Misrepresentation and Distinctions

The topic of misrepresentation is back this week. It is not new to this blog. Readers may recall Brock is gone, is Hector next, in the Florida Court, or the U.S. Supreme? Or, perhaps the musings a few years later in Kansas Cannot Prosecute Identity Theft. The fact is that misrepresentation is a recurring topic as the world of workers' compensation, and the larger world of employment struggles with the seemingly simple requirement of telling the truth. 

This week, the Florida First District Court rendered Hernandez v. Food Market Corp., Case No. 1D18-4406 (October 30, 2019). Certainly, this decision will be derided by some and praised by others. There is, after all, always room for some spirited debate and discussion. (Although some perceive spirited debate and even humor, or humorists, as under attack in modern America). 

In Hernandez, the injured worker at trial was denied "entitlement to any workers’ compensation benefits due to her fraudulent provision of an invalid social security number (SSN)." The injured worker sought review by the First District, which affirmed in a written opinion. The Court explained that the injured worker is "an illegal alien without a valid SSN." After an injury at work, she was referred for medical care, as is normal in workers' compensation claims. 

At the physician's office, she was asked to complete a variety of forms (we've all been there). One had a place for "an SSN" and "a statement that the 'claim could be denied if you do not provide the information.'” The injured worker therefore concluded that she might be denied care without such a number and so she "admitted that she entered an invalid SSN on the form." 

This misrepresentation implicated Section 440.09(4)(a), Florida Statutes. The law "prohibits an employee from receiving workers’ compensation benefits if he or she" makes "fraudulent, false, or misleading statements" of any kind “for the purpose of securing workers’ compensation benefits.” The Court affirmed the Judge of Compensation Claims' conclusion that is what the injured worker did in providing an admittedly false response on the physician's forms. 

The Court explained that the trial judge in such a situation faces a two-part analysis. First, the judge must decide "whether Claimant made or caused to be made false, fraudulent or misleading statements." The SSN provided was admittedly false, and thus it was appropriate to proceed to the second question: "whether the statement was intended by Claimant to be for the purpose of obtaining benefits.” (Citation omitted). The testimony established that the false information was inserted specifically because the worker sought care and believed it would be denied without such representation. 

The Claimant argued that the State of Florida cannot find misrepresentation in this context as state law is preempted by federal law. This was the argument appropriated by the Kansas Supreme Court in State v. Garcia, 401 P.3d 588 (Kan. 2017), discussed in Kansas Cannot Prosecute Identity Theft. The Court explained that the situations in Garcia and the cases that were cited therein are distinguishable from the facts in Hernandez. There, state laws made applying for work and stealing identity criminal for "illegal aliens." 

The Court explained that federal precedent holds “that any information employees submit (in the employment process) to indicate their work status ‘may not be used’ for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct.” As a result, state laws that prohibit fraud and deceit in obtaining employment seemingly cannot stand. States are apparently not permitted to prosecute fraud and deceit in this specific context because there is a federal law that prohibits that behavior, whether anyone in the federal government chooses to enforce those laws or not. 

However, in Hernandez, the Court noted that the injured worker did not prove that the false SSN provided to the medical provider "was ever previously provided" in the process of obtaining employment (where it is O.K., or at least ignored when misrepresentations are made). The SSN in Hernandez was provided in the process of seeking workers' compensation benefits. The Court rejected the worker's contention that such misrepresentation should nonetheless be ignored "because her provision of a false SSN 'implicates and touches upon her immigration status.'” This argument is essentially that any false statement that can be tied in any way to someone seeking employment should thereafter be immune from action under state law regardless of the context in which that misrepresentation is furthered or repeated. 

The Court reminded that Florida's workers' compensation laws apply to everyone equally (without specific mention of the Constitutional guarantees of "equal protection" found in the Fourteenth Amendment: "deny to any person within its jurisdiction the equal protection of the laws."). It is perhaps axiomatic that everyone should be treated equally under the law. However, there are those who perceive that the law periodically treats people differently. It appears that in Kansas it is permissible for the state to prosecute identity theft except when it is committed by those who have insulated themselves from state law by first appropriating those identities in the initial hiring process condoned by federal law. 

There is hope that the United States Supreme Court may eventually provide guidance to the states in this context. There is disagreement as to whether information provided in the employment process is thereby forever insulated from state law criminal penalty in its use, merely because it was also once used in the employment process. But, in Hernandez, the Court concluded that providing a false SSN was actionable under state law because the injured worker did not claim or prove that the "invalid SSN" she admittedly used "to obtain employment" was in fact the same false information she later used to obtain medical care for her injury. To create the protection of preemption, it seems, the key may be to prove consistency and pervasiveness in the misrepresentation. 

The Supreme Court of the United States (SCOTUS) may ultimately adopt the broadest interpretation of the preemption argument: that submission of misrepresentation in the employment process immunizes any future use of those same misrepresentations from state law prosecution. That is essentially what Kansas' court concluded. SCOTUS may ultimately agree with the Kansas Supreme Court that states cannot criminalize identity theft by undocumented aliens as they do for American citizens and legal immigrants. However, the Hernandez court concluded that for such subsequent misrepresentations to be shielded by preemption, there must be evidence that ties them to previous misrepresentations in the employment process.

Judges Should Follow Instructions

The Alabama Court of Civil Appeals rendered a decision in September 2018 that is instructive and interesting. It was the second appellate decision of three in City of Gadsden v. Billingsly, (CV-10-900283.80); the third appellate decision in that case is discussed in Death Changes Authority. That discussion of the nature of contractual relationships and agency is an important read for those who must deal with the unfortunate passing of a client.

In the second appellate action in September 2018, the focus of the Court's analysis is instead upon following directions. That is sometimes an issue in litigation, not because parties are recalcitrant or obsequious, but because the very nature of legal practice is time-consuming and complex. It is too often viewed in retrospect (and clarity is so much easier in hindsight). Advocates are intent on striving for their clients. Judges are focused on doing what is right under the law. 

The accident in this case was not apparently unlike so many in workers' compensation. There was a traumatic event (car accident), allegations of multiple injuries, and litigation regarding the relationship of these complaints to the accident. Ultimately, the trial judge determined "that the left shoulder claim only arises out of [the employee's] employment." Based upon that conclusion, the injured worker was "awarded benefits based upon a 25% impairment rating to that shoulder." Conversely, the judge denied the relationship and compensability of other injuries.

In the first appeal following that decision, the employee argued that the trial judge erred in rejecting the other (non-shoulder) injury allegations and that the award of benefits using that impairment rating was improper. The Appellate Court affirmed the rejection of other injuries, concluding that competent evidence supported that conclusion. It bears persistent reiteration that appellate courts do not reweigh the evidence or decide whether other conclusions are likewise supported. The appellate process instead centers on whether there is competent evidence that supports the conclusions and decisions of the trial court. In this instance, the appellate court concluded there was such evidence, and so it denied the portion of the appeal seeking a different factual conclusion. 

However, the Appellate Court agreed with the injured worker on a second point, that the "left-shoulder injury was not an injury to a scheduled member under the Act." Some workers' compensation systems provide payment for permanent injury using a schedule that is founded upon specific portions of the body, and loss or functional limitation to those specific portions. The Appellate Court concluded in the first appeal that this injured worker's compensation should be "based on the employee's loss of ability to earn and not her physical-impairment rating." This is a distinction between "impairment" and "disability," two terms that are often confused. On that basis, therefore, the case was sent back to the trial court for re-determination of the appropriate permanent indemnity benefits on that "disability" standard.

On remand, acting on the Appellate Court's instructions, the trial court "conducted a 'scheduling conference.'" It is noteworthy that the court apparently held no new hearing (new evidence or argument). The trial court then ordered each party to submit a "proposed order" for the court to consider. The Appellate Court noted that one party timely did so thereafter, and the other apparently did not. The trial court then weeks later entered a second order again telling the parties to "prepare and to file electronically a proposed order or judgment." It is possible that the delay resulted in the case being less than fresh on the trial judge's mind when it was finally decided the second time. 

After the second order requiring proposed orders, the employer submitted a proposed order that reiterated the "previous determination" of the trial court, which had been affirmed by the Appellate Court regarding the singular relationship of the shoulder. That proposed order suggested findings about the employee's "age, educational background, work experience, medical situation, pain complaints, and hiring bias," and proposed a conclusion regarding the resulting "loss in her ability to earn income."

The employee submitted a proposed order that "suggested determinations" regarding the effects of more than the shoulder injury. This order essentially re-opened or reconsidered the prior conclusions of only the shoulder being compensable. Upon the combination of multiple injuries and complaints detailed therein, the employee's order suggested the conclusion of a loss of "100% of her ability to earn a living." Shortly thereafter, the trial court entered an order ("judgment") that essentially followed the employee's proposed order.

The employer appealed (the second review) and the Appellate Court agreed that the judgment did not "conform to the mandate" the Appellate Court had issued.  The mandate is the instruction of an appellate court. This Court had spoken, affirming the conclusion that only the shoulder was related. The trial court, on remand, essentially revisited its earlier conclusion of only the shoulder, and its order on remand listed multiple conditions. One hopes that if the judge had drafted this judgment, instead of one of the lawyers, the decision would have been both more concise and clear. 

The Appellate Court concluded that by ignoring its affirmation of the shoulder-only decision, and by ignoring the specific instructions of what the trial court was to do on remand, the trial court overstepped its bounds. Remand, it reminded, is "for proceedings not inconsistent with" the holding of the Appellate Court. The Court reminded that "when a case is remanded to a trial court after a decision on appeal, 'issues decided by the appellate court become law of the case and the trial court's duty is to comply with the appellate mandate...."' (Citations omitted). The "trial court is not free to reconsider issues finally decided in the mandate." In short, the trial judge is to do as the appellate court instructs. 

The trial court should have simply made "a determination of 'the extent, if any, to which the employee's left-shoulder injury has affected her ability to earn income,'" as that was the instruction from the Appellate Court. That the employee contends the trial court's earlier "shoulder-only" determination was error does not change that determination or the fact that it was affirmed previously by the Appellate Court. Certainly, a judge might be merely striving to do the right thing in such a setting, and might be sincerely convinced of her/his prior findings being error, but would still be wrong to ignore the instructions of the Appellate Court. 

Upon that conclusion, the Appellate Court remanded again, with instructions that the trial court (1) "reinstate its previous judgment . . . except" as to the calculations "based solely upon the 25% physical-impairment rating." The Court instructed that "as to that issue alone, the trial court, based upon the existing record in the case, is to make findings of fact and state conclusions of law" in awarding permanent benefits. Thus, the instruction is specific, there would be no further evidence adduced. 

It would be interesting to know how the trial court would have approached the substance of that analysis, whether that third pitch would have been a home run or dribbling foul. But, alas, that was not meant to be and the case soon met its unfortunate procedural end otherwise, see Death Changes Authority.

To Be or Not to Be (Present)

The Tennessee Workers' Compensation Appeals Board rendered an interesting decision on October 11, 2019, in Caldwell v. Federal Mogul Motorsports, Docket No. 2019-04-0074. Scholars and litigants may find interest in the case timing, the procedure, and the ultimate outcome. The order initially appealed was entered on May 3, 2019, although there was further argument on June 10, 2019 (and another order, adding to the analysis and interest). With the decision on October 11, 2019, the Tennessee appellate process required a mere 123 days after that final argument. That is notably fast.

The case was "interlocutory," meaning that the trial has not concluded. The trial judge made procedural decisions about the case which the employer contended needed to be reviewed immediately rather than awaiting a final adjudication of the case. Appellate judges and courts do not favor this kind of review because it is more efficient for appellate review to occur just once after an entire case has been tried to completion and a final adjudication entered. At that time, each and every alleged error can be considered at one time, rather than piecemeal as they occur. Thus, while interlocutory review occurs, it is not common.

In Caldwell, the facts are similar to a multitude of workers' compensation cases across the country. An employee was working normally, experienced a physical complaint, was seen by a physician, diagnosed, and had surgery recommended. The employer/carrier did not accept the conclusions of the surgeon involved and therefore exercised its right to have the employee's condition reviewed by another physician. In Tennessee, this is referred to simply as a "medical evaluation," and the statutory authority is Tenn. Code Ann. section 50-6-204(d). In Florida, we would call this exam an "independent medical examination." See section 440.13(1)(i) and (5), Florida Statutes. 

Despite being informed of this evaluation, the employee repeatedly refused to attend. Eventually, the employer/carrier sought relief from the workers' compensation court (when Tennessee removed workers' compensation litigation from its courts of general jurisdiction just a few years ago, it created an administrative system for adjudications similar to many other states. However, it specifically labelled its workers' compensation judges a "court"). That is a distinction from Florida, in which the Judges of Compensation Claims are clearly "not a court of this State," Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004).

The workers' compensation judge concluded that the employee must attend the statutory medical evaluation sought by the employer. The judge denied the employee's request to have the examination video-recorded, concluding that it "would be beyond the statute's scope." However, the judge noted the Tennessee statute allows a treating physician to be "present" at such exams, and ordered that the employee's treating physician could "'attend' the examination by video-conference," which the judge concluded was "a 'reasonable compromise." The order noted that such a methodology would be "simple, cheap, reliable, and available to everyone." 

The Caldwell opinion is intriguing procedurally for two reasons. First in its discussion of the timeliness of the notice of appeal. The appellate Board concluded that the employer could not appeal the original order entered May 3, 2019, as it did not file a notice of appeal thereafter within the 7 business days afforded, instead asking the trial court to reconsider its initial ruling (note in Florida 30 days is allowed for a notice of appeal). The Board explained that a party might file a timely notice and yet pursue other issues with the trial court. In such a setting, the appellate deadlines might be extended by those further issues. However, the Board reiterated, that depends nonetheless upon the filing of a timely notice of appeal. As none was filed here, the Board concluded it could not review the May 3, 2019 order.

However, the Board concluded that the appeal was filed timely following the June 10, 2019 order, which was predicated on further argument and facts. The Board noted that to allow the employer to appeal the May order, in this factual setting, would allow "a party to subvert the interlocutory appeal  deadline by filing a motion to amend . . . after the expiration of that deadline." In essence, however, some will likely conclude that actually occurred in this case nonetheless. However, that outcome is only because the trial court heard the reconsideration motion and then entered the June order that was ultimately reviewed. Had the trial judge declined to reconsider the May decision, it is possible the Board would have simply concluded it lacked jurisdiction and the trial judge's decision would have remained the law of this case. 

Notably, the Tennessee Board reminded that interlocutory orders are subject to change in any case. It noted that such an order can be "amended, modified, or otherwise revised at any time prior to the issuance of a compensation order." That has been the subject of this blog. See If it is Moot What Does it Matter, and When there is a Different Judge. Often, I am surprised by lawyers overlooking this character of procedural orders.

Another interesting procedural point in this case is the circumstance of the June reconsideration. The trial judge's staff contacted the parties on June 10, 2019, and "requested a teleconference." Scheduling conflicts led to that conference happening the same day. Note the parties had hours of notice, not days. When the employer realized that a decision would be made, that is that the "teleconference" was in fact a "hearing," the employer objected. It asked to have a court reporter present, which was denied. The trial court's recording system was also inoperable. Thus, no record of those proceedings was made. Notice is an essential element of due process. However, when complaining of process a party needs to be able to both describe and substantiate actual harm. See Substitute Judge and The Rule" and other Lessons from Texas.

The Tennessee Board essentially concluded that there was no evidence presented at that unrecorded hearing, but only argument. It explained that to prevail on the point of no recording, the employer "must show that the trial court's decision to hear arguments" without a record was an "abuse of discretion." Or, that the decision to proceed without a record was "against logic and reasoning that caused an injustice." The Board concluded that statutory authority in Tennessee specifically gives the trial judge discretion regarding whether to conduct hearings at all (the judge could have made the decision based on the filings submitted, which is the normal process for motions in Florida). And, the Board concluded that the error of proceeding without a record was "harmless under the circumstances."

As an aside, I advocate for recorded interactions and clarity of purpose. If a decision is to result from any gathering, that should be both labeled and noticed as a "hearing." A "conference" is of little use, should not result in a ruling, and should therefore be rare. Any interaction on a case, before me, will be "on the record." There is no expense to engaging the recording system Florida uses. The purpose of this system is to afford Floridians due process, and a recording of any hearing or conference is integral to that service. 

Turning to the substantive matter, the Board reversed the order requiring that the examination be "video-conferenced." It perceived a variety of potential complications with the procedure. However, its decision was predicated primarily upon the plain language of the examination statute. That provision says an employee must attend such an examination and that the employee has "the right to have the employee's own physician present at the examinations." While the debate as to who may be at such examinations across America is seemingly a modern one, the Board noted this attendance language has persisted in the Tennessee statute since it was enacted; coincidentally that was 100 years ago.

Following the plain meaning of the statute, the Board concluded that "present" does not mean by videoconference. It said that "no reasonable interpretation of the phrase 'present at the examination' would include "an individual's electronic observation." The Board stressed that in interpreting "words in a statute," the interpreter (Board or court) "must 'avoid a construction that unduly restricts or expands the meaning of the language used.'" To interpret "present" to include video-presence would, according to the Board's analysis, expand the meaning of "present." The Board specifically noted that when the statute was written there was no such thing as video conferencing.

Having thus concluded that the video-presence order was inappropriate legally, the Board also noted logistical issues in support of its decision. It took issue with the trial judge's decision that such technology is "simple, cheap, reliable, and available to everyone." The Board noted limitations with cellular "service," Internet "connections," transmission "security," and user sophistication. The Board noted complications with who would provide the camera "device," who would ensure the transmission was viewed only by the treating physician, whether the video would include more than the physical examination (patient intake, interaction with examiner's staff, etc.), whether the viewing physician could direct the camera operator's focus and direction, who would rectify technological issues that might arise, and more.

Reading the Board's questions regarding logistics reminded me of an episode in a recently popular sitcom The Big Bang Theory. Therein, one of the characters conceives of a substitute for travel, sending instead a motorized cart (over which he has hung a familiar t-shirt), upon which he has mounted an iPad. With this rudimentary remote control, the character interacts with multiple individuals on the show. Would such a device remedy the Board's logistical concerns? Would such a device of the physician's choosing, of the physician's operation, at the sole propriety and risk of the physician be sufficient to answer those concerns? Or, is the electronic presence itself the real issue? It is notable that the logistic concerns of the Board were raised in addition to the gravamen of its decision, that is, the plain language of the statute and the word present.

Photo courtesy of City-Data.com

Thus, despite the character of the technology proposed, the decision of the Board would likely not change if such a device were employed. The decision, or "holding" in Caldwell is predicated upon the meaning of the words in the statute, and the construction of following those plain words. The decision is based upon not expanding the meaning of the word "present." Thus, answering the logistical questions raised is not likely to change the outcome. However, the continuing march of technological innovation and imagination could perhaps lead eventually to robots or similar remote control drones being interestingly engaged in our workers' compensation community. Does anyone remember Bruce Willis in Surrogates?

There is always the potential for legislative change to enable technology further. As the Board noted, the language in the statute is controlling. That language can be easily changed by the legislature to enable the use of technology if it chooses. But, until then, in Tennessee to be "present" you have to be there. An intriguing decision for various reasons, Caldwell is recommended reading. 

When I was Stronger

Rod Stewart sang Ooh La La back in 1973. I heard the song back then, but unfortunately was also convinced back then that I knew everything already. Didn't we all? The lyrics of the song include:

"I wish that I knew what I know now, When I was younger.I wish that I knew what I know now, When I was stronger."

The lyrics resonated with me recently as I engaged in a conversation with a workers' compensation legend who is several years my senior. I was struck by various points made in the conversation. Some thoughts expressed perceptions of success in the world of workers' compensation, while others lamented failures or shortcomings more generally over a long career. In some ways, the discussion left me with an impression of "these kids today," but did not rise to a "get off my lawn" level. Perhaps it is as natural to doubt the next generation as it is to doubt the last one? 

I have reflected on that conversation repeatedly in recent weeks. I have struggled with the conflict between our individual growth, our individual grasp of history (that which we lived and that which we learned, or failed to), and the inescapable evolution or change of the world around us (some of which we notice and some of which we miss). Without a doubt, the world is changing around us daily. Today, every school student carries a computer around to game and text. Those smartphones are vastly more powerful than the computers NASA used to place humans in orbit and on the moon. But news this week is that scientists have just made the next (literally) quantum leap. The new Google computer will supposedly do in seconds what would take our current "supercomputers" years. 

This recent conversation raised issues of history. What if we had known what we know now in 1991 when the "sharp increase in the prescribing of opioid and opioid-combination medications for the treatment of pain" began? What if we had known in 1979 the significant factual evidence challenges that would present in litigating "wage loss" benefit claims? What if we had known what we know now regarding various medical innovations over the years that proved less than effective, and in some instances downright injurious? What if we had known? What if?

If the implications of actions could be clearly discerned by foresight, could we make better, or at least better-informed, decisions? It is arguably so. But, in reality, we instead make the best decisions we can based on the information that we have and our best predictions of the probable outcomes upon which we have settled. We listen to experts, their opinions, their prognostications, their best guesses, and their arguments. And, through the course we thus chart, we will eventually find ourselves at a destination of our own direction. While that may be influenced over time by happenstance and our fellow travelers, we nonetheless each have influence in charting our course. 

That was a significant part of the retrospective of this workers' compensation legend. There was recognition that becoming involved in workers' compensation was largely happenstance. The field of workers' compensation had not been a life-long dream that inspired the legend's path to law school (was it for any of us?). The happenstance of employment at various firms, departures of attorneys in firms, and the resulting acquisition of workers' compensation responsibilities were described. The variations in this legend's home state workers' compensations statute, and the resulting demands on the practice, particular firms, and clients influenced this legend's path through, and dedication to, workers' compensation over a career. 

"I wish that I knew what I know now, When I was younger."

The conversation included multiple "if I had known" references. There were "I wonder if I had _______ instead" mentions. There were expressions as to whether young lawyers today are interested in workers' compensation, are drawn to the practice, or are really any different from this Legend in the resulting drift or draw into a career so focused upon this narrow little corner of the law. The Legend asked a question that was significantly the same as Rod Stewart's suggestion; if I could go back and rechart the course of a long career, would I?

This is likely not a productive reflection for any of us who are long in the tooth (old). We cannot go back, and that mental exercise therefore will not aid us. Would our reflection aid anyone? Is there value in our advice to those who are young in this community of workers' compensation? Could we provide foundation or solace to those who today find themselves postured in either the beginning of a long path or perceive themselves as temporarily detoured into workers' compensation as they strive to regain some other path? Or, would our advice today lack relevance due to our inherent inability to predict where the next thirty years will take us?

The mention of advice reminded me of a line from "The Sunscreen Song," by Baz Luhrmann:

"Advice is a form of nostalgiadispensing it is a way of fishing the past from the disposal, wiping it offpainting over the ugly parts and recycling it for more than it's worth"

Through this long conversation, I discerned much about how a career path in workers' compensation might be viewed in retrospect. This legend had regrets, reservations, and cautions. But, overall, the sentiment was one of gratefulness for the intellectual challenges and community spirit of this practice over decades. Notably, the practice today is not what it once was in the legend's perspective ("these kids today"), but the retrospection was still overall positive. 

As I have reflected, I wonder whether the legend was merely reminiscing, or whether she/he perceived me as one of "these kids." I question whether we were peers sharing retrospect and reflection, or whether this legend was really trying to tell me what my next (last) twenty years in this industry may bring in terms of perspective, experience, and thoughts. I have elected to take the conversation as some of both. And, I write today to note the power of advice and reflection of others. 

I appreciate the nostalgia and the advice. I accept that today I clearly do not know it all, and that I must continue to learn and grow daily. I realize that in the 2030s I could still be round this industry and community. I may very well say then, I wish I had known back in 2019 what I know now. But, the simple lesson from my great conversation with this legend is that my only hope is to try, knowing that in the end I will get much wrong, make multiple mistakes, and fail to even see some things coming. In the end, looking back, perhaps that is what makes it interesting, and worth living through to begin with? 

That little trip down memory lane was positive for me. I can only hope that legend realizes how much. I think Baz got this bit wrong,  you cannot "recycle it for more than it is worth," because that advice and retrospection by our peers and elders is simply priceless (even when we do not pause to ponder what they say and relish in the value). What are you doing today for the next generation in this practice, industry, and community?

Death Changes Authority

There is a basic truth to the law: only people who are alive can participate in the legal system. That seems axiomatic perhaps, but similarly only people that are alive can enter into contracts. That said, the "people" do not have to be breathing people, they can be "fictitious" persons such as corporations and similar entities. However, those entities likewise must be in existence to enter contracts and participate in litigation. Furthermore, those fictitious entities must act through agents to make contracts or participate in legal proceedings. 

A recent news story (subscription) directed me to a decision by the Alabama Court of Civil Appeals, City of Gadsdenv.Lillie Billingsley, (CV-10-900283.80); December 21, 2018. The Court's decision is interesting for several reasons, but this post is focused on death and the disability that results.

The litigation in the underlying case began with a 2008 motor vehicle accident. Two years later, a workers' compensation claim was filed in civil court. Alabama is the only state in the country that has not adopted an administrative workers' compensation process. In Alabama workers' compensation cases are managed and adjudicated alongside other civil claims for tort, contract, dissolution of marriage, probate, and more.

The litigation took substantial time. It traveled from the trial court to the appellate court in 2015 and was remanded to the trial court for further proceedings. A remand is merely an instruction from the appellate court that the trial judge should take further (different) action, from some specific discreet thing to perhaps retrying the case. In this instance, the trial judge thereafter entered a May 17, 2018 judgment in the case. Counsel for the employer filed a second appeal to the Alabama Court of Civil Appeals. The Court reversed the trial court and remanded once again.

Thus, on the third try, the trial court undertook further proceedings, and a "status conference" was held. There, the injured worker's attorney "acknowledged in open court that the employee had died in January 2019 from causes unrelated to her work-related accident." Thereafter, the attorney "filed a 'suggestion of death,'" formalizing notice to the trial court that the injured worker was no longer living.

The Employer in the case responded then, and "moved to dismiss the employee's claim," asserting that her entitlement to benefits "had terminated upon her death." The trial judge agreed, granted the motion, and dismissed the case. The attorney for the injured worker filed documents to seek clarification from the trial court and then filed "a notice of appeal from the judgment in the employer's favor." Notably, the attorney named "the employee as the sole appellant."

The Appellate Court on its third consideration of the case noted the substantive arguments raised regarding the trial court's conclusions. It elected, however, "not (to) reach the merits of those arguments." The Court concluded instead that it did not have jurisdiction over the case. Following Alabama Supreme Court precedent, the Court explained that the appeal is "a nullity." There is no appeal, it explained, because "the appellant was deceased when the notice of appeal was filed." Therefore, the jurisdiction of the Court was not invoked by filing the notice of appeal. The appeal could only be filed by, or on behalf of, a living person or fictitious entity.

There certainly was a contract between the injured worker and the attorney who filed the appeal. However, "an attorney's authority to act on behalf of a client ceases on the death of that client." This is consistent with the concept of agency generally. If a person delegates authority to someone to act on their behalf, that delegation cannot continue if the person delegating ceases to be. The attorney, as agent, acts on behalf of and at the direction of the principal, the person. When the person ceases, the agency and authority likewise cease. The Court concluded that the client's death, the absence of a living client, was a "radical defect," fatal to the appeal.

It is worth reiterating that this appeal named "the employee as the sole appellant." Could the employee's estate have a claim for past benefits? Certainly. But, in that instance, the estate would have to exist and that estate would have to be the party filing the appeal (or at least be one of them). To do so, the estate would act through an agent, such as an executor or an attorney. The estate would contract for such representation, not the deceased person.

Reading the case, I was reminded of a situation years ago in which an accident occurred that resulted in persistent loss of consciousness and hospitalization. Medical professionals encounter those circumstances periodically, a patient that cannot interact or provide information. And, the patient cannot enter a contract with a lawyer to represent the patient's interests. In that setting, it is common for family to step into the void and provide information and history for the medical professionals. 

The family member(s) might similarly retain an attorney. But, can that attorney represent the interests of the patient, without the patient's consent and agreement? Or, is the attorney limited to advising the family member(s) that formed that contract of representation? In the case of the unconscious patient I recall, there was no family member. The patient was an adult male who lacked parents, siblings, or children. The only person presenting at the hospital was a girlfriend. Fortunately for the patient, a girlfriend with extensive knowledge of the patient's family medical history and past complaints/care. But, unfortunately, not a family member.

But, despite being able to provide medical information for the patient, the girlfriend was not legally able to consent or object to care. She could not hire an attorney to represent the injured worker in seeking care or other workers' compensation benefits. An attorney, to represent a person, must have a contract with the person. Certainly, in such a situation a Court could grant the girlfriend or other person the authority of guardian. As a guardian, the girlfriend or other person might then make decisions, pursue benefits on the patient's behalf, or otherwise act. However, the Florida Office of Judges of Compensation Claims is not a Court and could not grant such authority to a person to act as guardian. Such a situation can thus be complicated. 

In the Alabama example, the immediate question involves the survival of benefits and entitlement after death. If benefit entitlement continues following death, it is possible that a "personal representative" could continue to seek those benefits on behalf of the estate of the deceased worker. In that setting, the live representative pursues the relief on behalf of the deceased, and essentially her or his heirs. The "party" to the case, the lawyer's "client" is the representative, not the deceased employee. 

Additionally, there is the potential that other living people may have the right to pursue benefits, despite the employee's death. If children, spouse, or others are afforded individual rights to benefits under a state's workers' compensation law (death or survivor benefits), those living relatives might well be allowed to pursue those benefits despite the worker's death.

However, those individuals, or "parties," would only be represented by the attorney for the worker if those parties formed their own contract(s) with that attorney. The attorney's authority to represent the worker stems from the contract between them. That authority does not ipso facto grant the attorney authority to represent other parties such as spouse or children survivors. Those parties are free to hire their own attorney(s).

The lesson, in the end, is that death is final. It terminates the ability to proceed with litigation, enter contracts, and more. When a client dies, it is incumbent upon the attorney to consider whether the estate can and should proceed. But before proceeding, it is incumbent on the attorney to contract legally to do so, with the estate, executor, etc. Similarly, if a person is incapacitated, she or he cannot contract with an attorney or otherwise. An attorney acting at the behest of a family member or others (girlfriend) must be granted authority to act. That means some official designation of authority by a competent court or other authority. While that is complex and potentially expensive, it is the only way forward.

This adds a layer to an already difficult time. Death of a loved one is never easy and often life-changing. In that emotional time, following the letter of the law, observing technicalities, and maintaining formalities will be difficult. However, failure to do so may end in a dismissal of legal proceedings as described in this Alabama case. Such dismissal may be to the detriment of both the worker and her/his family and survivors. Failure to follow technicalities may lead to disappointment and even recrimination.

Costs, Good Faith, and Chilling Effect

The Florida First District Court of Appeal recently affirmed the imposition of prevailing party costs in Coto v. Univision Sentry Casualty Company, 1D19-533, September 25, 2019. The decision was a per curium affirmance, that has no published opinion of the Court. Essentially, a per curium decision merely affirms the decision of the trial judge. It is a "written disposition," but provides little in terms of guidance for either the parties to the particular case or litigants in any future case. The propensity for per curium affirmance was recently discussed in The Volume of Appellate Litigation. Essentially, about 58% of workers' compensation appeals result in disposition by opinion, and 78% of those are by per curium disposition.

Occasionally, however, a District Judge will provide some insight into a decision by writing a special concurrence that accompanies the decision. That is the case with Coto. It is a comment or exposition by that judge, explaining the judge's reasoning or thoughts. It is not an opinion of the Court. This concurring opinion focuses upon the conclusion that the award of costs is not discretionary with the trial judge and echoes an earlier policy statement by the court urging legislative intervention to amend the workers' compensation law. 

The concurrence notes that the injured worker filed a petition seeking "alternative" treatment. This is common in workers' compensation in Florida. An injured worker might seek therapy or surgery, temporary total disability or temporary partial disability, or any number of other combinations. In this instance, the injured worker "sought platelet-rich plasma (PRP) injections or, alternatively, additional surgery." When the employer provided the PRP injections, the injured worker "immediately dismissed his petition for benefits seeking the additional surgery."

As is not uncommon, that "additional surgery" eventually also became necessary, and was provided. In the world of medical care, it is not uncommon for physicians to strive for remediation of functional deficits through a series of treatments. Often treatments are attempted serially, in hopes of providing relief and restoration. It is not uncommon for that care to progress from less invasive and involved to more complex, such as surgery. In some instances surgery is seen as a last resort, to engage only if the less invasive are unsuccessful or provide incomplete results. 

Thus, Mr. Coto eventually received that surgery that was once claimed but the petition for which was previously dismissed. The concurring judge concluded that the injured worker "appears to have acted in good faith throughout the process." However, because the petition for surgery was dismissed, the employer was the prevailing party on that claim. As a result, the injured worker "was nonetheless assessed $1,074.34 in costs." 

The concurrence noted that the law in Florida is that such costs "under these types of circumstances," are "mandatory." This is true, according to the opinion "even if manifestly unfair to the claimant." The concurrence cites Frederick v. Monroe Cty. Sch. Bd., 99 So. 3d 983, 984 (Fla. 1st DCA 2012), in which the Court concluded that the cost statute "imposes a chilling effect on future employees with meritorious claims.” The conclusion is that injured workers might avoid seeking various alternative benefits out of fear of such potential for costs. 

The concurrence concludes, as a matter of policy, that "imposition of costs makes little sense and operates as a deterrent to those seeking benefits in good faith." Therefore, the concurrence reiterates "the recommendation of the panel in Frederick 'that the Legislature consider whether an employee who files a petition for benefits in good faith should be subject to the imposition of costs.'” 

The authority for imposition of such costs is in section 440.34(3), Florida Statues: 

"(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees." 

The costs are thus seemingly associated with the invocation of the jurisdiction of this Office. The operation of that section appears tied to "proceedings before a judge," and not necessarily to any and all requests made to an employer by an injured worker. The invocation of the jurisdiction of a judge of compensation claims is most often through the filing of a petition for benefits, which is delineated in section 440.192, Florida Statutes. This provides: 

"(3) A petition for benefits may contain a claim for past benefits and continuing benefits in any benefit category, but is limited to those in default and ripe, due, and owing on the date the petition is filed." 

There will be those who may view the argument regarding costs as one of ripeness. That is, can both alternative treatments be "ripe, due, and owing" simultaneously. Or, definitionally, does alternative pleading itself suggest some potential for one alternative benefit sought lacking ripeness? Or, perhaps lacking the degree of ripeness that another might have? 

There are, of course, alternatives for the injured worker. One might file a petition seeking one modality, such as PRP injections. It is likely that, if that benefit is denied, one or more physicians may be deposed regarding medical opinions of medical necessity, reasonableness, etc. In such deposition(s), a physician could also be asked about the potential for surgery: "Assuming that the PRP is not successful in alleviating symptoms, would additional surgery be appropriate?"

It is possible, also, that care such as PRP injections might be of a value less than $5,000. Thus, it would be presumed appropriate for handling under section 440.25(4)(h), the "expedited hearing" section. If so, the claim could be heard quickly, without mandatory state mediation. Certainly, the statute provides for hearings in this context to be brief, but also for the liberal construction of evidentiary rules "in favor of allowing" introduction of evidence. Thus, in the time it takes for mediation to occur as regards most petitions, the parties might discover and try an issue of non-surgical care. If that resulted in attempting such care, then the patient might file a second petition seeking the next alternative, such as "additional surgery."

The law includes absolutes for both employees and employers. While the concurring opinion is focused upon good faith and actively advocating for legislative change, the practitioners of workers' compensation will perhaps instead focus on the day-to-day of workers' compensation. They will live with the requirements of ripeness and the potential for costs described by law. They may be wary of pleading in the alternative for anything that is an "or." That may lead to some delay in obtaining the ultimate resolution or care, which would be unfortunate for both the employee desiring recovery and the employer eager to have the employee return to work. Possibly, the engagement of the expedited hearing process might ameliorate some of that potential delay.

A Bit of Thanks, and Encouragement

In September, Bob Wilson penned a public thank you note on his Cluttered Desk. It was a mixed message, with some subtle undertone that I write today to magnify. First, I want to acknowledge Workerscompensation.com for its efforts as regards our workers' compensation community. There are a variety of people who earn a living from this community, and they each contribute in some manner to our overall success. But, it is admirable when an effort is made to recognize those striving to improve the community. The Workerscompensation.com Best Blogs program does that. 

In the interest of full disclosure, this blog wears the Best Blog badge, having been recognized each of the last four years. It is frankly humbling to be nominated. Having been named repeatedly is an affirmation as are the periodic emails, conversations, and comments that these posts instigate. I am grateful that some find value in these pages periodically. There have been occasions upon which I have considered sunsetting this effort, such as when it recently, quietly, eclipsed the 1,000 post mark. But, the news in this community interests me, motivates me, and for now, this continues. 

The Wilson post is somewhat focused on his Cluttered Desk being once again named. In four iterations of the program, his blog has likewise been recognized each time. But, the subtle undertone is that Workerscompensation.com does not judge the posts. As Mr. Wilson noted there are "independent judges." And, it should be appreciated that those people volunteer to read and evaluate these efforts. While Mr. Wilson's post does not name those volunteers, the Best Blogs website does. They are: 

Pamela F. Ferrandino, Vice President of Business Development, Gallagher Bassett; Jonathan Mast, Director of Social Media, Sedgwick; Mark Walls, Vice President Communications & Strategic Analysis, Safety National; Thomas A. Robinson, Co-author - Larson’s Workers’ Compensation Law; Mark Pew, Senior Vice President, PRIUM; Sandy Blunt, Vice President of Insurance Services, Medata. What these folks have in common is simple, they are each leaders in this community. Some are also bloggers. Each is engaged in what the workers' compensation community is all about. They should be recognized and noticed for their contribution through what is otherwise undoubtedly a thankless job. 

The next subtlety that bears mentioning is Mr. Wilson's mention of the nomination process. This is not a new topic. I have repeatedly encouraged members of this community to nominate their peers and inspirations for a Comp Laude awards. It takes mere minutes to let someone know you have noticed their contribution, spirit, attitude, or skill. And, that is true of Best Blogs also. A blog cannot win if it is not nominated. When you read something useful, informative, or simply admirable for its effort, why not make a note and then make a nomination when the time comes? 

The final subtlety in Mr. Wilson's post comes in the closing paragraph. There, after he has lamented the struggle to get this community to make nominations, he closes with a request that you take the time "to nominate those blogs you like." Not so subtle. But, he leads that phrase with a less noticed "if we do this again . . ." There is a suggestion there that perhaps the Best Blogs recognition has reached its nadir. Perhaps the end is near? Should it be? Is there room in a community this large to recognize what is being done around us? 

Whether I read too much into the word choice is unclear. But, it appears to me that this community needs to acknowledge the value of recognizing contribution and cooperation. There are precious few that are making it a point to recognize this community. There is room for Best Blogs, CompLaude, and more. But, whether those efforts are fruitful depends entirely upon you. They depend on you finding value in making this community self-critical as well as self-congratulatory. 

I will not add to my entreaty that you take the time to make nominations in these settings. But, I will suggest in the broadest context that you each need to take time to pass a positive word when you can. When you perceive some community member contributing, say something. Compliment an effort, a gesture, a participation. Community thrives on communication. And, this community is no different. 

We are engaged in a monumental challenge, one which seeks to ameliorate the effects of illness and injury to those who are the very lifeblood of this nation. This is a process that seeks to serve America's employees and employers with balance, compromise, and clarity. Our challenges are huge, our resources limited, and our friends too few. If you have not yet figured out that we all need each other to champion workers' compensation, take it from me on faith. We need each other, and we need to encourage, respect, recognize, and uplift each other when possible. 

I am grateful to whoever nominated this blog over recent years. I am grateful for the judges who volunteered to do the hard work involved with the Best Blogs. I am grateful that workerscompensation.com invests the resources to privately produce the recognition. But, more I am grateful that you took the time to read this. Know you are appreciated.

Put it Out of Your Mind?

I recently read an intriguing decision of the Kentucky Workers' Compensation Board from November 1996. Kentucky's Board is an administrative appellate panel. A litigant disappointed in a judicial workers' compensation determination may appeal to the Board. If the dissatisfaction thereafter remains, an appeal may be sought thereafter from a constitutional court.

In this decision, Brock v. Westview Nursing Home, an injured worker named Brock was disappointed by the decision of an ALJ dismissing her claims. The Board began its analysis noting that it had previously (August 1996) reviewed the same case. It is a noteworthy aside to remind the reader that workers' compensation is prone to involve serial litigation regarding various issues. It distinguishes workers' compensation from the singular finality of a jury trial in civil court.

In Brock, the injured worker had alleged injuries "when she was kicked by a patient." The path from workers' compensation claim to adjudication is not always as swift as one might wish. The parties conducted discovery and presented their proof at a hearing. However, "prior to the rendition of the decision," the presiding Administrative Law Judge (ALJ) resigned and a new ALJ was appointed. Presumably working from the record, the new ALJ then "rendered a decision in this matter in which he concluded (Ms.) Brock had failed to sustain her burden of proof." 

The Board noted that it was then called upon to determine "whether . . . the ALJ abused his discretion or clearly exercised an unwarranted level of discretion" in reaching this decision. It said that "subsumed therein is a question of judicial misconduct." The focus of the Board was upon "the ALJ's participation or remarks" and whether the ALJ "overstepped the bounds of propriety, thus creating the impression that the parties were deprived of a fair trial." 

It is at this stage of the Board's decision that the reader is likely to ask what the ALJ's alleged transgression was. The Board heightens the reader's curiosity by concluding that in this instance the decision must be "reversed and remanded," and that the case must "be assigned for decision purposes only to an Administrative Law Judge other than" the ALJ who rendered the appealed decision. 

The Board reminded that "the law presumes that a judge is unbiased and unprejudiced." Without explicitly conceding that this presumption might be overcome in some setting, the Board seemingly implies it. It proceeds to note that even in instances where disqualification of a judge may not be "technically required," it may nonetheless be appropriate "in order to dispel any thought or suspicion that the litigants may not be receiving impartial justice." 

The Board noted that all trial judges must recite findings of fact and conclusions regarding the claims brought for adjudication. However, that does not mean that an "ALJ can or should detail every iota of his subjective reasoning." Perhaps, it is suggesting that one sticks to "just the facts" as made famous by the old Dragnet trope? It explained that a reviewing body may "seek to discover why a particular piece of information/evidence was influential," and "just as frequently it is difficult, if not impossible, for a fact finder to articulate the basis of his or her reliance upon any given piece of evidence." Thus, it is the trial judge's job to make sufficient findings to support the decision, and as importantly to carefully note and discuss them in the order. 

The Board stressed the importance of a trial judge's decision being based upon "the evidence that was presented to that decision-maker that resulted in the final conclusion." After all: 

"it is the presentation of evidence over which the parties have control and it is the evidence presented to a fact finder that the parties may address." 

This is a reference to the concept of due process that underlies the litigation and adjudication process in America. The Board seemingly conceded that life experience might influence a decision. However, it stressed that the decision in a case should be based not on a Judge's experiences, education, or assumptions, if any, but upon the evidence adduced and admitted. The evidence should lead to a conclusion. 

And, at that stage, the Board ultimately turned to the details of the ALJ's findings. Factually, the ALJ concluded that: 

"there is no way a supine, sickly, patient could have kicked (Ms.) Brock hard enough to cause her to seek treatment for pain for over two years following the injury. [I]t could not possibly have caused all the alleged problems." 

The Board noted that such a conclusion might be reached in a proceeding that included significant evidence as to the patient, the event, etc. But, it noted that there was "minimal evidence before the ALJ on the physical mechanics of the entirety of the incident." Therefore, on that record, the ALJ's finding was not appropriate. The Board noted that this "categorical" conclusion of the ALJ was "without support anywhere in the record." 

Another issue regarded the claim for pain management care. The ALJ concluded: 

"I find the whole notion of pain management to be 'junk' science at its worse. I see the whole 'discipline' or scam as a natural parasitic growth on third party payment schemes." 

The ALJ cast further dispersion on the pain management profession citing "the movie Field of Dreams," and the theme therein where Kevin Costner's character is "inspired by a thought: 'If you build it, they will come.'" The ALJ pontificated that pain management in workers' compensation might be similarly described with "if you pay for it, they will come." 

The ALJ was critical of the care rendered to Ms. Brock, mentioning specific care that was delivered and records that documented it. The discussion is critical of the absence of "definitive diagnosis," the repetition of care delivered, and the generation of "pseudo documents which look like phony operative reports." The ALJ ultimately concluded that the treating physician "produces paper, not results." It is fair to say the order was critical of both the specialty and specific provider of pain management. 

The ALJ was also critical of the employer/carrier. He noted "concern" that "it took the employer so long to begin contesting the obviously controversial treatment." The Board was critical of that expression of opinion. It noted that "a fact finder must be impartial and should not create the impression of being an advocate for one side or the other." With this statement, the Board concluded that "the ALJ injects his position rather than a position asserted by" the employer. 

However, the Board noted that there was no support in the record for the ALJ's criticism of pain management. It said, "the evidence before the ALJ is silent on the issue of viability or reliability of pain management as a discipline." The Board noted that there was medical evidence that questioned the quantity of injection care that was rendered in the treatment of Ms. Brock. And, upon that, a decision might be made to authorize such care or not. But, it cautioned, from there it is "a significant jump from questioning an individual physician's treatment to challenging the appropriateness of an entire discipline." 

The Board proceeds to discuss the Daubert evidentiary standard, noting that the term "junk science" appears to emanate from that line of authority but "is not found anywhere within Kentucky case law." It noted that Daubert's "purpose is to prevent the admission of unproven scientific theory from unqualified experts or from qualified experts using improper methods or research techniques." Thus, there is the process for excluding expert evidence which lacks scientific foundation or support in a particular case, upon the evidence submitted and admitted in that case. The development and presentation of such evidence is the burden of the parties involved. 

However, the Board noted that in this litigation: 

"The record before the ALJ is totally silent on this issue. The record before the ALJ is totally silent on the question of whether the discipline/subspeciality of pain management is a scam. The record before the ALJ is totally silent on the efficacy of the discipline of pain management. The record is totally silent on whether the certification of this subspeciality is a natural parasitic outgrowth on third party payment schemes." 

The Board expressed a suspicion that "the ALJ explored resources extrajudicially to reach these conclusions." Thus a suggestion of a Sleuthing Judge (January 2018). It explained that "such extrajudicial excursions are no more permissible than the ALJ choosing on his own without the presence of the parties or their representatives to meet and talk to the sickly patient that allegedly kicked Brock." See Ex Parte Yet Again. It is not clear from the opinion whether that "meeting" is hyperbole or actually occurred. 

The Board also discusses the ALJ's conclusions and findings regarding the physician's medical records. It notes that: 

"these statements read in isolation would probably be viewed as nothing more than a fact finder's overzealous commentary upon the medical provider upon whom he places no reliance." 

However, the Board concluded that these comments, in the context of the decision rendered and the entirety of the ALJ order, "create a substantially different impression." In this context, the impact of the "statement goes far beyond merely (Ms.) Brock's case." 

Finally, the Board noted that the ALJ had concluded that another issue, psychotherapy, was denied on two grounds. First, that there was no claim for such care, and second that the predecessor judge had already denied such care. But, the Board noted that there "clearly" was in fact "a claim for a psychological injury." Furthermore, the Board's review of "all of the orders and pleadings in the record," uncovered "no order in which Judge Schuhmann (the first ALJ) ruled in the manner suggested by" the current ALJ. 

The Board described its conclusion to remand with instructions for assignment to a different ALJ as an "extraordinary action." In effect, such a decision combines the appellate relief of decisional review with the extraordinary writ of prohibition. In that light, the decision is perhaps not unimaginable. What the Board perhaps viewed as "extraordinary" in its action was that it appears Ms. Brock asked only for the review, and it may have been the Board's impromptu or sua sponte decision to exceed that scope and address disqualification? Is there room to debate whether the Board thus decided a point not explicitly raised by the parties? 

The Board noted that perhaps "any one of the elements" discussed might be ("would likely be") insufficient to support ordering the disqualification. However, the combination of the judge's statements "read together" was sufficient to "create more than an 'abiding impression' of lack of impartiality on the part of the ALJ." The Board concluded that the ALJ's "excursions outside the record create an impression of harm to every aspect of the claim." And, ultimately, it concluded that the appearance created by the Judge's decision was sufficient to justify the disqualification regardless of whether partiality in fact was established. 

The Board concluded that "it would be unrealistic for (Ms.) Brock to believe that he (ALJ) could set aside these expressed views." And, the Board concluded that the ALJ could not "be reasonably expected to put out of his mind his previously stated views." As such, the remand came with instructions for the system to reassign the case to a new ALJ as if granting prohibition, and with instructions for the new ALJ as to decide the case within the confines of the evidence presented by the parties. 

In all, an interesting analysis of the process of evidentiary determination. Furthermore, a reminder of the role of advocates to develop and present evidence contrasted with the role of adjudicators to weigh and process that evidence in deciding the issues presented.