Techies Talk Tech at SAWCA ACC 2015

Delece Brooks (GA). Matt Bryant, Fran Davis (KY), Christine Dicken, and Roger Williams (VA) participated in a panel presentation at SAWCA's All Committee Conference this morning. Larry White of Louisiana moderated. They addressed the technological retooling of computer systems, databases and processes by state agencies that manage workers' compensation.

Christine provided an overview of the process of planning and mapping the development of computer and technology tools. She described the interaction with end-users early in the process, determination of key elements for the tool, and charting the various elements that will be part of the tool. This "tool" could be a website, a case management process, or other software. 

She described how information is solicited, organized, analyzed and then presented. A key in the discussion is that various constituency groups and audiences may have dissimilar interests and needs. What is the purpose of the tool, who does it serve, and what should it accomplish for them? The tool should be effective in addressing needs and concerns in a broad perspective for as many end-users as practical.

She described that this benefits everyone in the process, including the vendor that will produce the tool. An overall plan on the front-end of a program evolution can prevent the need for changes and re-writes later in the process.

Matt Bryant noted that these discussion of modernization and programming are a recurring theme. He noted that there seem to be a large number of workers’ compensation agencies and entities currently are in a process of updating technology. He noted that there is a great deal of information coming into these agencies. He posits that a prime goal of the tool creation process is to identify the relevant information within these masses of information. He described that programs can be developed to find the "diamond in the rough" of the massive document filings in state programs, second injury funds, and more.

Roger Williams noted that Virginia went on line with its electronic filing in the Fall of 2008. Virginia was a paper-based system that transition to paperless at that time. He noted that Commissioners during that transition period did not have the expertise to plan or coordinate software development. Commissioner Williams advocated that any agency working through a re-tooling should have an agency employee, a “go to” person, that has enough expertise to understand complications and problems, and able to communicate effectively with whatever vendor is selected to build or modify the tool.

A key reason for these database and programming tools is solving problems for the public. This may be because the public is the end user. It may also be that the tool makes the agency more effective or efficient in providing service to the public, thus the agency personnel are the end user, but the public is a beneficiary. As the customer's systems and computer capability changes, the state agencies might also have to evolve. The process from Commissioner Williams' perspective is ongoing. He notes that re-tooling is not a destination, it is a journey. 

He notes that finding and keeping qualified information technology professionals is difficult. Commissioner Williams said that Virginia has expanded its information technology staff markedly to develop and operate these new tools. He also noted that there are likely to be competing interests within the agency. Each function within an agency may seek its own tools and system upgrades. There may therefore be competing interests internally, seeking devotion of programming and other resources. 

Resistance to change is a consideration. Anything that is different may cause anxiety to participants in any marketplace, including workers' compensation. Commissioner Williams, as an example, described his reluctance in giving up paper such as his diary/planner, when Virginia moved to an electronic process. He says he would not return to the paper process, but admits it was not an easy transition for him and many others.

Georgia has a ten year old claims management system. Delece Brooks described their system and claimed that Georgia was the first in the country to deploy an electronic filing system. Five years ago, the agency launched a re-tooling with a project manager and new programming. With personnel changes and leadership changes, the re-tooling process became mired and unresponsive. She described her assumption of leadership as Executive Director five years ago, and the presence of new Commissioners. 

The agency underwent an audit process to identify their strengths and set new goals for deploying  new process and system. Through that critical review process, the Georgia Board identified flaws, set goals, and charted a course that has resulted in the recent deployment of its second generation case management software. 

Ms. Brooks described the agency’s challenge in trimming staff and re-orienting positions, goals, and processes. She stressed repeatedly that a project manager is critical to the process of anticipating needs, adjusting for competing interests, and building a platform that functions appropriately and effectively for all of the constituencies. Having the right staff in the right positions to utilize technical skills is seen as critical at the outset. 

Fran Davis stressed that agencies have many competing processes and responsibilities. She described the importance of understanding each business interest of the agency is critical. She encouraged agencies to spend time at the outset of re-tooling on understanding those various processes and addressing the concerns of regulatory, adjudicatory, and other processes. 

It is instructional to see states working to improve and deploy electronic capabilities. A Florida attendee afterwards expressed pride that Florida has already launched and maintained a state-of-the-art system. I am proud that our state-of-the-art system is world-class and has been developed and provided for a total cost to date of $1 million, far less than any jurisdiction of which I am aware. I am not sure when Georgia deployed their system but we are proud that e-JCC was deployed in November 2005. Happy tenth birthday eJCC.

SAWCA 2015 All Commitee Conference off to a Great Start

SAWCA’s All Committee Conference kicked off on Wednesday morning with a panel discussion regarding transition to government leadership positions. We had regulators from five jurisdictions sharing their experience of transitioning from the business world to government and all that entails.

The panelists included Abbie Hudgens (TN), Beth Aldridge (MS), Tom Hebson (Safety National), and Paul Sighinolfi (Maine). They shared their perceptions of whether new state appointees have a honeymoon in which to adjust to government service, and provided advice on how new appointees can effectively transition. The conclusion was a mixed reaction to that question with some feeling they enjoyed a honeymoon and others feeling that there was none. 

Tom Hebson stressed that workers' compensation systems in the United States do not tend to have transition plans for their leadership. Often, leaders are appointed to lead agencies, and those may or may not be individuals from within an agency, may or may not have prior government experience. He described key leaders leaving agencies, and not being replaced instantly due to the processes involved. He suggested that documentation and communication are critical for new regulators to acclimate to responsibilities.

Paul Sighinolfi echoed this sentiment, noting that there is often not a transition period in state government. He noted that in state government, there can often be no provision for a new key employee to be concurrently employed with a departing key employee. The opportunities for training, transition and continuity are frustrated. He felt that this makes transitioning into an agency more difficult than perhaps it needs to be. 

Frank McKay and Paul Sighinolfi each stressed that a critical element of successful transition is coming to the job with a goal or objectives in mind. Mr. Sighinolfi described his interest in providing a regulatory process that had been discussed but never implemented. He credits some of his success with the drive that comes from having goals and aspirations. There was consensus on the panel that goals and purpose help with a successful transition.

We learned that state systems are somewhat different. Beth Aldridge pointed out that she serves as an appellate judge of workers’ compensation claims. She is a physical therapist by profession, and described her position and appointment process. She said there were questions about her service by some who perceived that Commission position in a certain way based on prior Commissioners and their respective backgrounds. In other words, prior Commissioner's experience and background created expectations among some, and she did not fit the "mold" those people perceived. 

She stressed that in the transition, there is value in enunciating strengths and attributes that an appointee brings to the job. No one will be a copy of the “last commissioner,” but each will bring certain strengths, skills, and background to the job. Enunciating those skills and strengths will assist the marketplace with understanding how contributions will be made to the jurisdiction’s workers’ compensation system. A critical point is that everyone brings tools and skills. Enunciating those, defining one's contribution, may be helpful in making the marketplace more comfortable in the transition. 

Frank McKay noted that he found key agency employees were important to him in the transition. He recommended early discussions as to the functions, strengths and ideas of the existing agency employees. He described a comfort level achieved by having the right people in the right positions, and building a team that can address concerns and challenges. That may require changes in positions, and even replacement of team members to acquire the skill sets needed for agency excellence, and to achieve the goals and aspirations of new leadership. 

When asked to summarize their perceptions of a "key" to success in such a transition, the panelists were concise. They agreed that agencies need to be transparent and open, and leadership has to live that. The panelists agreed that interaction with other agency heads in similar positions through an organization like SAWCA is important, for collegiality, commiseration, but moreso for ideas and solutions. 

Abbie Hudgens moderated this panel through a variety of intricacies and concerns. They provided a conversational discussion, and critical take-aways for attendees. While there may be no absolute answer as to the way to manage such a transition, attendees were provided with concrete examples and sound advice for transitioning, building a team, and achieving goals. 

What is Hot in Workers Compensation?

Henry Tillman once said that "the saying 'getting there is half the fun' became obsolete with the advent of commercial airlines." I am not sure who Mr. Tillman is, in fact no one seems to know. But, I am doubting that Mr. Tillman has travelled lately. I spent the better part of yesterday (12 hours starting at 04:30) in a seeming remake of Trains, Planes and Automobiles, making my way from suburban Florida to rural West Virginia. 

I do mean rural. We are staying at an amazing venue in the beautiful West Virginia mountains. But, a trip to the local mall last night for a few forgotten items was instructive. The local mall is anchored on one end by K-Mart and on the other end by an auto parts store. "Toto, I've a feeling we're not in Kansas anymore!" But what we really need, education, intellect, and expertise on workers' compensation, our attendees and speakers have brought with them to this idyllic, beautiful, and yes rural, environment. 

I am here for the Southern Association of Workers' Compensation Administrators. This is an amazing group of thought leaders from across the country. Among them are the administrators and leaders from 20 jurisdictions. The latest state to join the group was Maine, which some might struggle with given the word Southern in the name. But "Southern" may be just a state of mind?

National gatherings like this are eye-opening. They provide a unique opportunity to appreciate what is going on in various jurisdictions. It was at a SAWCA event that I first heard of states requiring electronic medical billing. Other ideas I have been exposed to at SAWCA events include the Texas drug formulary, the Oklahoma Opt-out, Georgia pill-mill efforts, Colorado Marijuana impairment measurement science, and New Mexico Marijuana reimbursement struggles. This is a short list, but the point is that each state is at the forefront of something. Each of those will likely be discussed in my state eventually, and it is good to know what has already occurred. 

A careful listener at a SAWCA event will come away with perceptions of what is hot in workers' compensation. A fair measure will come from the program and agenda. But another measure will come from the conversations around a meal or beverage break. The "us to" and the "that would never work in _____" comments usually lead into illuminating comments about what is hot in other jurisdictions. 

SAWCA is unlike any other education organization to which I have belonged. It programs each convention with key note speakers, like so many others. But a major portion of the programming is provided by standing committees on substantive workers' compensation concerns. These committees each program a portion of the program independently. Thus, it is a "what's hot" in both a macro and micro sense. 

Having now had my full measure of "half the fun" just getting here, I am anticipating what the week will bring. We begin today with a Board meeting. Experience tells me that our agenda will be punctuated with "war stories" from the latest tribulations of various jurisdictions, but we will also do the business that keeps SAWCA running. 

On Wednesday, we kick off the program with advice for the new and newer administrators. The title is "How Long Does the Honeymoon Last?" Coincidentally, this will be held in the Eisenhower Room here at the hotel, a program for leaders in that room has certain poetic appeal. Workers' compensation administrators and industry experts will discuss the challenges of undertaking leadership roles in this industry. With new roles and responsibilities may come some period for a learning curve, and the issues is how long that period may last. What can regulators do to get up-to-speed rapidly, and be ready when that honeymoon is over?

The second general session will be presented by the Management Information Systems (MIS) Committee. We have all seen success in the endeavor to bring modern technology to bear on administering workers' compensation systems. Industry and government alike have been driven to leverage technology for both better performance and cost savings. Each peak we best provides us an amazing vista on the path travelled, but usually an equally amazing view of the path ahead. With each achievement, we can pause for the pat on the back, but we can also see new peaks to challenge. Technology is ever-changing and state systems have to be prepared to ascend those next peaks. 

With an array of MIS experts we will discuss this from multiple aspects. First, the challenges of keeping systems current with consumer needs. Workers' compensation administrators have many consumer constituents, recovering workers, employers, insurance companies, rate-making organizations and departments, and the state's public. There are many with an interest in workers' compensation. Second, how do agencies re-tool, that is make major hardware or software changes, to keep up with developing technology and the customer's needs?

The Self-Insured and Insurance Committee will focus as usual on the involvement of risk in workers' compensation. The risk allocation needs are complex, and can be vastly different for business and government entities. The Committee has brought an industry expert, Scott Richbourg, to focus our thoughts on how public entities are regulated as self-insureds. These are often large employers, and as government entities may have unique challenges. How regulators monitor these and other self-insureds presents challenges and bears attention.  

Alan Greenspan once said "I know you think you understand what you thought I said but I'm not sure you realize that what you heard is not what I meant." There are barriers to effective communication in the world of workers' compensation. The SAWCA Adjudication Committee and Administration & Procedure Committee will host a frank discussion of where our communications break down. Employer, carrier, and regulator participants will involve the audience in a frank discussion of better communications, challenges, and solutions. 

On Thursday, one of the great challenges of modern workers' compensation will take center stage. There are many instances in which a recovering worker's benefits may be seen as wholly the responsibility of the employer. In other instances, the disability may be seen as a result of more than one condition or event. States have moved to statutory models that may allow determinations of responsibility between work events and non-work, apportionment, and between multiple work events, contribution, that may not have occurred at the same employer. The statutory changes that allow consideration of such issues have brought challenges to adjudicators and the regulators and administrators of workers' compensation systems. 

In the current era of workers' compensation, hot topics seem to always include constitutional issues. An amazing panel of experts will address the recent Pennsylvania Commonwealth Court decision in Protz. Whether in terms of fee schedules, treatment guides, impairment guides or more, state laws rely on documents that are compiled by other government agencies and private organizations. The Pennsylvania court recently found constitutional infirmity in such a delegation. While it is a focused state court decision, applying a specific state constitution, the decision raises questions for all workers' compensation administrators. 

Workers' compensation is the matriarch and patriarch of a sometimes dysfunctional family. One challenge in this family is that two of the siblings, medicine and the law, seem to consistently find a way to disagree. Some are genuine disputes on a foundational level, while others sometimes seem to be the equivalent of a "he's touching me" argument in the bask seat of the "family truckster" as we attempt to traverse our collective way to the nirvana of Wally World. SAWCA welcomes J. Osbahr, III, MD, a Member of the Board of Trustees with the American Medical Association. The relationship and perspective of the medical community will be the focus. This is expected to lead to a discussion of why systems face low populations of ready, willing, and able physicians to aid recovering workers. 

Friday will cap the week. The learned and articulate Chief Judge of Kentucky will provide an overview of recent appellate cases there. Some feel that the Kentucky Supreme Court has seemingly thrown the stare decisis baby out with the bathwater in recent decisions. Whether there a role for stare decisis in workers' compensation will make for an interesting discussion. 

The programming concludes with Bob Wilson of WorkersCompensation.com moderating a panel discussion of "things that make you go Hmmmmm." This avant garde prognosticator on all things workers' compensation will query regulators and industry experts alike. Edification on many burning questions of "why" and "how" on issues like Marijuana, medicine, and legal procedure may be on the agenda as panelists take the "hot seat" and Mr. Wilson has his chance to cross-examine. 

This is the promise of the agenda, a menu of interesting offerings that may represent what is hot in workers' compensation. I will be blogging live from the SAWCA All Committee Conference this week, trying to take in the substance of the programs and the ensuing conversations. 

Then Friday I will begin the return trip with high hopes of avoiding traffic jams, road construction, my smart phone's seemingly vengeful selection of dirt-road routes, long TSA lines, delayed flights, over-stuffed luggage bins, flight durations too short for delivery of even a simple bottle of water to each passenger, and more. Isn't travelling fun?

After all, if getting there is half the fun, is trying to get home the other half? And if those two are true, does that mean that all the "fun" is in the travel, leaving no fun for the destination? Well, I said the program was interesting and compelling. I will hope that somehow it also includes some fun. Perhaps getting there is half the fun, getting home is half the fun and being there is half the fun? Math was never my strong suit.  

Live from West Virginia, it SAWCA ACC!

The 2015 Annual Report is Out

Each July, we begin the process of collecting and auditing data from the last year. Through August, September, and October the task continues. Slowly, the report begins to take shape, and usually by the middle of November we have it printed and in the mail. This year we were a little early, thanks to a great many OJCC team members providing proof-reading assistance. 

What will the numbers show this year?

The e-JCC platform continues to perform strongly. The system saw 522,321 filings last fiscal year. When you consider that each of those would have cost at least $.49 to mail to us, that alone saved attorneys, adjusters, and carriers $255,937.30 last year. 

Petition filing and new case filing were each up slightly last year. There are those who see this as a result of hopes pinned to Castellanos v. Next Door Company. Others contend that the economy is rebounding, and naturally there is more employment and perhaps that naturally means more injuries.  We had 60,021 petitions for benefits filed in 2014-15 (the State is on fiscal years that run from July first through June 30th). That is up about 1.2% from 2014-14, when we had 59,292. 

Notably, though, last years total was an increase also. However, the 2014-15 PFB filing volume was still lower than than 2011-12, and was less than half the volume in 2003-04. 

New cases filed were up very slightly in 2014-15 at 29,870. That is about 100 more new cases than in 2013-14, which was 29,771.  The filing rates for new cases have been virtually flat for the last five years. 

The volume of pending cases which reflected no claimant's attorney as of June 30, 2015 was 10.22%. This is the lowest it has ever been in the thirteen years we have tracked that statistic. Pro-se case volume simply does not appear to be increasing. 

 Attorney fees is always a topic that draws questions. Defense and claimant fees each decreased in both 2013-14 and 2014-15. The total for all fees was $370,741,896 in 2014-15, about $8.5 million less than the year before. The distribution remained similar to prior years, with claimant's attorneys receiving about 37% of the fees and defense attorneys about 63%. The actual totals were $136,180,202 for claimant's and $234,592,581 for defense.

An interesting fact is that most of the fees paid to claimant's attorneys each year are related to dates of accident within the ten years prior to the year in which payment is made. For 2014-15 79% of claimant's fees related to accidents in the ten years prior. But most, more than 60%, is in the four years prior to the year of payment. Despite this, 7% of claimant fees paid in 2014-15 were for dates of accident more than 20 years prior. Back in 2005-06, that was only 2%.

We are proud that our mediators are all averaging less than 130 days to the first mediation in each case. Just as proud that our judges are averaging well below 210 days in getting cases to trial after filing of a motion or petition. Most, 87%, of our judges averaged less than 30 days to get their trial orders published last year. This is a great achievement. We continue to hope for a 100% year, and I am confident that the day is coming!

The report will be published on the OJCC website this week. Watch for it. I am always available for questions about the report and the OJCC generally, david.langham@doah.state.fl.us.

Who is Really the Ultimate Decision Maker?

Many years ago, in 1980, Rush sang Freewill.  One of the lyrics of that tune is "if you choose not to decide, you still have made a choice." That is a line that parties might want to remember when they head to mediation. 

So many times, I have heard the mediator caution litigants about the "worst case scenario." That is, the outcome in which all is lost. Mediators then provide the alternative; the pitch is that "today" (the mediation) is your day. At the mediation the parties are in the position to craft their own outcome to their dispute. There are many angles to this construct, and I have heard it explained in many formats, but at the end of the analysis, the message is the same. The parties decide, freewill.

There are no rules of evidence at mediation. The parties are free to say what they want to say. Each may spread on the table whatever documents or photos they wish. The parties may assign the importance they feel appropriate to testimony already memorialized, testimony expected, or even testimony desired or hoped for. 

At mediation, there are often variables that remain unknown from all perspectives. Parties may have expectations and plans for how evidence will develop, and how it will play out in a trial. When cases do not settle, sometimes those plans come to fruition just as expected at trial, but sometimes there are curve balls and unexpected developments. 

There are times when some witness' perspective and therefore testimony is changed by cross-examination, at a deposition for trial or at trial itself. The witness may learn something new when confronted on cross. Sometimes it may be as simple as the witness being asked a question in a different way on cross. 

Every witness knows her or his own perspective reasonably well. Each party generally knows her or his case, that is the composite of all witnesses or documents, reasonably well. Often the discovery process is revealing or educational and by trial some parties may feel they understand the opposing case reasonably well also. But trial can bring the unexpected.

It may be that the process leading to trial will provide information that leads to decisions. There may be information gleaned in discovery that is perceived to strengthen a party's case, or threaten it. There may be motions filed, and rulings on those may change each parties' perceptions of the evidence, and the strength of her or his respective case. 

There are occasions when cases settle during trial. Something in the course of trial may lead parties to further discussions during some break, recess or pause in the proceedings. 

There are occasions when a case will settle following the trial. At that time, the outcome may remain unknown, as the verdict or ruling has not been rendered. Despite this, a party may have perceptions gleaned through the trial process. Evidentiary objection rulings may have been made that effect a party's confidence, positively or negatively. Evidence may not have presented as anticipated; objectionable evidence may have been admitted or critical evidence may have been excluded. In short, much can happen in trial. 

There are occasions when a case may settle even after the verdict or ruling has been entered. A party may file an appeal of such a decision, and in the course of preparing legal arguments for the appellate court, discussions of compromise may ensue. There are processes for "appellate mediation," discussions about compromise with a mediator to assist. 

The appellate process can take time, and sometimes the result of an appeal is not a ruling in either party's favor. The result may be a remand from the appellate court, an opportunity to go back to the trial court and try that case again. This brings both parties back to square one and the uncertainties, perceived or real, with her/his own case and the opponent's.

At any time, before litigation or even after an appellate opinion has been published, the parties are free to discuss their own solution to their dispute(s). In their discussions, they can proceed based upon their perceptions of the strengths and weaknesses of both their own case and the case of the opposing party. 

The parties have to appreciate and respect the potentiality that at any stage of the case, things may not work out as anticipated or planned. Armed with their perceptions of how things might ultimately conclude in the litigation process, each is free to make her or his own decisions and predictions, to assess risk, to consider strengths and weaknesses, and to decide whether any alternatives are worthy of consideration. 

The ultimate decision maker is not the trial judge, it is not the jury, it is not an appellate court. The ultimate decision maker is the party to the litigation. The decision may be to proceed to trial or appeal or to settle the case; there is no "right" or "wrong" answer except to the extent that the party decides it is "right" or "wrong." Whatever the decision, "you still have made a choice." It's about freewill. 

The Recovering Worker is Sued

Just when I thought I had heard it all, a Texas story (which originally appeared in the Texas Tribune) recently made me stop and think. A teacher, Ms. Hammond, in Texas worked in a facility for at-risk youth near Austin, Texas. In 2011, she was on duty when the dorm "erupted into a full-fledged riot." In the mayhem that followed, Teresa Hammond witnessed a variety of poor behavior.

Ms. Hammond saw a student running past, and she "grabbed the shirt" in an attempt to stop him. The "momentum nearly yanked her arm out of its socket and drove her left knee into the ground." She came away from the incident with a "fractured knee and nerve damage in her shoulder and arm."

She is no longer employed. She was "medically discharged by the Texas Juvenile Justice Department in June 2012." She is receiving "food stamps" and the occasional "overdue child support" while she applies for social security disability benefits (a program that is scheduled to be bankrupt in mere months).

There are those who would tell you that her situation is not unheard of in the world of work-related injuries. There is at least a perception that injured workers can come to rely on federal benefits. But that is not a universal conclusion; there are varied views on the interactions between workers' compensation and other benefit programs. But the perception has driven the development of processes for the protection of Medicare's interests when workers' compensation cases are settled. 

But Ms.Hammond's story is interesting because of the procedural process described. The Texas "risk management office" is described as an "obscure agency charged with insuring thousands of state employees when they are injured on the job." According to the author, it has "paid most of her medical bills." There has been litigation regarding some workers' compensation benefits, and the office has contested "the extent of her injuries - and whether they all occurred on the job."

There have been allegations that some of her complaints, such as the nerve damage in her upper extremity are not related to the work injury, but are "degenerative." There have also been disagreements as to when she achieved maximum medical improvement (MMI). The Administrative Law Judge (ALJ) "determined that the nerve injuries were 'caused, enhanced, accelerated or worsened by" the work injury. The ALJ determined MMI, and ordered the payment of some measure of benefits. The claimant "had declared victory."

In Florida, such a trial decision might be appealed for consideration by the Florida First District Court. Texas presents another procedure though. In a "last-ditch" effort to avoid liability, the Office of Risk Management reportedly has filed a lawsuit against the injured worker, "asking a district court to overturn the administrative judge's ruling." The article says that when this occurs, "the odds are stacked against injured workers." 

There is a measure of expense associated with any litigation. The article explains that according to the Texas Supreme Court, state agencies are not liable for "paying attorneys' fees in such cases - even when they lose." Conversely, if the agency wins the court case, the injured worker could be "liable for court costs." If the agency wins, the worker may have to pay litigation costs, but if the worker wins, the agency does not pay such costs.

The article says that the agency does not often file lawsuits like this one, but the case regarding Ms. Hammond is not unprecedented. The author questions whether the small number of such suits results from a conscious decision of the agency or because "workers (are) winning fewer cases at the administrative judge level." However, no data is provided regarding whether more such court cases were historically filed. The article provides no support for the representation that "fewer" recent cases involve injured workers prevailing as compared to some time in the past. 

The defendants in these cases, the injured workers, "face major obstacles in finding legal help" with defending these lawsuits. The article concludes that this is because the agency is not liable for attorney's fees if it sues a recovering worker and loses. Texas has a law to "discourage frivolous lawsuits," but that law does not apply to the state agency because of "sovereign immunity." So, unless the recovering worker has resources to pay an attorney, "attorneys representing workers in such cases often can't get paid." More accurately, attorneys can't get paid by the state.

There are instances in which attorneys take such cases with no expectation of payment, This is what we call "pro bono." Despite the reputation of lawyers in the community, and all of those lawyer jokes you hear, there are a fair number of attorney hours donated to such pro bono causes every year. According to The Florida Bar, almost 2 million pro bono hours were provided in Florida last year alone. Ms. Hammond has been lucky that publicity of her case attracted a pro bono attorney. One might feel the same about anyone who benefits from any of those Florida pro bono hour donations.

There are those who are critical of the procedural setting that is in motion in a case like Ms. Hammond's. Some apparently blame the Texas Supreme Court for its interpretation of the "frivolous lawsuits" law. Others apparently blame the Texas Legislature for not changing the law that the Supreme Court interpreted, which prevents attorney fee liability against state agencies. These critics, believing the Court has misconstrued the law, think the legislature should amend the law to define a different result, making the state liable for such fees. 

As an aside, I wondered as I read about the use of "frivolous," in the article. It notes that Texas has a law to "discourage frivolous lawsuits," but that it may not discourage lawsuits by state agencies due to immunity. But does the fact that a case is filed, but is lost, make that case "frivolous?" The article provides no further guidance on what is "frivolous" in Texas. 

An interesting story from Texas. 

Attorney Disciplined, in part for Lying

Recently, the Kansas Supreme Court issues a couple of disciplinary rulings. They concern attorneys named Cline and Ehrlich. WorkCompCentral reported on the two in June 2015. The Court found it appropriate to suspend the two attorneys. There are occasions in which the Kansas Court has disbarred attorneys for "inexplicable incompetence," criminal offense convictions, and misappropriation of funds, among others. But these two were not in the disbarment category.

One attorney was suspended for lying to a client. Clients are entitled to know about the status of their case. The attorney has an obligation to keep the client reasonably apprised of how the case is going, where it is likely going, and when it will likely arrive at closure. 

In this instance in Kansas, the attorney was hired in 2009 to file for personal injury and workers' compensation benefits. The attorney did not serve the civil lawsuit on the defendants. This resulted in the court dismissing the lawsuit. Essentially, the attorney made a mistake. We are all human and mistakes will be an unavoidable part of that. In this instance, the attorney then compounded the mistake by not telling the client that the case had been dismissed. 

On the upside, the attorney did obtain some workers' compensation benefits for the client. However, the payment was slow in coming and the client called repeatedly. Counsel said that a hearing would be held to compel the payment of the obtained benefits. The client was told she need not attend. She presented anyway and learned that there was no hearing. The client believed she had been lied to and she complained. 

The attorney and the supervising attorney at the firm then did the right thing. Better late than never, they conceded to the client that she had been lied to, and that her civil case had been dismissed "two years ago." That cannot be easy to hear, nor is it likely to be easy to say. No one enjoys admitting that a mistake has been made. But, admitting it rarely gets easier as time goes on either. 

Much like the Florida system, in Kansas a Board considers complaints against attorneys and recommends discipline. In this case, the Board recommended that the supervising attorney "be censured and that (the attorney on the case) be suspended indefinitely." The Supreme Court accepted the recommendation and imposed those penalties. The article notes that unfortunately this is one of the two attorney's "third run-in with the attorney discipline system."

What can we glean from this situation? First, deadlines and procedures matter. They can detrimentally affect people with real problems. We have to keep the time limitations and procedural requirements in mind, it is what lawyers do. Second, mistakes are not like fine wine. They do not tend to improve with age. If we make mistakes, we would be well served to get them into the open and allow people to deal with them. Hearing it from us may be easier than finding out from someone else?

Mistakes are mistakes but being lied to is something else entirely. We have all been lied to, and few of us would say that we liked it. Some of us may be much more upset about the lie than we are about the underlying mistake. Elton John had a song about lies. Not one of his biggest hits, but a poetic rendition nonetheless. He notes that people lie for so many reasons about so many things. Among these:

Some lie about who they love

Some lie about the truth

Some lie to save their lives

Some lie about their youth

The refrain is "but I never lied to you." Perhaps honesty is the best policy? When one knows a liar, it may be hard to trust them, even if one were to believe that the liar will never lie to us?

We have experienced curious anecdotal instances in the Florida workers' compensation adjudication system. People appear at offices for hearings or mediations that they believe are on the schedule, but are not. We have people call offices to check on the status of orders regarding motions they think have been filed, but have not. Time is invested in helping people understand that there has been some misunderstanding. Hopefully these are the result of some miscommunication or misunderstanding. 

The online OJCC case docket has gone a long way to prevent misunderstandings. Anyone can look at the case filings in any case on www.fljcc.org. Just key the case number in the quick view box at the top of the page or use the case search tab, and find the case. Only registered users can see the actual motions and other pleadings, but anyone can see that something has or has not been filed. Anyone can see if an order has been entered, and can read the order. Free, easy access to information on case status.  

The online case docket is a powerful tool. Beyond pleadings and orders, it provides a great deal of other information, including the dates and times of any hearings. The parties to any case can monitor their own filings, and track whether orders have been entered, and verify dates and times for mediations and hearings. Keeping a client reasonably apprised has never been simpler. 

An interesting side-effect has been a tremendous decrease in the volume of telephone calls at our District offices. When one wonders whether a motion was filed, or an order entered, they are checking the website. There was a period when callers were asked if they had checked the web, we were educating on the existence of this information and how to access it. But that has slowed greatly, and the market has accepted the new paradigm and is leveraging it. 

At the end of the day, we have to remember that we are human and we will all make mistakes. We should strive not to, but the fact is that we still will despite our best efforts. We will never be able to escape the human condition and part of that will be embarrassment about mistakes and disappointment and perhaps frustration. This is all normal. When it happens, we will have to be honest about it though. That may not be easy, but it is the right thing to do for ourselves and the client. 

Disability Awareness Month

Without much fanfare, another October passed us by. It is a busy time of year for me, with the OJCC Annual Report due each November, but each of you has similar deadlines and challenges with briefs, trials, and more. But October is an important month. 

We have days and weeks and months to celebrate and recognize any number of things, conditions, causes, groups, etc. For example, today happens to be national doughnut day. That is one I am not likely to forget or ignore. But October is an important month.

I get a fair amount of unsolicited email seeking to sell me something, attend a seminar, etc., And most of it gets caught in the SPAM folder or immediately deleted. One that I received in October caught my eye though, a promotion for National Disability Employment Awareness Month. It led me to the Source America website, which notes that "my disability is one part of who I am."

Coincidentally, this year those noting the Awareness Month are also celebrating 25 years of the Americans with Disability Act, the "ADA." That is a little hard for me to accept, it seems like they just passed that law yesterday. The last 25 years have sure passed quickly.

There is a lot of information on that website about disabilities. It notes that "the lives of many Americans with significant disabilities are filled with stories of success or unrealized promise." In short, there are inspirations and frustrations. 

But note this, they say there are "60-plus million Americans with disabilities who are of working age." That is quite a number. This site does not define "working age." I got my first job before I was 18, and know many others who did. I know a good number of people who are still working and over 65. So I am not sure those age parameters define "working age."

The U.S. Census bureau however provides some interesting statistics. Its website says that there are 318,857,056 Americans and 23.1% (73,665,980) are under 18 while 14.5% (46,234,273) are over 65. If 18 and 65 define "working age," an assumption at best, then that means there are 198,966,803 "working age" Americans. If the "60-plus million" figure is accurate, that means that more than 30% of the American working-age population has a disability. This might be illustrated by thinking of your two best friends; among the three of you, statistically, one has a disability. That is an incredible statistic.

The Source America website blog says that "almost 80 percent of" that "60-plus million" adults "do not participate in the labor force." Eighty percent of 60 million is 48 million. Forty-eight million working age Americans not participating in the labor force. That is a sobering statistic also. That website author asserts that "it’s clear that we as a society are not doing nearly enough to empower what has become the largest group of disenfranchised people in the country." I provide some highlights from that blog here, but it is worth a visit to get their whole perspective.

She says that there are obstacles to employment for these people. They "include education, leveraging existing resources and current public policy." Not insurmountable in her opinion, but significant nonetheless. 

The author recommends more with disabilities need to make the transition from high school to college. That is perhaps true of everyone, regardless of disability. But college is expensive, and getting more so each year. We have vast campuses, with phenomenal physical assets, and many tax dollars have been devoted to these institutions. 

Some feel that existing facilities and the current volume of instructors could handle a much larger population of students. There are anecdotal reports of full-time college teachers making admirable salaries for teaching 15 hours per week, 30 weeks per year. Other sites claim these faculty members work more like 50+ hours per week. 

So, could existing resources be better used; could more students be educated for the existing expense. The cost per student would decrease if that were true. Still others suggest colleges should spend less on football teams, research, or some other segment of interest. Opinions abound. 

The Source America website blog author also seems to concede that college may not be for everyone, and says that some would do well with "professional development and on-the-job training." With such efforts, her conclusion is that "the skills of our students" will be appropriately matched "with the tasks involved in performing a job.” That argument might be applied to a great many people. Much of our working population learned a great many skills on-the-job. I know I did. 

She notes that there are already resources in the American community, but that they need to be further leveraged. The author says that "over reliance on parents or legal guardians for financial support" by the disabled has to be reduced. She notes that the disabled may have "little incentive to leave the nest and no job opportunities on the horizon." This, she believes, leads to inaction, and atrophy of the skills and abilities that these people have. In short, going to school should lead to gaining knowledge and ability, but like muscles exercise is needed to keep skills. 

The blog post cites a Harris Poll regarding America's perceptions of employment for people with disabilities. The vast majority of those surveyed in that effort support the hiring of those with disabilities. Despite this support or belief, she notes "these statistics are telling, but the reality is that 80 percent of working-age adults with disabilities remain ostracized from the workforce." Remember, that this is about 48 million people if my math is correct. 

That 48 million is a huge number. The population of our ten largest cities, New York City (8.3 million), Los Angeles (3.9), Chicago (2.7) Houston (2.2), Philadelphia (1.5), Phoenix (1.5), San Antonio (1.4), San Diego (1.3) and Dallas (1.2), together are only about 24 million, one-half of the 48 million that these advocates claim are working-age disabled that are not participating in the labor market. 

Finally, she advocates more legislation. She notes that there are a multitude of statutes in place. She concludes that these many statutes have not eradicated unemployment because employers harbor "misconceptions that individuals with significant disabilities lack the ability to complete the work as well as people without disabilities, and that they require cost-intensive accommodations to properly perform the job." 

The Author sees impediments to adding legislation. She believes that there is "fragmentation and differing views in the disability community which challenge the opportunity to positively influence the additional work that needs to be done in public policy." In other words, there is not consensus on what further legislation might move things forward. I remember when the ADA was touted as the be all and end all of the debate. 

The overall theme of the post seems to be that great progress has been made in the world of disabilities, but that more is needed. What more is the subject of debate. Are there interactions with workers' compensation that bear analysis?

Do employers worry about whether a prospective employee could be at risk of future injury? In September I noted one alleged instance of this in A Comp Claim Waiting to Happen. Is an employer right to be concerned about future risk of loss? Should employers ignore potential future risks when making hiring decisions? Is such fear, justified or not, an impediment to those with existing disabilities? Is it widespread or isolated? Many questions come to mind.

When work injuries occur, is the focus to "assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker return to gainful reemployment at a reasonable cost to the employer" set forth in Fla. Stat. 440.105 and so many statutes like it across America? And when we ask that question, it is fair to ask whether this is the focus of both principals in the workers' compensation world, the employer and the employee. 

But, the main point this morning, is that October was National Disability Employment Awareness Month. I am sorry I failed to note it then. At least we are noting it now. With the interrelationship between injuries and disabilities, the workers' compensation community should have noted October's significance. I missed it, but will try to remind you all next year. But for now, I am headed to the doughnut shop, happy doughnut day!

Agreements Matter

Workers' compensation is under most people's radar. There are industry sources for news in workers' compensation. There are not a great many workers' compensation-focused news sources, but a few like WorkCompCentral.com and WorkersCompensation.com provide news and feeds for people that want to keep up with workers' compensation news. There are blog spots like Jon Gelman's and Tom Domer's that provide a vast array of workers' compensation and related material from around the web. There is the WorkCompWire and the WCI360.com which each provides links to content. But news stories about workers' compensation on general news sites and publications is just not common. 

In September, there was a rare exception in the national news. The story caught my eye and it's national coverage surprised me. It involved a fall down the stairs in 1986 up in Harrisburg, Pennsylvania. Yes, that is almost 30 years ago; this accident has become old enough to vote, to drink and to have kids. It was covered on AOL.com, PennLive.com, a local Fox affilliate, and there were links to the story on some of the national news pages. 

According to the story, Maritta Adley is 57 years old, In 1986, she was 28 years old and a police officer in Harrisburg. She had a fall down some stairs and injured her foot. It reports that after "her injury officer Adley "eventually returned to work on light duty" but that did not last. She last went to work in 1993. Unfortunately, there are people who are injured at work and do not return to work. 

Various state worker's compensation programs describe that differently. In Florida, we refer to these as "permanently totally disabled" or "PTD." But according to the Pennsylvania Workers' Compensation Law Information Center: "in Pennsylvania, under the Workers' Compensation Act, there is no such thing as permanent or total disability." 

But, according to the Information Center "Some will receive workers' compensation benefits for the rest of their lives, others will settle their claims and live off of the settlement for the remainder of their lives, while others may have their benefits limited by an Impairment Rating Examination (IRE) or because of other vocational considerations." This might lead one to re-read the recent Protz decision and the implications of impairment guides in Pennsylvania. Workers' compensation administrators will be discussing the implications of Protz at the SAWCA All Committee Conference later this month. It has some interesting implications.

According to the PennLive.com story that has captured some national attention, however, some will receive their full salary, perhaps for the rest of their lives. Ms. Adley has received her full salary, and apparently benefits, for the last 22 years following her cessation of work in 1993 (when Bill Clinton was first inaugurated President). 

The story refers to her as a "ghost employee," and says that the "city officials were made aware of" her "when they took office in 2014." Apparently, the city has tried unsuccessfully to terminate her employment before, the last time in 2003. But she remains an employee of the police force, and "currently makes more than $70,000." 

That is a significant amount of money. Our current maximum workers' compensation rate in Florida is $842, according to the Division. The most one would receive in workers' compensation in Florida is $43,784, about $25,000 less than Ms. Adley.

Another of the impacts of a Florida workers' compensation injury may be the loss of fringe benefits. Certainly, an employer may continue health insurance and other benefits for some period, but when a Florida employee becomes permanently and totally disabled, it would be common for the employment relationship to end, and for those fringe benefits to end also. Ms. Adley has been fortunate to have her employer agree to "continue her medical insurance package" for the last 22 years. 

The story will perhaps stimulate some discussions of workers' compensation. Some will see Harrisburg's decision as generous. Some have commented that the payments are too generous. There has been too little reported regarding the medical condition and the resulting impairment or disability for anyone in the general public to draw any valid conclusions about the agreement. 

But at the end of the analysis, that is the key word in the story, "agreement." See, the article says that "city officials were made aware of" her "when they took office in 2014." But what that means actually is that "the current" city officials learned of this in 2014. The story later reports that in 1993 an agreement was made to pay Ms. Adley "her full weekly salary without deductions" and to continue her health insurance. That agreement was signed by the police department's "Director of Human Resources and "the city's risk manager at the time." Those city officials knew about officer Adley many years ago. 

The recovering worker and the employer made an agreement, and people do that all the time. Sometimes they are good agreements. Sometimes they are not. Sometimes agreements look good through the prism of what people know, and later they look different in retrospect. Everyone has bought something that they later questioned. Before people make agreements, they should consider how they may feel about them in the future.

Because in the end agreements matter. Contracts and agreements are the foundation of American business. They provide predictability and stability to transactions and even to the resolution of disputes. Agreements matter, and people would do well to remember that when they consider making them.

Management is not as Easy as it May Look

Grading can be subjective. Every student knows this, and has likely experienced some feeling of injustice from subjectivity at some stage of the academic career. This is because performance can be subject to perceptions and perspectives. We see the same instances in the working world, and our country generally. News items that excite and inspire some are seen as utterly irrelevant by others. Perspective has its effects.

I was surprised to see a recent story on WorkCompCentral about misclassification. Earlier this year, I tried to outline misclassification for those who had not heard of it in Misclassification - what is it? Many agree that misclassification is a problem. There are implications for unemployment, payroll taxes, competitive bidding, and yes for workers' compensation. It is a topic that is getting attention in a variety of jurisdictions. Some would argue that it deserves more attention than it is getting. 

Misclassification is essentially a problem of labelling a worker "independent contractor" rather than "employee." Doing so may keep a businesses' number of employees less than four and thus it is not subject to mandatory workers' compensation. Or, it may be done simply to keep the number of employees artificially low and thereby minimize the total payroll upon which workers' compensation premiums are paid. 

Several states are working on misclassification. Florida is among these. There have been many schemes reported in Florida news. These can be quite simple in some instances and fairly simple in others. It makes sense that there is some focus, because this misclassification is reportedly very expensive. 

The recent WorkCompCentral story details the efforts Vermont has made to address misclassification. Some might say rather that it documents what Vermont has not done, but then we are back to semantics. 

An audit was performed regarding Vermont's efforts at combating misclassification. It seems to have started three years ago with a gubernatorial task force tasked in 2012 to "develop an outreach campaign to educate employers on appropriate classification." That group elected not to "meet for two years." That is not unheard of. There have been a variety of boards and commissions across the country that did not meet at various times. 

Vermont is not a large state. It is about 157 miles north to south, and between 42 and 90 miles wide (widest at the Canadian border). North to South, that is about the distance from Melbourne to Ft. Lauderdale. The population is about 626,562, or about the same population as Lee county (Ft. Myers, FL). 

The Vermont Department of Labor (DOL) was audited, an effort to measure performance. Not only had the outreach group failed to meet for two years, the documentation of DOL's efforts was curious. The auditor concluded:

Multiple investigations started four years ago remain open.

Over 100 "active" investigations remain "assigned to investigators who are no longer employed."

DOL has imposed penalties on several employers, "but was unable to determine whether the penalties were collected."

The "rules relating to penalties for avoiding premiums" was last updated in 2001. 

The "program's single investigatory had 73 investigations assigned to him, some of them dating back to 2011."

The audit was also critical of the database used by DOL, as well as the quality of the data that has been recorded therein. 

The question now will be what Vermont does with the data. It must determine whether it considers this performance worthy. It must decide if misclassification presents a pressing problem for Vermont's workers and their compensation system. Finally it will have to decide whether to disband what appears to be an inefficient and ineffective misclassification enforcement effort. One might conclude from the findings above that no one has been paying much attention thus far. 

I walked into a similar situation in Pensacola, Florida back in 2001. I cannot believe that I have been sitting here for the last 14 years (this month). As an aside, I have now been a judge longer than I have held any of the other 26 jobs I have held. But accountability is not something at which the OJCC excelled in 2001. This agency had a history of long time-lines, bureaucracy, and inefficiency. 

There were two challenges, with which it appears Vermont is now likewise struggling. How to obtain data, and what to do with that data. The OJCC mastered both, but it was not an overnight result. The OJCC Annual Report will publish this month, with 254 pages of collective and individual data on the status of the OJCC. When I say it is a monumental task, it is no understatement. It is the answer to the question of what to do with the data. 

The process that supports that report each year is a strong database, with consistent data inputs in the field. Those inputs result in comparable outputs. The report, any data, should not be looked upon as a measure of results. The data should be looked at as a measure, about which one might ask questions. 

Two examples are worth noting. The OJCC provided judges with a database report back in 2007. It allowed a judge to print a report of every case that reflected an "open" petition in the database, with a filing date more than 210 days in the past. Did this produce a list of cases that should trouble a judge? No, the point of this list is not that these cases are past the statutory 210 days; the point is that with this list someone knows they are past the 210 days and can review to assure we are satisfied that there is a reason. 

About the same time, the OJCC provided the judges with a report that produced a list of all cases that reflected a status of "open" but which had seen no filing or scheduling activity for one year. Again, this does not produce a list of cases that should not be open. This produces a list of cases that someone should look at. That they are open is not the point. That there is or is not a reason for them to be open is the point. 

Vermont likely needs to re-examine the need for a task force. If it is needed, it should meet. The answer to the data is simpler. The inbound reports of problems need to be tracked, manually or electronically. If it is more than current staffing allows, then someone needs to say so. If the problem is important enough to attract focus, and it appears that it is, then leadership, process, focus, and evaluation have to be part of the plan to both track what is being done and to address the misclassification concerns.