What Worthwhile Can You do in 11.2 Minutes

Tim McGraw had a huge hit a few years ago in 2004, Live Like You Were Dying. About receiving a shocking diagnosis and less-than-optimistic apparent predictions regarding survivability, the song says that "I spent most of the next days . . . talking 'bout sweet time."

I have a friend that recently got such a shock, learning that lesions had developed on the brain. Conversations apparently followed about specialists, biopsies, operability, and clinical trials. These are the kind of conversations that we may find uncomfortable and depressing, about friends, from long-distance, and I struggle to comprehend how they must feel in first-person.

I have had this friend on my mind often in the last few weeks. I have thought about time and how we take it for granted. Time can seem glacial in our youth, seemingly the next school holiday will never arrive. Unfortunately, even our youth learn that when a deadline approaches, that test, that term paper, time passage perversely and inexplicably accelerates. As I age, I feel time accelerating and perhaps time is framing my perspective more than it ever has. Time seems so short.

How do we spend our time, and what is the relevance of that 11.2 minutes in the blog title?

On average, we spend 19 minutes each day reading. That is about 1.5 eleven minute periods each day. That is not much time reading, and apparently young people spend even less. 

Americans spend an average of forty minutes each day on Facebook and an average of about 46 minutes each day in an automobile. So, each are about 4 eleven minute periods.

The average employed American works 7.8 hours, or 468 minutes each day, about 42 eleven minute periods.

Sleeping? That averages 512 minutes each day, about 46 eleven minute periods.

Two years ago, I penned Dying to Me Don't Sound Like all that much Fun. That post centered on the 2012 statistics regarding death in America, compiled by the Center for Disease Control (CDC). Prescription overdose was a "national epidemic." In 2012, the CDC shocked us by reporting that drug overdose was more likely to kill an American than automobile accidents. That was a product of growing overdose and shrinking auto death, but was a surprising headline nonetheless.

According to a 2013 Huffington Post article, deaths in 2010 from drug overdose totalled 38,329, or "105 every day." The article noted that by "comparison, traffic accidents were responsible for 33,687 and firearms 31,672. There was a great deal of hand-wringing and calls for change. States went to war on "pill mills," and millions of dollars were invested in prescription drug monitoring programs. Some states even mandated that prescribers check those databases, others just require that the prescriptions are entered in them.

Progress was reported. It is not an easy problem. This statistic is about all drug overdoses, and much of that occurs with street drugs and not prescriptions. But many contend that prescription pain relievers are "gateway drugs" to the street drugs like Heroin. They seemingly suggesting that all drug overdoses are possible interrelated. In the end, does it matter which drugs are the last straw?

Last night (like most everyone else in America) I ventured to Star Wars, the Force Awakens. It ran for 136 minutes, or roughly 12 eleven minute periods. I do not really pay attention to all the ads that precede the movie, and instead entertained myself with my antiquated i-phone. Imagine my surprise, when I ran across a CNN article pronouncing Drug Overdose Deaths Reach All Time High. 

Well, that cannot be right? We have taken such bold societal steps? I thought we had drug overdose on the run?

No, CNN reports that we have not made any dent in American drug overdose deaths. In fact, the rate increased double-digits, fourteen percent, from 2013-2014 (2014 is the year under review, and the 2015 results will not be out for months). The 2014 death toll for American drug overdose was 47,055, which was "1.5 times greater than the number killed in car crashes." Just a few years ago we were flabbergasted (one of my fellow judges would instead say "gobsmacked") that drug overdose exceeded car accident deaths, and now American overdose is 1.5 times the vehicle death rate!

Here is some interesting information on the rates of death from automobiles, guns and drugs. 

A little math is in order. Sixty minutes each hour, times 24 hours each day, times 365 days each year equals 525,600 minutes each year. I did the math, but if you doubt me listen to Jonathon Larson's Season of Love released back in 1996 in the musical Rent. Catchy tune, in which they keep repeating this figure, driving the total home, and asking how we use that time. 

Well, if you divide that 525,600 by those unfortunate 47,055 overdose deaths in 2014, you get one American overdose death each 11.2 minutes all year long. In the short time you likely spent reading today, someone died of an overdose out there. There are 129 such deaths each day.

We see a great deal of news coverage about violent death in America. As Don Henley sang in Dirty Laundry, lampooning the news industry, "it's interesting when people die, give us dirty laundry." With dash cameras and cell phones, we increasingly see video of tragedy and violence. But where is the video of those 129 people dying of overdose each day? Tragically, the deaths may eventually get someone's attention, but an even greater tragedy is likely the loss of productivity, vitality and activity that results from the addiction of those who suffer and struggle but do not die.

Far more overdoses in 2014 than gun deaths or automobile deaths. But for some reason, this pandemic does not merit media attention except for a brief mention each year when the annual statistics are released. The entire December 18, 2015 CNN story is 1,351 characters long, not even a letter for each of the 47,055 deaths. This is a little less than the attention CNN paid that day to the financial take of the new Star Wars movie (1,381 letters). Yes, 12 Americans died of overdose while I watched The Force Awakens.

In 2014 the American population was terrified by Ebola. It was a news story on every platform, despite the majority of its impact being thousands of miles away. The total worldwide death toll from Ebola in 2014 was about 4,877 according to the International Business Times.  American overdose death was almost ten times the world-wide Ebola death toll. But it sure did not make the news. 

CNN reports that the leading states for drug overdose are "West Virginia, New Mexico, New Hampshire, Kentucky and Ohio." I am so pleased that Florida did not make the top 5, but then guilty for this selfish reaction. The death toll is staggering. The story notes that "since 2000, opiod drug overdose deaths rose 200%." Nearly half a million American lives have been lost to opiod drug overdose since then. 

For perspective, that is more than the 418,500 America lost in World War II, according to the National World War II Museum in New Orleans. This century we have lost more Americans to drug overdose than to the entire catastrophe of World War II!

Seasons of Love from Rent asks us "how do you measure a year in the life," and suggests perhaps "in truths that she learned, or in times that he cried, in bridges he burned or the way that she died." 

We are on Notice and we are failing. People are dying. Tonight while you sleep, statistically, another 46 Americans will die of overdose. While you commute to work Monday or peruse Facebook, statistically, another four Americans will die. As you work through your day of emails, phone calls, trials and tribulations, statistically another 42 Americans will die. And that is only if the 2015 statistics remain on pace with 2014, without the double-digit year-over-year increases that recent years have demonstrated. All day, every day, Americans will die of drug overdose, 129 of them today, tomorrow, and on and on. 

Some are the responsibility of pushers and dealers. Some will suggest that some deaths are intentional and if drugs were not the vehicle, another would be found. Some are suggesting that some volume are the responsibility of physicians. Los Angeles and others have sought to hold the manufacturers of pain medication responsible. 

So, how will we "measure a year in the life?" Must it be in the "way that she died?"

Think "'bout sweet time," and those who learned of tough medical diagnoses this year. They will face months to come of specialists, tests, and treatments. We as a society and as individuals will focus an incredible attention on these people, and rightly so. They will be in our hearts and minds as they should be. Do we owe any less attention and focus to those at risk of death by overdose, whether it is Heroin or pain medication or Xanax?

Does it have to be in the "way that she died?"

We are better than this. 

Fraud and Jail Time for a Business Owner

I have noted before that the news often reports incidents of workers' compensation fraud. In the Bumped Knee Massacree, I recently noted some fraud observations. Fraud is a tough issue, which many people react to strenuously. I am frequently approached at meetings and seminars to be told that employer fraud is an issue that does not get equal news coverage. Well, fraud is back in the news, but with a somewhat unique twist. 

In several other posts, I have noted the challenges of the misclassification issue, with which states are struggling. These include Misclassification - What it is, and Is Misclassification in Trouble? By some accounts misclassification is on the run, and by other accounts it is alive and well. Misclassification is a process through which employees are instead labelled "independent contractors," thus relieving the employer of responsibilities for payroll taxes, workers' compensation and more. 

As troublesome as misclassification is, it is not the only way in which employers can act inappropriately. A recent story highlighted a business owner in New York who, instead of misclassifying workers, invented fake workers/employees to commit fraud. He was convicted of payroll misreporting and underpaying employees, and sentenced to serve time in jail as a result. That is fairly unique in the news. There are periodically stories of an employer fined, but jail time is an attention getter. 

This business operates nine franchises of a nationally known company in New York. According to Small Business Trends, this employer did not pay "proper minimum overtime wages as required by New York State law." The employees apparently worked overtime, but the business owner did not want to pay overtime. As a general rule that overtime pay is about 50% higher than regular wages.

Of course, the employer saved money by paying lower wages. Also, however, the employer pays payroll taxes based upon payroll. The lower the payroll, the lower the payroll tax liability. The article does not mention whether the federal government will become involved to collect additional payroll taxes.

Workers' compensation insurance premiums are also based upon payroll paid. This makes sense, because when an employee is injured at work, the amount of indemnity benefits to which she or he is entitled is likewise dependent on that employee's earnings prior to the accident date. Workers' compensation insurance premiums are thus influenced by the level of overall payroll paid by an employer. So the lower wages paid benefit the fraudulent employer in multiple ways.

To hide the overtime wages, paid at the lower amount, this employer created "false identities under which he filed employees’ overtime hours, making it appear as if other workers were actually working those extra hours," at base-wages instead of the overtime rate. These are sometimes referred to as "ghost employees." It was apparently not a small endeavor for this employer; the story says that "about 300 current and former employees were affected." The impact was significant.

Last summer, the Labor Department entered an agreement with the business owner. He agreed "to pay $230,000 in back pay for his workers, $230,000 in damages and $50,000 in civil monetary penalties." The employees of this business were cheated out of $230,000. With 300 employees involved, that is roughly $766.00 per employee (if the process was uniform, but it is possible and perhaps likely that some employees were subject to this scam more than others).

According to the Business Journal, this franchisee is not alone in running afoul of labor laws. The Journal quotes the New York Attorney General calling on all "fast-food companies to step up and stop the widespread lawlessness plaguing your businesses and harming the workers who make and deliver your food."

Is the "downside" in the reported case normal? The back wages are not really a deterrent to this kind of behavior; being ordered to pay what you should have paid to begin with will not deter. That is like making someone pay for the candy bar they are caught shop lifting. If the whole downside is to pay for what you tried to steal, many will not be deterred.

But here, the thief is ordered to pay for the candy bar, $230,000, and then pay double the price, another $230,000, and then pay a fine of $50,000.  So, getting caught results in paying what was already owed, $230,000 and then another $280,000 as deterrent. The penalties are about 122%. If this downside is normal, is it sufficient? If it is sufficient, then why is "widespread lawlessness plaguing" businesses in New York?

Perhaps the owner of this business will be deterred by spending 60 days of his life in jail, instead of running his business? Perhaps the news coverage of his incarceration will be persuasive in deterring others?

High Time for Florida Change?

Marijuana holds a fascination and attraction for people. It has been illegal in America for decades, but nonetheless sees significant use and acceptance. This is discussed recently in Measuring Marijuana Intoxication. Recently states have begun electing to decriminalize Marijuana, some for medical purposes and others for recreational. The substance remains illegal under federal law, but federal officials have announced their intention to ignore those laws. 

Because of the illegal nature of marijuana, it has not seen significant testing, development and approval the way other drugs have, through the Food and Drug Administration. What are the long term effects of use? What are the side-effects? There has reportedly been an aversion to private testing and development, broad clinical trials, because of the legality issues. Medical Marijuana may even be an oxymoron. Use of it, even without the overshadow of state law criminal prosecution threats, also have serious potentials in the labor market.

Currently, state action to decriminalize Marijuana has not occurred in the south. The IB Times has published a map produced by Graphiq, illustrating the state of decriminalization by state law, which is reproduced here. State action thus far has primarily been conspicuously in the northeast and the west, with some exceptions in the northern mid-west.

Without much fanfare (if it was in the news, I missed it), a bill was introduced in the Florida House last August, HB 63 (Representative Steube, District 73 Sarasota). A similar bill was filed in the Senate in November, SB 852 (Senator Brandes, District 22, Hillsborough and Pinellas). Each are titled "Medical Marijuana" on the MyFlorida pages, but the House bill would create the "Florida Low-THC Cannabis Act," and the Senate calls it the "Florida Medical Marijuana Act." 

The purpose of the bills is to allow "registered patients and designated caregivers to purchase, acquire, and possess Marijuana in some form. The House bill is more limited, to "low-THC cannabis . . .." Both bills would legalize "cultivation and processing" in Florida.

As with many statutes, the newly created Fla. Stat. 381.99 in either bill begins with definitions. In the House version, the legalization would only affect "low-THC cannabis," which "means cannabis that has no more than 0.8 percent tetahydrocannabinol (THC); has been tested in accordance with s. 381.997; meets the standards established by the department; and is packaged, labeled and ready to be dispensed." 

There are those who find the strength a critical issue. States that have decriminalized have reported some overdose issues, while some contend there have never been proven instances. There may be relevance in knowing the strength of any particular Marijuana, although at this time there are no real strength standards published, similar to the "proof" measures mandated with alcohol. These "low-THC" parameters in the proposed House statute may seek to provide standardization of strength, to afford a basis upon which to direct safe use? 

The legalization under the House bill would be only for "medical use," which means "the acquisition, possession, transportation, use and administration of the allowed amount of low-THC cannabis. The term does not include the use or administration of low-THC cannabis by, or possession of low-THC cannabis for, smoking." The House bill would bring forms such as "topical applications, oils, and food products." 

The Senate bill is broader, however, without the limitation for "low-THC," and includes use by smoking, but limits smoking in a residence in which child care or adult care are provided for compensation. There have been some interesting questions posed about the damage that smoking can cause to lungs and heart, with some believing that Marijuana smoking could have concerns similar to cigarette smoking. 

Marijuana use would be limited to "qualifying condition(s)" which in HB 63 are (1) cancer, (2) human immunodeficiency virus (HIV), (3) acquired immune deficiency syndrome (AIDS), (4) epilepsy, (5) amyotrophic lateral sclerosis (ALS), (6) multiple sclerosis, (7) Crohn's disease, (8) Parkinson's disease, and (9) a terminal illness ("a life expectancy of 1 year or less if the illness runs its normal course"). 

The Senate bill (SB 852) includes these same conditions and adds (10) paraplegia, (11) quadriplegia, and (12) "any physical medical condition or treatment that chronically produces one of more qualifying symptoms" (which include: wasting syndrome, severe and persistent pain, muscle spasm or nausea, or persistent seizures). 

Pain is a persistent issue in workers' compensation. We are beginning to understand more about it, see Don't it Make My Brown Eyes Blue and Smoking Linked to Chronic Pain, but it remains a difficult subject. There have been many who rushed to join the opiod bandwagon to deal with pain in the 1990s, and the resulting death toll and other unintended consequences has been nothing short of a pandemic. 

Some critics may point out that the opiod pandemic occurred with the very FDA safeguards, testing and trials that Marijuana lacks. Thus, some may question the efficacy of the FDA process in arguing that proceeding with Marijuana without such safeguards is warranted. Others may argue that with approval and testing disaster has occurred, and that bad outcomes are even more likely when regimens are created without such testing and approval. There is likely to be some interesting debate on this point. 

The drug will be available only to a registered and qualified patient. To qualify, the patient must be a state resident "who has been certified by a physician as having a qualifying condition." The physician will "order" marijuana, because it cannot be prescribed. To prescribe marijuana would violate federal law and subject the physician to potential punishment. Marijuana is illegal, listed as a Schedule I drug by the federal government. To "order" marijuana, a Florida doctor may have to complete special training. 

For a patient to be certified for marijuana, under either bill, they must have been a regular patient for "at least three months immediately preceding the patient's submission of a patient registration form." The physician must "believe, in his or her good faith medical judgement, the patient suffers from one or more of the the qualifying conditions." 

There are some caveats. The "use or administration" is not allowed in public places, on public transportation or "in a registered patient's place of work, if restricted by his or her employer." It would also not be allowed in state correctional institutions, on the grounds of schools or on school buses. These caveats may seem curious from the standpoint of equal protection under the law. If Marijuana is a medically necessary product, on what basis does a society preclude those in correctional institutions from receiving equal medical care? Are prison inmates less entitle to relief of their symptoms? This point may also see some interesting debate. 

Under both bills, provision to a minor child cannot be ordered without parental consent. And, if the patient is under 21 years of age, in the House bill, or a "minor" in the Senate bill, "a second physician must also submit a patient certification form" to the department. 

The growing and cultivation would be limited to "a facility building or enclosed space" under the House bill, but might be less restricted under the Senate bill. Under the House bill the selling of Marijuana would occur in "a facility or building where no other merchandise is sold." 

There is a local option included in both bills, stating that the "department may not license any retail facilities in a county unless the board of county commissioners for that county determines by ordinance the number and location of any retail facilities that may be located within that county." So, this proposed state decriminalization for medically ordered Marijuana might not make the drug available for purchase in all Florida counties. 

Colorado has seen some marked "tourism" effect of its decriminalization of recreational Marijuana. People reportedly travel there and make purchases. If a particular Florida county elects not to allow distribution, patients might have to travel to adjacent counties to obtain their Marijuana. Those adjacent counties would enjoy the benefits of whatever tax revenue this generated (direct or indirect, people might stop for lunch while there). Thus, should the medical Marijuana bill pass, there will likely be some interesting debates at county commission meetings also. 

There is an interesting insurance element in the bills. Many are familiar with the workers' compensation proceedings in New Mexico, in which an insurance carrier has been ordered to reimburse an injured worker who sought and received medical Marijuana. There are various issues with ordering an insurance carrier to pay for something that is illegal under federal law. 

The House Bill (HB 63) creates Fla. Stat. 381.9991, which states "The Florida Low-THC cannabis Act does not require a governmental, private, or other health insurance provider or health care services plan to cover a claim for reimbursement for the purchase of low-THC cannabis." The Senate bill contains similar language, substituting "medical marijuana," and clarifying that the Florida Medical Marijuana Act "does not restrict such coverage." Thus, under the Senate bill an insurer could provide coverage for Marijuana if it wished. 

Would this caveat be enough to keep medical Marijuana out of workers' compensation? 

Discussing these bills recently with a group of lawyers, the recurring question was "will it (the decriminalization) pass?" That is the question with all legislation and is a chorus on a variety of bills each legislative session. Will it pass is dependent on so many factors that prediction is no easy task. Those who are interested should stay tuned. Time will tell whether Marijuana is decriminalized in Florida in 2016. As the bills move through the process, it is possible that the House bill or the Senate bill will be successful, and just as possible that the end result will be a compromise of some sort between the two versions.

Read the Order

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Technology Changing Our World

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

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

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

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

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

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

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

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

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

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

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

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

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

Changing Face of Pain Treatment - a Game Changer?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Communication may be the key

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Occupational Disease and the Zadroga Act

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

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

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

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

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

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

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

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

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

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

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

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

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

The statute then defines restrictions on the generality, stating: 

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

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

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

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

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

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

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