Read the Order

I ran across a situation some months back. It was described to me as a "series of unfortunate mistakes;" at the end of the day, however, there was really just one cause for the situation. Unfortunately, it is a cause we see over and over. Fortunately, it is really easy to prevent. So, it makes sense to review a couple of similar situations that can all be avoided with the same easy advice, read the order.

There is a hearing scheduled. A notice and order are issued by the assigned judge, and it specifies how the case will proceed. For whatever reason, the judge specified that a live pretrial hearing would be necessary (it says so in the order/notice). On the day before the pretrial, one attorney files a partial pretrial compliance questionnaire. The claimant's attorney appears for the pretrial as noticed, but other attorneys do not. 

When contacted, they claim they did not know of the live pretrial. They explain that they "just assumed" the filing of the compliance questionnaire was all that was required. They sheepishly admit they "should have read the order," and ask for an accommodation in a rescheduled pretrial. Delay and wasted time result. 

An attorney contacts the assigned judge. Funds have been disbursed from a trust account to the injured worker and the child support depository and the attorney for fees and costs. The attorney is upset because the client has contacted the attorney because the net received does not match the amount that the judge's order says will be the net. 

There is no math error. The attorney calculated the amount of child support that would be withheld from the settlement. To do so, the attorney took the gross settlement, deducted the settlement fees and costs, and then deducted the amount of an ex parte fee which the injured worker would also pay. 

When the judge did the math, the judge took the gross settlement, deducted the settlement fees and costs, and that was the "net settlement." In the judge's perspective, the ex parte fee the claimant would pay was not part of the settlement. The judge therefore ordered that 50% of the resulting "net" be paid to the child support depository. This left less funds for the claimant, out of which the ex parte fee was to be paid. 

The result was an angry client. The amount ordered to be paid to the support depository was not paid to the depository. There were two perspectives on this issue. But it is the judge's job to make decisions. The attorney did not read the order. The attorney made assumptions instead, and disbursed funds based on that assumption. 

The result places the attorney in a difficult situation, with the client, with the bar and with the judge. Will the client bring back money that should have gone to the child support depository, so that the situation can be fixed? At a minimum, if the claimant does, there will be paperwork and checks and time to fix the mistake. 

An attorney files a verified motion for attorney's fees and costs in a case. The fee is based on a final merits order in the attorney's favor months before. This is not uncommon. Claims for benefits are prosecuted, orders are entered, and the fee and cost issues are addressed later. 

The verified motion spurs a responsive pleading. The main defense is that the final merits order says that it adjudicates all issues then pending. The order says that any issues not addressed therein are "dismissed with prejudice." That language is not uncommon. 

However, it is also common for merits orders to also include "claimant is entitled to fees and taxable costs for the obtention of these benefits. Jurisdiction is reserved for determination of the appropriate amount of fees and costs." This final merits order did not include this reservation of jurisdiction. An error? In all likelihood a simple typographical error. Will mistakes happen? Absolutely. Certainly, the judge should have caught the mistake and included this reservation in the order. But, the attorney should have read the order when it was received. 

The result? Investment of time and effort in addressing whether the Judge now has jurisdiction to determine fee amount. Win or lose, that is time and effort that would not have been required if the order had been read when received. The error is arguably much easier to fix if brought in a motion for clarification before the trial order becomes final.

Sometimes errors can be corrected when they are noticed, regardless of whether months have passed. But as a general rule, the best time to correct a mistake is early. If you get a notice of mediation or final hearing, the best time to get it rescheduled is right then, not two days before the scheduled event. 

The best defense to mistakes, errors, and conflicts is to read the notice or order. Not just the result, not just the date of the hearing, read the order, the whole order. This is a job for the attorney, not the paralegal or secretary. Interpretation may be required. The attorney should read the order. Then the attorney should think immediately about whether there has been an error and if so how best to correct it quickly. 

How do you fix an error, try a Motion (60Q6.115(1)), specifically a motion for rehearing (60Q6.122). Outline the error, propose a correction (or suggest several that are acceptable to you). There will be disagreements and disputes. Unlike wine, they rarely improve left in a cool, damp place to age. They improve when they are discussed. The earlier the better. To find issues like these, the answer is fairly easy, read the order. 

Technology Changing Our World

I saw an article recently that made me think about authority and humility (or lack of it). According to the Journal of the American Bar Association, two Louisiana State Troopers parked their unmarked vehicle illegally while taking a meal break. They returned to find their vehicle had been "booted."

I have received a few parking tickets over the years, but I have never had a car immobilized. I am sure that it is frustrating. Certainly it is frustrating to get a ticket, but you can put that in the glove box and cool off for a few days before mailing them a check. With the boot, you have to deal with it before you can move the car. 

So the Troopers reacted. They demanded the removal of the boot. That demand was declined. Apparently, the parking attendant believed that the laws and regulations apply to everyone, including the police who were taking a meal break. The attendant insisted that the Troopers pay the $90 parking fine just like anyone else would have to do. 

Having asserted their apparent "the law does not apply to us," position without success, the Troopers did the next logical thing. They arrested the parking lot attendant who had booted their unmarked, illegally parked, truck. While the attendant was thus in their custody, they took his keys, removed the boot from their truck, and for good measure searched the attendant's vehicle. 

This is all "according to a civil rights suit" that the attendant has filed. The lawsuit notes that the Troopers claimed the attendant was "interfering with their official duties," thus leading to his arrest. Curiously, he was held for several hours but never charged with a crime. An interesting element of this lawsuit, in our contemporary police relations, is that the attendant was wearing a "body camera" and thus possesses video of much of the interactions.

Apparently, requests for comment from the Troopers and the State of Louisiana have not been successful. 

This raises a couple of points worth discussion. First, no one is above the law. There may be times when a police car has to be parked in a way that we would not normally expect the rest of us to park. There are urgencies and emergencies. In most of these, it would seem some clue would be available, such as flashing emergency lights. It is seemingly unlikely that getting a sandwich is such a situation, though?

Second, actions can lead to consequences. We see this with a variety of people. Recently in Judicial Behavior and The Judge, a Bookstore I outlined some instances in which judges have been held to account for poor behavior. See point one, no one is above the law. When there is behavior that is inappropriate, there need to be consequences. 

Finally, the story reminds me about making a record. I make it a practice to hold proceedings "on the record." I believe that "off the record" proceedings raise serious chances of misunderstandings and problems. People can have different recollections of events and conversations. There is a comfort afforded by being able to return to the recording and listen again to exactly what was said. We see America's police departments adopting this "on the record" theory in recent months, with the use of body cameras becoming more popular. 

Can we expect that any officer we interact with is recording us with her/his body camera? Can we expect that of any interaction with a parking lot attendant as illustrated in this story? Even if there is no body camera, might there be other cameras memorializing our interactions, as Britt McHenry recently discovered? Must we always assume we are being watched?

The digital age is changing us all, as it effects the world in which we live. We would do well to remember it. The OJCC has signs in each office reminding people that our hearing proceedings are recorded. I encourage everyone involved in litigation to assure that hearings are recorded. Off the record discussions at best will lead to "he said, she said" disputes that are just too easy to avoid. 

Of course, we do not record mediations or any art of them. With the advent of this portable and personal recording technology, however, there may come a time when the unscrupulous or uninformed use such devices to record privileged and protected communications in the mediation setting. It is a point worth raising at the outset of such meetings. Careful practitioners will perhaps make a habit of mentioning to their mediator and opponents "this is a privileged meeting and no recording would be appropriate." This could prevent misunderstandings and mistakes. 

In the end, it is likely that technology will continue to invade our world. The drones are coming, specifically designed to carry cameras and to hover over our homes and businesses. Yes, technology is changing our world and recording equipment will become increasingly a part of our lives. 

Changing Face of Pain Treatment - a Game Changer?

I have noted before that many of the issues we face in workers' compensation do not necessarily make it into the national media.

But pain medication is starting to finally getting some attention from the major news media. A Los Angeles Times story on October 30, 2015 reports on a doctor "convicted of second-degree murder" after multiple patients died of overdose. Though there were allegedly more related deaths, the prosecution was for three particular deaths linked to medication use or misuse. The paper refers to the case as "landmark" and notes that it "was closely watched by medical and legal professionals across the country."

There has been a great deal of discussion in LinkedIn, at conferences, and in blog posts about prescription medication overdose. There is also an interesting and disturbing corollary of increased Heroin use, addiction, and deaths, which some blame in part on their contention that prescription opiods are a gateway drug leading to Heroin use. 

It is troubling in these conversations when some question whether opiods are that big a deal. Nationally known blogger Mark Pew has heard some of that feedback. He had a recent article on The 5mg Curl that describes some statistics with which it is hard to argue. People are dying. The Los Angeles Times notes that "prescription overdoses kill more people than heroin and cocaine." Americans are consuming mind-boggling quantities of opiods. Obviously, there are valid uses for pain relieving medications. But it appears that there may also be some less-than-valid uses, leading to misuses abuses.

This prosecution is not about opiods, however, but about a drug called Xanax. It is a benzodiazepine. According to Narconon, it is a medication that is abused by hundreds of thousands. Narconon's website notes that people commonly "mix Xanax abuse with the use of other drugs," including "alcohol, opiates, marijuana or cocaine." This statement illustrates one of the problems that bears noting, people are mixing medication prescribed by physicians with street drugs.

Back to Dr. Tseng as reported in the Los Angeles Times. The Times reports that Dr. Tseng is "the first doctor convicted of murder in the United States for recklessly prescribing drugs to patients." She was also convicted of "more than a dozen illegal prescribing counts." A jury "deliberated for two weeks before reaching" decisions regarding the charges. The prosecutor, John Niedermann spoke to the press after the verdict and explained that being a physician is "no shield.” He accused Dr. Tseng of providing drugs in a manner that essentially "shoved them over that cliff."

The examples in the story are interesting. She was charged with prescribing for undercover officers, who "told her about their drug addictions." She was accused of writing a man scripts for the purpose of enhancing his wife's access to medications. Prosecutors claimed that some of her patients had been "charged with dealing drugs," and "two others admitted dealing drugs prescribed by Dr. Tseng." It appears that there were signs of potential problems that might have caused the doctor to reassess in at least some instances?

The enhancement of the man's wife's access is worthy of note. There is at least a perception that "diversion" is a significant problem with many prescription drugs. That is, some pill is prescribed to one person, but instead of being taken that pill is stolen or sold and ends up taken by someone totally unintended. There are some catchy public service television advertisements right now where the person removing the pills from the medicine cabinet is not the person reflected in the cabinet mirror. It is a recognized issue that is important for anyone possessing medication.

The story notes some tendency to blame the patient. After all, those people put the pills in their mouth. Dr. Tseng's mother claimed that the doctor was "deceived by drug-seeking patients." Dr. Tseng's attorney blamed circumstances, noting the doctor "got in over her head.” She claimed that this situation might be appropriate for medical malpractice, but reiterated Dr. Tseng "did not murder people.”

It seems obvious that patients bear some responsibility. Those who have prescriptions need to follow directions for their treatment. Anyone with possession of medications has an obligation to keep them away from children and others who might misuse them. Certainly, there is a shared responsibility. This prosecution, however, establishes that it is a responsibility for which the physician will have significant liability.

According to Dr. Tseng's attorney, this prosecution is having a chilling effect on doctors and their prescription practices. She said that "she has received several calls from cancer patients and others with terminal illnesses who claim the prosecution of doctors like Tseng has led other physicians to limit the amount of powerful painkillers they prescribe, even to those who have a medical need for them."

There are people who need medication to deal with various symptoms and conditions. It is therefore unlikely that prescription drugs will cease to be part of our medical system. Are there reasonable solutions to combat the problems with inappropriate use? Are we doing all that we can to make sure that prescription medications are being used appropriately? We are likely not. There is a good argument for Prescription Drug Monitoring Programs like KASPER and E-Force. They are a start.

Some have recently suggested that the effectiveness of these databases would be enhanced if claims adjusters had access to them. It takes time to search these, and to attempt to monitor the volume of medications any patient is receiving. Certainly, that may deter some physicians from using these databases each time a script is written. It seems adjuster access adds a second layer of potential detection of overuse or misuse. While there may be reasons not to afford such access, such as patient privacy, it seems like an idea that bears discussion in the face of this epidemic.

There will be people who are not responsible with their prescriptions, just as there will be people who are not responsible with their cars. People are not perfect. Physicians cannot solely prevent misuse and abuse, but they will be on the front line of whatever efforts we can make to decrease the number of people dying of medication misuse.

There will almost certainly be malpractice cases, litigation against drug manufacturers, and further efforts at abuse-deterrent formulations. But, will there be more criminal prosecutions of physicians who prescribe these drugs? Should there be?

We may be witnessing a game-changer. Time will tell.

Communication may be the key

We have some exceptional people working for the Office of Judges of Compensation Claims. I received an email recently from attorneys complimenting one of our state mediators. I hear from lawyers fairly regularly, noting a courtesy extended, an accommodation made, a situation handled.

It is not common that someone writes to me and describes an experience with the OJCC that they characterize as “remarkable.” This story starts like all mediation stories should start, with the two attorneys working diligently to refine the issues and resolve things even before going to mediation.

Too many people see mediation as a first resort to resolution, when there are actually plenty of chances to resolve things short of mediation.  I remember an attorney years ago filing a motion asking to waive mediation. I was not Deputy Chief judge at the time, and the motion came up during a live hearing on some other issues. The attorney had not certified “good faith,” but had explained that efforts at contact had been unsuccessful, and so opposition was presumed.

I found that ironic. The process of mediation is supposed to be communicative. The process of motion practice is supposed to be communicative. In that instance I had a motion (over which I had no jurisdiction), being argued without prior conversation, seeking to avoid the conversation that is mediation. That is not how the profession is supposed to work. Our goal is to move the process forward. To do that, we communicate, we facilitate, we cooperate. Lawyers and parties do not have to like each other, but there has to be respect for one another. 

In the incident recently reported, the work leading up to mediation led everyone involved to conclude that the claimant would not appear. They could not reach the claimant, had not heard from the claimant and “it was believed likely to be a no-show, with a resulting show-cause hearing, and/or withdrawal.” The mediator was informed and in light of the circumstances, telephonic appearance by both attorneys was allowed.

Proving once again that mediation is unpredictable (Murphy's law), the claimant surprised everyone and showed up live at the mediation as noticed. With the attorneys appearing by phone, it was not a singularly unique experience, but not your garden variety mediation paradigm either.

Turns out the claimant was homeless; had no phone and was therefore difficult to reach. Homeless claimants present challenges. Their address may be non-existent or may change frequently. They can be difficult to keep up with. As one might imagine, a homeless person’s first priority is not going to be focused on address change notifications. There are a multitude of survival issues that these people face, which all take precedent over things like address change, and even things like mediation of their workers' compensation case.

The parties in this case reached a settlement agreement. Our mediator “identified potential hurdles, and came up with creative solutions on the exchange of papers, and service of an agreed advance check.” The parties acceded to the mediator’s suggestion for the advance check to be sent by the carrier to the injured workers at the OJCC district office. The defense counsel also sent the settlement paperwork there. This facilitated the needs of the injured worker, who lacked an address otherwise, but also assisted the employer/carrier with communication. 

In the words of counsel, “Mediator Hart (FTM) stepped-up, showed creativity, and came to solutions to protect all interests of the parties and counsel, and to show exemplary instances of tremendous public service.” Opposing counsel appreciated  the “innovative way in which Mediator Hart selflessly offered her time and effort to make this settlement possible,” characterizing the effort of Mediator Hart as “extraordinary.” 

I hear a good many compliments about this agency and the people that work here. Sure, there are criticisms and complaints sometimes too. But, that is one of the best compliments ever. Counsel on both sides of the case suggested that “Mediator Hart should be praised and acknowledged.” I could not agree more.

While I am at it, though, a thank you to the attorneys. Thank you for preparing in advance, and knowing that there was a potential for a difficulty. Thank you for speaking to each other in advance of the mediation. Thank you for keeping the mediator in the loop. Thank you for your professionalism and flexibility with the process and with each other. Mediation by its very nature is a collaborative process. These attorneys' activity in this case was the epitome of communication, which is a bedrock to resolving disputes small and large. 

There will be issues that cannot be resolved, problems that cannot be readily surmounted, things beyond parties' control. But there will not be things that cannot be discussed at least in generalities. Professional communication is likely a key to much in litigation and mediation. It is in the best interest of all involved. 

Its a Non-Final Order, that Matters in Workers' Compensation

In July, I ran across Empara v. New Rochelle School District. A New York case that makes for an interesting reminder of finality and appellate jurisdiction. In Empara, an injured worker’s claim for benefits was litigated as so many are, in multiple hearings. Workers’ compensation has been referred to as “serial” meaning that cases can be presented in a series of hearings. This is due in part to the manner in which workers’ compensation statutes provide benefits in stages, each based on specific pre-requisites. It can also be a conscious decision of employers and employees. 

As those statutory requisites occur, an injured worker may become entitled to benefits today that were not available yesterday. For example, an injured worker who is excused from work for the time being is not likely entitled to permanent indemnity (lost age) benefits. Permanent benefits are dependent on permanency of injury, which occurs after medical care, and attainment of maximum medical improvement (MMI). So, until MMI is reached the injured worker cannot seek permanent indemnity. That benefit is referred to as "not ripe" for payment and therefore not ripe for a claim or petition. 

So as an example, an injured worker might litigate entitlement to temporary total disability benefits before MMI, but any claim for permanent benefits might at that time be premature and thus not litigated. There could be a trial now on temporary benefits, and another trial in two years on permanent benefits. The entitlement to a specific benefit may be litigated at any time, and a particular worker might therefore be in and out of the litigation process repeatedly.

Likewise, the parties in a case may elect to only litigate certain issues, of all that are currently ripe. They "bifurcate" or separate some issues from the other(s) in an attempt to resolve certain differences. Their intention in doing so is usually based on a belief that resolution of some certain issue(s) will perhaps create enough certainty or predictability in a particular case to allow the parties to solve the rest of their disagreements or issues in that case without litigation, and the time and expense that entails. 

An example of this might be where a physician has recommended a diagnostic test such as an Magnetic Resonance Image (MRI) and surgery. The parties might agree to only litigate the MRI authorization if they believe that a decision on that point will give them the information they need. That is, they believe that if the judge denies the MRI then surgery will not occur and that if the judge orders the MRI that test will answer any questions as to whether surgery is appropriate. The accumulation and organization and presentation of evidence regarding the MRI may be easier, quicker, and less expensive that what would be required to litigate the surgery issue.  

One of the complications faced by a workers' compensation judge is the multiplicity of issues that may be possible when a case comes to trial. The judge must make findings, decisions, but is limited to deciding the issues that are ripe. Despite careful attention to this, findings required for one decision today may affect later claims that have as yet not been filed (not ripe) or which were not a subject of the present trial (they were bifurcated for another trial another day).

In Empara, the injured worker was initially found to have a 37.5% “schedule loss” of the left leg. After another injury, and a surgery on that leg, an impairment of 40% was rendered. A trial was held regarding the impairment, and the judge made a “finding,” that is a conclusion, on the impairment in an order issued in late November 2012. However, no benefits were awarded. Instead, “the matter was continued” for another hearing on various issues, including “consideration of an award of compensation.” So the judge decided the impairment that existed, but did not decide how much the injured worker should therefore be paid.

Thus, decisions were to be made in this case at a series of hearings. The judge decided not to determine the amount of compensation, and to instead decide only the impairment rating. This may have been because the parties asked for that bifurcation. This may have simply been the judge's decision.

Then in January 2013 the judge awarded benefits based on that impairment. The worker’s employer appealed that decision because it was based on the impairment after the left leg surgery, but the judge's decision (order) did not explain the interaction of the prior stated 37.5% impairment. In other words, there appeared to be a question as to whether the worker had a 37.5% impairment and another 40% impairment, or whether the later 40% impairment included the prior impairment. 

The worker objected to the appeal. He explained that the appeal was addressing the conclusion of a 40% impairment, a conclusion reached in November not in January. So, the worker argued, the appeal regarding that impairment, after the January 2013 hearing, was not timely. A critical side note, parties have a limited time to ask the appellate court to act on their case. In Florida workers' compensation it is 30 days. 

The New York appellate court concluded that the appeal after the January order was timely. It explained that the November decision was incomplete as it did not explain the interaction of the prior impairment. As such, “it was unclear from the November 27, 2012 decision whether any award would be made to claimant.” The Court therefore concluded that the November order was ambiguous” and therefore the employer was able to appeal when the ambiguity was clarified in the January order.

I was reminded of Empara recently, when the Florida First District decided Zavala v.Economic Development Commission of Mid-Florida, Inc. Interestingly, the news headline on this case was that the “1st DCA Dodges Constitutional Challenge to Statutory Limit on Indemnity Benefits.” There has been a fair amount of discussion of workers' compensation and the constitution in recent months. 

The court concluded that the trial judge’s decision in Zavala was a “nonfinal order that adjudicates compensability of her accidental injury.” The decision was “nonfinal” because “the JCC reserved for another day adjudications on claimant’s entitlement to medical benefits and other claims.” Thus, some issues were bifurcated from the others. 

Much as in Empara, the order entered by the trial judge in Zavala, made decisions and reached legal conclusions. However, the order neither awarded or denied specific benefits. This made the trial order “nonfinal,” and there will be another hearing in Zavala, as there was in Empara. Then a final order will be entered (going beyond the decision that the injury was in fact a workers' compensation injury, and ordering provision of some specific benefit(s)). When that order is issued, then the constitutional issues, and other specific challenges regarding those benefits will be ripe for determination by the First DCA.

Because the court determined that the trial order was “nonfinal” it concluded that it lacked the authority, or “jurisdiction,” to address the issue of whether a statutory provision regarding benefits is or is not constitutional. The New York court found that the first order was not subject to appeal because it was “ambiguous,” but explained this "ambiguity" was its incompleteness in not determining benefits due. The cases are explained differently by the two courts, but the results are consistent. 

The Florida court concluded that the incompleteness, not determining the actual benefits due, made the order non final. Not ambiguous, merely incomplete. The trial judge in Zavala reserved jurisdiction, specifically telling the parties there would be another trial on the question of actual benefits. With the lack of finality or the “ambiguity” comes the conclusion that it is not yet time for the appellate court to consider the case.

The logic of this is simple. Though appellate courts recognize that the serial nature of workers’ compensation litigation is a fact of life, the courts strive to review cases when they are complete. This allows a single appeal to address a composite of issues at one time. In other words, accepting that the serial nature of this statutory program may inevitably lead to multiple appeals, the court strives to only review complete determinations so as to consolidate review and minimize the serial nature of dispute resolution at the appellate level. 

The time to seek appellate review of a trial decision can be tricky. This is discussed in Read the Rules, it is Critical. Knowing the Florida Rules regarding when to appeal is important. Knowing what kind of order can (e.g. final) and cannot (e.g. non-final) be appealed is also important. 

For the court to have authority, or “jurisdiction,” the Florida order must generally be a final order. There are exceptions to that general rule on finality. Rule 9.180 explains that non final orders may be appealed if they determine the authority to hear the case ("jurisdiction"), or the appropriate place to hear a case ("venue"), or "compensability" if there is an express conclusion that a work injury occurred, that the workers "is entitled to receive" benefits, and the Judge of Compensation Claims "certifies in the order that determination of the exact nature and amount of benefits due to claimant will require substantial expense and time."

The point of all of this is simply that litigation is a journey. It has a starting point and an end. Like many journeys in life, it may be traversed in a single sitting. Conceivably one might drive from Tallahassee to Burbank, California for the Comp Laude awards banquet this weekend. Or, one might drive from Tallahassee to Baton Rouge and spend the night, then from Baton Rouge to El Paso for a few days, then from El Paso to Tucson and spend the night, and then from Tucson to Burbank. Either way, the trip ends in the same place. 

In most civil litigation, like personal injury, the trip is a continuous journey. There is a single trial, a single verdict (decision) and then, if desired by a party, a single appeal. It is possible that some other decisions made by a judge along the way in a civil case might be appealed before the end of the journey, but those will more likely be about the procedure of the case, not about an award of some benefit for some part of the civil case. Workers' compensation is more like the second example with the overnight stops. The trip starts and stops. Benefits are claimed and determined. There are decisions along the way as to where to stop and how long to stay before it is appropriate to move on. 

Knowing when an appeal is or is not appropriate during either journey is important. For the workers' compensation example Zavala and Empara help us remember that finality is usually a critical question on this journey. 

Occupational Disease and the Zadroga Act

Most of us recently took a pause in our daily lives to be thankful for something. It is an annual ritual during which many of us eat too much, do too little, and hopefully take some time to reflect. 

In the days leading up to Thanksgiving 2015, a couple of minor headlines caught my attention, as did another headline from Joan Collier's blog regarding occupational disease. I have heard a great deal about occupational disease, at conferences, from lawyers, from doctors. 

On November 18, the New York Daily News published an update on the case of Diane DiGiacomo. She worked for the American Society for the Prevention of Cruelty to Animals (ASPCA). Following the terrorist attacks of September 11, this "single mother spent three month near the shadow of the smoldering footprints of the World Trade Center." Her assignment was to save "dogs and cats left behind in nearby apartments." 

On November 16, the News reported on DiGiacomo's efforts to have Congress act to reauthorize the James Zadroga 9/11 Health and Compensation Act. According to the News, this "provides medical treatment and compensation to Ground Zero workers." The story laments that this law included time limitations for seeking compensation. In the story, her sister asked "how could you put a deadline on people's lives?" 

The News articles were less than informative regarding the Zadroga Act. According to The Hill, "we now know 33,000 first responders and survivors across the country suffer from at least one 9/11-related illness or injury." The Hill asserts that as many as 4,000 of these first responders are suffering from cancer. Ms. DiGiacamo "was diagnosed with cancer last year" (breast) according to the News. in a very short period of time, it had spread to her brain and bones. When the stories were published in November, she weighed only 60 pounds and was essentially "confined to her bed." 

The Zadroga Act provided medical care and monitoring for first-responders, according to the Center For Disease Control (CDC). The proof required appears to be somewhat less than for workers' compensation. According to the CDC, care is available "As long as the reason you are hospitalized is for treatment of a strongly suspected or certified WTC-related health condition." The Zadroga Act was passed in 2010. By its language, it has now expired and there is a move afoot to pass the "Zadroga Reauthorization Act." 

The CDC provides a list of conditions that are covered, including: asthma, gastroesophageal reflux disorder, interstitial lung diseases. reactive airways dysfunction syndrome, sleep apnea, upper airway hyperreactivity, WTC-exacerbated chronic obstructive pulmonary disease (COPD), and chronic cough syndrome, laryngitis, nasopharyngitis, respiratory disorder—fumes/vapors, rhinosinusitis. There is also a long list of "covered" cancers, female breast cancer among them. 

On November 16, the News Reported, that Ms. DiGiacomo had lost her claim for workers' compensation benefits for her cancer. The News reports that "In his Monday ruling, Judge Marc Grodsky says there is 'no dispute in the medical evidence' that DiGiacomo’s breast cancer developed at least in part due to her exposure to the site’s toxic fumes."

The News provides little explanation of the judge's order beyond this quote. WorkCompCentral (WCC) had a brief report on November 20, in which some further details of Judge Grodsky's order were provided. According to WCC, "Grodsky concluded DiGiacomo did not suffer from an 'occupational disease,' because the exposure did not 'derive from the very nature' of her work as an animal rescuer." Instead, he concluded, "her exposure arose from ‘an environmental condition' specific to the place of work." 

Some contend that this logic could preclude any 9/11 first- responder from prevailing in a claim for workers' compensation benefits. They point to the judge's conclusion that “the dust and particulates were a result of the environmental conditions in the area in the aftermath of the attack. If she was doing her job in a different area, there would be no exposure.” Critics contend that this distinction would be as true for any firefighter, police officer or other professional responding that Tuesday morning 14 years ago. 

On the same day WCC provided these details of the order denying Ms. DiGiacomo's claims, the News ran another story regarding Diane DiGiacomo, reporting she had passed away.

There are burdens of proof for demonstrating that disease is in fact occupational. The 9/11 example provides an illustration, and the attacks are familiar to everyone. The general familiarity with the events that day provides a commonality within which discussion can be had. That is an academic exercise, which is interesting, but we all must remember that it is a debate which profoundly affects people's lives. 

Occupational disease in Florida is compensable as set forth in Fla. Stat. §440.151. This section provides the generality that "the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident." 

The statute then defines restrictions on the generality, stating: 

"in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer." 

“'Nature of the employment' means that in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations." 

The employee will have to prove that such disease "was actually contracted while so engaged." 

And that for such disease "the nature of the employment was the major contributing cause of the disease," which cause "must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing." 

The burden of proof is not a preponderance of evidence ("more likely than not"), but is higher in Florida occupational disease. The statute provides that "both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence."

The Florida standard is beyond "the strongly suspected or certified WTC-related health condition" which has been stated as the burden of proof regarding the 9/11 disease claim program.

There has been discussion of the burden of proof in occupational disease cases. This example provides a view of the law interpreted in New York. Would the result be the same using the provisions of Florida's law?

Misclassification and Regulation, Will Government be Nimble

The Federal Aviation Administration (FAA) recently announced that it will scramble to enact registration regulations for remote control aircraft, called "drones." It hopes to have these in place before the 2015 holiday season. Some report that holiday drone sales are anticipated to be over 1 million units this year; lots of gift-giving. These are not your remote-control helicopters for $19.99. These include four-rotor craft with cameras mounted beneath, selling for $600-$1,000 at your local home technology store. The law is struggling to keep up with this relatively new technology.

There have been model planes for years. Perhaps it is disingenuous to call drones "new." But model planes were a somewhat expensive hobby, engaged in by relatively few. Recent technology has not created drones, but has increased the capability of these devices while decreasing cost. Previously, there was apparently no perception of regulation needed for very small aircraft. In fact, the Delawareonline reports some believe the FAA lacks jurisdiction to regulate anything under 55 pounds. All of these new roto-drones seem to fit into that weight category. 

The FAA will now try to have regulations in place for drones by the 2015 holiday season. That is ambitious. When it announce plans for these rules there were only about 60 shopping days remaining until Christmas. DelawareOnline reported that the FAA goal was to have regulations submitted by November 20, 2015. It named a committee of "25 representatives from the aviation industry" to accomplish that regulatory feat in less than 30 days. The committee's final report was dated November 21, 2015. 

The FAA is reacting to this technology. It is likely that the outcome will be a requirement that owners of these drones will have to register them in a federal database. The government is seeking to adapt to the technological change with rules that acknowledge the challenge. The alternatives are to do nothing regarding these devices or to use existing regulation to deal with change, a more reactive approach. Technology is evolving and the government strives to keep up. The capability of various technology is repeatedly doubling, rapidly, as costs bring more and more technology into consumer hands. Regulation will be a challenge. 

Employment also continues to evolve in the United States. We look to regulation and legislation to provide parameters and consistency. But that appears to be a similar challenge. We see evolving relationships in the workplace. Seemingly gone are the career jobs that end with 30 years of service and a gold watch. It seems that employment regulation and definition is more reactive, with various jurisdictions facing challenges of misclassification independently and generally using existing law. 

Last November, I was introduced to the subject of Internet-based car ride services, with specific emphasis on Uber and Lyft. There is a great debate surrounding these two, and others like them. They are "disruptive" to the marketplace of existing alternatives, such as taxis and limousines. These traditional ride sources are resistant to the new Internet services. Taxi drivers see them as destroying their livelihood. They decry the taxes and licensing for which they are responsible, and which Internet ride services seem to avoid. 

In January 2015, I shared Misclassification - What is it? Msclassification is essentially where a workers' description is misrepresented. Someone who is an employee is labelled an independent contractor. There are multiple encouragements for this labelling. They include tax avoidance as well as reduced costs for both workers' and unemployment compensation.

Employers are responsible to collect and in some part match taxes for employees. Taxes represent a cost for employers. There is bookkeeping expense for income tax, but the FICA taxes have to be matched. Many people assume that their Social Security and Medicare taxes are about 7.5%, because that is what is withheld from their paychecks. But in most instances, the employer pays another 7.5%. Social Security and Medicare consume 15% of American payroll. Despite this there are solvency issues for these programs. 

Another misclassification motivation is workers' compensation. Employers are often (if the business is of sufficient size) required to provide workers' compensation coverage for employees. Employees are entitled to overtime and other wage protections by the Fair Labor Standard Act (FLSA), which does not provide that protection to contractors. As a company achieves various employee counts, other laws become implicated, such as the Americans with Disabilities Act, the Family Medical Leave Act, the mandatory health insurance law and more. Thus, an employer may have a variety of incentives to minimize the number of employees. 

Misclassification and Uber have both been back in the news recently. 

Federal Express was sued by a multitude of drivers. Forbes recently reported that one suit has been settled after "a 2014 Ninth Circuit ruling that FedEx misclassified drivers as independent contractors." FedEx is creating a $228 million fund to resolve claims by over 2,000 . . . drivers." It is possible that the money due to these drivers is compensation that would have been paid as wages had it not been for the misclassification. Will FedEx likewise be paying the 7.5% FICA tax to Washington on those back earnings?

FedEx is not alone. One website reported in May that Lowe's entered a settlement with home improvement contractors. Another reported a painters class action suit settlement earlier in 2015. Exotic dancers, restaurant workers, construction workers and more have been involved in litigation regarding allegations of misclassification, seeking overtime, workers' compensation, and other benefits.

A Reuters story notes that California has concluded that the disruptive Uber drivers are employees, not contractors. The story says "classifying Uber drivers as employees opens the company up to considerably higher costs." These include "Social Security (the FICA mentioned above), workers' compensation and unemployment insurance." The New York Times cautions that Uber decisions currently affect small numbers of drivers, and that Uber plans an appeal. The Times reports that Uber has successfully litigated the question, and five states have conversely concluded that Uber drivers are contractors. 

With the cooperation of "check cashing" businesses, construction company misclassification has been labelled "A Made in Florida Construction Industry Rip-Off." In June 2015, according to WorkCompCentral, Florida CFO Atwater announced arrests in a "massive fraud ring," the purpose of which was to use "shell companies" and "check-cashing stores" to improperly "rent" workers' compensation insurance coverage. 

North Carolina focused legislative efforts on misclassification in 2015. The News Observer reported on the efforts, which some North Carolineans claim were not sufficient. In that opinion piece, the author claimed that North Carolina should look south to Florida for effective methodology for attacking misclassification. Some apparently see misclassification as created in Florida, while others see Florida efforts as the guide to battling it. 

The commonality of all of this seems to be imagination. The world is changing, with many seeking comparative advantage. Individuals and companies are trying to find ways to avoid regulation to increase profit, by leveraging technology, by creative use of legal definitions. 

Last May, I attended a presentation by Salim Ismail presented by the National Council on Compensation Insurance. A key point of Ismail's presentation was that the law will have trouble keeping up with disruptive technology. He contends that the law is too slow to effectively react in the paradigm of ever-changing terrain. He points out that the Google Car has rear-view mirrors, but no steering wheel. 

He explains that legislators thought to require mirrors, but none ever thought to require cars to have steering wheels. His point is that the legislative process did not predict the disruption or the technology and finds itself playing catch-up. Is that description any less applicable to misrepresentation; have legislators and regulators merely failed to anticipate the imagination and ingenuity of those that might seek to skirt the regulations? 

Recognizing the costs of misclassification, can the law effectively play catch-up on the issues presented by Uber drivers and the various other service-providing Internet applications? Is the FAA drone regulation process illustrative? The FAA cannot have been unaware of drones for the last several years of evolution. But the issue now becomes critical and thus the 2015 pre-holiday rush to regulate them. It seems unlikely that awareness is the primary issue. Drones have been a concern for some time, but their prevalence has led to dramatic and rapid action in the closing months of 2015. In short, the FAA decided to act. 

Has the time come to act similarly on misclassification? Will North Carolina and other states deal with misclassification? Are existing regulations sufficient, and it is a matter of deciding to enforce? Perhaps recent Florida successes support that existing regulation is sufficient. But, if additional regulation is required to deal with the misclassification problem, can blue-ribbon panels be assembled, actions taken, as the FAA recently did for drones? 

Maybe Ismael is wrong, and government can be nimble enough to keep pace with evolving technology and imaginative wrongdoers. Or will the misclassification issue linger, regulated by a multitude of federal and state laws that perhaps are not as imaginative as those who would seek to avoid them?

Interesting days are ahead.

It's not the Age, its the Mileage

Back in 1981, the Bangles released a cover of Simon and Garfunkel’s Hazy Shade of Winter. A memorable lyric is “time, time, time, see what’s become of me.” The song reminds us of our life changing and the passage of time: “seasons change with their scenery, weaving time in a tapestry;” “time, time, time . . ..” Also in 1981, the intrepid Indiana Jones brought context to aging. He noted “it’s not the age, honey, it’s the mileage.” We are all moving inexorably forward, aging every day. 

A very interesting story caught my eye on November 18, 2015, regarding a woman in Shenzhen City in Guangdong, China (just north of Hong Kong). I was drawn by the headline, "Overtime made me an Old Lady," and the link lead to Rocketnews ("Bringing you yesterday's news from Japan and Asia, today").

The 25 year-old pictured below was photographed on the streets with a sign that reportedly (I cannot read Chinese) said “overnight and overtime work has made me into an old lady. Both my love and work lives are miserable. I request approval for workers’ compensation.” One of my first thought when I saw this is whether such a sign would satisfy the filing requirement of Fla. Stat. 440.192 (the Florida petition for benefits statute)? Here, the law requires specific information in a particular format to claim workers' compensation. Would a sign suffice in China? But I digress, back to the story.

The story on Rocketnews said this “was an unusual yet straightforward demand that triggered debate and reflection on the state of working conditions in” China. The young woman reportedly “claims that working long hours and sometimes going without sleep have taken a toll on her physically. She says that this has led to rapid aging which she compares to a work related injury.” Would this be a repetitive trauma injury? After all, Phil McGraw reportedly once said "life is a contact sport."

This young lady is likely out of luck in China. Rocketnews apparently discussed this with Chinese attorneys, and the consensus seems to be that “her claims would not be covered in workers’ compensation.” But, they note that “her actions are indicative of an increasing awareness of workers’ rights in Chinese society.” 

As I write this post at 4:30 in the morning, focusing on the workday before me, I am wondering . . .. Nah, I guess the odds are probably not really any better for me making a compensable claim for this here. Though I sometimes feel worn-out from long hours, no one is making me. The state just expects judges to work 40 hours a week, and that is generally in the 9:00-5:00 world of daylight. 

Rocketnews reported that there were many comments in online discussions regarding her protest. They say that “comments range from support to derision.” In an indictment of the "world-wide" nature of the "world-wide-web," my several Google searches here in the U.S. did not yield any social media hits for this protester, or the comments reported by Rocketnews. But the issue there is likely that I am too "seasoned" to intuitively know (or not smart enough to figure out) how to access Chinese social media. In all likelihood, someone younger (or at least smarter) out there could probably find that material easily (if you do, email me the links and I will update this post). 

In a bit of a backhand at America, the Rocketnews author laments it is “too bad she (this protesting young lady) doesn’t live in the USA where the lawyer ecosystem is much lusher.” Ecosystem? American lawyers have an ecosystem? You can learn a great deal reading the Internet, either about the way things are or at least the way things are perceived. But, the article also notes that even in America, the case would be “tough though,” concluding that in the pictures she does not “look so old,” but merely tired and angry.

Don't sugar-coat it folks, do I ever look tired and angry? I hope not! If I, or someone else you know, do sometime, please remember “it’s not the age, it’s the mileage," and remind us to relax and smile. You never know what kind of a bad day someone might be having and a kind word often works wonders. 

I hope you have a safe and happy holiday season. In the spirit of this Chinese protest, I will be working some half-days this week. I hope you also get some rest and relaxation!

The Bumped Knee Massacree

If it doesn't work, is it fraud? 

If the result of some accident turns out to not be an injury, is it fraud to visit the doctor to find that out? 

There was a story last spring in the Daily Republic regarding a man standing trial for workers' compensation fraud. Fraud is a common subject in the news. Many states are taking a harder position on workers' compensation fraud. Some are doing an amazing job of publicizing their efforts. This story is worth reading, and the comments that have been added since it ran may also be interesting. 

I am confident I see more fraud news stories from Ohio than any other state. I recently sat with a regulator from Ohio at the Southern Association of Workers' Compensation Administrators (SAWCA) Regulator Roundtable (TM) in Orlando at the #WCEC2015. I mentioned my perception of Ohio and he acknowledged that his agency does a good job of publicizing those convicted of taking benefits to which they were not entitled. This is an intended part of their deterrent effort. 

It is important to remember that there are a vast number of people who have workplace accidents. That the Internet reveals tens of cases of fraud allegation or conviction, compared to that vast number of work injuries, suggests that despite the seemingly significant volume of news stories, only a very small percentage of those injured are ever accused or convicted of fraud. But it is a problem for those with legitimate injuries. The fraudsters may cast doubt on the system, reinforce bias and suspicion, and potentially take benefits from deserving people. 

The Daily Republic piece was interesting because the accused there never received anything. It reminded me of the longest song of all time (I will get emails correcting me on that point), Alice's Restaurant by Arlo Guthrie. This was a Vietnam-era song essentially protesting the induction of young men who chose military service over jail. A complex subject, the song meanders for about 30 minutes to tell the folksy tale of a Thanksgiving dinner "that couldn't be beat." 

The Alice's Restaurant "Massacree" (phon.) involves the dumping of the resulting Thanksgiving garbage, after the meal "that couldn't be beat." Driving about town in a "red VW microbus," with a half-ton of garbage, Guthrie is helping his hostess by taking her garbage to the dump. They find the dump closed for Thanksgiving, and leave in frustration, "off into the sunset looking for another place to put the garbage." 

As they drive back from the dump, they see "another pile of garbage" at the bottom of a small ravine. They decided that "one big pile was better than two little piles" of garbage. Applying considerable logic, they conclude that "rather than bring that one up, we decided to throw ours down." The savvy reader has already noted that big pile or small, Arlo and company have just littered. Needless to say they are discovered and prosecuted. 

Towards the end of the song, our protagonist Guthrie sits on a bench in the police station and is approached by a man who "was mean and ugly and nasty and horrible and all kinds of things," who asked him "kid, what'd you get?" Describing his recent experience with the justice system, Arlo tells him "I didn't get nothin'. I had to pay fifty dollars and pick up the garbage." It is farcical and funny. If you have never heard it, and you have 30 minutes to kill (not kidding), give it a listen this Thanksgiving as you ponder the feast clean-up. 

Much like Arlo, the protagonist in this workers' compensation story likewise "didn't get nothing" except a preliminary medical exam, and prosecuted for fraud. 

The story reports that Deonte Walker "bumped his knee at work." He thereafter "limped into a NorthBay Healthcare medical clinic using borrowed crutches." Mr. Walker never saw a doctor, but was examined by "a physician's assistant who thought he was faking it." The clinic visit was "billed at $102 along with X-ray costs." 

Thereafter, he neither returned to the clinic nor to work. He received no "payments from anybody for the injury claim." His employer, though, referred the matter to their insurance company and surveillance was undertaken. Video demonstrated Mr. Walker "running up a flight of stairs a week after his injury," and the insurance company reported the matter to the District Attorney. 

The story says that by the time the District Attorney had been contacted, "Walker, who has no criminal history, had called his employer saying he wanted to drop the injury claim altogether." According to the story, after "medical, in-house reviews, billing and investigative costs," the initial $102 spent on the claim substantively had "added up to more than $5,000.00." 

Fraud charges were pursued "on the basis that Walker had lied to his employer and to the physician's assistant about his injury." Because funds were expended on "assorted medical, bureaucratic and investigation costs," Walker was also charged with theft. 

This story made me think of Alice and Arlo, see above. But beyond that it made me think of some broader questions. First, how does $102.00 in actual benefits balloon into $5,000.00? How prevalent is it for an employer to pursue surveillance regarding an employee who makes one trip to a medical clinic, and never sees a doctor? And finally, is it fraud to go to a clinic to be examined and to see if you are injured? 

Arlo makes some fun in his song. He says that the investigation of his littering offense was "the biggest crime of the last fifty years" and that the local officials "turned out in force." They were "usin' up all kinds of cop equipment" and "takin' plaster tire tracks, footprints, dog-smellin' prints" and they "took twenty-seven 8 x 10 colored glossy photographs." 

For the millenials, we used to take pictures with a camera, not a cellphone, and the results were often printed on special paper so "pictures" were viewed on paper, not on our computers or phones. clarity could be hoped for in printing the photos in a large format, and 8 x 10 was a popular, larger size. 

But back to the story. In other words, the police investigated Arlo's littering infraction like it was a federal murder scene. Arlo noted that "everybody wanted to get in the newspaper story about it." 

The Deonte Walker story made a small splash in workers' compensation news circles. It was featured on LexisNexis, the Daily Republic, and Thereporter.com last spring. I suspected this "bumped knee massacree" would return to the news so that everyone would by now know whether Deonte "had to pay fifty dollars and pick up the garbage." But the matter has not resurfaced to date. Perhaps like "how many licks it takes to get to the center of a tootsie-pop," (another boomer pop-culture reference you can Google) the "world may never know" how the prosecution concluded. 

Make no mistake, I am not advocating fraud. But this "Bumped Knee Massacree" made me wonder. Is it fraud to visit a clinic for an examination? The Massacree also made me think about Arlo, Thanksgiving, and all that entails. The case makes for interesting reading, and perhaps some conversation. 

Here's wishing you and yours a great November and a safe and happy Thanksgiving. For my part this week, I reflect today on this industry and the people I have met in it. I had the chance to see a fair number of them this year at confernces and events. I have learned a great deal from so many, whose patient professionalism contribute so much to workers' compensation. 

I am thankful for each of you and for the opportunities I have had to expand my knowledge of the law. Your suggestions and challenges make this job interesting and worth doing. In reflecting this week, I have much for which to be thankful. I hope you do too. 

#workerscomp
#workcom