Pennsylvania Case Reminds of Documentation and Explanation

A recent case in Pennsylvania dealt with settlement of a workers' compensation case, and the repercussions that followed. It is a good discussion for review of issues regarding how parties are prepared for negotiations and potential case closure. 

WorkCompCentral reported last December that the Pennsylvania Supreme Court rejected a petition for review, bringing to a close the malpractice litigation by an injured worker's against his own attorney. The representation and ensuing case spanned ten years. The injured worker, Mr. Silvagni, was injured in 2005. In 2008 his case was settled. In 2011, he sued his attorney for malpractice, and in 2015 the Supreme Court's dismissal, or rejection, ended the saga. Four of the ten years of this relationship, 40%, was the malpractice case. 
  

Mr. Silvagni alleged that only after the settlement was approved did he learn that the $60,000 payment would "terminate his entitlement to future benefits or medical payments that stemmed from the accident." He claimed that if he had know that his future benefits would cease, he "would not have agreed to the terms of the settlement." 

Often in workers' compensation cases there are claims pending for determination by a judge, commission or board. The injured worker may believe that benefits such as medical care or lost earnings should have been paid after an injury. As a claim or petition for these benefits works through the system, there may be discussions, negotiations, and sometimes mediations. It is usually possible to settle those claimed benefits, in other words stop the litigation over these "past benefits," in exchange for some payment or other compromise. 

It is also possible in most states to settle any potential entitlement to benefits that have not yet become due, and which may never become due. These are "future benefits." They may be harder to place a value upon, less certain, less predictable. 

It is even possible that a settlement might resolve more rights and responsibilities than are covered by the workers' compensation statute. I have heard of workers' compensation settlements paralleled by "side agreements," which are expressed in a "general release," on such issues as unemployment compensation, wrongful discharge allegations, discrimination allegations, the Americans with Disabilities Act, the Family Medical Leave Act and more. 

Mr. Silvagni sued his attorney for legal malpractice in 2011, three years after the workers' compensation settlement. The Philadelphia County Court granted summary judgement, dismissing his claim. The injured worker appealed, and the Superior Court affirmed. Mr. Silvagni then petitioned the Pennsylvania Supreme Court to review the case, and in December 2015 the Court declined. The litigation against the attorney spanned four years in three courts.

That timeline is interesting. A 2005 injury followed by a 2008 settlement is not necessarily out of the ordinary. But the malpractice suit was filed in 2011 and four years later, the injured worker's former attorney can finally close and store the file. Today's client could be part of an attorney's life for the next ten years (2005-2015); from a different perspective, a malpractice case beginning today could be part of an attorney's life for the next four years?

I have noted before that Agreements Matter. They matter when they are made, and they matter thereafter. Certainly there are exceptions to the rule. When agreements are reached due to fraud, misrepresentation or duress, then there may be litigation and eventually relief from agreements. But, the law favors agreements. So, an issue may be what parties to the settlement knew, when they knew, and whether their information was accurate. 

It is critical in this regard to know what the terms of any agreement are. There are good questions to ask about agreements, like "will this settlement terminate my 'entitlement to future benefits or medical payments that stemmed from the accident?'" However, the time to ask those questions is before any agreement is reached, In some instances even verbal agreements can be enforced. Reading and thinking and questioning before signing is important, but being similarly careful about verbal agreements is advisable as well. 

In Florida, all workers' compensation settlements used to require approval of a judge. Every settlement was documented in an extensive document (called "Joint Petitions"). "Extensive," usually meant at least 20 pages, but I have seen them much longer. Contingencies and questions were discussed, injury(ies) and medical care were described, work history and future work expectations were described. The documents included a fair amount of "form" or "boilerplate" language, but there was also a fair amount of specific and detail about the case. 

The Florida law changed in 2001 for injured workers that are represented by attorneys. Settlements with unrepresented injured workers still require the extensive, detailed "Joint Petition." But settlements involving a worker represented by an attorneys do not require that documentation any longer. Florida settlements with represented workers only require judicial approval regarding the amount of attorney fees and the allocation of settlement proceeds for any past-due child support. The assigned judge is not going to inquire further in most represented settlements. 

This statutory change made a significant change in judicial workload. Those Joint Petitions, often 25-35 pages of detail and explanation, took significant time to read, digest and approve. The post-2001 Motion for Approval of Attorney Fees and Child Support Allocation for a represented worker takes far less judicial time, and results in a less detailed order. 

Work and responsibility do not exist in a vacuum. When the statutory change relieved judicial workload, that work does not evaporate, it must still be done but is done by someone else. The responsibility of making sure the settlement is in the best interest of the injured workers did not evaporate, it moved from the judge to the attorney representing the injured worker. This is logical, because the settlement of cases involving unrepresented workers are still subject to that extensive judicial review. 

Settlements for represented injured workers may now be accomplished more simply, more quickly. But with no requirement for judicial oversight or approval, attorneys should document and explain more thoroughly. The explanation should be sufficient that the injured worker understands clearly what she or he is getting ($60,000) and what she or he is giving up in return ("terminate his entitlement to future benefits or medical payments"). Regardless of whether a judge will approve the settlement, or whether the law requires a finding on this exchange being understood, it should be clearly spelled out somewhere in writing. 

Attorneys need to explain the concept of settlement in advance f any negotiations. A client needs to understand that the attorney will be acting on her/his behalf and that the attorney may make agreements that can effect the client. A client needs to understand whether or not verbal agreements can be enforced. A client needs to understand what she/he will receive in any compromise, and precisely what she/he will give up in return. 

There are periodically cases in which the injured worker contacts the Office of Judges of Compensation Claims to complain that the amount received is not what was expected. Various explanations exist, but a recurring theme in these situations seems to be a lack of clear explanation having been provided to the client during the negotiation or settlement process. 

In the Pennsylvania case, the attorney spent four years defending a former client's malpractice claim. Years ago, I had a professor who repeatedly stressed "we construe the better to construct." That is, we look at how situations or litigation have occurred and we change our practices to prevent similar situations in the future. Attorneys would do well to think about how their practices and processes inform the client about the effects of compromise, stipulations or settlements. 

And finally, when a settlement is submitted, the attorney should take a fairly simple step, Read the order. Even when the client fully understands the intended and documented deal, the end result may be different. More child support may be designated for payment in that approval order than was anticipated or expected. The distribution that was proposed may or may not be the distribution that is ultimately ordered. Before making assumptions, and certainly before disbursing funds, the attorney is well advised to read the order. Then, any difference should be explained to the client. 

A Recap and Result of the Judicial Viral Video of 2014

In June 2014, the Internet erupted with video from a county court in Brevard county, which is the Titusville and Cape Canaveral area of Florida. Last fall I noted that the age of "big brother" is here and perhaps we should all presume we are being watched. As the following was discussed and the video reviewed, I wondered if it is possible this judge did not know that camera was in his courtroom.

As depicted in the video, Judge John Murphy became perturbed with an Assistant Public Defender ("APD") who refused to "waive" speedy trial for one of the APD's clients in court that day. I have many times said that an APD is likely among the best defenders of accused criminals. These attorneys get a great deal of practice, appearing in court daily. They appear overworked, but they have skills.

The judge was frustrated, and so threatened the APD: "if I had a rock I would throw it at you right now." Then the judge gave the APD an instruction: "stop pi#$ing me off. Just sit down." The APD did not sit. The judge then escalated the verbal abuse: "I said, sit down! If you want to fight, let's go out back and I'll just beat your &%s (rear")."

As an aside, this kind of suggestion might be a clue not to follow this judge anywhere. In fact, if anyone angrily suggests going "out back" at a restaurant, a bar, a coffee shop, or anywhere else, it might be best to politely decline. You may still be assaulted or battered without gooing "out back," but the witness pool will likely be larger. 

Lacking the benefit of my foregoing advice, Judge Murphy left the court room, and the APD preceded him into the hall. Unfortunately the hallway did not have a video camera, as the court room did, and so there is no video evidence from the hallway, but some of the audio from the hallway was picked up. Judge Murphy said "all right you, you want to f___ with me."

Without the advantage of a modern day persistent surveillance, the story at that point becomes dependent upon various perspectives of eyewitnesses. Judge Murphy has a story, the APD has a story, Deputy Martinez has a story, and Deputy Griffin has a story. Judge Murphy claimed that the APD assaulted him. The APD claimed Judge Murphy punched him twice, and unsuccessfully asked to have the judge arrested. The deputies testified that they did not see hitting, and they visually perceived no bruises consistent with hitting.

Obviously the judge and the APD witnessed the entire exchange, but both were in the heat of the situation and each has some self-interest in the story. Deputy Griffin was the first of the others on the scene, and his testimony was that he saw physical contact, but neither the APD nor the judge hit each other. Deputy Martinez arrived moments later, having departed a different court room after hearing shouting. She only witnessed judge Murphy and the PD "screaming at each other with two hands each on the other's collar."

After this bizarre spectacle circulated on the Internet, I had several opportunities in meeting settings to discuss the Florida judiciary with national thought leaders from the workers' compensation industry and adjudication systems. Several who viewed the video doubted it it's authenticity. Their incredulous reaction was that it could only be a satirical production. One prominent adjudicator explained to me that "no one is stupid enough to behave in that manner knowing there's a camera present."

The recitation of fact regarding this interaction and altercation is disturbing on a variety of levels. What occurred next, however, is more troubling. According to The Florida Bar News, Judge Murphy returned to the courtroom and resumed normal operations. The APD did not return.

Some might applaud the judge's work-ethic, but the defendants in the eight cases the judge thereafter called had been represented by counsel, the APD. The APD had not returned to the courtroom after the hallway scuffle or fight. The eight defendants were without counsel. 

Anyone who has watched any television over the last four decades will recognize that people accused of criminal offense have "the right to an attorney." This Miranda v. Arizona warning has long been the unwavering fodder of pulp fiction and Hollywood alike.

The judge asked one defendant, accused of DUI, how he wished to proceed. The defendant replied that he "had no idea what to do in this situation." The defendant complained that he had not "had a chance to speak to my public defender and now I don't have a public defender."

The judge offered this defendant "a chance to talk to a public defender if he waved speedy trial," (emphasis added) a fundamental constitutional right, which the defendant therefore did waive. You may speak to your attorney if you waive some other rights? That is an interesting offer. All eight of the cases the judge called after the event are discussed in the Court's decision. 

The Florida Judicial Qualifications Commission ("JQC") investigated this exchange and the aftermath. It is notable that the JQC "indicated a trial judge's duties frequently include periods of significant stress." That is an understatement. trial work can be very stressful. However, I would note that this is true for parties, attorneys, witnesses and judges.

Judge Murphy testified during the JQC investigation. He said that "he regretted his words and actions." During the JQC investigation, Judge Murphy claimed that proceeding with those 8 cases after the altercation, without the defendants having benefit of counsel, was appropriate because the PD's "clients were also his (the Judge's) clients." However, he "also admitted that resuming with the defendant's cases was clearly wrong and waiting for a new public defender to arrive before proceeding would have been a better course."

Following the investigation, the Florida JQC recommended a conclusion of probable cause, and asked the Florida Supreme Court to impose "a public reprimand, suspension without pay for 120 days (a loss of about $45,000), a $50,000 fine plus costs, and continued participation in a mental health therapy program," according the The Florida Bar News. That would ,have been a significant penalty.

It is noteworthy that Judge Murphy served this country in the military and that he has a service-related disability. I have, and encourage, great respect for those who wear or have worn this countries uniforms. It is also noteworthy that medical issues may have played some role in the escalation leading to the viral video.  I am appreciative of his service and sympathetic to his situation. The details are in the Court's order. 

The Court reviewed the JQC findings and recommendation. It noted that "there were 45 letters of support submitted to the JQC on Judge Murphy's behalf." Following the incident the judge apologized for his conduct in letters to the legal and local communities and to the APD involved. The JQC and Judge stipulated that some witnesses, if called by the JQC, would have testified in support of this APD's "reputation as difficult an unprofessional." 

After consideration of all of the facts, mitigation, and explanation, the Court rejected the JQC recommendation. The Court found that the "egregious conduct demonstrates his present unfitness to remain in office," that his "grievous misconduct became a national spectacle and an embarrassment to Florida's judicial system."

In describing its logic for the removal of Judge Murphy, the Court cited the use of "profanity in an open courtroom" and the threat of "violence against an attorney." These, the Court said, "erode the public's confidence" in the judge and the judicial system. Finding that the "total lack of control became a national spectacle," and that the behavior was "appalling," the Court concluded "removal is an appropriate sanction." 

There has been no conjecture regarding whether Judge Murphy might face further investigation by The Florida Bar, as has been seen in some other instances of judicial removal. The Court's opinion specifies violation of various Canons of the Code of Judicial Conduct, and "Rule of Professional Conduct 4-1.1." The Professional Conduct Rules govern the behavior of attorneys. As of January 17, 2016 Judge Murphy was listed by The Florida Bar as a "Member of the Judiciary," with no recent (10 years) history of discipline.

Judge Murphy filed for a rehearing (asked that the Court reconsider its decision) and had asked the Court to clarify that his removal from the bench was due to his medical disability and not his "appalling" behavior. Judge Murphy argued that the discipline, as imposed, "tainted his sterling reputation," according to Law360. He had asked instead that the Court involuntarily retire him from the bench based upon his disability, which played some role in his behavior. On January 13, 2016 the Florida Supreme Court denied Judge Murphy's motion for rehearing, according to Law360.

Get Ready for February! Free Seminar!

There is still time to register for the free WCI/OJCC seminar in Tallahassee next month: February 18, 2016 at the Florida First District Court of Appeal. 

In a procession, the great events of workers’ compensation education pass us throughout the year. Conferences and conventions have been around almost as long as the concept of workers’ compensation. As floats in a parade, some are large and imposing while others are more austere. Some seem bright and alive while others could perhaps use a fresh coat of paint. Some are driven by profit and others not so much.

For some reason many of the conferences and conventions gravitate to summer. Some, like the American Bar Association (ABA) mid-year meeting and College of Workers’ Compensation Lawyer induction dinner actually push the season a bit, gathering in March. WCRI has a major program in March, and NCCI usually in May. To enjoy WCRI you have to brave the cold of Boston, for NCCI sunny Florida is more likely. But leading the parade in Florida each year is the OJCC program at the Florida First District Court of Appeal. This one-day program is by far the best value for your education dollar. Our program is free!

A very few other programs dot the landscape later in the spring. There is the Workers’ Compensation Institute Spring Forum, and The Florida Bar Forum, usually in April. But until school is out, that is about it. These few are the precursors though and they often set the stage for what hot topics take center stage. 

June starts the season in earnest. Florida sees the Workers’ Compensation Claims Professionals (WCCP) in Naples. The Florida Workers’ Advocates (WCA) gather in Orlando, and various state conferences are held across the country, including Tennessee. The SEAK conference occurs in Hyannis each June. By then, a trip north is not as challenging as it would be in winter. 

July brings the Florida Association of Self-Insureds, at the Ritz Carlton in Naples. The Southern Association of Workers’ Compensation Administrators (SAWCA) gathers each July for its Annual Convention. SAWCA events are national, with an admittedly southern exposure. In 2016 SAWCA will be at the Grand Sandestin, among the most beautiful beaches in the world. 

August ups-the-ante, with the Workers’ Compensation Institute (WCI) in Orlando, a perennial event of amazing breadth and depth. This is simply the largest conference of its kind in the nation. In conjunction with the WCI, the National Association of Workers’ Compensation Judges (NAWCJ) conducts its annual Judicial College. Likewise, SAWCA conducts a Regulator College and the unparalleled Regulator’s Roundtable for workers’ compensation. Occasionally imitated, but never duplicated, the Roundtable is a must-see. Georgia then brings closure to the "main-event" summer season with its state conference the last week of August. 

September brings respite and pause. There is a brief interval in the parade, which allows us in the audience to reflect on all that has been presented. September evolves to October as we capitalize on this chance to reflect. 

November brings the National Workers’ Compensation Conference in Las Vegas. I have never been, but have heard a great deal about it. It boasts diversity and complexity on its program. SAWCA gathers again in November for its All Committee Conference. Without the hoopla of big ballrooms and keynotes, this platform affords opportunities for quiet conversations and reflection on comp specifics. 

The year is capped by Comp Laude program in early December, sponsored by WorkCompCentral. Another event I have never attended, but about which I also hear great things. It is on my bucket list for one of these years. But then in the winter of our workers’ compensation content or discontent, we return to the office, prepare for the long legislative sessions, state budget issues, business plans, strategic plans, and more. How will we apply the volumes of knowledge accumulated through the year? 

And soon the year starts again. Not the identical parade each year, but each year brings similarities. There will be beaches, mountains, keynotes, breakouts, lunches, dinners, conversations, revelations, consternation, inspiration and more. 

The floats in this parade are all different. Some more personally appealing than others, but each has its own appeal. We all understand that there is likely just not enough time to attend the whole parade. We come and we go. We meet and we mingle. We listen and digest. We learn and reflect, and grow as we do. 

I am often asked which is my favorite, but that is an unfair question. They are different. They each seem to me to offer something that is of value to agencies, to experts, to novices, to leaders, to followers. Now, in January, let’s reflect on what we all learned last year. Let’s think about what we can do to bring positive change to this thing we call workers’ compensation. After all, that is the point of our collaboration and discussion.

And, we look forward to seeing you in Tallahassee February 19, 2016 for the free continuing education program sponsored by the Florida OJCC and WCI. We are fortunate to have the use of the Court's facilities, the support of WCI, the support team at Resource Managers Inc., and a fantastic committee of organizers, Judges Anderson, Dietz, Humphries, and Lazzara. They have organized a great program to kick-off the 2016 season. Information on the program and registration is here.

Marijuana May Be a Problem, You Think?

Marijuana has been in the news over the last couple of years. It is not a new concern for workers' compensation, but it is a concern. Impairment from marijuana will be a struggle for states and employers. The interaction between federal prohibition and state non-enforcement will be an ongoing complication. Employers will struggle with whether to employ those who use marijuana, as states become more permissive and the federal government's interest perhaps continues to wane. The issues are numerous and intriguing. 

Marijuana has not been widely studied. There has not been a drive or imperative to study the substance, because it is illegal. Not "was" illegal, it "is" illegal. It is classified by the United States government as a Schedule I. substance. It is a substance, by legal definition, "with no currently accepted medical use." "Medical marijuana is currently an oxymoron. 

The Motley Fool, an investment prognostication group, recently suggested though that actually We May Have a Marijuana Problem on Our Hands. You think? 

The acceptance of marijuana is briefly outlined by the Fool. Illegal "in all states in 1995," to now being "legally sold in 23 states for medicinal purposes." ignoring that it has no "accepted medical use." This contradiction is difficult to overcome or ignore, but for our purposes, we have to move on. It is impractical to have the "immovable object meets the irresistible force" argument on this. 

Despite the fact that it is illegal, has no accepted medical use and cannot be legally prescribed, it is being recommended by medical doctors and supplied. Despite the fact this violates United States law, the United States is neither investigating or prosecuting those engaged in the marijuana enterprise. It is a law the government has elected not to enforce. Just as it might one day elect not to prosecute possession and distribution of cocaine, heroin, or opium, that is the government's decision. 

The Fool reports that with marijuana's popularity has come a "push for experimentation into its possible medical benefits." The story notes, however, a recent study published in the JAMA Psychiatry, which "subtly implies that we may very well have the beginnings of a marijuana problem on our hands." The study recognizes the existence of "marijuana use disorders, which are defined as abuse or dependence on the drug." 

Dependence may be only one of the issues this substance will bring to the fore. What does marijuana do to the human body? There is anecdotal evidence, and there are a plethora of perceptions and beliefs about marijuana. But because it is illegal, there has perhaps not been the testing and research seen with other substances. 

Yahoo News reports on a recent study conducted by Yale and Pennsylvania State universities that decries the perception that marijuana produces "stoners" who are "mellow." Instead, their "study found a positive short-term correlation between marijuana use and hostile and impulsive behavior." In short, study subjects "were more aggressive on days they used marijuana, and the following day, than on days they didn't get high." Admittedly, it was a small-sample study, over a short time period, but some believe it supports further study. 

Yahoo cites a 2012 study finding "that weed can cause anxiety for regular users during periods of withdrawal and puts those with genetic tendencies at risk for developing schizophrenia. It cites another study published in the Psychology of Addictive Behaviors in September that "showed that the drug had an indirect negative relationship with grades among a cohort of college students." Those who used marijuana experienced class-attendance issues, and lower grades. Might the same be true for work-attendance? 

As an industry, we are struggling with the path to destruction that has been paved with hundreds of thousands of lives affected or ended by the dispensing of opioids. A very interesting study recently concluded that people who overdose on opioids are likely to receive, MORE OPIOIDS. That is intriguing. 

People are dying from opioid use (direct effect) and we are told that opioid have been the impetus for others to move on to heroin and other street drugs with devastating consequences. When people abuse them, the medical community tendency appears to be keep providing opioids. And these are drugs that were extensively studied before they became a part of the marketplace.

If marijuana brings us addiction, anxiety, schizophrenia, and the suspected indirect negative impacts, will the inclination of medicine likewise be to provide more marijuana? 

The JAMA-reported study encompasses data from "face to face interviews" in two surveys. One of "43,093 adults between April 2001 and April 2002, and the second" of "36,309 adults between April 2012 and June 2013." These would both appear to represent significant populations. The results demonstrating by comparing these groups? "Marijuana use prevalence and marijuana use disorder prevalence had both risen over the prior decade." This is an understatement, in fact the "use prevalence" of marijuana "more than doubled to 9.5%." 

The other factor, "use disorder" or "exhibiting abuse of or dependence on" marijuana has demonstrated a decrease, in terms of a percentage of users, in the studied decade. That is, fewer of the users are suffering "use disorder." But, because the number of users has increased so significantly, "the total number of users exhibiting a marijuana use disorder as a whole is up over the prior decade." In short, more people are using it and more people overall are demonstrating tendencies of "abuse of or dependence upon" marijuana. 

The conclusion is that we can expect addiction rates of about 30% in marijuana users. The NY Times in 2003 noted that "most people, including most physicians, understand little about what draws people to drugs and keeps them hooked." In 2003, the statistics reported that dependence rates were: tobacco 32%, heroin 23%, cocaine 17% and alcohol 15%. marijuana was only 9%. A decade or so later, that rate for marijuana has tripled. 

Marijuana use is permitted for medicinal use in 23 states. Five of these have also elected to not prosecute recreational use: Alaska, Colorado, Oregon, Washington, and arguably the District of Columbia. About 47% of Americans live in one of these 23 states. Less than half of the country has access to "medical marijuana" and only about 6% have sanctioned access to "recreational marijuana" and addiction has tripled in the last decade. What effect will further state decriminalization or medical recommending have? 

The Fool suggests that this evidence will support continuation of the federal prohibitions on marijuana despite various state's rush to decriminalize. However, the Fool contends that a bigger roadblock will be evidence of marijuana presenting a long-term safety risk to those who consume it. The article concedes, contrary to the Schedule I label, that there have been "numerous instances of marijuana providing medical benefits." But, there are also "a mound of clinical studies stacked a mile high detailing harmful side effects." 

The Fool suggests that our future will include more studies. Against a backdrop of decades of study focused upon marijuana's risks, recent studies demonstrating benefits will likely become more prevalent. It notes that the recency of "medical benefit" studies will also leave a marketplace questioning whether benefits can be demonstrated to be long-term versus short-term. Many of us remember when "the studies" supported the efficacy and safety of opioids. We watched the medical-legal complex rush to embrace it, and we now look back and many wonder "what if" we had known then what we know now? 

Yahoo concludes that some in law enforcement see marijuana as "the biggest drug threat." But, that "as of 2014, no one had died from marijuana use alone." Others take issue with that conclusion. They note that as this conclusion is constructed, one might as easily say that smoking does not kill people. The effects of smoking, such as cancer, obviously and notoriously kill people and so the fact that smoking itself is not fatal does not support a conclusion that it is safe. 

The end result will be interesting to watch. Marijuana presents potential benefits to patients and potential harm is also plausible, likely probable, and perhaps inevitable. As states rush to embrace it, medically or generally, for revenue benefits or otherwise, it will profoundly implicate workers' compensation and the employer/employee relationship.

Houston, we may have a problem . . .

Constant or Persistent "Non-Trauma?"

In workers' compensation, we have seen an evolution. I recently heard Frank Neuhauser speak about the future of workers' compensation. He appeared at the Southern Association of Workers' Compensation Administrators' (SAWCA) Annual Convention in Williamsburg last summer.  He is with the Center for the Study of Social Insurance at Berkley in California. He says that workers' compensation was originally designed early in 20th century to deal with traumatic injuries. 

He says that these traumatic injuries are reasonably easy to observe and verify. His example is a blunt-force trauma (something hits someone) and there is a resulting fracture of a bone visible on an x-ray. 

He compared these to work injuries in the 21st century. These injuries (the result of accident or disease) are more frequently, in his perspective, more difficult to perceive and verify. These are the occupational diseases, internal soft-tissue injuries like torn rotator cuffs or menisci, spinal disc injuries, and similar. He does not suggest that these are less valid injuries, just that they are harder to observe (visually identify and verify) than a fracture or a visible abrasion. 

He laments that the workers' compensation systems struggle with these modern injuries. He contends that these struggles are not because they are harder to discern, but because the systems were adapted to them, not originally designed for them. These maladies came into a system designed for blunt-force trauma and obvious injury, and adjustments and amendments have been made to adapt. But, in the end, the workers' compensation system, in his perspective, was not designed for these and so struggles with them. 

As I listened to his perspectives on the future of workers' compensation in America, it made me think about the "trivial trauma" injuries. Florida workers' compensation lawyers are familiar with Festa v. Teleflex and Tokyo House v. Hsin Chu and Pearson v. Paradise Ford and a litany of cases that discuss the issues of "repetitive trivial trauma." As I thought of those cases and Mr. Neuhauser's comments, I remembered an article I read earlier in 2015. It struck a chord with me because it effects me personally. 

CBS News reported in January 2015 that "too much sitting raises risk of death, even if you exercise." They caution that "too much sitting can take a serious toll on your health." Citing the Institution of Occupational Safety and Health, they take issues with sitting for too long. This is certainly a potential concern for those of us who are primarily desk-bound staring at computer monitors ten hours per day. 

The authors of the study do not suggest that exercise is anything but positive for us. Exercise is good, and most any physician will endorse that. But, they contend that "even if you do a half and hour or an hour of exercise every day doesn't give us reassurance that sitting for the other 23 hours is o.k. In fact, it's not."

In short, the study found that "the health hazards seem to be greatest for people who sit 8 or 9 hours a day." Clarifying the benefits of exercise generally, they also concluded "the impact (of constant sitting) was even more pronounced in people who did not exercise regularly." Sitting all day is not good. Sitting all day and never exercising is worse. 

The possible "sitting" maladies are not to be taken lightly. They include increased "risk of cardiovascular disease by 14 percent, cancer by 13 percent, and diabetes by a whopping 91 percent." The combination of prolonged sitting combined with the absence of exercise equates to a significant risk of "early death." That phrase should get the attention of desk-sitters.

The article questions whether "sitting (is) the new smoking?" With all that has been published regarding the health risks associated with smoking, that question likely resonates with many. Everyone has heard a great deal now about how dangerous smoking is. As an aside, those risks curiously have been ignored by doctors who recommend smoking marijuana as medical treatment. But in the end, for many of us, sitting is simply what we do. It is the "normal" in our lives. And, we hear more and more about how sedentary our lives have become both on and off-the-job. 

With so many risks in the work place, there have been responses in the form of safety devices, safety rules, and ergonomics. But how can one be protected from the risk of sitting? Is the risk of sitting a repetitive trivial trauma or occupational disease analysis? Or is this yet another new concept, a repetitive "non-trauma," to which systems may have to adapt? Is the fact that our posterior is placed on the chair a "trauma" each morning? Is there a workplace reaction to guard against the effects of this threat, whether it is a "trauma," a "trivial trauma" or a "non-trauma?"

The current suggestion is "standing up and taking a quick, 1 to 3 minute break every half hour or so throughout the day." There is also support for the idea of standing desks. Some companies cited by CBS News have transitioned large portions of their workforce to stand-up desks. Last year, workers' compensation blogger Bob Wilson noted some dissatisfaction with that remedy, noting that constant standing also resulted in complaints. Perhaps the solution is not "constant" anything, but periodic change?

So, we will see if repetitive sitting claims become a part of the workers' compensation landscape. With this study's conclusion that "too much sitting can be hazardous for your health," what will employers do to alleviate risk? Would we all be wise to remind ourselves to take a walk down the hall every half hour? 

For some of us, the only time we arise is to retrieve more coffee, or visit the restroom. These have come to be known as "personal comforts" in the lexicon of workers' compensation. Injuries can happen in the course of such comforts. An injured worker returning from a bathroom break might be injured. Courts have ruled that such injuries are compensable. In the same thought process, might employers likewise be liable if an employee was injured while taking that periodic walk down the hall to alleviate persistent non-trauma sitting?

Is that walk down the hall for a periodic stretch, a simple interruption of the persistent sitting, a good idea? The experts seem to say it is. Could that walking result in accidents or injuries? That is also possible. So, there appears to be risk either way, from prolonged sitting or from a brief stretching of the legs. The risks of sitting, "early death" seem to be a bit more serious. It seems logical to attempt to alleviate that big risk with the risks of taking a short break for a walk to the break room, restroom, or end of the hall.  

As a caveat, taking that walk to smoke (anything) seems to cancel any benefit with just another harm. This sitting risk now gives you a better reason to stretch your legs than going outside for a smoke!

An Emergency Room Story that Makes me Think

"Birdstrike" is an emergency room physician who blogs at Dr. Whitecoat. Her/his blog came to my attention on MedPage Today recently. She/he is somewhat anonymous and so the musings have to be taken with that context. 

Last July, Birdstrike published a post regarding an emergency room (ER) visit. It provides some interesting perspective. 

First she/he describes a long 12 hour shift in the ER. At the end of that effort, Birdstrike finds the ER with 25 patients still to be seen. Who works 12 hour shifts? Any of us likely can. Just because we can, does that mean we should? Are any of us at our best after 12 hours spent on any activity?

In sympathy with the physician on the next shift, Birdstrike remains and takes another patient, a complaint of ruptured eardrum. The patient is a minor, presenting with both parents. She complains of a head trauma, and expresses fear of a ruptured eardrum. 

The patient, who has a history of prior eardrum rupture, notes that her last experience put her on the injured reserve, and conjectures that she will be unable to play at this time. The exam reveals a "perfect" ear drum, and discharge/blood that looks and smells like "raspberry jelly." At the end of the exam, Birdstrike concludes "her ear is completely normal."

Birdstrike inquires further and when confronted the patient admits to putting jelly in her ear. She explains that an upcoming basketball tournament is not her priority and instead desires to attend a friend's party coincidentally scheduled. 

She is discharged. One parent returns to the exam room to ask about the encounter. The parent is suspicious, and with merely a nod, Birdstrike confirms the parent's suspicion "she faked it?"

Days later, Birdstrike learns that the patient subsequently attempted suicide. The parents are blaming Birdstrike. They have submitted a satisfaction survey rating Birdstrike with "the lowest scores possible" and they have filed a complaint with the hospital administration that Birdstrike violated HIPPA with the head nod. The family is consulting an attorney with the intent of suing for malpractice; the claim is that Birdstrike missed the diagnosis. Not the jelly-in-the-ear diagnosis, the suicidal depression diagnosis. 

Birdstrike now faces the patient, the family, the hospital and the litigation. And while she/he faces and deals with this, I suspect, she/he continues with the stress of 12 hour shifts in the ER and the parade of maladies and injuries that entails. See, we might all agree on some things that are emergencies. We might also disagree whether all the complaints that end up in that venue are emergencies, despite being completely legitimate. Some people apparently use the ER as their primary care. 

Birdstrike's story resonated in a couple of ways. 

First, there are patients that are using our medical system for purposes other than receiving medical care for legitimate maladies and complaints. Some may be malingering in hopes of attending a party. Some may be exaggerating in hopes of obtaining some pain medication. Some may legitimately perceive complaints that simply have no sound foundation in physiology or science. Some may have conditions that should be presented to a family phsician during normal business hours, but are not for whatever reason. They are consuming resources that could be devoted to people that need emergent care.

Second, it illustrates the varying perspectives we may have on ERs. I was recently in a conversation with a mother that had taken a child to a local ER. This was one of those ERs that has billboards all over town with a digital portion promoting their current "wait time" in minutes. The implication is that a visit to this ER will entail a very short wait time. This mother's experience was that the advertised 10 minutes was actually more like 3 hours. Oh, she was greeted within 10 minutes. She was given papers to complete within 10 minutes. But she was two hours getting her child to an exam room and another hour after that being seen.  After the exam, there were papers to complete, orders to explain, and in all about four hours was reportedly consumed by this ER visit. 

She related that during her hour-long wait in the exam room she periodically stepped out the door to view the hallway. The clerical area in the center of the ER was consistently well-populated by men and women in hospital scrubs. Conversations were ongoing, animated, and she noted periodic eruptions of laughter and frivolity. She repeatedly wondered why one of this cadre of souls could not be bothered to come provide care and treatment in her examination room. She became angy. She concluded, her own opinion, that much or all of the delay that day was avoidable. She did not come away from the ER experience (1) impressed, (2) satisfied, or (3) happy. 

There are multiple perspectives on things. A patients' parent see a "coffee-clutch" in the clerical area and feels no one in the ER is working. Possibly those people are working, completing the plethora of documents, forms, referrals, and prescriptions that modern medicine requires? Perhaps they become jaded regarding urgency when they see enough raspberry jelly or similar complaints? Perhaps those people, who inexplicably are scheduled for 12 hour shifts periodically, and naturally, reach a point where laughter is their only medicine?

Third, Does any patient know everything else going on the ER? Likely not. Can the medical personnel explain to the waiting patients why the wait was what it was? Again, not likely. HIPPA precludes them from explaining what they were doing in the room next door for the last minutes or hours, which delayed their entry to this exam room. They may apologize and share that "it has been one of those days," but that is likely as far as it goes.

Though they cannot explain in that detail, the advertisement of a "10 minute wait" on a public billboard is not so simple to explain. That raises expectations. Anyone seeing that the "wait" is 10 minutes will perceive that to be the "wait" before help, not the "wait" before paperwork is provided for completion. Do hospitals create satisfaction by raising expectations of service after a 10 minute wait, only to fail to deliver what people reasonably expect from the advertisement? No. If you create an expectation, you are responsible for failure to live up to it. 

Many people have related similar expectation stories to me: when they scheduled a doctor's appointment for 9:45, and the doctor does not see them until 10:30; when the repair person is to visit between 8:00 and noon, and does not show up until 1:00; when the hearing notice says trial will be at 9:00 and the judge does not show up until 9:30 and then spends another 30 minutes obtaining coffee and getting situated; when the shop promises the vehicle will be ready at 3:00 and presenting at that time the customer gets the keys an hour later; when the judge promises an order will be "issued later today" and then days pass before this occurs. If you create an expectation, you are responsible for failure to live up to it. If you fail to live up to an expectation you specifically created, the disapointment and anger are your responsibility. Justified perhaps by circumstance, but still your responsibility. 

Fourth, The ER physician perspective is interesting. The patient in this story presented with a frank misrepresentation. The medical system was inappropriately engaged for a purpose other than medical care. This may have contributed to the delay in the ER for others that evening. This may have contributed to a cultural malaise or frustration or jading of ER personnel. It may be difficult to rush to the next emergency when your last emergency was raspberry jelly.

The ER physician is expected to take people at their word, address the presenting complaint, make a diagnosis, and provide care that stabilizes the patient. But is the ER doctor supposed to diagnose conditions or anticipate diagnoses of which there is no complaint? Perhaps the answer is "yes" in some circumstances. 

What if a trauma victim presents with a broken arm and emphatically denies other symptoms and complaints? If the patient's pupils are unequal, should this be investigated despite denial of head trauma and any symptoms? I suspect most would agree that the physician should do a reasonable exam and should pursue visual or other clues and signs. But, Birdstrike identified no such signs of depression. Was the teenager suicidal or depressed in that ER when seeking a spot on the injured reserve, or did that teenager become suicidal later after failing to obtain the excuse from the tournament that would facilitate attendance at a party?

That dichotomy will be examined in retrospect in the malpractice action. What was said, and what was not? What signs or symptoms were there? It will not likely be a brief process. 

What lessons can be gleaned? Does every ER physician need to do an in-depth depression inventory, complete with documentation, for each patient that presents? Perhaps this effort and documentation would identify and memorialize the presence or absence of signs or symptoms. But, how much additional time would that require? What would it mean in terms of delay for the next patient(s)? 

I think we can glean a few lessons, however. If we create expectations, we should live up to them. When we do not, to the extent we can, we should explain why. In any event we should deliver a sincere apology. When others do not live up to our expectations, we should understand that perhaps they could not, and for whatever reason they cannot explain this fully to us.  We should be willing to forgive when we can. We have to realize that people may perceive us differently, as we show up late and obtain our morning coffee, or stand about and seemingly joke while they wait? We cannot change them or their perceptions, but we can strive to understand them.

A Time for Leadership - Now

Eighteen months ago the Workers' Compensation Research Institute (WCRI) was in the midst of a search for a new CEO. Someone to be the face and the leader of an organization with the potential to be a great influence on the nation's worker's compensation systems. In 2015, the National Council on Compensation Insurance (NCCI) was likewise poised to pass its baton to a new CEO. These two organizations have the potential to impact workers' compensation a great deal. 

These leadership changes caused me to think about who studies American workers' compensation. Where do I regularly turn for information and perspective?

The WCRI and NCCI naturally come to mind. There are a handful (arguably) of collegiate academics interested in workers' compensation; there is the National Academy of Social Insurance (NASI); and there is the Insurance Information Institute (III)(as an aside, If you ever get the chance to hear its CEO Bob Hartwig speak, take it. Everyone may not always agree with him, but he is a great speaker). 

There are a handful of bloggers (in the traditional sense) that are making a national impact. Among them (disclaimer, these are listed alhabetically, by last name (sorry Bob), not in order of importance or impact: bloggers can be a bit competitive and I do not want to upset any of them) Joan Collier, David DePaolo, Michael Gavin, Jon Gelman, Joe Paduda, Mark Walls and Bob Wilson. Some companies are blogging, notable is Safety National's blog focused on the discussions and prognostications emanating from the various educational conferences. 

There are national LinkeIn groups provided by WorkCompCentral.com (DePaolo) and WorkersCompensation.com (Wilson) (alphabetical again), as well as interest groups like the Work Comp Analysis Group and Workers' Compensation Claims Professionals (WCCP).  

A handful of people and organizations consistently make meaningful contributions to the collective workers' compensation knowledge on Twitter. Let's face it, no matter how you feel about Twitter generally, you have to admit that it is a challenge to express substantive thoughts in 140 characters or less. A few have managed to use the platform to effectively inform about workers' compensation. Some of our usual suspects like Jon Gelman (@jongelman), Mark Walls (@wcanalysisgroup), Bob Wilson (@workcompking), WorkCompCentral (@workcompcentral), Work Comp News Network (@wcconnections), and a handful of other contributors like Tammy Boyd (@tamiami3401), and Rafael Gonzalez (@gonzalezrafael) come to mind.

But the most prolific workers' compensation industry users of Twitter seem to be Kimberly George, and then somewhat more singularly-focused corporate contributors like PropertyCasualty360 (@PC_360), Insurance Journal (@journal), and Sedgwick (@sedgwick). Not that their message is not worth reading, but each seems to be focused more on one part of the "elephant" (see below). 

There are only a couple of consistent news sources regarding workers' compensation. And to some extent, again, it is "the usual suspects" as Captain Renault noted in Casablanca. WCI360, WorkCompCentral, WorkersCompensation.com and WCI360.com provide news coverage of the industry. WorkCompWire provides links and announcements about the industry. It leads to news, but is less likely to directly provide, original content of its own.  

And that is about it on a national scale. Certainly, there are a great many more bloggers, associations, and interests with narrower foci, to a jurisdiction or a specific market segment. There are a great many other LinkedIn groups also, which address geographic or market subsets of the whole. 

There are organizations such as the National Association of Workers' Compensation Judiciary (NAWCJ.org), the Southern Association of Workers' Compensation Administrators (SAWCA.com), and the Workers' Compensation Institute (WCI360.com). These build collegiality and educate. Through them comes focus and discussion, but among them only the WCI consistently produces commentary or news related to workers' compensation. There are also, of course, state and local conferences, newsletters and groups with more specific foci.

But workers' compensation simply does not traditionally attract a great deal of national attention. In the national news 2015 was unique with Propublica writing extensively about workers' compensation from a national perspective. But, the first time many people heard of Propublica was when those articles began to be posted last spring. Whatever its impact, Propublica is simply not Associated Press, CNN, Fox News, MSNBC or Reuters. Certainly, local or state news sources pick up stories about fraud or rate increases in workers' compensation, but coverage is frankly minimal. 

Why should this topic receive more news focus? 

Workers' compensation in America is a significant business. Last year I wrote Where did it Come From, Where is it Going, and How “Huge” is it Anyway? Lex and Verum, Number LVII June 2014. There I noted the now famous quote of  Judge E.R. Mills, of the Florida First District Court of Appeal: "workers' compensation is a very important field of the law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it."

I then proposed some measures by which we might quantify "huge" in the context of understanding this foundational element of our national economy. I noted "as of 1995, 91% of the wages paid in this country were covered by some workers’ compensation system." The volume of medical and indemnity benefits benefits provided to injured workers in 2011 was $60.21 billion. The same year, the "net premium written for workers’ compensation was $37.5 billion."

Significant? The net written premium of America's workers' compensation industry is approximately equal to the gross domestic product (GDP) of Lithuania, and the 2011 benefit payouts were approximately equal to the GDP of Luxembourg, Alaska, or North Dakota. America's workers' compensation benefit payouts, if a "country" would be in the top 100 GDP in the world. 

Workers' compensation in terms of written insurance premium is bigger than the combined cash intake of the National Football League (NFL), Major league baseball (MLB), the National Basketball Association (NBA), NASCAR, and The National Hockey League (NHL). The benefit payout is about twice as large as all of these combined. Workers' compensation is simply huge, and as Judge Mills noted, "it touches more lives than any other field of the law."

Workers' compensation is academically (in a collegiate setting) studied by few. It is a huge industry. When I discuss it with various professionals, I am often reminded of the old story of the Blind Man and The Elephant. How professionals perceive the strengths and weaknesses of worker' comp, its success and its failure, seems to often be related to the particular part of comp with which that person is most familiar, in terms of some element, component, service, or jurisdiction. It is rare to find people who perceive the whole elephant, or who even want to. 

When the WRCI sought a new CEO last year, they conducted a well-publicized, national search of great scope. They sought input and advice from a vast spectrum of the industry. Candidates were nominated and recommended by industry leaders from a vast spectrum of backgrounds and perspectives. WCRI approached their challenge publicly and transparently. It concluded that process, we welcomed him, and the industry looks forward to meeting John Ruser.

The WCRI methodology for it search was broad, public, open, and worthy of compliment. By comparison, the NCCI search was less public. It began with an announcement, there were many months of public silence, questions and conjecture. And then in October a new CEO, William E. Donnell, was announced. The quiet and secretive nature of the search caused industry discussion and doubt. The marketplace will likewise look forward to meeting Mr. Donnell. 

Both of these new leaders will have difficult shoes to fill. Each organization will face challenges through the leadership transition and from the changes coming to this industry. Will each be persona like WCRI's former leader Richard Victor and the III CEO Robert Hartwig, on stage presenting, publishing, inspiring? Or, will they be behind-the-scene managers and leave the spotlight to others? Will the market and industry influence of these entities wax or wane? Time will tell. 

History can be a cruel critic or a gushing sycophant. Our decisions and the course we chart are analyzed through the prism of today's perceptions and truth. Those same decisions will be analyzed again and again through future prisms and truths which we cannot predict or even currently understand. When this market looks back on 2015, as these two unique and market-critical entities handed the reigns to new leaders, we will see how the market perceives the choices that were made, and the processes that led to them. 

Workers' compensation is huge. From a variety of perspectives, it is changing too much or not changing enough. It is too generous or too stingy. The processes are too formal and complex, or too casual and loose. It is the Blind Man and The Elephant. If this industry is to succeed, then the time for leaders is now. Leaders that perceive and seek to better understand more than the particular piece of elephant to which they happen to be closest. Hard questions are out there, and the answers will come to us more readily through leadership, thought, and discussion. 

Who will lead this industry, the safety net of American employers and employees alike? Will it be you? Will you write and post with your perceptions of whatever portion of this market you understand well? Will you strive to understand more than your piece of the elephant? Will you speak at conferences? Will you be critical and ask hard questions about what is right? With a handful of news sources, a handful of academics, a handful of organizations, a handful of bloggers and outlets, will you add your perspective and leadership to the cause? 

In Casablanca, leading to one of the great movie lines of all time, Rick Blaine asks "who are you really, and what were you before? What did you do and what did you think, huh?" This is a telling series of questions that we might all ask ourselves periodically. Ilsa replies as perhaps too many have over the years: "we said no questions." Rick's reply is what I would suggest to anyone who might be a leader for this industry; it says it all: "here's looking at you, kid."

What will the Next 30 Years Teach Us

The Center for Disease Control (CDC) appears to be quietly working on guidelines for physicians prescribing opioids. There are a few truths that influence the debate and likely there are some misconceptions and misperception also. One truth is that bodily injury can result in pain. Anyone that has ever so much as suffered a stubbed toe can testify on this point. 

From that point, however, the debates can become heated. How long will pain last? How can pain be best controlled? What are the detriments associated with various treatments for pain? Is holistic better that pharmaceutical" Should it be therapy, adjustment, feedback, pharmacy? There is no shortage of points for discussion. 

The current debate at the CDC was featured in a WorkCompCentral article in late November. The CDC is reportedly moving towards a standard regarding how much opium is appropriate for the treatment of pain. It has not reportedly been a rapid process. 

Government can move nimbly when it decides to, as it has demonstrated recently with its pursuit of regulation for remote control toys. Possibly that (toys) is pejorative, these toys have the potential to cause harm, but it seems to pale compared to the known harm that opioids can cause, see EForce and Kasper, and What Worthwhile can you do in 11 Minutes?

We know that an airliner could be damaged in the event of a collision with a drone. There have been reports of these drones close to airports and airliners. If an airliner were damaged and a crash resulted, hundreds of people could die, and that is serious. While registration of drones may or may not address that threat, the point is that the Federal Aviation Administration perceived a potential threat and has acted very rapidly to address its registration concerns.

The threat on the pharmaceutical side is not hypothetical or merely probable. The simple fact is that opioids are currently killing thousands of people every year. This detriment is real, current, credible, and serious. Despite this, the CDC effort is not moving as rapidly as the drone regulation effort. According to sources quoted in the WorkCompCentral article, the distinction may be because the opium industry is more established, politically powerful, and resists the establishment of guidelines. A copy of the proposed guidelines is here.

One interest group that has criticised the CDC effort is the American Cancer Society. There are some illnesses that are incurable and excruciatingly painful, cancer is one. Anyone who has witnessed someone experiencing end-stage cancer is likely thankful for opium. Anyone who has watched a family member or friend live through that end is likely to conclude that such patients should have access to as much as they desire in terms of pain relief of whatever they like. But the cancer argument is a red-herring. The proposed guideline excludes that paradigm at the outset, saying these guides are for physicians prescribing for "chronic pain outside of end-of-life care."

Opium use for pain in America is nothing new. Its use dates at least to the Civil War, more than 150 years ago. An interesting PowerPoint on the history of opium is here. But the current state of affairs with opium appears to have begun in earnest in the 1980s with advocacy for opium use to treat chronic pain for the cancer patients. It was found effective for end-stage cancer. An unfortunate feature of the cancer paradigm is that long-term effects of opium were not studied; long-term use is not a risk in end-of-life usage. The great boon to cancer patients has no corresponding "long-term risk" counterbalance. 

In the 1990s this usage advocacy spread to the treatment of chronic pain for injuries. This paradigm does have the "long-term risk" implication. The use for chronic pain naturally implicated workers' compensation, a population of people with injuries; the encroachment into workers' compensation was entirely logical. The results have been troublesome in some regards though; people are dying from prescription medication. Those who study drug abuse tell us that opioids (if they themselves do not kill the patient) are leading people to street drugs like Heroin also. 

The results are disturbing. These results are from a substance approved in many forms by the Food and Drug Administration. It is a widely studied and accepted substance, despite risks. One of the risks identified by the Drug Enforcement Agency is its addictive nature. There are risks associated with opium and thirty years after its use began to escalate in workers' compensation, this industry is recently taking opium risks seriously. Workers' compensation now searches for answers and solutions for a population at risk of harm from, or already addicted to, opioid.

Marijuana is recently becoming part of workers' compensation. As we reflect on the history of workers' compensation opium, we stand at the dawn of medical marijuana. In thirty years, the marketplace will have the benefit of retrospection to appreciate how marijuana affects people. In thirty years, we will know whether it is a boon or a bust. Could marijuana be a solution to pain treatment, or will we perceive it in retrospect the way we perceive opioids today? Will it take us thirty years to know the answers?

A recent study from the Cambridge Journal Psychological Medicine provides some interesting insight into effects of marijuana. Since marijuana has its nose under the proverbial tent of workers' compensation, we might be well served to begin to understand the potential implications of use. 

There has been a trend to legalizing medical marijuana in various states. In 2016, we see credible indications that it may spread to Florida. Recently, we have heard of states moving to include "pain" as justification for marijuana use in other states; one of the current Florida proposals includes pain as a justification. Marijuana could become a drug of choice for treating workers' compensation pain. 

The "legalization" is intriguing because marijuana is illegal under federal law. When states have taken a stand regarding opium, the federal government has intervened to impose federal law instead. When states have similarly taken a stand to legalize marijuana, the federal government has taken a hands-off, "don't ask don't tell" approach. The incongruity of these seemingly divergent federal approaches is interesting. History will judge whether either posture was appropriate. 

Medical marijuana became a credible workers' compensation issue in 2015. A doctor in New Mexico had a patient present for care. The patient informed the doctor that he was already, illegally, using marijuana, and the doctor therefore recommended marijuana. The first critical point is that the doctor did not prescribe marijuana. The second is that the doctor did not identify a problem for which he/she would independently recommend marijuana. 

The doctor's logic was apparently that the patient would use the substance in any event (the patient was already, illegally), and the doctor's recommendation (not "prescription" as that is not allowed because marijuana is illegal under federal law) would allow that use to be "legal" under state law. That is, the doctor's recommendation was merely to render the existing illegal use "medical marijuana." 

This is curious. Present to your physician and report that you have resorted to heroin and ask that she/he recommend heroin so that you can obtain and use it legally. How would a physician react to that? Some will say this is not a valid argument because "is is only marijuana." Time will tell if that is valid or not. 

Following this medical recommendation, the injured worker asked a New Mexico judge to require his employer to pay for the (now) medical marijuana. There is a rub here. Because marijuana is illegal under federal law, there are a variety of federal laws that implicate involvement with it. One avenue that the federal government has used to combat marijuana is banking laws. Bankers that do business with drug dealers face restrictions and complications. Whether states (or the DEA for that matter) enforce federal laws or not, those who sell marijuana are nonetheless still drug dealers in the eyes of the federal government.

The New Mexico judge did not order the employer to purchase marijuana for the injured worker. Instead, the judge ordered the employer to reimburse the injured worker for marijuana he himself had purchased. This removed the employer from the role of doing business with drug dealers, and allows the employer/carrier to merely reimburse someone who does business with drug dealers. This opened another interesting debate on the role of illegal marijuana in workers' compensation.

The decision compelled New Mexico to lead the nation with an effort at regulating medical marijuana in workers' compensation. WorkCompCentral reported in October that the regulations are now in place. Medical marijuana-using injured workers in New Mexico may be reimbursed for up to 8 ounces per quarter, or two pounds of marijuana per year. Some have posited that this is a notable (some say excessive) quantity. 

How do we measure things though? I recently noted that some measures may be more effective than others. In Its not the Age its the Mileage, I noted that how hard one works may have as many implications as how long one works. One of the issues with marijuana is that it is not "a thing," but is a myriad of things. Different strains of marijuana have different chemical compositions and therefore different strengths. There is no grading or "proof" as we see with alcohol. 

So, the New Mexico regulation could provide you with two pounds of marijuana. How much is that? Well, how many cigarettes, or "joints" are in an ounce? The Weed Blog says you cannot answer that. It is like "how many drinks are there in a can of soda," and the answer is that "it depends on how large the drinks." How many joints in an ounce is dependent on how large the joints are. 

What if a physician recommended alcohol for the treatment of chronic pain? Before this is decried, consider whether it is really that different than the New Mexico physician's recommendation. A patient presents with pain, admits self-medicating with alcohol, and the doctor therefore recommends it as a treatment (as our New Mexico doctor concluded, the patient is using it anyway so why not?). What then if New Mexico (sorry to pick on them, but this is the reality) decided to quantify how much alcohol is an appropriate annual limit?

It would be absurd to define in a way that is not uniform, such as a "case" or "bottles," of alcohol. A case of liquor might be six bottles or might be 120, it depends on how much is in each bottle. So, like the methodology for marijuana, might we measure in ounces? That is, instead of allowing two cases of alcohol annually, might the state allow 614.4 (12 bottles per case times 25.6 ounces) ounces of alcohol annually? Is this a rational measure? 

Anyone who has consumed alcohol can tell you that how much is enough (or too much) depends on how strong the alcohol is. As the National Institute on Alcohol Abuse and Alcoholism notes, "the amount of liquid in your glass . . . does not necessarily match up with how much alcohol is actually in your drink." The Institute says that beer has 5% alcohol content, malt liquor has about 7%, wine about 12% and liquor has 40% (80 proof) to 95% (Everclear, 190 proof). 

So, if your 614.4 ounces of medical alcohol was beer, that would be one thing. If it was Everclear medical alcohol, that would be something else entirely. The 614.4 ounces of beer, at 5% would be 30.7 ounces of actual alcohol. The 614.4 ounces of Everclear would be 584 ounces. Very different outcomes, depending on the strength of the particular product being consumed. 

Is it logical to measure usage based solely on volume? That you may have two pounds of marijuana each year is about as logical as saying you may have 614 ounces of alcohol each year. Both are objective, measurable, and utterly irrelevant without a definition of what we mean by "alcohol," that is beer versus Everclear. "Marijuana" is likewise not a generic, all-encompassing term. Some may be stronger. In deciding how much is appropriate, would it not make sense to have some measure of strength?

While that is logical in terms of deciding how much is appropriate, from the state's perspective, would it be any less appropriate from the individuals perspective? Before picking up the glass from the bar, would you not want to know whether the liquid in the glass contained 5% or 95% alcohol? For the sake of your body, would you not want to know the "proof" of what you are taking? From both the patient and state perspective, the "ounces per year" limitations seem ill-advised, poorly defined, and ineffective. 

If long-term opium use had been studied in the 1980s and 1990s, the long-term detrimental effects with which we as a nation currently struggle might have been identified. That was not the apparent path travelled (the "opium road") in America. Instead, without extensive study of the long-term effects and risks, multitudes followed each other off the lemming-cliff of opioid dosing. The results have been marked, with opioid prescription sales quadrupling in the first ten years of this century.

This year, we will see more states venture into the medical marijuana arena. Inevitably, more states will see medical marijuana become implicated in workers' compensation. Those decisions in New Mexico came without study of the implications and risks, and it is unlikely that other states will proceed differently. 

Before workers' compensation stumbles into another potential pandemic of sympathetic reaction, it might do well to investigate how to rationally quantify use ("proof" for the intoxicant). When a doctor prescribes opium, she/he does so with a set dose, on a particular schedule, and can measure use. With the current perspective and science on marijuana, that is not occurring and does not appear to be in the cards. 

As the "recommendation" of marijuana is upon us, it is unlikely that long-term effect studies can now be undertaken. However, it is possible that such studies already exist elsewhere. Is there science upon which medicine might rely, from countries that relaxed use or legalized earlier, in determining long-term concerns and fixing appropriate dosage? 

Should there be definitions of "appropriate" volume now, before Marijuana becomes the next opium? The CDC struggles today to define opioid standards, against a backdrop of decades of use; could Marijuana's definitions be set now, at the outset of its involvement in workers' compensation?

George Santayana is credited with saying "those who cannot learn from history are doomed to repeat it." We have learned a great deal about opioids in the last thirty years, the hard way. What will the next thirty teach us about marijuana?