Defensive Charting

Some recent conversations caused me to think about veracity issues with medical records. The world of workers' compensation is immersed in medical records. The foundational element central to every workers' compensation situation is an injury or illness. That is where it all starts, and unfortunately, this is sometimes forgotten. In a recent meeting, I once again heard the all-familiar refrain "medical drives the claim." I cannot count how many times I have heard that one. Medical in an integral part of the world in which we work.

But my most recent medical records conversation occurred with a non-workers' compensation patient. It was a casual conversation about a trip to a medical specialist. The preface to the story is that this specialist is so busy that patients wait for months for an appointment. The patient was told that this wait is justified because the expert is "that good." The patient's perceptions and conclusions did not confirm that justification. 

Unfortunately, this specialist did not make a great impression on the patient. There was the curt and condescending interaction with the front-desk staff. First impressions can be lasting impressions. An hours long wait in an examination room did not have the calming effect that perhaps the physician intended. From personal experience, I can commiserate with this patient's expressions of boredom from a long exam room respite. 

Some find it curious, in a business built on day-after-day processions of people, that time management seems all but impossible for medical offices. Has anyone, anywhere, ever been seen at 9:00 for a 9:00 appointment? The patient described to me that after a two hour exam room wait, the doctor was most reassuring that the long delay was uncommon, due to some particular urgencies of that particular day. In fairness, anyone can have a bad day. I have been late for hearings before; never two hours late though. 

But, the patient described being eventually seen by this specialist. Symptoms were reportedly discussed and notes were taken. Various data was input into a computer in the examination room. The physician then informed the patient that she/he would be changing the medications prescribed by the referring general practitioner physician. The physician assured that these drugs would make the patient "better," rather than "just alleviate symptoms." That is likely a welcome assurance from any doctor? Every patient wants to recover.

Curiously, the patient reported that this physician did not take even a few moments to discuss the purpose of the pills, or the potential side-effects. Apparently, this is seen by that physician as a task for others in the health care delivery system. It is common for pharmacists to document that they have afforded customers the opportunity to ask questions about medications, but apparently not so common for physicians. Or, perhaps this physician was an outlier in this regard? 

This patient in this instance followed the specialist's instructions and began taking the pills. Reportedly, there were immediately profound side-effects that were both uncomfortable and disturbing. Due to the doctor's schedule, the patient returned months later to the specialist for follow-up. As mentioned, getting in to see this physician was no easy task. The patient returned with hopes that the first appointment delay would not repeat, and the physician's prior assurances of anomalous urgency would be true. She/he related that the examination room delay on this second occasion was slightly less than an hour; a vast improvement over the first visit, but an hour in the exam room waiting?

The noted side effects were related, as were symptoms, etc. A fairly regular follow-up doctor visit. The doctor apparently assured and reassured. The medication prescription was renewed. The patient told to return in several months. And the side-effects continued. The persistent (and profound) side-effects led the patient to the Internet for information. There have been multiple interesting Internet articles about web-based medical advice. Most recently How do Online Symptom Checkers Compare to Doctors. The gist is that doctors are a better option. 

The patient discovered from the Internet that not only were side-effects being reported from various patients, searching for this medication led easily to advertisements for law firms. A cancer had been named after this medication, as in "XYZ medication-cancer." The patient "might be entitled to a significant cash award." If there is a risk of cancer or other detriment from a medication, the patient explained to me, it would be preferable to hear about it from the physician. 

The patient returned yet again to the specialist, having already stopped taking the medication. After yet another protracted exam room wait, the physician appears and inquires about status. The patient informs her that XYZ has been stopped, because of side-effects and the allegations that it is a substance allegedly causing serious cancer. The physician's response is that this cannot be so, she/he has read extensively about this medication and "it cannot cause cancer." I found that statement interesting. I have read a great deal about cancer over the years and I doubt anyone can say definitively what does or doesn't "cause cancer."

Alas, the relationship between this specialist and her/his patient ended that day. Perhaps this results from the interminable delays in appointments, or the long exam-room waits, or the condescending conversations, or the unexplained prescriptions, or the inability/unwillingness to discuss concerns about the medication. Perhaps it is the combination of them all. But, the relationship ends. Odd thing about patients, they tend to tell their troubles to others, just as this patient conveyed all this to me. And, word spreads.

The patient explained that she/he then made arrangements for a new specialist. In preparation, the patient's medical records are obtained from the first specialist, and provided to the next. This is where the patient is surprised. Despite that last visit being a conversation primarily about the cancer risks of this medication, there is no mention of cancer in the specialist's notes. In fact, the specialist's notes instead make a cursory mention of the side-effect complaints, and the patient's unilateral decision to stop taking the pills. 

I related this conversation to a friend who is a physician. We ran into one another at a recent conference. I was curious whether such behavior, inaction, action, record keeping is common among physicians. I expected to hear that time is limited and that errors of omission happen. I expected to hear that the patient was perhaps embellishing or maybe misperception. I was surprised that my physician friend's instant reaction to the story was "defensive charting." What, I asked, is that?

This physician explained to me that the last thing this specialist will do is document that a patient has concerns or issues with the specialist's care and treatment. He explained that it is not in the doctor's interest to mention the cancer concerns in his chart. This is particularly true since the earlier office-visit notes do not contain any memorializing of the specialist warning the patient of the potential down-side to taking this medication. The specialist likely cavalierly prescribed the medication without discussion of its potentials for benefit or harm. According to this physician, defensive charting is both common and expected in such an instance, a shield against potential liability or complaint. 

I cannot vouch for the content of the patient/specialist conversations, nor for the content of the medical records in this scenario. I can only take that as represented to me. I likewise cannot vouch for the opinions expressed regarding the practice of "defensive charting" or its pervasiveness. This also I can only take as represented to me. 

But, I can vouch for the fact that the workers' compensation system is dependent, in no small degree, upon medical professionals and the records they keep. In workers' compensation, there are injuries and illnesses, symptoms and signs, complaints and representations of improvement and/or persistence. Doctors are depended upon to take in vast quantities of information, to process it, and to render sound opinions from it. In the process, they create records and reports. And those reports become evidence in the disputes that arise. 

I have heard many arguments about medical records. Sometimes it is argued that certain complaints were not voiced by a patient. I have heard it argued that a patient did not report all of her/his medication sources. Often I have heard "or that would be in the records." There is a tendency to either argue that the doctor's records are the best evidence we have, or to argue that doctors are busy and cannot possibly document everything. The difference being which of these best supports a particular attorney's position. 

But, this is the first I have heard of "defensive charting." Is there really a systematic and purposeful process of preparing medical records focused on the best interest of the physician? If this does exist, is it widespread through the medical profession or is it isolated to a few bad apples? 

I wondered whether any patient can find a way to document what is said to the physician, what symptoms, thoughts, or complaints? Is the patient at the whim and caprice of the physician in this regard? Does the potential of such a charting practice instill faith in either our medical system or those who work within it? With medical opinion so critical to the decisions of workers' compensation, should we somehow answer these questions?

After I wrote the foregoing, as it awaited publication, I attended a seminar. A panelist noted a perception that injured workers have increasingly begun requesting to bring videographers to medical appointments. That request has been made for years regarding independent medical examinations. Lawyers say they believe it documents how long the examination lasts, what testing or procedures are performed, and the outcomes or signs elicited. But, I had never heard of such a request for a treating doctor visit. This speaker assured me that such requests have occurred, and a perception they are increasing. The point being a distrust of medical providers, a perception that documentation is advisable, a feeling that independent verification is desirable. 

And all of this causes me to wonder and think. There is a value in human interaction. Prompt service at the doctor's office, as scheduled, likely enhances the relationship. Explaining the why and "what if" of prescriptions or procedures likely has value to the patient, and instills faith and trust. Sure, the doctor sees this all day, every day, but for this patient such interactions are much more limited. Today is this patient's only such appointment, it is special, it is important, to this patient. Accurate record keeping by physicians is critical; critical to delivering care, critical to patient trust, critical to documenting risks and benefits.

I expect that I will hear from a doctor or two about this post. Some will doubt the story, express belief of exaggeration or assure me I have misunderstood. And, I hope they are right. But, nevertheless, reputations of practitioners and professions are sometimes built on the perceptions of others as much as they are upon the performance of the professionals themselves. Where do you think all those lawyer jokes came from? Will physicians find themselves the next punch line?

Roger Williams, Virginia Commissioner, Passes

Virginia’s workers’ compensation system has suffered a great loss. On October 11, 2016 Commissioner Roger Williams passed after a brave and arduous medical battle. For the second time this year, I find myself writing to memorialize one of our nation’s great workers’ compensation leaders. 

I remember meeting Roger Williams in July 2011 at a conference in Biloxi, Mississippi. I was there to speak on a panel. Karl Aumann of Maryland was running that event. He introduced me to Roger, who was welcoming and friendly. We spoke at length, and I felt fortunate for his attitude and openness about the challenges of worker's compensation, particularly on regulating and running it. Roger was a friendly, outgoing person. 

I next saw Roger at the Southern Association of Workers’ Compensation Administrators (SAWCA) All Committee Conference (ACC) in New Orleans, Louisiana in November 2012. We were both engaged in the program, but somehow Roger made time to traverse the busy room to spend a few moments. He seemed to know the news in your state as well as his own. He was impeccably well informed. He was a gentleman who always found time to talk and listen.

Roger had been elected SAWCA Vice President the prior July. In SAWCA, you serve as VP, President-elect and then President. I remember the Thursday night SAWCA “coffee and cordials” in New Orleans. I joined a conversation with Roger and Dwight Lovan. Roger steered the conversation to his vision for the future of SAWCA. Out of the blue, Roger explained to me that I would be VP after him (he did not ask, he told). He had a plan. A few months into his journey through SAWCA leadership, Roger had a plan. Roger was a visionary, a planner.

I will always remember Roger’s laughter and cheer that evening. He was in his element. I took Roger’s comments about my leading SAWCA with a grain of salt. I was flattered and frankly embarrassed by his conviction that I should follow him. I rather thought he must be kidding.

I spoke with Roger a few times in the months after New Orleans. Kidding he was not. In July of 2013, at the Don Cesar in St. Petersburg Beach, I was nominated and elected to serve as SAWCA vice president. I believe that it's fair to say I was talked into this by Dwight Lovan, Gary Davis, and Roger Williams. And Roger wore that signature smile the whole time. Roger was persistent and committed to his goals.

In November 2013, I attended the SAWCA ACC at Saint Simons Island Georgia. The Executive Committee dinner was at a fantastic restaurant. In all of my workers’ compensation travels, perhaps it was the best meal ever. After dinner, Roger arose to make some comments and announcements, and Roger is what makes the night stick in my mind, despite the fantastic food. 

That night we all learned (or perhaps others already knew) that Roger was an amateur magician, since childhood. Despite encouraging calls from the audience, no rabbit was produced from a hat. However, Roger regaled us for several minutes with multiple slight-of-hand tricks. In typical Roger Williams’ style, the smile never left his face, and the jokes and quips flowed freely. It was like a routine at the Comedy Store, Roger’s own brief HBO Special. Roger was again in his element, singling out attendees for this or that comment or joke. Roger was always genuine and openly engaged with people. 

I was proud when Roger was inducted as a Fellow of the College of Worker's Compensation Lawyers (CWCL) in 2014. He was honored and pleased. He told me that this experience was all the better because he was inducted along with Judges Alvey, Belcher, Kellar, Lott, Lovan and Szablewicz. Roger was proud of his profession, his associations, and his friends. 

Roger was a leader in designing and implementing the SAWCA Regulator College. The first year, he and Judge Belcher sat through both days, a full time job. The second year, he was scheduled to present, but did not make it due to food poisoning. We virtually sent out search parties when he did not show. His absence generated widespread concern (pronounced “panic”) because it was so out of character. Roger was known for being dependable and reliable. 

When I saw him last July, Roger was making jokes about cancer. He moderated the SAWCA Regulator Roundtable at the Annual Convention (to me it seems like he always did this). Roger really enjoyed the Roundtable; he liked preparing for it, moderating it, and his quips and comedy made it flow. He had become "Mr. Roundtable." As Mr. T might say, “I pity the fool” that has to try and fill Roger’s shoes next July. 

At the conclusion of that July roundtable, I presented Roger with a small acknowledgment of his effort, a framed picture of the Blue Angels. As I posed with him for a photo, he solemnly said he was going to take that picture home with him on the airliner. Then he dropped the punchline: that he would henceforth tell people "he flew with the Blue Angels." That was classic Roger. He was quick witted and sharp. Always on-cue and unscripted. 

I do little with Facebook. I understand Roger’s Facebook friends received updates in recent months. I fortunately received a periodic email pasted from Facebook. I was up-to-speed, but sporadically. I really only got one theme from those posts: Roger was incredibly cared for and loved. I reflect on the last year, after learning of his condition last November, and I think how incredibly short a time he had. But he was never alone. 

Selfishly, I lament Roger’s passing October 11, 2016. Things won’t be the same without Roger. I know he was suffering though, and that this is part of a larger plan. We will all process through our grief. Hopefully we will remember that Roger was always quick with a quip. He brightened a room. He was a good friend, a valued colleague, and an amazing intellect. I will miss you Roger, Godspeed.

P.S. I am tired of writing about friends lost though. 2016 has been one tough year. The rest of you better stick around.

Edited October 13, 2016 to add the following:

Celebration of Life

for

Commissioner Roger L. Williams

Friday, October 14, 2016, 2:00P.M.

Welborne United Methodist Church, 920 Maybeury Dr., Richmond, VA 23229; Reception to follow at Richmond Country Club, 12950 Patterson Ave., Henrico, VA 23238

In lieu of flowers, the family requests contributions be made to Kid's Chance of Virginia, 12701 Marblestone Drive, Suite 250, Woodbridge, VA 22192 or Gayton Kirk Church, 11421 Gayton Rd., Henrico, VA 23238.

Please join the Commission in celebrating the life of our great leader, Roger L. Williams.

People's Choice 2016 is SET!

As everyone now knows, there will be a new addition to the Comp Laude Awards in Burbank this November. The program is less than thirty days away. A fantastic committee of workers' compensation professionals has dedicated significant time to the new People's Choice Award portion of the program. They deserve recognition. 

The Sponsor of the People's Choice program is Adelson, Testan, Brundo, Novel and Jiminez. Partner Jeffrey Adelson served on the committee and will moderate this program in November; his leadership and commitment are unparalleled. 

A brainstorm of WorkCompCentral founder David DePaolo, the People's Choice program will feature short "TED Talk" presentations of an inspirational or motivational nature. David conceived it, and an amazing group of people has succeeded in bringing it to you in 2016.

The leadership of Yvonne Guibert, WorkCompCentral, was the force behind bringing this program to fruition in 2016. Her focus and determination regarding this project were indispensable. Steve Cattolica is Legislative Advocate with AdvoCal. He brought many thoughtful contributions to the planning of this event. The speaker/presentation selection panel was all-star. It included: Richard Victor, formerly of WCRI and currently Senior Fellow of the Sedgwick Institute; Becky Curtis, an amazing example of fortitude and focus, she is founder of Take Courage Coaching and an all-around amazing person (and Comp Laude award-winner); Catherine Bennett is an the Director of Public Relations at Sedgwick Claims Management, and has a broad and deep understanding of this industry and the people in it. A truly amazing group that rapidly and efficiently brought organization, focus and determination to fulfilling this dream of David's. I am both proud and humbled to be associated with each of them.

Each speaker was selected from a group of submitted proposals. The speeches in November will be brief (7 minutes), but the speaker's proposal had to be even more abbreviated. Each made a pitch in 250 words or less, and they were all fantastic. Unfortunately, time is limited and we had to pick the seven that we believed were the most inspirational and motivational. I will not recite the 250 word synopsis of each. What I will do is provide you a brief overview. 

One will be about a lady attending a holiday party in San Bernandino last year. In the midst of a celebratory day, at which she was to receive an employee-of-the-month award, Julie was shot by terrorists. The national news story is well-known and disturbing on many levels. But this presentation will introduce you to an "optimist, cracking jokes with her husband and 3 children while she learns how to both navigate the workers’ compensation system, and learns to walk again." Despite her significant trauma, and the long rehabilitation she faces, her story is one of hope, commitment, and perseverance. 

Another will bring lessons from Rwanda. This will teach the value of empathy, which is so important in workers' compensation. Building on a humanitarian trip to Rwanda, and exposure to results of tragedy, genocide, and violence, this presentation will focus on the resilience of Rwandans. The speaker describes them as "the kindest and gentlest people I have met." They exhibit a sense of community, kindness and empathy from which any organization could benefit. The Rwandan philosophy of Umuganda or “coming together in common purpose to achieve an outcome” will be the focus. 

One speaker will remind attendees that "words matter." This focus on the purpose of workers' compensation will illuminate the needs of injured workers, and the losses suffered. It will be a reminder of the bigger picture, beyond the medical care and indemnity. The effects of injury are broader than are perhaps acknowledged in our day-to-day. The speaker will focus listeners on the losses of "financial security, identity, confidence, and health." The theme is practical advice on communicating with injured employees, "demonstrating empathy, eliminating cynicism, active listening, and changing our lexicon." 

Yet another will focus on the "lousy job" that is done in conveying and sharing the many good things done by workers' compensation professionals and the industry. The public image of Comp is tarnished by the few and the poor examples and outliers that make the news. But this speaker will focus on the "diligence and hard work of front-line claims handlers, case managers, medical providers and other staff working to deliver great medical care to work comp patients and get them back to work." A passionate reflection on all the good that is accomplished day after day, week after week by many thousands of people whose story just does not get told often or forcefully enough. 

A speaker will focus on the talent shortage that workers' compensation faces. The theme of this is an "advocacy principle—an injured worker–centric approach" to managing recovery. This is potentially successful, according to the speaker, if this industry enhances its "talent pool by mining groups that typically have been underrepresented." Examples cited will include "people of color, people with disabilities, veterans, senior workers, retirees, and recent graduates." The speaker advocates embracing the "unique talents and experiences each individual brings to the whole of an organization," and the overall strength that such diversity might foster. 

Another speaker will describe the effects of catastrophic injury, and learning "to walk all over again." Having suffered two traumatic injuries, having lost both legs, having endured through the recovery and rehabilitation, this speaker will bring a positive attitude and motivational message. He "decided to make something out of what happened" to him. And he has become an artist, innovator, and motivator. He will speak on overcoming adversity, celebrating life, and perseverance. His theme is to "live life to the fullest and Walk with Soule!"

A speaker will present on developing a culture of caring and compassion. His theme is the methodology of story telling for understanding the challenges of workers' compensation specifically and corporate culture generally. He describes stories as a method of remembering and understanding situations, events, success and failure. The message of caring and compassion is woven through specific examples of highlighting positives and social purpose. With humor, insight, and passion, the speaker will bring a message of changing perceptions. challenging the status quo, and championing a cause. 

I know, you are probably thinking a couple of things by this point. First, who are these speakers? I will leave revealling identities to Yvonne and the WorkCompCentral team. Watch their website for details. Second, perhaps you are lamenting that you cannot make Burbank this November. That thought has crossed my mind as well. I am sorry to be missing this parade of positivism and motivation. I am hopeful that these extraordinary presentations will find their way to the Internet for those of us who cannot make the trip. Finally, you may be thinking "this is right up my alley." Sorry, the stage is now set for 2016. That does not mean you cannot present, but start now planning for your People's Choice 2017 proposal!

Thanks again to a phenomenally talented and dedicated committee, without whom there simply would not have been a 2016 People's Choice. I am certain that David is so proud of each of you! You each inspire me - Thank You! 

If not, What is the Point?

California leaped to the forefront on Physician Drug Monitoring Database (PDMD) recently. Florida has had a PDMP for a bit longer, passing it in 2009, which we refer to as the Physician Drug Monitoring Program or "PDMP," The PDMP is Showing Progress. We call Florida's E-Forcse (Electronic Florida Online Reporting Controlled Substance Evaluation Program). I have written about it before, EForcse and Kasper, Cousins with a Cause. 

The purpose of databases is to monitor the volume of medication that a given patient receives (or has access to). There is a concern that certain patients obtain more medication than is necessary or appropriate. Generally, the concern is not with Ibuprofen, or statins, or insulin. It is focused on medications that can be dangerous in quantity (overdose) or for which there is a demand for resale on the street (diversion). In the great opioid expansion that pharmaceutical companies drove in the 1990s and 2000s, availability of, addiction to, and death from opioids exploded in America. Billions were made, and people died. 

With Florida and other states implementing the monitoring databases, the hope was to decrease the potential for overdose or diversion with medications. Any physician can easily know how much medication she or he personally is prescribing to a patient. The database allowed the physician to also know how much other doctors were simultaneously prescribing to the same patient. Information, as they say, is power. 

The real point, from some perspectives is the death rate from opioids, which was outlined in New CDC Report on Opioids in 2014. That was complimentary of Florida, Kentucky, an others. But as I noted, "despite the improvements, there is likely more that can be done. The New York and Tennessee requirements for providers to check the PDMP are perhaps the most encouraging." Both of those states demonstrated marked improvement, which was somewhat attributed to their requirement that physicians check the PDMP database before prescribing medication. Though Florida has a database, and is accumulating volumes of prescription data, there is no requirement for a physician to check it before prescribing. 

California followed, enacting a PDMP in 2011. It was given bit more memorable name, "CURES." This stands for Controlled Substance Utilization Review and Evaluation System (which would actually be CSURES, but who wants to quibble?) But California is in the news recently for taking the next step as New York and Tennessee already had. In California, WorkCompCentral recently reported the Governor Mandates PDMP. In California, starting in 2017, physicians will have to check the database before prescribing. After all, If it's Worth Having, Is it Worth Checking? 

So, the California legislature in 2016 legislatively required "providers to check the database before prescribing a Schedule II, III or IV drugs." This will include "most opioids except codeine- and hydrocodone-based cough suppressants." The requirement appears to be a compromise. It applies only when the physician is prescribing "to a patient for the first time." In the world of medication abuse, overdose, and diversion it might seem that the multiple prescription scenario could surface later. So, the law requires the physician to check CSURES every 4 months if these scheduled drugs remain in the patient's treatment regimen. So, "ehcck," then "check again," because things can change. 

But, California has gone even further. If a physician consults CSURES and finds the patient is already prescribed "Schedule II or III substances," the law now precludes that physician from prescribing "additional controlled substances until determining there is a legitimate medical need." That is curious language perhaps. Does it mean that the initial decision to prescribe the opioid was made without determining "legitimate medical need?" Will we be concerned with legitimacy only when there is an existing prescription discovered?

Some would argue this is merely word games. They would urge an interpretation that the "need" analysis in this scenario is specific to the "need" for multiple prescriptions. But, history has taught us that there are doctors to whom the Hippocratic oath is simply meaningless. They practice with a singular focus on how much money can be generated from people's pain and misery. And some are going to prison for it recently. 

Recent news showed one doctor jailed for prescribing painkillers to 250 patients daily. Yes, that is potentially over 57,000 patients annually. Another traded painkillers for cash and sex, and is responsible for people dying. And though some are receiving significant punishment, others seem to be receiving minimal sentences, including a doctor recently sentenced in West Virginia, a leader in overdose death. 

The Opioid overdose problem is not over. Overdose is still the leading cause of accidental death in the United States, with "47,055 lethal drug overdoses in 2014. Opioid addiction is driving this epidemic, with 18,893 overdose deaths related to prescription pain relievers, and 10,574 overdose deaths related to heroin in 2014," according to the American Society of Addiction Medicine. 

The new California approach is reportedly "hailed" by the insurance community, and praised by prescription providers. One physician interviewed by WorkCompCentral said that these requirements will slow down the prescription process, requiring some introspection and caution, and thus he opines the new CSURES requirement is "something of a 'speed bump.'” 

Why do physicians prescribe pain medication? That is a bigger issue. I have written about pain and how it can be addressed. Removing opioids from the marketplace is a laudable goal in terms of the overdose and diversion issues, but pain is real. Therefore, as we focus on decreasing access to opioids, the injury and illness market must also focus on how pain can be addressed effectively, and safely. The solution is not to ignore pain or to tell patients to do so. There are injuries and conditions for which "walk it off" is simply not a solution. 

But, there is a perception that some abuse pain medication. There is also a perception in today's age of advertisement and information that there are patients who visit doctors with specific requests for mediation and other modalities. In open markets, there is a fear expressed by some doctors that they will lose patients, and therefore revenue, if they do not comply with these patient requests or demands. Some believe that this scenario plays with opioids, with patients pressuring physicians for such prescriptions. 

There are those who feel that the CSURES solution will provide physicians with a validation of saying no to a patient's request. The conclusion that this provides doctors with a "'defensive tool' when they have a patient who is pushing for an opioid," expressed by WorkCompCentral provides a sad commentary on medicine generally. It would be preferable that a doctor would do the right thing for a patient, and would deny superfluous or redundant opioid prescriptions because of the dangers and lack of necessity. But, for those who lack fortitude and honor, perhaps a "defensive tool" is required?

The California requirement is not seen as perfect, with most opposition coming from oncologists. But, the law includes exemptions from the CSURES consultation requirement. For example emergency room doctors who are dealing with urgency can focus on treatment and not check CSURES. And, prescriptions for a five-day, non-refillable, script are also not covered by the law. And, finally, the requirements do not apply to the humanitarian work of hospice programs. 

According to WorkCompCentral, California now joins "32 other states that require doctors to check drug-monitoring databases when prescribing certain controlled substance." It notes the success of this requirement in New York, Arizona, Kentucky, Tennessee and more. Forty-nine states (Missouri) require the collection of prescription data. As many as thirty-two states require physicians to consult the database before prescribing medication. But, the Pew Institute says that 16 states have this requirement.

Courtesy, Pew Institute, 

Florida does not require physicians to consult the database though. In recent years, some have estimated that as many as 90% of Florida physicians ignore the database. The national trend seems to be towards mandatory checking, and perhaps that is the only way to get Florida doctors to utilize this tool. The national trend seems to be towards preventing death and destruction at the hands of prescription drugs. Hopefully Florida will follow the lead of these other states and move towards a mandatory consultation. Clearly it is working elsewhere, but there is a great distance yet to go with 47,000 people dying each year?

Businesses are Soliciting Injured Workers - Be Informed

Direct mail is alive and well in the workers' compensation world. We have had instances in the past where attorneys engage in direct mail solicitation of injured workers. Some complaints regarding that generally came from the injured workers or their attorneys. They were perturbed when they received mail from other attorneys, soliciting them to sign up for representation. For a time, I was often asked how and why this occurs. 

The why is easy, advertisement is a reality of commerce. Businesses often contact potential customers for the purpose of soliciting. We all see this every day, with brochures, flyers and letters appearing in our U.S. Mail box. Some of these solicitors even go to great lengths to make their envelopes look official, friendly, and enticing. 

The goal of advertising, I learned many eons ago in business school, is to get one's foot in the door. The pitch is never effective unless someone reads/sees it. In that vein,  I am often amused by the billboards along the Interstate, which advertise for the billboard company. They simply say "made you look," and then provide information on how you might rent that billboard. That is really the point, did they get you to look?

In August, I heard of another approach to direct mail. I cannot make any conclusions about it, as I have not experienced it. But, I have heard the same or similar accusations from multiple sources. And it appears there is significant concern about it. 

The allegation is that a company calling itself the "_______ Network" is using a list of injured workers for direct solicitation. Apparently, a contact that is made with the injured worker is not a a clear sales pitch, but uses wording to suggest that this Network is an official or at least integral part of the workers' compensation system. Nearly anyone that has ever reported a workers' compensation injury will tell you that reporting often results in a fair amount of mail, notices, etc. Information often comes from the state, from the employer, from the carrier, and more. 

In this Network promotion, apparently the Network conveys its involvement in the system and infers that it is prepared to assist the worker. It offers an interaction for the injured worker over the Internet with a doctor. It is a consultation. The connection is through a platform called Google Hangout. According to that service's website, this is a "unified communication service" that supports calls, video chats and more. It sounds a lot like Skype and other video chat platforms.

The injured worker engages with the Network over the Internet. Through this online interaction, the injured worker is allegedly enticed to provide private information about themselves. They then provide a digital "e-signature" consent to the Network. By doing so, the injured worker is apparently committing to be personally liable for payment to the Network for these services, apparently an interactive Internet doctor's appointment. The Network apparently generates a document from the interaction, and sends that to the insurance carrier. That form may be signed by the injured worker. 

The communication from the Network apparently conveys to the carrier that this Internet doctor and the Network are going to provide care for the injured worker. It advises the carrier that if it does not deny or contest this authorization "within three days" then the Network will construe this as the carrier having "consented to pay" for care. There are allegations that various carriers have experienced difficulty in contacting this Network back regarding denial.

Are injured workers in Florida able to select their own physicians.?Well, that becomes complex. Initially, they are not. The statute provides for selection of physicians by the employer, and by implication the insurance carrier. Injured workers are entitled to a "one time change" in physicians, but that election of change can be made one time in each case. 

It is a decision that many advocate should not be made lightly. In many cases, the "one time change" results in the employer/carrier selecting a new doctor to replace the first. In some other situations, the injured worker may be able to select their own doctor in the "one time change" process. There are some who fear that an injured worker's decision to sign up for this video consultation will have elected their "one time change." Others argue that instead, the injured worker might end up financially responsible for this "consultation" or more. 

In one of the notifications about this that I received, there were allegations about the qualifications or background of the doctor involved. Questions are raised about whether the physician is licensed in Florida, and whether information about the doctor is readily available to the injured worker. Some suggest that any patient should want to be aware of their physician's credentials and background. That is likely reasonable advice in any medical care situation. 

The Internet is a great convenience. And the concept of telemedicine is growing. A fair amount of attention has been focused on the benefits it can bring, particularly in rural settings. But, there are those who argue that telemedicine over the Internet is also a little less personal; some advocate for the benefit of an old fashioned, hands-on, physician appointment. 

So, it may be that injured workers are benefited by entering relationships with a doctor that will provide them advice over the Internet. It may be that injured workers would not be. It appears though that this solicitation practice and all that it entails would be something about which injured workers would want to be informed and aware. Informed choices are perhaps better than uninformed.

It may be that insurance adjusters, employers and attorneys will want to provide education and information to injured workers about the workers' compensation system. A better informed injured worker will be better able to make informed decisions about the benefits and risks of their interactions with various vendors who solicit business from them. 

Reviewing Procedures and the Rules

I have been reviewing various pleadings around the state recently. I have seen some curious items worthy of discussion. Perhaps someone out there can explain them to me. I initially tended to believe that these were odd and exceptional errors, but the frequency suggests that they are not singular, exceptional filings. 

I find that most of the settlement filings include something labelled "General Document Filing." I cannot find any rule or statute supporting the filing of this superfluous and redundant document. It appears to be a repetition of information from the fee data sheet, the cost data sheet, and the motion itself. Too often, the representations in this redundant document are inconsistent with the other filed documents. There is no statutory or regulatory requirement for a "general document filing." It serves no apparent useful purpose, Yet often there it is, cluttering up the Motion documentation. In one recent filing, I actually found two "General Document Filing." Who can explain the purpose of this unsigned, redundant document?

In several recent Motions, I have seen a "General Release." In a few others, I have found contracts that memorialize an agreement for the employee to "resign employment," and even one to "never apply for employment in the future." This Office has no jurisdiction over such agreements. I cannot find any authority in the rules or statutes for such to be submitted to this Office. 

In fact, the Rules do not allow reference to a general release. Rule 60Q-6.123(1)(c) says "language regarding a general release of all liability or claims shall not be included, and no such general release or separate releases shall be attached." (Emphasis added). In spite of this rule, resignation and release documents are being filed with the OJCC. When this happens, should the entire filing be stricken, and the parties be given another chance to file their motion in compliance with the rules?

And, I have found cover letters. Attorneys are filing a "Motion for Approval" (I open them from the e-JCC docket, which says "Motion for Approval"). And, when I open the document for review the first thing I see is a letter from counsel that says "Judge, this is the parties' Motion for Approval." That makes sense, that is what the docket label said. I knew it was the parties' motion when clicking on the docket entry. What does this cover letter add? Is there a purpose to a cover letter with the motion telling me that it is a motion?

Similarly to the release issue, the Rules do not allow filing of cover letters. Rule 60Q6.103(1)(f) says: "(1) Pleadings. All documents filed with the OJCC shall: (f) Not be accompanied by separate cover letter or correspondence." (Emphasis added). The use of the term "shall" connotes a mandate. So, "shall not" means that there is not supposed to be a cover letter. The cover letter serves no purpose, and it is against the rules. Why are they being filed?

I have also found a fair volume of documents that include large, space-consuming styles. In some instances, half of the first page of each document is wasted with these large case styles. There, volumes of unnecessary and redundant information regarding addresses and phone numbers is presented. The purpose of this information in each and every pleading is unclear. The style of the case can be (should be) very simple and direct, such as this:

In yet another curiosity, I have recently seen documents that stipulate to the jurisdiction of the Office of Judges of Compensation Claims (OJCC) and the "Department of Labor and Employment Security," (DLES). There is no Department of Labor and Employment Security in Florida. There has not been for over 15 years. Last century, the OJCC was part of the DLES, but that agency was eliminated. In 2001, when DLES was eliminated, the Division of Workers' Compensation was transferred to the Department of Financial Services (DFS), and the OJCC was transferred to the Division of Administrative Hearings. The effect or purpose of parties stipulating to the jurisdiction of this non-existent state agency, DLES, is unclear. It suggests that perhaps some very old form files are being relied upon?

And, finally, there remains a curious propensity to file proposed orders with every motion. Proposed orders are not necessary. In fact, the procedural rules actually say that proposed orders are inappropriate in most instances. Rule 60Q6.103 says "(4) Proposed Orders. Except as provided in subsection 60Q-6.115(3), F.A.C., proposed orders shall not be submitted unless requested by the judge. They shall be clearly indexed in the docket as 'proposed orders' and shall be sent to all other parties or, if represented, their attorneys of record prior to being submitted to the judge. Proposed orders shall be a separate document and not be included as a part of a motion." (Emphasis added).

Despite this clear rule, proposed orders embedded within motion filings seem to be the norm. Motion after motion, day after day, I find proposed order after proposed order. What is the point of these?

The Rules make provision for so many points and issues. When a small sample of filings reveals such a population of situations in which the Rules are being ignored is troubling. Why are these letters, releases, and proposed orders being filed? And, what is the appropriate remedy? The purpose of filing a motion is to obtain an order. Reviewing motions consumes a significant portion of every judge's day. The more concise and direct the motion is, the more efficient a judge can be in reviewing it.

Irrelevant chaff within the motion and spread through the accompanying documentation is distracting and time consuming. Every minute spent reading an unnecessary cover letter or "general document filing," or wondering about that "general release" is a minute that could be spent addressing the relevant motion issues and preparing an order for the parties. Distractions like cover letters and proposed orders and general releases do not expedite the review and approval process, they retard and delay it.

Why are the procedural rules ignored? Why is this chaff included? When was the last time your firm asked questions about why and how you do things? When was the last time you reviewed those form files? Are you still referencing non-existent agencies, or relying on Supreme Court procedural rules of yesteryear? Could your process be more efficient and more compliant with the rules?

Hurricanes and Knowing their Impact on the OJCC

Governor Scott and executive orders came to mind recently. On the last day of August, a tropical storm evolved from depression nine. The meteorological expert's predicted landfall is a hurricane, and it was pointed straight at Apalachicola. For those unfamiliar with the Florida panhandle, that is a little southwest of our capitol, Tallahassee. The path took it directly over Tallahassee. 

Now, Tallahassee is not "coastal community," but it is simply not that far from St. Marks, where landfall eventually occurred. St. Marks is a quiet little spot on the Gulf, and that is where Hermine decided to make landfall that September morning. And because of the shape of Florida's gulf coast, Tallahassee is only a few miles from that coastline. One website calculates it at less than 13 nautical miles.  For the uninitiated, hurricanes tend to lose strength over land. So, coastal communities get used to them and their brute force, while inland communities become more accustomed to heavy rains and "remnants." But a well-organized storm can bring havoc well removed from the coast. Hermine reminded us of this recently.

I have already lived through more hurricanes than I ever cared too. It is my hope that I have lived through my last. The formation of a storm is something Floridians watch for much of our year. We are all currently watching Matthew slowly turning north for Cuba, Haiti, Jamaica, and wondering what it will mean for the Bahamas and south Florida. 

The hurricane season officially starts each June 1 and runs through November 30. My unscientific perception is that the most active portion of that period seems to be August and September. but major storms occur in October and November (only Kate is currently listed as a late-season "major" impacting the U.S., watching Matthew though). So for six months, we watch the National Weather Service pretty regularly, and we pay attention to the news. Perhaps those of us close to the coast more so than others. 

Whitney Houston popularized a lyric, questioning How Will I Know, in reference to her interest in a man. But the same lyric is one we might rationally remember regarding weather and weather closures. Ask yourself (lyrics slightly modified, quoted lyrics are italic)

How will I know (Don't trust your feelings)
How will I know
How will I know (Storms are deceiving)
How will I know
How will I know if its coming near me

This chorus might later in the song include the phrase ("just check the website"). When inclement weather threatens, there is a consistent stream of inquiries to the Division of Administration Hearings and Office of Judges of Compensation Claims. I would like to say that the inquiries are limited to infrequent users of our services. Unfortunately, the increase often come from frequent practitioners, judges, mediators, and staff. These staff and customers should be more familiar with the OJCC weather closure policy. Unfortunately, in our everyday lives, when no cyclones are threatening, it is easy to put such emergency procedures out of our minds. 

In 2008, an administrative order was prepared and published for just such occasions. It outlines how to effectively and efficiently gauge whether a particular OJCC office will be closed due to a weather or other emergency. This is published on the "administrative order" portion of the OJCC website, which will be a handy resource as subsequent orders are published. 

In September, after Governor Scott issued his Hermine-related executive orders, I found myself referring individuals to that 2008 order. And in that process, a fair few pointed out to me that the order is arguably in need of supplementation or amendment. After some consideration, I have concluded that they have a good point, and in the interest of providing as much information as possible to our customers, that administrative order will be amended and re-issued.

See, forewarned is best in these situations. That is why the news made me think about Governor Scott. The Governor made some difficult decisions in the face of Hermine. Before the storm impacted us, he issued executive orders number 205 and 206. Therein he delineated county by county, the closure of state offices resulting from this impending weather emergency. The distribution of those orders was calculated to inform quickly and directly. They removed a lot of doubt for people. See, knowing whether your trial or mediation will proceed is a real benefit when schools are closing, property needs to be protected, and evacuation is contemplated. Storms disrupt our lives and they bring so much uncertainty and doubt. Having solid information about closures and cancellations is a real comfort. 

It is important to remember a couple of things about hurricanes. First, they are destructive and dangerous. Some Floridians "batten down" and "ride it out," but a notable population of us subscribe to the "get outta dodge" (a colloquial reference to Dodge City, Kansas and perhaps from the western of our youth, Gunsmoke). That's right, a fair number of us run from hurricanes. I am the first to admit that "flight" is my initial reaction when I see one coming. The complication to our "flight" logic is too often not being able to decide which way to run; hurricanes are well-known for the difficulty we have predicting their actual course. The last thing you want do do is run (west or east) only to have the storm turn that direction and follow you. 

The Governor's Hermine orders took that predictability issue into account and addressed various counties, those in the predicted path and some not in that path, but in the possible paths that might evolve. See, getting people prepared for the worst, while we all hope for the best, is the way you prepare for a hurricane. Hurricanes are dangerous. They bring winds and storm surges and flooding. Comedian Ron White, reminding his audience of the dangers in these storms, reminds that "it is not that the wind blows, it is what the wind blows." Debris can cause significant damage. 

And, in those orders, the Governor's use of county delineations raised an issue with the OJCC office in Sebastian. For many years, the district office in that region was in Melbourne, Brevard County. Now that it is in Sebastian, Indian River County, there is the potential for confusion from the 2008 closure policy order. Thus the first suggestion for amending the administrative order. When government offices in Brevard were closed by executive order, the question was whether that meant the OJCC "Melbourne District." Well, according to the map, the answer was no. But according to that 2008 order, the answer was yes. Thus, confusion where none was needed. 

Another thought from this recent experience was social media. Since 2008, the OJCC has come a long way regarding the dissemination of electronic data and information. Our world is changing around us at an incredible rate. It therefore also makes sense that the administrative order provide direction to users who might seek closure information through social media such as Facebook and Twitter. And in time, there is no telling what other social media alternatives may surface, flourish, and yet fade away as the once popular MySpace. Thus, a second good reason for amending this order, to include social information resources. 

And finally, it came to my attention that the OJCC emergency management information line is not listed in the administrative order. This is because that innovative telephone messaging process was instigated by our Director of Administrative Services, Lisa Mustain, more recently. It did not exist when the 2008 order was issued. But, that emergency number is a great resource. If a customer finds themselves without access to the Internet, this affords up-to-date information with only a phone. 

Callers will never reach a person. This phone number (850.488.9675, extension 399) exists specifically so that any curiosity may be alleviated by simply calling our Tallahassee main office, dialing the emergency management extension, and listening to the pre-recorded message regarding closures. Significant effort is invested in keeping this recorded message current during weather and other emergencies throughout the state. 

So, just as the governor has employed a multi-faceted approach to disseminating information through technology and executive orders, your OJCC will refocus on improving our emergency information efforts. The new Administrative Order will bring clarity by encompassing office relocation. We will make it our goal to attempt as broad a dissemination as possible. 

I highly encourage attorneys, adjusters, risk managers, and other OJCC customers to save a copy of the new administrative order for future reference. Because, it is of course possible that some future emergency (power failure, cell phone failure, etc.) might preclude access to the Internet, or even to a copy saved on your computer. To maximize your chances for information and updates, follow us on Twitter (@fljcc), like us on Facebook (@FloridaOJCC). Tell us what other social media you use, and we will investigate integrating it into our communication process. 

We will be watching Matthew and monitoring its potential impact on Florida. The 2016 Emergency Closure Order is reproduced below. It will also be available on the OJCC website, on the "orders search" tab, under "administrative orders."

As we near the end of the 2016 hurricane season, be grateful that it was not more active and destructive. Take Hermine as a reminder of what nature can do, and think about how to be best prepared for next year. 

Recent Decisions may Caution Supervisors

There has been significant discussion in American workers' compensation about "exclusive remedy." That employer protection from civil liability is important to the "grand bargain" that has been workers' compensation for the last century in much of America, for the last 81 years here in Florida. 

There are some jurisdictions that consider this "exclusive remedy" to be critical to workers' compensation. However, the Florida Court has concluded that it (and benefits, and process and more) is subordinate to attorneys fees, noting "a reasonable attorney's fee has always been the linchpin to the constitutionality of the workers' compensation law." Not "a" linchpin, but "the linchpin." See Castellanos v. Next Door Company, 192 So.3d 431, 435 (Fla. 2016). 

There are those who have said this is incongruous and curious. Some argue that in a system of mutual renunciation of rights there must be give and take from both employees and employers. They argue that in such a system there must be various "linchpins." Others argue that by definition "linchpin" means "the most important part of a complex situation or system," according to Webster. Thus, they argue that Castellanos establishes there is simply nothing about workers' compensation that is more important than attorney fees. 

Of course, the Court is correct. Decades ago, in Brown v. Allen (1953), Justice Jackson observed of the Supreme Court that "we are not final because we are infallible, but we are infallible only because we are final." A paraphrase of this has been a favorite of Supreme Court scholars since: "the Court is not last because it is always right, but it is always right because it is last." As far as state workers' compensation issues go, it is likely that the state supreme court is the end of the line. And as such, it is "final" and therefore "infallible," or always right. 

Returning to exclusive remedy, it was the subject of significant attention in Florida over the last two years. In 2014, a Circuit Judge in Miami wrote a curious order in Padgett v. State of Florida. The case had several names as the parties changed over time. 

It was a very interesting ruling written by the trial judge. After a proceeding against the state of Florida, and the entry of an order concluding "exclusive remedy" was unconstitutional within the confines of a particular case (referred to as "unconstitutional as applied," discussed in A Potential Progeny of Castellanos). Though Padgett did not address "the most important part" of workers' compensation, it addressed a very important part, "exclusive remedy." In Padgett, the injured worker sought to avoid the confines of Florida workers' compensation and instead sue her employer in tort, and all that such a suit would entail. 

Florida's workers' compensation statute provides the "exclusiveness of liability" in Fla. Stat. 440.11. It says that the "liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability." This exclusivity includes "to any third-party tortfeasor and to the employee, the legal representative thereof," including the employee's family. 

And, this "exclusive remedy" protects more than just the employer. The statute also says that "the same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer" in many circumstances. And, specifically "the same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policy making capacity." This "immunity" for supervisors and coworkers has been an integral part of workers' compensation for years. 

So, the Florida "exclusive remedy" has a long history and purportedly broad application. It has been in the news and a matter of discussion because of the recent challenges, like Padgett, in which some seek to escape the confines of this system and pursue tort damages. As I have mentioned before, it is also interesting and curious that other workers have simultaneously striven to forego tort entitlement and join their respective workers' compensation system, complete with these limitations and constrictions. See Tennessee and New Mexico Provisions Deemed Unconstitutional. 

And so, recent decisions regarding supervisors are interesting. In Oregon, a Mr. Goings sought to sue two employers and two coworkers. Goings v. CalPortlandCo., 280 Or App 395 (August 31, 2016). The trial court concluded that workers' compensation was the Plaintiff's "sole remedy" and dismissed the lawsuit. The plaintiff alleged that he was injured at work, and this "visibly impaired plaintiff’s mobility and his use of his left arm." Despite this visible impairment, plaintiff alleged that the coworkers/supervisors nonetheless "ordered plaintiff to conduct additional work that involved heavy manual labor and lifting" and this "work was certain to injure him severely under the circumstances." The plaintiff alleged that the coworker/supervisors "intended that result," i.e. "severe" injury.

Conceding that Oregon recognizes workers compensation as the "exclusive remedy," the Plaintiff sought to sue in tort under an exception there, called the "deliberate intention" exception. He argued that his injury from the "heavy manual labor" after returning to work was intended by his coworkers/supervisors. And, Plaintiff argued that the employer should be liable therefore. The Oregon Court of Appeals disagreed with Mr. Goings, agreed with the trial court, and concluded that the allegations were not sufficient to state a tort claim against the employers. 

But, not so for the coworkers/supervisors. As to these, Plaintiff argued that his claims for "assault and battery" were not precluded by "sole remedy." The appellate court notes that "aggression" is not defined in the Oregon workers' compensation statute, and that there are few appellate decisions on the point. The Court concluded that a jury "could infer" that the coworkers/supervisors knew of the prior work injury and resulting impairment, that they ordered Plaintiff to "continue performing heavy manual labor," and that they knew "plaintiff would obey it because he feared losing his job." The Court concluded that this could be (not was) "a hostile action or attack against plaintiff." As such, the Court concluded that the trial court should entertain proof of these allegations, and that dismissal of Plaintiff's case against the coworkers/supervisors was inappropriate. 

Days later, in Missouri, a September 6, 2016 decision, McComb v. Norfus and Cheese, in the Western District Court of Appeals is likewise interesting. There, a widow sued her husband's supervisors regarding wrongful death after the employee's vehicle slid from an icy road and while making a delivery. Defendant Cheese allegedly did not check the weather that day, but instructed that the employee should drive "slowly and carefully." Though informed during the shift that the worker's windshield "was freezing" the supervisors instructed him to continue his work. Despite his slow and careful speed, the vehicle flipped "several times," resulting in death. 

McComb's wife sued for wrongful death, but the trial court dismissed the suit. She sought review at the appellate court, which noted the Missouri workers' compensation statute currently provides reasonably clear immunity for "any employee of an employer." But, it noted that the law was less clear in 2009 when the motor vehicle accident in this case occurred. The Court noted that this section had been "liberally construed" within the general spirit of the workers' compensation law, but that an amendment in 2005 led to more of a strict interpretation spirit. The Court had therefore previously concluded that employees retained a "common law right of action against co-employees who do not fall squarely within the definition of 'employer.'" 

The Missouri court provides a lengthy review of prior decisions, and the development of legal analyses regarding employer's duties to employees. Some portion of this analysis is centered on whether those duties are delegable, that is whether they can be made the responsibility of others. Primary among those duties, in the facts of this case, is the non-delageble duty of providing a safe workplace. The Court concluded that there were therefore factual questions that would be relevant on whether the widow could proceed with this wrongful death claim against the supervisors, and thus dismissal was not appropriate. The Missouri decision was reported also on WorkCompCentral. 

In each instance, the injured worker or survivor seeks to recover from coworkers/supervisors. In each case, those supervisors are alleged to have made decisions within their responsibilities for the employer. And in each instance, the appellate court reversed the trial court's dismissal of the case on legal grounds, allowing the cases to proceed further and perhaps to consideration by a jury. In each instance, the claims against the supervisors will return to trial courts for determination of various factual questions. The potential for supervisor liability may or may not result in either verdict or adjudication. 

But, the potential for liability exists in these instances nonetheless. Does workers' compensation have more than one linchpin, or is the Webster definition of primacy persuasive? Is "exclusive remedy" an important part of workers' compensation? Is it "a linchpin," or not? Does it protect the decisions of supervisors and coworkers, or do those employees need to be concerned with the potential for personal liability through their supervisory decisions? And, will employers stand behind the decisions of their supervisors, providing a defense and indemnification? 

It is an interesting time in workers' compensation. Is there erosion of the "grand bargain?"