lawyer would help him recover the money from Fischer.

In April 2016, Mr. "Fisher was paroled from prison," and visited Mr. Channing's office only to find it vacated. In June 2017, about 33 years after the case was settled, he filed a lawsuit against Mr. Channing to recover the remaining funds alleging "conversion, professional negligence, and breach of fiduciary duty." Mr. Channing answered the complaint claiming the statute of limitations and "laches," as well as asserting that all the funds were disbursed in 1984. 

The court dismissed Fisher's lawsuit concluding that the statute of limitations had in fact expired. The appellate court explained that each of the allegations ("conversion, professional negligence, and breach of fiduciary duty.") has a statute of limitations. It explained when the statute began to be measured, and in this instance therefore when each expired. 

The court cited an admonition from a previous case, Genisman v. Carley (2018) 29 Cal.App.5th 45, 50: “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” 

The court explained that Fisher's actions in the 1990s demonstrated he believed that Mr. Channing owed him money and that his actions demonstrated his intention to reclaim that money. Thus, "no later than 1993" Fisher knew or should have known that Mr. Channing was not inclined to respond or to pay him the money. 

Thus, the court concluded that the statute of limitations barred Fisher's claims. As a result, the Court affirmed the dismissal of his lawsuit and ordered Fisher to pay Mr. Channing the costs related to the appeal of the dismissal. 

In Florida workers' compensation, the statute of limitations is in some ways crystal clear, but in others subject to some confusion. The provisions are found in section 440.19, Fla. Stat. 

"(1) Except to the extent provided elsewhere in this section, all employee petitions for benefits under this chapter shall be barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to s. 440.185(1) and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment." 

Thus, the statute in Florida is one of "limitation." For more on the distinction between limitation and "repose," see Stare Decisis, Goodgame, Livingood, and Westphal. The limitation runs from the date on which the "employee knew or should have known" of the relationship between the work and the injury. However, the statute might be extended repeatedly under the Florida Statute, which also provides: 

"(2) Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment." 

Thus, during the period of delivery of either lost earning benefits or remedial medical treatment the statute as to many issues is "tolled" or suspended. The statute of limitations would extend for a year after such care or payment. 

There are other exceptions in the statute when a "person entitled to compensation" is "mentally incompetent or a minor," and has no guardian. Section 440.19(5), Fla. Stat. There is also an extension of the time for filing of the workers' compensation petition when a worker first seeks payment of damages in some other legal or admiralty proceeding, which is dismissed upon the claiming of workers' compensation exclusive remedy. Section 440.19(6), Fla. Stat.

Finally, there is a "waiver" provision in the Florida law. The statute of limitation is waived "unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits." This is not the "initial response" to an assertion of entitlement to benefits, but to a "petition" specifically. This was recently clarified in Schiano v. City of Hollywood, No. 1D18-1791.

Statutes of Limitations are specific to the various states. A recent Louisiana decision in Knight v. Imperial Trading, 19-CA-41, illustrates this. The employee there alleged an accident on April 26, 2017, which she reported to an emergency room. Though she was instructed to follow up, she did not. Months later, she presented at a physician's office, a diagnosis was made, and care was prescribed. Then, on "May 30, 2018, more than one year after her alleged April 26, 2017, work-related accident" she filed a claim to seek benefits.

The trial judge there granted the employer's objection to the claim (asserting "prescription" meaning the time allowed to file had expired) and dismissed it. The Court explained that in Louisiana "claims for workers’ compensation benefits must be filed within (1) one year from the date of the accident." There is also an exception when "the injury does not result at the time of or immediately after the accident," in which case the "one year" begins to run when the "delayed development of disability" occurs, but that may not be more than three years after the accident. This illustrates how state laws can differ.

Another illustration was recently featured in a story on WorkCompCentral that described a claim for "U.S. workers' compensation benefits" under the 1941 Defense Base Act. There, "three members of a Danish cleanup crew" are seeking compensation for cancers. They were allegedly engaged in clearing the site where a B-52 bomber crashed near Thule, Greenland, in 1968. While the article quotes some opining that the claims are "a long shot," they are nonetheless being considered.

Some lessons are reasonably straightforward. First, the statute of limitations or "prescription" may be different from jurisdiction to jurisdiction. Second, while there is a tendency to think of workers' compensation as a state matter, there are federal programs that similarly provide benefits. Third, it is important that people pursue their rights. Seeking to prove something in 2016, that may have occurred in 1984 may prove very difficult as it did for Mr. Fischer. Similarly, proving the causation by activities in 1968 may prove challenging. When one cannot remember specifically who was president at that particular time, it may signal that memories have faded?

That it is challenging does not mean that something necessarily cannot be considered after decades, but it means that may well be a difficult proposition. After a time, memory fades. Locating and authenticating records, financial or medical, may be increasingly difficult as years pass. Those challenges may be more significant after the passage of decades. These cases are reminders that statutes of limitation may preclude the pursuit of claims, of the implications of delay.

Communication, Empathy, and Apology

The Worker’s Compensation Hot Seat (WCHotSeat) on September 19, 2019, was focused on the friction involved in determining entitlement to disputed worker’s compensation benefits. Certainly, a great volume of benefits is delivered administratively across the country in cases that never involve filing claims/petitions, litigation, or even legal counsel. In sum, a great many cases work exactly as they are supposed to. We as a community should remember that, as an endorsement of the success of the systems overall.

The WCHotSeat discussion Adversarial Workers' Compensation Systems focused on why there is litigation or friction. Causes suggested by the panel included the complexity of statutes, poor communication, and unrealistic expectations. The program is available here for review. And, for the first time, you can request a certificate of completion when you have watched. That can be used by the viewer to request continuing education credit. 

There was some suggestion on the program that states' efforts at “reform“ have resulted in burgeoning volumes of statutory language. It was posited that these various legal provisions, their interaction with each other, and their various results lead to complexity. The complexity in turn begets uncertainty, questions, and therefore more litigation. That contention merits consideration.

There was also some suggestion that both employers and employees may come into any particular case with expectations that are tinged by either previous experiences or situations that have been related to them. We are each likely the product of both our nature and our nurture, so it is possible we all have some predilections that accompany us wherever we go. These preconceived notions, it was suggested, may create expectations about the case or about each other that are misperceptions. However misplaced, these perceptions nonetheless may influence whether the parties are trusting, understanding, and focused upon resolution and mutual accommodation as opposed to opposition, resistance, and conflict.

The point which seemed most unanimously accepted, however, was the communication. The WCHotSeat guests were in agreement that far too little communication is maintained following a work accident, during the delivery of medical care, and even after a return to work. That criticism is of the volume of communication. The reassurance that comes through calm, persistent, and empathetic communication in both directions was seen as valuable to an amicable and acceptable conclusion to the consequences of any unfortunate event. It is important to remember that the conclusion may come in the form of settlement, but perhaps merely in the form of cessation of conflict and the administrative delivery of periodic statutory benefits. 

I recall a serious accident that became the basis for litigation years ago. The employer made a point of inviting the injured worker, who was under remedial medical care and temporarily totally disabled, to come to a company celebration party. After he later returned to work, his attorney confided in me that human respect meant the world to that worker. I shared that his showing up to participate in the special occasion likewise did wonders for my client's outlook as well. 

But, there was also a discussion of the content of communication. Mike Fish noted that he has worked with clients who are reluctant to express any emotion or acknowledge an employee's suffering, because of fear that will be equated to some form of admission of fault or blame. He advocates that employers and carriers should shed that fear, and be willing to apologize (empathize) when someone suffers an untoward event. There is no weakness in recognizing someone is struggling, is experiencing pain or discomfort, or is simply in need of acknowledgment and encouragement. 

Commissioner Marshall of Virginia reiterated the point and related experience from representing injured workers over the course of several years. He described multiple instances in which a client expressed disappointment to him regarding their employer‘s unwillingness to express empathy or condolences. He noted that several asked him bluntly why the employer never apologized. He was therefore supportive of employers verbalizing empathy and condolence to those who are injured. 

The power of apology cannot be overstated. In 2002, Psychology Today published an article with the title: The Power of Apology. In it, the author recounts a self-imposed separation from a family member that culminated years later in a phone call with two simple words: "I'm sorry." The author described how that simple statement affected her: “Waves of relief washed over me. Resentment, fear, and anger drained out.” She was surprised how “those two simple words seemed to wipe away years of pain and bitterness.” In any relationship, there are ups and downs. All human interaction has the potential for friction. Every story has at least two sides. But, in the apology comes a release. It may not heal, but perhaps it can begin the potential for healing. 

Coincidentally, as I reflected upon the Hotseat, I ran across an article involving a social media personality in China, called a “YouTuber.” The headline read YouTuber pays compensation after 'copycat' death. This influencer is a 25-year-old who has become somewhat famous for preparing food, sometimes elaborate food, at her workplace desk using only what is already at hand. She made a video in which she popped corn in a soda can. Two adolescents later attempted to do something similar and there was an explosion. One died and the other suffered very serious and significant burns.

The YouTuber is paying compensation as a result. That is something, but as the father of the young lady who died said, “No amount of money could bring his daughter back.” That is a truism that perhaps bears remembering. Compensation may bring some relief or assistance, but it may not restore someone to where she/he once was. 

And, the YouTuber did something else. She posted on social media about "the darkest day of my life." There she described the tragedy of the two adolescents and how the “news of the tragedy had caused her ‘immense pain.’" Then she “apologized and said she had ‘let her fans down.’" She followed that, however, by denying “the girls had been copying her videos.” Thus, while not admitting fault or responsibility, she acknowledged that empathy was appropriate, and she acknowledged those emotions through a heartfelt apology.

She also reminded, however, that “all her videos included warnings advising viewers not to imitate her actions”; in America that would perhaps be a “don’t try this at home” or a “professional driver closed course” caption. She noted also that “her videos were ‘not meant to be instructional,’” a mistake anyone might make. We all have seen news stories in which someone has elected to “try that at home,” with or without the warning. We are a species that seems destined to try things we see others do. Thus, the YouTuber denies responsibility while nonetheless being conciliatory and apologetic for the situation of the two families through apology. 

The story reinforces the power of empathy. As suggested by the WCHotSeat guests, perhaps empathetic and sympathetic communication following a work accident can build and reinforce good relationships between employers and employees. Perhaps they can support and trust each other as one struggles to recover and regain function while the other struggles to manage an ongoing business and have that job available when the employee is ready to return. It is possible that each of them is upset about an accident, and therefore it may do them both a world of good to express their feelings and thoughts to each other. Open and frank communication is likely of benefit to both. 

There is power in apology. But there is greater power still in empathy, communication, community, and cooperation. If everyone involved in a workers’ compensation accident (employees, employers, adjusters, medical providers, vocational experts, etc.) was focused on those four, with a particular emphasis on striving to work with each other (cooperation), perhaps we could together decrease the friction and contentiousness in workers’ compensation?  
It is indeed an honor and privilege to participate in the WCHotseat. All ten of the programs we have presented are available at www.WCHotseat.com. The guests have been exceptional, the conversations enlightening, and the take-aways numerous. It is a conversation, and through that interactive communication we can all learn to better participate in this community we call workers' compensation. 

Ex Parte Yet Again

The Florida First District recently rendered Godwin v. Hillsborough County School Board, No. 1D18-1788 (August 29, 2019). The decision discusses two issues that will be familiar to regular readers, ex parte communication and disqualification of trial judges. There is also mention of the expert medical advisor (EMA) statute and a reminder that errors or objections must be preserved at trial. 

In this instance, the assigned judge appointed an EMA. The EMA is discussed in The Striking of an EMA, A Constitutional Challenge Denied, and Not with a Bang but with a Whimper. Thereafter, the judge "conferred with the expert medical advisor (EMA) without counsel present." Over the approximately two decades that the EMA has been in the Florida statute, there has been ample discussion of the EMA role. I have often heard it referred to as the "court's expert." That is fallacious in two aspects. 

First, the judges of compensation claims are not a court. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004)("the Office of the Judges of Compensation Claims (OJCC) is not a court of this State"). There is a persistence in the community in referring to this Office as a "court" whether through design or complacency. But, that is misplaced and inappropriate. Worse, it causes confusion among the community members we serve. 

Second, there is no "court expert" in the Florida workers' compensation statute, defined or implied. The expert medical advisor effectively becomes an arbiter of medical disputes. The Court has explained that "An expert medical advisor's opinion is presumed to be correct and may only be rejected on the basis of clear and convincing evidence." Walgreen Co. v. Carver, 770 So. 2d 172 (Fla. 1st DCA 2000). The doctor is imbued with responsibility for expressing opinion, but the Judge remains the finder of fact. The judge may accept the opinion or may reject it upon appropriate findings. The expert and judge are not collaborators in investigating or diagnosing. The judge remains the adjudicator, independent and impartial. The Judge may reject the EMA opinion. 

In Godwin, the EMA performed as ordered and rendered a report. One recommendation was for another medical test to be performed. The assigned judge then spoke "with the expert medical advisor (EMA) without counsel present." There is nothing in the Court's opinion to suggest that this communication was inadvertent or unintended. Ex-parte communication is prohibited by the Florida Code of Judicial Conduct. It has been discussed here in What is Ex Parte, Judicial Behavior and Ex Parte Communication, and The Judicial Witness. 

The prohibition on ex parte communication is in the Florida Code of Judicial Conduct, Canon 3: 

"7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that . . ." 

The key language there in this instance is "consider ex parte communications" or even "consider other communications made to the judge outside the presence of the parties." In communicating with the EMA, outside the presence of the parties, the judge either "initiated, permitted, or considered." 

The assigned judge, "later that day . . . informed the parties about his conversation with the EMA." Whenever there is ex-parte communication, such disclosure is appropriate. As an aside, this periodically arises when a party or counsel inadvertently makes contact in the modern age of electronic communication. While an email cannot be "unread," the best course for the judge in such situations is immediately making such communication known to all other parties. 

The Court in Godwin noted that even after the disclosure, "at no point below did Claimant raise any questions about, or objections to, the JCC’s conduct." This is an issue of preservation of error. When a party perceives an issue or complaint with process, procedure, evidence, or otherwise, it is incumbent upon that party to make an objection. It is the objection that alerts the trial judge to a perception of a problem. Alerted, the trial judge may be able to rectify the error or to at least ameliorate its impact and effect. Parties may not generally quietly acquiesce in error at trial and later raise that error in the appellate court. 

The Court noted that "Claimant maintains that he had no recourse below; thus, seeking review in this court was his only path for relief." The Court was not persuaded. It reminded me of the process and rule for judicial disqualification; it reminded me of the applicability of the Code of Judicial Conduct. The Court concluded, "We see no reason why Claimant could not have addressed his concerns below."

The Court concluded with mention that the trial judge could have avoided the ex parte communication by involving the parties in discussion upon receipt of the EMA report. It suggested the judge could have "apprised the parties of his intention to contact the doctor before" doing so. The judge could have discussed the report with counsel in the status conference first, and perhaps all parties would have agreed to some proposed written inquiry from the judge to the EMA (with copies to all parties). Or, possibly, the doctor could have been called during the status conference when all were present. There are a myriad of possible courses.

Some will note that coordinating a status conference or hearing can be cumbersome when multiple attorney calendars and the judge's calendar are congested with the day-to-day. That is fair. Admittedly, that may be even more of a challenge when the EMA doctor's calendar is added to the complexity. Certainly, that is likely. However, due process is necessary even when it may not be convenient.

Ex-parte communication is simply not a good idea, and everyone involved needs to remain aware of what it is. Everyone needs to strive to avoid it. When it occurs, everyone involved should strive to identify it, ameliorate it, and hopefully rectify it. Litigants need to remember their responsibility to preserve error at the trial level.

If You Could Change One Thing

I hear people periodically wax philosophically about what they would change in this world if they could. There are those who express such thoughts globally (end world hunger), or very personally (that sunspot on my nose). And, I have heard the question asked in the context of workers' compensation in a variety of venues, as a regulator, an adjudicator, an attorney, and just as an observer. That came back to me recently when an appellate judge in Kentucky expressed some views on workers' compensation in Zoeller v. Amazon, 2018-CA-001511-WC.

The decision was rendered on June 21, 2019, and the Court designated that it was "not to be published." This blog has previously discussed the practice of appellate courts precluding decisions from having a precedential effect. See The Publication Distinction in Our Modern World.

The injured worker was disappointed that her claims were dismissed. She sought review by the Kentucky Board, which affirmed the trial judge. Kentucky is one of the states that has an intermediate administrative appellate process through which workers' compensation parties must progress before any review by a constitutional court. Ms. Zoeller, disappointed with the Board's affirmation, therefore sought review of the Board's and judge's decision with the Commonwealth Court of Appeals.

The factual setting was not extraordinary. The claimant worked for the employer, Amazon, for about two and one-half years when she "felt pain in her neck and right shoulder" while moving boxes. She sought treatment, returned to "light duty" and then "regular duty work without restriction." Despite the release, one day she was "unable to complete her shift due to neck pain," and again sought care. 

Within a month she had left Amazon. Thereafter she worked in a few places "through temporary employment agencies." and "ultimately filed two claims for workers’ compensation benefits" from Amazon related to the shoulder and neck. When she testified, she admitted there was "no specific event (that) occurred," causing her to return for medical care again and then leave Amazon in 2015. 

The Court provided a summary of various medical records documenting complaints, testing, examinations, diagnoses, and assignment of impairment ratings. This analysis included both the shoulder and the cervical spine. There were multiple physicians involved in Ms. Zoeller's care and treatment. The opinions that the various physicians expressed shared similarities, but also exhibited various distinctions. In other words, there were points upon which the various experts seemingly agreed and others upon which they did not. 

The majority opinion concluded that the "ALJ made thorough and specific findings regarding the evidence," including both "the medical and lay testimony." The judge concluded that Ms. Zoeller had "not borne her burden of proving that she suffered a work-related injury to her shoulder(s)." 

The Court noted that one doctor's opinions were "more persuasive to the ALJ because" the physician "went into detail to explain how she arrived at her conclusion as to causation." This was compared to another physician who provided "conclusory statements as an explanation of a causative relationship," which were deemed "not as persuasive." The Court mentioned that the first physician "included in her explanation information from treatment records and reports, some inconsistent with one another." Credibility has been mentioned here before, see Experts and Credibility,  Arguments and Emotions, and Blindness blindness. 

The Court described how Ms. Zoeller, in her appeal to the Board, had "asserted that the ALJ overlooked evidence that supported her claim." But, the Court noted that the standard in appellate review is not that there is or is not contradictory evidence, but whether "the ALJ’s determination" was "supported by substantial evidence." Because there was evidence to support the ALJ's decision, the argument that there was contradictory evidence, The Court noted, was "moot."

The Court noted that Ms. Zoeller's "arguments simply ignore the discretion vested in the ALJ to weigh the evidence and determine witness credibility." It noted that an employee can prove one part of a claim, "but fail to prove" another. The Court concluded that Ms. "Zoeller has simply not shown that there was evidence in her favor as to work-relatedness/causation that was 'so overwhelming that no reasonable person would fail to be persuaded by it."

One judge filed a separate opinion, a "concurrence," but noted she "would really prefer to dissent." The judge noted that the majority opinion of the court "is, no doubt, legally correct." Despite it being "correct," the concurring judge wrote to "protest the state of the law." This judge contended that there was "ample medical evidence in this record" that supported the worker 

"suffered a work-related injury, or at least an exacerbation of a pre-existing condition or of an age-related deterioration." 

The judge contended that Ms. Zoeller therefore "had to leave her job at Amazon."  As there was evidence that could have persuaded the trial judge, the "concurring" judge seems persuaded that the injured worker should prevail on her claims. The opinion seems to advocate for a process that is more deferential to evidence that supports a claim as opposed to a defense. 

The Judge took issue with the process by which there is a "finder of fact" that makes determinations as to which witnesses or evidence is most credible, logical, and accepted. She noted that in the American workers' compensation systems laws afford the finder of fact 

"virtually unbridled discretion to 'pick and choose' the evidence, quite often producing the untenable (but legally correct!) result that the beneficient purpose underlying the very genesis of the legislation is wholly undermined."

The judge essentially also laments that the law does not allow the appellate court to re-weigh the evidence; and that it instead allows the finder of fact to decide "which evidence to believe." She takes issue with an outcome that fails to resolve the worker's "pain and incapacity to perform the job at Amazon." Judge Combs finds it "lamentable," that an Administrative Law Judge might accept the opinions of one physician (or witness) and reject the opinions of "four other examining physicians." In that phrase, perhaps suggesting that determinations should be more mathematical (four on one side versus one on the other leading to a decision for the position on which there are four). 

Judge Combs concludes that a system in which a judge can make such a determination, accepting one opinion and rejecting others, casts a system that was designed to balance the interests of employees and employers into an "insurmountable burden of proof to the employee." Judge Combs advocates that the Kentucky Legislature should conclude that such fact-finding discretion has "emasculated that balanced and equitable legislative intent," and legislatively "correct this situation and restore equilibrium to the equation." Is it possible that what constitutes "equilibrium" of balance might be a subject upon which reasonable people could disagree?

This concurrence is an interesting analysis that casts criticism but proposes no solution. Judge Combs clearly rejects the process in which a trial judge makes determinations as to which witnesses are most credible. But, what system would the judge have the legislature enact in its place? If the Kentucky system is not "balanced or equitable," what alteration would render it so? Is it, perhaps, that the trial judge's judicial discretion is "virtually unbridled," and some limitation on the discretion would bring about the outcome the judge wishes.

Or, would another solution be simpler? Perhaps the solution is that witnesses should explain both opinions and the facts that lead to them? Should the law be altered to force the acceptance of opinions that are "conclusory statements" that perhaps lack factual support and explanation? Should the law be altered to somehow imbue opinions with credibility despite not explaining the information that is inconsistent or contradictory? In short, is the solution changing the law or for experts to better explain their opinions and the facts that support them?

What would you change, if you could change one thing?

Blindness blindness

How do human memories work? a psychologist provides insight into "metacognitive illusions," and how our "perceptions and memories" work. There is a contention that people are unduly confident in their ability to understand and remember. Allegedly, "our intuitions about our own cognitive systems can be surprisingly unreliable."

Most will be familiar with the name Arthur Conan Doyle, the author who brought the world Sherlock Holmes. In addition to his literary pursuits, he "was also an illustrious paranormal investigator." In a recent article, the British Broadcasting Company (BBC) highlighted the success some had with deceiving him, contending Doyle "often failed to see the frauds in front of his eyes." The entire article is interesting, but particularly on how our brains process and store information. 

The author describes two instances in which Doyle was "hoaxed." The first is a somewhat famous instance in which he was deceived by some fake photographs, and later by a photographer who similarly produced fake photos before his very eyes. A second instance involved Doyle being engaged to witness a seance, at which he was misled by sleight of hand perpetrated by two magicians. In each instance, Doyle's acceptance of his perceptions was highlighted. 

The BBC author contends that some of Doyle's acceptance was attributable to a "will to believe." In the instance of the seance, Doyle reportedly even refused to believe he had been misled and fooled when the magicians repeated the trick demonstrating how it was perpetrated. He reportedly contended that the "reveal," which was afterward staged to demonstrate how the hoax was played, was the trick and that the first seance he witnessed had been real. 

The BBC author cautions us against our memory, noting that many of us believe "memory works like a video camera accurately recording the events that we see and hear." Though he concedes that we are wired for such a belief, it is instead more realistic to view our memory as "processes of reconstruction, rather than one of reproduction." When we "remember an event," the process is "more like composing a story" than "replaying a video." And, since it is a "reproduction" the brain may "erroneously integrate imagined elements" into the reconstruction. 

Another point stressed is what the author refers to as "change blindness blindness." After reading the story, this reference reminded me of Luke 23:34 "Father, forgive them, for they do not know what they are doing." But, as I reflected upon the foundation of "blindness blindness," I sought out a long-remembered but less-known quote "He who knows not, and knows not that he knows not, is a fool," Omar Khayam. That is also attributed by some to Confucious. The upshot is that being ignorant is one thing, but not knowing that you are ignorant is worse. 

The term "change blindness" is illustrated by the difficulty we experience in spotting differences in "a visual scene." Years ago, daily newspapers (the news was actually printed with ink on paper and delivered daily much in the way stories are now uploaded to the Internet) would print side-by-side frames of very similar pictures, and the entertainment value was striving to identify some set quantity of differences between the two. 

The BBC author contends that our human perception skills render the detection of differences difficult. It has been demonstrated scientifically, leading to the author's conclusion that "detecting changes" is difficult. When the scientific research was initially published, peer review was critical, concluding that the results of the research were "impossible." That "people could be change blind was so counter-intuitive that even visual scientists were inclined to doubt the reality of the phenomenon." But, in the roughly two decades since that initial reaction, "change blindness is an established part of cognitive psychology." 

But, that science has accepted it does not mean that you or I either recognize or accept it. In fact, the author contends that many of us are "ignorant of their change blindness." And, because we are, some magicians and illusionists are successful with tricks and deceptions. The author contends that despite the reasonably recent scientific acceptance of "change blindness," it is an essential underlying part of the history of illusionists. Our "blindness" to our own "change blindness" is thus referred to as "change blindness blindness," a label for our self-denial, conscious or not.

This does not mean that we are "broken" or that our "memory is 'flawed.'" What it means is that even the most sophisticated students of human psychology do not fully understand the functions and processes of our brains. The contention is that our brains are confronted with "complex and confusing information every day," and our "cognitive system" has aptly adapted to interpret this information for us. The author encourages us to "appreciate the intricacies of human memory and perception while considering the systems' limits and eccentricities." 

This recognition may help us to understand how multiple people can perceive some event or action and yet disagree with one another regarding details of what happened, how, or to whom. Perceptions might be different based upon the perspective or view of the person later relating their recollection. But, it is possible the person's description in recounting could be different from someone else's merely because of the phenomenon of "change blindness." And, because of "blindness blindness, they may not even be aware they are engaging in a "process of reconstruction, rather than one of reproduction."

Truth or Consequences

The Texas Fourteenth Court of Appeals recently rendered Redmond Legal Group v. Chatman and Mitra, NO. 14-17-00835-CV (August 27, 2019). It is not a workers' compensation case but involves a dispute among lawyers regarding their representation of one of the parties and a subsequent conflict among themselves. 

Mr. Redmond is the owner of Redmond Legal Group, and he had contracted with Ms. Chatman and Ms. Woody for legal services. The dispute between these lawyers began in 2014 and was eventually set for trial in January 2016. However, within weeks of the beginning of trial, Mr. Redmond's attorney moved for a continuance due to Mr. Redmond's personal health. There was a "physician's letter" provided to the court in support of the continuance motion. 

The letter (referred to throughout as the "Hyber" letter) described a November 2015 injury "necessitating 'medical treatment and stay, and rehabilitative therapy . . ..'” It also noted that Mr. Redmond was "unable to travel until he is reevaluated and possibly released by me during his next visit in late January 2016.” The trial was continued. Months later, "Chatman and Woody moved for sanctions alleging the" medical excuse "was fraudulent and was submitted to delay the trial and give Redmond more time to respond to discovery."

In December 2016, at a status conference, Mr. Redmond's attorney "informed the trial court that the" medical excuse letter "was 'false.'” Apparently, the letter "was not written by the doctor and there was no clinic at" the address stated on it. The trial judge inquired of counsel: “You are saying to me that this letter was presented to you by your client is a fraud?” To which Mr. Redmond's attorney reportedly admitted. The trial judge scheduled a January 2017 hearing to consider whether to impose sanctions. 

Following the hearing, the trial judge ordered Mr. Redmond to produce "the name of the hospital(s) that treated him for the alleged injury he suffered in November 2015," and his counsel was instructed to "obtain records 'from the identified hospital(s) in admissible form.'" The records were reviewed by the trial judge in March 2017 and the judge then "granted the defendant’s motion for sanctions and dismissed all of the appellants’ claims." In the order, the trial judge found the medical letter "is fraudulent," and that it "and related claims of injuries suffered by Jerry Redmond were used to unnecessarily and unreasonably delay proceedings in this case . . .."

The trial judge further found that Mr. "Redmond's sworn testimony regarding the Hyber Letter during the hearing held on January 3, 2017, was not truthful." The judge concluded that Mr. Redmond "failed to fully comply with the Court’s orders made from the bench," and the "written order signed February 6, 2017." The judge concluded that "the Plaintiffs have abused or violated the discovery process, the Texas Rules of Civil Procedure, and the Texas Disciplinary Rules of Professional Conduct."

The Texas court explained the foundation of "sanctions" there, that a 

"sanction is just if there is a direct relationship between the offensive conduct and the sanction imposed and it is not excessive." 

For the "direct relationship," it explained the sanction must remedy "the prejudice caused to the innocent party." The second element is a constraint that the "discovery sanction imposed should be no more severe than necessary to serve its legitimate purposes." That is, "a sanction is excessive if lesser sanctions would have served the purposes of compliance, deterrence, and punishment."

The Court noted that before a dismissal is deemed appropriate, the trial court must have "considered the availability of lesser sanctions." There is a requirement that "lesser sanctions must first be tested to determine their efficacy" in all "but the most egregious and exceptional cases." The consideration of "appropriate lesser sanction" and "an explanation of the appropriateness of the sanction imposed” are required in the trial court's dismissal. 

The Court noted multiple examples in which dismissal had been upheld, including "a false affidavit of indigence," "manufacturing evidence related to damages," "destroyed audio tapes which went to the heart of the proof needed," "produced false contract documents," "testifying falsely and misleadingly," "committed perjury" and others. It concluded that the "trial court clearly had the discretion to sanction Redmond because of the Hyber letter, including the potential use of" dismissal. 

However, the Court noted that the trial judge's 

"order, however, does not state that lesser sanctions were considered, how the sanctionable conduct bore direct relevance to the claims of plaintiffs Redmond Legal Group, PLLC, and Jerry Redmond, Jr., or why fabricating and submitting the Hyber letter justified a presumption that the claims of plaintiffs Redmond Legal Group, PLLC, and Jerry Redmond, Jr., lacked merit."

The Court reversed the dismissal and remanded the case for "further proceedings."

This could lead some to conclude that the Court of Appeals condoned misrepresentation. But, the point of the decision is two-fold. First, that before imposing sanctions, judges should follow a set analysis of what sanction is justified by the complained of behavior. Second, the trial court has to take the time to explain the offense, the analysis of considering appropriate sanction, and the supporting facts or conclusions for the ultimate decision. 

The Texas Court of Appeals reversed because the analysis and supporting conclusions in this instance were not clear. That is a reminder as to process, not an endorsement of the complained of behavior. 

Courts and Safety

Some Canadian litigation recently came to light in the news. The Canadian Supreme Court has heard the petition of Bela Kosoian. Global News reports that She was in a "Metro station in the Montreal suburb of Laval in 2009." She was apparently using an escalator without holding the handrail when she was confronted by "a police officer" who "told her to respect a pictogram" and to "hold the handrail." Website TheCourt.ca notes that when arrested, Ms. Kosoian was 38 years old and declined to hold the rail because of "germs on the rail." 

Ms. Kosoian declined, explaining to the officer that she "did not consider the image . . . to be an obligation." A "pictogram" or "pictograph" is being used there to refer to a sign that conveys behavior, though those two terms may be less than descriptive. When asked, she also "refused to identify herself." The officer called for "backup" and Ms. Kosoian was "taken by force." She was later released after being issued "two tickets - one for $100 for disobeying a pictogram and another for $320 for having obstructed the work of an inspector" (likely the refusal to identify herself.

Ms. Kosoian proceeded to trial on the tickets and was "acquitted of the two infractions." She then filed a $45,000 lawsuit against the Metro, the city, and "one of the officers." A Quebec court dismissed the lawsuit, and an appellate court affirmed that conclusion. The appellate court "said Kosoian was the 'author of her own misfortune,'" essentially concluding she should have just grabbed the handrail when told to, or perhaps merely identified herself when asked. Some may agree with how easily she might have done so, others will be troubled with someone "taken by force" by multiple officers in response to refusing to identify oneself. 

Notably, the appellate court was divided. One Justice concluded that the police officer was "justified" to arrest her “because she had refused to identify herself.” Another concluded that an “honest but false belief” that the pictogram was some form of mandate did not "clear him (police) of responsibility." It might be that the justices were not even in agreement as to what issue should be decided? 

Ms. Kosoian then sought review by the nation's highest court. The Court's response and resulting headline made this intriguing: "Supreme Court to hear case of woman arrested, ticketed for refusing to hold escalator handrail." The Supreme Court of Canada will decide whether the police officers acted appropriately in enforcing a pictogram that encouraged or perhaps required holding the handrail.

In March 2019, the Court granted the Canadian Civil Liberties Association (CCLA) motion to intervene. In April 2019, the Court docket noted "Judgment under advisement." Ms. Zwibel, a director of the CCLA blogged on the case, asking "What Happens When the Police Arrest you for a Non-Existent Offence?" Ms. Zwibel describes that the police "arrested, handcuffed, and searched the backpack of Ms. Kosoian." She rather sarcastically describes Ms. Kosoian's refusal to provide her name as resistance, and noted that the police "giv(ing) her a ticket for her deplorable actions." 

Ms. Zwibel admits that the "facts sound trivial," and proceeds to outline the Supreme Court appeal as more fundamental. She describes four legal issues perceived as pressing: (1) "When does the law require you to provide your name to the police?" (2) "Can a pictogram form the basis of an offense?" (3) "What happens when the police arrest you for a non-existent offense?" and (4) should the police "bear liability when an error has been made in conducting an arrest?" Another blogger has characterized the police actions as overboard, asking rhetorically "Do cops in Canada bust into people’s houses to see if mattress tags are still attached?"

One perhaps wonders if a Canadian police officer might ticket someone for ignoring more generic signs like: "watch your step," "wet floor," or "do not touch?" I realize by this point that Statler and Waldorf may be asking once again "What does this have to do with workers' compensation." 

Of course, in a workplace, there may be many warning signs. Since the creation of the U.S. Occupational Safety and Health Administration in 1970, there has been a significant focus on workplace safety. And, that has produced results. in December 2018 IA Magazine reported that "fewer people are getting hurt." It quotes National Council of Compensation Insurance (NCCI) data supporting that workers' compensation "claims frequency" has demonstrated a "4% improvement . . . over the last 20 years." 

Some degree of that improvement may well be attributable to various pictograms and signs that have become commonplace in workplaces, including "hard hat area," "danger forklift trucks," "flammable material," "high noise area," biological hazard," or "pinch point." There have been many signs installed with more generic "caution," "danger" and "warning" messages. And, there are the even broader signs and pictograms that remind us daily to simply "think safety," or similar. 

Signs are not a panacea or "cure-all." It is likely that we all periodically ignore signs that encourage our attention to safety. Few drivers seem to obey the yellow highway signs cautioning lower speed on a highway off-ramp. Perhaps such warnings are good for everyone to consider, but not so enforceable upon us all? That may be a question answered by the Canadian Supreme Court. Can a pictogram be enforced? Is there a foundation for such a prosecution? 

But, the realm of safety in the workplace is not criminal. That plethora of signs and rules in the workplace is not a foundation, at least as yet, for criminal prosecution of workers who fail to obey safety rules. However, there is potential for penalties to be imposed upon employees who act in an unsafe manner. Somewhat counter-intuitively, there are fault penalties in these "no-fault" systems in which we labor. 

One provision in the Florida law is the "safety device" provision found in section 440.09(5):

"If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee’s knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent." 

Thus, there may be financial penalties associated with the "knowing refusal" of either safety equipment or safety rules. There is that "brought prior to the accident to the employee's knowledge," clause that may make us think of a sign or pictogram that reminds and informs of "hardhat," "do not enter," or other rule. 

Obviously, there is a benefit to safety rules and to our awareness of safety. We are appropriately encouraged to take care and to be vigilant. If there is an accident, there are a variety of potential outcomes in the analysis of who will pay, but in the end, Someone has to Pay, whether that is financial or physical suffering. In American workers' compensation, it is not uncommon for a jurisdiction to assign fault for failure to comply with safety rules.

In the Canadian situation, there are those who will agree with Ms. Kosoian, and perhaps others will agree with the police. Some will argue that there is clear distinction between financial loss in a workers' compensation setting compared to criminal arrest ("by force") and prosecution. Some will see a distinction in that there was no injury to Ms. Kosoian. If her refusal had resulted in a fall, closure of the escalator to everyone's inconvenience, the summoning of a state-compensated ambulance, and expenditure of universal medicine benefits, would some feel differently? Or, might some insist simply a rule is a rule?

In time, we will learn how the Canadian Supreme Court sorts out these questions. Many will continue to be amazed that such an issue ever reached a country's highest court. But, regardless of the details and the outcome, we can all likely agree that preventing injury is a positive thing. And, whether we obey them or not, perhaps it is in all of our best interest to at least strive to notice those prolific safety warnings with which we are forced daily to co-exist?

 

Fundamental Right of Self-Determination

An opioid bill quietly made its way through the Florida legislature this year. House Bill 451 (HB451) passed on April 30, 2019, and was signed by the Governor on June 24. It adds a new subsection to section 456.44, Fla. Stat. regarding the prescribing of controlled substances. While there is often news in America regarding opioid constraints or complications, this law is about information and education. It became law on July 1, 2019.

Of course, for the sake of Statler and Waldorf, the subject of opioids is always of interest in workers' compensation. Reports in publications like the Insurance Journal, Business Insurance, and elsewhere provide overviews of opioid involvement in this particular community of injuries and illnesses. 

HB451 includes findings. In some, but not all legislation the Florida Legislature provides findings to express context for the law. It is a method of explaining why there is a perceived need for statutory action. The findings in HB451 are worth of note:

(1) every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to refuse an opioid drug.

By inference, there is likewise then a right to accept such a drug. In pursuit of more informed decisions in this regard, the Legislature instructed the Florida Department of Health to "develop and publish" an "educational pamphlet regarding the use of non-opioid  alternatives for the treatment of pain."

The purpose and point of HB451 is directed at affording the information and education a "competent adult" could use in making decisions about care and treatment. The law requires this pamphlet to include:

1. Information on available nonopioid alternatives for the  treatment of pain, including nonopioid medicinal drugs or drug  products and nonpharmacological therapies. 2. The advantages and disadvantages of the use of nonopioid alternatives. 

Most Florida medical providers must now "inform the patient of available nonopioid alternatives for the treatment of pain." These alternatives may include other "drugs or drug products," as well as:

"interventional procedures or treatments, acupuncture, chiropractic treatments, massage therapy, physical therapy, occupational therapy, or any other appropriate therapy as determined by the health care practitioner."

That last sentence is reasonably broad ("any other"). Whether any such procedures or treatments are efficacious for a particular patient will likely depend upon both the patient and the provider of that treatment. The Legislature is not mandating any particular modality or approach but requires that patients are afforded the opportunity to learn and then decide, in most settings. This is an empowering paradigm that will require collaboration between professionals and patients. 

The medical professional is required to "discuss the advantages and disadvantages of the use of nonopioid alternatives." The use of the word "discuss" is worthy of note. In It's About Communication (May 2017), this blog discusses the importance of interactive communication in litigation. The 60Q Rules require that, not a notification or directions, but a conferring. That is, a collaboration. 

If anything, such an interaction is more important in the analysis of a personal decision regarding medical care than it is in the legal practice paradigm. The new law requires a "discussion." This is not a place for a physician to merely hand someone a pamphlet or "fact sheet" that may or may not be read or understood. The conversation could include such a publication, but the professional shall "discuss" alternatives with the patient. Thus, the patient will presumably be engaged. There will be interaction, statements, responses, and questions. 

This should include subjects such as "whether the patient is at a  high risk of, or has a history of, controlled substance abuse or  misuse." It should include consideration of "the patient's personal preferences." And, it should include providing "the patient with the educational pamphlet" that is now required by law. Too often, we hear from patients that they do not perceive their medical care as being interactive. It may be that patients are under stress (fear, pain, etc.) and may tend not to recall interaction. But, it may also be that some medical providers are not interactive, patient, and conversational. 

Throughout, this post uses "most" professionals. It is noteworthy that the Legislature acknowledged that there will be settings in which such interaction and patient contemplation will be impractical. Therefore, if the physician is providing "emergency services and care," this educational interaction or conversation is not required. Similarly, the law does not impose this obligation on pharmacists (it plainly says "excluding those licensed under chapter 465"). 

Thus, in legislation and law, there is a Florida requirement now that alternatives are identified and discussed with the patient. The statutory recognition of "self-determination" is critical and praiseworthy. Patients need to be involved in the process of deciding what is best in terms of treatment and care. It is likewise appropriate that medical providers educate and assist patients as they navigate what might be a diverse and complex variety of options. The treatment of any condition will be more likely to succeed if it is a collaboration between patient and doctor with each contributing to the ultimate outcome.